Report No. 198
(Q) 8. The question is whether a witness must enter into an MOU with the programme-in-charge, setting out the right, obligations and restrictions of both parties and if so, what is the means of enforcing those rights and obligations?
Most of the respondents (29 out of 37) have supported the need for entering into an MOU under the Witness Protection Programme. This includes 6 State Governments, 9 Police Officers, 3 Judges and 11 others. Others were not in favour of an MOU. So far as enforcement of the rights and obligations under the MOU, some respondents have suggested enactment of a special Act or execution of documents under which the witness may give property in the form of security. The Director General of Police, Punjab has suggested that provision can be made in the Code of Criminal Procedure, 1973. Some suggested amendment of section 446 of the Code.
We shall refer to a few provisions in other countries as to what should be contained in the MOU.
Canada:
Under the Canadian Witness Protection Act, 1996 (see para 7.4 of the Consultation Paper), the statute in section 8 specifies that
"(a) on the part of the 'Commissioner of the Fora', he is obliged to take such reasonable steps as are necessary to provide for the protection referred to in the agreement to the protector and
(b) on the part of the protectee, he has an obligation
(i) to give the information or evidence or participation as required in relation to the inquiry, investigation and prosecution to which the protection provided in 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) in refrain from activities that constitute an offence against an Act of Parliament or that might compromises the security of the protectee,
(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"
Under section 11(1) of that Act, no information about the location or change of identity of a protectee or a former protectee can be disclosed by any person.
South Africa:
Under section 11(4) of the South African 'Witness Protection Act, 1998', the Director of the Office of Protection has the following obligations:
"(a) (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) the obligations of the witness or related person are
(i) where applicable, to give 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 members of the office in relation to the protection provided to 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 criminal proceedings which have or may be instituted by or against him or her or in which he or she is involved, either as a witness or as 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 programme provided for in this Act.
(c) any other prescribed terms and conditions agreed upon; and
(d) a procedure in accordance with which the protection agreement may, if necessary, be amended."
Section 17 states that no person shall disclose any information which he has acquired in exercise of powers or functions etc. under the Act, except for the purpose of giving effect to the provisions of the Act or when required to do by any Court. Subsections (5) to (7) refer to the manner and conditions in which the Director may disclose any information.
As regards execution of an MOU by the witness, we have stated in the previous chapter that it is the procedure in almost all countries wherever the Witness Protection Programmes are in force that there is an MOU between the witness and the concerned Police authorities or Prosecutor and the statute concerned contains a list of the rights and obligations of both parties. They have to be incorporated into the MOU.
We recommend that the MOU has to be entered by the victim/ witnesses with the District Superintendent of Police or the Commissioner of Police, as the case may be, and they would move the Magistrate for admitting the victim/witness to the programme. On such orders, funds will be released thereafter by the Legal Aid authorities as stated earlier. Various obligations of the parties, listed above, which have to be covered by the MOU can be listed. The MOU must provide that each party to the MOU will abide by the terms of the MOU. The MOU must contain the broad obligations such as those listed in Canada and South Africa
As to enforcement of the provisions of the MOU, once the rights and obligations are set out in the statute, it can also provide, if necessary, that the parties to the MOU may approach the Magistrate Court for the purpose of enforcement of its terms. In case of breach of MOU by the victim/witness or the police or any other person, the affected party can move the Magistrate for appropriate orders.
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