Columns - FOCUS On Rights

The continued killing of witnesses

By Kishali Pinto Jayawardene

What has happened to the Witness and Victim Protection Bill that was presented to Parliament some months back?

This draft law had certain flaws that were analysed by concerned individuals at the time that the draft was made public. It was expected that the Bill would be passed shortly thereafter, hopefully after the needed finetuning was done. However, many moons have passed since that time and we hear nothing of its status. It is therefore opportune to question as to whether this Bill has been consigned to legislative limbo despite the hue and cry made by the government at that time both nationally and internationally, that the long awaited and most desperately needed measures particularly for witness protection in Sri Lanka were being implemented.

The killing of Sugath Nishanta Fernando

Meanwhile, killings of witnesses continue unabated. The latest case in this regard is last Saturday's killing of Sugath Nishanta Fernando who had lodged a bribery case before the Colombo High Court (B/1658/2006) and a fundamental rights application (SCFR.446/07) in regard to torture being perpetrated on himself and his family by twelve police officers. Earlier, Fernando had been repeatedly threatened by certain individuals who had demanded that he withdraw the cases that he had initiated. Despite his frequent requests for protection from these persons who had issued the threats and his complaints to the government authorities, including the Inspector General of Police, no witness protection was provided to him. Meanwhile, lawyers appearing for the victim have now received threatening calls, to the effect that they would 'learn their lessons' if they continued to afford legal representation.

Remarkable consistency to witness intimidation

The fact that we are living in a society where such threats could be issued with impunity ought to come as no surprise. This has, after all, been the common pattern during the past several decades. Examples such as the Chamila Bandara case where a young boy suspected of petty theft was cruelly tortured and thereafter had to flee his village after lodging a fundamental rights application, the Lalith Rajapakse case where a complainant of police torture had to similarly leave his home after learning that the police had planned to poison him and the Gerald Perera case are merely symptomatic of this pattern. In the last case, the victim was in fact, killed days before he was due to give evidence in a trial of his alleged torturers under the Convention Against Torture and Other Inhuman and Degrading Punishment Act No 22 of 1994.

It is clear therefore, that there is a remarkable consistency to the pattern of threats being issued against witnesses. In the Gerald Perera case, the alleged torturers were, in fact, acquitted by the High Court on the basis that the criminal responsibility of the alleged perpetrators had not been beyond reasonable doubt. The victim himself had been unable to give evidence as to the identity of his torturers due to his being killed. In the absence of any direct evidence, it was judicially ruled that the available circumstantial evidence was insufficient to sustain a conviction on the facts of the case. It must be recalled in this instance that the Court expressed its perturbation as to why the relevant Officer-in-Charge (OIC) of the station, (who was originally an accused in the indictment but whose name was then withdrawn), had not been indicted by the Attorney General.

Mockery of the law

Witness intimidation is also an extremely common feature in many of the cases arising out of the protracted conflict in the North/East. In one well known instance where a pregnant woman, Vijikala Nanthakumar and Sivamani Weerakoon (a mother of three) were raped and tortured by officers of the Counter Subversive Unit (CSU) of the Mannar police, the trial was kept pending for many years with the accused released on bail and the victims constantly intimidated by the police. Naturally, the possibility of success with such cases is slim. The law itself then becomes a mockery.

This mockery is exemplified by the long delays in criminal trials which provide a fertile ground for witness intimidation. Delays are evidenced at all stages of the pre-trial and trial process. The serving of the indictment itself takes a long time and one problem may be that the indictment is served to the headquarters and not to the station where an accused police officer is based. Thus, delay is occasioned during the time that the indictment is sent from the headquarters to the relevant police station. Even after indictment is served and the case commences in the High Court, proceedings may drag on for years allowing ample time for the accused police officers to threaten, intimidate or kill witnesses. Often, the delay is such that months may lapse between one trial date and another, with only parts of a witness's evidence heard on a single day. Let alone witness intimidation being facilitated by such delays, inconsistencies may occur due to forgetfulness leading inevitably to acquittals. The lackadaisical nature of prosecutions and other government departments such as the Government Analyst's Department not submitting necessary reports to court on time are also contributory factors.

How many deaths will it take?

Impunity in this regard is heightened by the fact that procedures for discipline within the police department, despite relevant Departmental Orders and numerous directions in this respect from the Supreme Court, are minimal. Further, the extreme politicisation of the service has led to promotions and commendations being awarded not as a matter of merit but as a matter of political influence. All these have been major factors that have led to the police service abandoning its original rationale of serving the public. The concept of command responsibility has also lost its value with this deterioration of the police service. Though this concept has been articulated by the Supreme Court on more than one occasion, it has not filtered down to the actual working of the police department.

How many deaths will it take for witness protection to be realised in Sri Lanka?

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