On the 21 November 2004, Gerald Mervin Perera, victim of a well-known torture case was shot as he was travelling to work in a bus in the early hours of the morning. In his pocket was the summons issued by the High Court of Negombo, summoning him to give evidence in a torture case against several police officers in which he was the main complainant. This case had been taken earlier to the Supreme Court , where a bench of three judges unanimously decided that he had been severely tortured after being arrested on mistaken identity. In fact, he had been taken in place of another man named Gerald, who the police had been looking for.
The judgement received very wide publicity. A few days before the shooting, Gerald Perera had told several persons that he had been pressurised to accept Rs.5 million (US$50,000) and issue a statement that his original statement was false. He refused and shortly thereafter, was shot. The police inquiry into this case was handed over to the Criminal Investigation Department (CID). However, up until now, the inquiry has not led to the arrest of any person for the murder. This is despite huge concerns shown in the media regarding the case and the involvement of several institutions such as the Human Rights Commission of Sri Lanka and the National Police Commission to ensure credible inquiries.
This murder has also raised serious concerns about the future of cases under the CAT Act of Sri Lanka (Act No. 22 0f 1994). If a chief witness were killed before such a trial, then it would be virtually impossible to proceed with the criminal trial as required under this act. The result might be that more alleged perpetrators accused in criminal cases, particularly those regarding torture, may resort to the killing of important witnesses with the expectation that trials against them will not proceed. There have been other cases where there have been attempts of murder and serious second time torture of victims with the same expectation of terminating legal proceedings due to the lack of vital evidence.
Though the torture act of Sri Lanka was adopted in 1994, hardly any cases were filed before there was a serious civil society campaign and pressure by the international community to implement the act. As a result, according to statistics given by the Attorney Generals department, about 40 cases are now pending before various High Courts. In two cases there have been convictions. Under the Act, the mandatory sentence is seven years rigorous imprisonment and the payment of a fine of Rs. 10,000 (US$100). These two convictions and the increasing number of investigations leading to the filing of more cases have had a chilling effect on the police in recent months. The use of torture, once accepted as the only mode of conducting criminal investigations, has now become an offence carrying a serious prison sentence. It is this fear that makes some police officers take the easier alternative of trying to eliminate witnesses prior to the trial.
Though serious representations have been made to the Inspector General of Police, Attorney General and other relevant state agencies to implement a witness protection programme, there has not been any attempt to bring about such a law. Although regrets about the deaths are expressed, no positive attempt has been taken to introduce a witness protection programme or to provide resources towards it.
Under these circumstances victims of torture who are awaiting trials are faced with serious concerns. On the one hand, they wish to carry on with the by the complaints they have made and to seek justice. On the other hand, they are afraid of jeopardising the life and freedom of themselves and their family members. Many torture victims have relocated to other places in search of protection.
Under these circumstances, the relevant UN agencies such as the Rapporteur on the Question of Torture, the CAT Committee and the Human Rights Commission itself, should take effective action to look into the possible legal changes that should be introduced, in order to protect victims of crime in general and victims of torture in particular. It is essential that the UN mechanism makes itself aware of the extreme nature of violence taking place against torture victims in Sri Lanka. If these persons withdraw their cases due to fear of repercussion, it will no doubt bring about the demise of the Torture Act in Sri Lanka. The years of effort that have been invested in persuading the Sri Lankan state to agree to bringing in a law against torture and also the effort spent in trying to implement this act, may very well be lost due to the enormous fear that has spread among the people, particularly following the death of Gerald Perera.
The Government of Sri Lanka must take immediate action to implement a witness protection law and also provide the necessary resources for the functioning of this. It is also obligatory on the part of the UN agencies dealing with such issues, to negotiate with the government in order to bring about such a witness protection mechanism particularly for torture victims. The present trend of genuine fear of assassination or serious physical harm to the victims themselves or their family members should be understood fully, and an alternative policy of promoting human rights, particularly by way of providing protection to witnesses, seems to be the only answer to this problem.
