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Witness protection is at stake

Barrister Bivuti Tarofder
THE successful outcome of a criminal case is largely dependent upon the accurate account of a witness. If a witness is not able to speak freely, fearlessly because of threat given by accused or his accomplice, the prosecution will fail to prove the case against the accused. Ultimately, it creates a society where the accused commits an offence with impunity. After starting trials of war criminals in Bangladesh, it were reported in numerous occasions that witnesses were intimated, threatened by accused's family members and followers. In fact, they executed those threats by killing a witness of Ghulam Azam's case. In such scenario, only very few witnesses will dare to go to the court and give their deposition against such powerful criminals. Enactment of witness protection law is an imperative necessary for the purpose of maintaining administration of criminal justice in Bangladesh.
Common special measures for witness protection Different types of witness protection measures are taken in the western legal system. Measures like video testimonies or the exclusion of the general public from a hearing are intended to prevent the accused or his accomplices from violating the witness's physical integrity in the courtroom. In video-link testimonies, witnesses usually testify in a location which is physical distance from the courtroom. It creates an environment where the witness feels secure enough to testify. Their statement is transmitted in actual time via video-link to the courtroom, where the judge, the defendant, the defence counsel and the public prosecutor watch and listen to the transmission and can ask questions of the witness. This method protects the witness from direct confrontation with and intimidation by the accused.
Other drastic measures like witness anonymity are aimed at protecting their physical security. The court will pass an order of witness anonymity in the interest of justice and extreme necessity. When this order is passed, the identity of witness will not be disclosed to the accused. These additional measures may be necessary to avoid the witness being recognized by the criminal. Sometimes, the witness is given new identity, relocated and given up all social contacts places. That means starting a new life in a new place.
Witness protection and its impediment
All special measures for witness protection have some inherent drawbacks. If the witness anonymity order is passed, there is a chance that the accused will be deprived of
the right to fair trail. Article 35 of the Constitution guarantees the right to fair trial. It is well recognised principle for ensuring fair trial that the accused or an advocate on behalf of accused must be given the opportunity to cross examine the witness for the purpose of verifying the credibility of the witnesses. If an accused is convicted on the basis of deposition of witness but he hasn't given opportunity to cross-examine, his right to fair trial will be infringed. Such infringement of the right of the accused should not be taken lightly. Only it should be permitted in extreme necessity after considering public interest connected with the offence.
Practical difficulties to implement witness protection laws in Bangladesh
In our country, we have noticed that the government always tries to oppress the opposition party by lodging false cases. We have seen the abuse of the Special Power Act 1974. By using the Special Power Act 1974, the government has detained thousands of people without holding any trial. So, any laws which will permit the prosecution to conceal the identity of witness will be abused by the government to convict the opposition activists without holding fair trial. This will open the floodgate of political convictions.
Some special measures like video testimonies are very expensive. It requires technical equipment, well-trained personnel and adequate financial resources. Therefore, it will be very difficult for country like Bangladesh to implement such measures owing to fund shortage. Likewise, the government will require huge resource and manpower to execute other measures like keeping witnesses in safe house or giving a gunman with a witness. In my opinion, such measures are not realistic option to adopt in Bangladesh.
Witnesses are routinely threatened, intimidated by the accused or his accomplices. The culture of witness intimidation must be stopped. In my opinion, the witness anonymity order is the best measures to adopt in Bangladesh. Because of risk of potential abuse, such order should be made only in exceptional cases. My recommendation is that the witness anonymity order will be passed by a board. This board will consist of three judges. When there is a possibility of witness intimidation because of nature of offence or criminals, the investigating officer will inform the matter to the prosecution team. Thereafter the prosecution will apply to the board. On receiving such application, the board will take into account the importance of case, the importance of particular witness's deposition in deciding the case, the circumstances which is compelling the witness not to turn up in the court. In the interest of justice, if the board is of opinion that the particular witness should give deposition and because of giving deposition in open court, his life will be endangered, the board may make witness anonymity order. At the time of passing such order, the board must be satisfied that there is a good reason to disregard the accused's right to cross examine. This might strike a balance between the right of accused and public interest underlying with the case to bring justice in society.
THE WRITER IS AN ADVOCATE, DHAKA JUDGE COURT.