Foreword: The importance of protecting witnesses

Basil Fernando, Executive Director, Asian Legal Resource Centre, Hong Kong

Without witness protection there can be no fight against impunity. Without witness protection, victims of human rights abuses who complain and seek justice must face serious threats leading to physical harm and possibly death of themselves or their loved ones. This violence is brought onto them by powerful people, whose power invariably comes from the uniforms they wear.

A legal system that promotes justice but does not set in place the means to protect witnesses is a fraud. When victims of human rights abuses understand this, they do not come forward to assert their rights against the perpetrators. No attempt is even begun to make complaints and assert rights. The victims remain silent, inert and fearful.

A justice system depends upon evidence being collected and brought before the courts. If fear prevails, evidence cannot be collected. When evidence is not collected, the courts either do not take up cases or dismiss the charges against the accused, as the judge can only consider what is brought before the court. In this manner, the perpetrators of torture, extrajudicial killings and forced disappearances routinely escape justice.

Just as the outcome of a case depends upon the quality of evidence presented to the court, the quality of evidence depends upon the investigation, from its earliest stages. If a complainant is unafraid and comes forward shortly after a crime, describes in detail what happened, points to other persons and materials that substantiate this account, is supported by other witnesses and does not change the account, the case will probably be a success. By contrast, if a complainant is fearful and has low expectations of the courts, coming forward only much later–if at all–reluctantly giving details of what happened and who else may be able to substantiate the story, and under pressure changes the account, the case is unlikely to succeed. In human rights cases especially, the determining factor between one outcome and the other is protection.

Witness protection is also about how a judge exercises authority. In a developed legal system, the judge asserts the prerogative to make decisions on how the case is handled. Respect for that authority is determined by the extent of respect for fair trial. Where fair trial is respected, judicial orders are upheld. Where fair trial is sabotaged, judicial orders are mocked. When the accused is able to get rid of prosecution witnesses or cause them to reverse earlier testimony, the court also is made into a cruel parody. Whatever formal gestures the judge may make, the authority of the court is diminished.

The authority of a court and respect for fair trial are put to the greatest test when state officers are the accused. A law enforcement officer has many more means than an ordinary person to ensure that complaints against him are never heard by a judge. Where they are heard, he has still many other means to reduce a trial to farce. In most cases against law enforcement officers in Asia, witnesses are afraid to appear in court. Where they do appear, they deny earlier testimonies or lie blatantly in a desperate attempt to escape retribution. At such times, the perpetrator is laughing loudly at the court and its judge.

So the absence of witness protection and the absence of fair trial are one and the same. When the public understands that the courts are in the hands of police and politicians, and even the best judges can be manipulated and cornered, the entire system loses credibility. Where judges are active participants in this charade, the very notion of justice will be lost to the society. Where a case is repeatedly postponed because witnesses have not appeared or alleged perpetrators are acquitted “for lack of evidence”, the judge may be acting within the law but the effect is that the court is making a mockery of itself. Under these circumstances, institutions of justice lose all credibility.

Protecting witnesses is a duty of the state. This is a fundamental and globally-established principle. Where the state declines to protect witnesses, it denies justice to society. The state must find the people, money and means to do this. A state that talks about witness protection but does not allocate funds and resources for that purpose fails in its duty. But the real problem in setting up a witness protection programme is not money; it is about the place of witness protection in state policy. Where the importance of protecting witnesses to obtain justice is understood and articulated, an authority to give effect to this policy can be quickly established and developed. There are many available resources for such work these days.

What should be expected of a proper witness protection programme? It must be easily accessible. It must be widely known and its role understood. It must respond promptly to requests. It must have a range of alternative forms of protection available to witnesses, including special protection in courts. It should also be able to protect identities when required. It must respect confidentiality. A working protection scheme will win public confidence, support and cooperation, and have profound effects on the country’s entire judiciary.

Thailand is among those countries in Asia that has gone through a long history of heavy military and police control. This history has created a deep and enduring fear among victims of human rights abuses there. That fear is the heritage of all countries with long traditions of social repression. But people in Thailand are now struggling hard to throw off that heritage. They have taken their country from dictatorship to formal democracy. They are now trying to move it from a merely formal democracy to a genuine one. In many respects, this is a far more difficult task than to overturn dictatorship. It involves much deeper transformations that challenge more widely-held notions about state and society.

It is at this stage that the right to complain against abuses and obtain redress begins to be understood, even among the poorest parts of society. To lift the blanket of fear off the largest numbers of people in the society in order that they may exercise this right takes a lot of effort and time. But if the thoughts and emotions of these people are not freed from ancient constraints, genuine democracy and respect for human rights cannot be expected to take hold.

It is clear that when we are talking of protecting witnesses we are in fact talking about much more. We are talking about the credibility of the courts, the quality of justice, the spread of democracy and the changing of society. But in the end, the talk about protection itself must come back to the victims and witnesses themselves. They are the ones who can voice their needs and make plain to society what must be done. They must be encouraged to talk loudly. They must make their experiences known by every means possible. They should expose the real face of law enforcement, and the real meaning of the courts. Anyone concerned by impunity, authoritarianism and state-controlled violence should work closely with them, amplifying and expanding on their voices so that through effective witness protection, respect for the courts, justice and human rights can be realised.

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