The National Authority for Victim and Witness Protection was established last week, after the enactment of the Assistance to and Protection of Victims of Crime and Witnesses Act, No 4 of 2015 in May this year. The proper implementation of this Act ensures that the rights of the victims and witnesses are protected with a statutory recognition.
The National Authority for the Protection of Victims and Witnesses has been established, as well as a police division. However, due to lack of knowledge among the public regarding the Act and its features, the Sunday Observer analysed the Act and the need for better legal literacy among the public.
Rights the Act provides
The public should be aware, if one is a victim of a crime or a witness, he/she is entitled to certain protections provided under the Act, Vice President, Bar Association of Sri Lanka (BASL) Saliya Peiris said.
Both, victims of a crime and witnesses are entitled to rights such as equality, dignity, and protection of privacy. If the victim is a child, it is to be treated in a way upholding the best interests of the child.
The victims have the right to information either from the Victim and Witness Protection Authority, the Police Division set up for their protection, Police OIC, the Attorney General’s Department or Registrar of a court. “They are provided with rights to be informed of certain arrangements regarding their case, for example, if the suspect is being released on bail, discharged, or acquitted, of course, subject to certain conditions.” A victim can be represented by an Attorney at Law during the investigation as well. He added that the victim’s lawyer has the right to make representations to the Attorney General, along with the defence lawyer, when the Attorney General is to take decisions pertaining to the court case they are involved in. The victim is entitled to get their expenses reimbursed and is covered by the Victim and Witness Protection Authority.
Practicality of the Act
“Witnesses, on the other hand, are protected from harassment or intimidation, and other possible harms or threats. They also have the right to protection,” he said. These rights are not being listed as entitlements to witnesses of court cases only, but also those giving testimonies before various commissions, such as, the Human Rights Commission and Bribery Commission.
The duty to provide protection to victims of a crime and witnesses is granted to four authorities under different stages; a special police division under Sri Lanka Police, Officer in Charge (OIC) of a local police station, a National Authority and a Commission (for vulnerable victims and witnesses under exceptional circumstances). The task of witness protection is given solely to the Witness Protection Authority, under the Act, and accordingly, there are certain entitlements provided under Section 22, that the Authority must ensure, which includes providing temporary accommodation, permanent relocation, temporary or permanent employment to the witnesses as needed, etc.
Peiris further explained that for the Assistance to and Protection of Victims of Crime and Witnesses Act to be implemented successfully, a protection fund needs to be set up for expenses. “In reality, if all the provisions are to be implemented, a lot of infrastructure is needed, and a highly complex program, such as in the USA, will need to be put in place, which will require a lot of funding. So, that’s where the Commission will have to come in and the government has to ensure that necessary funds are given, for it to be effective.”
At present, the Police are involved in every stage of the proposed protection mechanism including the Authority.
Therefore, he pointed out, the system should ensure the protection of the victims of police, or armed forces or other state institutes, as well. Peiris added, whatever protection mechanism is established, even under the police, it is important that they are impartial and independent, failing which, the credibility of the program would be questioned.
Police Division for Protection
However, DIG Priyantha Jayakody, Director of Criminal Records Division, said, the Police are gearing up to implement the Act to ensure protection of victims and witnesses.
“This Act empowers the police to protect the rights, dignity and property of victims and witnesses of court cases.” He said, under Section 4 of the Act, a separate police division has been established to function under the National Authority.
The Inspector General of Police inaugurated this division on November 3. “It was followed by a training session of two days for over 180 senior police officers representing the Western Province,” Jayakody said.
Under this new law, all victims and witnesses get to preserve their rights and privacy. The DIG said, violation of these legal provisions will be considered a grave offence.
Public Awareness Programs
In terms of Section 13 (g) of the Act, a function of the Authority is, “create awareness among the public regarding the rights and entitlements of victims of crime and witnesses provided by the Act.” However, despite public awareness of the protection which the legal system assures, for the public to engage with confidence remained low.
Awareness programs on the Act, for the public are still pending, though the BASL has conducted awareness programs for lawyers and academics, President, BASL Geoffrey Alagaratnam said.
Public awareness has to be done mostly through various organizations and institutes, he said, and the BASL is willing to assist with any awareness programs. “It could be awareness programs in small cities and towns, television talk shows or newspaper articles,” Alagaratnam said, adding that not much has been done so far to raise public awareness and called for the assistance of the private sector and NGOs to spread the word.
Commenting on the situation prior to the introduction of the Act, Alagaratnam said, there weren’t any legal provisions available to secure protection of victims and witnesses of court cases. He admitted, now, the situation is better though far from ideal, and there is scope for improvement. For example, he said, protection should be ensured by an independent body devoid of any involvement from the Police.
“It should include protection from everybody, every institution, including prosecutors, police and other parties involved. There has to be an independent mechanism to protect the identities of the victims and witnesses if necessary, and flexibility in recording evidence. Therefore, it is my belief that better protection should be provided, independent of the existing bodies,” he explained.
Former Attorney General, Palitha Fernando, said, the public has very limited knowledge on the legal system, and, according to his personal experience, most of them are not interested in the law. “As a result, people are clueless about the law, which is a very unfortunate situation.”
He added, there is a gradual increase in people’s awareness today, compared to the past, but it’s gradual, and would not be sufficient to say that the people are empowered with legal education.
“I have recommended on numerous occasions, to conduct training programs on law and order, at least for government servants. For example, it is of utmost importance for doctors to know the basic principles of law, without which their work will be difficult, as well as risky. The same applies to school principals, and district secretaries,” he said, adding that the police officers are given the training. However, public education of the law and order remains untouched. Fernando said, so far no recommendations have been made to add Law into the school curriculum. “Social Science is a subject which deals with best practices, but the necessity of introducing Law as a separate subject, at least the basic principles of Law, is vital,” he added.
Fernando said, the understanding should be both ways. The public should be more aware of the legal system and the legal system should be better informed of the society and the problems they face. “I’ve heard of some Magistrate’s Courts where one is compelled to wear white, which is rather discriminatory because we don’t know the background of the people coming to courts. What if the only attire that person has is not white?” he said.
Gaps to be filled
Assigning the National Authority to review existing policies, legislation and practices and procedures to promote and protect the rights and entitlements of the public is another important feature included in the Act, for example, gender sensitivity of the program. However, Vice President Peiris explained that an overlooked branch of the law is protection of the rights of the people who are wrongly accused, or were subjected to miscarriage of justice. “We are yet to set up a mechanism to look into that,” he added. Peiris said, it is incorrect to say that the system weighed towards the defence as sometimes the investigations fail to look into the accused’s version of events. “Justice to the victim should not mean that an innocent person is convicted.
It should mean that the correct person is found guilty,” he said, adding that this gap needs to be filled to ensure protection of the rights of all parties involved in the legal battle.