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LAHORE: Although a clause for protecting witnesses does exist in Pakistan’s Anti-Terrorism Act of 2007, the men at helm of affairs in successive regimes have miserably failed in providing the much desired safety and relocation under new identities to people whose testimonies before the courts could have helped the state prosecute innumerable criminals and terrorists by now.
It can thus safely be assumed that Pakistan still features prominently among nations that do not ironically have any effective witness protection programme in trials against organised crime and terrorism.
Forced disappearances and killings of witnesses, non-provision of pseudo-identities for them, no arrangements to modify their voices and shield them through screens or curtains etc. have already led to the acquittal of some of the most feared criminals and terrorists because Pakistani court judges and country’s criminal jurisprudence value testimonies from eyewitnesses perhaps a little more than what most legal systems around the world do.
According to an official report quoted a few months ago by a few reputed local media outlets, not fewer than 1,964 alleged terrorists were acquitted by different trial courts of the country between 2008 and 2014 due to lack of direct evidence against them.
Of these, some 722 had rejoined terrorist syndicates and 12 of them were killed in drone attacks in the country’s embattled tribal belt or in operations directly carried out by the local security forces.
A research conducted by the Jang Group and the Geo Television Network reveals that countries like the United States of America, India, United Kingdom, China, Sweden, Israel, Thailand and Latin America etc. are miles ahead of Pakistan when it comes to guarding people who have legitimate fears once they commit to testify before the arbiters.
Most of these above-mentioned countries have well-trained and equipped specialised state-run units, which are entrusted with this task that is
both challenging and daunting.The United States Witness Security Programme against the Mafia-controlled crime had begun in the 1960s, following lengthy debates on the subject and after Hollywood movies and television serials had served as opinion-making catalysts.
However, the US had succeeded in establishing a formal programme of witness protection under the Organised Crime Control Act of 1970. This initiative is since being run by the country’s vigilant Marshal Service. The US Victims’ Rights and Restitution Act (1990) also exists to help secure the witnesses and their families.
A peek into US history shows that witness protection is not a new phenomenon at all.The Ku Klux Klan Act of 1871 was aimed at protecting people in a bid to facilitate them to testify against members of the much feared and racist Ku Klux Klan, which became notorious for its violent role against African Americans in the South during the Reconstruction Era of the 1860s.
While arrangements, known as S-5 and S-6 Visas, exist to bring key alien witnesses into the United States from overseas, the T Visas may be used to admit victims of human trafficking into the United States once they show their willingness to assist in prosecuting the smugglers.
By mid-2008, as research sheds more light on the issue more than 7,500 witnesses and 9,500 of their family members had entered the US Witness Protection Programme and none had actually been killed.
In India, the Delhi High Court had issued guidelines to the police on providing protection to witnesses to curb the menace of their turning hostile, leading to acquittal of accused in heinous crimes.
This decision was given by a bench comprising Justice Usha Mehra and Justice Pradeep Nandrajog on a petition filed by Neelam Katara, whose son Nitish was allegedly kidnapped from a marriage party in Gaziabad (New Delhi) by Rajya Sabha MP Yadav’s son Vikas and his nephew Vishal.
The abducted man Nitish was subsequently killed by his affluent kidnappers.While the Indian Supreme Court has also talked about witness protection in its numerous verdicts and observations, the August 2006 Law Commission report on Witness Identity Protection and Witness Protection Programmes had dealt with this issue extensively.
The Unlawful Activities (Prevention) Amendment Act 2004 and the Juvenile Justice (Care and Protection of Children) Act of 2000 also contain provisions for witness protection in India.The anti-terrorism Indian law, called the Terrorist and Disruptive Activities (Prevention) Act, or TADA, may be infamous for its widespread allegations of abuse since its formal enactment in the background of East Punjab Sikh insurgency and the subsequent June 1984 Indian Army-led Operation Blue Star at Amritsar’s Golden Temple in June 1984, but it certainly contains provisions to protect the vulnerable witnesses.
The Prevention of Terrorism Act of 2002 (POTA) has also discussed this issue.However, innumerable Indian jurists have often lamented the fact that despite having such a detailed Penal Code and an organised judicial structure, the world’s largest democracy does not have an ideal witness protection programme!
In the United Kingdom, as many as 3,000 people across the country were believed to be involved in witness protection schemes, receiving new identities or advice on personal safety.An effective support system for those who risked life-giving evidence in British courts was upgraded in 2013 to improve co-ordination between police forces.
The January 24, 2014 edition of a prestigious British newspaper “The Guardian” states: “Re-branded as the UK Protected Persons Service, the support system for witnesses and victims was upgraded last year to improve co-ordination between police forces. The National Crime Agency oversees the service. There have been complaints in the past about the way protection programmes operated and the disruption inflicted on the lives of witnesses who may not have had access to legal advice before signing co-operation agreements with the police. According to the UK Ministry of Justice, 18 per cent of witnesses who gave evidence in 2009/10 reported that they or their family had felt intimidated at some point.”
In Britain, an amount to the tune of about 20 million pounds per annum is spent on protection schemes. For decades, witnesses threatened during the troubles in Northern Ireland have been given sanctuary in England.
Going into a bit of history, towards the end of 2012, the British Ministry of Justice had launched the UK’s first national witness protection scheme to keep vulnerable people safe from intimidation of defendants.
According to BBC, the establishment of the UK Protected Persons Service had initially cost 211,000 pounds to the Ministry of Justice and Home Office.A December 28, 2012 report of the BBC had maintained: “The Ministry of Justice, which said 19 million pounds a year was currently spent on protecting witnesses, said the new system would introduce national quality standards and ensure better co-ordination across “existing fragmented services. It would also promote better intelligence-sharing between police forces.”
In February 2012, the London Metropolitan Police and the Crown Prosecution Service had paid a family more than 600,000 pounds in damages and costs after a child witness was identified to a gang.
In China, Article 49 of the Criminal Procedural Law explicitly states that courts and the public security organs should ensure the safety of witnesses and their near relatives.
The law adds: “Anyone who intimidates, humiliates, beats or retaliates against a witness or his near relatives, if his act constitutes a crime, shall be investigated for criminal responsibility according to law; if the case is not serious enough for criminal punishment, he shall be punished for violation of public security in accordance with law.”
Article 306 of the Peoples Republic of China Criminal Procedural Law says: “If, in criminal proceedings, a defender or agent ... coerces the witness or entices him into changing his testimony in defiance of the facts or give false testimony, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.”
Articles 307 and 308 of the Chinese Law also prescribe stern punishments for judicial officers and people found guilty of obstructing witnesses from giving testimonies.
There are reported cases in China where witness protection has been provided.One such case had happened in November of 1998, when a Chinese court was adjudicating a serious abuse of official power case. The key witness in the case, a Hong Kong businessman, had asked for personal (witness) protection.
A witness protection team was formed promptly to protect the Hong Kong witness from the time he crossed over from Hong Kong into China.He was guarded till the time he had safely returned to Hong Kong after the trial.
In December 2001, the Swedish government had assigned an investigator the task of preparing a National programme for witness/victim protection. The assignment included drawing up a proposal for a suitable organisation and its administration within the police authority.
The investigator was also asked by the Swedish government to consider whether witnesses ought to receive compensation for any incurred costs. The investigator had hence presented his results and conclusions in December 2003.
According to the Swedish Police Act, it is the duty of the police to prevent crime and provide the public with protection. This regulation governs the police’s duty to protect a person who is exposed to a threat from someone else. One part of such protection can be to provide an alarm device and in exceptional cases, bodyguard protection.
The police can also arrange relocation to a secret place and afford assistance in matters like protection of personal records and change of identity.
If there is found to be a particularly strong threat to a person, he/she can be granted the right to use a fictitious identity in accordance with the provisions of the Law on Fictitious Personal Identification Data.
It should be kept in mind that normally, most information that authorities have about people in Sweden is public information.
So, for this to be done, it is required that other protective measures, such as secrecy classification or non-registration of new residence, are deemed to be insufficient. The competent authority for these issues is the Stockholm District Court, which makes its decision upon a request by the National Police Board.
Once the court has authorised the use of fictitious data, the National Police Board decides about the identification data to be entered into the population registration database.
In Israel, during July 2008, authorities had announced that they would have a witness protection programme in place for 20 initial witnesses by early 2009.
The Israeli government had then gone on to establish the Witness Protection Authority under the Ministry of Public Security, and appointed the equivalent of a retired general from Israel’s counter-intelligence and security service to head this department.
Thailand maintains a witness protection office under the jurisdiction of the country’s Ministry of Justice. Between 1996 and 1997, provisions were drafted for inclusion of a section covering witness protection in the Kingdom’s 16th constitution, and finally, the witness protection provision was included in the constitution and took effect in the middle of 2003.