by Dulani Kulasinghe
Sri Lanka’s criminal justice system suffers from a dearth of successful prosecutions. One reason often cited for this is the failure of witnesses to come forward to give evidence, in particular when the State has been implicated in the crime. Also cited is witnesses’ withdrawal from the legal process after commencement of trial due to threats and intimidation coupled with interminably delayed trial processes.
Failure to testify and withdrawal from trial processes are motivated specifically by well documented harassment and killings of victims and witnesses who have been brave enough to risk their lives to seek justice. Gerard Perera is only the best known of a long tragic list of such witnesses who have paid severe penalties for taking such risks, which in this particular instance, involved the loss of the very life of the witness. An effective and strong witness protection scheme has thus been a long standing need in Sri Lanka.
The need for such a scheme has been acknowledged by a former Attorney General himself, namely Mr KC Kamalasabayson who made the following observation in an address of 2 December 2003:
Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimidated 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?
The imperative need for a good witness protection mechanism has been repeatedly made by international human rights monitors, as in 2003 when the United Nations Human Rights Committee, examining Sri Lanka’s combined fourth and fifth periodic report, stated:
The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases.
Though the need for a witness protection scheme has been evident for many decades, no concrete steps had been taken to fill this lacuna in our law. The draft Bill affording Assistance and Protection to Victims of Crime and Witnesses manifest an attempt to fill the gap. Though the Trust welcomes the Bill in principle, it expresses serious concerns regarding some of its provisions, which appear to fatally undermine its stated purpose of protecting victims of crime and witnesses, especially in regard to crimes implicating State actors.
Key concerns:
1. “Good faith” and “following orders” get-out clauses (sections 7(5), 7(8), 10(1))
Sections 7(5) and 7(8) sanction the leaking of information regarding a protected person, with the exception of someone who was acting in “good faith” or “in accordance with or in compliance with” orders.
Thus, in the event of a violation by a person with direct responsibility for protecting a witness or victim, such a person may plead that he was only “following orders” and therefore be excused for his crime. In the absence of legislation enabling command responsibility, the twice-over victim is robbed of recourse, though his life is endangered by this act of “good faith”. It is also not clear how this “good faith” is to be proved, or to what standard.
Of further concern is the fact that even where an alleged perpetrator may be prosecuted, the Attorney General is given discretion as to suspending the institution of criminal proceedings (section 10(1)), having regarding to both the interests of the person who has suffered injury and the interests of the State. It seems illogical that the interests of the State should weigh at all in this equation, particularly where a State actor may be implicated. If such interests must be taken into account, counterweight must be provided by someone other than the State’s own counsel.
2. Control of Board of newly created National Authority for Protection of Victims of Crime and Witnesses by Government, judiciary and police (section 12(1))
The nine-person Board created by the Bill does include four persons who are not explicitly members of any branch of government, however they are outnumbered by ex officio members – either the Secretary or Additional Secretary – from the Ministries of Justice and Human Rights, as well as the Ministry in charge of the Police Department (currently the Ministry of Defence), and nominees of the AG and IGP. The Board will set policy and provide guidelines for the actions of the Authority, as well as appoint a Director General.
Given the provisions already outlined and the established history of problems in cases where the State is implicated in a crime, the composition of the Board is of concern.
3. Location of Protection Division within Police Department (section 18(1))
There is no explicit provision that police officers assigned to the Protection Division of the Authority will have no other duties, nor be involved in inquiry / investigation or other police activities, and have no communication with other police officers acting in those capacities. The risks of lack of clear separation of duties and the absence of a dedicated and non-transferable category of police officers in this regard are self evident.
This is also a matter of concern under the Emergency Regulations now in force, as the Police Department is currently under the authority of the Ministry of Defence.
4. Requirement that the Authority and Commission may not accept foreign governments’ assistance appears to attempt to make illegal past actions of the current Presidential Commission of Inquiry to investigate and inquire into serious violations of human rights (section 22(3)
It appears that this provision was drafted with specific reference to the current Commission of Inquiry in an attempt to render its ground-breaking use of video conferencing in April 2008 illegal in retrospect and prevent further such use of video. The second round of video-conferencing which, like the first round, was funded and facilitated by foreign governments with the full knowledge and therefore presumed consent of the AG and Foreign Ministry, was to have begun on 2 June 2008 and continued for two weeks. However this second round was stopped due to the refusal of the Presidential Secretariat to release funds for the use of video facilities at SLIDA. The reason given for the refusal of funds was reportedly the dubious status of the law relating to evidence received via video. The letter is then said to state that the Commission should await passage of the Bill and act in accordance with it thereafter, to ensure the legality of its proceedings.
However, under current relevant law – the 1948 Commission of Inquiry Act, the Evidence Ordinance and the internal Rules of Procedure of the Commission itself – there is no bar to obtaining evidence via video conferencing. The timing of this letter, read together with the provision in question, provides a valid basis for suspicion that the provision was drafted with the primary intention of preventing further video conferencing by this Commission.
5. Requirement that a public officer be present in location where witness is testifying whether in Sri Lanka or outside undermines the fundamental need to protect whereabouts of threatened and vulnerable persons, especially in crimes implicating State actors (sections 29(a) and (b)) While it is accepted that it must be possible to safeguard and ensure the credibility of witnesses who are not giving evidence in Court, the presence of a public officer where a witness within Sri Lanka (s29(a)) seeks to give evidence gravely undermines the safety of that witness where a State actor may have been involved in the offence in question.
Section 29(b), relating to witnesses who have been forced to give evidence from outside Sri Lanka, is even more problematic, as it requires the presence of a “competent person” recommended by both the AG and the Foreign Ministry in the location where a witness is testifying. However, consider the case of the families of the students killed in Trincomalee:
where the witness has fled Sri Lanka due to a well founded fear of persecution by State actors and there is no sufficiency of protection in-country for that person due to the inability or unwillingness of the Government to ensure it – as in the case of these families who sought and were granted refugee status in the respective countries where they now live – there can be no argument made in favour of the presence of an official of that very Government from which they have fled.
6. Process by which the Bill has been rushed through Parliament with no opportunity for public consultation It might be easier to believe in the good faith of the Government in drafting this Bill if the process by which it had been tabled was more transparent. The declaration of this Bill as an urgent Bill eliminated any possibility of a fundamental rights challenge once it was tabled on 6 June – which it most definitely would have attracted. The wall of silence around the Committee stage of the Bill has also prevented any input from the public, or more importantly, affected persons, into this landmark legislation. Finally, the fact that it has been brought for second reading today, with no announcement and therefore no final opportunity for public consideration, suggests that any suspicions one may have had about the drafting of the Bill – in particular that it was drafted with an eye to ensuring that State actors are protected, even at the expense of victims of crime and witnesses – are not merely justified, but correct.
The Trust emphasizes, as it has done on past occasions, the need for thorough public consultations in advance of draft legislation of this nature that have a direct bearing on the rights of Sri Lankan citizens.
Dulani Kulasinghe is a Researcher, Human Rights in Conflict Programme, at Law & Society Trust, Colombo, Sri Lanka
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