FOR IMMEDIATE RELEASE
AS-147-2007
June 28, 2007
A Statement by the Asian Human Rights Commission
SRI LANKA: AG’s reply to IIGEP; Kafkan metamorphosis of the Attorney General’s role Part Two
(The first part of this statement appeared June 27, 2007 which you may find at: http://www.ahrchk.net/statements/mainfile.php/2007statements/1094/)
Witness protection conflicting policies declarations of Draft Law on Witness Protection vs. guarantees of impunity as a core aspect of social control under the present regime
The AG in his reply to the IIGEP states:
I have been personally involved in the drafting of a new Victim and Witness Assistance and Protection bill and it is envisaged that the draft bill will be submitted to the government through the Law Commission very soon.
Anyone familiar with this issue in Sri Lanka will find that similar statements have been made by the AGs department, the Law Commission and even some ministers for many years now. In 2003 the former AG K.C. Kamalasabeyson, in a public lecture stated as follows:
Another important feature that requires consideration is the need for an efficient witness protection scheme, that would ensure that witnesses are not intimated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?
A simple question that anyone might ask is as to what time frame is needed to pass a witness protection law through the legislature when there is already a draft of such a law agreed upon by the government? Such a law can be passed through a simple majority in parliament. However, given the fact that should be a non-controversial piece of legislation it may even be passed unanimously, or with near unanimity as the 17th Amendment to the Constitution was passed in 2001. If the government wants, this law can be passed within weeks or even days.
Why then is there a delay? The answer is that whether there should be a witness protection law is one of the most controversial problems within the government, which the AG would not want to concede. Like all regimes since 1971, this regime also encourages the police, military and paramilitary groups to engage in illegal acts in order to suppress protests against it. The parts that the police, military and the paramilitaries, including armed political groups, are expected to play in the fight against insurgencies or terrorism include the causing of abductions, forced disappearances, torture, disposal of bodies outside legal process and even the forcible evacuation of large numbers of persons from one place to another. The police, the military and paramilitary forces are encouraged to engage in these acts and for these purposes they are assured impunity.
The most important element in maintaining impunity is to ensure that the victims of such violence will not dare to come forward to make complaints. The few that do come forward due to compelling reasons such as close relationships to the victims must also be discouraged from pursuing their complaints. If this strategy of intimidation of the victims and others who are in the know of illegal acts conducted by the state officers fails, it is not possible for the government to carry out their policy of repression.
The architects of these policies of getting the police, the military and others to act outside the law were all aware of what they are doing. President J.R. Jayawardene formulated this as the policy of killing poison through poison. The late Ranjan Wijeyaratna, the infamous deputy Defense Minister at the time when there were large scale disappearances in the south, openly defended his position by stating in parliament itself that these things cannot be done according to the law. The architects of the present repressive policies are following in the footsteps of many others who, since 1971, have often thought that it is an obligation on the part of the state to act outside the law in order to deal with what is considered threats to the state.
If there is going to be an effective witness protection law and a witness protection programme there will literally be tens of thousands of persons around the country who will come forward to divulge what they know about the crimes that are taking place in the country. At the moment they do not come forward only because they are afraid of facing the consequences of trying to assist the state to investigate grave crimes and to prosecute them. There is genuine fear throughout the country that anyone who comes forward to play the role expected of a citizen in giving information regarding crimes that he has some knowledge of, may have to pay for such acts with his own life, or other serious consequences.
Not even a policeman can dare to come forward to give information or to investigate into information about serious crimes. This is not only about allegedly security related crimes, but also regarding other matters such as drug abuse and corruption and the like. The case of S.I. Douglas Nimal and his wife who were shot dead in broad daylight as a result of his involvement in the investigation into alleged drug abuse, allegedly involving senior police officers, merely illustrates a simple reality that is known to everyone in Sri Lanka. The killing of Gerard Perera who was merely pursuing a complaint of torture is yet another illustration of what awaits those who dare to complain about human rights abuses.
The prevention of effective witness protection is a core element of the security strategy in Sri Lanka. If this strategy is abandoned it is simply not possible for Sri Lankan security agencies and law enforcement agencies to function in the manner in which they are doing now and have been accustomed to doing. An effective witness protection programme will restore the rule of law system in the country in no time at all. It is a primary objective of the type of political system now existing in the country to prevent any possibility of a return to the rule of law. That is a simple reason why despite of draft legislation on witness protection and even the Scheme for Providing Assistance and Protection to Victims and Witnesses of the Presidential Commission, nothing of real importance regarding witness protection will take place so long as the state adheres to the policy of the encouragement of illegal acts by the police, military and others.
This conflict in policies, that one of seemingly advocating a witness protection law and programme and the other of guaranteeing impunity to police, military and others who engage in criminal acts on behalf of the state, puts the AG in a conflicting situation as, under the present circumstances he has to play the role of the political spokesman for the regime, while at the same time remaining as the chief legal advisor to the government. His role as the chief legal advisor would require him to advise against abductions, forced disappearances, torture, forcible removal of persons or groups from one place to another and other acts which under the normal law, constitute crimes. In representing the prosecutors office he is bound to prosecute anyone who is alleged to have engaged in such acts. As a political spokesman for the government he has to deny that such crimes take place or justify such acts.
In these conflicting roles of the AG it is the political role that is predominant. He cannot compel the government to respect the rule of law. He cannot prosecute persons who the government is protecting from such prosecution. Also he cannot ensure that the government will adopt an effective witness protection law or programme. The talk about a witness protection law and programme that has been going on ad infinitum is for the consumption of international audiences. The local people have no reason to trust such promises and to dare to come forward to give evidence in crimes, whether these are security related or otherwise. The successful prosecution rate, even regarding the usual crimes in Sri Lanka is four percent. That is the success rate of the AGs department. This is mostly due to witnesses not coming forward to testify, or having done so, going back on their evidence. The absence of witness protection has resulted in creating a situation of the inability to prosecute in Sri Lanka.
If the AG denies that prevention of witness protection is a core element of the security strategy in the country, he can make his point very clearly in the shortest possible time. If within the coming one or two weeks the draft of the witness protection law is adopted by parliament, then there is a good reason to respect what the AG is talking about regarding witness protection.
For further information please see the following documents and links:
Draft Bill for the Protection of Victims of Crime and Witnesses: http://www.alrc.net/doc/mainfile.php/documents/435/
Scheme For the Providing Of Assistance and Protection to Victims and Witnesses: http://www.alrc.net/doc/mainfile.php/documents/434/
