Columns - FOCUS On Rights

Victims and witness protection - part Two

By Kishali Pinto Jayawardena

The conversation would have been irrepressibly funny if the issue was not so deadly serious. Conferring recently with a victim of sadistically brutal torture inflicted by police officers purely as a result of the victim asking for proper identification when stopped on his way to work in Kurunegala, I casually mentioned about a forthcoming law which provides assistance for victims of this kind. His reaction was immediate; 'apita oya neethi monawatada? Ova honda aanduwata witharai ne?' (what is the point of such laws to us? They are good for the government only, no?)

Dissecting this answer which was accompanied by a droll expression of utter cynicism and an equal part of resignation, I thought as to what would have been the reaction if I had asked this question from a person of Tamil ethnicity who had suffered similar indignities? Probably, even the candid nature of such an answer would not have been forthcoming. This indeed, is the plight that many innocents are cast into in this country today.

Surfeit of laws and bodies to protect rights

There can be little legitimate quarrel with the assertion that Sri Lanka has a surfeit of laws purporting to protect rights, all of which however have had minimum impact in actual terms. Many of these laws, and indeed, in some instances, the Constitution itself, have established monitoring bodies that are themselves largely ineffective. This has been not only due to fundamental limitations in their mandates but also owing to the, (earlier insidious but now far more blatant), sapping of even the vestiges of their independence by whatever incumbent political hierarchy. Good current examples are the Human Rights Commission and the National Police Commission that have been deliberately deprived of public legitimacy by the Rajapaksa Presidency. The Bribery and Corruption Commission was, of course, shorn of much of its effectiveness from quite a while back, the responsibility relating to which needs to be borne by several governments.

Unpleasantly but relevantly, we need to question the exact purpose that these bodies serve? That is, other than to expend public funds and to serve as a convenient cover for the government to justify its argument that there is political will to address egregious human rights violations when in fact, there is demonstrably no such will at all? The latest draft law, namely the Assistance and Protection to Victims of Crime and Witnesses Bill, aims to establish more bodies of this nature, ie; a National Authority for the Protection of Victims of Crime and Witnesses, an Advisory Commission and a Protection Division. I am uncomfortably sceptical of such grandiose expectations which, (going by past experience), hold out little promise in an environment which is absent the basic political will for these bodies to function independently or for the culture of impunity to be systematically addressed.

The victims and witness protection law

Last week's column made the general point that the extraordinarily brutal context in which human rights violations take place as well as the full adversarial weight of the criminal justice system have been the primary reasons for victim and witness intimidation. Comprehensive reforms of the criminal justice system, including the laws of evidence and criminal procedure are needed to redress this balance, quite apart from a victim/witness protection law. Yet, it is pertinent to examine whether, even in a limited context, the draft law that is currently before Parliament fulfils its purpose. A meticulously detailed examination of the several clauses of the Bill is precluded by the limited space afforded by a newspaper column. I will however look at some of its more glaring discrepancies in this week's column as well as in the concluding part of this analysis that is due to be published the following week.

The main objective of such a law should be to provide workable and effective assistance and protection to victims and witnesses. However, this objective is undermined by several clauses that may not be strictly impugned on their constitutionality but nevertheless are such as to negative the proper working of the law.
Giving with one hand and taking with the other.

It appears that the rationale underlining the Bill is dangerously the same as that which pervaded many similar laws previously; namely the ensuring of protection of rights with one hand while, at the same time, taking away the efficacy of such protections with the other. For example, a key clause in the Bill, clause 7(5) relates to the prohibition against any person who, having received and/or gathered information during the commencement or the conducting of an investigation, goes on to provide, publish or disseminate inter alia, such information regarding the identity of the relevant victim of crime or a possible witness or informant.

This, as any competent investigator or criminal lawyer would agree, is pivotal to a good witness protection programme. However, this prohibition is substantially undercut by two ways in this same clause itself. Firstly, the prohibition applies only if the release or dissemination of such information 'places the life of such victim of crime, witness or informant in danger.' As is immediately apparent, this is an unnecessary restriction on the prohibition which should be couched in absolute terms rather than hedged about by a phrase such as 'places the life….in danger' which is subject to varying interpretations. What about release of information that results in harm qualitatively different to that of placing a life in danger? Would one action be sanctioned but the other exempt from the reach of the prohibition?

Secondly, such an action would, even if the life of that person is put in danger, (going by the unconscionably limited reasoning of the drafters), be excused by clause 7 (5) if the action was in 'good faith' which is demonstrably an exception that has no place here notwithstanding its possible applicability elsewhere. Then again, such action would be excused if it was 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. Thus, if the release of information indicating the identity of the so-called protected person was due to, for example, a directive issued by an 'authorised person' under any emergency regulation, the entire force and effect of the protection would be diminished.

Absurdity of the exceptions

These exceptions illustrate the absurdity of the exceptions to the protections and indicate the all too possible manner in which such protections may be of scarce value in practical terms. Next week's column will examine other equally problematic clauses of this draft Bill.

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