A failure to protect? | Sunday Observer

A failure to protect?

27 May, 2018

In 2016, Sri Lanka established the National Authority for the Protection of Victims of Crimes and Witnesses as an initial step towards giving effect to international standards and best practices through which rights of victims of crime and witnesses will be protected. In the same year, the Sri Lanka Police also went on to set up a new division to refer witness protection cases to the new Authority. Both agencies were empowered by the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 04 of 2015.

The Act mandated the new Authority and its connected police division to provide prompt redress and necessary protection to victims and witnesses and protect their rights while treating them with equality, fairness and respect.

But according to Shamila Liyanaarachchi, wife of Senarath Bandula Liyanaarachchi, a key witness in the Welikada Prison massacre case, her experience of the country’s victim and witness protection system had fallen far short of what it set out to achieve.

Liyanaarachchi’s husband had testified before the Committee of Inquiry appointed in 2015 to look into the Welikada Prison incident. His decision to testify has made Senarath and his wife a target of intimidation and harassment – she claims by certain police officials linked with the case.

Despite being continuously harassed and receiving threats on social media it was an incident that occurred in early April this year that finally struck fear into Shamila. “I heard someone call out to me saying ‘Akka’ that evening,” she said adding that she had assumed it was someone in the neighbourhood. Peeping through the window, Shamila came face-to-face with a pistol aimed right at her head. “The man said oluwa kuduwenna thiyenawa, eka nisa parissamin jeewath wenna (we will shoot to shatter your head so be careful) before walking away,” she said.

Shaken to the core and now really fearful for her life, Shamila Liyanarachchi decided to visit the Police Division established under the Witness Protection law to assist and protect victims of crime and witnesses located at Mihindu Mawatha, Colombo 12, hoping to receive some form of protection. But Liyanarachchi says she was turned away.

“They said, since I am not a witness to the case, the law does not apply to me,” she said. The experience made her lose faith in the system, and Liyanaarchchi thought reporting the incident to the National Authority for the Protection of Victims of Crimes and Witnesses under which the Police Division was established would give her the same result.

However, legal experts point out that Section 46 of the Act sets out the definition of ‘victim of crime’ and covers Shamila Liyanaarchchi since any person considered significant to the witness is also entitled to assistance and protection under the 2016 law.

According to Attorney at Law, Senaka Perera who appears on behalf of Sudesh Nandimal, another main witness to the Welikada case, who also complained of intimidation to the witness protection police division one year ago, the witness is yet to receive redress.

“There appears to be no practical mechanism to assist those seeking help” he accused. If such delays are a norm he questions the efficiency of the authorities established to serve victims and witnesses. “By the time one receives assistance if he has already been attacked once more or worse still killed, what is the point?” said Attorney Perera, who represents several witness and victim families in the Welikada Prison massacre case.

Shamila Liyanaarachchi’s experience reveals that the two year old authority suffers from a lack of public confidence, but officials at the witness protection unit that functions under the Ministry of Justice claim that Government bureaucracy and red tape also impedes its work.

Two years on therefore, the National Authority for the Protection of Victims of Crimes and Witnesses (NAPVCW) and other connected agencies are yet to become fully functional facilitators of witness assistance and protection in SriLanka.

In the course of researching this article, the Sunday Observer found it an uphill battle to obtain information regarding the Authority, how it functions and where its offices are based. Victims and witnesses seeking redress may confront the same challenges. The Authority still has no web presence save for a single fairly useless page on the official website of the Justice Ministry.

There is no information on the page outside of an address for the Authority office, in terms of its composition, contact numbers or the complaints process.

Lawyers working with witnesses and victims may have information about the Authority that may be passed on to their clients, but for others, finding the necessary information could prove quite a voyage of discovery.

The reason for the lack of a web presence, a reliable official source points out, is the lengthy government bureaucratic process which has plagued many independent bodies in the past as well.

Almost two years down the line, it has not only prevented the Authority from hiring the technical staff required to put up a website, but it has also prevented it from hiring necessary staff to function at full capacity and finding a more suitable space to function.

“It takes time, as we must adhere to the government process,” the official said.

“If a public institution is to function effectively the government needs to give them adequate financial resources,” says a Commissioner of the Human Rights Commission (HRC), Ambika Satkunanathan.

According to Satkunanathan, even with adequate financial resources, government policies and bureaucratic red tape can cause delays in hiring the necessary staff while certain rules might not allow these agencies to hire the required expertise. “For an authority to be fully operational these must be in place,” she said.

Former Commissioner of Human Rights, Dr Prathiba Mahanamahewa says, it also still lacks a hotline, yet another vital facility needed for an institution such as the NAPVCW. “It needs to fulfil these necessary elements,” he said adding that it must become a people-friendly Authority to gain public confidence and to ensure they are aware of the existence of such an Authority.

According to Mahanamahewa, not only the people but even many lawyers are yet unaware of the NAPVCW and its functions. “It has to go to the grassroots levels to be effective,” he said, adding that regional offices should be established in the future. “People must know where to go,” he said.

However, starting with a mere 14 complaints in 2016 to 49 in the last year, the Authority says it has received 37 complaints this year so far, which officials at the Authority claim, shows that despite the lack of web presence people are now more aware of their existence. But, with almost 900,000 cases pending before the courts in Sri Lanka, the number of witnesses who have requested assistance is remarkably insignificant despite constant and widespread reports of victim and witness intimidation.

According to the Director-General of the NAPVCW, Udayakumara Amarasinghe the need for highly qualified professional staff has also posed a unique challenge to the Authority. “We have had to re-advertise several times as we were not able to find the staff with the necessary skill sets,” he said.

In fact, according to sources a large number of vacancies still exist within the Authority.

The situation at the Police division appears to be no better. According to Senaka Perera, on visiting the division to lodge complaints, Police officers there complained about the lack of facilities provided to them.

“They do not have the necessary IT facilities or staff,” he said. While the Authority may be part of the Government’s effort to meet its human rights obligations, in reality the way it functions seriously erodes the trust of the very same people it was set up to protect.

This is exactly the problem Human Rights Commissioner Sathkunanathan points out, since an independent body must ensure that it does not fail the public trust.

In fact, the independence of the Authority for witness protection is one issue that has continuously cropped up since the appointment of its Board of Management towards the end of 2016. Once appointed many activists were seen calling for the removal of several of its members due to past allegations, including those against a certain senior police official connected to the Authority who was once named in a UN Special Rapporteur on Torture.

“You should not appoint for example an ex officio member of another Authority that might cause a conflict of interest.” Satkunanathan pointed out. She says in order to boost public confidence, individuals who have gained the trust of the public as upstanding officers or great investigators could be identified and made part of the system.

Despite the various criticisms and limitations, the NAPVCW says, it has been functioning to the best of its ability. According to one official, they have been receiving public complaints and looking to their issues to provide them with assistance and protection needed. “We have been conducting extensive awareness campaigns islandwide for various government agencies, and especially, the Police, on witness protection,” the official said, adding that they have even been successful in obtaining compensation from those accused on behalf of victims of intimidation.

The Authority is also said to be in discussions with the Legal Aid Commission (LAC) and the Bar Association of Sri Lanka (BASL) to establish a legal panel to facilitate witness protection while LAC officials in regional offices are also being trained in order to help the NAPVCW in its functions on a regional level.

It also assured that those seeking protection are being provided with sufficient security through the Police division. “We do a threat assessment and give them the support they need to be safe,” the official said adding that if the Authority feels the threat is imminent they provide security immediately prior to even carrying out the threat assessment.

And as for future improvements, Satkunanathan points out that it would be ideal if a separate protection unit is established under the NACVWP which is not part of the broader law enforcement authority.

She pointed out that annually the HRC receives complaints of intimidation, threats and harassment by law enforcement officers, and said that “If the people are being intimidated by law enforcement itself they will not feel confident about complaining to a unit that is comprised of the same officers,”.

According to her therefore new staff will have to be recruited for such a unit and necessary specialist training provided to them in order to deal with the needs of victims and witnesses.

“A protocol and standard operating procedures also need to be established as the law does not set that out,” she said. According to her, this will be up to the Authority to establish. Training for officers dealing with witnesses and victims is also a must, Satkunanathan added.

With victim and witness protection important in any social context and not only in a post-conflict situation where transitional justice mechanisms are being implemented, Satkunanathan says, she understands, all that is necessary cannot be done overnight.

“But it must be done in the future to build confidence in the victims of crime and witnesses,” she said.

The HRCSL Commissioner added that greater awareness not only about the functions of the Witness Protection Authority, but about the concept of protecting and assisting witnesses to heinous crimes itself, is critically important to the country’s overall commitment to human rights.