By Renato G. Mabunga, Ph.D.

(This is a shortened version of the research commissioned by the Association of Major Religious Superiors in the Philippines (AMRSP) to provide guidance and make better its Sanctuary Program. This is an exposé of selected countries Witness Protection Programmes (WPP) in an attempt to draw some lessons to further protection of witnesses and their families from eventual retaliation of antagonistic elements of society.)

Introduction:

As the term suggests “witness protection programme” is a security mechanism provided for threatened witnesses and their families or other related persons or any person involved in the justice system whose lives are endangered due to testimonies they are willing to divulge to shed light to a crime in order to propel the rule of law. The idea behind being in this program is to protect vital informants and to ensure fair and successful prosecution. This is propelled by the assumption that “person who committed the crime is usually the type of person who will take retribution against the party who is willing to tell what they seen” (Lopez, 2008). This means provision of protection before, during and to some extent after a trial.

Usually, witness protection is required in cases against organized crime. This is so after law enforcement’s or professional evaluation that witnesses are more likely at risks of intimidation or threats by supporters of a defendant or accused. However, there is much likely to see when the accused of a crime is part of the law enforcement institution. There is a need to establish effective protection mechanisms alongside building the capacity and ensuring the integrity of those who implement the programme.

In the Consolidated Response (07-008) of the International Network to Promote the Rule of Law or INROL (Toomey, 2007), it classified protection measures as Short-term Measures and Longer-term Measures to Protect Witnesses. Both measures detail out legislative and regulatory requirements in determining who and when to protect; strategies on how to protect; the use of procedural and formal witness protection. Short-term measures are those that need temporary protection while the case is under investigation. Long-term measures are those that need total relocation and change of identity even as the trial has ended because of the gravity of the case and its repercussions to the witnesses and their families or other related persons.

Among the many features of witness protection range from protection of witness’ identity during investigation and trial, assigning security detail, court injunctions and retraining orders, provision of safe houses, allotment of monthly allowances, provision of new identity and the other covert plans and made-up stories for protection. All these necessitate the effective functioning of the all the pillars of justice system. These also require persons under the program to prepare from temporary to total dislocation both physically and economically; emotional and psychological detachments from members of the family and friends; trauma and distrust – which are all detrimental if not handled properly not only to the witnesses but more so to their families especially the children.

International Framework and Standards on Witness Protection:

There are a number of international standards pertaining to protection of witnesses which serve as basis in the drafting of national or local witness protection program of various countries. Among them are:

* The United Nations Convention against Transnational Organized Crime – adopted by the General Assembly thru resolution 55/25 of 15 November 2000. In its Article 24, it mandated all parties to the convention to “take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences… [including], as appropriate, their relatives and other persons close to them.” This “includes without prejudice to the rights of the accused, including the right to due process.” Specifically, it calls for the establishment of procedures “for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons”; provision of “evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.” In so far as the case is a transnational crime, the convention recommends that the “States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons” referred to as witnesses under witness-protection programme.

In Article 25 of the same document, the convention states that such appropriate measures for the protection of witness covers assistance such as compensation and restitution for victims of offenses.

* The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power – adopted by the UN General Assembly thru resolution 40/34, annex on November 29, 1985. The assembly approved the said declaration “based on the conviction that victims should be treated with compassion and respect for their dignity and that they are entitled to prompt redress for the harm that they have suffered, through access to the criminal justice system, reparation and services to assist their recovery. The Declaration recommends measures to be taken on behalf of victims of crime at the international, regional and national levels to improve access to justice and fair treatment, restitution, compensation and assistance. It also outlines the main steps to be taken to prevent victimization linked to abuse of power and to provide remedies for the victims.” (UNOCCDP, 1999).

“Victims” are defined in the declaration as those who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of national criminal laws or of internationally recognized human rights instruments (UN general Assembly, 1985; UNOCCDP, 1999). The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization regardless of sex, religion, race color, language, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.

It mandates the State Parties to the declaration to ensure judicial and administrative mechanisms through formal or informal procedures to enable expeditious and fair disposition of cases and execution of orders or decrees granting awards to victims. The responsiveness of these processes to the needs of victims should be facilitated by “providing proper assistance to victims throughout the legal process”; and, “taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation” (Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power #6 C & D, 1985).

* The UN Convention against Corruption – In 2000, the United Nations General Assembly recognized the need for an effective legal instrument against corruption and thus adopted resolution 58/4 after a series of negotiation on October 31, 2003 which was entered into force in December 2005 in accordance with Article 68 of the Convention.

The Convention against Corruption mandates all State Parties to “take appropriate measures in accordance with their domestic legal system and within their means to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences established in accordance with the Convention and, as appropriate, for their relatives and other persons close to them” (Article 32). These measures for protecting witnesses shall not prejudice the rights of the defendants including the right to due process; and shall be considered mutatis mutandis. These include the physical protection of person, relocation, secrecy of information, provision of evidentiary rules to ensure the safety of witnesses and the granting of immunity from prosecution in accordance with the fundamental principles of domestic laws. (Article 32 (2 &5); Article 37).

* The UN Economic and Social Council Resolution 2005/20 – Adopted by the Council during its 36th Plenary meeting in July 2005, the resolution pertains to the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime as a useful framework in enhancing protection of child victims and witnesses in the criminal justice system and in developing legislation, procedures, policies, and practices relating to children who are victims of crime or witnesses in criminal proceedings.

Among the rights sought to be protected and established by this guidelines include among others are:

    • the right to be treated with dignity and compassion;
    • the right to be protected from discrimination;
    • the right to be informed;
    • the right to be heard and to express views and concerns;
    • the right to effective assistance;
    • the right to privacy;
    • the right to be protected from hardship during the justice process;
    • the right to safety;
    • the right to reparation; and,
    • the right to special preventive measures (UN Res. 2005/20, 2005).

Various International Tribunals or Courts also have ensured that legal provisions on witness protection are incorporated in their statutes.

* Article 22 and Article 21 of the Statute of the International Criminal Tribunal for the former Yugoslavia and the Statute of the International Tribunal for Rwanda, respectively state that, “the International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.”

* Articles 43(6) of the Rome Statute of the International Criminal Court states that “the Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.”

Article 68 of the same statute states:

1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and 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. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

2. As an exception to the principle of public hearings provided for in article 67, 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. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counseling and assistance as referred to in article 43, paragraph 6.

5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

* Article 16(4) of the Statute of the Special Court for Sierra Leone provides that: “the Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit personnel shall include experts in trauma, including trauma related to crimes of sexual violence and violence against children.”

* The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea also provides that:

The Extraordinary Chambers of the trial court shall ensure that trials are fair and expeditious and are conducted in accordance with existing procedures in force, with full respect for the rights of the accused and for the protection of victims and witnesses. If necessary, and if there are lacunae in these existing procedures, guidance may be sought in procedural rules established at the international level.

Suspects who have been indicted and arrested shall be brought to the trial court according to existing procedures in force. The Royal Government of Cambodia shall guarantee the security of the Suspects who appear voluntarily before the court and is responsible in taking measures for the arrest of the Suspects prosecuted under this law. Justice police shall be assisted by other law enforcement elements of the Royal Government of Cambodia, including its armed forces, in order to ensure that accused persons are brought into custody immediately.

Conditions for the arrest and the custody of the accused shall conform to existing law in force.

The Court shall provide for the protection of victims and witnesses. Such protection measures shall include, but shall be not limited to, the conduct of in camera proceedings and the protection of the victim’s identity. (Art. 33)

Comparative Study of Three countries’ Witness Protection Acts:

This section deals with the pre-selected countries’ witness-protections laws as legal bases in the establishment of their national witness protection programs. Pre-selected countries are Canada, South Africa and the Philippines. The study shall focus on the following: a) Name of the Act, b) Purpose of the Act, c) Who’s responsible for the implementation, d) What are the responsibilities stipulated, e) What is the protection Program, f) Process of Admission, g) Terms of agreement, h) Termination of agreement, i) Prohibitions and Exemptions, j) Arrangement with other jurisdictions and other branches of government, k) Reporting and l) Budget.

The Witness Protection Program of Canada:

Canada’s Witness Protection Programme Act (WPPA) was enacted in June 1996. The act aims “to provide for the establishment and operation of a program to enable certain persons to receive protection in relation to certain inquiries, investigations or prosecutions”.

Particularly, To promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters in relation to

(a) activities conducted by the Force, other than activities arising pursuant to an arrangement entered into under section 20 of the Royal Canadian Mounted Police Act;

(b) activities conducted by any law enforcement agency or international criminal court or tribunal in respect of which an agreement or arrangement has been entered into under section 14. (Section 3)

In Section 2 of the Act, it defines “witness” as a person and/or their families who are at risk and need protection as a result to his/her testimonies or participation to an inquiry, investigation or prosecution of an offence. It defines “protection” to include relocation, accommodation and change of identity as well as counseling and financial support for those or any other purposes in order to ensure the security of the protectee or to facilitate the protectee’s re-establishment or becoming self-sufficient.

The Act calls for the establishment of a “witness-protection program” which shall be administered by the Commissioner of the Force or the Royal Canadian Mounted Police. It is the Commissioner’s responsibility to determine whether a witness is qualified for the program and what specific protection program shall be afforded to him/her (Section 5). On emergency cases, when witnesses need urgent protection and yet devoid of protection agreement, the Commissioner may provide witness protection to witnesses for the maximum of 90 days (Section 6(2)). Other responsibilities of the Commissioner are the following:

* Evaluate factors for consideration of witnesses under the program (Section 6.1(b));

* To take reasonable steps as necessary to protect the witnesses (Section 8(a)).

* To terminate protection for the witness on the grounds of a) material misrepresentation or failure to disclose information relevant to the admission to the program, b) deliberate and material contravention of the witness to the agreement (Section 9(a &b)).

* Write written reasons and take reasonable steps to notify and allow the witness and recommending body or the court to understand the basis or to make representation on decision about termination of agreement (Section 9(2), 10(a & b)).

* May enter into agreement with other jurisdictions or reciprocal arrangement with other government of foreign jurisdiction or with international court or tribunals to involve the witness to the law enforcement agency’s activities and to obtain other documents and information which are deem required for the protection of the witness (Section 14).

* To make and submit annual report to the Minister (Solicitor General of Canada) (Section 16(1)).

Under Section 6 of the Act, witnesses admitted to Canada’s Witness Protection Program are only those who were recommended for admission by a law enforcement agency or an international criminal court or tribunal. Secondly, candidate witnesses to the program have provided information to the Commissioner according to the regulations made for the purpose. Thirdly, an agreement has been entered into by or on behalf of the witness with the Commissioner. However, it will take the full attention of the Commissioner to evaluate all the grounds and reasons for the consideration of a witness to the program. Some of the factors which are deem necessary for consideration are stipulated in the Act’s Section 7:

(a) the nature of the risk to the security of the witness;

(b) the danger to the community if the witness is admitted to the Program;

(c) the nature of the inquiry, investigation or prosecution involving the witness and the importance of the witness in the matter;

(d) the value of the information or evidence given or agreed to be given or of the participation by the witness;

(e) the likelihood of the witness being able to adjust to the Program, having regard to the witness’s maturity, judgment and other personal characteristics and the family relationships of the witness;

(f) the cost of maintaining the witness in the Program;

(g) alternate methods of protecting the witness without admitting the witness to the Program; and

(h) such other factors as the Commissioner deems relevant.

After consideration of the above factors, decision for admission may be formally effected with the execution of agreement between the program headed by the Commissioner and the witness. Such agreement stipulates the terms and condition with corresponding obligation on the part of the Commissioner and of the witness under the program.

i. to give the information or evidence or participate as required in relation to the inquiry, investigation or prosecution to which the protection provided under the agreement relates,

ii. to meet all financial obligations incurred by the protectee at law that are not by the terms of the agreement payable by the Commissioner,

iii.  to meet all legal obligations incurred by the protectee, including any obligations regarding the custody and maintenance of children,

iv. to refrain from activities that constitute an offence against an Act of Parliament or that might compromise the security of the protectee, another protectee or the Program, and

v.  to accept and give effect to reasonable requests and directions made by the Commissioner in relation to the protection provided to the protectee and the obligations of the protectee. (Section 8(b))

Like any formal agreements, witness protection agreement may be terminated on solid evidence, such as:

(a) a material misrepresentation or a failure to disclose information relevant to the admission of the protectee to the Program; or

(b) a deliberate and material contravention of the obligations of the protectee under the protection agreement. (Section 9(1) (a & b))

On the event of terminating contract of agreement between the parties, the Commissioner has the responsibility to put in writing reasons behind termination and inform responsible parties of such decision with a view that the “aggrieved” party may make representation for clearer understanding of the case.

It is a major task of Canada’s WPP to protect the identity of the witnesses under its program. Section 11 generally prohibits anyone to disclose, directly or indirectly, information about the location or a change of identity of a protectee or former protectee. This provision however does not apply if the disclosure does not endanger the safety of the witness or compromise the integrity of the witness protection program. On some exceptional cases, the Commissioner may disclose the identity of the protectee: (Section 11(3))

(a) with the consent of the protectee or former protectee;

(b) if the protectee or former protectee has previously disclosed the information or acted in a manner that results in the disclosure;

(c)  if the disclosure is essential in the public interest for purposes such as

i. the investigation of a serious offence where there is reason to believe that the protectee or former protectee can provide material information or evidence in relation to, or has been involved in the commission of, the offence,

ii.  the prevention of the commission of a serious offence, or

iii.  national security or national defense; or

(d)  in criminal proceedings where the disclosure is essential to establish the innocence of a person.

Before disclosing information about the protectee, there must be a clear understanding about: (a) the reasons for the disclosure; (b) the danger or adverse consequences of the disclosure in relation to the person and the integrity of the Program; (c) the likelihood that the information will be used solely for the purpose for which the disclosure is made; (d) whether the need for the disclosure can be effectively met by another means; and (e) whether there are effective means available to prevent further disclosure of the information (Section 12).

The disclosure of information made to a person by the Commission under Section 11(3) does not authorize the person to disclose the information to anyone else. Those who will be found guilty of disclosure offense has corresponding penalty upon conviction or indictment or upon summary conviction to a fine not exceeding $50,000 (Canadian) or to imprisonment for a term not exceeding five years, or to both (Section 21).

According to Aaron Ludstrom (n.d), “a 2005 annual report showed that the WPPA’s program cost decreased from $2.5 million (Canadian) to $1.9 million, due to fluctuating levels of law enforcement activity.”

Witness Protection Program of South Africa:

South Africa’s Witness Protection Act 112 of 1998 was adopted for the purposes of establishing the structures, rules and procedures for the protection of witnesses, particularly:

  • To provide for the establishment of an Office for the protection of witnesses;
  • to regulate the powers, functions and duties of the Director: Office for Witness Protection;
  • to provide for temporary protection pending placement under protection;
  • to provide for the placement of witnesses and related persons under protection;
  • to provide for services related to the protection of witnesses and related persons;
  • to amend the Criminal Procedure Act, 1977, so as to make provision for witness services at courts; and,
  • To provide for incidental matters.

This Act was amended by the Prevention and Combating of Corrupt Activities Act 12 of 2004 and the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007; and, further amended by Independent Police Investigative Directorate Act 1 of 2011.

It must be noted that even before the promulgation of the 1998 Witness Protection Act, South Africa had experiences of witnesses put under ‘protective custody’ when deemed necessary by virtue of the Criminal Procedure Act of 1977. In 1995, under the Office of the Minister of Justice, the Directorate for Witness Protection was created as a precursor to the Witness Protection Act of 1998 whereby the Office of Witness Protection is established.

The Office of Witness Protection is under the Department of Justice. It is headed by a Director appointed by the Minister of Justice who shall perform functions and carry out duties conferred upon, assigned to or imposed upon him/her by the Act subject to the controls and directions of the Minister. The Director “may be helped by designated officers of the Department of Justice; witness protection officers; security officers; other officers who may have been seconded to the Office; and any other person employed by the Office because of their necessary skills” (Summary of the Witness Protection Act, 2008). The Director-General of Justice can ask the Secretary of Defense; the National Commissioner of the South African Police Service; the Director-General of the National Intelligence Agency; the Director-General of the South African Secret Service; or the Commissioner of Correctional Services to second a member of its service as a security officer to assist the Office (Section 6). The Director-General of Justice, subject to the laws governing the public service, appoints Witness Protection Officers as heads of the branch Offices for Witness Protection (Section 5). These Witness Protection Officers may exercise the powers and must perform the functions or carry out the duties conferred upon, assigned to or imposed upon him or her by the Director or under the Act.

Under Section 4 of the Act, the Director has the following powers, functions and duties:

a.  responsible for the protection of witnesses and related persons, including temporary protection, and related services in accordance with this Act;

b. must carry out the administrative duties relating to the protection of witnesses and related persons, including temporary protection, and related services;

c. may enter into agreements to make use of the services of persons, bodies, institutions or organizations;

d. may make an arrangement with any Department of State or enter into an agreement with any person, body, institution or organization-

(i) in terms of which the Office will be authorized to make use of the facilities or equipment belonging to or under the control of such Department, person, body, institution or organization;

(ii) in order to obtain documents and other information that may be required for the protection of a protected person; or

(iii) regarding any matter for the purpose of giving effect to the provisions of this Act:

e. must regulate the procedure and determine the manner in which the provisions of this Act shall be carried out by any branch office referred to in section 2(2);

f. may designate places to be utilized as places of safety;

g. must exercise control over witness protection officers and security officers; and

h. May exercise the powers and must perform the functions or carry out the duties conferred upon, assigned to or imposed upon him or her by or under this Act.

He/she may, however, in writing delegate any power or function confirmed upon the Director to any other member of the Office. Such act of delegation does not prevent the Director in performing or exercising or carrying out the delegated powers; and, these delegated powers may be withdrawn anytime the Director so decides (Section 4(2)).

South Africa’s Witness Protection Act 112 of 1998 provides for the protection of any witness who has reason to believe that his/her safety or that of other related persons’ is threatened by reason of being a witness to a crime under investigation. For this reason, he/she or any concerned person may report this belief and apply, in prescribed manner, to the Witness Protection Program (Section 7). Such report may be made to (i) to the investigating officer in the proceedings concerned; (ii) to any person in charge of a police station; (iii) if he or she is in prison, to the person in charge of the prison where he or she is being detained or to any person registered as a social worker under the Social Work Act, 1978 (Act No. 110 of 1978), or deemed to be so registered and who is in the service of a Department of State; (iv) to the public prosecutor or the interested functionary concerned; or (v) to any member of the Office for Witness Protection (Government Gazette, 1998). Schedule of crimes qualified for the program include:

  • Treason,
  • Sedition,
  • Murder,
  • Rape,
  • Public violence,
  • Robbery,
  • Kidnapping,
  • Defeating the ends of justice,
  • Perjury,
  • Indecent assault on a child under 16 y/o,
  • Drugs and Drug Trafficking,
  • Any offence referred to in the Intimidation Act, 1982 (Act No. 72 of 1982),
  • dealing in or smuggling of ammunition, firearms, explosives or armament; or the possession of an automatic or semi-automatic firearm, explosives or armament,
  • Any offence relating to exchange control,
  • corruption,
  • extortion,
  • fraud,
  • forgery,
  • uttering or theft,
  • Any offence referred to in the Prevention of Organised Crime Act of 1998,
  • Any conspiracy, incitement or
  • attempt to commit any offence.

In case the subject is a minor, application may be filed by or in behalf of the minor without the consent of his/her parents or guardian. Person or officers to whom the report of threat to the security of a witness was made must accompany the applicant in filing application for the Witness Protection Program. This application is submitted to the Director or Witness Protection Officer for evaluation. It is within the powers of the Director or concerned Protection Officer to determine if a temporary protection is necessary pending the approval of the application for 14 days and must inform the Director of such placement within 48 hours (Section 8). Grounds for acceptance or denial of protection application must take due regard to the report and recommendations of the Witness Protection Officer concerned aside from the following consideration (Section 10):

(a) the nature and extent of the risk to the safety of the witness or any related person:

(b) any danger that the interests of the community might be affected if the witness or any related person is not placed under protection;

(c) the nature of the proceedings in which the witness has given evidence or is or may: be required to give evidence, as the case may be;

(d) The importance, relevance and nature of the evidence given or to be given by the witness in the proceedings concerned;

(e) The probability that the witness or any related person will be able to adjust to protection. having regard to the personal characteristics, circumstances and finally or other- relationships of the witness or related person;

(f) the cost likely to be involved in the protection of the witness or any related person;

(g) the availability of any other means of protecting the witness or any related person without invoking the provisions of this Act; and

(h) Any other factor that the Director deems relevant.

And, in order to make a proper evaluation of a pending application for protection, the Director must be afforded immediately and full access to any police docket and statement of a witness and to any evidence given in any proceedings (Section 10 (2 & 3). When the application is deemed acceptable, a written agreement shall be executed between the Director as head of the Witness Protection Program and the witness or the parents or guardian in case of minor or otherwise incapable to enter into legally binding agreement. Such agreement provides for the obligation of the Office and the concerned witness under the Program, namely (Section 11 (4)):

a) an obligation on the Director– (i) to take such reasonable steps as are necessary to provide the protected person with the protection and related services, as referred to in the protection agreement concerned; and, (ii) not to keep a protected person under protection in any prison or police cell, unless otherwise agreed upon;

b) an obligation on the witness or the related person- (i) where applicable, to give the evidence as required in the proceedings to which the protection relates; (ii) to meet all financial obligations incurred by him or her that are not payable by the Director in terms of the protection agreement; (iii) to meet all legal obligations incurred by him or her, including any obligations regarding the custody and maintenance of children and taxation obligations; (iv) to refrain from activities that constitute a criminal offence; (v) to refrain from activities that might endanger his or her safety or that of any other protected person; (vi) to accept and give effect to all reasonable requests and directions made or given by any member of the Office in relation to the protection provided him or her and his or her obligations; (vii) to inform the Director of any civil proceedings which have or may be instituted by or against him or her or in which he or she is otherwise involved; (viii) to inform the Director of any proceedings in which he or she was or may be involved, either as a witness or accused or otherwise; and (ix) not to endanger the security or any other aspect of the protection of witnesses and related persons or related services or any other matter relating to a witness protection program provided for the Act;

(c) any other prescribed terms and conditions or obligations agreed upon;

(d) A procedure in accordance with which the protection agreement may, if necessary, be amended.

Section 12 of the Act also provides for special protection of minors subjected into the process of application to the Witness Protection Program. In no way a minor shall be placed under the program without the consent of his/her parents or guardian provided:

  • he/she applied for the program against his/her parents or guardian; or,
  • which parent or guardian is/are suspects to the crime; or, * orphaned and no guardian; or,
  • parent or guardian cannot be identified despite reasonable efforts to locate; or,
  • The parent or guardian is unreasonably withholding or unable to give consent.

Report and a draft protection agreement about the minor’s placement under the Program to the Judge President is prescribed within a seven day period or as set by the Judge President of the High Court whose jurisdiction the child belongs, for consideration and confirmation of a judge in chamber. The parent or guardian is also furnished, where applicable with the same documents.

The Director in a written notice may discharge a witness under protection if he/she is of the opinion that: (Section 13)

  • safety of the person is no longer threatened;
  • satisfactory alternative arrangements have been made for the protection of the person;
  • the person has failed to comply with any obligation under the Act or the protection agreement;
  • the witness, in making application for placement under protection, willfully furnished false or misleading information or willfully failed to disclose any information to his or her application;
  • the person refuses or fails to enter into a protection agreement when he or she is required to do so;
  • the behavior of the person has endangered or may endanger the safety of any protected person or the integrity of a witness protection program; or
  • The person has willfully caused serious damage to the place of safety where he or she is protected or to any property in or at such place of safety.
  • For the cases of minors or witnesses under international agreement, discharge of person under the program must have a prior approval of the Minister.

Section 18 of the Act prohibits publication of any information in any form about the witness under protection. Violators found guilty of the offence and on conviction be liable to a fine or to imprisonment for a period not exceeding 30 years.

Section 20 provides that the Director with the approval of the Director-General, may receive any donation, bequest or contribution from any sources for the purposes of giving effect to the provisions of the Act.

The Philippine Witness Protection Program:

The Philippine Witness Protection Program is established under Republic Act No. 6981 or “The Witness Protection, Security and Benefit Act” adopted in April 1991. It “seeks to encourage a person who has witnessed or has knowledge of the commission of a crime to testify before a court or quasi-judicial body, or before an investigating authority, by protecting him/her from reprisals and from economic dislocation” (Section 3). The Act tasks the Department of Justice through its Secretary to formulate and implement a witness protection program pursuant to the provisions of the Act. He/she may call upon other departments, bureau, office or any other executive agency to assist implementation of the program. These institutions shall have legal duty and obligation to render assistance to the program. Among other responsibilities of the Department through its Secretary are the following:

  • Promulgate rules and regulations necessary to implement the Program;
  • Examine, evaluation, certify and admit applicant to the Program;
  • Notify in writing termination of protection.

Section 3 provides for the criteria of those who can be admitted to the program after satisfactory compliance of the requirements and evaluation by the Department of Justice. Persons qualified for the program are, namely: (DOJ, 2005)

a) Any person who has knowledge of or information on the commission of a crime and has testified or is testifying or is willing to testify.

b) A witness in a congressional investigation, upon the recommendation of the legislative committee where his testimony is needed and with the approval of the Senate President or the Speaker of the House of Representatives, as the case may be.

c) A witness who participated in the commission of a crime and who desires to be a State witness provided: (Section 10)

(a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense committed:

(d) his/her testimony can be substantially corroborated on its material points;

(e) he/she does not appear to be most guilty; and

(f) He/she has not at any time been convicted of any crime involving moral turpitude.

d) An accused who is discharged from an information or criminal complaint by the court in order that he may be a State witness.

Those who are disqualified however are the following: (DOJ, 2005)

  • the offense in which his testimony will be used is not a grave felony;
  • his testimony cannot be substantially corroborated in its material points;
  • he or any member of his family within the second degree of consanguinity or affinity has not been threatened with death or bodily injury or there is no likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying or to testify falsely or evasively because or on account of his testimony; and
  • If the applicant is a law enforcement officer even if he will testify against other law enforcement officers. The immediate members of the applicant may, however, be admitted into the program.

Witnesses accepted to the program shall first execute a Memorandum of Agreement with the Department of Justice detailing responsibilities under the Act. That he/she is a) to testify before and provide information to all appropriate law enforcement officials concerning all appropriate proceedings in connection with or arising from the activities involved in the offense charged; b) to avoid the commission of the crime; c) to take all necessary precautions to avoid detection by others of the facts concerning the protection provided him under this Act; d) to comply with legal obligations and civil judgments against him/her; e) to cooperate with respect to all reasonable requests of officers and employees of the Government who are providing protection under this Act; and, f) to regularly inform the appropriate program official of his/her current activities and address (Section 5). Alongside this agreement is a Sworn Statement of the applicant stating the manner the crime was committed and his/her role in it. A certification from the Department is issued after thorough investigation of all the requirements and relevant facts of the case (Section 11).

Breach of the agreement is a ground for termination from the Program. When refusing to testify devoid of any valid ground, he/she may be prosecuted for contempt. When falsely or evasively testifying, he/she may be liable for perjury. His/her immunity from suit is hereby removed and he/she shall be subjected for contempt or criminal prosecution (Section 13). Once accepted to the program however, he/she shall have the following rights and benefits secured under the Law: a) secure housing facility, relocation and/or change of identity when circumstances warrant; b) financial assistance; c) non-removal or demotion from work due to absences caused by being a witness; d) reasonable travelling and subsistence allowance while acting as a witness; e) free medical treatment, hospitalization and medicines for any injury or illness incurred or suffered; f) burial benefits of not less than Php 10,000 for his/her heirs is killed while under the program; g) free education for his/her dependent children in case of death or permanent incapacity (Section 8). He/she shall also have immunity from criminal prosecution. This is aside from the assurance of a speedy hearing or trial (Section 9).

Any person guilty of harassing a witness from attending or testifying before investigative body, reporting of criminal offense or seeking arrest of another person in connection with the crime “shall be fined not more than Three thousand pesos (P3,000.00) or suffer imprisonment of not less than six (6) months but not more than one (1) year, or both, and he/she shall also suffer the penalty of perpetual disqualification from holding public office in case of a public officer” (Section 17).

It is required by the Act that all information regarding the admission in the Program and proceedings thereafter shall remain confidential except upon written order from the Department of justice or a court (Section 7). Violation of this confidentiality clause is a punishable offense if convicted “with imprisonment of not less than one (1) year but not more than six (6) years and deprivation of the right to hold a public office or employment for a period of five (5) years” (Section 7, para 2).

The whole Witness Protection Program is allotted ten million pesos budget annually to carry on the program. Such budget, subject to the limitation of the law, shall be augmented from other funding schemes and sources (Section 20.)

The Association of Major Religious Superiors in the Philippines: Sanctuary Program:

The Sanctuary Program of the Association of Major Religious Superiors in the Philippines (AMRSP) is borne-out of the association’s prophetic ministry and Church’s heritage of sustaining the struggle for truth and justice. The program concept was first put into operation in 1975 when the Church saw relevance of support through places of refuge to people victims of Martial Law. It was at the time when AMRSP contemplated to make bold its stance and strong support to various sectoral organizations; making alive the spirit of Vatican II documents to announce the Goodnews to the poor, deprived, oppressed; to feel their anguish and pains and to be in solidarity with their struggle.

After the EDSA Revolution, the program was institutionalized as a response to the growing trend of Internal Refugees. Such program responded to the victims of militarization brought about by the “unsheathing of the sword of Total War Policy”. The picture of Marag Valley in the North, Samar in the Visayas and war in Mindanao symbolized the period. It called for all congregations and places of worship to open their doors and “hear the cries of the poor.”

In 2008, the program was again revived due to the phenomenon of massive corruption. It offered a place of security for ‘truth tellers’, ‘whistle blowers’ and victims of human rights violations. Until now, it remains in operation as a place for refuge and welfare, as a tie for broader solidarity and stronger network among religious and people in general. It has evolved from a mere solidarity action concept of sympathy and empathy, to a program for legal assistance, psychological and spiritual nourishment, to a ‘journey-accompaniment’ – where the religious physically, emotionally and spiritually are by and at the side of the victim/s. The Sanctuary Program breaks the myth that priests, nuns, pastors, deacons and deaconesses, seminarians and formandae are solely for the comforts of the church. It has revived truth and justice as part of their prophetic vocation at a time when the system is ‘politically compromised’ by bad governance.

The AMRSP Sanctuary Program has many features as demanded by the ‘signs of the times’. It offers sanctuary to victims and their families both openly and covert. For highly popular/controversial witnesses of cases of national attention, it openly declares the location of safe havens. This is for the public to bear witness and share responsibility of guarding the victim and the place. It is to tap support of other institutions like the media and the diplomatic community for monitoring and vigilance. In cases of human rights violations, where the safety and security victims and their families are of paramount concern, the sanctuary places are kept hidden and shall remain unknown. This is to protect both the victims and the sanctuary providers. To make a space a place of solitude, healing, of worship and respite from harassments and threats experienced by the victims.

Sanctuaries are temporary shelters for victims to recover from the shocks of life. It is a place for reflection, which may provide environment conducive towards decision for legal battle. It is a place of preparation in rebuilding lives and reparation for sins. In these places, other features of the AMRSP Sanctuary Program are initiated. First, the provision of psychological and spiritual services to victims and their families. Witnesses, truth-tellers and victims of human rights violations are first and foremost shattered psychologically and emotionally. As much as they are in need economically, financial aspects are secondary consideration to uplift their condition and current view of life. They long for affirmation, of encouragement, of spiritual support, which neither the government nor its witness-protection program can never give or is never prepared to give. This is the important contribution of the current Sanctuary program of AMRSP – the facilitation of spiritual accompaniment and psychological services to boost the morale of victims away from hopelessness, frustration and sense of futility.

This feature is handled by professionals and experts of the field. It brings out the pains from the victims and guides them through the rigors of many possibilities. The process may involve the sanctuary providers themselves to assist victims in their spiritual journey and help them locate their experiences from the optic of faith, peace, justice and love. Colloquiums and consultations, playing and praying, laughing and crying maybe some forms used to keep the victims’ sanity and provide a period for acceptance, letting go and/or carrying on. Once decided to take a legal step, the legal assistance component of the Sanctuary Program comes in. On call human rights lawyers and paralegal teams handle this Program feature. The Sanctuary program may help in filing the case together with pertinent mission partners of the association. Alongside the victim, the lawyers and paralegals, are the nuns, priests to provide the ‘journey accompaniment’ feature of the program and the human rights organizations to provide the needed advocacy component to make the case a national issue and arrive at national resolution criminalizing acts of human rights violations.

Observations and Conclusion:

There are many salient points in consideration of a witness protection program. The Witness Protection Programs of Canada, South Africa and the Philippines may provide some of the most common but they vary a lot in concept and actual projection of protecting witnesses from harassments and intimidation due to a crime committed.

In general, all the Acts and Programs being studied here aim at protecting witnesses from further harassment and intimidation. However, there are many differences from viewing alone the intent of the Acts. The purposes of the Acts immediately expose the level and intent of which the country is convinced of propelling a protection mechanism for witness protection. While, Canada’s and South Africa’s Acts provide for the establishment and operationalization of a witness protection program, the Philippines’ is at the stage of encouraging possible witnesses to testify. One can immediately observe that the primary objective of the Philippines’ is on criminal prosecution putting secondary premium to the protection aspect while Canada’s and South Africa’s tend to balance prosecution and protection. The phrase ‘encouraging possible witnesses to testify’ puts to light the state of the Philippine justice system as somewhat politically hostaged of the powerful and the elite when it comes to prosecution of grave criminal offenses. The difficulties of witnesses to come out and testify only project that seemingly there is a cloud of insecurity about the State sponsored security protection.

It is very commendable that South Africa has explicitly detailed out in their Law the protection of minors and the processes that which provide the best interest of the child and those who are incapable of making sound decision. This provision is not present either in Canada’s or in the Philippines’ witness protection programs. This does not mean that witness protection programs of these two countries are not child-sensitive. It only proposes a second look as the current provisions on witness protection include witness’ immediate family, which may include presence of minors or children.

It is observed that responsible persons and personnel of the programs are under or the Department/Ministry of Justice for the Philippines and South Africa while the Commissioner of the Force handles for Canada’s. The Acts enjoined to take on board the Police Force and even the Military establishment to offer security protection. It must be ensured though, on its rules and regulations the delineation or strict compartmentalization of work functions such that those handling investigation must in no way be part of the security protection plan albeit must abide by the witness protection rules. Personnel, police or military forces in change of providing security to witnesses must possess needed integrity and expertise in handling witness protection work. They must swear to protect the integrity of the program while protecting security of witnesses under their care. This situation is tested at time when persons the witnesses are running or hiding from are part of the program assigned to protect them, when those intimidating and harassing witnesses are members of the military or police or have strong connection with the military and police institutions.

While witness protection programs of Canada and South Africa have a hint of providing psychosocial services to witnesses under the programs, the Philippine program has none. This aspect can be gleamed from the likelihood of a witness being able to adjust to the Program as regards to his/her maturity, emotional stability, psychological bearing, judgment, personal characteristics and relationships. Important sub-programs on psychosocial rehabilitation and spiritual upliftment must be considered as important factors in handling witness protection. A one sided focus on the prosecution aspect may detract possible witnesses to testify and avail of the witness protection as the program would only further misery and insecurity physically, emotionally, psychologically, economically and spiritually. These factors usually weigh far heavier than the objective of prosecuting a crime. The testimony and the protection program do not seem compensate at least the personal and family sacrifices of the witnesses. Justice in all aspects must be made measurable parameters in handling witness protection program.

Sufficient budget must be allotted to all witness protection programs. This would ensure hiring of needed and qualified personnel with integrity of protecting lives, defending rights and promoting total dignity of persons and witnesses. Many witness protection programs of various countries are rendered ineffective because of budget. In the Philippines alone, a burial benefit of not less than ten thousand pesos (Php 10,000) for the bereaved family of protected witness is excessively small. An objective national recognition of his/her contribution or sacrifice is far much a compensation than the meager amount of donation. This does not mean putting a him/her in the pedestal of heroism especially if he/she has a role in an investigated crime. It is simply a recognition of his/her intent to propel justice and contribution towards community peace in a given period of time.

A national witness protection program is commendable; however, it is more effective to replicate this in various branches of government down to the provinces. A structure of cooperation and unity of management/command must be clearly defined and provided for in a national framework to ensure integrity and acceptability of the programs.

It is noticeable that the witness protection program is silent on the victims of human rights violations as possible beneficiaries. A clear study for their incorporation into the program must be made given that it is the prime duty of the State to protect, promote and fulfill human rights. Here lies the big challenge for governments when their structure or instrumentalities are alleged to be the culprit. Shall a witness protection program acceptable to victims and witnesses knowing that the very same government handles it?

Thus, the Sanctuary program of the AMRSP, as an example, provide for an alternative. The Church as an institution has a big role in the public and social life of the people. They have the power beyond ordinary groups to propel change in mentality and contribute to the struggle of good governance. Assertion of this role must be harnessed to provide for refuge particularly to victims of human rights violations. It must always be clear that the aspiration of witness protection programs and sanctuary movements is the provision of the highest protection of the dignity of person even in situations of conflicts and difficulties. All people and the citizenry must partake in this aspiration.

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References:

  • 1. Canada. (1996). Witness Protection Programme Act (WPPA).
  • 2. http://ossafrica.com/esst/index.php?title=Summary_of_the_Witness_Protection_Act%2C_no._112_of_1998
  • 3. http://www.doj.gov.ph/index.php?id1=4&id2=1
  • 4. Lopez, Sherley (2008). Witness Protection Program Beginnings. http://socyberty.com/crime/witness-protection-program-beginnings/
  • 5. Ludstrom, Aaron. The Witness Protection Program Act in Canada. Access through http://www.ehow.com/facts_6778633_witness-protection-program-act-canada.html#ixzz1Vzlu2872
  • 6. Republic of the Philippines. (1991). Republic Act No. 6981: The Witness Protection, Security and Benefit Act. Manila.
  • 7. Republic of South Africa. (1998). Government Gazette Volume 401, No. 19523. Cape Town.
  • 8. South Africa. (1998). Witness Protection Act 112 of 1998.
  • 9. Toomey, Leigh (2007). Witness Protection in Countries Emerging from Conflict. Consolidated Response (07-008). International Network to Promote the Rule of Law. U.S.A.
  • 10. United Nations. Statute of the International Criminal Tribunal for the former Yugoslavia
  • 11. United Nations. Statute of the International Tribunal for Rwanda,
  • 12. United Nations. Rome Statute of the International Criminal Court.
  • 13. United Nations. Statute of the Special Court for Sierra Leone
  • 14. United Nations. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea.
  • 15. United Nations General Assembly. (2000). General Assembly Resolution 55/25: United Nations Convention against Transnational Organized Crime.
  • 16. United Nations General Assembly. (1985). General Assembly Resolution 40/34, annex: The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
  • 17. UN Office for Drug Control and Crime Prevention. (1999). Handbook on Justice for Victims. Center for International Crime Prevention. New York.
  • 18. United Nations General Assembly. (2005). General Assembly Resolution 58/4: UN Convention against Corruption.
  • 19. United Nations Economic and Social Council. (2005). Council Resolution 2005/20: Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime. Page | 21
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