Introduction

The year 2015 was significant for those advocating for greater protection of victims and witnesses of statutory, organized and international crimes. In March that year, the Parliament of Sri Lanka adopted the Assistance to and Protection of Victims of Crime and Witnesses Act (the VWP Act). This Act created a widespread expectation among many people that greater safety would now be provided to victims and witnesses participating in Sri Lanka’s ordinary criminal justice system. However as will be discussed in this paper, the framework created under this Act is wholly inadequate for Sri Lanka to deal with its long legacy of threats, intimidations and violence towards victims and witnesses. The protection of victims and witnesses who participate in the country’s ordinary justice process has been a long neglected topic in Sri Lanka’s public and legal discourse. As a result, there is very little knowledge in the country about the concept of victim and witness protection (VWP), the difficulties faced by victims/witnesses who have participated in the Sri Lankan justice process and the recently enacted VWP Act that governs this area. This paper aims to address this lacuna by analyzing the Sri Lankan experience, identifying weaknesses within the existing VWP regime in light of international best practices and recommending avenues to address these shortcomings.

I. Overview of Protection Methods Prior to the Adoption of the Victim and Witness Protection Act

Victim and witness protection has been a long felt need in Sri Lanka due to the country’s legacy of threats, intimidations, and violence towards victims and witnesses. Threats and violence against witnesses have severely undermined the law enforcement and criminal justice systems of the country, and no government has meaningfully addressed these issues. Calls for the Sri Lankan State to take appropriate steps to safeguard victims/witnesses were often made after emblematic cases of violence. However, prior to the enactment of the law in 2015, the State’s response was ad hoc, disorganized and insufficient. Embarrassingly, the State’s response pales into insignificance in comparison with the protection initiatives carried out by non-Sate actors. This is particularly evidenced by a few emblematic cases of violence against key victims/witnesses. These cases highlight the exorbitant cost of the State’s indirect (and sometimes direct) facilitation of brutality towards victims and witnesses in violation of its international obligations.

1. State Level Witness Protection: A legacy of Failures

VWP refers to “measures taken to protect the safety of victims, witnesses and other persons closely associated with them from physical violence, threats of violence, intimidation, retaliation or other threatening or harassing conduct”.1 Witness protection could be ensured through either the adoption of a range of relevant measures or through admission into a formal protection program. The former refers to procedural and non-procedural measures that could be taken to protect witnesses who do not meet the required threat level to enter into a formal protection program.2 Procedural safeguards such as in-camera hearings, video testimony or expunging identifying information could be guaranteed by courts or various commissions. On the other hand, law enforcement bodies are generally in charge of implementing non-procedural protection measures such as surveillance activities, escorting the witness to work/court, lending personal alarm devices, increasing police patrols in the area where the witness lives or even offering 24-hour police protection.

When the threat level faced by an individual meets a threshold beyond which the protection measures described above are inadequate, a formal protection agreement between the victim/witness and the authorities could be concluded for the provision of more robust protection measures. Such an agreement is concluded for the purpose of admitting a victim/witness into a ‘witness protection program’. This often entails a change of identity and a relocation of that person to a safer geographical area.

Victim and witness protection therefore encompasses a variety of measures that could be taken by a range of institutional actors including law enforcement agencies, the judiciary or independent commissions. As exemplified by a few cases examined below, Sri Lanka’s legacy of failure in terms of victim and witness protection at the grassroots and policy/decision-making level is shocking and abysmal. This failure to ensure victims’ and witnesses’ protection against clear and identified threats to their safety has seriously undermined trust in the rule of law in the country.

a. The Sri Lankan Police

Prior to the enactment of the VWP Act, if the police were approached by a person who claimed that he/she was being threatened by individuals, organized crime groups, paramilitary/armed groups or the Sri Lankan armed forces, that person would be questioned and further investigations would be carried out in order to substantiate the allegations. If the person threatened was able to identify the person/s he/she was afraid of, and the police had reason to believe the allegations, they could then proceed with the arrest and detention of the identified person/s. In deciding whether to do this, the police would assess the seriousness of the alleged offence along with the credibility of the person making the allegations.3 According to Section 37 of the Code of Criminal Procedure, after a person suspected of harassing/threatening a victim or witness is arrested, the police is required to produce the suspect before a Magistrate Court within 24 hours4 and to submit the findings of their investigation on the alleged threat to the same court.5 If the Magistrate is satisfied that there were substantial grounds establishing a threat to the victim or witness, he/ she can order further detention of the accused.6

Despite the availability of these rudimental measures for VWP, the police often failed to provide sufficient protection, even when there was a clear danger to the victim’s or witness’ life. The unfortunate events relating to Sugath Nishantha Fernando is a case in point. Sugath Nishantha was the complainant in a fundamental rights application against the police for torture and was also the aggrieved party in a separate case before the High Court of Sri Lanka relating to police bribery. Sugath Nishantha himself and human rights organisations on his behalf7 had repeatedly lodged complaints with the relevant authorities seeking protection for Sugath and his family.8 However, since the complaints were against the Police, officials including senior police personnel remained uninterested in providing Sugath Nishantha and his family protection.9 Sugath Nishantha was ultimately gunned down in broad daylight. According to Prasanga Fernando,10 a human rights activist who has worked closely with victims and witnesses and attorney-at-law Lakshan Dias,11 the lack of a statutorily established mechanism to protect victims and witnesses, resulted in many intimidations, and sometimes the death of victims and witnesses.12 As a result, very few victims/witnesses were willing to come forward and give evidence to investigating authorities, especially if they were victims of torture by the police or armed forces.

b. The Judicial Response

Prior to the enactment of the VWP Act of 2015, the judicial scope for victim and witness protection was limited to the protection of victims and witnesses from an accused person.13 The Bail Act No. 30 of 1997 provides that Courts shall refuse to grant bail where there is sufficient reasons to believe that the accused would inter alia interfere with a witness.14 Interestingly, in Sugath Nishantha’s case, the Colombo High Court before which the bribery case against the Police was filed did in fact cancel the bail given to the accused police officer after a violent assault on Nishantha and his family by a police squad.15 However, this did not diminish the threats or violence against Nishantha and his family. In fact, even in situations where the primary perpetrator is refused or cancelled bail, his supporters can orchestrate or carry out the intimidation and violence against the victims and witnesses.16

c. Human Rights Commission of Sri Lanka (HRCSL)

Prior to the enactment of the Victim and Witness Protection Act in 2015 (and even today), most victims and witnesses who were under a threat, filed a complaint before the HRCSL17 or sought assistance from non-governmental organisations (NGO). According to Prasanga Fernando, when a victim or witness made a complaint to an NGO, the latter would, as a practice, lodge a complaint with the police, write to the Inspector General of Police and bring the matter to the attention of the HRCSL.18

While the Human Rights Commission of Sri Lanka Act No.21 of 1996 does not give the HRCSL an explicit mandate for victim and witness protection,19 in practice, the Commission uses its powers under Section 10 (b)20 to request the Inspector General of Police (IGP) to take all necessary steps to safeguard victims and witnesses requiring protection and to request that complaints regarding imminent infringements of fundamental rights are inquired into.21 Thus, the limited powers at the Commission’s disposal only allow it to request and inform the police or other higher level executive functionaries to protect victims and witnesses.22 The Commission itself has no independent and robust VWP capabilities and has to rely on the country’s law enforcement bodies. This heavy reliance on the police has deterred many victims and witnesses from coming forward in a context where trust in the police force had waned.23

2. Self-protection Measures: An Efficient yet Insufficient Alternative.

In Sri Lanka, victim and witness protection has been (and will likely continue to be) mainly undertaken by the victims and witnesses themselves along with the assistance of their family, friends, and civil society. As a result, victims, witnesses, their family members, civil society activists, legal practitioners, academics and other interested groups have continually advocated for stronger State-led VWP systems. This is because Sri Lanka is bound by an international law obligation derived from the International Covenant on Civil and Political Rights to take measures to ensure the safety of those within its jurisdiction.

a. Overview of Protective Measures taken by Victims and Civil Society Organisations

The self-help approach to VWP has been extensively described through examples in consultations carried out by SACLS. For example, as explained above, Sugath Nishantha lodged several complaints against the police for fundamental rights violations including torture, and was subsequently threatened by the police following the filing of these cases. Following an abduction attempt by the police in a white van, Sugath began engaging in various self–help measures for protection, while also relying on the assistance of a human rights activist who provided Sugath with a safe house. Even though the Supreme Court had already issued a special protection order for Nishantha, the police continued to threaten his life. Thereafter, Sugath filed a number of additional complaints against the police, while activists and lawyers also brought the matter before the police and other relevant authorities. However, no steps were taken to grant him protection, despite clear threats to his life. Due to his inability to provide economic support for his family, Sugath returned home. He was killed by a gunman the same day, with his son seated next to him in the car. Further, Amitha Ariyaratne and Mr.Weliamuna, two of the lawyers involved in the Sugath Nishanta case, also subsequently received death threats and were victims of direct attacks.24 After Sugath’s death, the threats continued against his family and against human rights organisations attempting to assist and protect his family.25 Due to the State’s failure to ensure the protection of his family, human rights activists provided them a safe house until they eventually sought asylum in Switzerland, once again with the assistance of civil society.

The Kalmunai murder case is another example of a situation where victims resorted to self -help measures. Following the rape of Seeta Kalmunai’s daughter, the four assailants (purportedly from a branch of Sri Lanka Army) warned Seeta’s family members that they would be murdered if they reported the case. That same evening, five armed men broke into Seeta’s home and carried out a brutal attack on the family. These attacks on victims and witnesses, chillingly termed as ‘silencing attacks’, are common place.26 Subsequently, Seeta filed a complaint to the HRCSL. However, she has since been forced to go into hiding for fear of reprisal.

Thus, in the absence of independent and robust protection measures at the State level, human rights defenders and other civil society groups have, throughout the years, helped victims and witnesses in an unofficial capacity. Many of these organizations have helped victims and witnesses relocate to other parts of Sri Lanka, provided safe housing during times of crisis, paid for medical/psychological expenses where needed and have also contacted foreign embassies in Sri Lanka for assistance and asylum. Thus self-protection measures were (and may remain for some time) the only solace for many victims and witnesses. The country’s legacy of violence/intimidation and the inadequacy of the State’s response to these incidents have left it in clear breach of its international obligations.

b. Existence of a Remaining State Obligation of Protection.

The practice of intimidating, threatening or resorting to violence against victims and witnesses has implications on a range of human rights including their right to personal security,27 freedom from torture and cruel, inhuman or degrading treatment,28 fair trial29 and the right to remedy.30 In particular, where an individual is at risk because of his or her role as a victim or witness, international law imposes an obligation on the State to take measures to protect such person.31

The obligation on a State under international law to ensure the safety of those within its jurisdiction is one of ‘means.’ In Delgado Paez v. Colombia, the Human Rights Committee confirmed that States cannot “ignore known threats to the life of persons under their jurisdiction” and must “take reasonable and appropriate” protective measures.32 Similarly in, Rajapakse v. Sri Lanka, the Human Rights Commission found a violation of article 9(1)33 of the ICCPR due to the State’s to take ‘adequate action to ensure that the author was and continues to be protected from threats issued by police officers’ as a result of filing a fundamental rights petition.34 In this case, the State did not provide witness protection and Mr. Rajapakse went into hiding due to his fear of reprisals. The HRC found that, on the basis of article 9(1), a State party cannot ignore threats to the personal security of non-detained persons under its jurisdiction. Therefore, Sri Lanka was obliged ‘to take effective measures to ensure that the author [was] protected from threats and/or intimidation with respect to the proceedings. [and] to ensure that similar violations do not occur in the future.”35 The Committee has also, in a number of concluding observations, iterated the importance of establishing witness protection mechanisms.36

Sri Lanka’s failures with regards to VWP were also noted by the UN Human Rights Committee In Rajapakse v. Sri Lanka,37 the UN Human Rights Committee notes that this case was not an isolated incident but part of a disturbing pattern of threats, harassment and killings of victims and witnesses in cases of torture and other serious human rights violations in Sri Lanka.38 The UN Special Rapporteur on Torture, following his visit to Sri Lanka in 2007, confirms the Human Rights Committee’s observations when he stated that:

Intimidation of victims by police officers to cause them to refrain from making complaints was commonly reported, as were allegations of threats of further violence, or threatening to fabricate criminal cases of possession of narcotics or dangerous drugs.39

The adoption of the Victim and Witness Protection Act triggered the expectations that Sri Lanka would finally adopt a framework for protection that would be adequate to ensure the safety of victims and witnesses of crimes. However, as will be explained in the following section the fatal institutional shortcomings within the Act tend to overshadow almost all of its positive features.40

II. Assessment of the Victim and Witness Protection Act against International Standards and Best Practices.

This section analyzes Sri Lanka’s landmark, albeit flawed, victim and witness protection legislation. While the enactment of the legislation is indeed a step forward in the right direction, the gaps and flaws within it shed doubts on whether Sri Lanka will break away from its legacy of witness protection failures. In this section, Sri Lanka’s national victim and witness protection framework is assessed in light of VWP best practices internationally. The institutional arrangements adopted in other national systems provide useful pointers for the improvement of our existing national framework.

1. Legislative history

The proposal to enact a Victim and Witness Protection Act first came about due to the interest and initiative of S.S. Wijeratne of the National Centre for Victims of Crime. The first draft of the VWP Bill prepared by the Law Commission in 2000 was stalled due to political pressure. It was only seven years later that the second draft of the VWP Bill was forwarded to the Ministry of Justice and Law Reform in late July 2007.41 Even though the Bill was taken up and debated in Parliament in 2008,42 it was only tabled in Parliament by the Rajapakse government in September 2014. At this point, many civil society groups highlighted shortcomings of the VWP Bill. After being challenged twice before the Supreme Court, the Bill was passed into law in February 2015.43

At the time of writing, it has been roughly two years since the Act was passed. However, some of the institutional arrangements are yet to be put into place to give full effect to the Act.44 Although the National Authority45 and the Police Division46 have been established, substantive steps such as creating safe houses,47 concluding agreements with national/foreign authorities to facilitate relocation and re-identification, and establishing the Victims of Crime and Witnesses Assistance and Protection Fund, are yet to take place.

Notably, the Authority received five representations from victims or witnesses requiring protection, prior to the establishment of the protection Division.48 These were referred to the Inspector General of Police for threat assessment. However, without other institutional arrangements in place, victims and witnesses are unlikely to receive meaningful protection.

2. Framework

The 2015 VWP Act establishes two primary units to structure, oversee and implement the victim and witness protection program: The National Authority for the Protection of Victims of Crime and Witnesses (the “Authority”)49 and the Victim and Witness Assistance and Protection Division of the Sri Lanka Police Department (the “Protection Division”).50

a. The Authority

Pursuant to the Act, the Authority is given the power to “develop, adopt and implement a scheme for providing assistance and protection to victims of crime and witnesses.”51 Part of the Authority’s mandate is to promote the rights of victims and witnesses,52 to develop and implement a compensation scheme for victims,53 as well as an assistance and protection scheme for victims and witnesses.54 Additionally, it is to make recommendations to the police and government departments for the implementation of a victim and witness protection programme,55 review legislation, policy and practices to ensure international standards are met,56 conduct research on victim and witness assistance and protection issues57 and report to Parliament annually on its activities.58

According to the Act, its activities will also include:

• adopting best practices,

• developing codes of conduct and guidelines,

• making recommendations to other government departments and agencies,

• sensitizing public officers, including the police, Prisons Department, government medical officers, and public officers associated with probation and social services, and

• conducting research into reducing incidences of crime and minimizing the impact of crime on victims and witnesses.59

The administration and management of the Authority will be the mandate of a Board of Management (the “Board”) consisting of seven ex-officio members of government including:

• the Secretary to the Minister responsible for Justice or an Additional Secretary,

• the Secretary of the Ministry in charge of Police or a nominee,

• the Secretary to the Ministry of the Minister in charge of Women’s Affairs or an Additional Secretary to the said Ministry, nominated by such Secretary;

• the Secretary to the Ministry of the Minister in charge of the subject of Children or an Additional Secretary to the said Ministry, nominated by the Secretary,

• a member of the Human Rights Commission of Sri Lanka established by the Human Rights Commission of Sri Lanka Act, No.21 of 1996, nominated by such Commission, nominee of the Attorney General, nominee of the Inspector General of Police holding the rank of a Senior Deputy Inspector General.60

Additionally, the Board of Management will have five members appointed by the President who have academic or professional qualifications related to criminal justice.61

b. Protection Division

The Act also establishes the Protection Division, which is the principal organ for the provision of protection to victims and witnesses. The Division is headed by a Senior Superintendent of Police, who is nominated by the Inspector General of Police.62 The Division has the authority to design and implement a victim and witness assistance and protection program, in accordance with guidelines provided by the Authority.63 The Act establishes that the Division must investigate, by itself or with the assistance of any other police officer, complaints relating to threats, reprisals, harassment or violations committed against victims and witnesses of crime, in additional to any other offence under the Act.64 The Inspector General of Police established the Protection Division on 3 November 2016.

3. Gaps and Flaws in the VWP Act and in its Implementation

The institutional arrangements with respect to the Authority and the Division fall short of the requisite independence, impartiality, and expertise needed to exercise its mandate with the victims’ and witnesses’ best interests in mind.

a. Lack of Independence

As observed in SACLS’ previous publication on VWP,65 Sri Lanka has a history of politicization of the public service.66 In light of this, the appointment process to the Authority could result in a situation where all of the Authority’s members have close political associations with the Government.

The Division too has shortcomings with respect to independence. The victim and witness protection Division is headed by a Senior Superintendent of Police nominated by the IGP and is under a duty to ‘investigate, by itself or with the assistance of any other police officer, complaints relating to threats, reprisals, harassment or a violation committed against victims and witnesses of crime’.67 However, the Act does not guarantee the autonomy or independence of this Division from the hierarchy of the police. Where a witness protection unit is located within the police force (notably this is not regarded as best practice worldwide), it is important for the independence of the unit to be clearly established. Thus, the absence of clear directions in the Act confirming the independence of the Division is problematic. The influence of the normal hierarchy of the Police could dampen the Division’s objectivity and the effectiveness of the protection, especially where victims seek protection from other members of the police. This may lead to victims’ re-victimization, reduce the willingness to testify and ultimately undermine criminal prosecutions.68

In other countries like South Africa, steps have been taken to ensure sufficient separation of the witness protection unit from law enforcement agencies. Under the South African model, an independent security officer within the witness protection unit makes his/her own assessment of the protection measures that ought to be taken. To do so, the officer may or may not rely on security sector information/intelligence.69 Direct reliance on law enforcement bodies for protection is only resorted to if a victim or witness is not admitted into a formal protection program.70 Unfortunately under the Sri Lankan framework, threat assessment and admission of victims and witnesses into a protection program is put squarely in the hands of a protection Division that is not independent from the regular police hierarchy.71 A scheme of this nature risks subverting VWP needs to law enforcement’s interests and to political influence from a higher level.

Finally, it is likely that the lack of institutional independence of both the Authority and the Division under the Act will erode public confidence in the national VWP framework. In local consultations before the Consultation Task Force on Reconciliation Mechanisms, many potential witnesses have already expressed a general distrust for the institutional arrangements in place for VWP under the national Act.72

b. Insufficient Expertise

The National Authority established by the Act is constituted of ex-officio representatives from various ministries and other individuals directly appointed by the President.73 The Chairman of the Authority is also appointed solely at the discretion of the President.74

The current criteria for becoming a member of the Authority’s Board of Management do not place sufficient emphasis on expertise in VWP. In particular, previous experience in the provision of social services or witness protection including in the non-governmental sector is not a criterion for appointment.75 Practically, this could hamper the Authority’s ability to issue relevant and robust guidelines for the Division’s activities. As a result the Division may be left with unfettered discretion when determining admissions into its witness protection program, protection measures, and review processes. The problem is exacerbated by the absence of any guidelines for these decisions in the Act itself.76

In addition, the Act does not place sufficient emphasis on the appointment of civil society members to the Authority’s Board of Management. This is problematic because, historically, civil society stakeholders—including religious leaders and human rights defenders—have carried out much of the informal witness protection work in Sri Lanka. Their expertise and experience would therefore be directly relevant to the VWP Authority.77

Similarly, the Act does not specify minimum qualifications or required expertise for appointment to the protection Division. However, the complex task of protecting victims and witnesses requires trained and multidisciplinary personnel.78

Finally, the Act also includes a section which severely restricts the provision of external VWP expertise and assistance to the Authority and the Division as well as other relevant bodies. In particular, while section 24(2) (a) of the Act gives Commissions of Inquiry79 autonomous powers to carry out VWP,80 part (c) of this section prevents these Commissions from receiving external entities’ direct input in this area. It provides that a Commission may only obtain the advice, services, assistance or resources from a public officer.81 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.82 The intention of both these sections is therefore to monopolize VWP activities within the governmental apparatus. This is problematic because Sri Lanka’s governmental apparatus does not have the best personnel—nor the best legacy—for VWP.

4. Drawing from International Standards and Best Practices to Reform the VWP Act

The lack of institutional independence of—and adequate expertise within—the Authority and Division is a major flaw in Sri Lanka’s VWP framework. The following section examines mechanisms and procedures resorted to in other jurisdictions to guarantee independence and expertise of VWP institutions. While institutional arrangements for VWP differ significantly from one State to another,83 some good practices may be identified and lessons must be learnt from these experiences.

a. Institutional arrangements guaranteeing independence

Independence of entities in charge of VWP is essential to ensure first, that the threat assessment is carried out in an impartial manner and second, that the protection provided is adequate and effective.

 i. Independence in Carrying out Threat Assessments

Independence of VWP institutions is crucial to ensure that decision-making for threat assessment and admission into a protection program is impartial and not susceptible to undue influence. Although methods for achieving impartiality in decision-making vary, the United Nations Office on Drug and Crime (UNODC) and other expert bodies have highlighted a few principles. These include the necessity to institutionally separate the protection function from the investigation into the crime of which the person seeking protection is a victim or a witness.84 Thus, at a minimum the protection institution must “be disconnected from individual prosecutors, investigators or defense counsel, in order to carry out their threat assessments in an objective way”.85 In addition, organizational autonomy of the VWP institution from the regular police is also essential.86

Globally, countries have sometimes attempted to ensure independence in threat assessment through institutional arrangements whereby decisions regarding admission into a protection program are taken after information exchange and coordination among a number of authorities. Although these countries have been unable to wholly disconnect prosecutorial and investigative agencies from the threat assessment and admission procedure, independent entities generally have the final say on admission into a protection program. For example, in Australia87 and Canada,88 the Australian Federal Police Commissioner and the Commissioner of the Royal Canadian Mounted Police (RCMP) decide on the admission of an individual into a witness protection program upon hearing the recommendations of other governmental entities. The independence of their decision-making power in this respect is guaranteed by law.89 However, in Australia and Canada, despite this legislative safeguard with regard to the independence of the decision itself, the entity making that decision is not institutionally independent from the Police. A similar arrangement may be unsuited to Sri Lanka where victims and witnesses have a negative perception of—and little faith in—the Sri Lankan police.

Significantly, countries in transition (or those which have gone through a TJ process) like Colombia,90 Guatemala,91 Kenya,92 and South Africa93 have vested absolute competence regarding admission into a protection program in their Directors of Witness Protection. This has been done both as a means of ensuring independence94 and of disengaging protection activities from the hands of law enforcement bodies with negative reputations. In contrast under the Sri Lankan model a Senior Superintendent of Police (SSP) heads the protection Division and makes the final decision on admissions into a protection program. This is in spite of the VWP Act failing to guarantee the independence of the SSP from the normal hierarchy of the police.

Decisions on admission are also typically subject to independent review.95 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.96 Similarly, in South Africa a decision refusing to admit or terminate protection is reviewable by the Minister of Justice and Constitutional Development.97 However no such 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.

The Sri Lankan VWP framework therefore falls far short of the necessary independence that should be given to entities carrying out threat assessments for admission into a protection program.

ii. Independence in Implementing Victim and Witness Protection Activities.

In addition to independence in threat assessment, independence in the implementation of protection is also essential. This too is often achieved through the establishment of a dedicated and independent unit that specializes in VWP. This unit should be independent from the investigators, prosecutors and defense counsel, whilst having protocols for external coordination that do not compromise institutional independence.98

For example, in Canada, law enforcement bodies like the RCMP have been put in exclusive charge of protecting victims and witnesses under the country’s federal witness protection program. In terms of the Canadian Witness Protection Program Act, the RCMP Commissioner can decide on the type of protection to be given to any ‘protectee’, independently.99 At the same time, the RCMP has been given sufficient powers to cooperate externally – without compromising on its independence.100 This kind of institutional independence is especially important in societies transitioning out of institutionalized violence, since perpetrators often remain in positions of power. Thus in Colombia– which is currently transitioning from conflict to peace– the protection program is run autonomously by the Office for Protection and Assistance (OPA) with general policy/operational guidance given by the attorney general.101 While the OPA may coordinate with external parties102 it has nevertheless been guaranteed institutional independence to take protection decisions without outside interference.103

It is therefore necessary for Sri Lanka to restructure the protection framework under the Act to guarantee the institutional independence of the Protection Division. Ideally, the Division should be independent from the regular police hierarchy104 and be able to take protection decisions without interference/influence from senior officials in the Police or other officials of the executive or armed forces. However, even an independent protection division comprising of law enforcement officials – such as that seen in Canada– is unlikely to be sufficient to guarantee quality and trustworthy protection in the Sri Lankan context. As explained previously, the Sri Lankan police has had a chequered past in its dealings with victims and witnesses. It will therefore be necessary to carefully vet officers in the Division and subject them to strict and continuous oversight, even where institutional independence has been guaranteed.

However, a complete restructuring of the existing framework under the Act is politically unlikely in the short term, since this framework was adopted after many years of political delays and wrangling. In situations where the independence of the entity in charge of VWP is not institutionally guaranteed, ensuring the independence required to manage an effective VWP program necessitates extensive oversight and substantial resources in order to:105

1. Vet and/or remove individuals who are implicated as perpetrators in the events to be examined.

2. Monitor police, prosecutors, commissioners and judges who take part in the protection framework

3. Make police, prosecutors and judges accountable to credible officers at a higher level and

4. Facilitate training and material assistance, to promote impartial involvement in investigation

5. Rebuild police stations, prisons and courthouses to separate witnesses106 from accused persons, and;

6. Strengthen the legislative and executive capacity to enact appropriate measures through legislation, standard operating procedures or guidelines.107

Unfortunately for Sri Lanka, even the Authority which exercises oversight over the problematic protection Division is composed of individuals who have had credible allegations of witness intimidations against them.108

b. Institutional arrangements in place to procure expertise for protection activities

According to the United Nations Office on Drugs and Crime (UNODC), successful victim and witness protection and assistance requires diverse skills and capabilities.109 In fact, protection officers may be required to carry out functions ranging from personal protection to surveillance to counseling and trauma management. This range of expertise must therefore be provided either through the staffing of the entity providing the protection or through external support.

For example, in the Philippines, the national witness protection program functions as a coordinated effort involving the expertise of several governmental agencies. An interdepartmental memorandum of understanding was developed to delineate the respective responsibilities of the various departments. Accordingly, the Health Department is to assist the Justice Department in providing witnesses with medical treatment and hospitalization; the Department of Labor and Employment helps witnesses to secure employment and obtain a means of livelihood; the Department of Social Welfare and Development provides assistance to witnesses with respect to skills training services, crisis intervention and trauma management; and the National Bureau of Investigation and the National Police are responsible for providing personal safety to the witness and her/ his family.”110 This coordinated approach helps bring in expertise on various areas and thereby allows for a more holistic protection system. However, the number of governmental agencies involved in the process potentially increases opportunities for undue influence over decision making.

Therefore the interdepartmental model adopted in the Philippines would be better suited for the provision of assistance measures as opposed to protection measures.111 As far as protection activities are concerned, the Sri Lankan system must secure expertise in a manner that does not dilute the institutional independence of a reformed Authority and Division. Therefore, expertise to these institutions would be best procured through the recruitment process rather than through interdepartmental cooperation. Appropriate, fair and equitable recruitment criteria must therefore be established in the Authority’s and Division’s internal rules of procedure. The provision of external expertise may also be appropriate, to the extent that the independence of the experts is institutionally guaranteed. A coordinated institutional effort for assistance measures could, however, in some cases be appropriate and welcomed to ensure a holistic care for the most vulnerable victims and witnesses.

Conclusion

As explained in this Part, the VWP Act presents insufficient guarantees for the independence of—and expertise within—the VWP institutions it creates. This is especially worrying in light of the history of failure with respect to VWP in Sri Lanka. While the obligation placed on a State to guarantee the security of all persons within its jurisdiction is an obligation of ‘means’, the establishment of a VWP system that fails to conform to basic standards of independence and expertise is unlikely to be construed as a ‘reasonable and appropriate measure’ taken by that State to discharge this obligation. The VWP Act must therefore be amended to introduce the safeguards necessary to remedy the shortcomings identified with respect to independence and expertise.

In amending the Act to ensure greater independence and expertise in VWP, decentralized models of protection, of the type adopted in Canada or Australia,112 must also be explored. In particular, a meaningful devolution of powers—including police powers—to the provinces under a new constitution could open up avenues for a decentralized VWP system. Under decentralized models of VWP, regional systems—that sometimes exist alongside an overarching national system—have complete autonomy/independence to carry out their own threat assessments and protection activities. In addition, these systems generally rely almost entirely on the regional police forces to carry out their protection activities. Autonomous protection programs of this nature are generally successful because they are flexible and financially independent. They also enable protection officers to interact more closely with victims or witnesses at the ground level and draw from local knowledge to respond to protection challenges. In Sri Lanka, many Tamil speaking victims and witnesses, especially in the Northern and Eastern Provinces, have expressed distrust towards the national VWP framework. The creation of provincial VWP programs staffed with thoroughly vetted protection officers recruited at the provincial level could effectively appease the apprehension and distrust experienced by these victims and witnesses.

 Endnotes

1. ‘Witness Protection in Nepal : Recommendations from International Best Practices’ (August 2011) International Commission of Jurists, http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/05/Nepal-witness-protection analysis-brief-2011.pdf (accessed on 20 November 2016), [hereinafter Witness Protection in Nepal] p.2.

2. ‘Council of Europe: Committee of Ministers, Recommendation of the Committee of Ministers to Member States on the Protection of Witnesses and Collaborators of Justice’, (April 2005) www.coe.int/t/dghl/standardsetting/victims/rec_2005_9E.pdf (accessed on 31 May 2017) [Council of Europe].

3. Interview with a Deputy Solicitor General, Attorney General’s Department of Sri Lanka (Colombo, Sri Lanka, 1 February 2017) [hereinafter Interview with Deputy Solicitor General].

4. Code of Criminal Procedure Act (1979), section 37.

5. Ibid., section 116(1).

6. See in this regard Ibid., section 115(2). The Magistrate before whom a suspect is forwarded under this section, if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiuing his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more

7. ‘Documents On the Case of Sugath Fernando’ (19 March 2009) Article 2, http://alrc.asia/article2/2009/03/documents-on-the-case-of-sugath-fernando/ (accessed on 1 June 2017) [hereinafter Documents on the case of Sugath Fernando].

8. Julianne Porter, ‘The Price of Fighting the State in Sri Lanka’ (18 March 2009) Article 2, http://alrc.asia/article2/2009/03/the-price-of-fighting-the-state-in-sri-lank/ (accessed on 1 June 2017) [hereinafter The price of fighting the State].

9. Ibid. “Then we were trying to explain to the HQI what had happened, but he came out with obscenities and scolded my husband. Then he just started to hit him. I had been in the kitchen with my daughter—my phone was on charge there—and I came running out to help him, screaming. The HQI then dragged me by the hair and hit me in the face with his gun”.

10. Interview with Mr Prasanga Fernando, Human Rights Activist (Negombo, Sri Lanka, 18 January 2017) [hereinafter Interview with Prasanga Fernando].

11. Interview with Mr Lakshan Dias, Attorney-at-Law (Colombo, Sri Lanka, 1 February 2017).

12. Rosalind Sipos, ‘The Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses:
Critique and Recommendations’ (9 October 2012) Centre for Policy Alternatives, http://www.cpalanka.org/the-draft-bill-for-the-assistance-and-protection-of-victims-of-crime-and-witnesses-critique-and-recommendations/ (accessed on 1 June 2017).

• the killing of Gerald Perera, a witness in a trial of police on torture charges in 2005 the day before he was to testify in his case;

• threats against Dr.Kasippillai Manoharan, a prosecution witness in the killing of five Tamil youths in Trincomalee in January 2006 who was also the father of one of the victims;

• the arrest, torture and intimidation of D. G. Premathilaka in Katugastota when he filed a fundamental rights case against police for having arrested and tortured him in January 2004, which continued into 2005;

• the kidnapping and attempted killing of alleged torture victim Channa Prasanna Fernando, into whose case an inquiry was being conducted in 2004;

• death threats to alleged torture victim J.V. Saman Priyankara from Matale to induce him to drop his case in 2004 and 2005;

• threats against alleged torture victim Lalith Rajapakse to induce him to withdraw or settle his fundamental rights case against the police in Kandana;

• threats and harassment by police in Puttalam against SaliyaPushpa Kumara, a 15-year-old alleged torture victim, including obstruction of medical attention;

• threats and attempted abduction of ChamilaBandara, a 17-year-old who was allegedly tortured by officers of the Ankubura Police Station as well as threats against his family to induce him to withdraw his fundamental rights case

13. In contrast under section 8 of the VWP Act (2015), a wide range of actions - committed against victims and witnesses - by ‘any person’ is criminalized.

14. Bail Act No. 30 of 1997, section 14(1) (a) (ii).

15. Documents on the case of Sugath Fernando, supra note 7.

16. Interview with Deputy Solicitor General, supra note 3.

17. The Price of Fighting the State, supra note 8. “After some time I went to speak to the DIG and filed a case against those who beat my husband—I hadn’t seen any of them since the incident— then I wrote the whole story to the Human Rights Commission”.

18. Interview with Prasanga Fernando, supra note 10.

19. Section 10 of the Act delineates the functions of the HRCSL : a) to inquire into, and investigate, complaints regarding procedures, with a view to ensuring compliance with the provisions of the Constitution relating to fundamental rights and to promoting respect for, and observance of, fundamental rights;

(b) to inquire into and investigate, complaints regarding infringements or imminent infringements of fundamental rights, and to provide for resolution thereof by conciliation and mediation in accordance with the provisions hereinafter provided;

(c) to advise and assists the government in formulating legislation and administrative directives and procedures, in furtherance of, the promotion and protection of fundamental rights;

(d) to make recommendations to the Government regarding measures which should be taken to ensure that national laws and administrative practices are in accordance with international human rights norms and standards.

(e) to make recommendations to the Government on the need to subscribe or accede to treaties and other international instruments in the field of human rights; and

(f) to promote awareness of, and provide education in relation to, human rights.

20. Ibid., section 10(b).

21. Interview with Ms. Ambika Satkunanathan, Commissioner, Human Rights Commission Sri Lanka (Colombo, Sri Lanka, 27 July 2016).

22. The Price of Fighting the State, supra note 8. “After some time I went to speak to the DIG and filed a case against those who beat my husband—I hadn’t seen any of them since the incident— then I wrote the whole story to the Human Rights Commission. At the end of 2003, Negombo police station received a letter from the HRC and PP Mahagamage Dharmadasa, the OIC of Crimes, wrote asking Sugath to come and meet him. He was new in the station. He told Sugath that, “The earlier people filed a bogus case against you so I’m going to start a new one.” We were really happy to hear it”.

23. Camelia Nathaniel, ‘A Clear indictment on Sri Lanka Police’ (24 January 2016) Sunday Leader, http://www.thesundayleader.lk/2016/01/24/a-clear-indictment-on-sri-lanka-police/ (accessed on 1 June 2017).

24. I.e. After they filed complaints about the threats, two grenades were thrown at Mr. Weliamuna’s house.

25. Documents on the case of Sugath Fernando, supra note 7.

Unheeded complaint to the Inspector General of Police from the president of Right to Life, a human rights group assisting Sugath Fernando’s family, over death threats

This is the written complaint by Kanukulage John Britto Fernando, 54 years of age; male; Sri Lankan citizen; a Catholic; married. Employment: a consultant on labour law, the president of the Right to Life, a human rights centre situated at: No. 555, Negambo Road, Kurana, Katunayake.

I am making this complaint regarding the death threats made to our office for the second time by a threatening telephone call made on the 24th of January 2009.

26. Kumari Jayawardena, Kishali Pinto-Jayawardena, The Search for Justice: The Sri Lanka Papers, Zubaan (November 2016).

27. Human Rights Committee, General Comment 35, CCPR/C/GC/35, ¶9: “The right to personal security also obliges States parties to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors.”; Human Rights Committee, Sundara Arachchige Lalith Rajapakse v. Sri Lanka, Communication No. 1250/2004, U.N. Doc. CCPR/C/87/D/1250/2004 (2006) [hereinafter Communication on Rajapakse v. Sri Lanka], ¶9.7.

28. U.N. General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (10 December 1984) U.N.T.S. vol. 1465, [hereinafter the Convention Against Torture] p. 85. The convention explicitly enumerates an obligation to protect victims and witnesses under Article 13: “[s]teps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given”.

29. Human Rights Committee, Concluding Observations on Bosnia Herzegovina, U.N. Doc. CCPR/C/ BIH/CO/1 (2006) [hereinafter Concluding Observations on Bosnia Herzegovina], ¶13; and Concluding Observations on Ukraine, U.N. Doc. CCPR/C/UKR/ CO/6 (2006) [hereinafter Concluding Observations on Ukraine], ¶4.

30. Human Rights Committee, Concluding Observations on Kosovo, U.N. Doc. CCPR/C/UNK/CO/1 (2006) [hereinafter Concluding Observations on Kosovo], ¶13; and Concluding Observations on Sri Lanka, U.N. Doc. CCPR/CO/79/LKA (2003) [hereinafter Concluding Observations on Sri Lanka], ¶9.

31. The Convention Against Torture, supra note 28, Article 13. See also, U.N. General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34 (29 November 1985), ¶6(d): “taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation”.

32. Human Rights Committee, Delgado Paez v. Colombia, Communication No. 195/1985, U.N. Doc. CCPR/C/39/D/195/1985 (1990), ¶5.5.

33. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

34. Communication on Rajapakse v. Sri Lanka, supra note 27, ¶9.7.

35. Ibid., ¶11.

36. Concluding Observations on Bosnia Herzegovina, supra note 29, ¶13; and Concluding Observations on Ukraine, supra note 29, ¶4; Concluding Observations on Kosovo, supra note 30, ¶13; and Concluding Observations on Sri Lanka, supra note 30, ¶9.

37. Communication on Rajapakse v. Sri Lanka, supra note 27, ¶9.7.

38. Ibid., ¶5.5: He referred to the recent murder of a torture victim, Mr. Gerald Perera, in mysterious circumstances just a few days before a hearing in the High Court of Negombo, where he was to provide testimonial evidence against seven police officers accused of having tortured him, and fears the same fate. According to the author, Mr. Perera was assassinated on 24 November 2005, and during the criminal inquiry into the case, several police officers admitted that his murder was motivated by fears that they may go to jail if he had given evidence against them in the Negombo High Court. Threats to the author had continued and he had been forced into hiding to protect himself against harm.

39. Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak (Mission to Sri Lanka 26 February 2008), ¶ 73.

40. For further analysis in this regard see Aruni Jayakody, ‘Victim & Witness Protection The Need For Further Reform’ (2015) South Asian Centre for Legal Studies, http://sacls.org/resources/publications/reports/victim-witness-protection-the-need-for-further-reform (accessed on 31 May 2017) [hereinafter VWP: The need for further reform].

41. Ibid.

42. ‘Sri Lanka: Witness Protection Bill Finally Comes To Parliament’ (20 February 2015) Sri Lanka Brief,
http://srilankabrief.org/2015/02/sri-lanka-witness-protection-bill-finally-comes-to-parliament/ (accessed on 1 June 2017). Joining the debate, Minister Lakshman Kiriella tabled a 2008 Hansard report which said that the Witness Protection Bill was taken up in Parliament earlier and pointed out that therefore it was not necessary to have Advisory Committee approval to present the Bill in Parliament.

43. Randima Attygalle, ‘Victim and Witness Protection Law finally through’ (28 February 2015) The Island, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=120448 (accessed on 1 June 2017). "Even on this occasion, the Bill was challenged in the Supreme Court and several additional recommendations were made. Finally, when it was placed before Parliament, incorporating those recommendations, Parliament was prorogued. It was challenged in the Supreme Court twice and finally passed a few days ago," said Kamalini de Silva, Secretary to the Ministry of Justice, explaining the rocky road that had to be traversed.

43. See, e.g., Namini Wijedasa, ‘Victims and Witnesses: No protection, but persecution’ (31 July 2016) Sunday Times, http://www.sundaytimes.lk/160731/news/victims-and-witnesses-no-protection-but-persecution-202919.html (accessed on 3 February 2016).

44. ‘Launch of National Authority for Protection of Victims, tomorrow’ (7 January 2017) News.lk, http://www.news.lk/news/business/item/11659-launch-of-national-authority-for-protection-of-victims-tomorrow (accessed on 1 June 2017).

45. ‘Sri Lanka Police Officially Establishes the Division for Assisting and Protecting Victims of Crime & Witnesses’, Sri Lanka Police, http://www.police.lk/index.php/special-events-/2181-sri-lanka-police-officially-establishes-the-division-for-assisting-and-protecting-victims-of-crime-a-witnesses (accessed on 2 June 2017).

46. Namini Wijedasa, ‘New police division to be opened soon to protect crime victims and witnesses’ (11 September 2016) Sunday Times, http://www.sundaytimes.lk/160911/news/new-police-division-to-be-opened-soon-to-protect-crime-victims-and-witnesses-208415.html (accessed on 3 February 2016).

47. Ibid., “The Authority has already received five representations from victims or witnesses requiring protection, Deputy Solicitor General Yasantha Kodagoda said this week at a public forum organized by the Bar Association of Sri Lanka on understanding the Victims and Witness Protection Act”.

48. The Assistance to and Protection of Victims of Crime and Witnesses Act of 2015, [hereinafter VWP Act], § 11.

49. The Assistance to and Protection of Victims of Crime and Witnesses Act of 2015, [hereinafter VWP Act], § 11.

50. Ibid., §19(1).

51. The VWP Act, supra note 49, § 13(1)(q).

52. Ibid., §13(1)(a).

53. Ibid., §13(1)(f).

54. Ibid., §13(1)(e).

55. Ibid., §13(1)(h).

56. Ibid., §13 (1)(i).

57. Ibid., §13 (1)(m).

58. Ibid., §13 (1)(s).

59. Ibid., §13(1).

60. The VWP Act, supra note 49, §12(1).

61. Ibid., §12(1)(b).

62. Ibid., §19(2).

63. Ibid., §20.

64. Ibid., §19(2)(b).

65. VWP: The need for further reform, supra note 40.

66. Ibid., p.7

67. The VWP Act, supra note 49, §19 (3)(b).

68. VWP: The need for further reform, supra note 40, pp. 9,10.

69. Chris Mahoney, ‘The Justice Sector Afterthoughts: Witness Protection in Africa’ (2010) Institute for Security Studies, p. 105.

70. Ibid., p. 106.

71. The VWP Act, supra note 49, §20(3) and 20(4).

72. ‘Final Report of the Consultation Task Force on Reconciliation Mechanisms’ (17 November 2016), pp. 412-413.

73. The VWP Act, supra note 49, §12(1).

74. Ibid., §§12 (2), (2)(b).

75. Ibid.

76. Comparable legislation in Indonesia, Philippines and Kenya has stipulated clear threat assessment criteria in the legislation themselves. See in this regard Law of the Republic of Indonesia Concerning Witness and Victims Protection Number 13, 2006, section 28; Witness Protection Act Kenya, 2012, section 6; Act No. 6981, An Act Providing for a Witness Protection, Security and Benefit Programme and for Other Purposes, 24 April 1991, section 3.

77. VWP: The need for further reform, supra note 40, p.24.

78. U.N. Office on Drugs and Crime, Good Practices for The Protection of Witnesses in Criminal Proceedings Involving Organized Crime (2008) [hereinafter U.N. Good Practices], p.4.

79. The VWP Act, supra note 49, §46 : “Commission” means— (a) a Commission of Inquiry appointed under the Commissions of Inquiry Act, (Chapter 393) ;(b) a Special Presidential Commission of Inquiry established under the Special Presidential Commissions of Inquiry Law, No. 7 of 1978 ; (c) the Commission to Investigate Allegations of Bribery and Corruption established by the Commission to Investigate Allegations of Bribery or Corruption Act, No. 19 of 1994 ; and(d) the Human Rights Commission of Sri Lanka established by the Human Rights Commission of Sri Lanka Act, No. 21 of 1996.

80. Ibid., §24(2) (a): “With the view to protecting the interest of vulnerable victims of crime or witnesses, a Commission may, after prior notice to the Authority, acting on a request by a victim of a crime or a witness or on its own motion by itself or with the assistance of any designated public officer, directly provide protection to such a victim of crime or a witness, whose statement or testimony the Commission intends to record or has already recorded.”

81. As per Article 170 of the Constitution a public officer” means a person who holds any paid office under the Republic other than a judicial officer, but does not include –

(a) the President; (b) the Prime Minister; (c) the Speaker; (d) a Minister; (e) a Deputy Minister; (f) a Member of Parliament; (g) a member of the Constitutional Council; (h) a member of the Judicial Service Commission; (i) a member of the Public Service Commission; (j) a member of the Election Commission; (k) a member of the National Police Commission; (l) a member of the Audit Service Commission; (m) a member of the Human Rights Commission of Sri Lanka; (n) a member of the Commission to Investigate Allegations of Bribery or Corruption; (o) a member of the Finance Commission; (p) a member of the Delimitation Commission; (q) a member of the National Procurement Commission; (r) the Secretary-General of Parliament; (s) a member of the staff of the Secretary-General of Parliament; (t) a member of the University Grants Commission; (u) a member of the Official Languages Commission; and (v) the Auditor-General.

82. The VWP Act, supra note 49, §24(3).

83. See case studies in U.N. Good Practices, supra note 78.

84. U.N. Good Practices, supra note 78, p. 46; ‘Witness Protection in Nepal : Recommendations from International Best Practices’ (August 2011) International Commission of Jurists, http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/05/Nepal-witness-protection analysis-brief-2011.pdf (accessed 20 November 2016), [hereinafter Witness Protection in Nepal], p.56.

85. Report of the Office of the High Commissioner for Human Rights, Right to Truth, 12th Session, U.N. Doc. A/HRC/12/19 (2009), ¶51.

86. U.N. Good Practices, supra note 78, p. 46; Witness Protection in Nepal, supra note 84, p.56.

87. Dr. Yvon Dandurand & Kristin Farr, ‘A Review of Selected Protection Programs’ (2010), publications.gc.ca/collections/collection_2011/sp-ps/PS4-96-2010-eng.pdf (accessed on 1 June 2017), [hereinafter A review of Selected Protection Programs], p.40. In Australia, a Witness Protection Coordinator applies to a Witness Protection Committee for the placement of a witness in the NWPP. This committee is comprised of the Deputy Commissioner of National Security, as well as two senior AFP officers. Together, these make recommendations to the AFP Commissioner on the entry and exit of witnesses in the program.

88. Ibid., p. 23; See also Witness Protection Program Act (1966) [hereinafter Canada WPPA], article 5.

89. Ibid.; See also Australia, Witness Protection Act 1994, section 8(1): “The Commissioner has the sole responsibility of deciding whether to include a witness in the NWPP, including cases where an approved authority has requested that a witness be included in the NWPP”.

90. Colombia: Resolution of the Office of the Attorney General, No. 0-5101 of 2008 [hereinafter Colombia Resolution], article 1.

91. Witness Protection in Nepal, supra note 84, p. 66.

92. Witness Protection Act Kenya (2012) http://www.unodc.org/res/cld/document/ken/witness-protectionact_
html/Kenya_Witness_Protection_Act_Revised_Edition_2012.pdf (accessed on 1 March 2017), section 7.

93. U.N. Good Practices, supra note 78, p.15. Regulates the functions and duties of the Director, including the power to decide on admission to the program. The Director’s decision is based on the recommendations of the branch office head and the relevant officials from law enforcement agencies and the National Prosecuting Authority.

94. Medhaka Fernando, ‘Operational models for victim and witness protection within transitional justice: Part II’ (16 March 2017) DailyFT, http://www.ft.lk/article/603668/Operational-models-for-victim-and-witness-protection-within-transitional-justice--Part-II.

In the majority of national protection programs, threat assessments are carried out by the witness protection unit alone. This has the advantage of guaranteeing the impartiality and independence of the threat assessment process

95. See laws in South Africa, Italy, Germany.

96. U.N. Good Practices, supra note 78, pp. 10-11.

97. Ibid., p.15

98. Council of Europe, supra note 2 ¶ 28.

While respecting the fundamental principles of administrative organisation of each state, staff dealing with the implementation of protection measures should be afforded operational autonomy and should not be involved either in the investigation or in the preparation of the case where the witness/collaborator of justice is to give evidence. Therefore, an organisational separation between these functions should be provided for. However, an adequate level of cooperation/contact with or between law-enforcement agencies should be ensured in order to successfully adopt and implement protection measures and programmes.

99. Canada WPPA, supra 88, article 5.

100. Ibid., article 14.

101. Colombia Resolution, supra note 90, article 1.

102. Ibid., article 11.

103. Ibid., art. 5. (The Head of the Office of Protection and Assistance is the Director of the Program who, for the fulfillment of its legal and regulatory functions, will order, channel and decide the policies set by The Attorney General of the Nation in the matter); art. 10 (exceptionally, the Director of the Program shall provide for the conditional protection of victims and witnesses of the criminal action for a period not exceeding three (3) months); art. 9 (Once the immediate measures of protection have been decreed by the Director of the Program).

104. VWP: The need for further reform, supra note 40.

105. Zimbabwe Human Rights NGO Forum, ‘The Need for Witness Protection and Transitional Justice in Zimbabwe’, (September 2015).

106. Under certain circumstances justice collaborators (A person who has taken part in an offence but who has knowledge and information vital for the prosecution could sometimes be offered leniency in exchange for his/her testimony) would need to be detained and safeguarded pending the trial.

107. INPROL, ‘Witness Protection in Countries Emerging from Conflict’, (2007) www.inprol.org (accessed on 7 May, 2015).

108. International Truth and Justice Project, ‘Putting the Wolf to Guard the Sheep: Sri Lanka’s Witness Protection Authority’.

109. U.N. Good Practices, supra note 78, p. 49

110. U.N. Office on Drugs and Crime, ‘Toolkit to Combat Trafficking in Persons’, (2008) https://www.unodc.org/documents/human-trafficking/HT_Toolkit08_English.pdf (accessed on 2 June 2017). pp.231-32.

111. For the distinction between protection and assistance measures see Introduction: Part I

112. In Canada, provincial and municipal police forces have the power to maintain their own witness protection programs, parallel to the national protection program administered by the Royal Canadian Mounted Police. See A Review of Selected Protection Programs, supra note 87, p.23. Similarly, Australia gives each of its states the right to carry out their own witness protection programs with the assistance of state-level police forces (See A Review of Selected Protection Programs, supra note 87, p. 21-22).

 

Published in Reports

Sri Lanka has long played host to a culture of impunity, aggression and oppression which have stymied justice and transparency. The judicial system has also been characterized by a lack of competence and independence. The long list of unpunished murders, abductions and other crimes against victims and witnesses of state crimes have taken away almost all credibility from the justice process and have heightened the prevailing fear of speaking out. All of this has long been known and quietly acknowledged, but it seemed that nothing could or would be done to change the state of affairs. It seemed certain that victims and witnesses of state crimes would always have to testify amidst possibility of being harmed, and that the responsibility of protection would always have to be secretly arranged by civil society activists and human rights defenders.

Sudden attention was drawn to the matter of victim and witness protection in March of 2015, when, under the new government, Parliament passed the Victim and Witness Protection Act. It is an Act that was long in the making. Its initial draft was released in 2000 and was then revised under two very different governments.

In light of all this, reactions to the Act have been mixed. On the one hand, the passage of the new Act symbolizes a new openness to honest and transparent hearings and judicial proceedings. Through it, the State acknowledges that compensation ought to be given to victims and witnesses and makes provision accordingly. These developments have been welcomed both locally and internationally. However, there were concerns that the Act would not be as effective as anticipated or desired, and that it would be heavily reliant on executive decision makers within the government. Further study has shown that while the Act does bring progress in providing statutory protection and compensation to victims and witnesses, there is an overall lack of independence within the statutory bodies contemplated by its provisions. .

The Act establishes a National Authority for the Protection of Victims and Witnesses as well as a Victims of Crime and Witness Assistance and Protection Division. Under the Act, both these bodies are heavily controlled by executive functionaries which would militate against independence. The “Authority” is to be headed by a Board of Management comprising twelve members. Seven of them are to  be ex officio members of ministries and the remaining five are to be appointed at the discretion of the President. This arrangement leaves the Board being virtually controlled by the government of the day, thereby compromising its autonomy. As Aruni Jayakody points out in “Victim and Witness Protection: The Need for Further Reform”, the Act also fails to provide for the participation of practitioners and experts, privileges state functionaries over civil society activists, human rights defenders and religious leaders who have long been working to provide protection to victims and witnesses. The Authority has the mandate to make general recommendations to other government departments and agencies on the matter of victim and witness protection. However, these recommendations are not binding and even the Division, which has the responsibility to provide the protection required, does not have a legal obligation to follow recommendations issued by the Authority.

Under the Act, the “Division”, headed by a Senior Superintendent of Police nominated by the IGP, has the authority to design and implement a Victims and Witness Assistance Programme according to guidelines issued by the Authority. This Division is mandated with the task of investigating complaints of threat or violations committed against victims or witnesses as well as investigating offences committed under the Act. Given the nature of crimes to be investigated by the Division – which are likely to include criminal activity by state functionaries including the police – it is necessary and desirable that the Division be financially and administratively independent from the regular police hierarchy, and should report to the Authority, be paid by the Authority and be under the disciplinary control of the Authority. In terms of the Act however, the independence of the Division is severely compromised by the fact that it is not insulated from the regular police hierarchy. Instead, it is left open to interference from fellow police officers or their superiors in the chain of command. Bearing in mind the culture of impunity that has plagued the police and security forces, this state of affairs is dangerous as it could place the protection of victims of witnesses of state crimes in the effective control of perpetrators of those very same crimes.

Without effective control by an independent Authority over the Division, a credible victim and witness protection programme cannot established. The flaws in the existing Act threaten to derail any progress possible through the enactment of the Act, but more critically, threaten the safety and security of victims and witnesses it ought to protect.

The mixed reactions to the Act are therefore entirely understandable. The UN’s OISL Report and the Human Rights Council Resolution on Sri Lanka of 2015 reflect this ambivalence. Both documents welcomed the new law on victims and witness protection, but then stressed the importance of reviewing and strengthening the protection afforded by the Act. The OISL Report was particularly critical of the the lack of independence of the Authority and the failure by the Act to insulate the Division from the police command structure. The Resolution welcomed the commitment made by the Sri Lankan government in the Foreign Minister’s speech to review the Victim and Witness Protection Act.

The importance of revising the Act in line with the government’s commitments cannot be overstated. When victims and witnesses participate in Transitional Justice mechanisms – whether judicial or nonjudicial  – they risk revictimization, whether in their interaction with state functionaries, or in their treatment through the trial process. Sri Lanka’s recent history has seen police and security personnel prioritize administrative efficiency at the expense of victims and witnesses, while in other cases they threaten and pressure witnesses and their families to drop human rights cases or to stop them from participating in proceedings. Were these violations to occur in relation to the functioning of the Special Court, the Truth Commission or the Office of Missing Persons, the mechanisms would turn into sham procedures, notwithstanding other positive features. Victims and witnesses whose testimony could bring to light important information would be too afraid to publicly denounce the wrongdoers, who would then evade justice yet again. The lack of independence in a victim and witness protection programme could undermine all efforts to look at the past honestly and constructively. Seeing how vital the immediate revision of the Act is, we cannot let it rest on the back burner. Swift progress in revising the Act must precede the establishment of Transitional Justice mechanisms. In planning out their course of action, the government must be pressured to fulfill its promised, and to do so now. Victims and witnesses must be able to participate in the coming mechanisms with an assurance that the State bears responsibility for their protection, that they will be fairly compensated for the harms suffered and that they will not be harmed by outside parties or by the Division assigned for their protection. To delay the revision of the Victim and Witness Protection Act 2015 is to prolong fear. To prolong fear is to deny truth and justice.

Published in English

1. Introduction

The Assistance to and Protection of Victims of Crime and Witnesses Act (the Act) was passed by the Sirisena administration in February 2015. On several counts, the Act marks progress. First, it provides for a range of statutory rights that seek to facilitate victims‟ participation in the criminal justice process. Second, for the first time, it establishes a witness protection program. However, a close look at the Act reveals that there are number of shortcomings in the institutional arrangements underpinning the Act. The two bodies created to implement the Act lack adequate independence. The first body, a National Authority for the Protection of Victims and Witnesses (the Authority) largely consists of senior public servants holding office ex-officio. The Authority has significant powers to set normative standards relating to protection issues, as well as to oversee the implementation of the Act. Thus, it is imperative that there be strong leadership with relevant skills and experience, that can establish a strong victim and witness centered approach within the organization. The second body, a Victims of Crime and Witness Assistance and Protection Division (the Division), established by the Inspector General of Police (IGP), is not mandated to be independent from the rest of the police force. This is highly problematic given that historically, the police have been accused of perpetrating threats and reprisals against victims and witnesses.

The first part of this paper examines the institutional arrangements underpinning the Act. Section one examines the composition, mandate and powers of the Authority, as well as the functions of the Division and argues that there are insufficient safeguards to ensure their operational autonomy.

The second part examines the range of victims‟ rights provided under the Act against international standards. The Act facilitates a range of rights for victims, including a right to redress, right be kept informed, right to participation in the criminal justice process and right to compensation. Each of these rights are assessed against international standards, and the practice of comparative jurisdictions.

Additionally, the Act creates a witness protection scheme, largely following international best practice when it comes to the specific protective measures available. However, there is a missing piece, in that it does not specify what criteria should be taken into account when determining whether a witness should be given protection. This problem is made worse by the fact that the Division created within the police force to implement the protection scheme is insufficiently independent.

Finally, the third part of this paper examines the current political context, and argues that significant political will and financial resources are required to implement the Act. Given the historical context where law enforcement authorities have been repeatedly accused of perpetrating abuse, it is essential that the government advance wider institutional reform. Another important consideration is the fact that the government has promised a “credible domestic mechanism”.1 No matter what shape such a mechanism takes, strong victim and witness protection must be a pre-condition to any transitional justice mechanism. Therefore, reforms to the Act, and its implementation must be a priority for the new Government.

2. Background and rationale for Victim and Witness Protection

In addition to the direct physical, mental, and material harm suffered by victims of crime, they can also experience secondary forms of victimization through their participation in the criminal justice process. This type of re-victimization can take place through their interactions with law enforcement officials as well as through their treatment during the investigation and trial process. At times law enforcement officials and judicial officers may prioritize administrative convenience over the interests of the victims. In response, criminal justice systems around the world, have developed standards that seek to promote the best interests of the victim at every stage of the criminal justice process. Similarly, the ability of witnesses to come forward with information and to testify during trial is critical to the success of criminal trials. In response, many countries around the world have adopted protection frameworks to facilitate witness participation in the criminal justice process without fear of intimidation or reprisals.

In Sri Lanka, for many decades, the lack of any witness and victim protection framework has been a key concern undermining the criminal justice system. There have been numerous cases of law enforcement authorities and others intimidating or otherwise pressuring victims, witnesses and their families to either drop human rights cases, or stop them from participating in proceedings.2 One of the most infamous attacks on a witness was the murder of Gerard Perera. In 2004, Gerard Perera, was mistakenly detained and tortured. Upon his release Perera, successfully filed a fundamental rights case. Pursuant to the findings in the fundamental rights case, six police officers were indicted under the Prevention of Torture Act. Perera was the principal witness in the case, and was summoned to provide evidence before the High Court. Tragically, a week before he was due to appear in court he was shot whilst travelling on a bus and later died from his injuries. Subsequently, the same police officers who were accused of torturing Perera, were indicted for having played a role in his death. Similarly, in the well-known case of the death of five students in Trincomalee, Dr. Manoharan, the father of one of the deceased and one of the main witnesses, was repeatedly threatened, and was ultimately forced to leave the country.3 An analysis by one scholar of judgments of the High Court where acquittals were handed down of police officers responsible for extra-judicial executions and enforced disappearances during the 1980s, suggested that one of the main reasons for the acquittals was the inconsistent testimony provided by witnesses.4

The treatment of witnesses and victims before non-judicial commissions of inquiry has also been a serious concern. Successive commissions of inquiry have been accused of failing to treat victims and witnesses with respect and fairness. Most commissions have also been criticized for their failure to adopt strategies to protect victims and witnesses at the outset of their work. The Lessons Learnt and Reconciliation Commission was criticized for its inability to get witnesses to come forward, as witnesses did not have confidence in the work of the commission, owing in part to the lack of a framework to protect victims and witnesses.5 Even the Presidential Commission to Investigate into Complaints Regarding Missing Persons has been questioned by civil society groups over its failure to adopt a victim and witness protection framework.6

Given this background, there has been a long interest in developing a formal victims and witness protection framework. Initiative for drafting a bill came from S. S. Wijeratne of the National Centre for Victims of Crime.7 In 2000, the Law Commission completed an initial draft. In 2005, the process commenced again, this time under the leadership of the then Solicitor General C.R. de Silva. A second draft was completed in 2007, and members of civil society highlighted a number of shortcomings.8 In fact as late as September 2014, when the Rajapaksa administration tabled a revised version of the 2007 draft before Parliament, members of civil society criticized a number of aspects of the bill.9 Despite these long standing objections, the Sirisena administration passed the same bill that was tabled by President Rajapaksa in September 2014.

Part I: Institutional Arrangements

1. The Authority

The Act establishes a National Authority for the Protection of Victims of Crime and Witnesses (the Authority).10 The administration and management of the affairs of the Authority is vested in a Board of Management (the Board).11 The Authority has broad powers to set normative standards in relation to victim and witness protection as well as to oversee the implementation of the Act.

a) Composition

The appointment mechanism for the Board of Management that manages the affairs of the Authority strongly favours the state. The Board of Management is constituted of twelve members, of which seven are „ex officio‟ members from the ministries of Justice, Police, Women‟s Affairs, Children, a member of the Human Rights Commission and one nominee each from the Attorney-General‟s Department and the IGP.12 The remaining five members are to be appointed solely at the discretion of the President from among persons who have experience in criminology, criminal justice system, promotion and protection of human rights or medicine.13 The President is empowered to appoint a Chairman from among members of the Board at his sole discretion. The Chairman of the Board also acts as the Chairman of the Authority.14 Given Sri Lanka‟s history of politicization of the public service, this appointment process could result in a situation where all of the Authority‟s members have close political associations with the Government. Further, the current criteria for becoming a member of the Board of Management does not place sufficient emphasis on practitioners and experts including persons with background in social services from the non- government sector.

The inclusion of persons from the non-government sector is particularly important to ensure the effective functioning of the Authority. To date, the non-government sector, in particular civil society activists, human rights defenders and church leaders have facilitated victims‟ participation in the criminal justice process, as well as protected them from reprisals where necessary. In the past, many victims and witnesses have reached out to members of civil society to seek protection when they have feared reprisals. Thus, these stakeholders who already have a significant body of experience carrying out protection work should be included, and their expertise drawn on when implementing the Act.

As seen below, Board members have significant power to set normative standards relating to protection issues. Thus, a strong Board composed of members with experience and knowledge in protection issues is critical to the proper functioning of the Authority. Additionally, there is a tendency within national institutions, including the Human Rights Commission, to privilege executive convenience and the perceived rights of state functionaries over the rights of citizens. In this context, internalizing a rights based approach with the Authority is of critical importance and will require leadership committed to that approach.

The Act further provides that the Board shall appoint the Director-General of the Authority. The Director-General must be a person professionally qualified and experienced in a “professional activity associated with the criminal justice system or law enforcement”.15 The Director-General is responsible for carrying out all duties necessary for the management and administration of the affairs of the Authority.16 The Board may delegate any functions and powers of the Authority to the Director-General. In particular, the Director-General is responsible for managing the accounts of the Protection Fund, out of which compensation is to be paid to victims.17 In practice, much of the norm setting powers assigned to the Board could be exercised by the Director-General. Therefore, it is imperative that a person of the highest integrity with a strong protection background is appointed to the post.

b) Mandate and powers

The Authority has a mandate to “develop, adopt and implement a scheme for providing assistance and protection to victims of crime and witnesses.”18 It has a broad mandate to promote best practices, develop codes of conduct, develop guidelines and make recommendations to other government departments and agencies.19 This includes a specific mandate to “sensitize public officers” including the police, Prisons Department, government medical officers, and public officers associated with probation and social services.20 The mandate further extends to conducting research into reducing incidences of crime, and ways of minimizing the impact of crime on victims and witnesses.21

Despite these broad powers to make recommendations, they are not binding on other public institutions or officials. In instances where a person or agency receiving the recommendation is unable to give effect to a recommendation, they are only under an obligation to notify the Authority and provide an explanation.22 In contrast, the Authority‟s powers to make orders or recommendations pursuant to an investigation into an alleged infringement of a right or entitlement of a victim or witness are binding.23 This inability to make generally binding recommendations is problematic given that the Division of the police charged with implementing the witness protection scheme is not legally mandated to be an independent branch within the police. Thus, given that the Division is not under a legal obligation to follow general guidelines set by the Authority, the Division is provided a significant degree of discretion in how it chooses to carry outs its functions and can similarly be vulnerable to external political interference in carrying out its work.

The Authority has broad powers to conduct investigations into alleged or imminent infringement under the Act.24 For example, it can require persons to appear before the Authority, request documents, inspect premises, as well as make appropriate orders and direct, advice or recommend adoption of such measures for the promotion and protection of the rights of victims and witnesses.25 Where a person or a public official fails to comply, they can be found to be guilty of an offence of contempt of Authority.26 In such cases, the Authority provides a certificate of its findings to the Supreme Court. This certificate may be received in evidence without additional proof by the Supreme Court which is empowered to punish the offender, unless the contrary is proved.27

The Authority has important powers to “appoint, dismiss and exercise disciplinary control over officers, consultants and advisors”.28 Additionally, the Authority is to have its own fund, out of which it could fund its expenses.29 Together these two provisions significantly strengthen the independence of the Authority. However, these provisions that provide for an independent staff are at odds with the leadership of the Authority, which primarily constitutes high-level public servants holding office ex-officio. If the leadership of the Authority is not independent of Government, it is unlikely that the outlook and overall work of the organization would also be independent.

2. The Division

The Act mandates the IGP to establish a “Victims of Crime and Witness Assistance and Protection Division” (the Division). This Division has the authority to design and implement a Victims and Witness Assistance Program, in compliance with guidelines provided by the Authority.30 The Division is to be headed by a Senior Superintendent of Police nominated by the IGP.31 In particular, the Division is under duty to investigate, by itself or with the assistance of any other police officer, complaints relating to threats, reprisals, harassment or a violation committed against victims and witnesses of crime. The Division is also under a duty to investigate any of the offences under the Act.32

However, there are no provisions guaranteeing the autonomy or independence of this Division from the hierarchy of the police. As noted above, the Authority issues recommendations and provides guidelines to other government agencies including the police and the Division on how to discharge their duties. However, given that the Authority‟s general recommendations are not binding the Division has significant discretion in how they carry out their work. Additionally, given the deep politicization of Sri Lanka‟s public institutions, this discretion does little to protect the Division from external interference in carrying out its work.

In some jurisdictions including in Australia, New Zealand and Canada, witness protection is a police function. In others such as Colombia and the Netherlands, witness protection is carried out by an independent unit within the relevant ministry, for example the ministry of justice or the interior. In a third approach, witness protection is charged to a multidisciplinary body comprising representatives from related fields including law enforcement, and the office of the prosecutor. The United Nations Office of Drugs and Crimes (UNODC), which has developed best practices in establishing witness protection, recommends that there must be organizational and administrative autonomy for the unit administering the protection program.33 Especially, where the unit is located within the police it must be operationally isolated from other law enforcement branches conducting investigations and prosecutions.

In the Bribery Commission, police officers are similarly „loaned‟ to the Commission. Throughout their time within the Bribery Commission, the police officers remain part of the police department and report to the IGP. In practice, this has meant that IGP has the power to recall these police officers at any time, potentially undermining any on-going investigations.34

The functions of the Division are such, that police officers within the Division would sometimes be expected to provide protection to victims and witnesses in cases against fellow members of the police or other public officials. In the absence of demonstrable independence, this is highly problematic. Lack of independence in how the Division functions in practice can result in re-victimization of the victim, reduce the willingness of witnesses to testify, and ultimately undermine the success of criminal prosecutions. It may well be that over time, with significant institutional reform and sustained political will, the police force would be modernized and strengthened into a public institution that has the trust and confidence of the public. However, such reform is yet to take place.

If officers of the police force are to constitute this Division, they must be administratively and financially independent from the control of the police hierarchy. For example, there must be provisions to ensure that such officers answer directly to the Director-General and the Board for the duration of their service within the Division. Similarly their salaries should be paid by Authority. Further, disciplinary control over officers serving in the Division must lie with the Authority and not the IGP.

3. Offences

In addition to creating statutory rights for victims, the Act also proscribes certain types of conduct. It is an offence to threaten a victim or witness or “any other in whom such victim or witness has an interest” with the intention of causing alarm, or causing the victim to refrain from lodging a complaint or testifying.35 Thus, the Acts makes it an offence to threaten the relatives, dependants and any other person closely associated with the victim or witness. It is also an offence to voluntarily cause hurt to a victim or witness with the intention of causing them to refrain from lodging a complaint, testifying, or to compel them to withdraw a complaint or in retaliation for a statement made or testimony that has been provided.36 These are important provisions, as in the past, there have many instances where victims have been attacked either in retaliation or with the intention of compelling them to drop a complaint.37 The Act further prohibits causing grievous hurt or wrongfully restraining a victim or witness.38

It is further an offence for an alleged suspect to give “gratification” to any other person with a view to preventing the institution of criminal proceedings.39 It is similarly an offence for a victim or witness to provide false information to the relevant authorities, with the intention of obtaining assistance.40

The provisions setting out offences do not address circumstances where public officials violate the rights of victims and witnesses in the course of their duties. This is a striking omission given the high-profile attacks against victims and witnesses perpetrated by public officials.41 This problem could be remedied by a provision identifying wrongful conduct by public officials as an aggravating factor attracting a higher penalty. Such a provision would send a strong message to public officials as well as victims and witnesses that the Act represents a break from the past and a commitment to ending impunity for official wrongdoing.

Part II: Assessing the protection against international standards

A number of non-binding international legal instruments have laid out standards relating to how victims should be treated at the investigation stage and during the trial process. The main instrument among these is the United Nations Declaration on Basic Principles of Justice for Victims of Crimeand Abuse of Power (the Basic Principles).42 International instruments advocate a number of key principles in the treatment of victims: access to justice and fair treatment; restitution from the offender; where the latter is not available, compensation from the state; and assistance to victims. At its core, these principles call on public officials to treat victims with compassion and in a manner that respects their dignity.

2.1 Rights of Victims

A range of rights of victims – both procedural and substantive – are recognized in the Act. These include the right to be treated with fairness 43; the right to redress;44 the right to be protected from harm45; and the right to be medically treated for any mental or physical harm.46 There are also a range of rights that provide for the victim to be informed and participate at various stages of the criminal justice process including at the investigation, trial and sentencing stages. The Act further provides that it “shall be the duty” of every public officer including members of the armed forces, police officers and every judicial officer to recognize, protect and promote the rights of victims and witnesses identified under the Act.47 By casting victims‟ rights under a framework of statutory rights, the Act opens the door to the enforcement of these rights through the writ of mandamus – a common law remedy available to enforce the performance of a public duty.48

a) Definition of a victim

The Basic Principles defines a victim as any person who individually or collectively, has suffered harm including, physical or mental injury, emotional suffering, economic loss or substantial impairment of fundamental rights, through acts or omissions that are violations of criminal laws operative within a state.49 A person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted.50 The definition of victim also includes immediate family, dependants of the direct victim, and persons who have suffered harm in intervening to assist victims in distress.

The Act broadly complies with this definition. A victim is defined as any person who suffers any injury, whether physical, mental, emotional, economic or other loss as a result of “an act or omission which constitutes an alleged offence under any law” or infringement of the fundamental right to be free from arbitrary detention under the constitution.51 Under the Sri Lankan constitution, law is defined only to include “any of Parliament and any law enacted by any legislature at any time prior to the commencement of the Act”.52 Thus, this excludes the victims of international crimes such as war crimes and crimes against humanity which have hitherto not been incorporated in Sri Lankan law. Notably however, as the Act links the definition of a victim to “an alleged offence”, the Act expands the protection under the Act to instances where the perpetrator has not been identified, investigated, prosecuted or convicted.

Under the Act, the definition of victim also includes “any person who suffers harm as a result of intervening to assist a person or to prevent the commission of a crime”. It further extends to the parent or guardian of a child victim, any member of the family and next of kin of a victim, dependents and any other person of significant importance to the victim. 53 The inclusion of “any other person of significant importance” goes beyond the protection afforded in the Basic Principles, and potentially includes for example, the unmarried partner of a victim.54

b) The right to redress

International standards provide that victims are entitled to access “mechanisms of justice” and “prompt redress”, as provided for by domestic legislation.55 Victims should also have access to redress through formal or informal procedures that are “expeditious, fair, inexpensive and accessible”.56 The Act echoes this language and provides that victims have the right to receive “prompt, appropriate and fair redress”57. Most jurisdictions around the world have adopted a similar approach and only permit the state to conduct prosecutions. However, in a small number of jurisdictions the right to redress is applied more broadly to allow for victims to act as a „subsidiary prosecutor‟.58 In such instances, the victim has the right to submit evidence, ask questions during the proceedings, and make observations on evidence submitted in court.59

Under the Model Code of Criminal Procedure, victims have the right to request that the Prosecutor pursue a specific investigation, collect certain evidence or take other specific measures.60 The Prosecutor is not required to comply with such requests, but must give them „due consideration‟.61 In some jurisdictions, victims may request that a superior of the prosecutor review the decision not to prosecute. In other countries including France and Israel, the victim may bring a claim to court challenging the prosecutor‟s decision.62 Where the victim is successful, the State is required to initiate prosecutions. In Sri Lanka, the victim‟s right to redress is at times adversely affected by a decision of the Attorney- General not to prosecute.63 In a number of high-profile cases, the Attorney-General has been accused of failing to properly investigate and prosecute criminal conduct, including violations of fundamental rights.64 Under the code of criminal procedure, individuals have the standing to bring a private plaint before the magistrate‟s courts.65 However, there are a number of legal and practical restrictions on the exercise of private plaints. Private plaints cannot be brought against conduct committed by public officials in the course of their duties, and the Attorney-General has the power to take over such plaints.66 A victim may also face significant challenges enlisting the cooperation of other public officials to ensure a successful prosecution. Petitioners attempts to challenge the Attorney-General‟s exercise of discretion, have also met with resistance by the Courts.67

An alternate avenue might be to provide a statutory framework to both challenge and limit the exercise of discretion by the Attorney-General. Legal commentators have recommended that the Attorney-General should be made to give reasons when issuing a nolle prosequi, and where the Attorney-General seeks to exercise discretion in bad faith, the Magistrate should be given power to take appropriate judicial action. Though this solution is not ideal, as bringing claims before courts is time consuming and expensive, if used effectively by interested parties, it could bring significant pressure on the Attorney General to revisit prosecutorial strategies. Overtime, reform within the Attorney-General‟s office must be pursued, with a view to ensuring timely, successful prosecutions.

c) The right to be kept informed

A key component of protection of victims is facilitating their participation in the criminal justice process. To this end, the Basic Principles provides that the State is under an obligation to keep victims informed of their role, as well as the progress of an investigation, a trial, sentencing procedure or any parole hearings.68 Victims must also be allowed to air their views and concerns, be present at appropriate stages of the proceedings, especially where their personal interests are affected.69 Various countries have adopted different models to adopt these standards. France has published a user-friendly book titled “A Guide to Victim‟s Rights”.70 In Australia, Canada and the United States, the police and prosecutors‟ office has assigned staff especially to address the rights of victims.71

The Act provides that the Authority or Division must provide information to victims on civil and criminal remedies that are available to them, including information on any applicable „periods of prescription‟.72 The officer in charge of a relevant police station or any other authority must provide information to the victim of the progress of an investigation.73 Similarly, the officer in charge, the authority conducting the investigation, the Attorney General or the Registrar of the Court must respond to a request from a victim to be kept informed of any dates of the non-summary inquiry, trial, or appeal, as well as the progress of proceedings.74 The relevant authority must respond to a request from the victim to know the dates fixed for the release on bail, discharge of the suspect, institution of criminal proceedings against the accused, as well as the date on which the convict would be released from prison.75 Additionally, where the victim requests such information, the Authority must provide information of any medical or social services or any other assistance that is available to the victim.76 Notably, public institutions are only under an obligation to keep the victim informed, when the latter has requested such information. This may be appropriate in relation to information relating to the criminal investigation and legal proceedings, their dates and progress. Victims may of their own volition decide they do not wish to be kept informed, or take any part in the law enforcement process. However, the state should have a positive duty to provide information to victims on medical and especially other social services available to victims. Given that health care is free in Sri Lanka, victims may naturally seek medical services from the government provider. However, victims may not be equally aware of the availability of other services such as psycho social services to help them recover from psychological trauma, if any.

d) The right to participate in proceedings

International standards provide that victims must have the right to participate in proceedings by being present as well as by making substantive contributions to the investigation and trial process.77 Where necessary, victims are also entitled to assistance, including legal representation in order to fully participate in proceedings.78

The Act facilitates many aspects of the right of participation of a victim during the investigation and trial process. It provides that victims have the right to make a complaint, and to have such a complaint investigated.79 Without prejudice to any on-going investigation, victims also have the right to be legally represented during an investigation and make any „necessary representations‟.80 Victims also have the right to be present at judicial and quasi-judicial proceedings related to the offence, except where the Court, or other relevant authority decides that the victim‟s own evidence would be „materially affected‟ if he hears other evidence or for any other reason justice can only be secured by excluding the presence of the victim during all or part of a hearing.81 Where victims wish to attend the proceedings, they also have the right to receive any assistance required.82 It is unclear what type of assistance this might include. In other jurisdictions, victims are entitled to legal representation as well as practical and emotional support. In India, impecunious victims are entitled to state funded legal aid, if they wish to participate in criminal proceedings.83 In Denmark, Norway and Sweden in addition to legal assistance, victims of sexual assault are entitled to access “support-persons” who provide practical and emotional support when victims participate in proceedings.84

In terms of the Act, victims also have the right to obtain certified copies of Cause of Death Forms, Post Mortem Reports, Medico-Legal Reports, Reports of the Registrar of Finger Prints and any other report of an expert and reports filed in the Magistrates Court by the police.85 However, a Magistrate has the power to refuse such a request, where the release of any of these documents is likely to prejudice an on-going investigation.

The Act also provides victims the right to make written communications or make representations through a legal counsel to the Attorney-General during an on-going investigation as well as judicial proceedings.86 Victims similarly have the right to make written communications or make representations via their legal representative to the investigator conducting the relevant investigation, and to receive a response in return.87 Without prejudice to the prosecution, victims have the right to be legally represented at the non- summary inquiry, trial, appeal, and application in revision stage of the proceedings.88 Where available, victims have the right to be provided with legal assistance for such purposes.89 It is unclear whether this legal assistance is to be provided through counsel from the prosecution‟s office or via a state-funded legal aid mechanism. Given that legal aid in Sri Lanka is already under a significant resource strain, this scheme is likely to limit participation to victims able to afford their own legal representation. It is also notable that the right to make representations is qualified to „written communications‟. This qualifier may further disadvantage many victims who despite being literate may not have the sufficient level of skill to make a meaningful submission to the investigator.

Additionally, the right to make representations is qualified to judicial proceedings, and does not extend to non-judicial inquiries such as commissions of inquiry. Given that victims of crime participate in judicial and non-judicial proceedings, there is no conceivable rational basis for the limitation of the right to judicial proceedings. In this regard, it is notable that commissions of inquiry have been criticized in the past for their cursory and perfunctory treatment of victims and witnesses.90

In terms of providing evidence, a Court or a Commission has powers to take immediate steps to order special measures to protect the rights of a child victim or witness;91 to conduct part or all of the proceedings in camera;92 to adopt necessary measures to prevent the victim being harassed or influenced in any way by seeing the accused at the venue of the proceeding;93 and to prevent the identity of the victim or witness from being disclosed.94

At the sentencing stage, appeal or application in revision stage the victim may make a representation either in person or via legal counsel on the impact the offence has had on them.95 If the convicted person is being considered for the grant of a pardon, or a remission of a sentence, the victim has a right to be informed and make representations via the Authority, on the impact the offence has had on their life.96 In a number of countries around the world, including in Canada, the United States, Australia and Israel, law enforcement authorities make use of a „Victim Impact Statement‟. With the assistance of an investigation officer or the prosecutor, victims fill out a statement detailing how the offence has impacted them physically, mentally or otherwise. This then facilitates the victim‟s perspective to be included in all subsequent proceedings, regardless of whether the victim decides to personally make an intervention.

e) Compensation to a Victim

International standards distinguish between restitution from the offender, and compensation from the state.97 Restitution refers to the offender restoring the victim to the situation he was in before the offence took place. Restitution only addresses financial and other material damage, and cannot for example address situations where there has been a loss of life. Compensation is available both from the State and the offender, to address a broader range of harm suffered by the victim including physical, psychological, economic and other material forms of harm.

The Declaration on Basic Principles provides that, where appropriate, offenders should make fair restitution to victims, their families or dependents.98 Where the offender is not in a position to provide restitution, the State “should endeavor to provide financial compensation” to victims, their families and their dependents.99 This type of compensation is limited to instances where the victim has sustained significant physical or mental injuries.100 The Basic Principles calls on states to encourage the establishment of national funds for compensation of victims.101

The Act provides for a framework of compensation both from the offender and the State. The Authority has a specific mandate to promote the implementation of measures of restitution as a sentencing option in the criminal justice system.102 Upon conviction of a person before a High Court or Magistrate‟s Court, the Court may order the offender to pay compensation to the victim or witness.103 The Act does not specify the relevant grounds of compensation. When assessing the amount, the Court shall consider all relevant information, including a statement from the Government Medical officer to determine the nature and extent of the “damage, loss or harm that victim of crime may have suffered”.104 The court shall also consider submissions from the victim on the impact of the crime on the victim, as well as any compensation that has already been paid to the victim.105 Under the Basic Principles, where a public official in the course of their duties commits an offence, the State is under an obligation to provide compensation to the victim.106 However, a shortcoming of the Act is that it does not contain an analogous provision.

The maximum compensation payable by the offender to the victim is an amount not exceeding one million rupees.107 If the victim receives compensation from the offender, they are not precluded from pursuing a civil claim for damages.108 However, when determining the quantum of compensation, the civil court should take into account the amount that has already been awarded to a victim.109 The possibility of pursuing damages via civil claims is important as it opens the door for victims to pursue damages from parties other than the convict, as well as claim damages for a broader range of losses, for example including future economic loss. The Act is silent on the possibility of joining civil claims with an on-going criminal trial. Commentators as well as actual practice from comparative jurisdictions are divided on this issue, given the potential impact of joining claims on the length of criminal proceedings.110

Separate to court ordered compensation, the victim may also apply to the Authority for compensation.111 The Act provides for the establishment of a “Victims of Crime and Witness Assistance and Protection Fund” (Protection Fund), to be administered by the Board.112 The Fund may receive contributions from Parliament and gifts and donations from other local and foreign sources.113 However, there is no obligation on Parliament to regularly contribute money to the Fund. Additionally courts may deposit fines paid pursuant to convictions into the Protection Fund. Other jurisdictions also rely on mixed sources of funding, including both Government contributions as well as donations from private sources. Some countries such as France have successfully implemented more unorthodox fund raising options such as requiring a mandatory levy from each personal insurance policy.114

The Board has the power to determine the amount of compensation to be paid in instances where victims have suffered for any physical or mental harm or loss or damage to property.115 The Board does not seek to compensate for economic loss; this is in line with the standards articulated in the Basic Principles, which also limits compensation to any physical or mental harm or damage to property.116 The Board may also award compensation to the victim‟s dependent, family members or next of kin, where the victim has died or has been mentally incapacitated.117 Notably, the Act does not limit compensation from the Board to instances where the offender is unable to provide compensation. Further, Board ordered compensation is also not limited to instances where there has been a conviction. Thus, in the event the Board is able to raise funds for the Protection Fund, victims would be able to access a limited amount of compensation in a timely manner.

Additionally, separate to compensation from the Court or the Board, a victim is entitled to receive a sum of money from the Authority in consideration of any expenses incurred as a result of the offence committed, including costs associated with participating in any proceedings. It is unclear what this includes, and for example, whether it would cover at least the partial cost of the victim‟s legal representation. The Act further provides that a victim of crime is entitled to claim from the state any medical services, mental health services and rehabilitation services.118 However, this is subject to “resources being available with the State”.119 Where resources are unavailable with the state, the victim may apply to the Authority for financial assistance.120 This provision is overly vague and could potentially be used arbitrarily by decision makers to deny assistance to certain classes of victims. By framing the issue as one of resource availability, the Act fails to regulate or even address the questions of resource prioritization that are inherent in decisions contemplated by the provisions on financial assistance.

f) Privacy of a Victim

The Basic Principles only provides that judicial and administrative mechanisms should protect the privacy of victims.121 The Act does not set out a specific privacy framework for victims and witnesses. When deciding to grant protection, a court or a commission may order measures to prevent the disclosure of the identity of the victim or the witness. This specifically includes the power to direct media institutions, and other specified persons from publishing or disseminating information relating to the identity of the victim or the witness. Additionally, the Act makes it an offence to release information, other than in good faith, relating to victims and witnesses under protection to third parties who may place the life of such a victim or witness in danger.122

Under this limited framework there are no measures in place to protect the identity of victims at the complaint and investigation stage. In particular, there are also no legal protections to safeguard how information collected during the complaint and investigation stage ought to be handled. In other jurisdictions, issues concerning privacy are covered under separate legislation or through a constitutional framework. Sri Lanka does not have a right to privacy under the constitution, and to date has not enacted a statutory framework that protects the privacy of information collected by government institutions.

2.2 Witness Protection

The Act largely follows international best practice when it comes to the specific protective measures available. However, there is a missing element in the Act, in that it does not specify what criteria should be taken into account when determining whether a witness should be given protective measures. This problem is made worse by the fact that the Division created within the police force to implement the protection scheme lacks independence.

a) The Definition of a witness

The model law prepared by the United Nations Office of Drugs and Crime (UNODC), provides that a witness is anyone who has made a statement or has agreed to give evidence in relation to the commission or possible commission of a serious offence.123 The definition also includes any other person who because of their relationship with the person providing the statement or evidence may require protection.124 The Act has a broad definition of “witness” to include anyone who has provided information, lodged a complaint, made a statement in relation to a violation of a fundamental right or a human right; any person who has provided an affidavit or statement in support of a victim of crime; any person who has provided information or a communication to a commission of inquiry; and any person who has reasonable grounds to believe they would be summoned by a court to make a statement, to testify or produce a document.125 The definition of witness also includes any public official who has investigated into an alleged commission of an offence. The definition further expands to include persons such as parents or guardian of a child witness, a family member or dependent of a witness, or “any other person of significant importance to such person”.126

b) Criteria for offering Protection

The Act also does not spell out the criteria for determining a request for witness protection. Where a Court or Commission decides to adopt protective measures, they must do so on “reasonable grounds”.127 When the Division considers whether to admit a victim or witness into a witness protection program the Act merely states that the Division must conduct a “threat assessment”.128 However, there are no further guidelines on what could be considered “reasonable grounds” or a “threat assessment”. The UNODC‟s Model Witness Protection Law, for example, sets out key criteria to be taken into consideration such as 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.129 Additionally, it might also be relevant to consider the witnesses‟ psychological profile and ability by any restrictions imposed by the witness protection program.130

c) Nature and duration of protection

The Act spells out a number of protective measures which are largely in compliance with international best practice. The specific clauses not included, such as protective measures for those administering a witness protection scheme, are presumably included by virtue of the omnibus clause permitting the Authority, Commission or Division to take “any other measure which is deemed necessary”.131 Similarly, the provisions relating to terminating the grant of protection is largely in accordance with international best practice, except that there is no obligation on the Authority, the Division, Court or a Commission to take reasonable steps to notify a witness.132

d) Testimony through Audio-Visual Linkage

The Act provides for a Commission or a Court, as a protection measure or on the grounds of expediency to receive evidence through audio-visual linkage.133 In such instances the victim or the witness must be in a remote location within Sri Lanka, and be accompanied by a public officer.134 The limitation that an individual must be present within Sri Lanka to provide evidence through audio-visual linkage has important consequences for any future truth telling or accountability mechanism. To date, many survivors, witnesses and victims of the conflict have left Sri Lanka, and evidence available to them could be useful in determining the facts of any potential case. Having access to their testimony could prove highly useful to establish facts surrounding crimes committed during and after the war. Those who have left Sri Lanka may well be unwilling to return for fear of reprisals or re-victimization. If testimony via audio-visual linkage from outside of Sri Lanka is not permissible, then important evidence and testimony could be excluded from a future mechanism.

The Court or Commission shall, on the recommendation of the Attorney General or the secretary of the relevant Minister, apply for financial and other resources from the Authority.135 However, this provision is subject to a number of broad exceptions. First, the Attorney General and the Secretary of the relevant Ministry may object on the grounds that doing so would not be in the “national interest” or that it would not be “feasible”.136 The phrase “national interest” is not defined and there are no criteria provided to assess feasibility. In such instances, the Attorney General may recommend an alternative remote location from where the witness could provide testimony.137 Where the Attorney-General expresses an opinion that receiving testimony via audio-visual linkage is “inappropriate”, the Court or Commission is bound by that opinion and the Authority is not required to provide any financial assistance or other resources.138 In practice, these broad powers given to the Attorney-General to object to testimony via audio-visual linkage essentially leaves the decision in the hands of the Attorney General. These unfettered powers given are particularly problematic given credible concerns regarding the politicization of the Attorney-General‟s office in the past.139

4. Protection of specific categories of persons

Taking special consideration of vulnerable classes of persons is critical to any effective victim and witness protection programme. Women, children, elderly, disabled and impecunious victims and witnesses may need special procedures and measures in order to fully facilitate their participation in the criminal justice process. These classes of victims may also be especially vulnerable to certain types of crimes, for example, child abuse and neglect, domestic violence, and sexual violence. Therefore it is important that the relevant authorities are vested with sufficient powers and held to appropriate standards in the interest of mitigating the impact of crime on these groups. The Act provides at the outset that a victim of crime shall have the right to be “treated with equality, fairness and with respect to the dignity and privacy of such a victim”.140 Beyond this, the Act only provides a few special measures to facilitate the participation of children. Presumably, additional guidance as to special measures for vulnerable classes of persons could be provided through regulations. However, the protection afforded to these vulnerable classes would certainly have been stronger if specific measures were included at the outset in the Act.

a) Children

The Act provides that where the victim is a child, he or she should be treated in the manner which ensures the best interests of the child.141 Specifically when offering protection to a child, a Court or Commission could include special measures to protect the rights of the child and to ensure their best interest.142 In practice, more detailed provisions are required via regulations, as well as the implementation of logistical measures, to effectively protect the rights of child victims and witnesses. For example, international best practice provides that special procedures should be used when cross-examining a child; and separate staff trained to provide tailored psycho-social support to children should be present during all stages of the criminal justice process.143

b) Persons other than victims and witnesses that are entitled to protection

An employee of an organization who provides information about the commission of an offence at his place of employment is entitled to protection against any harassment, intimidation, and any loss or damage to his reputation.144 Such employees are further entitled to protection against any adverse changes to their conditions of employment.145 The provision amounts to a limited form of whistleblower protection, allowing public officials to come clean about any misconduct at their place of employment.

3. The Context for Implementation

The Act does not specify a time period within which provisions must come into effect. Rather, it leaves the matter entirely at the discretion of the Minister. At the time of writing, more than six months has lapsed since the passing of the Act; yet no steps have been taken to implement the Act. As the government takes steps towards implementation, a number of logistical, financial and structural challenges must be carefully considered. Additionally, as the government has promised to implement a “credible domestic mechanism” to address questions of accountability relating to allegations of serious crimes by both sides during the armed conflict, the existing victim and witness protection framework must be implemented with consideration as to its role in facilitating such a mechanism.

a) Challenges to implementation

First and fundamentally, implementation of the Act requires significant financial resources. The Authority is to have its own Fund, which it could use for its expenditure. Contributions to the Fund are to come from Parliament and also from among donations, gifts from within and outside Sri Lanka. At the commencement of the Authority‟s work, all, if not most of the funds for the Authority would have to likely have to come from Parliament. The Authority is yet to set up its physical infrastructure, as well as the necessary human resources in order to carry out its work. Similarly, the Authority must have the physical reach to ensure that victim and witness protection is carried out uniformly throughout Sri Lanka, and not just in Colombo, where the Authority is likely to be physically situated. Resource constrains faced by other commissions, the Bribery Commission for instance, has demonstrated that a lack of adequate physical infrastructure and human personnel have contributed to the Commission‟s inability to carry out effective investigations.146 The Bribery Commission has complained that its investigators are overburdened, and are forced to deal with up to 80 cases per annum, when in reality each investigator is able to deal effectively with approximately five cases per year.147

The Act also provides for the rights of victims to access medical and other social services, as well as legal representation at the expense of the State. The implementation of these provisions require significant resources, both financial and human, be invested in the existing Legal Aid Commission, as well as state health and social service providers. The Act further calls for a Victims Fund, which at least at the outset of its operation would require significant contributions from Government. Additionally, the Authority is empowered to provide financial compensation to victims in consideration of expenses incurred by victims during their participation in the trial and investigation process. Clearly, the success of the Authority would largely be determined by the adequacy of the funding made available to it.

As noted at the outset, historically, the law enforcement agencies have had a poor record of protecting the rights of victims and witnesses. Over the past three decades, the police and intelligence services have been accused of breaching fundamental rights, including arbitrarily detaining individuals, committing torture, and aiding enforced disappearances and arbitrary killings. As highlighted by the Gerard Perera case, the police have been accused of intimidating, threatening and attacking victims, witnesses and their families during on-going investigations and as well as during trials. The Attorney General‟s department has a mixed record on conducting prosecutions. For example, within the first fourteen years of Sri Lanka‟s anti-torture law, the Attorney General only initiated four prosecutions despite the wide scale prevalence of custodial torture throughout Sri Lanka.148

The creation of a formal legal framework to protect victims and witnesses is a meaningful step signaling an effort to break from the past. However, additional institutional reforms must be implemented in order to restore the trust and confidence of the public in these two institutions. Law enforcement agencies in particular must take serious steps to implement strict discipline and human rights orientated approach in its work. Current public officials, both within the police and the Attorney-General‟s office must be trained to facilitate the rights of victims. This requires a holistic approach, facilitating a service orientated culture within these institutions that always seek to place the interests of victims at the core their work. If the public does not trust law enforcement agencies, and does not perceive them as safe institutions, then it is unlikely that victims and witnesses will come forward to cooperate with the criminal justice system or to seek their protection.

b) Implication for a Transitional Justice Process

To date the Government has indicated an intention to establish a “credible domestic mechanism” to address demands for transitional justice in Sri Lanka. The details of such a mechanism have not yet been made public. No matter what shape a credible mechanism takes, a strong victim and witness protection framework must be a pre-condition to its implementation.

As noted above, the Act does not cover victims of international crimes. Therefore, a truth commission or a prosecutorial authority investigating international crimes would not be able to automatically rely on the existing victim and witness protection framework. In order to remedy this, in addition to the reforms suggested in this paper, Parliament must incorporate the prohibition of international crimes within Sri Lankan domestic law.

The Act does not prohibit a commission, a court, or a prosecutorial authority from establishing its own victims and witnesses protection unit. Many international and internationalized courts have set up such units.149 Similar to victims who come before the regular criminal justice system, victims before a mechanism established to advance transitional justice must be treated with dignity and respect, and arrangements must be in place to facilitate their active participation. A witness protection program would also be necessary to ensure that victims are protected from reprisals. In practice, a transitional justice mechanism is likely to attract a large number of victims, including victims who have suffered a high degree of trauma over an extended period of time. Additionally, the type of crimes investigated or prosecuted are also likely to be highly politically sensitive, requiring carefully considered protection measures for victims, informants and witnesses.

If a transitional justice mechanism is generously funded, it may be possible for a mechanism to look after its own protection needs. Where that is not the case, existing institutions need to be capable of supporting victims who wish to engage with a mechanism. Often, a transitional justice mechanism can only provide a limited form of protection to victims and witnesses. For example, a well-funded mechanism may be able to provide witness protection for a few essential witnesses. However, witnesses who need long-term protection including re-location and change of identity would have to be supported by existing institutions.

Finally, providing a strong victim and witness protection framework should be viewed as a measure of the „guarantee of non-recurrence‟, a key component in any comprehensive transitional justice policy. Guarantees of non-recurrence aim to transform citizens into rights holders, and restore their faith in public institutions. In this regard, operationalizing a statutory victims‟ rights framework, and instituting reforms within the police and the Attorney-General‟s Department to adopt a victim-centered approach in their work, would be an important mark of progress.

Conclusion

If the new Government is serious about victim and witness protection, then further reform must take place to protect victims and witnesses. Even though the Act represents a step in a positive direction, there are significant gaps that must be addressed if there is to be effective protection of victims and witnesses. The institutional arrangements created to implement the Act lack sufficient safeguards to ensure their operational autonomy. This lack of independence in the structures that administer the protection scheme is particularly problematic given Sri Lanka‟s political context and weak rule of law culture. In particular, the Act facilitates a National Authority that is constituted of ex-officio representatives from various ministries and other appointees directly appointed by the President. The Chairman of the Authority is also appointed solely at the discretion of the President. There is insufficient emphasis on selecting individuals with strong human rights backgrounds including from the non-government sector. Given that historically, civil society stakeholders including religious leaders and human rights defenders have done much of the protection work in Sri Lanka, it is imperative that their experience and expertise be drawn upon in the establishment of a National Authority designed to protect victims and witnesses.

Secondly, the Act provides for the establishment of a „separate‟ Division within the police to implement the protection scheme. A Senior Superintendent of the police is to head the Division. However, there are no provisions to ensure this Division‟s operational independence from the rest of the police. Thus, in effect, this “independent” division would continue to answer to the IGP. The experience of other commissions, that can similarly „burrow‟ police officers, illustrate that the IGP could at will, choose to re- assign police officers at any time, undermining any on-going investigations. Additionally, given that historically, the police have been responsible for perpetrating abuses including against victims and witnesses, there could be institutional attitudes as well as personal conflicts of interest that might adversely impact how victims are treated by the Division. Unless immediate reforms are initiated to ensure the administrative and financial independence of the Division from the rest of the police force, it is unlikely to earn the trust and confidence of the public to effectively carry out its mandate.

The Act lays out a number of rights aiming to facilitate victim participation at all stages of the criminal justice process. However, these rights must be further reformed and strengthened if they are to be truly effective. In terms of witness protection, the major failure of the Act is that it currently does not lay out clear criteria for how to assess whether a victim or witness requires protection. This failure to curtail the discretion afforded to Government actors is made worse by the fact that the Authority and the Board created to administer the protection scheme are not sufficiently independent.

If the government is seriously concerned with victim and witness protection, in addition to reforming and strengthening the Act, it should take immediate steps to reform and operationalise the Act. In particular, significant political will is required to provide the Authority the necessary financial and human resources to carry out its broad mandate. The first round of appointments to the Authority is critical to ensure that strong leadership is fostered early on, that avoids the pitfalls of other similar state authorities that too often take a minimalistic view of the rights of citizens. Additionally, strong leadership, and sustained political will is also required to facilitate the high degree of inter-institutional and inter-sectoral coordination that is required to deliver the range of legal, social, and medical services promised under the Act.

Looking to the future, and how this Act might be used in a transitional justice process, further reform must be a pre-condition to any mechanisms initiated within the country. Domestic laws criminalizing international crimes must be enacted so that the definition of victim and witness includes victims and witnesses of international crimes. In particular, as a transitional justice process could potentially involve large numbers of victims and witnesses, it would be important at the outset to develop a comprehensive policy on how to effectively provide the services that victims and witnesses are entitled to under the Act

Recommendations

For the purposes of addressing the challenges identified above the following changes are recommended:

To Government:

  • In consultation with victims, and civil society, amend the Act to give effect to the following considerations:
    • Appointments to the Board should be made by the Constitutional Council. An emphasis should be placed on practitioners and experts rather than persons who merely hold “ex officio” positions within relevant sectors.
    • Specify that the Division is to be financially, administratively and operationally independent from the rest of the police force. Procedures should be in place to insulate the Division from the rest of the police force; to ensure the confidentiality of their work; as well as measures to ensure the safety of those implementing the protection scheme.
    • The Witness Protection Scheme: Identify clear criteria limiting the discretion given to the Authority and the Division when determining whether a victim or witness is entitled to protection.
    • Right to Redress: Amendments should be made to the Code of Criminal Procedure, to require the Attorney-General to provide reasons for issuing nolle prosequis. Additionally the Magistrate should be given power to take appropriate legal action whenever the Attorney- General acts in bad faith.
    • Right to Participate: Provide for the mandatory use of a Victim Impact Statement, to be completed by the victim with the assistance of law enforcement authorities.
    • Compensation: State health care providers should be under an obligation to prioritize victims and witnesses in need of medical services, including mental health services.
    • Victim Protection: Adopt a holistic national policy on addressing the needs of victims that provides guidance to all stakeholders on common standards they should adhere to. Where necessary, a national policy should be adopted specifically relating to vulnerable classes of persons, including women, children, elderly and the disabled.
  • Allocate sufficient funding in the next budget for the effective operationalising of the Act.
  • Make credible appointments to the Board of the Authority from among persons who have strong professional experience in protection work.
  • Initiate broader reforms within law enforcement agencies in order to facilitate trust and confidence among the general public including, in particular, victims and witnesses of crime.

To Civil Society:

  • In consultation with victims and witnesses, engage with the Government for further reform and strengthening of the Act.
  • Identify appropriate persons to be appointed to the Board, and lobby the Government for their appointment.
  • Monitor the reform and implementation of the Act.

To the donor community:

  • Monitor the implementation of the Act, and provide contributions to the Protection Fund.

Bibliography

Amnesty International, “Sri Lanka: Urgent need to prosecute security agents involved in torture”51-52(7 November 2011) <https://www.amnesty.org/en/latest/news/2011/11/sri-lanka-urgent-need-prosecute-security-agentsinvolved- torture/> [Accessed 20 August 2015]

Amnesty International, “When Will They Get Justice? Failures of Sri Lanka‟s Lessons Learnt and Reconciliation Commission” (2011) <http://sydney.edu.au/arts/peace_conflict/docs/reports/failures_SL.pdf> [Accessed 31 August 2015]

Asia Report N°172 ,“Sri Lanka‟s Judiciary: Politicised Courts, Compromised Rights” (2009) http://www.crisisgroup.org/~/media/Files/asia/south-asia/srilanka/172_sri_lankas_judiciary politicised_courts compromised_rights.pdf [Accessed 31 August 2015]

Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015<http://www.srilankalaw.lk/gazette/2015_pdf/4%20of%202015.pdf> [Accessed 31 August 2015]

Basil Fernando, “Comprehensive Torture Prevention in Sri Lanka”, ALRC- article 2; vol. 6, no. 2, 2007 - p. 32-40 (2007) <http://www.ruleoflawsrilanka.org/resources/writings-of-basil-fernando/articles-by-basil-fernando-from- article-2/vol.-6-no.-2/comprehensive-torture-prevention-in-sri-lanka> [Accessed 20 August 2015]

Bhavani Fonseka, Groundviews, “Idea for Road Map for Truth and Justice in Sri Lanka” (19 January 2015) <http://groundviews.org/2015/01/19/ideas-for-a-road-map-for-truth-and-justice-in-sri-lanka/> [Accessed 20 August 2015]

Centre for Policy Alternatives, “The need for a strong victim and witness assistance and protection mechanism” (2014) <http://www.cpalanka.org/the-need-for-a-strong-victim-and-witness-assistance-and-protection-mechanism/> [Accessed 17 June 2015]

Code of Criminal Procedure 1979http://www1.umn.edu/humanrts/research/srilanka/statutes/Code_of_Criminal_Procedure_Act.pdf [Accessed 31 August 2015]

Colombo Telegraph, “Committee Against Torture Begins Examination of Report on Sri Lanka” (9 November 2011) <https://www.colombotelegraph.com/index.php/committee-against-torture-begins-examination-of-report-of-sri- lanka/> [Accessed 20 August 2015]

Council of Europe Committee of Ministers, “Recommendations No. R (85) 11 of the committee of ministers to member states on the position of the victim in the framework of the criminal law and procedure” (1995) < http://www.coe.int/t/dghl/standardsetting/victims/recR_85_11e.pdf > [Accessed 20 August 2015]

Council of Europe, „Background Note On “Ways And Means To Promote The Use And Application Of United Nations Standards And Norms Primarily Related To Victim Issues”‟ (2006) <http://www.coe.int/t/dghl/standardsetting/victims/event_2006-11-27_1_background_en.pdf> [Accessed 31 August 2015]

Council of Europe, “European Convention on the Compensation of Victims of Violent Crimes” (1983) <http://conventions.coe.int/Treaty/en/Treaties/Html/116.htm > [Accessed 31 August 2015]

Council of Europe, “Recommendation No. R (85) 11 Of The Committee Of Ministers To Member States On The Position Of The Victim In The Framework Of Criminal Law And Procedure” (1985), <http://ec.europa.eu/civiljustice/comp_crime_victim/docs/council_eur_rec_85_11_en.pdf > [Accessed 31 August 2015]

Daneshi Yatawara, Sunday Observer, “National authority for the protection of roping in the culprits” (29 March 2015) <http://www.sundayobserver.lk/2015/03/29/sec04.asp> [Accessed 24 August 2015]


ECOSOC, “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime”, Resolution 2005/20 (2005) <http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> [Accessed 20 August 2015]


Erandi Tanippuliarachchi, Ceylon Today, “SL needs proper legal system – Witness Protection Act”, (18 May 2015) <https://www.ceylontoday.lk/90-93100-news-detail-sl-needs-proper-legal-system-witness-protectionact.html> [accessed 20 August 2015]


European Commission, DG Justice, “DG Justice Guidance Document related to the transposition and implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA” (2013) <http://ec.europa.eu/justice/criminal/files/victims/guidance_victims_rights_directive_en.pdf> [Accessed 31 August 2015]


European Commission, DG Justice, “Directive 2012/29/EU Of The European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA”, OJ L315/57 (2012) <http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:32012L0029  > [Accessed 31 August 2015]


Frank De Silva, The Sunday Times, “Victim and Witness Protection Law touches only the fringe of the problem” (26 June 2015) <http://www.sundaytimes.lk/140928/sunday-times-2/victim-and-witness-protection-law-touches-only- the-fringe-of-the-problem-119858.html> [Accessed 20 August 2015]


International Commission of Jurists (ICJ), “Authority without accountability: The Crisis of Impunity in Sri Lanka” (2012) <http://www.refworld.org/pdfid/50ae365b2.pdf > [Accessed 31 August 2015]


Kelum Bandara, Daily Mirror, “Our foreign policy is based on practical realities, not on ideological fantasies” (24 April 2015) <http://www.dailymirror.lk/70191/our-foreign-policy-is-based-on-practical-realities-not-on-ideological- fantasies> [Accessed 31 August 2015]


Kishali Pinto- Jayawardena, “The Rule of Law in Decline: Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka”(Rehabilitation and Research Centre for Torture Victims, 2009)  
Law and Society Trust, “Sri Lanka: Protecting Human Rights or the Government?” <http://www.lawandsocietytrust.org/PDF/resource/ANNI%20-%20Sri%20Lanka%20FINAL%20Report.pdf > [Accessed 31 August 2015]

Model Code of Criminal Procedure < http://www.usip.org/sites/default/files/MC2/MC2-4-Ch1.pdf> [Accessed 20 August 2015]  
Neloufer de Mel, “The Promise of the LLRC: Women‟s Testimony and Justice in Post-War Sri Lanka”, ICES Research Paper No. 4, (2013) <http://www.ices.lk/wp-content/uploads/2013/11/the-Promise-of-the-LLRC.pdf > [Accessed 31 August 2015]

OHCHR, “Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power” (2010) <http://www.ohchr.org/Documents/HRBodies/CCPR/GConArticle9/Submissions/WorldSocietyOfVictimologyDraft Convention.pdf> [Accessed on 31 August 2015]

Prasanna C Rodrigo, Sunday Times, “Sri Lanka‟s Bribery Commission needs more fire-power”, (28 February 2010) < http://www.sundaytimes.lk/100228/BusinessTimes/bt10.html> [Accessed 20 August 2015]

Presidential Media Unit, The Official Government News Portal of Sri Lanka, “President assures of domestic mechanism to probe alleged human rights violations during conflict” (15 February 2015)<http://www.news.lk/news/politics/item/6194-president-assures-of-domestic-mechanism-to-probe-allegedrights- violations-during-conflict> [Accessed 31 August 2015]

Rhadeena de Alwis, Niran Anketell, “A Hybrid Court Ideas for Sri Lanka” p17-19 (2015) <https://drive.google.com/file/d/0B99W Bl4LrZxIUjNab2F0QW pROVU/view > [Accessed 31 August 2015]

S. Muralidhan, International Environmental Law Research Centre “Rights of Victims in the Indian Criminal Justice System” (2004) <http://www.ielrc.org/content/a0402.pdf> [Accessed 31 August 2015]

Sandun A Jayasekara, Daily Mirror, “Wijedasa: Domestic inquiry will be credible” (17 June 2015) <http://www.dailymirror.lk/76525/wijeyadasa-domestic-inquiry-will-be-credible> [Accessed 31 August 2015]

Sipos Rosalind, “The Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses: Critique and Recommendations” (2007) <http://www.cpalanka.org/the-draft-bill-for-the-assistance-and-protection-of-victims-of- crime-and-witnesses-critique-and-recommendations/> [Accessed 17 June 2015]

The Asia Foundation, “The Legal Aid Sector in Sri Lanka: Searching for Sustainable Solutions” (2009) <https://asiafoundation.org/resources/pdfs/SriLankaLegalAid.pdf> [Accessed 31 August 2015]

The Asia Foundation, “The Legal Aid Sector in Sri Lanka: Searching for Sustainable Solutions” (2009) http://www.lk.undp.org/content/dam/srilanka/docs/governance/new/Legal%20Aid%20Review%20new%2012.pd f [Accessed 20 August 2015]

The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, <http://www.priu.gov.lk/Cons/1978Constitution/1978ConstitutionWithoutAmendments.pdf> [Accessed 31 August 2015]

UN General Assembly, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, United Nations, Treaty Series, vol. 1465, p. 85, (10 December 1984)
UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, United Nations, Treaty Series, vol. 1249, p. 13 (18 December 1979)  
UN General Assembly, “International Convention on the Elimination of All Forms of Racial Discrimination”, United Nations, Treaty Series, vol. 660, p. 195 (21 December 1965)  
UN General Assembly, “International Covenant on Civil and Political Rights” (16 December 1966) United Nations, Treaty Series, vol. 999, p. 171
UN General Assembly, “Universal Declaration of Human Rights”, 217 A (III) (10 December 1948)
UNICEF, “Children and Truth Commissions” (August 2010) < http://www.unicef- irc.org/publications/pdf/truth_commissions_eng.pdf > [Accessed 31 August 2015]

United Nations, “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, UN Doc. A/RES/40/34 (29 November 1985), <http://www.un.org/documents/ga/res/40/a40r034.htm> [Accessed on 20 August 2015]

United Nations, “Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime United Nations”, Treaty Series,  vol. 2237, p. 319; Doc. A/55/383 (2000)  
United Nations, International Drug Control Programme, UNDCP Model Witness Protection Bill 2000, (May 2000) <https://www.unodc.org/pdf/lap_witness-protection_2000.pdf> [Accessed on 31 August 2015]

United Nations, Office for Drug Control and Crime Prevention, “Background note on „Ways and Means to Promote the Use and Application of United Nations Standards and Norms Primarily Related to Victim Issues‟” (2006 )<http://www.coe.int/t/dghl/standardsetting/victim s/event_2006-11-27_1_background_en.pdf>  [Accessed on 31 August 2015]

United Nations, Office for Drug Control and Crime Prevention, “Handbook on Justice for Victims on the use and application of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999) <https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf> [Accessed on 31 August 2015]

United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_t h e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015]

United Nations, Office on Drugs and Crime, “Victims and Witnesses: Criminal Justice Assessment Toolkit” (2006) <https://www.unodc.org/documents/justice-and-prison-reform/cjat_eng/CJAT_Toolkit_full_version.pdf> [Accessed on 31 August 2015]

Victor Ivan v Sarath N. Silva ([1998] 1 Sri LR 340)  
Vvienne O‟Connor and Colette Rausch (eds), “Model Codes for Post-Conflict Criminal Justice”, (Volume II: Model Code of Criminal Procedure, USIP 2008)

Endnotes

1 Senior members of the Government including the President, the Foreign Minister and the Minister for Justice have at various points announced that the Government intends to implement a “credible domestic mechanism” to address human rights violations, including war crimes during the last stages of the war. See, Kelum Bandara, Daily Mirror,“Our foreign policy is based on practical realities, not on ideological fantasies” (24 April 2015) <http://www.dailymirror.lk/70191/our-foreign-policy-is-based-on-practical-realities-not-on-ideological-fantasies> [Accessed 31 August 2015]; Sandun A Jayasekara, Daily Mirror, “Wijedasa: Domestic inquiry will be credible”, (17 June 2015) <http://www.dailymirror.lk/76525/wijeyadasa-domestic-inquiry-will-be-credible> accessed 31 August 2015; Presidential Media Unit, The Official Government News Portal of Sri Lanka “President assures of domestic mechanism to probe alleged human rights violations during conflict”, (15 February 2015) <http://www.news.lk/news/politics/item/6194-president-assures-of-domestic-mechanism-to-probe-allegedrights- violations-during-conflict> accessed 31 August 2015

2 Kishali Pinto- Jayawardena, “The Rule of Law in Decline: Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka”(Rehabilitation and Research Centre for Torture Victims, 2009), 140 ; Basil Fernando, “Comprehensive Torture Prevention in Sri Lanka”, ALRC- article 2; vol. 6, no. 2, 2007 - p. 32-40 (2007)< http://www.ruleoflawsrilanka.org/resources/writings-of-basil-fernando/articles-by-basil-fernando-from-article- 2/vol.-6-no.-2/comprehensive-torture-prevention-in-sri-lanka > [Accessed 20 August 2015]

3 International Commission of Jurists (ICJ),“Authority without accountability: The Crisis of Impunity in Sri Lanka” (2012) <http://www.refworld.org/pdfid/50ae365b2.pdf > [Accessed 31 August 2015], 143

4 Kishali Pinto- Jayawardena, (n 2), 142

5 Neloufer de Mel, “The Promise of the LLRC: Women‟s Testimony and Justice in Post-War Sri Lanka”, ICES Research Paper No. 4, (2013) <http://www.ices.lk/wp-content/uploads/2013/11/the-Promise-of-the-LLRC.pdf > [Accessed 31 August 2015]

6 Bhavani Fonseka, Groundviews,“Idea for Road Map for Truth and Justice in Sri Lanka” (19 January 2015) <http://groundviews.org/2015/01/19/ideas-for-a-road-map-for-truth-and-justice-in-sri-lanka/> [Accessed 20 August 2015]

7 Sipos Rosalind, “The Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses: Critique and Recommendations” (2007) <http://www.cpalanka.org/the-draft-bill-for-the-assistance-and-protection-of-victims-of- crime-and-witnesses-critique-and-recommendations/> [Accessed 17 June 2015]

8 ibid

9 Centre for Policy Alternatives, “The need for a strong victim and witness assistance and protection mechanism” (2014) <http://www.cpalanka.org/th e-need-for-a-strong-victim-and-witness-assistance-and-protection- mechanism/>[Accessed 17 June 2015]

10 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 11

11 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(1)

12 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(1)

13 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 12(b)

14 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(2)

15 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s15(1)

16 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 15(3)

17 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 29(5)

18 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015 s 13(q)

19 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s 13(1)

20 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 13(k)

21 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 13(m)

22 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 13 (2)(a)(b)

23 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 14(1)(a)(i)-(vii), S14(2)

24 The Protection of Victims of Crime and Witnesses Act, s 14(a)

25 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s14(1)(a)(i)-(vii)

26 The Protection of Victims of Crime and Witnesses Act, s 14(2)

27 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 14(4)-(5)

28 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015, s 14(1)(e)

29 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015, s 18(1)

30 The Protection of Victims of Crime and Witness Act, No.4 of 2015,s 20, s 19(3)

31 The Protection of Victims of Crime and Witnesses Act,No.4 of 2015, s 19(2)

32 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015,s 19 (3)(b)

33 United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_th e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015], 45

34 Prasanna C Rodrigo, Sunday Times,“Sri Lanka‟s Bribery Commission needs more fire-power”, (28 February 2010) < http://www.sundaytimes.lk/100228/BusinessTimes/bt10.html> [Accessed 20 August 2015]

35The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s8(1)(a)

36 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s8(1)(b)

37 Pinto-Jayawardena, (n 2), 47; Sipos, (n 7),2-3

38 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 8(2)(a),(b)

39 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(6)

40 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(7)

41 Pinto Jayawardena, (n 2), 149-150

42 United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. UN Doc. A/RES/40/34 (29 November 1985)  http://www.un.org/documents/ga/res/40/a40r034.htm (accessed on 20 August 2015) (Declaration of Basic Principles). See also Council of Europe Committee of Ministers, Recommendation No. R(85)11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure (28 June 1985) <http://www.coe.int/t/dghl/standardsetting/victims/recR_85_11e.pdf> accessed 20 August 2015. (Council of Europe Recommendation)

43 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015,s 3(a)

44 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015,s 3(c)

45 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s(d)

46 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 3(e)

47 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 7

48 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 143; H.W.R. Wade and C. F. Forsyth, Administrative Law (11th edn.,)(Oxford, 2014), p. 520

49 The Basic Principles, Annex, para 1

50 The Basic Principles, Annex, para 2

51 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

52 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 170

53 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

54 See for example s 2(1)(a)(b) of Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/HA (25 October 2012).<file:///C:/Users/HP/Documents/Witness%20Protection%20Bill/Victiim%20and%20Witness%20Protection% 20Model%20Law%20Europe.pdf> accessed 20 August 2015

55 The Basic Principles, Annex, para 4. The right to remedy is also included in a number of international human rights standards that Sri Lanka is a party to. See for example, UN General Assembly, “Universal Declaration of Human Rights”,217 A (III)(10 December 1948), Article 8; UN General Assembly, “International Covenant on Civil and Political Rights”(16 December 1966) United Nations, Treaty Series, vol. 999, p. 171, Article 2(3); UN General Assembly, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, United Nations, Treaty Series, vol. 1465, p. 85, (10 December 1984), Article 13; UN General Assembly, “International Convention on the Elimination of All Forms of Racial Discrimination”, United Nations, Treaty Series, vol. 660, p. 195 (21 December 1965), Article 6; UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, United Nations, Treaty Series, vol. 1249, p. 13 (18 December 1979), Article 2(c)

56 The Basic Principles, Annex, para 5

57 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3(c)

58 See the Council of Europe Recommendation, para 7, which recommends that where the state decides not to proceed with a prosecution, the victim should have the right to proceed with a private prosecution

59 United Nations, Office for Drug Control and Crime Prevention, “Handbook on Justice for Victims on the use and application of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999) <https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf> [Accessed on 31 August 2015], 38-9. (Handbook on Justice for Victims)

60 Vvienne O‟Connor and Colette Rausch (eds), Model Codes for Post-Conflict Criminal Justice, Volume II: Model Code of Criminal Procedure (USIP 2008) Page 133

61 ibid

62 Handbook on Justice for Victims (n 59), 40

63 International Commission of Jurists, (n 3), 5. The report discusses at length how the exercise of other discretionary powers by the Attorney-General including the power to withdraw prosecutions and transfer cases can also adversely impact on the right of redress of victims

64 For example in the case of Gerard Perera, the Attorney-General decided to withdraw the indictment against the officer in charge of the police station, at the time of Perera‟s torture. Even the High Court when it delivered its final verdict, noted its surprise at the Attorney-General‟s decision.  Similarly in the case of the extra-judicial killing of Richard de Zoysa, a well-known journalist, the Attorney-General was criticized for failing to take action against a police officer, who had been identified as one of the persons that abducted the deceased. See International Commission of Jurists, (n 3), 125, 13

65 Code of Criminal Procedure, article 136(1)(a)

66 Code of Criminal Procedure, Article 191(2). In a recent case, where a private plaint was brought against a Superintendent of Police for having struck the complainant, the Attorney-General intervened, and took over the prosecution, attracting much criticism. See Asian Human Rights Commission, “A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the police officer” (16 February 2012) <https://www.ammado.com/nonprofit/108433/articles/54741 > accessed 31 August 2015

67 See for example, Victor Ivan v Sarath N. Silva, Attorney General [1998] 1 Sri LR 340. The court held that a decision of the Attorney General to prosecute or to file an indictment could be reviewed, in a range of circumstances including “where the evidence was plainly insufficient, or there was no investigation and where the decision was based on constitutionally impermissible factors and so on”. See Kishali Pinto Jayawardena, (n 2), 100

68 The Basic Principles, Annex, para 6(a)

69 The Basic Principles, Annex, para 6(b). See also the Council of Europe Recommendation, A(1)-(3)

70 The Handbook on Justice for Victims, (n59), 37

71 Ibid

72 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3f(i)

73 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(ii)

74 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(iii), (m)

75 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(iv)

76 The Protection of Victims of Crime and Witness Act, No. 4 of 2015, s 3(f)(v)

77 The Basic Principles, Annex, para 6(b), (c); See also Council of Europe Recommendation,1ID para 9

78 Ibid

79 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(g)

80 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(h)

81 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3 (l)

82 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(m)

83 Handbook on Justice for Victims, (n59), 38

84 Handbook on Justice for Victims, (n59), 38

85 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(i)

86 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3(j)

87 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, 3(k)

88 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(n)

89 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(n)

90 Amnesty International, “When Will They Get Justice? Failures of Sri Lanka‟s Lessons Learnt and Reconciliation Commission” (2011) <http://sydney.edu.au/arts/peace_conflict/docs/reports/failures_SL.pdf>[Accessed 31 August 2015], 51-52

91 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(a)

92 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(b)

93 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(c)

94 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(d),(e)

95 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3(o), (n), (p)

96 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3(q)

97 The Basic Principles, Annex, para 8, 12

98 The Basic Principles, Annex, para 8

99 The Basic Principles, Annex, para 12(a)

100 The Basic Principles, Annex, para 12(a); see also, Council of Europe, European Convention on the Compensation of Victims of Violent Crimes (1983) <http://conventions.coe.int/Treaty/en/Treaties/Html/116.htm > accessed 31 August 2015, article 1. (European Convention on the Compensation of Victims of Violent Crimes)

101 The Basic Principles, Annex, para 13; see also, European Convention on the Compensation of Victims of Violent Crimes, article 1

102 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 13(o)

103 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(1)

104 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 28(2)(a)

105 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(2)(b)-(c)

106 The Basic Principles, Annex, para 11

107 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(1)(a)

108 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(5)

109 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 28(5)

110 The Handbook on Justice for Victims, (n59), 38

111 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 30(1)

112 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s29 (1)

113 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 29(3)

114 The Handbook on Justice for Victims, (n59), 49

115 The Protection of Victims of Crimes and Witnesses Act, No. 4 of 2015, s 29 (4)(a)

116 The protection of Victims Crime and Witnesses Act, No. 4 of 2015, s 29(4)

117 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 29(4)(b)

118 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 4 (2)

119 Ibid

120 The Protection of Victims of Crimes and Witnesses Act, No. 4 of 2015, s 4(3)

121 The Basic Principles, Annex, para 16; Council of Europe Declaration, para 15-16

122 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(8)

123 United Nations, International Drug Control Programme, UNDCP Model Witness Protection Bill 2000, (May 2000) <https://www.unodc.org/pdf/lap_witness-protection_2000.pdf> [Accessed on 31 August 2015], s 2(c)(i). (Model Witness Protection Bill)

124 Model Witness Protection Bill, s2(c)(ii)

125 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

126 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 46

127 The Protection of Victims of Crime and Witness Act, No 4 of 2015,s 25(1)

128 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s20(3),(4)

129 Model Witness Protection Bill 2000, s 5(a),(b),(c)

130 United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_th e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015], 8

131 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 22(1)(f)

132 The Model Witness Protection Bill 2000, s (6) (2)

133 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(1)(a)-(b)

134 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(1), (2)

135 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(3)

136 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(1)(a)(i)-(ii)

137 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(1)(b)

138 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(2)(a)

139 The Centre for Policy Alternatives, (n 9)

140 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s 3(a)

141 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(b)

142 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 25(3)(a)

143 ECOSOC, “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime”, Resolution 2005/20 (2005) <http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> [Accessed 20 August 2015]

144 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 6

145 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 6(b)

146 Rodrigo, (n 34)

147 Ibid

148 Amnesty International, “Sri Lanka: Urgent need to prosecute security agents involved in torture”51-52(7 November 2011) <https://www.amnesty.org/en/latest/news/2011/11/sri-lanka-urgent-need-prosecute-security- agents-involved-torture/> [Accessed 20 August 2015]

149 Rhadeena de Alwis, Niran Anketell, “A Hybrid Court Ideas for Sri Lanka” p17-19 (2015) <https://drive.google.com/file/d/0B99W Bl4LrZxIUjNab2F0QW pROVU/view > [Accessed 31 August 2015], 17-19

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