Thu. Oct 22nd, 2020

by C.A. Chandraprema

What comes into the mind of the ordinary person on the street when he or she hears the term ‘witness protection’ or ‘victim protection’ would be the need to ensure that victims of crime or witnesses are given the protection they need. For example, the eatery owner in Ratmalana whose establishment was subject to a spectacular drive by shooting by members of an extortion gang, is a victim of violence and needs to be protected from the gangs that were after him. Likewise there are key witnesses to various crimes who need to be protected. While giving adequate protection to victims and witnesses is necessary, laws that turn victims and witnesses into predators, who are able to use the law to hound suspects, and browbeat the law enforcement authorities and even the courts is an obvious perversion of justice.

 In this respect, the provisions of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 which was signed into law on March 7, 2015, requires further scrutiny. The stated objectives of this Act are to set out, uphold and enforce the rights and entitlements of victims of crime and witnesses, to provide assistance and protection to victims of crime and witnesses and to enable victims of crime to obtain compensation from persons  convicted of having committed offenses against them, and to set out duties and responsibilities of the State, judicial officers and public officers towards the promotion and protection of the rights and entitlements of victims of crime and witnesses etc. All these are no doubt laudable objectives, but the manner in which these objectives are to be realized according to this Act, gives rise to many questions.

 Turning victims into blood hounds

 Section 3(f)(ii) of Act, No. 4 of 2015 states that victims will have the right to inquire into the progress of the investigation being conducted into the complaint presented by the victim of crime, by means of a query addressed to the police station or other authority conducting the investigation, the Attorney-General or the Registrar of the Court, as the case may be, of the dates fixed for hearing and the progress and the disposal of judicial proceedings relating to the offense complained of by the victim of crime, including the non-summary inquiry, trial, appeal and application in revision.

 The victim will also have the right to inquire from the officer-in-charge of the relevant police station or other authority conducting an investigation, the Attorney-General, the Registrar of the Court or the Superintendent of Prisons, as the case may be, of the dates fixed for the release on bail, the discharge of the suspect, the institution of criminal proceedings against the accused, the conviction, sentence or acquittal of the suspect or the accused; and the date for the release from prison of the convict, and the reasons therefor. Investigating and punishing people for the commission of a crime is the responsibility of the state. But Act No. 4 of 2015 seeks to make it the business of the purported victim to personally pursue the case against the purported criminal to the very end. 

 It’s only with regard to a few crimes like assault or rape that the perpetrator may be known and identified upfront. In criminal matters, more often than not, an investigation is necessary before a suspect can even be identified. Yet this Act seems to assume that the alleged perpetrator will always be known upfront to the alleged victim. If it’s a case of a victim knowing upfront who exactly had committed the purported crime against him, it will be a different matter but if a victim is unaware of who committed the crime against him and has to wait until the police names a suspect following an investigation and then invokes the provisions of this Act against that suspect, horrific miscarriages of justice could occur.

 In certain places, the Act states the painfully obvious. Section 3(g) for instance upholds the right of a victim of a crime to present, either orally or in writing, a complaint to any police officer, in any police station or other unit or division of the Police Department and to have such complaint impartially and comprehensively investigated by the relevant investigating authority. It’s for that very purpose that the British colonial power created the police force that we have today. The Act states that having made the complaint, victim is entitled to be represented by an Attorney-at-Law during an investigation, including criminal and forensic investigations and magisterial inquiries into the alleged offense and make necessary representations to the appropriate competent authorities who are conducting such investigations.

 

Next of kin of victims are also victims

 The victim also can obtain certified copies of Cause of Death forms, Post Mortem Reports, Medico-Legal Reports, Reports of the Registrar of Finger Prints, Reports of the Government Analyst and any other report of an expert and reports filed in the Magistrate’s Court by the Police. In other words, the victim is authorized to breathe down the necks of the entire law enforcement apparatus including the police and the judiciary and this at a stage when the perpetrator of the crime is still obviously unknown. Mercifully, there is a provision to say that where an application is made to obtain certified copies of the reports referred to above, the Magistrate to whom such application is can refuse to issue such reports if the police are of the opinion that the issue of such Reports would prejudice the on-going investigations.

 The victim is also allowed to present written communications or make representations through legal counsel to the Attorney-General, before, during and after the investigation and before and during the conduct of judicial proceedings, including the non-summary inquiry, trial and appeal. The victim is also allowed to present written communications or make representations through legal counsel to an investigator, who is conducting an investigation into the offense and to be entitled to receive a response in regard to such communications or representations made. Can any good result from a victim being able to bring pressure on the investigators, the Attorney General and even the courts right through the appeal process as well? Not only is the victim entitled to make representations to all these bodies, he is entitled to receive responses as well. This is guaranteed to slow down the legal processes even further by placing unbearable workloads on the police, the AG’s Dept. and the courts.

 Furthermore, the victim is entitled to be present at all judicial or quasi-judicial proceedings relating to an offense, unless the court, or tribunal determines, for reasons to be recorded that such victim’s evidence would be materially affected if he hears other evidence at such proceedings or the due discharge of justice could be secured only by the exclusion of such victim from being present during the hearing of certain parts of such proceedings. Following the conviction of the offender and prior to the determination of the sentence, the victim is entitled to either personally or through legal counsel, to submit to court the manner in which the offense concerned had impacted on his life, including his body, state of mind, employment, profession or occupation, income, quality of life, property and any other aspects concerning his life.

 If an appeal or application in revision is presented by a person convicted of having committed an offense, the victim can submit to court that adjudicates upon such appeal or application in revision, the manner in which the offense concerned had impacted on his life, including his body, state of mind, employment, profession or occupation, income, quality of life and property and any other aspects concerning his life. If a

grant of a pardon or remission of sentence is being considered with regard to that convict, the victim is entitled to receive notice thereof and submit to the person granting such pardon or remission, the manner in which the offense committed had impacted on his life including his body, state of mind, employment, profession or occupation, income, quality of life, property and any other aspects concerning his life. Whoever drafted this law has clearly been watching too many blood vendetta movies.

 The manner in which which this Act defines a ‘victim’ is of pivotal importance to this discussion. According to this law, a

‘victim of crime’ can mean a person who has suffered injury, harm, impairment or disability whether physical or mental, emotional, economic or other loss, as a result of an act or omission which constitutes an offense under any law, or a person who suffers harm as a result of intervening to assist such a person. The term ‘victim’ can also be applied to any member of the family and next of kin of such person, dependents and any other person of significant importance to that person. It’s indeed a law to facilitate the pursuit of blood vendettas by other means. Needless to say that if this law is taken to its logical conclusion, what we are looking at is an avalanche of litigation and paperwork that will bury the law enforcement authorities and the courts more effectively than the eruption of Mount Vesuvius buried the city of Pompeii.

 According to the Act, a victim of crime is also entitled to receive a sum of money from the government to defray the costs of breathing down the necks of the law enforcement authorities, the AG’s Dept. and the courts. Under the provisions of the Act, apart from victims, witnesses too are entitled to receive from investigating, quasi-judicial and judicial authorities fair and respectful treatment. A witness shall not be harassed or intimidated, coerced or violated as a consequence of providing information relating to the commission of an offense. Furthermore, a witness shall be entitled to protection against any real or possible harm, threat, intimidation, reprisal or retaliation. This however was always the case, even before Act No. 4 of 2015 was enacted. The intimidation of witnesses was never looked upon with approval by anybody in this country.

 

Institutional backing for victims

 

In addition to all the provisions mentioned above which enable victims to breathe down the necks of the police, the AG’s Dept and the courts, there is provision in the Act for the creation of a National Authority for the Protection of Victims of Crime and Witnesses which is to be run by a Board of Management. The duties and functions of this Authority is to receive complaints relating to and investigate into an alleged infringement or imminent infringement of any right or entitlement of a victim of crime or a witness, investigate and inquire into such alleged infringement or imminent infringement and to require any relevant authority to take such appropriate corrective measures in that regard.

 The victim and witness protection Authority shall have the power to conduct investigations into an alleged or an imminent infringement of a right or entitlement of a victim or witness, and to require any person other than a judicial officer or a Commissioner of a Commission to appear before the Authority and to produce before the Authority any document, a certified copy thereof or other material in his or its possession or custody, including the reports of investigations, information book, extracts and officers visiting book extracts of the police, for examination and copying; to require any person other than a court or a Commission to provide to the Authority in writing, any information which it or he is likely to possess; interview and record the statement of any person other than that of a judicial officer or a Commissioner of any Commission; and make an application to any court or Commission and be entitled to obtain certified copies of any proceedings of any case.

 The Authority is also entitled to enter into, examine and record any event, location or process taking place in any place, including an investigation, inquiry, trial or other proceeding. In other words, if the victim is unable to breathe down the necks of the police, the AG’s Dept. and the Courts, he or she can get the National Authority for the Protection of Victims of Crime and Witnesses to do the job on his behalf. Section 14(1)(f) of the Act states that the Authority may solicit, accept and receive donations, gifts, bequests and grants from sources within or outside Sri Lanka and to apply the same for the proper discharge of it’s duties and functions. Section 24(3) states that the Authority shall not solicit or obtain any assistance from any foreign government or national, foreign or international organization without the prior sanction of the Attorney-General and the Secretary to the Ministry of the Minister in charge of the subject of Foreign Affairs. But that really means nothing. All that the AG and the Minister of foreign affairs will do is to ensure that the funds come from legally acceptable sources.

 Act No. 4 of 2015 is a highly suspect piece of legislation from beginning to end. Why do we need foreign aid to maintain a body meant to look after the interest of victims and witnesses? This will enable interested foreign parties to use the National Authority for the Protection of Victims of Crime and Witnesses to browbeat the police, the AG’s Dept. and even the Courts until they have their way with regard to cases they have an interest in. Any person who fails to comply with any requirement imposed by the Authority will be guilty of an offense of contempt of the Authority which shall be punishable by the Supreme Court as though it were an offense of contempt committed against the Supreme Court itself! Where the Authority determines that a person is guilty of an offense of contempt against the Authority, the Authority may transmit to the Supreme Court, a certificate setting out such determination. Any document purporting to be such a certificate shall be received in evidence, and be deemed to be such a certificate without further proof, unless the contrary is proved. In any proceeding for the punishment of any alleged offense of contempt against the Authority, no member of the Authority shall, except with his own consent be summoned or examined as a witness even by the Supreme Court!

 The National Authority for the Protection of Victims of Crime and Witnesses is not the only institution that has been set up to look after the interests of victims and witnesses. Act No. 4 of 2015 further states that the Inspector General of Police shall, in consultation with and following such guidelines as shall be issued by the National Authority for the Protection of Victims of Crime and Witnesses establish and maintain a special police Division to be called the ‘Victims of Crime and Witnesses Assistance and Protection Division’ for the purpose of providing assistance and protection to victims of crime and witnesses. A Senior Superintendent of Police, who comes under the supervision of the nominee of the Inspector General of Police appointed as a member of the Board of Management of the National Authority for the Protection of Victims of Crime and Witnesses shall be placed in charge of the Division.

 The duties of this special police Division shall be to provide protection to victims of crime and witnesses and to investigate by itself or with the assistance of any other police officer, into complaints, allegations or information pertaining to threats, reprisals, intimidation, retaliations or any harm, harassment, coercion or violation being committed on victims of crime and witnesses and their property. The Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 will only serve to skew the course of justice and to give interested foreign parties a handle on selected cases being heard in Sri Lankan courts.

By Editor

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