PLAINT-UNMATTER-4(FINAL-edited)

7/17/2019 PLAINT-UNMATTER-4(FINAL-edited)

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IN THE DISTRICT COURT OF COLOMBO

Dr. Gunadasa Amarasekera31/14A Second Cross Street

Koswatta, Nawala

Case No: Nature: Special Plaintiff

Procedure: Regular

Value: Rs. 10,000,000.00 Vs.Subinay Nandy

United Nations Resident Coordinator

United Nations Compound

Baudhaloka MawathaColombo 7

Defendant

On this 23rd

day of September 2015.

The Plaintiff appearing through his Attorney, Kapila Gamage states as follows:

1. The Defendant named above is the official representative in Sri Lanka of the United Nations

Organization, which said Organization has its headquarters in the city of New York, in the

United States, but has a permanent office and place of business within the jurisdiction of this

court.

2. The Plaintiff named above is a citizen of Sri Lanka, and a well-known novelist, cultural critic

and public intellectual. For reasons more fully set out hereinafter, the Plaintiff has suffered

dishonor and disgrace as a result of the actions of the United Nations Human Rights Council,a subsidiary organ of the United Nations Organization, of which the Defendant named above

is the official representative in Sri Lanka.

3. The United Nations Organization, of which the Defendant named above is the official

representative in Sri Lanka, is the world’s leading international organization, established

under the United Nations Charter in 1945, for the purpose, inter alia, of facilitating peace,amity, and good relations among the nations of the world. Sri Lanka is a signatory to the said

Charter.

4. By virtue of provisions in the aforesaid Charter, along with a subsequent treaty (Convention

on Privileges and Immunities of the United Nations) the United Nations Organization, ofwhich the Defendant named above is the official representative in Sri Lanka, enjoys, in

general, immunity from prosecution in the domestic courts of its member nations.

5. The Plaintiff states that, the aforesaid immunity extends only to legal acts of the United

Nations Organization, of which the Defendant named above is the official representative in

Sri Lanka, and, since it is the Plaintiff’s contention that the acts of United NationsOrganization that have caused him dishonor and disgrace are illegal acts, they are not

covered by the aforesaid immunity.



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6. In 2012, 2013 and 2014 respectively, the United Nations Human Rights Council adopted

three resolutions against Sri Lanka on the subject of accountability for violations of humanrights law and humanitarian law allegedly committed during the last phase the war against

the Liberation Tigers of Tamil Eelam (LTTE) that ended in May 2009.

The Plaintiff hereby annexes the said 3 resolutions, marked as P1, P2 and P3, and files as part and parcel hereof.

7. The resolution in March-2014, A/HRC/25/L.1/Rev.1, authorized an investigation into the

aforesaid alleged violations, to be carried out by the Office of the United Nations HighCommissioner for Human Rights (OHCHR).

8. It is the Plaintiff ’s contention that the aforesaid authorization is illegal, because of thefollowing reasons:

8.1) The recommendation for an international investigation in resolutionA/HRC/25/L.1/Rev.1 is based solely on the recommendation for such an investigation

made by the United Nations High Commissioner for Human Rights, in three reports

of the High Commissioner, namely, A/HRC/22/38 (February-2013),

A/HRC/24/CRP.3/Rev.1 (September-2013) and A/HRC/25/23 (February-2014).

The Plaintiff hereby annexes the aforesaid three reports of the High Commissioner

marked as P4, P5 and P6

8.2) The primary and principal basis for the High Commissioner ’s recommendation for an

international investigation made in each of the aforesaid three reports is evidence

contained in the Report of the Secretary General’s Panel of Experts on Accountabilityin Sri Lanka (hereinafter referred to as “Panel of Experts Report”) released in 2011,

and, the use of the said Report to recommend an investigation against Sri Lanka at the

Human Rights Council, or in fact to pursue any other official measure against SriLanka at any official U.N body, is ex facie illegal, because:

a) The said Panel of Experts Report was commissioned by the Secretary General for

his personal use: as such, the decision to commission the report was not the resultof a consultative process involving the Members of the United Nations

Organization, including Sri Lanka, which was a violation of the inherent right of

those Members (stemming inter alia from Articles 1(3), 2(1) and 2(7) of the U.N.Charter) to participate in and provide input into any decisions of the Organization

that affected their interests.

b) The said Panel of Experts Report was never placed on the official record of theGeneral Assembly, the Human Rights Council, or any other U.N. body, and

therefore Sri Lanka never had an opportunity to respond officially and directly to

said report before any official U.N body: as such, Sri Lanka’s right of response, a basic right under Natural Justice, was violated.



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The Plaintiff hereby annexes the aforesaid Panel of Experts Report marked as P7

and files as part and parcel hereof.

8.3) The Plaintiff contends that, since the basis for the Human Rights Council’sauthorization of the investigation in resolution A/HRC/25/L.1/Rev.1 is the High

Commissioner’s recommendation, and since the High Commissioner’srecommendation for an international investigation is ultimately based on evidencecontained in the Panel of Experts Report, as explained herein-before, the

authorization of the investigation is also illegal.

9. The Plaintiff states that, the Human Rights Council is a creation of the United NationsGeneral Assembly, by resolution 60/251 of April 2006.

The Plaintiff annexes a copy of said General Assembly resolution 60/251 marked as P8 andfiles as part and parcel hereof.

10. Therefore, it is the Plaintiff’s contention that, the United Nations Organization, of which theDefendant is the official representative in Sri Lanka, is ultimately responsible for the illegal

acts referred to in paragraph 8 herein-before.

11. The Plaintiff states that he has been personally affected by the aforesaid illegal acts of theUnited Nations Organization, of which the Defendant is the official representative in Sri

Lanka, in as much as:

11.1) An external investigation into the conduct of the Government of a country in a

situation of civil unrest or insurgency, a matter that necessarily falls under the

domestic jurisdiction of that country, is by definition an imposition into the

sovereignty of that country.

11.2) At the time the investigation against Sri Lanka was authorized, the Government

opposed the investigation: hence, as a general matter, the investigation, at the time itwas authorized, was an imposition on the sovereignty of this country.

11.3) According to the Constitution of Sri Lanka, the sovereignty of the country is in the

people and inalienable, which means each and every citizen shares in the aforesaidsovereignty equally. Any imposition on the sovereignty of the country is an

imposition on that part of it that accrues individually to each citizen.

11.4) The Plaintiff considers that the sovereignty of a country is the basis of all other rights

and privileges enjoyed by the citizens under the Constitution, since, if sovereignty is

compromised (for instance by external intervention of one sort or another) it disrupts

the environment where the Constitution can function properly.

11.5) Therefore, the sovereignty of the country is ultimately the basis for the sense of

security, peace of mind, and national security, of each citizen. If sovereignty iscompromised, the aforesaid sense of security, peace of mind, and national security of

each citizen is also compromised.



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11.6) Thus, the investigation has disrupted the Plaintiff’s sense of security, peace of mind,

and national honor.

11.7) In order to address the resolutions in 2012, 2013 and 2014, the Government was

compelled to take extra steps, including sending special delegations to each of the

respective Human Rights Council sessions, and also sending special envoys to Europeand the United States to explain matters related to the resolutions. The Governmentwas also compelled to take special steps as a consequence of the March-2014

resolution.

11.8) The Plaintiff has calculated, from information available in public sources, that justone of the special steps the Government took as a consequence of the said

resolution — i.e. the appointing of a team of international advisors comprising of Sir

Desmond De Silva, Sir Geoffrey Nice, Mr. Rodney Dickson and Professor David M.Crane, to assist the Commission of Inquiry into missing persons — cost the

Government a sum of Rs. 135 million for just seven months.

11.9) The said sum, among others, which would not have been spent if there had been no

resolution, was paid out of public funds. That means members of the public,

including the Plaintiff, suffered the loss of those funds, which could have been used

for other purposes beneficial to the public.

12. The Plaintiff states that, on account of the matters set out in paragraph 11 above, the Plaintiff

has suffered, and continues to suffer, dishonor and disgrace on account of:

12.1) The disruption to the Plaintiff’s sense of security, peace of mind and national security

resulting from the imposition into Sri Lanka’s sovereignty caused by the

investigation, and the related measures, including further proposed resolutions againstSri Lanka that will follow in the future, based on the report of the aforesaid

investigation.

12.2) The inconvenience and mental harassment experienced by the Plaintiff for the

financial loss to public funds of the country, to which the Plaintiff as a tax-paying

citizen has contributed, and continues to contribute, for the aforesaid sum of rupees

135 million, among others, spent on either preparing for the impending resolution inMarch-2014, or as a consequence of it.

13. On the 2nd of September 2015, the Plaintiff wrote to the Defendant, acquainting him of thematters set out herein-before, demanding inter alia redress as follows, and giving two weeks

for a response:

a) An admission, in writing, that the investigation against Sri Lanka authorized under

Paragraph 10 of resolution A/HRC/25/L.1/Rev.1 is illegal.

b) An apology, in writing, for the inconvenience, mental harassment and financial loss

caused by the aforesaid investigation.The Plaintiff hereby annexes a copy of the said letter of demand, along with the postal

receipt, marked as P9 & P9a and files as part and parcel hereof.



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14. As of the date of filing of the Plaint, the Plaintiff has not received any reply to the letter of

demand sent by him to the United nations Organization, of which the Defendant is theofficial representative in Sri Lanka, and the Plaintiff states that the said failure to reply to the

letter of demand is tantamount to an admission of the facts contained therein.

15. On account of the matters set out in herein-before, the Plaintiff states that a cause of actionhas arisen for him to sue the United Nations Organization, of which the Defendant is the

official representative in Sri Lanka, in order to obtain the following relief:

a) An admission in writing that the investigation against Sri Lanka authorized byHuman Rights Council resolution A/HRC/25/L.1/Rev.1 is illegal.

b) An apology in writing for the disgrace and dishonour caused as a result of theauthorization of the aforesaid investigation.

16. The Plaintiff values the plaint at rupees 10,000,000 (ten million) for purposes of stamp duty.

Wherefore, the Plaintiff prays that Your Honour’s Court be pleased to:

a) Issue an order requiring the United Nations Organization, of which the Defendant is

the official representative in Sri Lanka, to admit, in writing, that the investigation

against Sri Lanka authorized under Paragraph 10 of resolution A/HRC/25/L.1/Rev.1

is illegal.

b) Issue an order requiring the United Nations Organization, of which the Defendant is

the official representative in Sri Lanka, to apologize, in writing, for the disgrace and

dishonour caused by the aforesaid investigation.

d) Grant costs.

e) Grant such other and further relief as Your Honour shall deem meet.

___________________________

Attorney-at-Law for the Plaintiff

Annexes:

‘P1’ - Human Rights Council resolution A/HRC/19/L.2

‘P2’ - Human Rights Council resolution A/HRC/22/L.1/Rev.1

‘P3’ - Human Rights Council resolution A/HRC/25/L.1/Rev.1



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‘P4’ - High Commissioner’s report A/HRC/22/38

‘P5’ - High Commissioner’s report A/HRC/24/CRP.3/Rev.1

‘P6’ - High Commissioner’s report A/HRC/25/23

‘P7’ - Report of the Secretary General’s Panel of Experts on Accountability in Sri

Lanka (March 2011)

‘P8’ - United Nations General Assembly resolution 60/251

‘P9 & P9a’- Plaintiff’s letter of demand and postal receipt

The Proxy

___________________________

Attorney-at-Law for the Plaintiff

PLAINT-UNMATTER-4(FINAL-edited)

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