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The trial into the murder of Justice Ambepitya was completed within one year, and the accused were convicted. They are now in jail pending the hearing of their appeal. The murder trial of the witness, Gerard Perera, is still dragging on even as the third anniversary of his death will be commemorated on Nov. 24.
From the day of arrest of the accused in Justice Ambepitya's case, to date, even pending appeal, the accused in the case have been imprisoned. However, the accused in Gerard Perera's case are at large, bail being allowed by the courts. All the conspirators to the murder of the judge against whom there was evidence were brought to trial. However, as for Gerard Perera's murder, even though several people made voluntary confessions of their knowledge about the murder to the magistrate who initially conducted inquiries, many of these people have not even been indicted.
The reason for Gerard's murder was a High Court case where six police officers were charged with torturing him. Several of the accused in that case made statements to the magistrate's court that inquired into the murder case through voluntary confessions to a judicial officer, giving details about the circumstances of the assassination. However, only one subinspector and a civilian were charged for the murder.
The case of Justice Ambepitya was a trial at bar consisting of three judges. Under this procedure, the case was heard every day after the trial began. However, Gerard's case is being heard in the normal course of High Court trials and consequently without any definite plan for hearing the case from beginning to end. The case has been postponed at different dates and has been laboriously continuing for three years.
In addition, at one point, without any reason, the High Court judge hearing the case was changed by order of the chief justice. Even the state counsel representing the attorney general protested this transfer. Later the same judge was again asked to hear the case. Then the High Court judge declined to continue hearing the case. Thereafter the case was sent before another High Court judge. Making use of this occasion, the lawyers for the defense requested that the witnesses who had given evidence should be recalled, and thus, the trial started all over again.
In a criminal trial, the witness is the most important element; for without witnesses, there can be no trial. If one judge cannot hear a case, another one can replace him. However, if the main complainant in a criminal case, the one who has suffered the injury, is killed, it is not possible for someone else to take his place. It is due to this reality that killing, harassment and the intimidation of witnesses are being resorted to by the alleged perpetrators of crimes. If they can keep the witnesses out of court, they can escape criminal liability.
It is the duty of the state to ensure the protection of witnesses. Toward this end, many common principles have been adopted in all credibly functioning criminal justice systems in order to provide protection for them. Some of these basic principles are as follows:
a witness should not be allowed to be subjected to harassment because he or she has become a witness;
the witness should be provided with all the security needed from the time his statement is recorded and for as long as he is exposed to any danger;
the state should bear the expenses for the protection of witnesses;
the state should, where necessary, relocate witnesses for their protection;
the state should expedite the hearing of their evidence in court; and
the state should examine the psychological and emotional consequences a witness may experience as a result of being a witness.
The courts also bear part of the responsibility of the state. It is the duty of the courts to hold the government responsible for providing for all circumstances that may arise in the course of a witness discharging his obligations and attending to the matters that were mentioned in the above paragraph.
The courts have an obligation to question the state as to whether it is discharging all the obligations that are required to protect witnesses. The question of the allocation of funds and personnel to witness protection matters should be addressed by the courts in their public deliberations and thereby set norms and standards for the performance of duties of state agencies regarding witness protection.
There are also heavy obligations on the part of the inspector general of police and the Attorney General's Department to make extensive plans for the general protection of witnesses and specific plans for witness protection in each case. The needs of each witness should be examined and special plans adopted to protect them.
Among the witnesses who need the most protection are witnesses against organized crime, in corruption cases against powerful figures and witnesses against alleged police and military abuse. Gerard Perera belonged to this latter category of people who deserved this protection from the Sri Lankan government and all its agencies, the courts, the inspector general of police and other high-ranking police officers and the attorney general, who represents the prosecutor's department in Sri Lanka.
It is sad to note that all these branches of the government failed to discharge their obligations toward this witness, and this failure was why the perpetrators were able to kill him. Now all these branches are betraying him again by their refusal to ensure a speedy trial in his murder case. If the delay results in creating circumstances that help the perpetrators to escape, this injustice will be no surprise either.
The Sri Lankan government, its consulate general in Geneva, which represents the government before U.N. agencies, and the secretary-general of the Peace Secretariat have been making high-sounding statements about Sri Lanka's adherence to its duty to provide witness protection in the country. There has been much vociferous talk about a witness protection law and program, but there has also been the acknowledgement that the main cause of the failure of prosecutions in Sri Lanka is the absence of protection to witnesses.
It must also be emphasized that the government encourages the policy of intimidating witnesses when it involves cases of corruption by powerful people and alleged crimes by the police and military. Witness intimidation has remained the actual policy of the Sri Lankan government while high-sounding statements are made to the contrary.
In two cases, the U.N. Human Rights Committee has held against the Sri Lankan government for its failure to discharge its obligations to provide an effective remedy for violations of people's rights due to delays in adjudications in Sri Lankan courts. These cases involve torture victims Lalith Rajapakse and Dingiri Banda, which were decided on Oct. 26, 2007, in Geneva.
As an act of respect for witness Gerard Perera, it would be the duty of the Sri Lankan people and the international community to decry the neglect of the Sri Lankan government and its agencies to provide witness protection and to deny speedy justice to this brave citizen who dared to pursue a complaint against police officers for torturing him and who paid the ultimate price in the pursuit of justice.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
