The Sunday Times Focus on Rights

This column warned last week that the Sri Lankan government should not be seen as indulging in a suicidal competition with the Liberation Tigers of Tamil Eelam (LTTE) Tigers as to who should be given the first prize for scorning human rights.

The LTTE's murderous campaigns of assassinations, abductions and intimidation had resulted in the gradual but merciless dwindling of whatever international support that it had painstakingly built up for itself through the past years. Assuredly, the best strategic approach for the government was not to put itself in the same hard place as the LTTE but rather, to demonstrate its commitment to safeguarding basic rights of its citizens despite, (or indeed, because of), conditions of war.

Yet, many factors impede the realisation of this commitment. Throughout Sri Lanka's long decades of conflict, the impunity of human rights abusers has been a serious problem. Even during the time when there was no open conflict, these patterns of impunity continued, spilling over to protect abusive police officers who besmirched the name of the police force by indulging in brutalities against petty criminals (whilst letting the underworld mafia operate unscathed) or against wholly innocent individuals.
During all these years, activists have been constantly calling upon this country's successive governments to put into place, an effective witness protection scheme so that prosecutions would not fall through due to the intimidation and killing of witnesses as well as the victims themselves. Similar observations have been made in numerous judgements of the Supreme Court by judges impelled by a sense of their constitutional duty to protect rights.
Then again, Attorney General of Sri Lanka, Mr. K.C. Kamlasabayson PC, made the following observation in an address of December 2, 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 civilised 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?" (Remarks made during the 13th Kanchana Abhayapala Memorial Lecture).
Monitoring Committees of the United Nations have also acknowledged this problem. Examining Sri Lanka's fourth and fifth periodic reports submitted in terms of the International Covenant on Civil and Political Rights (ICCPR) in November 2003, the United Nations Human Rights Committee stated in its concluding observations that, "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". Similarly, the Committee Against Torture made similar observations in examining Sri Lanka's 2nd Periodic Report under the Convention Against Torture in November 2005.
The intimidation of witnesses has been a good if not convenient reason put forward as to why investigations and prosecutions into extra judicial killings are often unsuccessful. One notable exception to this general pattern was the Krishanthi Kumarasamy case, where a fifteen-year old school girl was raped and killed on her way to school and her mother, brother and neighbour who had come to look for her were also killed. Interestingly, the most crucial evidence in this case leading to the convictions of the accused was by a Sinhalese (Samarawickreme) who had known Tamil and had been asked to translate the conversations between Krishanthi and the accused soldiers at the Chemmani checkpoint after she had been arrested. Insofar as killings in the South are concerned, the other success story is the prosecution and convictions being secured for those responsible for the disappearances of school children in Embilipitiya. But, by and large, these are very much the exceptions to the rule.
The cases of killings in the North in regard to which prosecutions have fallen by the wayside due to intimidation of witnesses are legion. The investigation into the murder and alleged rape of Koneswary in Ampara in 1999 is one example. The absence of an effective witness protection system seriously affects the possible success of investigations and prosecutions into current cases where the responsibility of government forces have been alleged, such as the execution of the fifteen aid workers in Mutur.
Equally, in the South, the absence of a witness protection scheme has seriously affected criminal justice. Ironically, many complainants as well as victims, have been murdered on their way to court. In one particularly poignant case, several policemen who had been found responsible by the Supreme Court for the torture inflicted on Gerald Perera an employee of the Colombo dockyard, (arrested on mistaken identity), continued to serve in office and were thereafter implicated in his murder, days before he was due to give evidence at a High Court trial instituted in terms of the Torture Act, No 22 of 1994.
We had been told some time back that the Law Commission of Sri Lanka had been considering the formulation of a witness protection scheme but this draft has not been put into the public arena. The delay in the time period within which indictments are served and the cases are taken up also affords good time for the accused to intimidate witnesses and victims which was, in fact, seen very well in the Gerald Perera case.
Cumulatively, these are all factors that detract from the assumption that the Sri Lankan State is serious when it claims to protect the rights of persons within its jurisdiction. Longstanding as these concerns are, there is no doubt that they should be addressed at least now.