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Need for a Substantial Revision of the Victim and Witness Protection Bill
(LeN -2007 Sep 28, 1.00pm) The need for an adequate victim and witness protection in Sri Lanka is a critical problem that has been repeatedly highlighted. In July 2007, the Law Commission of Sri Lanka forwarded their Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses (the "Draft Bill") to the Ministry of Justice and Law Reform for consideration. While the initiative to develop legislation on the issues of victim rights and victim and witness protection is welcome and is a critical step in strengthening the justice system, as the Draft Bill currently reads, the Centre for Policy Alternatives has 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.

The Centre for Policy Alternatives proposes that the draft Bill be substantially revised. Some of the key issues are highlighted below and a longer briefing paper is available online from http://cpalanka.org/research_papers/Victim_and_Witness_Protection_Bill.pdf

An effective victim and witness protection system is essential to the proper functioning of any justice system, as it protects victims and witnesses from threats and attacks thereby encourages the reporting of crimes and witnesses to come forward, allows witnesses to present their evidence in a full and impartial manner, and prevents the re-victimisation of victims and the victimisation of witnesses. In the Sri Lankan context, the need for victim and witness protection is most prominently visible not only in the very low four percent conviction rate but also in the high incidence of intimidation in cases involving the police, and also with regard to organised crime, sexual assault cases and quasi-judicial settings such as commissions of inquiry.

Having a piece of legislation that puts in place a weak, ineffective protection programme may in fact be worse than having no protection programme at all as witnesses may falsely place their trust in a system that cannot protect them while at the same time allowing politicians to trumpet their promotion of human rights when they have in fact fallen short of the mark. The actors involved in taking the Draft Bill forward towards enactment must address the weaknesses in the current version of the Draft Bill if it going to play a part in combating the culture of impunity in Sri Lanka. The Bill can only be effective if an enabling environment of respect for constitutionalism, the rule of law and the non-politicisation of key institutions is in place. The Bill will be ineffective unless the 17th Amendment is fully implemented. As such, the Centre for Policy Alternatives, calls for the 17th Amendment to the Constitution be fully implemented and an independent National Police Commission re-established.

Some important aspects in this regard are:

Make a distinction between Victim and Witness Protection: The Draft Bill deals comprehensively with victim rights and assistance but only cursorily with witness protection issues. Like in some other countries, Sri Lanka should deal with these issues in separate pieces of legislation because although they are inter-related issues, they have different purposes and focuses. The Bill should be divided into two parts - one dealing with compensation for victims of crime, while the other deals with the protection of witnesses. In addition separate institutions for the two parts should be established with differing composition.

Less executive control and more involvement of independent persons: The Draft Bill creates a number of key institutions including the National Authority for the Protection of Victims of Crime and Witnesses (the "Authority"), the Advisory Commission on Victims of Crime and Witnesses, the Victim and Witness Assistance and the Protection Division of the Sri Lanka Police Department (the "Protection Division") which are all critical mechanisms for the effective functioning of the bill. As per the bill the composition of both the Authority and the Advisory Committee is flawed as these two institutions are excessively dominated by the executive. There should be greater involvement of independent persons and civil society groups.

Clearer division of responsibility for protection: A major problem with the legislation is that the division of responsibilities is not clearly set out. Both the Authority and the Protection Division are given the responsibility of developing the protection programme and implementing it. Furthermore, it is unclear who will grant protection to victims and witnesses as there is reference to courts and commissions, the Authority and the Protection Division granting protection with no clear delineations. Given the politicisation of the police, it is almost farcical to leave the granting of protection to the very body from whose members protection may be sought. Like In many other countries, Sri Lanka should grant by application to the court or commission in a closed hearing. It is fundamentally important to establish who will grant protection not only to build confidence in the system but also to prevent corruption of it.

An Independent and Impartial Protection Division: There is no provision for the independence and impartiality of the Protection Division. First, there is no specification as to who will be members of the Protection Division and what qualifications they must possess, such as expertise in the area witness protection. Second, there is no provision regarding who will appoint the members of the Protection Division. This raises again the issue of the non-implementation of the 17th amendment to the Constitution and the unilateral appointment of members of the National Police Commission by the President with the result that there can be no certainty that appointments will not be politicised. If the Protection Division does not enjoy autonomy in the exercise of its functions, it cannot pretend to offer protection to witnesses who need protection from members of the police. This raises the more fundamental question of whether the protection programme should even fall within the purview of the police department which is politicised and is also accused of intimidating witnesses in particular cases. Short of having an international body that is able to provide impartial protection, cooperation with the police may be inevitable. Given this, strong provisions for its independence must be incorporated into the Draft Bill.

Be more comprehensive: The Draft Bill does not comprehensively set out the factors that will be considered in the decision to grant protection, nor does it set out comprehensively what protection measures will be available. Similarly, it does not provide for the variation, removal or appeal of protection decisions. The definition of a witness does not include the family of witnesses despite the fact that family members are often targets of intimidation. Additionally, it only includes those who have already provided information and no prospective inclusion of those who might reasonably be expected to provide information. While the Draft Bill does create offences for threatening and attacking victims and witnesses and for divulging that someone is a protected person, it does not create an offence for disclosing other information about a protected person which might compromise the security of the protected person or their family. The bill also needs to adopt a more holistic response in addressing the needs of victims and witnesses including addressing their psycho-social needs.

The Centre for Policy Alternatives (CPA) is an independent, non-partisan organization that focuses primarily on issues of governance and conflict resolution. Formed in 1996 in the firm belief that the vital contribution of civil society to the public policy debate is in need of strengthening, CPA is committed to programmes of research and advocacy through which public policy is critiqued, alternatives identified and disseminated.

For further information, please contact Rohan Edrisinha, Head, Legal Unit - [email protected] or Bhavani Fonseka, Senior Researcher, Legal Unit - [email protected]

For more reports and briefing notes on human rights, governance and democracy in Sri Lanka, please visit our website - http://www.cpalanka.org
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