Barrister Mustasim Tanzir :
At present there is no specific Act or institution for protection of fitnesses & victims of crimes in Bangladesh. In 2011, the Law Commission of our country prepared a “Final Report on a proposed law relating to protection of victims and witnesses of crimes involving grave offences” which had a “Draft Bill for making a Law providing for protection facilities to victims and witnesses of crimes of specific grave nature” annexed to it. Unfortunately, it is in the cold storage due to some mysterious reason unknown to the common people and it is uncertain as to when it shall be adopted as an Act of the Parliament. It transpires that the creators of the draft were mindful of the financial limitations of the government and as such made provisions only for the protection of the most crucial witnesses of the most serious criminal cases. So, there is no scope for the government to ignore or delay it on the grounds of financial constraints, as the fair trial in a criminal case becomes impossible if the witnesses are intimidated by powerful criminals. Therefore, to transform the draft bill into an Act of the Parliament and to properly enforce it by taking all the concerned steps is of sublime importance. It cannot be kept waiting indefinitely on any ground whatsoever, if the government values rule of law at all.
In all the developed countries, specific Acts and formal institutions for protection of witnesses & victims exist. Before delving deep into our draft bill concerning witness & victim protection, taking a glance at the law and institutions of other countries regarding it may provide us some insight into the matter.
The United States established a formal program of witness protection, under the Organized Crime Control Act of 1970. Earlier in the 20th century, the Federal Bureau of Investigation also occasionally created new identities to protect witnesses from immensely powerful godfathers. Apart from the witness protection system of the Federal Government, many states of the USA has their own formal systems for witness protection.
The Witness Security Programme in the Republic of Ireland is administered by the Attorney General of Ireland, and is operated by the elite Special Detective Unit (SDU). The programme was officially established in 1997, following the assassination of a highly respected journalist Veronica Guerin by a drugs gang she was reporting on. Witnesses in the programme are given a new identity, address and armed police protection either in Ireland or abroad. They are usually provided with financial assistance, as witnesses regularly must leave their previous employment. Witness protection is used in cases of serious, organised crime and terrorism. Court appearances by witnesses in protection are carried out under the security of the Emergency Response Unit (ERU).” the highest tier special weapons and tactical operations group in Irish law enforcement. There has never been a reported breach of security in which a protectee was harmed.
The UK has a nationwide witness protection system managed by a central agency named the UK Protected Persons Service (UKPPS), which is a part of the National Crime Agency. UKPPS was formed in 2013.
In Thailand the witness protection provision is included in the Constitution and therefore it is a matter of Constitutional right.
Similarly Witness Protection Program Act 1996 of Canada, Witness Protection Act 2000 of Republic of China (Taiwan), the “Act for the Protection of Witnesses in Examinations in Criminal Proceedings and for the Improvement of Victim Protection” or the Witness Protection Act (Zeugenschutzgesetz) 1998 of Germany are examples of well drafted witness protection laws.
The Draft of “Victim and Witness Protection Act” that was made by Bangladesh Law Commission is available for all in its website (www.lc.gov.bdl.) At the end of the Act, there is a schedule which provides a list of 14 most serious crimes like murder, rape, smuggling and money laundering, where the victims and witnesses shall be provided protection in concerned cases. Provisions are made for confidentiality of proceedings in Section 17 and also for financial assistance of the protected persons in Section 6 due to their potential loss of livelihood or financial damage due to the risk and hazard of the case.
It is relevant to mention here that, at present, witnesses are provided travel allowance at a rate that was fixed more than 100 years ago in the British colonial era. That allowance is 4 taka only. Even then, due to bureaucratic hassles, corruption and snobbish attitude of some court staff; the witnesses usually never get that. This very issue was discussed by a recent law commission paper produced in a workshop dated 6th July 11, 2015 titled as “Backlog of cases in the courts: causes and solutions” that is available in our law commission website.
Therefore, the provision of financial assistance and travelling allowance for the witnesses provided in the Draft Act is commendable. It is based on insightful analysis earned from real life experience, even though It remains unclear that, how much travelling allowance or financial assistance can finally be provided to deserving persons, bypassing the red tapeism.
Despite the good drafting, one shortcoming is too striking in the draft bill that the mandatory provisions relating to victim and witness protection are provided only for the metropolitan areas; which is clear from a close scrutiny of the Section 3 and 5 of the draft. Section 3(1) states that the offices and committees for witness and victim protection “shall” be formed in every Metropolitan City. On the other hand Section 3(3) states that the government “may” establish such offices in “any district” for witness and victim protection. So, by implication the entire population outside the metropolitan areas is most likely fo be deprived of witness and victim protection programmes, as the draft bill sounds too diffident and weak regarding the non-metropolitan areas.
So, the most crucial and vulnerable witnesses of gravest crimes like rape or murder in all the villages of Bangladesh shall be left unprotected and under the mercy of criminals due to this serious lacuna.
Arguing financial limitations or gradualism or “some other suitable time” in this issue is unacceptable, as “the right to fair trial” based on protection of witnesses and victims of gravest offences is not a luxury or collateral issue, but a most urgent matter of preserving constitutional right and justice.
One of the greatest problems concerning our judicial system is that, even after laws are passed, the authorities are too slow or too careless to take essential steps in order to implement the law, such as, by establishing the law enforcing court or authority.
For an example, Section 21 of the Human Trafficking Prevention Act 2012 has provisions to establish specialized tribunals to implement the Act. Yet no such tribunal was established even after about three years of the enactment. Only after the great and sudden influx of sensational human trafficking news, the government declared that they shall establish Human Trafficking Prevention Tribunals! In the absence of such tribunals, the overburdened Nari-o-Shishu Nirjatan Daman (Prevention of Oppression of Women and Children) tribunals are handling the human trafficking cases as per the provisions of the Act. There are other unused or unapplied Acts of Parliament which are serving only the interest of the academics. Therefore the passing the Witness Protection Act must not be an end in itself, but only the beginning of a new era of speedy and fair trials in our country, where sometimes justice is too much to expect, when it comes to ordinary victims and witnesses who stand against frighteningly high and mighty criminals.
This corrupted state of affairs may create similar thoughts in the mind of the intimidated witnesses and victims like the Japanese proverb which was used during the Middle Ages, when entire Japan was lawless due to civil war among mighty warlords. It says -“In a state of ultimate corruption, expecting justice appears to be a form of madness.” Despite every setback, we dare hope to see a bright day when this act has not only been passed but fully implemented, paving the way to a just society. Only then, the victims and witnesses shall be able to believe applicability of that motto of rule of law which declares it to everyone including even the most powerful persons that “Be you never so high; the Law is above you.”
At present there is no specific Act or institution for protection of fitnesses & victims of crimes in Bangladesh. In 2011, the Law Commission of our country prepared a “Final Report on a proposed law relating to protection of victims and witnesses of crimes involving grave offences” which had a “Draft Bill for making a Law providing for protection facilities to victims and witnesses of crimes of specific grave nature” annexed to it. Unfortunately, it is in the cold storage due to some mysterious reason unknown to the common people and it is uncertain as to when it shall be adopted as an Act of the Parliament. It transpires that the creators of the draft were mindful of the financial limitations of the government and as such made provisions only for the protection of the most crucial witnesses of the most serious criminal cases. So, there is no scope for the government to ignore or delay it on the grounds of financial constraints, as the fair trial in a criminal case becomes impossible if the witnesses are intimidated by powerful criminals. Therefore, to transform the draft bill into an Act of the Parliament and to properly enforce it by taking all the concerned steps is of sublime importance. It cannot be kept waiting indefinitely on any ground whatsoever, if the government values rule of law at all.
In all the developed countries, specific Acts and formal institutions for protection of witnesses & victims exist. Before delving deep into our draft bill concerning witness & victim protection, taking a glance at the law and institutions of other countries regarding it may provide us some insight into the matter.
The United States established a formal program of witness protection, under the Organized Crime Control Act of 1970. Earlier in the 20th century, the Federal Bureau of Investigation also occasionally created new identities to protect witnesses from immensely powerful godfathers. Apart from the witness protection system of the Federal Government, many states of the USA has their own formal systems for witness protection.
The Witness Security Programme in the Republic of Ireland is administered by the Attorney General of Ireland, and is operated by the elite Special Detective Unit (SDU). The programme was officially established in 1997, following the assassination of a highly respected journalist Veronica Guerin by a drugs gang she was reporting on. Witnesses in the programme are given a new identity, address and armed police protection either in Ireland or abroad. They are usually provided with financial assistance, as witnesses regularly must leave their previous employment. Witness protection is used in cases of serious, organised crime and terrorism. Court appearances by witnesses in protection are carried out under the security of the Emergency Response Unit (ERU).” the highest tier special weapons and tactical operations group in Irish law enforcement. There has never been a reported breach of security in which a protectee was harmed.
The UK has a nationwide witness protection system managed by a central agency named the UK Protected Persons Service (UKPPS), which is a part of the National Crime Agency. UKPPS was formed in 2013.
In Thailand the witness protection provision is included in the Constitution and therefore it is a matter of Constitutional right.
Similarly Witness Protection Program Act 1996 of Canada, Witness Protection Act 2000 of Republic of China (Taiwan), the “Act for the Protection of Witnesses in Examinations in Criminal Proceedings and for the Improvement of Victim Protection” or the Witness Protection Act (Zeugenschutzgesetz) 1998 of Germany are examples of well drafted witness protection laws.
The Draft of “Victim and Witness Protection Act” that was made by Bangladesh Law Commission is available for all in its website (www.lc.gov.bdl.) At the end of the Act, there is a schedule which provides a list of 14 most serious crimes like murder, rape, smuggling and money laundering, where the victims and witnesses shall be provided protection in concerned cases. Provisions are made for confidentiality of proceedings in Section 17 and also for financial assistance of the protected persons in Section 6 due to their potential loss of livelihood or financial damage due to the risk and hazard of the case.
It is relevant to mention here that, at present, witnesses are provided travel allowance at a rate that was fixed more than 100 years ago in the British colonial era. That allowance is 4 taka only. Even then, due to bureaucratic hassles, corruption and snobbish attitude of some court staff; the witnesses usually never get that. This very issue was discussed by a recent law commission paper produced in a workshop dated 6th July 11, 2015 titled as “Backlog of cases in the courts: causes and solutions” that is available in our law commission website.
Therefore, the provision of financial assistance and travelling allowance for the witnesses provided in the Draft Act is commendable. It is based on insightful analysis earned from real life experience, even though It remains unclear that, how much travelling allowance or financial assistance can finally be provided to deserving persons, bypassing the red tapeism.
Despite the good drafting, one shortcoming is too striking in the draft bill that the mandatory provisions relating to victim and witness protection are provided only for the metropolitan areas; which is clear from a close scrutiny of the Section 3 and 5 of the draft. Section 3(1) states that the offices and committees for witness and victim protection “shall” be formed in every Metropolitan City. On the other hand Section 3(3) states that the government “may” establish such offices in “any district” for witness and victim protection. So, by implication the entire population outside the metropolitan areas is most likely fo be deprived of witness and victim protection programmes, as the draft bill sounds too diffident and weak regarding the non-metropolitan areas.
So, the most crucial and vulnerable witnesses of gravest crimes like rape or murder in all the villages of Bangladesh shall be left unprotected and under the mercy of criminals due to this serious lacuna.
Arguing financial limitations or gradualism or “some other suitable time” in this issue is unacceptable, as “the right to fair trial” based on protection of witnesses and victims of gravest offences is not a luxury or collateral issue, but a most urgent matter of preserving constitutional right and justice.
One of the greatest problems concerning our judicial system is that, even after laws are passed, the authorities are too slow or too careless to take essential steps in order to implement the law, such as, by establishing the law enforcing court or authority.
For an example, Section 21 of the Human Trafficking Prevention Act 2012 has provisions to establish specialized tribunals to implement the Act. Yet no such tribunal was established even after about three years of the enactment. Only after the great and sudden influx of sensational human trafficking news, the government declared that they shall establish Human Trafficking Prevention Tribunals! In the absence of such tribunals, the overburdened Nari-o-Shishu Nirjatan Daman (Prevention of Oppression of Women and Children) tribunals are handling the human trafficking cases as per the provisions of the Act. There are other unused or unapplied Acts of Parliament which are serving only the interest of the academics. Therefore the passing the Witness Protection Act must not be an end in itself, but only the beginning of a new era of speedy and fair trials in our country, where sometimes justice is too much to expect, when it comes to ordinary victims and witnesses who stand against frighteningly high and mighty criminals.
This corrupted state of affairs may create similar thoughts in the mind of the intimidated witnesses and victims like the Japanese proverb which was used during the Middle Ages, when entire Japan was lawless due to civil war among mighty warlords. It says -“In a state of ultimate corruption, expecting justice appears to be a form of madness.” Despite every setback, we dare hope to see a bright day when this act has not only been passed but fully implemented, paving the way to a just society. Only then, the victims and witnesses shall be able to believe applicability of that motto of rule of law which declares it to everyone including even the most powerful persons that “Be you never so high; the Law is above you.”
