AHRC-OL-021-2006
July 03, 2006

An open letter to the Attorney General in Sri Lanka by the Asian Human Rights Commission (AHRC)

The Hon. Mr. K. C. Kamalasabesan
Attorney General
Attorney General's Department
Colombo 12
Sri Lanka

Fax: +94 11 2 436 421

Dear Mr. Kamalasabesan,

Re: Close collaboration between the accused and the three police witnesses

Gerald Perera was fatally shot on November 21 2004 while waiting to give evidence before the Negombo High Court against several police officers who had been accused of causing serious injuries to him after he was arrested on mistaken identity.  A few days after the shooting he died of his injuries and was thus prevented from giving evidence in the torture case.

Due to heavy local and international pressure an investigation was conducted which revealed that several police officers had plotted the murder to avoid being faced with a possible prison sentence for torturing him.  After the second accused in the case that carried out the shooting confessed his crime, several police officers made voluntary confessions to the Magistrate who was doing the initial inquiries into the case of murder.  The government of Sri Lanka reported to the UN Rapporteur against Torture, the UN Committee against Torture (CAT) and several international agencies that the police officers had confessed to the murder due to the fear of being sentenced in the torture case.

When the indictments were to be filed by the Attorney General three of the officers who had confessed to their involvement in the murder were given conditional pardons on the agreement that they would become state witnesses.  In the indictment against two persons who were accused of the murder these three police officers are important witnesses.  However, the Asian Human Rights Commission has learned through numerous reliable sources that very close friendships have developed and been maintained between these three prosecution witnesses and the accused and also that these state witnesses are being legally advised by the same source as that of the accused.  In fact, the accused and these three witnesses make no attempt to hide their familiarity even when they visit court as evidenced on previous occasions.  It is also well known that the first accused who was a former Sub Inspector has been claiming that he has spent enough money to be able to get away with this case.

The AHRC has also learned that the legal advice received by the three state witnesses is that no consequences will follow if they go back on their previous statements made to the Magistrate.  They have been told that while it is possible for the Attorney General to indict the witnesses on the same charges if they do go back on their evidence, this is in fact a futile exercise and that there has been no example of such action being taken in the past.  The further advice is that while the state witnesses can be accused of perjury if they go back on their agreement the possibility of this happening is very remote and that sufficient political pressure can be exercised to prevent it.

It should also be noted that the police officers murdered the torture victim, Gerald Perera only after they received the legal advice that they had only two ways of escaping a prison sentence for torture.  The first was to bribe or otherwise win over Gerald Perera to state that he had made a false complaint initially regarding the torture; this was attempted and Gerald Perera refused this offer.  Prior to his death Gerald told many of his friends and human rights organisations about this.  It was after this first option failed the second option was put into effect which was to eliminate him before he gave evidence in court.  The fatal shooting of Gerald Perera took place one week before he was due to give his evidence.

On the basis of these facts it is now being predicted that the three witnesses who are under conditional pardon plan to go back on their evidence and that, on that basis the accused expect that they will be acquitted.

The next date of the case is on July 21.  This drama of going back on evidence is likely to occur on that date or a subsequent date when these state witnesses will have to give evidence.

Where the accused are allowed to keep talking to and having contact with state witnesses it is not possible for fair trial to take place.  In any developed jurisdiction such contact is strictly illegal and would lead to punitive action against the accused who attempt to do so, or for witnesses who agree to such schemes.  Under these circumstances it is the duty of the prosecutor, who in this case is the Attorney General's Department, to investigate such relationships and to take appropriate action.  It has become an easy excuse in Sri Lanka to blame the failed prosecutions on the witnesses going back on their evidence.  However, it is the duty of the state to ensure that the conditions are created to prevent the accused from having access to prosecution witnesses.

It seems almost a fait accompli now that these state witnesses who are conditionally pardoned in this case will go back on their evidence and on that basis the accused may escape liability in this most heinous case of the murder of a torture victim and a witness.

Was it necessary at all to make these former police officers state witnesses?

The three state witnesses made voluntary confessions to the Magistrate inquiring into the case about their involvement in the murder.  The Magistrate took precautions to ensure that the confessions were made voluntarily by giving three of them separate dates so that each could make their statements without the influence of others.  Thus, there is no doubt whatsoever about the voluntariness of the confessions made to the Magistrate.  In Sri Lankan law voluntary confessions made to a Magistrate are admissible as evidence.  Such evidence is admissible also against the person who makes the confession himself.

If the three former police officers who made voluntary confessions were made accused their statements could have been lead during the trial through the Magistrate.  Under these circumstances if the accused were to challenge this evidence they would have themselves had to get into the witness box during which the prosecutor would have had the right of cross examination.

However, when a state witness goes back on his evidence the situation is very different.  He would have to be treated as a hostile witness and thereafter his evidence would be of no value at all.  Whatever the Attorney General might do to such a witness going back on his agreement does not in any way help the actual criminal trial itself.  The accused in the actual trial may be able to go free whatever may happen to the witnesses.  Thus, the wisdom of allowing these police officers who are all accomplices of a crime and former colleagues of the accused police officers to become state witnesses is highly questionable.  Better results could have been achieved by keeping them as accused and if necessary considering lenient sentences for making voluntary confessions.  Even at this stage this can be achieved by amending the indictment and to make these state witnesses accused.

It is also strange that in this case of a blatant murder of a witness the accused have received bail from court to allow.  This allows the accused, who have previously interfered with witnesses through brutal acts of murder, to be set free while the case is pending thus giving them the liberty to further interfere with witnesses.  We therefore urge you to take the following steps:

1. Investigate the links between the accused and the three state witnesses mentioned above.  Such investigations are not difficult if the movements of the accused and these witnesses are observed through proper means.
2. Take precautionary action to prevent such going back on statements.