14 January 2016

Victim and Witness Protection and Transitional Justice: The Imperative Need for Urgent Reform

Written by

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.

Additional Info

Esther Hoole

Esther obtained her Bachelor of Laws with honours from Cardiff University. Prior to joining SACLS, Esther interned at Nithya Partners a commercial law firm based in Colombo. Since joining SACLS, she has conducted legal research on international law and domestic law issues. In addition, she generates advocacy content in Tamil and English and helps in co-ordinating training sessions.

Esther enjoys classical music, and is a trained pianist.