FOR IMMEDIATE RELEASE
AS-274-2007
November 22, 2007
A Statement by the Asian Human Rights Commission
SRI LANKA: One law for the judge and another for the witness third anniversary of Gerald Perera’s assasination
In the third week of November, 2004 two assassinations took place. One was that of Justice Sarath Ambepitya, a High Court judge and the other a witness, Gerard Perera, who was to give evidence before a High Court.
The trial into the murder of Justice Ambepitya was completed within one year and the accused were convicted; they are now in jail pending the hearing of their appeal. The murder trial of the witness, Gerard Perera, is still dragging on even as the third anniversary of his death will be commemorated on November 24.
From the day of arrest of the accused in Justice Ambeptiya’s case, to-date, even pending appeal, the accused have been imprisoned. However, the accused in Gerard Perera’s case are at large, bail being allowed by the courts. All the conspirators to the murder of Justice Ambepitya, against whom there was evidence, were brought to trial. However, as for Gerard Pereras murder, even though several persons made voluntary confessions of their knowledge about the murder to the magistrate who initially conducted inquiries, many of these persons have not even been indicted. The reason for Gerards murder was a High Court case where six police officers were charged with torturing him. Several of the accused in that case made statements to the Magistrate’s Court inquiring into the murder case by way of voluntary confessions to a judicial officer, giving details about the circumstances of the assassination. However, only one Sub Inspector and a civilian, the hired gunman, were charged for the murder.
The case of Justice Ambeptiya was a trial at bar consisting of three judges. Under that procedure the case was heard from day to day from its beginning through to the end. However, Gerards case is being heard in the normal course of High Court trials and thus without any definite plan for hearing the case from beginning to end. The case has been postponed at different dates and has been dragging on for three years now. Besides this, at one point, without any reason, the High Court judge hearing the case was changed by the order of the Chief Justice. Even the state counsel representing the Attorney General protested this transfer. Later, the same judge was again asked to hear the case. Then the High Court judge declined to continue. Thereafter the case was sent before another High Court judge. Making use of this occasion the lawyers for the defense requested that the witnesses who had given evidence should be recalled and thus the trial started all over again.
In a criminal trial the witness is the most important element; without witnesses there can be no trial. If one judge cannot hear a case another one can replace him. However, if the main complainant in a criminal case, who has been the one who has suffered the injury, is killed, it is not possible for someone else to take his place. It is due to this that killing, harassment and the intimidation of witnesses is being resorted to by the alleged perpetrators of crimes. If they can keep the witnesses out of court they can escape criminal liability.
It is the duty of the state to ensure the protection of witnesses. Towards this end many common principles have been adopted in all credibly functioning criminal justice systems in order to provide protection for them. Some of these basic principles are as follows: a witness should not be allowed to be subjected to any further harassment or difficulty due to his becoming a witness. The witness should be provided with all the security needed from the time his statement is recorded and for as long as he exposed to any dangers due to his becoming a witness; the state should bear the expense of such protection; the state should, where necessary even relocate witnesses for their protection. The state should expedite the hearing of their evidence in court; and finally the state also should look into the psychological and emotional consequences a witness may go through due to his being a witness.
The courts also bear part of the responsibility of the state. It is the duty of the courts to hold the government responsible to provide for all the circumstances that may arise in the course of a witness discharging his obligations and attending to the matters that were mentioned in the above paragraph. The courts have an obligation to question the state as to whether it is discharging all the obligations that are required to protect the witnesses. The question of the allocation of funds and personnel to witness protection matters should be taken up by the courts in their public deliberations and thereby set norms and standards for the performance of duties of the state agencies regarding witness protection.
There are also heavy obligations on the part of the Inspector General of Police and the Attorney General’s Department to make extensive plans for the general protection of witnesses and specific plans for witness protection in each case. The needs of each witness should be examined and special plans adopted to protect them. Among the witnesses who need the most protection are the witnesses against organised crime, in corruption cases against powerful persons and the witnesses against alleged police and military abuse. Gerard Perera belonged to this category of persons who deserved this from the Sri Lankan government and all its agencies, the courts, the IGP and the high ranking police and the Attorney General who represents the prosecutors department in Sri Lanka.
The Asian Human Rights Commission notes that all these branches of the government failed to discharge their obligations towards this witness and that was the reason why the perpetrators were able to kill him. Now all these branches are betraying him again by their refusal to ensure a speedy trial in his case. If the delay results in creating circumstances that would help the perpetrators to escape this will be of no surprise either.
The Sri Lankan government, its Consulate General in Geneva, who represents the government before UN agencies and the Secretary General of the Peace Secretariat have been making high sounding statements about Sri Lankas adherence to its duty of providing witness protection in the country. There has been loud talk about a witness protection law and programme but there has also been the acknowledgement that the main cause of the failure of prosecutions in Sri Lanka is the absence of protection to the witnesses. It has also to be observed that the government encourages the policy of the intimidation of witnesses when it comes to cases of corruption by powerful persons and the alleged crimes done by the police and the military. Witness intimidation has remained the actual policy of the Sri Lankan government while high sounding statements are made to the contrary.
In two cases the UN Human Rights Committee has held against the Sri Lankan government for its failure to discharge its obligations to provide an effective remedy for violations of rights due to delays in adjudications in Sri Lankan courts. These cases are Lalith Rajapakses and Dingiri Bandas, which was decided on October 26, 2007.
As an act of respect for the slain witness, Gerard Perera, it would be the duty of the Sri Lankan people and the international community to decry the neglect of the Sri Lankan government and its agencies to provide witness protection and also for the denial of speedy justice to this simple and brave citizen who dared to pursue a complaint against police officers for torturing him and paid the ultimate price in the pursuit of justice.
