• Victims’ & Witnesses’ Protection Nat. Authority Chair, Suhada Gamlath PC notes need for increased support and involvement in victim/witness protection along with greater public awareness 

Oftentimes, in legal battles between multiple parties, victims and witnesses of cases receive considerably low attention and support, and this worsens these groups’ situation as those who are vulnerable and have already been affected by crimes. Sri Lanka has established an Authority to look into the safety and wellbeing of victims of crimes and witnesses, which has provided and is providing services to a large number of people involved in cases, and are in dangerous situations. While the Authority receives support from various parties, there is a need for more support and involvement, and raising awareness among the general public.

The importance of assisting victims and witnesses was underscored by the National Authority for the Protection of Victims of Crime and Witnesses Chairman and former Solicitor General, President’s Counsel Suhada Gamlath, during an interview with The Daily Morning. He extensively explained the Authority’s work and why it is important.

Below are excerpts from the interview:

What are the main functions and responsibilities of the Authority?

This Authority was originally established in 2015 by way of a statute. That is the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015. In our justice system, in a criminal case, you have the accused side and the prosecution side, while in a civil case, there are two disputing parties fighting over a particular issue, and in a Fundamental Rights application, invariably, the State is one party and the claimant of the right is a person who says that their rights have been violated by some Executive member. Now, in this process, there is a large segment that has not been given adequate recognition and as a result gets affected. This is an international concern, which has evolved from contexts such as the Nuremberg war crimes trials and the International Criminal Tribunal for Rwanda concerning horrendous atrocities. That segment is victims and witnesses, who have been perceived as a very vulnerable group because there is no particular protection for these people. This lacuna had to be corrected, and this very serious deficiency in the process of dispensing justice had to be addressed effectively. At the same time, in the Sri Lankan context, there have been lots of clamour for the development of this process at the United Nations (UN) Human Rights Council in Geneva, Switzerland, and also from the diaspora community. It is based on that situation that this Act was originally enacted.

Who does the Authority identify as victims or witnesses?

We first have to pay attention to who a victim or a witness is according to the Act’s legal definition. This Act has taken a great amount of effort to introduce these two concepts into our law, basically in line with the UN’s international standards. The law, as it stands now, is consonant with the international status when it comes to the definition of a “victim of a crime” and “witness”. However, we have not been able to incorporate one particular segment mentioned in the UN Charter on victims of crime, which I think is a lacuna that needs to be addressed. That is victims of the abuse of power, which is a very important segment that should also be brought under this concept.

How does the Authority collaborate with other institutions or professionals, especially when making decisions and providing services?

In order to protect the said two segments, we established this Authority which is an autonomous institution. While I work as the Chairman, we have several officials coming from different disciplines. We directly work with different parties such as the Ministry of Defence, the Police force, the Ministry of Finance, the  Ministry of Justice, and the Attorney General’s (AG) Department. In addition, there are other parties such as non-governmental organisations and medical professionals. We meet once a month to make decisions including policy decisions and other important decisions in relation to those who come to us seeking protection. In addition, there is a Police Protection Division connected with the Authority, and the Police officers in it have been specifically assigned to assist the Authority. Under the Act, they have been given a huge amount of independence. Even the appointment of officers to that unit has to be made in consultation with the Authority. The Inspector General of Police cannot assign officers to this Division as per his wishes, and he has to consult us and then there has to be concurrence between us to make those appointments. The National Police Commission’s concurrence is also required for such appointments. So, there is a very fine-tuned, highly stringent process in place when it comes to selecting the people that work with us. These are of absolute necessity, because our activities are extremely serious in the sense that we grant protection to a very vulnerable segment of the society.

Can you describe the nature of the assistance, especially protections, provided by the Authority?

In deciding to grant protection to a person, there has to be a process. The first step as usual is to make an assessment of the kind of existing threat. For that, there are various institutions from which we call for information. Once the relevant report is available about the existing threat, we make an assessment based on the recommendations in the said report. We decide whether it is a very high, intense threat, a middle level threat, or whether it is a low level threat. If the threat is identified to be a high level one, then, immediate action has to be taken to grant protection to that particular person. 

I will give you an example. There was a woman, who had witnessed the murder of her husband and two children. She was the sole witness to this incident. This woman informed us that her life was under threat, and that she needed protection. We stepped in and granted the protection that she was looking for. In this case, the report that we received showed the intensity of the threat and the need for it to be addressed immediately. So, we have a huge array of powers vested with us under the law for us to do many things. 

One thing that can be done is to remove the person from wherever he or she is, and to relocate them to a place which the perpetrators cannot reach. Once that was done, we then had to take care of her livelihood, food and children, and also ensure protection in that particular environment. In addition, there are so many other things that we do. For instance, the relevant legal case in that woman’s case was initially filed in a certain court in a particular jurisdiction, which was changed. It was upon a request made to the AG. Then, we brought the case to another court which the relevant perpetrators cannot reach easily, and the case is now pending in that area. 

We have introduced a contemporaneous evidence taking process, which takes place via Skype, and under this law, we can have witnesses examined during court proceedings via Skype. We do this all around the country. It has become a very fashionable thing, and lots of courts are making requests for the same. We have a team of people who facilitate this process. In the said woman’s case, the second step that we took under the Act was allowing her to give evidence from the Authority through which the court received evidence via Skype. Through this, the possibility of any kind of harm to that woman was minimised. 

In addition to that, another very important action that we take is making an assessment of the amount of compensation that should be paid to a victim of crime or a witness. When it comes to the payment of compensation, there are two ways through which that could be done. One is, during when the case is pending and ongoing. That is an interim award which is given when the case is not yet finished but the person in question needs some kind of compensation as a financial assistance. That is something that the Authority decides, not the court. We have a compensation account. The Government contributes a little bit to this account. But, we studied the systems around the world and found out that in the United States, it is the money coming from convicts that are used for such funds. Either part of the fine money goes into this account or part of the compensation money awarded will be remitted to this account. We maintain that account, and out of that account, we normally make payments as interim compensation for people to get medical or other types of support. 

The second way is compensation ordered by the court, which takes place at the end of a trial. Into this whole mechanism, we have brought in a very interesting new feature called the victim impact statement. Before a court makes a declaration about the punishment, it calls for a victim impact statement. This process has two segments. One is the victim impact personal statement, in which the victim tells the authorities about how they are affected due to being a victim of a crime. The other segment is the victims’ support report, which is called from experts such as doctors and psychiatrists concerning the extent of damage caused to the victim as a result of victimisation. Both these reports together go to the court as the victim impact statement.

How does a victim or a witness generally get connected with the Authority?

One way is that the people can get in touch with the Authority directly. Based on the information, we take the necessary action including our own investigations. In addition, if the incident in question is an offence committed against a person which is described in this Act, all Police stations around the country who receive this information should consult our Authority or the special Police division that supports us in order to find out what should be done in that regard. So, the first step like in any other case is to connect with either the Authority or the Police. 

Are there reforms, including legal reforms, that you think should be made in order to assist victims and witnesses more effectively?

In my opinion, one of the most important things is to grant expeditious attention to these cases. If there is a very serious threat, how quickly we should move in relation to that is a very vital question. Cooperation is highly important with the Police, medical professionals and other parties that could assist us in finalising the charges and sending the indictments to High Courts against those who committed the offence. In addition, ideally speaking, I think that the Authority should be given powers to file indictments directly. However, we have not come up to that level and have a long way to go.

What is your opinion about the successes and failures of the Authority in terms of assisting victims and witnesses?

As far as the individual granting of protection to people is concerned, I am very satisfied. I think that our success rate is almost 99-100%.

What are the challenges faced by the Authority?

The Authority cannot progress to its fullest scope so long as other issues are not addressed. This includes financial assistance, the recruitment of new Police officers to conduct investigations and better building facilities. All these logistical facilities related concerns have not yet been addressed. In addition to inadequate resources, as a result of the moratorium on recruiting new people, we have not been able to recruit the people to fill the vacancies. At the moment, we are working with a very limited number of people.