In Sri Lanka: New Laws to
Protect Victims and Witnesses of Crime
By Nilan Fernando and Ramani
Jayasundere
Courtesy In Asia, Weekly Insight and Features from The Asia Foundation
Nilan Fernando is The Asia Foundation's
Country Representative in Sri Lanka; Ramani Jayasundre is the Program
Manager, Access to Justice for the Foundation in Sri Lanka.
In April 2005, the Law Commission of Sri Lanka began work on the first-ever
law in Sri Lanka to guarantee the rights of witnesses and victims of
crime. The law's enactment has been "a long-felt need in Sri Lanka,"
which, according to Dr. Lakshman Marasinghe, Chairman of the Law Commission,
will "greatly enhance the country's quality of criminal justice."
At the request of the Law Commission, the governmental body under the
Ministry of Justice responsible for reviewing and reforming the law,
The Asia Foundation provided research support, expert advice, public
consultations, and advocacy for the draft Bill for the Protection of
Victims of Crime and Witnesses. The Commission's public consultations
began in April 2005 and involved members of the bar and judiciary, the
police, the medical association, and other civil society organizations
who collectively discussed the legislation's value and content over
the course of two years. Earlier this month, the Bill received Cabinet
approval and it is soon expected to be passed into law by Parliament.
The legislation establishes a National Authority for the Protection
of Victims of Crime and Witnesses, which will be responsible for monitoring
the enforcement of the new law, codifying the specific rights of victims
and witnesses of crime while providing new protections for both, imposing
tough penalties for any retribution against victims of crime and witnesses,
and establishing a special fund for compensating and protecting victims
and witnesses. The National Authority, according to Dr. Marasinghe,
is designed to simplify the legal system, "so that a person already
traumatized by crime of which he has been a victim shall not get further
traumatized while seeking help from a system established under the proposed
law."
The two-year effort to create legislation gained a surge of attention
after the breakdown of the ceasefire between the Sri Lankan government
and the Liberation Tigers of Tamil Ealam (LTTE) in mid-2006. With mounting
human rights violations by both sides, the Sri Lankan President appointed
a national Commission of Inquiry into Involuntary Removal of Persons
in November 2006 to investigate some of the most egregious violations.
In February 2007, a parallel International Independent Group of Eminent
Persons - headed by Justice P.N. Bhagawati, former Chief Justice of
India - was established to monitor the national commission, provide
expert advice when requested, and report on the commission's progress
to the diplomatic and donor community.
Sri Lankan NGOs have criticized the new legislation for not going far
enough to arrest the growing culture of violence and impunity. Specifically,
they are concerned that the legislation will not adequately encourage
victims and witnesses of crimes in which Sri Lankan government officials
are implicated to come forward; nor, in their view, will it provide
sufficient safeguards to ensure their safety should they choose to do
so.
Proponents of the bill argue that while it may not be perfect, it does
represent a first step by the Sri Lankan Law Commission and the Attorney
General's Office to afford some protection that did not exist before.
Under the law, victims and witnesses will have clear-cut rights and
a legal framework to punish offenders who violate those rights.
In the context of Sri Lanka's conservative legal system and culture,
in which public prosecutors and judges rarely go beyond the letter of
the law to enforce the protection of an individual's rights, this legislation
is significant. For the first time, a special category of rights violations
and victims that requires special attention by law enforcement authorities
will exist, while an institution within the system - the National Authority
for the Protection of Victims of Crime and Witnesses - will prod other
agencies into action.
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