No hope for restoration of justice in Sri Lanka

by Rebecca Buckwalter-Poza

(January 21, Hong Kong, Sri Lanka Guardian) In November 2010, in Hatton, Sri Lanka, Devarathnam Yogendra cooperated with the Bribery Commission to catch police officer IP Wijesuriya accepting bribes. A representative from the Bribery Commission watched as Wijesuriya accepted a bribe, then arrested him on charges of bribery (Case No.: 50600/01 in the Chief Magistrate's Court of Colombo). Now Yogendra is being harassed, accused of fabricated offenses, assaulted, and threatened with death as a result of his involvement—by members of Sri Lanka’s police force.

In many developing Asian countries, including Sri Lanka, the failure to pass and enforce victim and witness protection laws remains one of the major obstacles to the rule of law. Law enforcement does not protect victims or witnesses much less investigate threats against them as a matter of law. Neither the judicial system nor Executive agencies are responsive to requests for protection, leaving individuals denied protection without means of redress. Moreover, police themselves routinely engage in victim and witness intimidation to ensure their own impunity or in return for bribes.

In recent months, policemen have attempted to intimidate Yogendra with threats and violence. These officers have repeatedly abused the judicial system, filing false charges against Yogendra. On January 15, days after the first of these charges was dismissed, five policemen escalated their harassment, surprising Yogendra at his home in the middle of the night and abducting him in an unmarked van. They blindfolded and handcuffed him before forcing him out of the van in a nearby cemetery, where they forced him to kneel as they beat and threatened him for more than an hour. When an officer brandished a gun and shot it into the air, Yogendra was told that if he acted against the police he would “soon be there” in the cemetery. On March 1, he must face a second spurious charge in court. Until then, Yogendra will attempt to remain in hiding despite not receiving assistance or support from the state.

Although it is a single policy, victim and witness protection is an essential element of democracy because it affects the ability of citizens to exercise basic rights of citizenship. Without a credible guarantee of protection, Sri Lankans will not report crimes to the police, assist investigators, or testify for prosecutors. The public cannot participate in this aspect of governance. Further, the failure of the policing system to protect victims and witnesses—and its tendency to undermine rather than reinforce their rights—precludes the development of public trust in law enforcement, the judicial system, and the state.

Sri Lanka must make it possible for citizens to trust and rely on law enforcement and the judicial system. The Sri Lankan Parliament first considered legislation to protect victims and witnesses, the aptly titled Draft Bill for the Protection of Victims of Crime and Witnesses, in 2007, and reintroduced the legislation in June 2008. Yet over the past three years, little has been done to promote its passage.

Further, the proposed victim and witness protection legislation would be inadequate to the task it nominally addresses. The Sri Lanka Centre for Policy Alternatives wrote that it had “serious concerns that a victim and witness protection programme established under this bill would not in fact provide victims and witnesses with the required protection or help reverse the culture of impunity in Sri Lanka.”

Unlike the 2007 draft bill, effective legislation to protect victims and witnesses will distinguish between the rights of each category of persons. As is the case in the United States, victims’ rights legislation must mandate that victims be notified of public hearings, allow for them to appear at legal proceedings, and require that after a conviction prosecutors continue to apprise victims of developments that may lead to an offender’s release. In addition to protection, these victims should be entitled to restitution.

Legislation to protect both victims and witnesses should restructure and reduce the roles of the Executive branch and policing system in favour of an impartial and independent institution dedicated to protection. Executive branch appointees and the police are consistently complicit in violating the rights of victims and witnesses—or even immediately responsible.

The new institution must be independent, its interactions with police and other government agencies delimited to allow for impartial implementation and oversight of victim and witness protection—as well as to facilitate the formation of a separate, positive reputation to encourage public trust. To ensure impartiality, the officials and officers of an independent commission for victim and witness protection must also be selected through some process other than Executive appointment to prevent politicization. Provisions allowing the involvement of international and civil society organizations would strengthen a new agency for victim and witness protection.

Sri Lanka must define eligibility and processes for obtaining and providing protection clearly. The grounds for granting protection should be comprehensive. Individuals who may be able to provide testimony as well as those who have already committed to assist should qualify for protection. Further, both those who have been threatened or harmed and those for whom there is a reasonable suspicion of threat should be eligible to receive protection. Family members should be pre-emptively considered in protection proceedings, as relatives are often targeted in efforts to influence victims and witnesses.

As in other countries, protection should be granted through closed court sessions. Determinations should be subject to review and appeal through formal judicial processes as other legal rulings are, to ensure the integrity of decisions and ward against the potential for judicial corruption. Information about applications for protection—and other details that could compromise individuals’ security or that of their family—should also be protected to preclude interference, harassment, and violence.

Legislation must require timely and adequate periods of protection, explicitly outline the obligations of protection, and criminalize victim and witness intimidation. It is necessary to stipulate the responsibilities of those granting and providing protection to establish an understanding and standards for protection. Such statutes would also create a means of holding those who do not provide adequate protection accountable for inaction. Victim and witness protection legislation should encompass provisions for psychological as well as physical wellbeing. In addition to criminalizing victim and witness intimidation and introducing a separate category of offense for related acts, this legislation should make illegal acts that contribute to these offenses, such as disclosing protected information.

In conjunction with passing victim and witness protection legislation to be executed by a new, independent institution, Sri Lanka must rehabilitate its law enforcement agencies. Officers must have both the will and the ability to perform their duties. Reform requires that the state publicly investigate and prosecute offenses committed by officers and government officials. Governments at all levels must also provide training, legal education, and greater resources to stations and officers. When officers do not receive a liveable salary, and stations have few officers and few resources, law enforcement cannot maintain order and rule of law. Lack of internal accountability and oversight contributes to the erosion of the state’s capacity to enforce law.

Unless Sri Lanka makes significant progress toward designing and implementing victim and witness protection legislation, Yogendra may, as his attackers promised, be buried in the cemetery. Yogendra’s case echoes that of Mr. S.K.A.S. Nishanta Fernando, who was shot and killed on September 20, 2008, to prevent him from pursuing a complaint against police officers in a bribery and torture case. The Ministry of Disaster Management and Human Rights had ignored attempts by Fernando, his family, and organizations advocating on his behalf to secure protection for two months.

About the Author: Rebecca Buckwalter-Poza is an American writer and political consultant presently engaged with the AHRC as a Luce Scholar. Email: rebecca.buckwalter-poza@ahrc.asia