By Kishali Pinto Jayawardena
Sri Lanka's first draft Victims and Witness Protection Law is currently before the country's august Parliamentarians.
My perceptible lack of enthusiasm however in immediately embracing this draft law is influenced not only by the problematic nature of its contents and the secretive manner of its passing but also by my serious conviction that all these laws are but patchwork attempts by politicians to convince their voters that something is being done to address the perilous plight to which the Rule of Law has fallen into in our society.
The urgency of
One case that is often cited in this context is that of Gerald Perera, the Colombo dockyard employee who was tortured by police officers of the Wattala Police Station on mistaken identity, then won his plea based on a fundamental rights violation in the Supreme Court but was killed in broad daylight days before he was due to give evidence at the trial relating to his torture in the High Court. His plea for witness protection had been disregarded by the authorities.
His case is, of course, the most striking of many such instances. Intimidation of witnesses is not an isolated practice resorted to only on the part of the police/armed forces during times of emergency and war. Instead, it is a common practice among law enforcement agencies and has been manifested even in normal times, by police officers in this country. Accused of torture, they were kept in their positions despite indictment and were thus afforded an opportunity to threaten and even kill witnesses.
Analysis of several judgements of the High Court relating to acquittals handed down of police officers responsible for extra judicial executions and enforced disappearances during the eighties illustrate what we had known all along. Namely, that the acquittals were due in large part to the purportedly inconsistent testimony of the witnesses, leading to a situation where the requisite standard of proof beyond reasonable doubt could not be established.
The range of reasons for the manifestation of such patterns of inconsistency on the part of witnesses is very wide. At all points, victims and members of their families are trapped by the extraordinarily brutal context in which grave human rights violations occur as well as by the full adversarial weight of the criminal justice system.
The delay in lodging complaints is one factor. The delay is often due to the extreme trauma that they suffer as well as due to their being treated in a hostile manner by the police. Yet, these delays are used against the complainants in the relevant prosecutions in order to discredit their case. Thus, the marginalization by a legal process that is long, burdensome and hostile/uncaring in respect of their plight is indeed, the final tragedy visited upon them.
Then again, the delay in protracted legal proceedings has a particular impact on the absence of witness protection as witnesses face death threats by perpetrators who work at high positions in the army and the police. In illustration, the special report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission details complaints of parents and family members of the disappeared victims who had complained that 'officials of the security forces who were responsible for the abduction of their loved ones were still working in those same places." In fact, the Commissioners categorised a particular group of family members of the disappeared as "inhibited complainants" due to this reason and comes to the view that legal proceedings should be laid bye until such time that their security is assured. (at pages 8 and 9 of the Commission's Report)
A similar pattern is seen in the several cases coming from the North/East involving the massacre of Tamil villagers by members of the armed forces, often in retaliation for a strike by the Liberation Tigers of Tamil Eelam, a fuller discussion of which needs to be done elsewhere.
Witness protection not the only reform needed
Once the trial commences, marginalisation of victims in the criminal process often results in their dropping out of the trial process. In all these cases, there is overwhelming evidence as to hostility of the adversarial legal process with its harsh cross examination of witnesses who had to suffer multiple trauma, first with the disappearances/killing of their family members and thereafter with the ordeal of having to stand up in open court and withstand the rigorous scrutiny of defence lawyers.
The above discussion illustrates the legal context in which a Witness Protection Law is urgently needed but also makes the obvious point that such a law is by no means the only reform that is needed of the criminal justice system. The question as to whether even in that narrow sense, the draft law fulfils its expectations will be examined in the succeeding analysis next week.