Ministry of Justice
Colombo 12, April 6, 2012
Hon. Minister of Justice Rauff Hakeem,
The International Commission of Jurists (ICJ) in collaboration with the Law & Society Trust invite your attention in regard to recent statements made by you in connection with the sittings of the 19th session of the United Nations Human Rights Council in Geneva.
We welcome the Sri Lankan Government’s commitment to pass the Bill on Assistance and Protection to Victims of Crime and Witnesses as announced by you in the above context.
There remain, however, several concerns with the content of the witness protection legislation as well as the enactment process. Drawing on a recent review of the 2008 Bill on Assistance and Protection to Victims of Crime and Witnesses published in the August and September 2011 issue of the LST Review, this open letter urges the Government of Sri Lanka to ensure that the Bill complies with international human rights standards and best practices on witness protection.
I. Release the Revised Version Publicly
The draft of the Bill on Assistance and Protection to Victims of Crime and Witnesses (APVCW) was tabled in June 2008. The Supreme Court of Sri Lanka in its Special Determination 1/2008, SCM 02.04.2008, suggested changes to the draft law of which many were incorporated by the Ministry of Justice into an “Amended Version” issued on 28 July 2009.
It is not clear whether all of thesuggested amendments were incorporated into the original 6 June 2008 version.
The Ministry of Justice has not released the latest version of the APVCW. We call on the Sri Lankan Government to publically release the final version of the Draft Bill on Assistance and Protection to Victims of Crime and Witnesses and allow for full public discussion and consultation before it is passed in Parliament. We also urge the Government to refrain from passing the Bill as an urgent Bill. Sufficient time must be allowed for pre-enactment legal review since the Bill relates to a fundamentally important aspect of Sri Lanka’s criminal justice system and indeed, in general, to the protection of the constitutional and statutory rights of an individual.
II. Definition of Witness
The current definition of “witness” at article 36 of APVCW, while comprehensive in some respects falls short of complying with international standards in others. Notable ositive aspects include: the extension of protection to witnesses testifying before quasi judicial and non-criminal proceedings, such as Commissions of Inquiry; the provision of protection before, during and after testimony is given; the wide coverage of protection afforded to family members and dependents as well as persons of significant importance in relation to the victim or primary witnesses.
Notwithstanding the foregoing, there are concerns in at least four respects. First, the APVCW draft bill does not explicitly offer protection to witnesses and victims who are charged with or convicted of crimes. Nor does it offer protection to witnesses and victims under administrative detention or in pre-trial detention. In the post-conflict context, it is paramount that protection be extended to these groups of witnesses and victims, as many offences committed during conflict are perpetrated against persons who are also alleged or convicted perpetrators in other offences or otherwise detained in connection with the armed conflict.
Second, the APVCW draft bill does not explicitly preclude the possibility of granting full immunity to potential witnesses in exchange for testimony. Under international law, there can be no immunity or impunity for gross human rights violations, including crimes under international law
(a) Include Non-Witnesses in the Witness Definition
Third, in some cases, persons beyond those who give testimony or information need witness protection. In situations where widespread or systematic human rights violations and/or serious crimes are committed against a particular ethnic group, there may be multiple victims and witnesses in the commission of an offence or series of offences. In such cases, all persons who were victim or witness to that offence – even if they do not testify – should be afforded protection as they may be at risk. Furthermore, in Sri Lanka where victims are often targeted on the basis of membership in an ethnic group, it may be necessary to offer protection to persons of the same ethnic group – irrespective of whether they give testimony. In both of the aforementioned situations, the person at-risk does not necessarily have a significant relationship with the testifying victim or witness nor does he or she constitute a victim or witness.
Fourth, officers of the Court, members of the bar and members of the judiciary are frequently targeted for their role in a case. We have seen instances where legal practitioners have been intimidated and threatened as a result of their affiliation to a given case. Members of the judiciary have also come under threat as evidenced by the assassination of a sitting High Court judge in recent times.
Unlike witnesses or victims, persons in these categories do not provide testimony or information in the case. Nor are they directly linked to the victim or witness as a family member. The APVCW must afford protection to such persons whether explicitly in the present bill or in a separate bill.
III. Institutional Structure of the Victim and Witness Protection and Assistance Programme – the need for a more independent and simple structure
In the most recent APVCW released to the public, three bodies were established to implement the victim and witness protection and assistance program:
(i) an overarching Advisory Commission responsible for policy and guidance (the Commission);
(ii) a National Authority which holds operational authority (the Authority); and
(iii) the Protection Division of the Police Department, which would implement protection measures (the Division). There are several concerns with this proposed architecture, which are discussed below.
(a) The need for better-defined institutional bodies with clearly defined roles and Responsibilities
First, it is not clear why so multiple separate bodies are needed to implement witness protection and assistance. The delineation of responsibility between the three bodies is not well defined. As noted by the Supreme89 Court of Sri Lanka,
“[a] clear division of responsibility is important…the lines of responsibility must be patently transparent and understandable to the victim and witnesses…”1 In its current form, it is possible for one body to grant protection only to have another body remove it shortly thereafter. The existence of both an Authority and Commission serves no evident practical purpose, complicating the division of responsibilities. It is paramount that the architecture be restructured and simplified to ensure that authority and responsibility do not overlap between institutional bodies. Authority to grant admission to Witness Protection should only be vested in one body.
(b) The need for institutional independence: de-Link the Witness Protection Division from the Police Department; de-link the Authority and Commission from investigatory and prosecutory bodies
Second, article 18(1) tasks the Sri Lankan Police Department with the establishment and maintenance of the Division for the Protection of Victims of Crime and Witness Assistance. The Senior Deputy Inspector is assigned to head the Protection Division. The Supreme Court of Sri Lanka, as well as numerous legal practitioners and analysts, have called for the separation of the Protection Division from the Police Department.
Basing the Witness Protection Division in the Police Department significantly compromises its independence and ability to perform its functions. The Police Department continues to be linked with the Ministry of Defence despite the Lessons Learnt and Reconciliation Commission (LLRC) calling for its delinking to better enable the independence of the police service. Many, if not most, human rights violations are committed by members of the police or security forces with police officers and army personnel implicated as the primary suspects. Witnesses complaining of intimidation, harassment and physical coercion often cite police officers and army officers as the primary perpetrators.
A separate and independent body, based outside the Police Department and Ministry of Defence, should be established in Sri Lanka. This body should be composed of a small management body supported by a secretariat.
(c) The Need to Limit the Number of Administrative Bodies Implementing and Overseeing the Witness Protection Program
Third, an excessive number of people, including high level Government officials are involved in the Commission, the Authority and the Division. Because most cases of serious human rights violations involve a State official, witnesses will invariably be further exposed to risk if details of complaints and cases are disclosed to multiple individuals in multiple branches of Government. In this sense, the creation of multiple bodies to implement witness assistance and protection actually works at cross-purposes, exacerbating the risk to the witness.
It is recommended that a small independent body be established with as few state officials as possible.
Fourth, the proposal to establish a stand-alone national authority specifically for the protection of child witnesses and victims further complicates an already complicated witness protection structure. It creates overlaps and redundancy as well as introducing more State officials into the process and thus further exposing child witnesses to risk. Of course, special child-specific procedures and measures in any event must be adopted to ensure that the best interests of the child are protected, as required under international law.
IV. Initiation and Termination of Protection and Assistance
(a) The need for criteria for admission
The current Bill does not set out any criteria for admission. The United Nations Office on Drugs and Crime,2 and the International Commission of Jurists3 each have set out a criteria which is flexible, objective and transparent. Some aspects of the criteria for admission include:
(1) level of threat
(2) certainty of the risk,
(3) forseeability of acts of reprisal or intimidation
(4) applicants’ personality
(5) value of the testimony for the prosecution; and (6) importance or degree to which the case is emblematic. The ICJ adds two additional factors in post-conflict contexts:
(1) the perpetrator’s institutional affiliations;
(2) level of impunity in the country.
The ICJ and LST recommend that criteria, similar to what is set out by the UNODC, OHCHR and ICJ be incorporated into the Witness Protection Bill.
(b) The need to define threat and evaluate risk
The Sri Lankan Bill requires a “threat assessment” to be carried out prior to the provision of protection; however, it does not provide any criteria or guidance for that assessment.
Furthermore, the involvement of Government officials in the Authority and police officers in the Division, both of whom are responsible for threat assessments, will result in an assessment that lacks independence. Also of concern, it appears that article 21(3) requires the officer-in-charge at police stations to be involved in the threat assessment.
The involvement of local police staff in a threat assessment could expose witnesses and victims to further risks, especially if the threat they face emanates from the same local police station.
(c) Informed Consent – Clear Criteria for Issuing Memoranda of Understanding
The Sri Lankan Bill states that witnesses must enter into a memorandum of understand (MoU) with the Witness Protection Division. The Bill, however, provides no details on the purpose or content of the MoU. The European Committee on Crime Problems sets out clear guidelines for the content of MoUs.
They should contain the following:
(1) Confirmation of free choice of the individual to enter the Witness
(2) The goal of the protection programme;
(3) The obligation of the protection service to take the necessary measures to protect the individual and his/her relatives;
(4) The duration of protection measures – linked to the ongoing risk;
(5) The obligation of the witness or victim to not disclose details of the protection program (i.e. former identity, role in the case, etc)
(6) The obligation on the witness or victim to mitigate his/her exposure to risk;
(7) The obligation on the witness or victim to cooperate in criminal proceedings;
(8) Financial arrangements for witness and victims (i.e. mortgages, loans,
(9) Conditions under which participation in the witness program will end or terminate (i.e. diminished threat, breach of MoU, commission of an offence, etc).
While the legal status of a MoU is not clear under Sri Lankan law, deliberate acts that expose the witness or victim to further risk should be prosecuted and punished as contempt of court or obstruction of justice offences under criminal law.
(d) Termination of Assistance – The Need for a Right of Review
The right to terminate assistance should be vested in only one body. Currently, article 20(5) confers power on the Authority, the Division as well as the Commission to terminate protection. Moreover, the current Bill does provide any mechanism to appeal or review decisions to terminate protection.
The removal of protection must be done in a manner that does not exacerbate or expose the witness or victim to further risk. Notification of termination must be given well in advance of the actual termination. Finally, victims and witnesses must be given the right to appeal a decision to terminate protection. And pending the outcome of the appeal, protection must not be terminated.
V. Witness Assistance
Witness assistance differs from protection; its primary goal is to assist the witness through the justice process by providing witnesses and victims logistical, legal, financial, medical and psycho-social services. A key objective is to limit retraumatization and re-victimization that often occurs during direct and cross examination.
The current Bill does not contain any measures for witness assistance.
While the infrastructure for a witness assistance program can be resource heavy, it is still essential to implement some elements, especially in cases involving vulnerable or child witnesses.
VI. Video Testimony
Under Part VIII, article 29, video-link testimony is allowed, however conditions are imposed which not only undermine the potential effectiveness of this tool but place the witness or victim in significant danger. Two main issues are noted.
First, Article 33 of the proposed Amendments confers significant power on the Attorney General, the Secretary to the Minister of Justice and the Secretary to the Minister of Foreign affairs (where the witness is outside of Sri Lanka) to determine whether it is “appropriate” for a witness to give video testimony. The Attorney General makes a recommendation to the Court on the basis of three sub-articles (a to c) which include such broad issues as national interest, national security, the best interest of justice, and practical feasibility. As per article 33(2), if the Attorney General expresses an opinion that adducing evidence through video is inappropriate, the Court or Commission will not allow video evidence in the matter.
Conferring significant powers on the Attorney General, the Minister of Justice and possibly the Minister of Foreign Affairs in witness protection matters invariably increases the witness’s exposure to risk. Moreover, it is antithetical to the adversarial process to allow the Attorney General (the prosecution) an opportunity to determine how evidence is adduced. The Attorney General represents the State and are counsel in the case and as such have a vested interest in the outcome of such a decision. Only an independent and impartial trier of fact, removed from the adversarial process, can make a determination of whether it is necessary for a witness to give evidence remotely.
Second, if the Attorney General decides that it is appropriate for a witness to give video testimony, then the Court or Commission on recommendation from the Attorney General must appoint a judicial officer to accompany a witness. If the witness is testifying from a location outside Sri Lanka, her or she must be accompanied by a competent person designated by the Court, Commission on recommendation from the Attorney General and Foreign Secretary. As per article 34(2) of the Amendments, the judicial officer will then issue a report to the Court or Commission detailing the location of the witness, the identity of the witness, any evidence of coercion, inducement or promise to the witness.
As per article 34(3) this report will be made available to any person against whom the testimony will be used or may be used. It goes without saying that disclosing the identity and location of a victim or witness to an alleged perpetrator significantly heightens the risk to the person testifying through video-link.
We recommendthat the amendment be removed or altered to lessen the role of the judicial officer, ensuring that only an independent and impartial trier of fact is allowed to determine the admissibility of the evidence. And information relating to the witness’s identity and location remains confidential.
We call on the Sri Lankan Government to:
(a) Disclose the revised version of the Draft Bill on Assistance and Protection to Victims of Crime and Witnesses to the public and allow for public discussion and consultation with adequate pre-enactment legal review before it is enacted in Parliament;
(b) Ensure the revised version of the Bill provides protection and assistance to witnesses and victims who are convicted offenders; held under administrative detention; or are in pre-trial custody;
(c) Ensure the revised version of the Bill explicitly precludes the possibility of granting immunity [for serious human rights violations and crimes under international law] to potential witnesses in exchange for testimony;
(d) Ensure the revised version of the Bill allows for the possibility of extending protection to vulnerable persons such as; (1) those who may have witnessed or been victim to a crime or series of crimes but are not giving evidence or information; (2) persons of an specific ethnicity that has been systematically targeted in Government policy;
(e) Ensure protection is afforded, either in the revised Bill or in a separate Bill, to officers of the Court – members of the bar, members of the judiciary;
(f) Eliminate the multiple institutional bodies – the Commission, the Authority and the Division – and establish a single witness protection and assistance agency to administrate and implement Witness and Victim Protection and Assistance;
(g) De-link the Witness Protection implementing body from the Police Department or any other Government body;
(h) Ensure the Witness Protection Implementing body is kept separate and independent of prosecutory and investigatory bodies;
(i) Ensure the body established to maintain and implement Witness and Victim Protection and Assistance is circumscribed with as few State officials as possible;
(j) Integrate the national authority for the protection of child witnesses into the Witness and Victim Protection and Assistance body, while ensuring adequate protections to meet the best interests of the child;
(k) Ensure the revised version of the Bill has clear criteria for the admission of persons into the witness and victim protection program. The criteria should be drawn from the guidelines set out by the UNODC, the OHCHR and the ICJ;
(l) Ensure the revised version of the Bill explicitly disallows Officers-in- Charge at local police stations from being actively involved in the threat assessments;
(m) Ensure the revised version of the Bill sets out criteria for the contents of Memoranda of Understanding based on the list provided by the ICJ in its Witness Protection Report;
(n) Enact sanctions for obstruction of justice and contempt of court to prosecute those persons who deliberately violate a MoU or place a victim or witness in danger;
(o) Ensure the revised version of the Bill has an appeal mechanism for witness or victims who are denied protection or whose protection has been terminated;
(p) Ensure the revised version of the Bill has some aspects of witness assistance, drawn, for instance, from the Special Court of Sierra Leone or the ICC;
(q) Ensure the revised version of the Bill explicitly removes authority from the Attorney General, Minister of Justice or Foreign Minister to determine the appropriateness of video-link evidence and shifts that authority to an independent trier of fact who is hearing the case;
(r) Ensure the revised version of the Bill does not allow the identity and location of a victim or witness to be disclosed to the alleged perpetrator, his or her counsel or any close relatives, friends or associates.
Assuring you of our highest cooperation in regard to the above
Secretary – General, International Commission of Jurists