The ‘scarlet pimpernel’ garb of Sri Lanka’s elusive witness protection authority

Sunday, March 05, 2017

Akin to the fabled (and damned) Scarlet Pimpernel of Baroness Orczy fame, one is constrained to search high and low for Sri Lanka’s elusive Witness Protection Authority. In fact, advocates in this country may be forgiven for indulging in the ditty ‘we seek (it) here, we seek (it) there, is (it) in heaven or is (it) in hell…?’ as they look for this (hopefully not) damned body in terms of its actual performance.

Many peculiarities in the process

This is a question that comes to the fore given the singular absence of any compelling interventions by the Authority into what remains one of the most agonizing failures of our justice system. True, a law was enacted to that effect many moons ago and some sort of body was established, to all intents and purposes.

This itself was attendant with many peculiarities, such as when its Chairman, a former High Court judge resigned shortly after taking up the appointment. After struggling with other issues including an embarrassing lapse in the legal procedures relating to the appointment of its members, we were informed that the Witness Protection Authority had been ‘reconstituted’ late last year after a long lapse following enactment of the law. This was apparently ‘launched’ in January this year.

Regardless and even though frequent references are made to such an Authority by the spokespersons of the Government of Sri Lanka when defending their brief overseas such as was the case recently in Geneva, the operationalising of an effective witness protection scheme for Sri Lankans seems to be more far distant than ever.

Proliferation of grandiose bodies

Its spluttering progress or lack thereof brings to mind, that other example of similar dysfunction, the Office of Missing Persons (OMP), the law relating to which was also passed with much applause in Colombo last year. Is Sri Lanka doomed to see a proliferation of these types of bodies with high-sounding titles but little concrete substance? The credibility of the members appointed to these bodies is also a significant factor that militates against the genuineness of the Government in bringing them into being in the first place.

Sri Lankans were also informed that a Division for Assisting and Protecting Victims of Crime and Witnesses came into being in November 2016. But as frequently pointed out in these column spaces, the operationalising of this Division within the police command structure is highly problematic.

This was a concern raised very early on but which was sublimely disregarded. How can the police, with outstanding allegations of threatening witnesses in court cases and other instances too numerous to mention, be trusted with undertaking protection of these people at risk? Who would be those naïve enough to claim such protections?

It was essential to have this Division operate independently like in other countries which have good witness protection schemes. It was also essential that the very members of the Authority had credibility and public legitimacy in terms of the functions entrusted to them. On both counts, Sri Lanka’s experiment in witness protection has failed miserably.

A deadly intent to patterns of witness intimidation

In the result, widespread impunity continues to be enjoyed by perpetrators. The cases therein are far too many to list. Some time ago a complainant in a bribery case, Sugath Nishanta Fernando who had also filed a fundamental rights application after being tortured by twelve police officers, was brutally killed. He had been repeatedly threatened to withdraw the cases and had appealed for protection from government authorities, including the Inspector General of Police, to no avail.

In the legal process, there is a deadly intent to these patterns of intimidation. The Gerald Perera case is classically symptomatic. This innocent man was 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 (CAT Act).

Later, the torturers were acquitted by the High Court on the basis that the criminal responsibility of the alleged perpetrators had not been proved beyond reasonable doubt. The victim himself was 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.

Judicial orders are disregarded

And in particular, women victims and witnesses are vulnerable in this terrible spiral of violence. Most often, they are denied access to criminal and civil remedies including reparations. Instead, at the most, perpetrators in uniform who intimidate are transferred away from their stations. Witness intimidation results in the collapse of the case half way through the trial. Basic requirements of prosecution of rape cases including medical examinations are often subverted.

Even in instances where the highest court in the land has pointed to action having to be taken against perpetrators of rape, this guidance has been disregarded. One good example more than seventeen years ago is still replicated in various other forms.

The Supreme Court’s stern response to the gruesome torture of Yogalingam Vijitha from Vavuniya was to pass severe strictures on the responsible police officers. The Court stated that there had not been a shred of evidence to support her arrest on suspicion that she had been implicated in acts of terrorism.

As it so transpired, the actual reason as to why she had been abused was that her husband with whom she had been having a dispute over her children had instigated the police officers with whom he was well acquainted, to arrest and torture her. Later, when questioned under the United Nations Special Procedures as to whether indictment had been filed against the perpetrators, the Government replied that this was not possible as the victim had left the country.

This is the common answer in complete disregard of the State’s own duty to protect victims.

Containing national anger

Sri Lankans do not need to be subjected to denials of this nature or ‘half baked’ laws that continue a culture of impunity. That might suffice to contain the international community for a while but the Government will not be able to contain the anger of its own nationals very soon.
This caution needs to be kept in mind.