The absence of a witness protection law has been one of the serious defects in the control of crime as well as the elimination of gross human rights abuses in Sri Lanka. The machinery of criminal justice consists of an effective complaint receiving mechanism, an efficient and prompt investigation mechanism, a competent and honest prosecution mechanism and a judiciary committed to delivering justice at all costs. However, this machinery cannot work if people are not coming forward to make complaints or withdraw their complaints after initially taking some steps in that direction. Therefore, introducing stands to common sense. The acquired intelligence on the basis of a failed system should generate strong support, not only for a quick passing of this law, but also for a fully equipped independent witness protection authority that would have the human and material resources to carry out their task.
The urgency for such a law and authority was highlighted in an incident which took place at the Presidential Commission of Inquiry (CoI) when a witness complained that during the tea break of the proceedings on May 5, an officer identified as Samsudeen, allegedly threatened him. According to the comments of a lawyer representing the Movement for Protecting Civil Rights (MFCR) quoted by the BBC Sinhala Service: When the CoI commenced after the tea break, the witness started crying. He said two officials have started questioning him at the tea break. He told the CoI that he and his family were also threatened before. The witness was a Catholic priest who wished anonymity. This of course is not the first time such complaints have been highlighted at the CoI. There were several witnesses who fled the country for fear of their lives and gave evidence only through video links and who explained that, if they were to give this same evidence while they were in Sri Lanka they would have been killed. Among them was Dr. Manoharan, whose son was one of the five medical students killed in Trincomalee.
The extent of the witness intimidation in Sri Lanka need not be a matter that requires any proof. It is common knowledge and it does not merely apply to cases relating to Tamil victims but also to all others. For example, in the over 30,000 disappearances that took place in the late eighties only one or two cases were prosecuted. There was, in fact, evidence for over 100 cases but these were not prosecuted. However, in a vast number of cases the witnesses did not come forward as, to decide on giving evidence in such cases, would be a matter of life and death.
Even in the area of crimes unrelated to insurgencies witness intimidation is high. There is only a 4 percent success rate of successful prosecutions even relating to the crimes under the Penal Code. It is a well known fact that the number of people who complain about crimes have drastically reduced, not because of the decrease of crime, but due to the futility of making complaints. Out of those crimes that are complained of, around 50 to 60 percent are not even successfully investigated. The 4 percent of the successful prosecutions is of this reduced number of cases. Thus, the actual percentage of successful prosecutions, compared to the number of actual crimes is much less than 4 percent.
The case of Gerald Perera demonstrates the difficulties of an innocent citizen whose rights were so brutally and cruelly suppressed by way of an arrest without any reason and torture to the extent of causing renal failure. When he pursued his complaint he was assassinated. The High Court which tried the torture case held that since the torture took place inside the police station and there were no eye-witnesses to the torture, the officers who arrested him cannot be held guilty of causing torture.
One of the issues that lead to the quitting of the International Independent Group of Eminent Persons (IIGEP) was the lack of witness protection. The IIGEP recommended that the Government of Sri Lanka should establish, as a priority, a workable, effective and permanent system of victim and witness protection. The Commission should endeavour to train the staff of its victim and witness protection unit in order to provide the optimum level of security and assistance to potential witnesses. The IIGEP also calls for the establishment of a facility whereby essential witnesses, who have left Sri Lanka, and who can continue to give first hand evidence as to some of the events under examination by the Commission, can give their oral evidence to the Commission by video-links under conditions of complete safety. In this respect, international support to the Commission has proven critical.
If the proposed law is an attempt to deal with this problem, without the resolution of which there cannot be an effective criminal justice system in Sri Lanka, it has to be welcomed. However, public pressure needs to be kept up over a long period of time for the realisation of the aims of that law. There is a habit in Sri Lanka of passing laws merely to please foreign critics. When the occasion passes then the law is defeated by obstructing its implementation. The CAT Act, Act No. 22 of 1994, is one such act that was sabotaged through clever manipulations that protect the perpetrators rather than the victims. The 17th Amendment to Sri Lankas Constitution is another example.
Perhaps it is better to be optimistic, better to believe that all those who have become very vocal on behalf of the government in loudly declaring the governments intention to protect rights, such as the Attorney General’s Department, diplomats making submissions to the UN Human Rights Council and other international forums and the Peace Secretariat, will do their utmost to promote the witness protection law and to establish the witness protection authority. Since all good and nothing harmful can result from an effective witness protection system there is, in fact, the need for all state institutions and civil society organisations to play an active role in this endeavour.
The experiences of other countries show that a nation that possesses an effective witness protection system is a peaceful place in which to live.
