K C Kamalasabesan, Attorney General, Sri Lanka
In the recent past the Department of Attorney General in Sri Lanka has had several workshops, seminars and presentations on the rights of victims of crime. The demand to put in place an effective system designed to ensure that the victim’s rights are protected is gathering momentum. At one point in time, a victim was virtually neglected, if not forgotten in the course of the judicial process. He or she was merely a virtual complainant who was regarded as an instrument for the purposes of activating the legal machinery. The state, while assuming the responsibility of dispensing justice, did very little to ensure that a victim’s right was protected in the long run. Unfortunately, this was a side effect of the adversarial system that is prevalent in the common law countries.
The increase in the crime rate and the need to project a system in which the rule of law prevails are factors that have brought about the situation where the society is compelled to contemplate and provide measures towards the protection of such victims. The percentage of victims is on the increase. So are the numbers of victims who have suffered what may be termed secondary victimization. This expression came into being due to the victims not only undergoing suffering and hardship at the hands of the principal offender but also being harassed and subjected to severe inconvenience at the hands of the state machinery and in the course of judicial proceedings. Against this background, the reaction of the society to re-think along the lines of affording more protection to the victim has been inevitable. It is no exaggeration to say that the National Centre for Victims’ Rights has been acting as an effective catalyst in this process.
I have earlier asserted that it is the responsibility of the state to protect and safeguard the property and person of every citizen, and that whenever a crime is committed it would mean that the state has failed to effectively discharge its responsibility. Thus, the role of the state is of paramount importance. In practical terms, this means not merely the passing of legislation in parliament but also the formulating of appropriate safeguards by the judiciary and the prosecutors, and to some extent the defence attorneys, in the absence of legislation designed to protect victims. How can this be achieved? It is appropriate at this stage to refer to Resolution 40/34 of the United Nations General Assembly, which recognised “that the victims of crime and the victims of abuse of power, and also frequently their families and others who aid them are unjustly subjected to loss, damage or injury and that they may, in addition, suffer hardships when assisting in the prosecution of offenders”, and the adoption of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Last year this was considered and recalled at the Commonwealth Law Ministers Conference, and the members expressed their commitment to the Basic Principles and agreed that member countries would give consideration to the national implementation of measures designed to give practical effect to the said principles.
One of the main proposals set down in the Commonwealth Conference in respect to the judiciary was that its members, and other relevant persons, should participate in training programmes on addressing the needs and legal interests of victims of crime. I for my part do not believe that the members of our judiciary need be told the importance of protecting a victim. Yet, it is possible to set down procedures that would reduce the harassment and inconvenience a victim often undergoes in the course of legal proceedings.
The existing laws contain several provisions that afford the accused a fair trial. The Constitution of Sri Lanka in article 13 contains specific provisions. There are no specific provisions in the Constitution that make direct reference to victims of crime. However, provisions in Chapter VI dealing with Directive Principles of State Policy and Fundamental Duties could be interpreted as provisions that would ensure the protection of victims of crimes. Unfortunately the directive principles are not enforceable in a court of law; although they could be adverted to in Fundamental Rights Applications in cases where the provisions pertaining to Fundamental Rights are interpreted. It is therefore necessary to examine and explore possibilities of protecting the victim’s rights within the existing legal framework.
It is a well-known fact that there is a heavy workload in our courts. This has contributed largely towards the postponement of cases. Time and again I receive letters from victims and witnesses seeking information, complaining of delays (these complaints are directed towards my officers) and also requesting information regarding the present position of a case. In the high court the state assigns counsel to represent the accused. A victim does not enjoy this facility. Section 260 of the Code of Criminal Procedure Act enables an aggrieved party to retain counsel to watch his or her interest. The prosecutor is often precluded from dealing directly with the victim, who is invariably a witness. The net result is that the victim is not kept informed of the progress of the case from the beginning to the end.
One of the important suggestions made at the Commonwealth Conference was to allow victims and witnesses to be on-call for court proceedings. At times this may prove to be difficult due to the heavy trial roll and unexpected postponements. However, judges and prosecutors must consider this issue seriously, and wherever possible introduce a procedure by which the evidence of witnesses is recorded on a specified date. Day to day hearings in the high courts could, at least to a certain degree, ensure that their evidence is taken without delay. A common complaint is that victims are not kept informed of the progress of the investigation and the trial. In so far as the high courts are concerned, this could be overcome by the judge, with the assistance of the state counsel, identifying the victim or representative on the very first day on which a case comes up in court, and informing the person to be present in court on all dates. This may not be possible where the victim is not available or is a witness, in which event he or she may be requested to name a representative who will then be in a position to ascertain the progress of the case. The registrar of the court could also be instructed to inform such persons at the end of the day of the current situation.
It was also suggested that separate waiting rooms be established for the prosecution and defence witnesses. In our country this may cause logistical problems. But the reality is that it is undesirable to have them in one room, particularly since they may have to remain there for long periods. In Sri Lanka, a single witness room has not posed serious problems. However, issues such as this must be resolved on a case by case basis.
The utilisation of court time is an important aspect in ensuring justice and fair play. Unfortunately, in our courts, due to the heavy roll, there are delays in trials being taken up. The members of the judiciary and the bar should work towards easing the congestion in our courts by ensuring that all participants fully and responsibly utilise court time.
We do not have an effective system in place that permits victims to make representations at bail hearings, postponements, plea bargaining, and withdrawal of cases by the prosecution. Notwithstanding Section 270 of the Code of Criminal Procedure Act, invariably such applications and steps are taken without the knowledge of the victim. Even though the judge in the discharge of his functions acts within the law and having regard to the circumstances of each case, at least in plea bargaining the state counsel should work out a channel through which he could communicate with the victim and then address the judge on the relevant issues. On the other hand, even if it is not possible in every case, at least in certain categories of cases, the judge may ascertain the views of the victim or any other person who is connected to the victim, before considering the sentence. The court may in an appropriate case require the state counsel to make available a victim impact statement prior to sentencing.
With regard to offences relating to property, or where any property of the victim is the subject matter of the case, the court should consider giving substantial weight to the victim’s interest in the speedy return of such property. As far as possible, steps should be taken to restore the property to the victim pending trial, with the necessary conditions regarding the production of the same, if required.
I would suggest that to facilitate the court to safeguard the interest of the victim, the state counsel should be sensitised to the fact that public interest should specifically take into consideration the views of victims. The prosecutor could also be vested with the ultimate responsibility of informing the victim or the representative of the status of the case. In addition, the prosecutor should:
- Bring to the attention of the court the views of the victims of violent crime on bail applications, postponements, plea bargaining, and sentencing;
- Take steps against accused persons who harass, threaten, injure or intimidate victims and witnesses;
- In consultation with the judge, work out an on-call system for witnesses, where practicable, to ensure that victims do not waste time unnecessarily in court;
- Establish procedures to ensure the prompt return of victims’ property and, as far as possible, do away with the need for the actual physical evidence to be produced in court;
- Establish and maintain links with victims support structures; and,
- Be sensitised to the trauma and need for wellbeing of victims of serious crimes.
There is no doubt that due consideration should be given at governmental level to the development of an effective mechanism to assist the victims. This may take time. However, the main stakeholders in this exercise are the police, judiciary and Attorney General’s Department. These institutions should be sensitive to the obvious imbalance between the protection of the rights of the victims and the protection of the rights of the accused person, and therefore make a concerted effort to correct this imbalance.
Appendix: Letter by the Asian Human Rights Commission to the Attorney General of Sri Lanka on protection for persons who make complaints of torture against security officers
13 July 2004
Dear Mr. Kamalasabesan
Re: Protection for persons who make complaints of torture against security officers
The Asian Human Rights Commission (AHRC) is seriously concerned about the increase in repeat complaints by several persons who had earlier made complaints of torture by police officers. We cite just a few cases:
- Saman Priyankara, who made a complaint of having had boiling hot water poured on him by an officer of the Matale Police station, on July 7 made a further complaint that he was rearrested and brutally tortured, causing several injuries, including the loss of hearing in one ear. In the same incident, his brother was also assaulted and his wife is complaining of nightly death threats over the telephone.
- Tissa Kumara, who was allegedly tortured and whose mouth was spat into by a TB patient forced to do so by an officer of the Wellipena Police, has also made complaints of death threats after his release on bail, and is now having to live outside his village.
- Chamila Bandara, who made allegations of torture against the Unkumbura Police, has been living away from his home for more than one year, and is unable to return. His family too has been forced to flee their village.
- Michael Anthony (Tony) Fernando, a well-known victim, also lives in constant fear of being attacked, having narrowly escaped an attempted kidnapping, the culprits of which have not been found.
In fact, every complainant whose complaint is being investigated either through the disciplinary process of the police or by a Special Investigations Unit conducting inquiries under the Convention against Torture Act (No. 22 of 1994) is exposed to serious dangers and threats. It is well known that in many instances such complainants succumb to such threats and enter into compromises due to fear.
In November 2003, the UN Human Rights Committee (HRC) examined Sri Lanka’s Periodic Report and observed in its findings the absence of witness protection. Human rights will have very little meaning until people who suffer from violations can make complaints without fear and are offered protection by the state after making such complaints.
Judging from recent cases, it can be observed that the officers who face such complaints virtually instigate many others and openly defy the higher authorities, particularly if the persons holding such high authority take a strict view of discipline. Given the fact that many such inquiries into torture allegations are now proceeding, it is quite likely that such defiance of authority will also continue. One way of demonstrating such defiance is to attack the victims who are making such complaints.
Under these circumstances we earnestly request you to take some special measures to protect the persons who make complaints and to let the public know about such measures. The immediate suspension of officers undergoing disciplinary inquiries, or at least the transfer of such persons away from the relevant police stations, is one possible measure. However, if serious incidents are to be avoided, the means to make complaints about attempts to harm complainants and have them speedily addressed is essential.
It is the duty of the state to protect those who make complaints against state officers. This duty includes the granting of compensation for injuries caused as a consequence of making such complaints.
The AHRC kindly requests that a special protection mechanism be made available to deal with the protection of persons who make allegations or torture against state officers.