Need for a Substantial Revision of the Victim and Witness Protection Bill

The Centre for Policy Alternatives (CPA) expresses its deep concern on the draft bill on the Assistance and Protection to Victims of Crime and Witnesses (the "Draft Bill"). The Draft Bill was presented to parliament on June 6th and is to be taken up for a second reading on June 17th and 19th. CPA strongly recommends that there be substantial revision of the Draft Bill before enactment in order to address the fundamental flaws within the Draft Bill which have been raised previously by civil society.

The key recommendations are:


The Draft Bill should make a distinction between Victim and Witness Protection

The actors mandated with victim and witness assistance and protection should be independent and not political appointees An independent and impartial protection division needs to be established with a clear division of the responsibility for protection among the various actors provided in the Draft Bill The Draft Bill should be comprehensive, including all aspects in relation to victim and witness assistance and protection Victim and witness assistance and protection, including obtaining evidence and testimony through videoconferencing should be done with no interference by the State or its actors, ensuring that it is an independent process

The 17th Amendment to the Constitution should be fully implemented and an independent National Police Commission re-established.


Need for Protection: An effective victim and witness protection system is essential for the proper functioning of any justice system, as it protects victims and witnesses from threats and attacks, and thereby encourages the reporting of crimes and for witnesses to come forward. It allows witnesses to present their evidence in a full and impartial manner, and prevents or mitigates the re-victimisation of victims and the victimisation of witnesses. In the Sri Lankan context, the very low four percent conviction rate and the high incidence of intimidation in cases involving the police, non-state groups and other actors only reinforce the argument for such protection.

Enacting a law that creates a piece of legislation that puts in place a weak, ineffective protection programme may in fact be worse than having no protection programme at all as witnesses may falsely place their trust in a system that cannot protect them while at the same time allowing politicians to trumpet their promotion of human rights when they have in fact fallen short of the mark and result in further endangering the lives of victims and witnesses.

While the initiative to develop legislation on the issues of victim rights and victim and witness protection is welcome and is a critical step in strengthening the justice system, as the Draft Bill currently reads, these objectives will not be realized nor will the bill help reverse the culture of impunity in Sri Lanka.

CPA is gravely concerned with the serious flaws with the law making process which is one of secrecy and exclusivity, with little or no public participation, transparency and inclusiveness in the drafting of laws and policies. In this instance substantive changes recommended by various actors have not been incorporated. The actors involved in taking the Draft Bill forward towards enactment must address the weaknesses in the current version of the Draft Bill if it is going to play a part in combating the culture of impunity in Sri Lanka.

The Draft Bill can only be effective if an enabling environment of respect for constitutionalism, the rule of law and the non-politicisation of key institutions is also in place. The Draft Bill cannot be ineffective unless the 17th Amendment to the Constitution is fully implemented. As such, CPA calls for the 17th Amendment be fully implemented and an independent National Police Commission to be re-established.

Make a distinction between Victim and Witness Protection: The Draft Bill deals comprehensively with victim rights and assistance but only cursorily with witness protection issues. Like in many other countries, Sri Lanka should deal with these issues in separate pieces of legislation because although they are inter-related issues, they have different purposes and focuses. The Draft Bill should be divided into two parts- one which deals with compensation for victims of crime, while the other addresses the protection of witnesses. In addition, separate institutions with different members for these two functions should be established.

CPA welcomes certain improvements which have been made to the bill including the broadening of the definition of a witness to include the family of witnesses as in certain cases they face intimidation and to include not just those who have provided information but also those who believe that they might be expected to provide information.

More independent mechanisms: The Draft Bill creates a number of institutions including the National Authority for the Protection of Victims of Crime and Witnesses (the "Authority"), the Advisory Commission on Victims of Crime and Witnesses, the Victims of Crime and Witnesses Assistance and the Protection Division of the Sri Lanka Police Department (the "Protection Division") which are all critical for the effective functioning of the Draft Bill. The composition of both the Authority and the Advisory Committee are excessively dominated by the executive which can be remedied by greater involvement of independent persons and civil society groups. In addition, a major problem with the legislation is that the division of responsibilities regarding protection is not clearly set out. The Authority and the Protection Division are given similar functions.

Critically there is no provision for the independence and impartiality of the Protection Division. Indeed the Supreme Court in its opinion (S.C.S.D. 01/08) on the constitutionality of the Draft Bill highlighted the importance of the independence of the Protection Division. The Draft Bill states that the Protection Division is to be established and maintained by the Sri Lanka Police Department, raising with it concern on the independence of appointments and dashing any hope of the Protection Division consisting of actors who will be able to function independently. Given the politicisation of the police, it is almost farcical to leave the granting of protection to the very body from whose members protection may be sought. It is only with independent actors and the functioning of an independent programme that public confidence can be won with more people coming forward to provide valuable evidence and information and thereby ending the culture of impunity.

Provisions on Video-Conferencing: The provisions on videoconferencing are seriously flawed as they undermine one of the key rationales for the legislation i.e. the need to protect witnesses who feel threatened by hostile and violent state and non-state actors. Section 29 (b) of the Draft Bill provides for the presence of a 'competent persons' appointed by a court or Commission on the recommendation of the Attorney-General and the Secretary to the Ministry of Foreign Affairs to be present at the location from which a victim or witness is to provide testimony through video conferencing. CPA believes that this provision will not only undermine the basic principle of witness protection legislation but also may conflict with the domestic laws of the countries who provide safety and security to witnesses who feel threatened.