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By Medhaka Fernando, South Asian Centre for Legal Studies
Structurally, witness protection programmes could exist in a number of different forms. Countries often have a single national witness protection programme which has overarching application to all regions of the country. This is also the case in Sri Lanka with the framework created by the Protection of Victims of Crime and Witness Act.
Under such a system, a centralised institution established by way of legislation is normally in charge of administering the witness protection scheme and protecting witnesses. This task is performed with or without the assistance of external entities. A good example of this kind of overarching structure is the US Federal Witness Security Program. Under this scheme, the Office of Enforcement Administration within the US Department of Justice manages the witness protection programme, with the assistance of the US Marshals for threat assessments and protection activities.
Alternatively, a country could have a more decentralised and regionally autonomous witness protection structure, whereby regional witness protection programmes co-exist with a national witness protection programme. Under such a structure, the regional protection programmes are given complete autonomy to carry out their own threat assessments and protection activities.
Generally, a regional protection programme relies heavily on its regional police forces in this regard. A notable feature of this latter structure is the strong linkages found between the national and regional protection programmes. Often, when at-risk witnesses under the national witness protection programme are relocated to a region, the relevant regional witness protection programme provides technical assistance to facilitate such relocation.
This article will briefly consider the organisational structures of witness protection schemes within a few countries and suggest ideas/lessons for Sri Lanka’s general witness protection scheme, and the transitional justice mechanism based victim and witness protection units.
Although centralised organisational structures of victim and witness protection are more ubiquitous around the world, countries like Australia, Canada and Germany have established successful regional/local level witness protection programmes. Both Australia and Canada give a very high level of autonomy to their regional witness protection programmes.
For example in Canada, provincial and municipal police forces have the power to establish and maintain their own witness protection programs, parallel to the national protection program administered by the Royal Canadian Mounted Police.
Similarly, Australia which has an overarching National Witness Protection Programme simultaneously gives every state within Australia the right to carry out a witness protection programme with the assistance of state-level police forces. Under the Australian scheme, state police primarily run the state witness protection scheme, whilst also providing appropriate assistance for the national witness protection program, when requested.
Other jurisdictions like Germany and the regional state of British Columbia in Canada have adopted a somewhat ‘hybrid organisational structure’ in relation to witness protection. Within these two jurisdictions, sufficient autonomy is given to regional witness protection programmes. However, protection activities also follow a somewhat integrated approach.
In Germany, the Federal Bureau of Investigations (BKA)—which is a national level institution—works in tandem with the regional police to provide protection. Likewise, in the state of British Columbia, the Royal Canadian Mounted Police and the municipal police departments of the province have established an Integrated Witness Protection Unit in order to provide witness protection within the region.
In contrast to the above jurisdictions, South Africa has a very centre leaning organisational structure. Within the South African model, provincial protection officers are put in charge of running the national witness protection programme within South Africa’s provinces. Despite each province having a ‘provincial witness protection director’ who is responsible for a financially autonomous regional office, these regional offices are ultimately answerable to the Deputy Witness Protection Director of the national witness protection programme.
The experience in Australia indicates that there is often a correlation between an autonomous and self-sufficient regional witness protection programme, and its overall effectiveness. To illustrate, the Crime and Corruption Commission (CCC) of Queensland is the entity in charge of the witness protection programme in the state of Queensland in Australia.
The CCC (which is a highly autonomous and independent statutory body established through legislation) has, since the mid-2000s, had a consistent record of keeping 100% of its witnesses safe. In light of such experience it is apt for Sri Lanka to seriously consider the value of having provincial witness protection programmes within the country. Autonomous provincial protection programmes of this nature are generally successful because they enable protection officers to interact more closely with victims or witnesses. They also utilise local knowledge and expertise in order to assess and deal with protection related challenges.
It is paramount for Sri Lanka to explore the viability of establishing provincial witness protection programmes right now, due to ongoing discussions on constitutional reforms taking place in the country. One of the key ideas being explored in these discussions is the possibility of meaningfully devolving police powers to the country’s nine provinces.
If police powers are meaningfully devolved to the provinces of Sri Lanka under its new constitution, a clear path towards establishing autonomous provincial witness protection programmes begins to open up. The creation of provincial protection programmes, especially for the Northern and Eastern Provinces of Sri Lanka will have the clear benefit of bridging the existing trust deficit of many Tamil speaking victims and witnesses towards the national scheme.
Many of these victims and witnesses have little or no faith in the framework created by the Assistance to and Protection of Victims of Crime and Witnesses Act, since protection has been vested in the hands of a ‘Division’ which is not independent from the Sri Lankan police. However if victim and witness protection is given under a localised protection scheme, through a provincial police force that has been thoroughly vetted for suitability, the apprehension felt by many victims and witnesses in the North and East is likely to be appeased to a certain extent.
Additionally, witness protection and assistance activities should be able to swiftly change/adapt to suit the specific security challenges and socio-cultural sensibilities of the region where the protection activities are taking place. This can be best achieved through a regional witness protection scheme that has the necessary local knowledge, intelligence as well as a high level of autonomy to take its own protection decisions without outside interference.
A centre leaning regional protection model, akin to what exists in South Africa, would not be suitable for Sri Lanka since regional protection officers under the South African model are ultimately responsible to the centre. Adopting this kind of operational model leaves room for political interference, especially in a country like Sri Lanka.
As mentioned in the first article in this serial titled Contextualising Victim and Witness Protection for Transitional Justice, the primary stakeholders of every transitional justice process are its victims and witnesses. It is therefore fundamentally important for the victim and witness protection units within existing and future transitional justice mechanisms to be completely autonomous from the security sector and police forces of Sri Lanka.
The autonomy of the protection units should also be akin to that of the regional witness protection programmes of Australia and Canada, which can function completely independently without interference from the national witness protection programmes in their countries. It is therefore reassuring to see the complete separation of the ‘Victim and Witness Protection Division’ of Sri Lanka’s Office on Missing Persons (OMP), from the national witness protection system. Nonetheless, the OMP Act does provide discretion for this Division to ‘coordinate with law enforcement officials where it deems necessary’.
In spite of such discretion, the OMP’s Victim and Witness Protection Division should guard against using this power for the purpose of delegating threat assessment or protection activities to law enforcement officials. Such a course of action could seriously erode the trust and confidence of many victims and witnesses.
Taking cue from the OMP, the victim and witness protection units of Sri Lanka’s future transitional justice mechanisms (Truth Commission, Special Court and Office on Reparations) should also have the same level of separation from the country’s flawed national protection scheme. Moreover, the legislation establishing these ad-hoc bodies should grant the inbuilt witness protection ‘Divisions’ adequate operational capacity to carry out their responsibilities without relying on the support of law enforcement officials.
The transitional justice mechanism based witness protection units should also decentralise their internal activities, akin to South Africa’s national witness protection programme. Practically, this means appointing provincial protection officers who can carry out the mechanism’s protection programme from the regions. These officers should be ultimately answerable to the head of the witness protection Division within each ad-hoc mechanism. Such decentralisation would be very important given the regional dispersal of the victims and witnesses likely to come before these mechanisms.
Having a strong ground presence in every region of the country would not only enable better protection, taking into account local conditions and knowledge, but would also subconsciously strengthen the mindset/faith of many apprehensive victims and witnesses coming before the ad-hoc mechanisms.
Autonomous victim and witness protection systems around the world have been successful due to the advantages of flexibility, local expertise and proximity to victims and witnesses. Sri Lanka must seize the momentum created by the ongoing constitutional reform discussions on meaningful devolution of power, to explore the possibility of establishing provincial level witness protection programmes.
Autonomous provincial protection programmes, in a backdrop where police powers have been devolved to the provinces, could be relied on by many victims and witnesses to avoid the lack of independence and propensity for political interference under the national witness protection system. Similarly the idea of autonomy needs to be the bedrock of the transitional justice mechanism based protection programmes of Sri Lanka.
