Witness Protection Lacking In Indonesia, Nepal
HUMAN RIGHTS COUNCIL
Fifteenth session, Agenda Item 4, General Debate
A written statement submitted by the Asian Legal Resource Centre(ALRC), a non-governmental organisation with general consultative status
ASIA: Effective Witness Protection Lacking In Indonesia And Nepal
The Asian Legal Resource Centre (ALRC) wishes to highlight two situations that illustrate the obstacles to the protection and enjoyment of human rights and the delivery of justice in cases of violations of human rights. One of the major obstacles that prevents cases of human rights violations from being successfully prosecuted in courts in most countries in Asia is the absence of effective witness protection mechanisms. In the following statement, the situations of Nepal, where there is no functioning system for witness protection and Indonesia, where a system has been established, but is not functioning effectively, are presented to illustrate the need for such mechanisms to be fully resourced and implemented.
NEPAL: The absence of a comprehensive witness protection mechanism in Nepal contributes to the general climate of impunity which prevails for past and present human rights violations in the country. NGOs, UN expert mechanisms and some governments have regularly expressed concerns regarding this lacuna. They have recommended a number of measures be taken by the Nepalese government to assist the process of justice delivery and guarantee accountability for both past and present human rights violations.
In 2007, the U.N. Committee Against Torture (CAT) expressed its concerns regarding the lack of witness protection and recommended the adoption of appropriate legislative and administrative measures to ensure that all persons who report acts of torture or ill-treatment are adequately protected. Similarly, in its 2008 report regarding its investigation of conflict-related disappearances in Bardiya District, the Office of the High Commissioner for Human Rights Nepal office (OHCHR-Nepal) urged the government to 'Guarantee protection and security against ill-treatment, intimidation or reprisal, for witnesses, relatives of the disappeared, human rights defenders and others investigating or carrying out advocacy regarding disappearances and other human rights violations’ and to set up ‘a witness protection scheme for those cooperating with official investigations'.
However, the government has remained passive concerning these recommendations. A bill on witness protection was drafted in 2005, but has not been enacted since then. The current political stalemate besetting the government will likely extend this inaction. The Evidence Act still lacks provisions regarding witness protection. Laws such as the Torture Compensation Act do not include protection guarantees for victims reporting cases of torture and their witnesses. In terms of transitional justice, it is crucial that the bills establishing a Truth and Reconciliation Commission and a Commission on Enforced Disappearances should equip both institutions with resourced and effective witness protection mechanisms. So far, insufficient promises have been made in that regard. Significantly, the 2009 annual report of the OHCHR regarding the activities of their office in Nepal underlined that the improvements required to ensure the compliance of the draft bill on Truth and Reconciliation with international standards include 'increased witness protection.''
Nepal’s police lack the proper training and equipment to provide individuals at risk with adequate protection and have often failed to do so even when serious concerns regarding the safety of a particular person had arisen. The January 2009 stabbing to death of young female journalist Uma Singh illustrates the police’s inability to protect threatened persons. Reports indicate that after this journalist had been vocal in denouncing the patriarchal system in Nepal as well as issues concerning political leaders in the Terai, she had been receiving threats including from Maoist leaders, which she reported to the police, asking for protection. The police reportedly limited its response to recommending that she stop her 'controversial reporting.'
The absence of a witness protection mechanism has made victims and witnesses vulnerable to threats and intimidation and has also endangered the work of all those who speak out against abuses: notably human rights defenders, lawyers and journalists. Threats come from political party leaders, members of the security forces or other armed groups, as well as from influential individuals. The 2009 annual report of the OHCHR-Nepal deplores the frequent external interference in the course of justice. The absence of a witness protection mechanism contributes to enable such interference. Effective and impartial witness protection mechanisms are an essential component of functioning rule of law systems, without which the protection of human rights is rendered impossible.
In July 2010, lawyers and human rights defenders working on the case of Arjun Bahadur Lama, a school teacher who was forcibly disappeared and killed by Maoists during the country’s recent decade-long conflict, were threatened by Maoist cadres after one of the main suspects in the case was refused a visa by the US embassy. The attitude of the chairman of the Maoist party, who publicly denounced the accusations as 'false' and accused the human rights organisations of having launched a campaign to 'defame' the Maoists potentially encouraged such threats. The same month, lawyers defending the case of Ghan Shyam Mahato, a 14-year old domestic helper who had been cruelly abused by his employers, were manhandled and threatened by relatives of the perpetrators who have close links with the Maoists. They threatened to burn down their practice should the perpetrators be sent to jail.
Army personnel involved in the Bardiya National Park killings, which lead to the death of two women and a child under suspicious circumstances in March 2010, have reportedly threatened the victims’ families and witnesses and managed to make them sign an agreement in which they have promised that they will withdraw the First Information Report they had filed against 17 army personnel.
Allegations of threats and interference that perverts the course of justice are generally not investigated, contributing to a system of impunity for both past and present human rights violations, which, in turn, enables and encourages further attacks on witnesses, human rights defenders and lawyers. The vulnerability of witnesses does not only result from a lack of appropriate legislation, but is also a product of the wider failings of the justice-delivery system in Nepal, which has consistently proven unable to protect the rights of the country’s inhabitants.
No guarantees are offered to witnesses that interacting with law enforcement agencies will not bring them trouble. A woman in her twenties, Mahima Kusule, who had refused to falsely identify the suspects of a crime of theft despite pressure from the police to do so, was subsequently accused of the crime, arrested and beaten up for a number of hours on 14 July 2010 in Dolakha District. If violence can come from those in charge of registering testimonies themselves, how can an environment in which witnesses are encouraged to talk be built?
In cases of torture, the absence of witness protection mechanisms severely hampers efforts by victims seeking redress. The absence of any security arrangements for victims during police investigations even results in allegations of torture being investigated by police officers belonging to the same police station as the alleged perpetrators. These perpetrators are also typically not transferred to another police station or suspended during investigations, making victims of torture extremely vulnerable to threats and reprisals.
Given the evident need for a functioning witness protection mechanism, the Asian Legal Resource Centre urges the government of Nepal to:
1. Immediately enact appropriate legislation to establish an effective, independent and well-resourced witness protection system, capable of providing protection to victims and witnesses of crimes, including human rights violations attributable to State agents and members of other powerful and/or armed groups.
2. Ensure that the future Commission on Enforced Disappearances and Truth and Reconciliation Commission are equipped with strong witness protection mechanisms, to provide specifically tailored protection to persons involved with these commissions’ work.
3. Provide the law enforcement agencies with appropriate training and resources to enable them to ensure the protection of vulnerable individuals.
4. Investigate in a prompt, impartial and independent manner all allegations of intimidation, threats and attacks against victims, witnesses, lawyers and human rights defenders who are engaged in working to ensure justice and dismantle Nepal’s entrenched system of impunity.
INDONESIA: As opposed to the situation of Nepal presented above, Indonesia enacted a law in 2006 establishing the Witness and Victim Protection Agency (Lembaga Perlindungan Saksi dan Korban or LPSK). The LPSK only formally commenced its work after receiving its first resources in December 2008. With 74 requests for protection made in 2009, the demand for protection far exceeds the LPSK’s capacity to delivery protection at present. The LPSK continues to be of little value to the public and human rights activists. One reason for this is the lack of human and financial resources. In 2009, the Indonesian government failed to spend some 30% of its annual national budget, equivalent to 4 billion USD. Despite this surplus of available funds, repeated calls to increase resources for this key institution have been ignored.
The LPSK is also mandated to providing witnesses and victims with restitution and compensation through the courts. In several cases, such as the infamous Tanjung Priok case1, this duty to support victims in making their claims to the courts has not been fulfilled. It is alleged that politicisation of the agency is jeopardizing its integrity and ability to function effectively. Political considerations have influenced the selection process of the LPSK's commissioners by the President and the Parliament, and are harming the Agency's impartiality and capacity to objectively provide protection, notably in several high level cases of gross violations of human rights, concerning which influential politicians are thought to be responsible.
In another example, anti-corruption activist Tama Satrya Langkun was reportedly attacked and seriously wounded by two men with machetes in Kalibata, South Jakarta at about 4am on July 8, 2010.2 The activist had helped to produce a recent controversial report for Indonesia Corruption Watch (ICW) concerning suspect bank accounts held by high ranking police officers. Two days before the attack on Tama Satrya Langkun, the office of a newspaper that had reported about the ICW's findings was attacked by unidentified men. It took the LPSK two weeks to respond to Mr. Tama's request for immediate protection, leaving him exposed to serious risk of further harm and intimidation. Several human rights groups had supported the victim’s request for urgent protection, but the Agency has failed to respond with appropriate action. Several similar applications by witnesses facing threats and intimidation are known to have been refused by the Agency.
The situation of human rights activists, especially those fighting against corruption and impunity, remains highly insecure in Indonesia. Clear and decisive action by the Witness and Victims Protection Agency (LPSK) is urgently needed to counter the climate of intimidation that persists in Indonesia and to protect witnesses from further attacks. The LPSK's commissioner selection process needs to be reformed in order to guarantee that it is independent from political influence and corruption, and the Agency’s budget must be greatly increased to enable it to cover the needs of all credible applications for protection.
1. In Tanjung Priok case that began on September 12, 1984, the Indonesian armed forces raided and shot Muslims in District Military Command 0502 in North Jakarta.