The New Nation - Internet Edition

K.M. Mukta

Victim and witness protection is condition precedent for fair trial. Witnesses are often intimidated by people or parties whose interests are being threatened. Witness protection program and witness protection laws are simply the need of the hour. To ensure fair trial and the administration of justice is the obligation of the country, under international (ICCPR article 14) as well as domestic law. Victim and witness protection is essential to fair trial. It therefore follows that states are obliged to provide such protection. When their time for deposing or the giving of evidence comes, the lawyers examine and cross examine them as if they themselves are the perpetrators of the crime. Many times the wretched witness has to flee from the normal life as his life, family and property become jeopardized.

Witness is a person who testifies under oath in a court of law. Witness protection is protection of a threatened witness, before, during and after a trial, usually by police and other state machineries. While a witness may only require protection until the conclusion of a trial, some witnesses are provided with new identity and may live out the rest of their lives under government protection.

Witness protection is provided only for witnesses whose testimony is determined to be essential to the successful prosecution of a criminal case and in which the witness's life or the life of his family is at risk.

Witness protection is usually required in trials against crime and other sensational cases where law enforcement sees a risk for witnesses to be intimidated by colleagues of defendants or any segment. It is also used at war crime trials. But it should be noted that witness protection might be essential in cases wherever the witness's life and security is at stake.

To depose in the court to find out the fact is a civic responsibility but, of course, it should not be in exchange of one's right to life. To establish and uphold rule of law, witness protection measures have unparallel and distinctive role. Through dynamic and fruitful witness protection matrix the alleviation of scar of lowest conviction rate, free, fair and spontaneous deposition of the witnesses could be ensured. To demolish muscle man's undue influence, black money's arrogance, hooliganism of vested group in administration of justice, the mechanism of witness protection should be taken on priority based. To secure life and property of the witnesses, state should take sufficient measures through legal, financial, rehabilitative or any other mood. Humanly, it is not possible to become indifferent towards life threatening fear and depose in court culminated in negation of justice to the commonalty which is a constitutional promise and nourished dream of independence. Wisdom and legitimate expectation would not support that one would not be able to tell the truth to co-operate court for justice due to the fear of frustrating the entity as it goes against the opponent.

Lack of Witness protection maneuver, we discover the jeopardization of witnesses' invaluable life and property. The concerned and vital witnesses do not appeared court to depose resulted in the lowest conviction rate. All victims of crimes are also witnesses. In fact, as eyewitness to the incident, they are the most important witnesses to the case; some cases are not able to be proved without eyewitness testimony.

Not all witnesses however, are victims; they may be bystanders or relatives of victims. They can however, become victims of threat and intimidation for testifying in court. Witness protection is therefore an essential part of ensuring justice and fair trial. Today the witnesses are harassed a lot. Not only that the witness is bribed, threatened, abducted, even maimed or done away with. For all these reasons and many more, a person abhors from becoming a witness. The present judicial system has taken the witnesses completely for granted. Witnesses are summoned to the Court regardless of the fact that they have no money, or that they cannot leave their family, children, business etc. and appear before the Court.

On reaching the Court, some are told that the case has been adjourned and the respective lawyer politely gives them a further date for their next appearance.

In the matter of Swaran Singh v. State of Punjab, the Supreme Court observed,

"A witness has to visit the Court at his own cost, every time the case is differed for a different date. Nowadays it has become more or less fashionable to repeatedly adjourn a case. Eventually the witness is tired and gives up."

To ensure fair trial and the administration of justice is the obligation on Bangladesh under international (ICCPR article 14) as well as domestic law in a sporadic way as there is no specific legislation as such.

Furthermore, international law also obliges states to ensure that victims of human rights violations have recourse to effective remedies (ICCPR, article 2(3)). Remedies for any violation must include the prosecution and punishment of perpetrators, as well as suitable reparation for victims.

In seeking these remedies, victims and witnesses must not be intimidated or threatened. Other obligations under the ICCPR that hinge upon states having an effective witness protection programme include the right to life, freedom from torture and cruel, inhuman or degrading treatment of punishment, right to security of person and freedom of movement .

Unfortunately, witness protection is substantially a barren chapter in Bangladesh and begets murder, disappearance, declination of testifying, damaging property, etc. which is the surname of bowing head to injustice and might is right.

Witnesses and whistle blowers must be protected because they are key elements in providing evidence in court. Implementation of the rights guaranteed under international law requires effective legislation and competent authorities. There should be specific enactment in this regard. Other legislation needs to be amended and developed to complement the Witness Protection Act, such as the Criminal Procedure Code, Evidence Act, etc.

This must include more express provisions on the penalties for intimidating witnesses, and criminalizing acts that obstruct the course of justice.

Only enactment of law is not enough, the public needs to know about witness protection in general. If the Witness Protection legislation is enacted, it will become an important source of protection for people intending to expose a variety of criminal activities. There should be Witness Protection legislation defining key words clearly. The witness protection office should be given managerial and administrative power over witness protection with necessary logistic support. Legal and medical professionals should also be trained on witness protection. Very often the first persons to have contact with victims and witnesses in need of protection are public prosecutors and other lawyers, or doctors and other medical staff. There should be special efforts to inform these persons on witness protection, and incorporate them into relevant procedures.

A doctor treating a person who has allegedly suffered torture, or a public prosecutor who has been assigned to their case should know to contact the Witness Protection Office without delay, and make arrangements for staff from the office to visit the person immediately. Lawyers should be able to explain to a client about witness protection and advise whether or not the client should request it. Judges should be taught to identify cases of possible torture or intimidation and be given explicit powers to take additional steps to protect the rights and interests of the accused, including by ordering independent physical and psychological examinations before a defendant is released on bail or detained to await trial. Professional associations such as the Bar Council can play an important role in advancing knowledge of witness protection among their members.

In one such instance, the Delhi High Court, has on 14th October 2003, issued certain guidelines to the police in providing protection to the witnesses in cases pertaining to life imprisonment or death sentences. The ruling is an attempt to check witnesses from turning hostile under threats from the accused. The Delhi High Court has given the following guidelines in giving witness protection:

'The Court has also made it compulsory for the investigating officer of a case to inform the witness about the new guidelines. The Court has appointed the Member Secretary of the Delhi Legal Services Authority to decide whether a witness requires police protection or not. The competent authority shall take into account the nature of security risk to him/her from the accused, while granting permission to protect the witness. Once the permission is granted, it shall be the duty of the Commissioner of Police to give protection to the witness.' The High Court said that its order would operate until legislation is passed in this regard.

Therefore, a person who has given or has agreed to give information or evidence or participates or has agreed to give information or evidence or participates or has agreed to participate in a matter pertaining to inquiry into the investigation or prosecution of an offence and who may require protection because of the risk to the security of the person arising in relation to the inquiry, investigation or prosecution be given witness protection by the police.

These may include relocation, accommodation, and change of identity in order to ensure the security of the protectee or to facilitate the protectee's re-establishment or his/her becoming self-sufficient.

Protecting witnesses is a duty of the state. This is a fundamental and globally-established principle. Where the state declines to protect witnesses, it denies justice to society.

The state must find the people, money and means to do this. Witness protection regimes and programmes in Canada, Switzerland, Republic of China, New Zealand, etc. might be the model in this regard for Bangladesh. Go, NGO and all stakeholders should come forward in this regard setting aside traditional lackadaisical ness.