'Right to Life':

A fundamental right

S. S, Wijeratne

Some questions and answers on Draft Bill on Victims and Witnesses Assistance and Protection (VWAP)

What is VWAP Law?

The laws that are primarily intended to protect and assist victims of crimes or violation of fundamental rights, witnesses to such crimes following the 1985 UN Declaration on Victims of Crime and Abuse of power. Many countries have enacted VWAP laws. In South Asia, Sri Lanka has become the first country to initiate legislation.

Why are VWAP laws needed in Sri Lanka?

Apart from the 1985 UN Declaration which requests all member countries to enact laws based 1985 Declaration, Sri Lanka urgently needs the new law for the following reasons:-

(i) Crime rate in Sri Lanka has spiraled during the last decade and according to police reports some 61,000 major crimes were reported in 2006. It is well known criminal justice statistics that 96 per cent if the criminals escape detection or convictions.

A leading reason for accused to escape conviction is the absence of witnesses to give evidence. The reluctance of witnesses to come forward to give evidence in courts is because they do not wish to get involved in protracted court procedures.

The absence of protection from threats emanating from the criminal world is another reason. Sri Lanka has no law to punish people who threaten witnesses, except through a long process of contempt of court.

Why are victims and witnesses included in the same law?

Most of the surviving victims like in rape cases are the best witnesses. Under the present adversarial criminal justice systems victims whose human rights are violated by criminals are treated merely as witnesses to prove the case by the prosecutors and discarded afterwards by the police and the prosecutors.

In the course of venturing out to give evidence witnesses including their family members receive grave threats and become victims themselves. Two separate sections in the same law to cover victims and witnesses separately had been suggested and should receive the attention of the law makers.

According to the draft law who is a victim?

Proposed law defines a victim of crime as a "person who has suffered harm, (including physical or mental injury, emotional suffering, economic loss or other loss or infringement of a fundamental right) as a result of an act or omission which constitutes an offence under any law, or an infringement of a fundamental right and includes a person who has suffered harm by intervening to assist a victim of crime or to prevent the commission of an offence and includes a member of the family, or dependent or next of kin of such person and any other person of significant importance to such person."

The definition substantially follows 1985 UN definition but does not limit victims of fundamental rights violations to those who only violated of penal laws.

This expansive definition was necessary as some of the justifiable fundamental rights such as equality before the law or entitlement rights to freedom association and peaceful assembly are not crimes under Sri Lankan penal law.

Hence victims of fundamental rights violations should be de-linked from penal law and should be entitled to protection and assistance independently. This is extremely relevant in the Sri Lankan context, as the "Right to Life" has not been incorporated as a fundamental right in the 1978 Constitution.

Who is a witness?

'Witness' means any person who -

(a) has provided information to any law enforcement authority and based upon which information an investigation or inquiry has commenced or is likely to commence in connection with the alleged commission of an offence or infringement of a fundamental right.

(b) In the course of an investigation or inquiry conducted by a law enforcement authority into the alleged commission of an offence or infringement of a fundamental right, has provided information or made a statement containing an account of matters in respect to which such person has been questioned.

(c) Has reasonable grounds to believe that he will be summoned by a court of law or a commission of inquiry to testify in any proceedings in such court or commission against a person based on a statement made by such person to a law enforcement authority or to a commission of inquiry.

(d) Has received summons from a court of law or a commission of inquiry to make a statement, testify, or produce any document, report or object in any proceedings before such court or commission.

(e) Being a public officer has investigated into the alleged commission of an offence and includes a victim of crime, family member or dependant of such victim or any other person of significant importance to such victim.

The definition does not limit the application of witness assistance and protection to those who appear before the courts. It includes the witnesses who appear before competent Commissions of Inquiry whose recommendations are merely fact finding. Comparative provisions are not found in many countries for comparison.

How are the victims and witnesses protected under the Law?

The law envisages establishment of a National Authority consisting of four nominees of Minister in-charge of the subject of justice, Secretary or nominee of Ministry of Justice, a Representative of the Attorney-General and a Senior Deputy Inspector General of Police.

As far as victims of crimes are concerned the apex officials in the criminal justice system should be involved to make any VWAP law workable.

As far as victim of fundamental rights violations are concerned, involvement of law enforcement officials may not be conducive. To preserve the independence of VWAP authority, the Constitutional Council should be vested with authority to make recommendations for appointments.

The rights of victims of crime are enumerated in the draft law including right to legal representation in the several stages in criminal proceedings.

Under existing law there is no provision making it a statutory duty to provide free legal aid for victims/ witnesses whereas the accused are entitled for legal representation in the High Courts paid for by the State.

Taking into consideration the concept of 'fair trial', indigent accused should continue to receive legal assistance but indigent victims should also be provided with assisted legal representations.

Compensation for victims

The courts are empowered to order compensation to victims from the convicted accused.

More importantly the VWAP authority is required to establish a special VWAP Fund from which assistance may be provided to victims and witnesses to defray approved expenses such as urgent medical treatment.

Many individuals and organisations both national and international have made suggestions to further improve the VWAP draft law.

Appropriate proposals to improve the law should receive close attention in the process of enactment of the Law. VWAP laws are difficult to be enacted or implemented, but a cardinal requirement for human security.