Witness protection in punjab

1. 10 Dec 2011 By B.A.NASIR DIG Establishment WITNESS PROTECTION PROGRAMME IN PUNJAB

2. SEQUENCE 3 Importance of Witnesses in CJS. Why witnesses do not testify or retract their statements ? Need for Witness Protection Law. Witness Protection Methods. Witness Protection Issues. Punjab Witness Protection Act 2011. Way Forward.

3. Importance of Witnesses Witnesses are the cornerstones of successful Criminal Justice Systems. Witness is an indispensable aid in the justice dispensation system. They are the “eyes and ears of justice”. Protection of witnesses from intimidation or threats due to cooperation with law enforcement or judicial authorities is critical to the maintenance of the rule of law. Witness protection programs are a key tool in dismantling the organized crime networks. 4

4. Importance of Witnesses Criminal Justice System does not work fluently to result in prompt determination of guilt or innocence of accused. Prosecution witnesses retract from statements made earlier to the police or turn hostile in the Court. Witnesses turn hostile in cases involving heinous crimes or high profile personalities due to external pressures. Witnesses protection issues came under scrutiny after acquittal of hard core terrorists. 5

5. Why Witnesses do not Testify or retract their Statements ? Police do not record the statements correctly. Police record the statements correctly but were retracted by the witnesses because of “intimidation and other methods of manipulation”. Protracted trials. Several dates for cross examination of witnesses resulting in frustration. Unsympathetic attitude of the police. Corruption in all segments of Criminal Justice System Absence of Witness Protection Programme . 6

6. Witnesses Protection Law - Need of the Hour No comprehensive law for the protection of witnesses in Pakistan. Sec. 21 of ATA 1997 and article 146 & 148 of Qanoon -e- Shahdat Order 1984 which protect the witnesses from being asked indecent, scandalous, offensive, annoying or insulting questions. Witness Protection Laws exist in almost all the developed countries and number of developing countries . Need to draft and promulgate and implement Witness Protection Law . 7

7. Witnesses Protection Methods Target Hardening: Temporary change of residence to a relative’s house or a nearby town; Close protection, regular patrolling around the witness’s house, escort to and from the court and provision of emergency contacts; Arrangement with the telephone company to change the witness’s telephone number or assign him or her an unlisted telephone number; 8

8. Witnesses Protection Methods Target Hardening: Monitoring of mail and telephone calls; Installation of security devices in the witness’s home (such as security doors, alarms or fencing); Minimizing of public contacts with uniformed police; Provision of electronic warning devices; Provision of mobile telephones with emergency numbers; Use of discreet premises to interview and brief the witness . 9

9. Witnesses Protection Methods Procedural Witness Protection Use of a witness’s pretrial statement instead of in-court testimony; Testimony via closed-circuit television or videoconferencing; Voice and face distortion; Removal of the defendant or the public from the courtroom; Partial or fully anonymous testimony (use of pseudonym ). Presence of an accompanying person for psychological support; 10

10. Witnesses Protection Methods Self Protection In absence of an established WPP, refusal of the witness to enter witness protection or lack of eligibility criteria: w itnesses may be offered support to look after their own protection. i n cases of low threat, a lump-sum payment may be offered to witnesses to assist them in their own resettlement. 11

11. Witnesses Protection Methods Self Protection Respective authorities may facilitate and assist with the move without any responsibility. No formal agreement or memorandum of understanding between the parties. Authorities focus on instilling in witnesses a feeling of security. 12

12. Witnesses Protection Issues Balancing of the interests of the prosecution in protecting the witness and the rights of the accused. Importance of an open trial. Rights of the accused in knowing who is testifying against him Section 512 of Cr.PC gives few exceptions if the accused is not available or has absconded and cannot be found by reasonable means, then the court can order the witnesses to testify in the absence of the accused. 13

13. Witnesses Protection Issues Costs of implementation and infrastructure for Witness Protection Programme . Careful selection of cases that merit protection like: high profile, communally charged, involving drugs or organised crime syndicates or cases involving grave offences and terrorism cases. Corruption in all segments of Criminal Justice System- vulnerabilities of protected witnesses (false identities, relocation etc) 14

14. Punjab Witnesses Protection Act 2011 - DRAFT A basic draft of Punjab Witness Protection Act 2011 has been prepared. Provincial Police Officer, Punjab to establish Witness Protection Section in the Police Department. PPO,CPO or DPO to decide the witness and the kind of witness protection measures needed. District & Sessions Judge to approve the protective measures on the request of concerned officer. 15

15. Punjab Witnesses Protection Act 2011 - DRAFT Witness Protection Measures (Sec.3). Protective Measures may include the following; making arrangements necessary: to allow the witness to establish a new identity; or otherwise to protect the witness; relocating the witness; providing accommodation for the witness; providing transport for the property of the witness; providing reasonable financial assistance to the witness; permitting any person involved in WPP to use an assumed name in carrying out duties and to have supporting documentation. 16

16. Punjab Witnesses Protection Act 2011 - DRAFT Witness Protection Measures (Sec.3). doing any other things necessary to ensure the safety of the witness; taking any of the steps for a foreign witness present in Punjab pursuant to an agreement between Pakistan and a foreign State relating to witness protection. PPO,CPO or DPO shall not obtain documentation for a witness participating in WPP that represents that the participant has a qualification that he or she does not have, or is entitled to a benefit that he or she is not entitled to; 17

17. Punjab Witnesses Protection Act 2011 - DRAFT Parameters for Inclusion the in WPP ( Sec.4) Seriousness of the offence to which the statement or evidence of the witness relates; Nature and importance of that statement or evidence; Nature of the perceived danger to the witness; Nature of the witness’s relationship to any other witness being assessed for inclusion in the programme ; Results of any psychological or psychiatric examination or evaluation of the witness conducted to determine his or her suitability for inclusion in the programme ; 18

18. Punjab Witnesses Protection Act 2011 - DRAFT Parameters for Inclusion the in WPP ( Sec.4) Are there any viable alternative methods of protecting the witness; Whether the witness has a criminal record, particularly in respect of violent crime, which indicates a risk to the public if he or she is included in the programme . A witness shall not be included in a Witness Protection Programme unless the witness, or a person legally responsible for the person, agrees in writing to be included in the programme . 19

19. Punjab Witnesses Protection Act 2011 - DRAFT Protection of Judges, Counsels, Prosecutors & Persons concerned with Court Proceedings (Sec. 6 ) The Court may order such measures for the protection of a judge, public prosecutor, counsel and other persons concerned with the proceedings for an offence, which may also include the following : In-camera proceedings or restricted entry to prevent crowding or storming of the court to intimidate the judge or to create a threatening atmosphere; Non-publication of names of judges, counsel, public prosecutor, witnesses and persons concerned with court proceedings; 20

20. Punjab Witnesses Protection Act 2011 - DRAFT Protection of Judges, Counsels, Prosecutors & Persons concerned with Court Proceedings (Sec. 6 ) During any inquiry, investigation or court proceedings, in matter of the identification of the accused , adequate protection to a witness to protect the identity of the witness from the accused. PPO,CCPO,CPO or DPO to take appropriate measures for the protection of the judges, accused, witnesses, prosecutor, defence counsel and anyone concerned with the court proceedings during investigation of an offence and the judicial proceedings. 21

21. Punjab Witnesses Protection Act 2011 - DRAFT Termination of Witness Protection Assistance (Sec.7 ). Protection and assistance provided under the Witness Protection Programme may be terminated by PPO,CPO,DPO if the participant requests in writing that it be terminated; and May be terminated in writing by PPO,CPO or DPO, if: witness deliberately breaches a requirement or undertaking relating to the Witness Protection Programme ; 22

22. Punjab Witnesses Protection Act 2011 - DRAFT Termination of Witness Protection Assistance (Sec.7 ). witness’s conduct or threatened conduct, in the opinion of PPO,CPO,DPO, is likely to threaten the security or compromise the integrity of the witness protection programme ; or circumstances, that gave rise to the need for protection for the witness, have ceased to exist and keeping in view the circumstances of the case the PPO,CPO or DPO is of the opinion that ,, the protection should be terminated. 23

23. Punjab Witnesses Protection Act 2011 - DRAFT Restoration of former Identity (Sec.9). PPO,CPO or DPO, if consider it appropriate to do so, take such action as is necessary to restore the former identity of a person whose protection and assistance under WPP has been terminated in case the participant requests in writing that it be terminated. 24

24. Punjab Witnesses Protection Act 2011 - DRAFT Certain Persons not to Disclose Information (Sec.10). Except under the orders of court, a person who acquires information in the ordinary course of official duties relating to the administration of the WPP, shall not be required in any proceedings in any court, tribunal or commission of inquiry, however described, to: produce any document; or divulge or communicate any matter or thing, relating to the performance of his or her duties in connection with WPP. 25

25. Punjab Witnesses Protection Act 2011 - DRAFT Provision of Information to Competent Authorities (Sec.11). A person who has been provided with a new identity or relocated under this Act; and PPO,CPO or DPO, is notified by a competent authority that the person is under investigation for, or has been arrested for or is charged with a serious offence, they may: release to that authority the new identity or location of the person; provide that authority with the criminal record and fingerprints of the person; release to that authority such other information as PPO,CPO or DPO considers appropriate in the circumstances; and otherwise cooperate with that authority. 26

26. Punjab Witnesses Protection Act 2011 - DRAFT Offences Relating to Witness Protection (Sec.12 ). No person shall, except in accordance with this Act, disclose information: about the identity of a person who is or has been a witness included in the WPP; or that compromises the security of such a person. Penalty : fine up to five million rupees, or imprisonment for a period not exceeding 10 years, or both. 27

27. Punjab Witnesses Protection Act 2011 - DRAFT Offences Relating to Witness Protection (Sec.12 ). No person who has participated in the WPP shall, either directly or indirectly, disclose or communicate to another person: Information relating to anything done by the PPO,CPO or DPO or any police officer under this Act; or Information about any police officer gained by the person as a result of anything done under this Act. Penalty : fine up to five million rupees, or imprisonment for a period not exceeding five years, or both. 28

28. Punjab Witnesses Protection Act 2011 - DRAFT Offences Relating to Witness Protection (Sec.12). This does not apply to any disclosure or communication: that has been authorised by the PPO,CPO or DPO. that is necessary to comply with an order of the competent court. A person in respect of whom an entry is made under this Act in a register of births, register of deaths or register of marriages shall not, while the entry remains in force, use or obtain any document that is based on the previous entry. Penalty : fine up to one million rupees, or imprisonment for a period not exceeding five years, or both. 29

29. Punjab Witnesses Protection Act 2011 - DRAFT Offences Relating to Witness Protection (Sec.12). A witness who has been provided with a new identity under a witness protection programme shall not marry using the new identity unless; the witness is of marriageable age; if the witness has been married previously to another person, the witness is now divorced from that other person, or that other person has died; and there is no legal impediment to the marriage. Penalty : fine up to five million rupees, or imprisonment for a period not exceeding seven years, or both. 30

30. Punjab Witnesses Protection Act 2011 - DRAFT Rules Making by PPO (Sec.14). PPO, with the approval of the Provincial Government, may by notification in the official gazette, make rules for carrying into effect the provisions of this Act. For direction and control, PPO may issue standing orders not inconsistent with the Act or rules made hereunder for the efficient functioning of the Witness Protection Programme . 31

31. WAY FORWARD Enactment and promulgation of Punjab Witness Protection Act 2011, after getting input from all the stakeholders. Appointment of a focal person to establish Witness Protection Section (WPS) in Punjab Police. Preparation of PC-1 to establish the WPS. Provision of necessary budgetary support. Hiring of requisite staff for WPS. Provision of necessary logistic support to the WPS. 32

32. WAY FORWARD Training of all the stakeholders in the Criminal Justice System about the Witness Protection Programme . Inauguration of the Witness Protection Programme . Monitoring of the implementation of Witness Protection Programme by a high level committee, headed by PPO, with representation from all the stakeholders in CJS. Quarterly review of the progress made in the implementation of WPP and submission of report to the CM. 33

33. THANKS 34