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Assignment

Course Title- Law of Evidence - I


Course Code- LAW 305
Section-01
Semester- Summer 2018

Submitted to

Rafea Mahmud

Lecturer, Department of Law,

East West University

Date of Submission – 22nd July, 2018

Submitted by

MD. Jahid Hasan Suvo 2016-2-66-031


Mohammad Rafi Al Noman 2013-3-64-009
Anika Mardiah Chowdhury 2015-3-66-011
Shaila Hai 2016-1-66-019
Torikul Islam 2014-3-66-023
MonolovaMostofaBinita 2015-2-63-018
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Assignment Topic

Witness Protection Law in Bangladesh: A Comparative study.


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Table of Contents

Contents Page Number


Introduction 04

Who is a Witness? 04

Witness Protection 05

Present situation of witness protection in 05-06


Bangladesh legal system

Witness protection under International 06-10


Crime Tribunal Act, (ICT) 1973 of
Bangladesh

The necessity of witness protection law 10-12


Case laws regarding to witness protection 12-14

Witness Protection, International Law 15-16


and Hybrid Tribunal

Reports of Law Commission and 16-17


Proposed Legislation on the Protection of
Witness

Witness protection in the law of different 17-18


legal systems

Conclusion 19
Bibliography 20-21
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Introduction
The witness is universally considered to be one the most instruments to ascertain the truth in
civil and criminal proceedings as Bentham says “Witnesses are the eyes and the ears of
justice”1.That is why the protection of witnesses is a demanding task for any legal system in
national and international level. The adequate protection of witnesses plays a key role in the
successful functioning of the Court, aiming to ensure that witnesses participate and testify
freely and truthfully without fear of retribution or further harm. The Court has a duty to take
appropriate measures to protect the safety, physical and psychological well-being, dignity and
privacy of witnesses. But unfortunately, in our country, the trend is such that the witnesses do
not wish to come to the courts to give their statements and evidences because of the fact that
they feel unsafe. Even if they come to the court, they tend to turn hostile, thereby opening
avenues for the accused to be acquitted. At present, there is no law relating to the protection of
witnesses in Bangladesh. So, their problem gets doubled since they feel unsecured and at the
same time having no remedy for the injuries caused to them because of that insecurity. This
study intends to analysis the legal conditions of witness protection in Bangladesh. It also will
discuss the necessity of a specific legislation on this area focusing a comparative discussion
including international instruments and some laws of different national's legal systems2.

Who is a Witness?

The word 'witness' means a person present at some event and able to give information about
it3. In the Witness Protection Program Act, 1996 of Canadian Legal System says that "witness"
means (i) a person who has given or has agreed to give information or evidence, or participates
or has agreed to participate in a matter, relating to an inquiry or the investigation or prosecution
of an offence and who may require protection because of risk to the security of the person

1
C. Kress, 'Witness in Proceedings before the International Criminal Court: An analysis in the light of
comparative
Criminal procedure', in Fischer, Horst (red.), International and national prosecution of crimes under
international law: current developments (Berlin: Berlin-Verl. Spilz, 2001) 309-383, at 333.

2
Journal of “Judicial Administration Training Institute, Volume XIV. June 2015
3
Dorling Kindersley illustrated Oxford Dictionary, Dorlin Kindersley Ltd. & Oxford University Press,
1998 Edition, Page 958.
5

arising in relation to the inquiry, investigation or prosecution, or (ii) a person who, because of
their relationship to or association with a person referred to in paragraph (iii) may also require
protection for the reasons referred to in that paragraph4. Therefore, we can define the witness
as any person including a child, who is or may be required to make a statement or give evidence
or who has made a statement or given evidence, in any investigative or judicial proceedings in
relation to the commission of an offence.

Witness Protection

What does actually mean by the term 'witness protection'? To express it very simply, it can be
said that witness protection is protection of a threatened witness or any person involved in the
justice system, including defendants and other clients, before, during and after a trial, usually
by police. While a witness may only require protection until the conclusion of a trial, some
witnesses are provided with a new identity and may live out the rest of their lives under
government protection. Witness protection is usually required in trials against organized,
crime, where law enforcement sees a risk for witnesses to be intimidated by colleagues of
defendants. It is also used at war crime trials.

Present situation of witness protection in Bangladesh legal system

Though there are many statues and laws in Bangladesh to punish the offenders but there is no

Law available till to date to protect the witness. Now we will discuss some legislation to

Analysis the present situation of witness protection in Bangladesh legal system.

The Constitution

The Article 35 of the Constitution of the People’s Republic of Bangladesh provides that the
accused of a criminal offence shall get a speedy and public trail by an independent and impartial
court or tribunal, that they shall in the trial of the case be presumed to be innocent until and
unless their guilt is proved by the prosecution "beyond all reasonable doubts"' Thus it will
appear that the law and the principles of criminal justice are all in favor of the right and
protection of the accused' But no specific law is there providing for the rights and protection
of the victims and more particularly the witnesses although they are the principal actors for the

4
Section 2, The witness Protection Act, 1996 of Canada. Available at http://laws-
Jois.iustice.gc.ca/eng/acts/W-11.2/FullText.html last visited on 20 July 2018
6

prosecution to prove its case “beyond all reasonable doubt”. A widespread concern has been
raised over the lack of rights and protection of victim and witnesses.

The Evidence Act, 1872

Sections 1515 and 1526 of the Evidence Act, 1872 says about the forbiddance of indecent,
scandalous and insulting questions of Evidence Act. But these two section barely suggest inter-
court protection only.

The Penal Code, 1860

The Section 5067 of the Penal Code 1860 provides for punishment for committing criminal
intimidation. Criminal intimidation has been defined under section 503 of the Penal Code as
'Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm to
that person, or to cause that person to do any act which he is not legally bound to do, or the
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation'. The aforesaid definition is fairly wide
no doubt, but it still falls short of giving sufficient protection to the witness.

Witness protection under International Crime (Tribunals) Act, 1973 of Bangladesh

The themes of the topic are as follows

a) The nature of the ICT Act, 1973 on the basis of the witness protection.
b) Why it should take the provision on the witness protection for the first time in
Bangladesh.

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Section 151 of The Evidence Act, 1872: The Court may forbid any questions or inquiries which it
regards as indecent or scandalous, although such questions or inquiries may have some bearing on
the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known
in order to determine whether or not the facts in issue existed.

6
Section 151 of The Evidence Act, 1872: The Court shall forbid any question which appears to it to be
intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly
offensive inform.

7
Section 506 of The Penal Code, 1860: Whoever commits the offence of criminal intimidation shall be
punished with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.
7

c) The cases under ICT 1973 where the witness protection is violated.
d) Necessity of the witness protection.

If we analysis the theme of the topic First of all we have to know the nature of the Act, firstly
we have to know the nature of the Act and how it works on the witness protection.

a) The Act itself is a domestic law, passed by the Parliament of Bangladesh. It needs to be
clarified that this justice process was never part of any intervention by the international
community, nor a result of any international compromise, unlike most justice initiatives
of its kind that have taken place in the international arena. The justice process that this
Act setting up is purely a domestic process. This means, the International Crimes
Tribunals in Bangladesh is not ‘international’ in nature, but for all meaning and
purposes they are ‘domestic’. The only international element in the scheme of things is
the nature of the offences, that is, the “international crimes”. Although these crimes,
due to their nature and trajectory of developments, have historically been a part of
international criminal law, the Act these crimes and thus made them a part of the
jurisprudence of the Tribunal and of Bangladesh’s legal system. It in fact should be
seen as internalization of international law in domestic legal order of Bangladesh which
was done pursuant to international obligations of Bangladesh to deal with international
crimes as well as to ensure justice to millions of victims of crimes committed in 1971.

The Crimes under the ICTA are all crimes under customary international law and regarded as
international crimes. Although the Act has been enacted in 1973, the core crimes remained
same until today and understood now exactly as was when the law was adopted. The Act
however expanded the definition of Genocide to include “political group” as one more “group”.
This was again based on prevailing notion of Genocide as reflected in the first UN General
Assembly Resolution no 95(1) adopted on 11 December 1946.

The free and truthful participation of witnesses to testify before the Court largely depends on
the protective and security measures provided by the concerned Court in any crimes Tribunals
as witnesses always have some reasonable fear to be suffered furtherance by the defense party.8

8
http://pu.edu.pk/images/journal/HistoryPStudies/PDF_Files/12_V-31-No1-Jan18.pdf
8

b) Though the 1973 Act does not contain any provision regarding witness and victim
protection, the Rules of procedure has been amended in June 2011 where the term
“Victim” has been defined (Sub Rule 26 in Rule 02) as a person who has suffered harm
as a result of commission of the crimes under section 3(2) of the International Crimes
Act, 1973.” Besides, under the new Chapter VIA, a new Rule 58 A(1) has been inserted
on Witness and Victim Protection which says “the Tribunal on its own initiative, or on
the application of either party, may pass necessary order directing the concerned
authorities of the government to ensure protection, privacy and well-being of the
witnesses and or victims. This process will be confidential and the other side will not
be notified”. Sub Rule 02 inserted arrangements of accommodation of witnesses or
victims and other necessary measures regarding camera trial and keeping
confidentiality as necessary where violation of such undertaking shall be prosecuted
under section 11(4) of the Act.9

The success of these protective measures is yet to be proved especially with regard to the sexual
violence witnesses. Besides holding the camera trial, the Tribunal should take other protective
measures so that the witnesses come forward more to testify before the Tribunal.

For the first time in Bangladesh, the Tribunal, through its Rules of Procedures, introduced a
witness and victim protection regime. Both prosecution and defense can avail this regime in
strictest confidence by applying to the Tribunal. Rule 58A (1) states that –

“The Tribunal, on its own initiative or upon application of either party may issue necessary
Orders directing the concerned authorities of the Government to ensure protection, privacy and
well-being of the witnesses and/or victims.”10

The Tribunal has stretched the witness/victim protection regime beyond providing protection
and privacy, but also “well-being” of victims and witnesses. Well-being has very broad ambit
going beyond necessity of protection. The procedure of availing witness and victim protection
is also stipulated in the Rules.

9
http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=435

10
http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=435
9

The justice process led by this Tribunal, is also unique and path breaking in another in that no
other victims and witnesses in Bangladesh before other courts get the kind of protection that
this Tribunal affords.

That means in genocide crime the victim is also a witness, so the victim protection can be used
for the witness protection in genocide crime as like the crime of 1973 in Bangladesh. 11

c) The cases said that whether the protection is provided by the provision but the
protection is not effective for the witness. Hare Prosecution witness Mustafa Howlader
died on December 10, 2013, after being attacked in his home. Howlader appeared in
the case against Delwar Hossain Sayedee, a leading figure in the Jamaat-e-Islaami
party.

Howlader had been receiving death threats from unknown callers. As a result, local
police were assigned to protect him. However, according to his son, police officers
expected the family to feed them, which cost them more than Howlader made in a day.12

In another attack on a witness, Ranjit Kumar Nath, who testified against Jamaat Secretary
General Ali Mohammed Mujaheed, reported that petrol bombs had been flung at his shop and
at his home around midnight on December 15. His shop was partially burned, but the bomb at
his home did not explode. Like Howlader, Nath had previously reported threats against him
relating to his testimony. Although he had filed an official complaint, he was not given any
police protection.13

The cost is bearded by the witness is the main issue that the provision is fail to provide the right
of the witness.

d) The necessity of the protection of witness: if there is no provision for the witness
protection, many witnesses cannot be able for the testify trail and many criminals will

11
https://archive.thedailystar.net/forum/2010/December/fairness.htm
12
http://archive.prothom-alo.com/detail/date/2013-02-28/news/332802
13
https://www.hrw.org/news/2013/07/31/witness-naziuddins-story-how-bangladeshs-officers-killed-his-
grandson
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be live their life without any punishment for their crimes and victim will be suffer by
the criminals again and again

The necessity of witness protection law:

Witness protection is an important mechanism in criminal justice proceedings that can help
States to bring criminals to justice, especially in cases of organized crime and terrorism. In
order to make stronger their capacity to more effectively prosecute the offender of terrorist
attacks, many countries have established and use witness protection measures in order to ensure
that critical testimony is available as part of related criminal proceedings. 14

The witness is one of the most important sources of information in discovering the truth about
the case. The witness performs an important public duty of supporting the court in deciding on
the guilt or otherwise of the accused in the case. He sacrifices his time and takes the trouble to
travel all the way to the court to give evidence. The witness should therefore be treated with
great respect and consideration as a guest of honor. Unfortunately, all these are seen not to be
happening in the courts. A major problem is about the safety of the witnesses and their family
members who face danger at different stages. They are often threatened and the seriousness of
the threat depends upon the type of the case and the background of the accused and his family.
Many times, crucial witnesses are threatened or injured prior to their testifying in the court. If
the witness is still not agreeable he may even be murdered. In such situations the witness will
not come forward to give evidence unless he is assured of protection or is guaranteed
anonymity of some form of physical disguise. However, the circumstances indicate that the life
of any particular witness is in danger, the court must take such measures as are necessary to
keep the identity of the witness secret and make arrangements to ensure protection to the
witness without affecting the right of the accused to cross examine him. The threat from the
accused side may be before he gives his statement before the police officer or evidence in the
court or after the conclusion of the trial. There is a growing tendency of subjecting the witness
and his family members to serious threats to life, abduction or raping or damaging the
witnesses’ property or harming his image and interest in other ways. The witness has no
protection whatsoever. Many countries in the world have enacted laws for witnesses’
protection. The witness also suffers in the court in various other ways. When he comes to the
court to give evidence he is often told that the case has been adjourned and is asked to come

14
https://www.unodc.org/southasia//frontpage/2013/Oct/south-asia_-the-importance-of-witness-protection-
in-criminal-proceedings.html
11

back on another city. When a case is adjourned, the witnesses in attendance are quite often not
paid the allowances. The witnesses should not be punished by denying him his rightful
expenses for no fault of his own. Steps should therefore be taken to ensure that the witnesses
are paid allowances on the same day if the case is adjourned. Quite often more than one witness
is summoned to prove the same point. The prosecutor may pay attention to reduce duplication
of evidence resulting in unnecessary waste of time of courts and expenses.15

The occurrence of rape generally takes place in closed rooms or in secret places and there is no
eye witness available to such occurrence. In this situation the testimony of a victim is the best
and the best and the only evidence that can be obtained by the prosecution against the accused.
Even then such witness is reluctant to appear before the court for fear of their life and property
because of the fact that there is no specific provision of law for protection of the witness as
threat, intimidation or any inducement of the accused party.as a result, cases of such crimes are
resulting in acquittals in most of the cases. In certain cases, witness feel uncomfortable about
giving answer in the presence of the offender which may result in a miscarriage of justice. The
free and truthful participation of witnesses to testify before the court largely depends on the
protective and security measures provided by the concerned Court in any Crimes Tribunal as
witness always have some reasonable fear to be suffered by the defense party. Therefore, there
is an urgent need of making a specific law providing for the rights and protection of the
witnesses.

In Bangladesh, it is seen that, in most of the cases involving rich and influential persons,
essential witnesses turn hostile. Witnesses often get threats, intimidation and harassment by the
accused party for preventing them from giving their evidence. For example, In Tanu rape
case16 “Mizanur Rahman Shohag was abducted after he was seen giving interview on
television. After sixteen days later, he was released and his family member were shown
unwilling to comment further on his confinement. Here we have seen that the court failed to
provide protection to Mizan for that his family were unwillingly to give further statement”. Our
legal framework to tackle such situation is inadequate. Therefore, there is an urgent need for
making a specific law providing for the rights and protection of the witnesses. It is necessary
to ensure that the persons participating in the legal process are out of fear and undue influence,

15
https://www.lawteacher.net/free-law-essays/administrative-law/importance-of-a-witness-law-
essays.php(accessed on 15th july,2018)

16
https://www.thedailystar.net/frontpage/sohag-returns-after-16-days-1208281 (accessed on 15th july,2018)
12

so that justice can be assured. Closed-circuit camera can be set up in all courts which can ensure
security of the witnesses as well as all other persons related to court. Evidence through video
conference can be given from a safe, secure and secret place, far from the court which should
be legalized by the law.17

Case laws regarding to witness protection

The Supreme Court of India held inState of Gujrat v. Anirudh Singh18that: “It is the salutary
duty of every witness who has the knowledge of the commission of the crime, to assist the State
in giving evidence.” Also, in Zahira Habibulla H. Shiekh and Another v. State of Gujarat
and others19the definition for a fair trial was given as one “In which bias or prejudice for or
against the accused, the witnesses, or the cause which is being tried is eliminated. If the
witnesses get threatened or are forced to give false evidence that also would not result in a fair
trial. The failure to hear material witnesses is certainly denial of fair trial.”

Though active participation of victims of crime and witnesses is crucial for successful
prosecution and trial of criminal cases the criminal judicial justice system in Bangladesh lags
behind in case of providing protection.

 The lacking of witness’s protection on various cases in Bangladesh:

In Tanu rape case20Mizanur Rahman Shohag was abducted after he was seen giving interview
on television. After sixteen days later, he was released and his family member were shown
unwilling to comment further on his confinement. The court failed to provide protection to
Mizan for that his family were unwillingly to give further statement.

In some cases, the victims face many complexities on filling suit in rape cases. Thus, a writ
was filled against the rape of a Garo girl on 21st may 2015.

17
https://www.thedailystar.net/law-our-rights/rights-advocacy/need-witness-protection-law-210934(accessed
on 16th july,2018)
18
AIR 1997 SC 2780, 1997 (2) ALD Cri 266, 1997 CriLJ 3397, 1997 (2) Crimes 82 SC, (1997) 3 GLR 2245, JT 1997
(6) SC 236, 1997 (4) SCALE 724, (1997) 6 SCC 514, 1997 Supp 2 SCR 234
19
https://indiankanoon.org/doc/105430/
20
https://l.facebook.com/l.php?u=https%3A%2F%2Fwww.thedailystar.net%2Ffrontpage%2Fsohag-returns-
after-16-days- accessed on 18th july,2018
13

On such case the girl was pickup from the kuril flyover and rapped in running car. She and her
family faced immense harassment while filling suit. At 4:00am that night the victims went to
Turag police station where the police refused to record any case as the incident took place in
different areas. They then went to Gulshan police station around 5:00am where too the police
declined to record a diary. Finally, they went to the Bhatara police station around 6:30am where
the officer-in-charge was absent. They had to wait until 9:30am when the officer came and
finally the case was registered around 12:30pm. The victim was sent to a hospital for medical
test a day later. Later the Hight Court Division held that any case relating to rape, sexual
harassment and similar incidents can be filed with any police station, no matter whether the
incident takes place under its jurisdiction.

Another example can be seen where victims were threatened not to file suit in Banani rape
case where the accused five people of rape was charged for criminal intimidation, voluntarily
causing hurt and of assisting rape.

Still in Bangladesh there have no specific judgment given in case of witness or victims
protection.

 The lacking of other country in case of witness protection:

Despite of the protection of Pakistan Act, 2014 the only witness in the murder case of Sabeen
Mahmud was shot dead in Karachi21

In kathua gang rape in India where the victims had been threatened by the accused after filling
suit.

The Supreme Court in the case of Krishna Mochi v. State of Bihar22observed that society
suffers by wrong convictions and it equally suffers by wrong acquittals. In this case the
Supreme Court also pointed out that one of the reasons is that they do not have courage to
depose against an accused because of threats to their life on other cases when the offenders are
habitual criminals or high ups in the Government or close to power which may be political,
economic or other powers including muscle power.

Though there had lacking in the first stage but recent the court had given many judgments
relating to witness’s protection as well victims.

21
A case for strong witness protection laws in Pakistan 4th October, 2015
22
https://indiankanoon.org/doc/1389120/
14

The most historic and relevant case that brought witness protection into focus was the Zahira
Habibulla Sheikh v. State23 of Gujarat on that case the Supreme Court decided to shift the
venue of the case from Gujarat to Maharashtra since the Court felt that the witnesses would not
be able to depose their statements freely in that state. Also held that legislative measures to
emphasise prohibition against tampering with witness, victim or informant, have become the
imminent and inevitable need of the day.

In Delhi Domestic Working Women’s Forum v. Union of India24, the Supreme Court
emphasised the maintenance of the victims of rape who would be the key witnesses in trials
involving the offence of rape.

In another case Punjab and Haryana High Court in Bimal Kaur Khalsa case provides for
protection of the witness from the media.

As it had seen that in Bangladesh criminal justice system has gradually recognized its failure
to grant victims and witnesses a prominent role in the dispensing of justice25. But in the case
of The chief prosecutor vs A T M Azharul Islam the tribunal opines that all the victims
including sexual violence committed during the war of Liberation, 1971 should be adequately
compensated and rehabilitation by the state itself without further delay.

However, in BNWLA vs. Government of Bangladesh26 the court held that the government
shall take immediate steps to enact law for introduction of witness and victim protection
system. Further Law commission in its reports strongly advocated for enactment of legislation
on protection of victims and witnesses.

Therefore, an effective judicial proceeding in criminal cases it is very important that a witness
shall give a statement free from any sort of coercion. If the witness is absent during legal
proceedings the perpetrators of a crime may not be brought to justice. And for that it is
imperative that witnesses are given protection.

23
https://www.lawctopus.com/academike/witness-protection-problems-faced-and-need-for-a-
protection-programme-in-india/ accessed on 18th July
24
1995 SCC (1) 14, JT 1994 (7) 183
25
State vs Zakaria pintu [2008] 60 DLR 420 (AD)
26
Writ petition no.8769 in 2010(HD)
15

Witness Protection, International Law and Hybrid Tribunal

The Statutes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the
International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR),
the International Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra
Leone (SCSL), and the Special Tribunal for Lebanon (STL) inserted provisions for witness
protection where the Rules of Procedure and Evidence provided policies to implement those
provisions of the statutes effectively. The Rome Statute contains important provisions for the
protection and support of victims and witnesses. At the investigation stage, the Prosecutor
required to 'protect the interests and personal circumstances of witnesses, including age, gender
as defined in article 7 (3), and health, and take into account the nature of the crime, in particular
where it involves sexual violence, gender violence or violence against children'27. The
Prosecutor is entitled to without disclosure of evidence if this may lead to the 'grave
endangerment' of a witness or his or her family. Article 54(3)(f) provides further that the
Prosecutor shall take necessary measures, or request that necessary measures be taken, in order
to ensure the protection of any person. Similar responsibilities are imposed by Trial Chamber.
It should take ‘appropriate measures to protect the safety, physical and psychological well-
being, dignity and privacy of witnesses.’ The Court takes into consideration all relevant factors,
including age, gender, health, and the nature of the crime, ‘in particular, but not limited to,
where the crime involves sexual or gender violence or violence against children 28. Article 68
of the Rome Statute on the International Criminal Court provides that “the Chambers of the
Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings
in camera or allow the presentation of evidence by electronic or other special means”.

The Registrar gives to Witnesses Unit a statutory mandate dedicated to protecting, supporting
and providing other appropriate assistance to witnesses.14 Article 43(6) requires the Registrar
to set up the Witnesses Unit15 within the Registry and in consultation with the Office of the
Prosecutor (OTP) to provide protective measures, security arrangements, counseling and other
appropriate assistance for witnesses and others who are at risk on account of testimony given
by witnesses. The Rules of Court take these provisions into details. Rules 16-19 cover the
responsibilities of the Registrar and the VWU (Voluntary witnesses unit). Rules 87 and 88

27
Rome Statute Art.54(1)(b)
28
Ibid., Art 68 (1)
16

provide that protective and special measures may be granted by the Chamber. If the prosecution
and the defense are necessary parties to the Court’s process, witnesses are ‘potential" parties,
because their participation in not strictusensu essential.29 This does not mean that the witness
do not have the right30 to be protected and participate in the ICC proceedings, The Registry of
ICC is responsible for the non-judicial aspects of the administration of the Court’s work and
for ‘servicing of the Court’.

ICTY and ICTR have a directive that the Court shall take measures to protect witnesses. It also
contains an explicit provision the witness protection measures shall be incorporated in the
Rules of Procedure and Evidence adopted by the judges31.The rights of accused to a fair and
public hearing are subject to witness protection measures. It also provides for establishment of
Victim and Witness Unit offering protective services. It specifies that consideration should be
given to employment of prosecutors and investigators experienced in gender related crimes32.

Reports of Law Commission and Proposed Legislation on the Protection of Witness

The Law Commission of Bangladesh has submitted two reports to the Law Ministry on the
protection of witness. The First one was submitted in 2006 namely 'Final Report on a proposed
law relating to protection of victims and witnesses of crimes involving grave offences33 And
second one was submitted in2011 adding some additional recommendations maintaining the
consistent with the first report34. In the first report, the Law Commission has proposed a law
on the protection of witness and victim. The proposed law addresses many significant needs of

29
Their presence IS not strictusenru essential just because the Trail can place without them: this does
not exclude, Iatusensu, the fundamental importance of Victims participation for the development of
fair, effective and comprehensive proceeding.

30
Preparatory Committee Decisions Aug 1997 reprinted in. M CH Barsiauni' (ed) international Criminal Court
Compilation of the UN Documents and Drafts ICC Statute before the Diplomatic Conference (Consolidated)
Draft, page 108
31
See specifically Articles 14, 19 and in particular Article 21 of the ICTR statute, Article: 15, 20 and in particular-
Article 22 of the ICTY statute and Ruler 34 53 69, 70, 75. 77 and 79, ICTR and ICTY.

32
See specifically Articles 15, 16, 17, of the statute and Rules 34, 69, 70, 75 and 79
33
Report No 74. Available at htrp://www.lc.govt.bd/reports/74.pdf last visited on 06 November 2018.
34
Report No 108, available at http://www.lc.gov.bd/reoorts/1O8-Victim.pdf
17

members of this vulnerable group and acknowledges the importance of support mechanisms
that address physical, psychological, and economic wellbeing of victims and witnesses who
will testify before the Court. However, the proposed legislation does not provide
comprehensive measures compared to those provided by international and hybrid criminal
tribunals. So, if we want to ensure the safety and security for witnesses of any crime in future,
we need to take certain guidelines from the international and tribunals which are consistent and
feasible to the present socio-economic context of Bangladesh.

Witness protection in the law of different legal systems

United Kingdom

In the English legal System, threatening to a witness from giving evidence is the contempt of

Court. Recently the UK Government has enacted a law known as Criminal Justice and Public
Order Act, 1994 which takes the provisions on the punishment for intimidation of witnesses.
S.51 of the Act not only protects a person who is actually going to give evidence at a trial, but
also protects a person who helps with or could help with the investigation of a crime35.

United States of America

In the United States of America, the Organized Crime Control Act, 1970 and later enacted law
namely the Comprehensive Crime Control Act, 1984 provides the Witness Security Program.
The Witness Security Reform Act, 1984 provides for relocation and other protection of a
witness or a potential witness in an official proceeding concerning an organized criminal
activity or other serious offence. Protection may also be provided to the immediate family of,
or a person closely associated with, such witness or potential witness if the family or person
may also be endangered on account of the participation of the witness in the judicial
proceeding.

Canadian Legal System

There is an Act in Canadian legal system namely the Witness Protection Program Act 1996.
The purpose of the Act is defined in section 3 of the mentioned act thus "to promote law
enforcement by facilitating the protection of persons who are involved directly or indirectly in

35
See the section 51 of the mentioned Act in details for further clarification. Available at
http://www.legislation.gov.uk/ukpga/1994/33/section/51/enacted
18

providing assistance in law enforcement matters36". Protection given to a witness may include
relocation, accommodation and change of identity as well as counseling and financial support
to ensure the security of the protectee or to facilitate his becoming self-sufficient. Admission
to the Program is determined by the Commissioner of Police on a recommendation by a law
enforcement agency or an international criminal court or tribunal.37The extent of protection
depends on the nature of the risk to the security of the witness, the value of the evidence and
the importance in the matter.
Australian Legal System

The Australian Witness Protection Act, 199438 establishes the National Witness Protection
Program in which (amongst others) the Commissioner of the Australian Federal Police arranges
or provides protection and other assistance for witnesses39. The witness must disclose a wealth
of information about himself before he is included in the Program. This includes his
outstanding legal obligations, details of his criminal history, and details of his financial
liabilities and assets etc.40. The Commissioner has the sole responsibility of deciding whether
to include a witness in the Program.

South African Legal System

The Witness Protection Act, 1998 of South Africa provides for the establishment of an office
called the Office for Witness Protection within the Department of Justice. The Director of this
office is responsible for the protection of witnesses and related persons and exercises control
over Witness Protection Officers and Security Officers41.Any witness who has reason to
believe that his safety is threatened by any person or group or class of persons may report such
belief to the Investigating Officer in a proceeding or any person in-charge of a police station or
the Public Prosecutor etc.42 and apply for being placed under protection. The application is then
considered by a Witness Protection Officer who prepares a report, which is then submitted to
the Director43.

36
Section 3, the witness protection program Act, 1996 of Canada. Available at http://laws-
lois.justice.gc.ca./eng/Acts/W-11.2/FullText.html
37
Ibid, Section 5&6
38
The Australian Witness Protection Act, 1994, Act No.124 of 1994 as amended.
39
Section 4 ofThe Australian Witness Protection Act, 1994, Act No.124 of 1994 as amended
40
Ibid, section 6
41
Section 4,The Witness Protection Act, 1998 (Act No 112 of 1998)
42
Ibid, section 7.
43
Ibid, section 9.
19

Conclusion

In view of the discussions as we have made above, we think that it is high time to consider to
legislate a specific law on the witness protection providing for the rights, privileges and
protection of the victims and witnesses and where necessary their family members as our legal
and institutional framework for the protection of victims and witnesses appears to be sporadic,
piecemeal, passive and inadequate. It may be noted that witness and victim protection was not
a prominent issue 150 years ago when British colonial rulers imposed modern judicial system
in this region. For this reason, there is a nice directive from the honorable High Court Division
of the Supreme Court of Bangladesh in 2010 in the Case namely

‘BNWLA vs. Government of Bangladesh’ that

“Government shall take immediate steps to enact law for introduction of witness and victim
protection system for effective protection of victims and witnesses of sexual harassment as well
as the people who come forward to resist sexual harassment. The law will provide measures
for taking account of the mental trauma of the victims and for redressing the same”44.

Therefore, we hope that implementing the reports of the Law Commission of Bangladesh and
considering above mentioned the judgment of the High Court Division; the government will
enact a specific law on the protection of witness in Bangladesh.

44
Bangladesh National Women Lawyers Association (BNWLA) Vs. The Government Bangladesh (Writ
Petition No 8769 of 2010)
20

Bibliography

Statutes

1. The Constitution of the People’s Republic of Bangladesh


2. The Evidence Act,1872
3. The Penal Code, 1860
4. The International Crime (Tribunals) Act, (ICT) 1973
5. The Rome Statute
6. The Criminal Justice and Public Order Act, 1994 of United Kingdom
7. The Witness Security Reform Act, 1984 of United States Of America
8. The Witness Protection Program Act 1996 of Canada
9. The Australian Witness Protection Act, 1994
10. The Witness Protection Act, 1998 of South Africa

Book
 Oxford Dictionary, Dorlin Kindersley Ltd. & Oxford University Press, 1998 Edition,
Page 958.

Websites

1. http://laws-Jois.iustice.gc.ca/eng/acts/W-11.2/FullText.html
2. http://bdlaws.minlaw.gov.bd/print_sections_all.php?id=435
3. https://www.unodc.org/southasia//frontpage/2013/Oct/south-asia_-the-importance-of-
witness-protection-in-criminal-proceedings.html
4. http://www.legislation.gov.uk/ukpga/1994/33/section/51/enacted

5. http://laws-lois.justice.gc.ca./eng/Acts/W-11.2/FullText.html

6. https://www.lawteacher.net/free-law-essays/administrative-law/importance-of-a-
witness-law-essays.php

7. https://www.thedailystar.net/frontpage/sohag-returns-after-16-days-1208281
8. https://www.thedailystar.net/law-our-rights/rights-advocacy/need-witness-protection-
law-210934

9. https://indiankanoon.org/doc/1067991/
21

10. https://indiankanoon.org/doc/1389120/

11. https://indiankanoon.org/doc/1067991

12. https://www.linkedin.com/pulse/importance-witness-protection-shahzia-sultana
13. https://bdnews24.com/bangladesh/2013/12/15/mujahid-case-witness-attacked
14. http://archive.prothom-alo.com/detail/date/2013-02-28/news/332802
15. https://www.bbc.com/news/av/world-asia-21612601/bangladesh-war-crimes-trial-
delwar-hossain-sayeedi-to-die
16. https://www.hrw.org/news/2013/07/31/witness-naziuddins-story-how-bangladeshs-
officers-killed-his-grandson
17. https://archive.thedailystar.net/forum/2010/December/fairness.htm
18. http://pu.edu.pk/images/journal/HistoryPStudies/PDF_Files/12_V-31-No1-Jan18.pdf

Case References

1. AIR 1997 SC 2780, 1997 (2) ALD Cri 266, 1997 CriLJ 3397, 1997 (2) Crimes 82
SC, (1997) 3 GLR 2245, JT 1997 (6) SC 236, 1997 (4) SCALE 724, (1997) 6 SCC
514, 1997 Supp 2 SCR 234

2. AIR 1995 SCC (1) 14, JT 1994 (7) 183

3. State vs Zakaria pintu [2008] 60 DLR 420 (AD)

4. Writ petition no.8769 in 2010(HCD)

Journals

 Journal of “Judicial Administration Training Institute, Volume XIV. June 2015


22