Civil Action

July 5, 2009, South China Morning Post, Hong Kong
Reprinted in human rights periodical Article 2, Hong Kong

In Sri Lanka, victims of police torture are harassed, intimidated and even killed for speaking out against their tormentors. But a new witness protection bill may make walking the legal path a little safer.

Caught on a rare tea break, Father Nandana Manatunga bats at the ‘tsunami’ flies that whirl around his head and ponders a Sri Lankan newpaper headline: “Witness protection bill boost to human rights”. You get the feeling he’d like to be batting at something – or someone – else.

Manatunga and his small team at the  Kandy Human Rights Office are preparing for a  biannual “victims’ get-together”, a mix of Buddhists and Christians, ethnic Sinhalese and Tamil, refugees from sexual abuse and police brutality – far from the conflict-ridden north of the country. Because many of the party-goers are youngsters, presents are being wrapped in brown envelopes: Mickey Mouse mugs, bright pink photo frames swaddled in hearts, small plastic flashlights. Tomorrow, the gifts’ new owners will be distracted from the fact that they are in hiding, many taking a range of powerful people to court.

The violent three-decade conflict waged between the Tamil separatists and the government probably claimed the lives of nearly 100,000 people but, as Manatunga will tell you, it has also wrought damage in less direct ways. Decades of emergency rule have allowed the military and the police force to run rampant, corruption and intimidation becoming the order of the day for Tamils and Sinhalese alike. With the war declared over, rebuilding Sri Lankan society is going to be as much about fixing a broken rule of law as reconstructing schools and hospitals.

The witness-protection bill proposed in parliament for the first time last June is a start, suggesting the country will take seriously the protection and care of people who are waging human rights cases, such as those against overzealous police interrogators. Until now, such victims have been largely on their own, on the fringes of Sri Lankan life, scuttling to and from court appearances like frightened birds and assisted only by small NGOs. With corruption rife in the police force and the courts, they know that filing a suit against the wrong person guarantees years of intimidation and harassment and, now more frequently, death.

Anjana Fernando, a small, sad-eyed boy of 12, is one of those taking part in the centre’s festivities. Five years ago, his Sinhalese family decided to follow through with a list of complaints against their local police station, despite constant harassment. One evening,  more than 30 police officers descended on the Fernando home and Anjana was punched in the head and stomach. His father, Sugath, was knocked unconscious and his mother, Sandamali, had her nose and jaw fractured, before they were both thrown in jail. They had repeatedly asked for protection. Months later, last September, Anjana’s father was shot through the head by masked gunmen as the two sat together in the cab of the parked family lorry.

The boy doesn’t speak much anymore but his mother and older sister are full of fight, investing their anger in a legal case, while the family is being supported and hidden by a network of small NGOs.  Both children are finding life in hiding tough and they have been out of school for months. “My husband fought for justice and he was killed by cowards,” says Sandamali grimly, at a safe house.  “On behalf of him I will fight and if I die, my daughter will take it up.” Kalpani, 17, nods her assent. Then Anjana pipes up: “Then me,” he says.

But the damage is not only being seen on a personal level: the court system itself seems to be grinding to a halt. Crime levels in Sri Lanka aren’t lowering but the rate of complaints being filed with the authorities is and only about 4 per cent of those are successfully prosecuted. Sri Lankan human rights lawyer Basil Fernando (no relation), director of the Asian Human Rights Commission, links this directly to the lack of protection. “No justice system can function when complainants and witnesses don’t want to pursue their complaints,” he  says.  “Victims [of police torture] and their supporters are constantly told by police, ‘Don’t strike your head against a stone – no one can do us any harm’. It’s a catch-me-if-you-can mentality.”

“In Sri Lanka, if you see a person get run over in the street and the culprit gets away, you don’t get involved,” says Father Terence Fernando (also no relation), a dapper, tenacious Sinhalese priest from the south. “If the person in the car was a VIP you could be harassed, or your life could be in danger.”

At the Kandy party, victims and their relatives talk about the mistrust in society  and of neighbourhoods turned against them by the police. It’s not that people don’t want to help,  says Mary Allen, the wife of a torture victim, but just not in cases where they have to give evidence, go to the police station !or go through the courts. “If there is a funeral or something everyone will come together,” she says.

Even the lawyers in Sri Lanka need protection: both the men representing the Fernandos have received death threats and narrowly escaped serious injury or death:   J.C. Weliamuna was saved when one of two grenades thrown into his house didn’t explode  and  Amitha  Ariyaratne and his wife had been out of their home office for just a few minutes when it was burned down, in February, reducing every one of his case files to ash.

The witness protection bill was announced with much fanfare – and much was made of it in Sri Lanka’s report for the UN’s Universal Periodic Review last summer – but it seems to have sunk without trace since.  Many local human rights  activists have pegged it as a weak attempt to ease international pressure. One journalist for a local newspaper, in hiding himself at the time, was convinced that it wouldn’t be passed while the civil war lasted: “In the name of war the government can take anyone into custody right now and do anything to them; torture them, detain them, and this kind !of bill would just get in their way.”
With war apparently over, it will be interesting to see whether the bill is resurrected.

Basil Fernando has his doubts. “I think there’s even less likelihood of it passing now because people are demanding enquiries into the actions of the military over the past few months,” he says.  “Its professionalism is at stake and the government’s survival depends on it. It won’t want to make enquiries easier.” Whatever the bill’s fate, human rights groups have welcomed the debate that it has fostered.

Lalith Rajapakse and his grandfather were given a form of police protection after the teenager was tortured into a coma in a jailhouse in 2002 and chose to press charges. The policemen assigned to look after them just ate, slept and drank, remembers Rajapakse, now a gangly, intrepid 24-year-old. The memory, unbelievably, makes him laugh. “They would follow me to the toilet … but when I went out of the house, they would stay behind. In the end, we couldn’t afford to feed them, so we asked them to leave.”

Rajapakse has spent the  seven years of his trial !in hiding with  Manatunga’s programme but while visiting his home last year, towards the end of the case, he saw men with guns creeping around his house at night.
“I hid, jumped over a wall and ran to a relative’s house,” he remembers. “I haven’t gone back since. Recently, during a court case, the police admitted it was them coming to get me.” Rajapakse and his grandfather repeatedly turned down large, out-of-court offers of compensation from those involved – a form of bribery – and his grandfather was given a human rights award a few years ago for his courage.

In Negombo, a beach town not far from Sri Lanka’s capital,  Colombo, Brito Fernando (also no relation) considers bribery his biggest  obstacle. The organisation he runs, Right to Life, was set up a !few years ago to give legal support in human rights cases and Fernando is tired of throwing his support behind a victim only to have them back down from the case part of the way through.
“Many different forces start putting up pressure to settle, offering money, even sometimes bringing in [the support of] well-respected people in the area, like the MPs,” he  says wearily. “In cases involving police, the officers start going everywhere saying, ‘Oh, I did something wrong but I’m ready to pay because I’m going to lose my pension, my job and my whole family’. Sometimes they cry too and this builds up pressure.”

Over the years, the small team at the Kandy Human Rights Office has fine-tuned a system of legal help, trauma  counselling, security and education, but just as important, say those it helps, is the atmosphere of care. “The people here are the ones I’m closest to now,” says Chamila Bandara, 22, who lost the use !of his left arm after a particularly violent session in an interrogation room when he was 16. He had been accused, falsely, of stealing a water pump and he got to take his case before a  UN human rights committee in Geneva in 2003. “My sisters have been placed in a convent, where I can’t see them, and my mother’s in another province for safety. You can’t really make friends in hiding because you’re always frightened but here they know me well.” But being a small operation, there is a limit to how many people it can help.

Few victims of abuse in Sri Lanka recognise trauma, or know how to handle it.  Sister Mabel Rodrigo is a counsellor who works with minors such as  Rajapakse and  Bandara and has seen the damage first-hand. “Torture victims have a lot of anger towards the perpetrators. This anger is energy and that has to be  channelled in a very positive way,” she says. “If it isn’t, then the person will become bitter and want to take revenge and may even sink to killing people. They will become sociopathic.”

Sr Mabel Rodrigo

She says in the Kandy Hospital’s  psychiatric ward there exists a good system which combines  science with vocational training. If this kind of programme could be expanded and combined with protection, she says, things would start to improve. The law can help, she adds; actually winning a court case does untold good to any victim of crime. There is, though, a long hard road to travel to get that far. After a six-year battle,  Rajapakse lost his case last October and has had to appeal.  Rodrigo says she finds it frustrating to have made progress with a patient only to have them return from court every eight months with their wounds reopened. “Even after six years they are expected to remember every detail: who hit them where, what they were wearing,” Rodrigo says. “It makes my job very difficult.”

For other witnesses, the idea of being tied to a court case for half a decade is enough to make them look the other way; and so silence prevails.

The debate has been a significant turning point in this small island society but even if the bill is reborn, there are many issues that need addressing before victims will trust a state-run system with their safety and before the rebuilding can start !in earnest.
Still, as more Sri Lankans begin to understand their rights, more are choosing to speak out and brave the legal path. Thanks to those supporting them from the wings, they stand a chance of holding out until the verdict is given.

Brito Fernando and his colleagues talk powerfully of their dreams for a stronger civil movement at home; Manatunga believes  only a strong, legitimate rule of law will bring change;  Kalpani Fernando  wants to become a human rights lawyer and has clear ideas on the society she wants to help build. “First, I want to find out who did this to my father, then I want to show them that I can live in front of them,” she declares, her chin held high. “Only civil society can change the system.”