04 September 2017

Amending the Victim and Witness Protection Act - Submission by the South Asian Centre for Legal Studies

In 2015, the Sri Lankan parliament passed the Assistance to and Protection of Victims of Crime and Witnesses Act. Since then, the Act has entered into force and the Victim and Witness Protection Authority has been created. This is despite persistent calls from civil society and the UN to revise the Act to ensure that the framework it creates provides efficient and credible protection to victims and witnesses.

In particular, the report of the Office of the High Commissioner for Human Rights on the Investigation on Sri Lanka (OISL) recommends a review of the “Victim and Witness Protection Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme”. It also recommends that amendments are introduced to ensure “the independence and integrity of those appointed to the Witness Protection Authority and that the police personnel assigned to this program are fully vetted”. These recommendations were made after concerns were raised in the report regarding the modes of appointment to the Board of Management of the Victim and Witness Protection Authority and the lack of independence of the Victim and Witness Protection Division from the rest of the police force . Finally, the OISL report also recommends that adequate resources be assigned to witness protection and that special protection be granted for children and victims of sexual violence.

Similar recommendations were made by SACLS prior and subsequent to the publication of the OISL report. In October 2015, the Sri Lankan government, through the co-sponsoring of Human Rights Council Resolution 30/1, committed to review the Act and to “strengthen these essential protections by making specific accommodations to effectively protect witnesses, victims, investigators, prosecutors and judges”. The following summarizes SACLS’ main recommendations towards the fulfilment of this commitment.

I. List of Recommendations

1. First Recommendation - Amend Section 12 of the Act in the following manner;

A. Remove all ex officio appointees to the Board of Management of the Authority and grant the Authority with specific powers to convene a high-level working group with representatives from relevant ministries.
B. State that all members of the Board of Management and its Chairman shall be appointed by the President on the recommendation of the Constitutional Council. (Comment - This is akin to the appointment of the Commissioners of the Office on Missing Persons and
C. aligns with the principles governing appointments of analogous bodies under the 19th Amendment to the Constitution).
D. State that the overarching prerequisite for being a member of the Board of Management of the Authority is ‘demonstrated integrity’ of that individual in his/her previous and current fields of work.
E. State that demonstrated past experience and capacity in providing protection, psychosocial assistance or social support to victims and witnesses shall be a criterion for the appointment of all members to the Board of Management.

Explanation –The appointment of ex officio members risks undermining the independence of the Board of Management of the Authority. It is therefore recommended that no member of the Board of Management of the Authority be appointed ex officio. To the extent that the support of relevant Ministries and state organs is deemed necessary to effectively implement and coordinate protection/assistance measures across state apparatus, this may be effectively ensured in other ways including for instance by the creation of a high level working group distinct from the Board of Management of the Authority.

Appointment to the Board of Management should not be left to the President of Sri Lanka acting alone, given the country’s troubled history of politicization of appointments to various authorities. Accordingly, all appointments to the Board of Management should be made through the procedure introduced by the 19th amendment, with the explicit aim of guaranteeing the independence of various commissions.

2. Second Recommendation – Amend Section 19 of the Act in the following manner;

A. State that the Authority shall appoint the Head of the Victim and Witness Protection Division.
B. State that all officers of the Victim and Witness Protection Division shall be appointed by the Head of the Victim and Witness Protection Division, with the approval of the Authority.
C. State that the Head of the Victim and Witness Protection Division shall ensure that all officers recruited and working for the Division are carefully and continuously vetted and that individuals who are/have been credibly implicated, suspected, accused or convicted of any offence under the laws of Sri Lanka or a fundamental rights violation are excluded from the Division.
D. State that the Division shall be operationally independent from the police force.

Explanation - Recommendation 2(A), 2(B) and 2(D) above have been made to ensure that there is institutional separation of the protection function of the Division from the investigative authorities of Sri Lanka and further guarantee the organizational autonomy of the Victim and Witness Protection Division from the regular police system.

Recommendation 2(C) was made to ensure that the Division is composed of individuals who have an unblemished record in their public life.

3. Third Recommendation– Amend Section 18(3) of the Act in the following manner;

All sums of money required to defray expenditure incurred by the Authority and the Division in the exercise and performance of its duties and functions under this Act, shall be paid out of the Fund of the Authority.

Explanation – The above recommendation is made in order to ensure that the Victim and Witness Protection Division is – not only operationally – but financially, independent from the regular police hierarchy.

4. Fourth Recommendation - Amend Section 20(4) and Section 25 of the Act in the following manner;

State that the provision of protection and assistance to a victim or witness by the Victim and Witness Protection Division (section 20(4)), a Court or Commission (section 25) shall be based on;
(a) The existence of threats to the victim’s or witness’ life and/or property,
(b) The foreseeability of acts of reprisal or intimidation, or the fact that acts of reprisal or intimidation have already been carried out against the victim or witness,
(c) The victim or witness’ personality, personal situation and psychological fitness to receive various protection measures,
(d) The seriousness of the offence to which the victim’s or witness’ statement or evidence relates.

Explanation – The above recommendation is made since the Act does not specify what criteria should be considered when an entity makes a decision on a protection request. The legislation in its present form states that “where a Court or Commission decides to adopt protective measures, they must do so on “reasonable grounds””. When the Division considers whether to admit a victim or witness into a witness protection program or provide other protection measures the Act merely states that the Division must conduct a “threat assessment”. However, there are no further guidelines to assist a Court or Commission on what constitutes “reasonable grounds” or the Division when carrying out a “threat assessment”. The OISL report notes that “One of the key aspects which requires improvement is a clear definition of the criteria to be considered when determining whether a victim or witness should be given protection” .

The UNODC’s Model Witness Protection Law, for example, sets out key criteria to be taken into consideration when carrying out a threat assessment process. These include the seriousness of the offence to which the statement of the witness relates; the nature and importance of that statement; and the nature of the perceived danger to the witness. Additionally, it is relevant to consider the witnesses’ psychological profile when deciding to grant protection. Comparable legislation in Indonesia and Kenya has stipulated clear, comprehensive and exhaustive threat assessment criteria in the Acts themselves. (See in this regard Law of the Republic of Indonesia Concerning Witness and Victims Protection Number 13 (2006) section 28 and Witness Protection Act Kenya (2012) section 6)

5. Fifth Recommendation – Repeal Section 24(2)(c) and Section 24(3) of the Act and replace Section 24(3) in the following manner;

The Authority, the Division or a Commission shall have the capacity to solicit or obtain any assistance from any foreign government or national, foreign or international organization, in providing assistance or protection to a victim of crime or a witness.

Explanation – The above recommendation was made since the Act includes sections which severely restrict the provision of external expertise and assistance to the Authority, Division and a Commission for carrying out protection activities. In particular, while section 24(2)(a) of the Act gives Commissions of Inquiry autonomous powers to carry out VWP, part (c) of this section prevents Commissions from receiving external entities’ direct input in this area. It provides that a Commission may only obtain advice, services, assistance or resources from a public officer. In addition, the Act explicitly prohibits the Authority, the Division or a Commission from receiving external assistance without the previous sanction of the Attorney General and the Secretary to the Foreign Ministry. The intention of both these sections is to monopolize protection activities within the governmental apparatus. This is problematic because Sri Lanka’s governmental apparatus does not have the best personnel— nor the best legacy— to independently and effectively implement protection measures.

6. Sixth Recommendation – Amend Section 14(1) of the Act in the following manner;

The Authority shall have the power to,
(h) review a decision made by the Victim and Witness Division in terms of Section 20(3) to refuse admission of a victim or witness into the Division’s Victims of Crime and Witnesses Assistance and Protection Programme or terminate protection.

Explanation – The above recommendation was made since decisions to deny admission into a protection program are typically subjected to independent review in the protection frameworks of other countries. In Hong Kong, potential witnesses who are not offered protection are allowed to appeal to a special board and finally to the Hong Kong court system. Similarly, in South Africa a decision refusing to admit or terminate protection is reviewable by the Minister of Justice and Constitutional Development. However no such internal appeal/review mechanism exists under Sri Lanka’s national protection framework. The only remedy for a victim/witness would be to obtain a writ of mandamus against the protection Division ordering it to reconsider its previous decision regarding admission. However, this latter procedure will not guarantee the same level of confidentiality to a victim/witness, akin to an internal appellate procedure.

7. Seventh Recommendation – Amend Section 25(3) of the Act in the following manner;

The protection and assistance that may be provided under subsection (1) may include:—
(a) the adoption of special measures to protect the rights of children and to ensure the best interests of child victims of crime and child witnesses as well as victims and witnesses of sexual and gender based violence and other vulnerable victims and witnesses.

Explanation - Taking special consideration of vulnerable classes of persons is critical to any effective victim and witness protection framework. In particular victims of sexual and gender based violence have very specific protection and assistance needs. Other vulnerable victims and witnesses may include women, elderly, disabled and impecunious victims and witnesses. Depending on the circumstances, special procedures and measures may be required to effectively facilitate their participation in the justice process.

II. Other Issues relating to the Victim and Witness Protection Act

1. Expand the scope of protection.

The current definition of victim and witness does not include informants, human rights defenders or other individuals who collaborate with the justice process and who may require protection. The Act should therefore be amended to ensure that the national framework for victim and witness protection also covers legal representatives of a victim or witness, investigators, prosecutors, judges, law enforcement agents and other intermediaries who provided assistance to the victim or the witness. This is in accordance with Sri Lanka’s commitment as reflected in para. 9 of UNHRC resolution 30/1.

2. Victim and Witness Protection in Transitional Justice Processes.

The national Victim and Witness Protection Act does not cover victims or witnesses of violations of international human rights or international human rights law that do not necessarily constitute a national crime. As a result, those who seek to participate in transitional justice processes and are victims or witnesses of violations that do not squarely fall within the definition of a national crime or constitute an infringement of a fundamental right guaranteed under Articles 13(1) or (2) of the Constitution will be automatically excluded from the national victim and witness protection framework. This problem can only be addressed by incorporating international crimes in domestic law with retroactive effect as permitted by article 13(6) of the Sri Lankan Constitution.

In addition, the Victim and Witness Protection Act does not cover witnesses participating in processes before the proposed transitional justice institutions (including the Office on Missing Persons and the Truth Commission), to the extent that these institutions do not (or may not) constitute a Commission as defined in the Act. However, unless the serious flaws in the current national victim and witness protection framework highlighted above are addressed, extending the scope of the Victim and Witness Protection Act to those seeking to participate in the transitional justice process would seriously undermine the credibility of such a process. In light of this, the protection of victims and witnesses seeking to participate in transitional justice is best ensured by the special institutions proposed by the government to carry out the transitional justice agenda.

More in this category: « Operationalizing the OMP Act
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