15 June 2017

Mending Walls: Avenues to Restore Trust in Victim and Witness Protection | Part 1

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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).

 

Medhaka Fernando

Medhaka is an undergraduate from the Faculty of Law, University of Colombo. At university Medhaka took part in the Philip C Jessup Moot Court Competition in the years 2014 and 2015. Prior to joining university he enjoyed a brief stint teaching at his former alma mater S. Thomas’ College Mount Lavinia.

Medhaka loves to read and play scrabble during his free time.

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