Administration of justice
Balancing rights of the accused with rights of the victim
The 13th Kanchana Abhayapala Memorial Lecture by
K. C. Kamlasabayson, P.C.at the BMICH on Dec. 02
from the island 5 december 2003
Today we pay tribute to the memory of late Kanchana Abhayapala, who was snatched from our midst during the darkest period of our recent history, so suddenly and so brutally. The Senseless killing of this young man not only shocked the legal profession to which he belonged but also the conscience of the entire nation. I have known Kanchana both as a student, unassuming, quiet and studious, and as a young lawyer who had the courage to accuse the State agencies of abuse of per and violence. He represented the underprivileged and the poorer segments of the society who were victims of such abuse and violence and sought justice on their behalf in our Courts. It was an era when many lawyers were reluctant, through fear, to undertake such tasks. As an Attorney he feared none. Though, a junior at the bar, he was never intimidated by the trappings and formalities of our Courts. He was always conscious of his role as the defender of human rights in an environment of lawlessness and addressed court in his usual quiet and dignified manner with that degree of thoroughness which always characterized his short life. His was an irreparable loss, yet let us remember him with gratitude as one who has clearly demonstrated the need for men and women to stand up against the ills of the society.
It is my privilege to deliver the Kanchana Abhayapala memorial lecture 2003. Although, I cannot match the intellect of many of the eminent speakers who have delivered the said lecture in the past, I accepted with humility the invitation extended to me by sarvodaya, not only because the suggested topic was something that appealed to me as an extremely important one, particularly in todayís context, but also because I could not refuse the request that was made by an organization which has always espoused the cause of justice and fair play. May I therefore take this opportunity to thank the organizers for their kind invitation.
As a lawyer, it is only natural that my presentation should be based on law. However, I also wish to approach it on a broader basis, i.e from the point of view of the society in which we live and the practical realities that surround our criminal justice system.
I must emphasize that the views I express today are personal to me and I do so, prompted by the increasing in the crime rate and the lack of sufficient and effective provisions in our law in relation to victims of crimes.
I do not consider it necessary or relevant to bring out the legal distinction between a suspect and an accused. Suffice to say that whenever reference is made to either of these persons there is invariably a victim.
A person who is suspected or accused of a crime enjoys several constitutional and legal protections. These are contained in Chapter III of our Constitution and several other legislative enactment including the Code of Criminal Procedure Act. No. 15 of 1979.
In Chapter III of the Constitution which deals with fundamental rights, Article 13 provides that no person shall be arrested except according to procedure established by law and that such person shall be informed of the reason for his arrest. It further provides that any person held in custody or detained shall be brought before the Judge of the nearest competent Court and shall not be further held in custody except upon and in terms of the Order of such Judge. A person charged with an offence shall be heard in person or by an Attorney-at-law at a fair trial by competent Court. This Article also sets out that every person shall be presumed innocent until he is proved guilty.
On the other hand the Code of Criminal Procedure Act contains several safeguards accorded to the Accused commencing from his arrest to the conclusion of the trail. In this process the law also contains several provisions that would ensure a fair trail for the accused. In other words in the context of the provisions both in the Constitution and the Code of Criminal procedure Act, a fair trail would mean a trail often tilted more in favour of the accused than the victim.
A victim means a person who has suffered harm, including physical or mental injury emotional suffering, or economic loss through acts or emissions in violation of the criminal laws. This definition was formulated at the 1985 UN Declaration of Basic principles of justice for victims of crime and abuse of power. This definition when expanded would include a multi-victim perspective. That is to say where appropriate it includes the immediate family members or dependent of the direct victims and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
Today I which to deal with the direct or immediate victims and those who suffered as a result of their intervention. In our system the criminal justice process involving the arrest, trail, conviction and punishment of the accused have little relevance to the victim. Action is taken in the name of the State and not on behalf of the victim. There are no enforceable provisions in the Constitution that are designed to effectively protect a victim of crime.
In this background when one embarks on balancing the rights of the accused with the rights of the victim in the administration of justice, one could see an imbalance with the scales titled more in favour of the accused than the victim.
The study of victimology involves both the study of the victim and of the offender. There is much work being done in this field by many organizations. But there is still much doubt as to the extent to which it has helped or assisted the victim in many jurisdictions. I was intrigued by the fact that the word "victimology" does not appear in the Oxford English Dictionary or in the Encyclopedia nether did I find this word in the modern Encarta. Perhaps this reflects the negative attitude of the State organizations towards victims of crime.
Let us examine the rights of a victim
It is the responsibility of the State to protect and safeguard the property and persons of every citizen. Where a crime is committed against a citizen, it could be said that the State has failed in effectively discharging its responsibility. The rights of a victim must naturally flow from this failure. It is in this context that the State has a greater responsibility towards such a victim.
The victim has the right to demand from the State that the offender be punished and the State must ensure that there is an effective and efficient mechanism to meet this end. This cannot be achieved by merely enacting laws. Today a victim is reluctant to visit the Police Station. There are complaints that when an offence is reported prompt action is not taken by the police. Investigations at times do not proceed in the correct direction. I am personally aware of an instant where the investigators persuaded the father of the deceased who was murdered to consult a soothsayer to ascertain the description of the murderer. No amount of law could remedy this situation. The mere passing of laws and opening or maintaining of police stations are not sufficient. The system itself has to be refined and fine tuned at all levels. In our country we have a overloaded Court system and it is to the credit of our Judges that the system has not been short circuited and exploded due to the overload. The overload is clearly due to the increase in the crime rate, correspondingly the increase in the crime rate is due to the shortcomings in the law enforcement system of the country. There is a total erosion of the Rule of the law. It is this system that requires to be refurbished.
It is the right of the victim to see that there is speedy justice but I have pointed out that our Courts are overworked. It is almost impossible to provide for speedy justice.
These are some of the general observations. They all clearly point towards the pathetic plight of a victim of crime. Often he is victimized at two stages. First in the hands of the offender and then in the hands of the State Agencies. This agony continues when he repeatedly visits the Court. There are several postponements. In the witness box he is often harassed by the Counsel. His suffering continues unabated. Having suffered in the hands of the principle offender, the victim instead of being comforted and protected by the State machinery, is in fact harassed. This feature makes the balancing exercise difficult if not impossible. In this background one could identify a clear duty on the part of the State to ensure that there is no secondary victimization.
How could this be achieved?
Let me repeat the proverbial golden thread that runs through the fabric of our legal system. The accused is presumed to be innocent until proven guilty. By this rule the law focuses its attention on the accused whilst placing a heavy burden on the prosecution to prove its case beyond reasonable doubt. The law in its wisdom has concluded that even though many who are guilty may be freed, no innocent person should be wrongly convicted. Thus, the presumption of innocence. Yet, this presumption in its application, if not properly approached, could lead to injustice, not for the offender, but for the victim. By saying this I am not for a moment seeking to dilute a finer principle of law for the sake of securing a conviction at all cost. What I wish to demonstrate is that this principle of law with no corresponding rights for the victim to seek effective justice for the wrong done to him, has invariably resulted in miscarriage of justice.
Law and order are integral parts of a civilized society. The victim plays a vital role in the administration of justice. His role is two fold. (a) It is personal, for the reason that it is the victim who had suffered in the hands of the offender and is therefore entitled to seek justice for the wrong done to him. (b) The victim, by exposing the wrong done to him through the established mechanism helps the State to perform its duties of maintaining law and order.
When a crime is reported, the State in the discharge of its duty becomes the party whilst the victim assumes the role of a witness. Official action taken against the criminal by the State is taken on behalf of the Republic not the victim. A person whose interests are damaged by a criminal must initiate a civil suit to recover damages. A New York Times book "Crime & Criminal Justice" explains this as follows:ó"If I am hit on the head by a robber, or if my television set is stolen in a burglary of my home, the fine, imprisonment or other punishment imposed on the offender only satisfies my vague need for revenge and for social order. So far as getting my doctors bill and hospital expenses paid, or getting a new television set, the Stateís officials action is irrelevant."
In our adversarial system a victim passes through four stages. Firstly, a crime is committed against him. Secondly, he reports the crime to the Police. Thirdly, the crime is investigated and fourthly if there is evidence the offender is prosecuted. At all these stages the victim has a role to play.
At the first stage the victim is exposed to the crime and is normally pushed to the second stage where he or some other person is required to make a statement to the police. The investigations commence thereafter. Let us pause at this stage. As I have already pointed out, criminal investigations are governed by the Code of Criminal Procedure Act. The victim is invariably the complainant. It is he who activates the legal process. Investigations are carried out by the police. There is unfortunately a perception, often justified, that the secondary victimization of the victim commences at the stage he visits the police station to make a complaint.
What is important is that not only his complaint should be recorded promptly but the investigations should commence without undue delay. It is in this context that the State must take remedial steps to enhance the competence and skills of the police officers in the field of investigations. Furthermore, the scientific and technical developments should be introduced into our system. Very often we hear delays in the Government Analystís Department. This department is overburdened and requires to be better equipped. Above all, it is important that the law enforcement agencies involved in criminal investigation understand and appreciate the role of a victim and his/her sufferings.
We often speak of the police force. One must not loose sight of the fact that it is a service and not a force. I am aware that there are guidelines. But this is not enough. The officers concerned must consciously believe that it is their duty to protect and safeguard the interest of the victim.
Victims of torture in the hands of law enforcement authorities often find it difficult to take their cases forward. There is an increase in the incidence of torture and is something that must necessarily be dealt with effectively by the State. Investigations into such allegations should be left in the hands of a specialized and independent unit and every endeavour must be made to ensure speedy trial.
There are several unsolved crimes. I do not for a moment contend that every crime that is committed could be solved. A clever criminal may not leave any evidence and unsolved crimes are nothing new in the society. But what is alarming is the increase in the number of such cases. From a laymanís point of view, some of the crimes, particularly murders, that remain unsolved could have been solved. This is not being done either due to the ineffectiveness of the investigators or other reasons best known to them. It is in such instances, that the society loses faith in the system.
Once the investigations are concluded, depending on the gravity of the crime, the case is referred to the Attorney-Generalís Department. Here again there is a backlog and a further delay. My several attempts to increase the cadre have consistently failed. But this excuse is of no consolation to a victim who has suffered. We are seeking to overcome logistical problems by periodically assessing the workload and the disposal rate and by establishing specialized units to expedite at least certain categories of cases.
I do not consider it necessary to frame laws to remedy the defects that I just pointed out. The remedy lies in the hands of the law enforcement authorities and the State. It is extremely necessary that steps are taken to ensure that our investigators acquire the required skills and techniques and above all realize importance of their role in civil society.
The final stage is where the offender is prosecuted. As I have already pointed out, our Courts are overworked. At another forum I expressed the view that unless there is a drastic increase in the number of Judges, the secondary victimization of the victim would continue unabated. Today, there are literally hundreds of cases that come up everyday in a Magistrateís Court. On the other hand there are High Court where cases are postponed by ten to twelve months. No amount of legal reform could remedy this situation. What is important is to ensure speedy justice by establishing more Courts. The Constitution provides for the appointment of Commissioners of High Court as a temporary measure. This is an important provision which should be invoked to meet the present crisis. It may also be appropriate to invoke this provision for the purposes of expeditiously disposing cases of torture and sexual offences.
The legal ethics demands that the prosecutors should not meet and discuss their cases with the Complainant. The Complainant and the other lay witnesses are not permitted to peruse the statements made by them to the Police. Whilst I see the danger in witnesses being coached, in view of the delays that are experienced in our Courts, provision should be made to enable the witnesses to refresh their memories by perusing the statements made by them. This may not appeal to the defence lawyers. Yet, in the present context, where it takes years for a trial to come up in Court there does not appear to be a viable alternative. Surely, an offender cannot benefit through the lapse of time and in may event on witness should be put to a memory test for the purposes of securing an acquittal.
An aggrieved party including a victim is permitted legal representation in a Court of law. This was confirmed by the Supreme Court. However, in a criminal trial the victimís representative plays a minimal role and merely assists the prosecutor. It may well be that if an active role is granted to the Counsel of the victim, the victimís Counsel and the prosecution could be at cross purposes. However, in my view, the victimís Counsel should be permitted, as of right, to make submissions on the question of sentence.
It is the right of the victim to give evidence without fear. Our Court have always protected this right whenever complaints are made. However, it is the responsibility of the state to further this right by providing modern methods. Ex., adequate legal provision for examination and cross examination of victims of sexual abuse through modern methods. This has proved to be very effective in the west where in child abuse and rape cases victims are not physically present in Court but are examined through electronic and multimedia. This has become necessary for the reason that despite the safeguards contained in the Evidence Ordinace, complainants, mainly victims of sexual abuse and rape are often harassed by the defence lawyers in cross examination.
Very often the accused is acquitted due to lack of evidence and the law says that he cannot be charged again for the same offence. An attempt is being made in England through the Criminal Justices Bill 2002 to enable the appellate Courts to review such cases, provided that there is new and compelling evidence and that in all the circumstances, in the interest of justice, the Court considers that a re-trial should be ordered. We too should seriously consider enacting similar provisions so that an accused does not get away merely due to initial lapses in the investigations.
Another important feature that requires consideration is the need for an efficient witness protection scheme, that would ensure that witnesses are not intimated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?
In my presentation, I have in no way sought to diminish the rights of the offender. Criminal justice is permeated by the notion of balance. The system is meant to ensure that an innocent suspect is not unfairly prosecuted or convicted. On the other hand it is designed to strike a balance, in that the interest of the victim in having the perpetrator prosecuted and punished is protected. What I wish to emphasize is that unless the object of our criminal justice system is properly translated into reality. Viz in that the actual offender is expeditiously tried and punished, there could never be a just society in which law and order could prevail.
In conclusion I wish to once again thank the organizers for having given me the opportunity to express my views. I also wish to congratulate the Sarvodaya legal services movement for having effectively reached the rural poor with the laudable object of improving their daily lives through legal empowerment.
Posted on 2007-06-27