In the concluding segment in this three part series analysing the Assistance and Protection to Victims of Crime and Witnesses Bill, some further problematic clauses in the Bill are examined.
Protecting the identity of witnesses, victims and informants
Last week, it was observed that clause 7(5) undercuts the protection that is offered to a victim of crime or a possible witness or informant in safeguarding their identity. This clause prescribes that the release of information in regard to such identity by any person obtaining that information in the course of an investigation will be an offence only if it places the 'life of such victim of crime or witness or informant in danger.'
But why is a restriction imposed in relating to 'placing the life….in danger' when the prohibition should be absolute, constituting as it does the core of any good witness protection mechanism? The release is also not an offence if the action was in 'good faith' or in accordance with or in compliance with, any provision or procedures established by law, an order made by a judicial officer or a directive issued by a person duly authorised to do so by or under any law. This whole host of exceptions effectively diminishes the protection that this clause offers.
And clause 7(5) is not the only draft provision limited in this manner. Clause 7(8) which makes the provision, issuance or the giving of information in relation to the very nature of the protection offered, has exactly the same limitations in regard to its reach. One may well question as to what is the purpose of providing relatively harsh penalties of not less than two years imprisonment and not exceeding seven years for these offences if their very application is undermined in this manner?
Negative and positive
definitions in the Bill
Let us now proceed to some other clauses. The range of entitlements of witnesses includes the entitlement that he/she 'shall…receive from investigational, quasi-judicial and judicial authorities, fair and respectful treatment, with due regard to his dignity and privacy' (clause 4(1)). Apart from the absence of gender neutral language which one should suppose that Sri Lanka's drafters of legislation should now be accustomed to in the manner of developed jurisdictions across the world (South Africa's Constitution being an excellent example), the general nature of the language used is puzzlingly ambiguous. What is "fair and respectful', after all, may differ from judicial officer to judicial officer, for example.
The later section titled 'Entitlements of victims of crime and witnesses to obtain protection" (clauses 21 to 25) also merits some specific attention. Clause 21 confers particular entitlements upon a victim of crime or a witness 'who has reasonable ground to believe that any harm may be inflicted on him due to his cooperation with or participation in any investigation or inquiry into an offence or into the infringement of a fundamental rights violation or the violation of a human right, (which is) being conducted or his intended attendance at or participation in any judicial or quasi judicial proceedings.' The entitlement extends to the right to seek protection from 'any real or possible harm' arising in this regard.
There are undoubtedly some positive features in this conceptualisation, as for example, the reach of the protection being offered to 'intended' testimony. A further positive factor in the Bill is its wide definition of a victim of crime as a person who suffers physical, mental, emotional, economic or other loss as a result of an act or omission constituting not only an offence or a fundamental rights violation but also a violation of a human right guaranteed by the International Covenant on Civil and Political Rights (ICCPR). This is reflected in clause 21 as well as recited above.
Need for independent
protection division
However, despite this laudably wide definition, workable and effective entitlements needs to be put in place as otherwise, wide definitions will be useful only in theory. Consequently, let us examine the manner in which these entitlements are to be ensured. Clause 21(2) states that a request for protection may be made not only to a court or a Commission but also to a National Authority and a Protection Division. The section then envisages a complex intertwining of approval between these two bodies re the protection of particularly vulnerable witnesses.
Yet, what undercuts this yet again is the manner of composition of the Division as a body established within the Police Department (with its head being a senior Deputy Inspector General of Police) instead of possessing the necessary attributes of independence that it so desperately requires. But if Sri Lanka has learnt one lesson during its decades of weary conflict and high levels of impunity for human rights violations, it is that having serving police officers offering assistance to victims and witnesses can only be extremely counterproductive. Exhaustively documented cases have demonstrated this lesson time and time again. So, why this reluctance to acknowledge what is a self evident truth and put into place, an independent protection mechanism? It is, in effect, a baffling problem.
The hampering of audio-visual testimony
Within the remaining limited space of this column, it would suffice to raise another issue which is equally baffling in its dextrous conferral of a right on the one hand while almost simultaneously taking it away with the other. In clause 29, it is provided that the evidence of a witness or a victim of crime may be secured without 'his' personal attendance but through an audio-visual linkage from any location either inside or outside Sri Lanka. However, the clause relating to testimony given from outside Sri Lanka is stripped of all its positive flavour by its stipulation that 'a competent person' should be present at such location. Now, there may have been less quarrel with this proposition if such competent person would have been nominated by the court or a Commission, with the substitution of a judicial officer perhaps for a patently amorphous 'competent person.'
But in this case, clause 29(b) goes even further to prescribe that such 'competent person' may be designated on the 'recommendation of the Attorney General and the Foreign Affairs Secretary. This is unforgivably clumsy drafting at the best and diabolically subversive at the worst. Why, pray, is the intervention of the state law department and even worse, a government ministry required in this exercise? At the most, the Court or the Commission should be allowed the freedom to decide the issue for itself.
No public discussion
This Bill should have been extensively discussed in the public forum prior to it being brought before Parliament. It follows the long line of draft legislation before it, which have been foisted on the people in secrecy and intrigue. None of these laws have done Sri Lanka any good. It is hard to believe that this time around, there will be any great difference. |
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