Sunday Times 2
Victim and Witness Protection law touches only the fringe of the problem
A new law has been proposed to set out rights and entitlements of victims of crime and witnesses and for protection of rights of victims and witnesses (V&W). A National Authority for the Protection of Victims of Crime and Witnesses (Authority) is to be instituted for this purpose.
The problem which the proposed law confronts is the standing of V&Ws and their rights. They need to be protected from harm and possibly their rights promoted.
Setting rights
File Picture: Victoria Aleksandrovna Tkacheva, a victim in the Tangalle rape-and-murder case arrives at the Hulftsdorp court complex to give evidence. The case highlighted the inadequacy in the law to protect the victims and witnesses and to uphold thier rights.
Setting out rights of V&W is then the first commendable feature of this law. By inference, under the prevalent criminal law process, there is neither an idea, nor concept, nor even recognition of a special status of V&W. The second objective of the proposed law is for protection of these rights of V&W. Protection of V&W did not figure in the criminal law, by reflection. Thirdly V&W are to be treated with equality, fairness and with respect for their dignity and privacy – section 3(a), 5(1) from all, including judicial officers. This again is an adverse reflection on the criminal law process. There is also the new idea of promotion of rights. Protection and promotion of rights constitute the key elements of the proposed law. All these are focused on the matter of evidence as V&W would give.
In the void of rights
The basic premise is then that there has been a void of rights in the criminal law process. Hence the proposed law seeks to set out rights. But instances of real or potential harm, now envisaged, are few. On the other hand V&W suffer gruelling harassment and injury through a dragged-out criminal process. This is common knowledge and is far more widespread than from harm caused to V&W. There is fear in the mind of V&W, falling short of harm. On an arbitrary estimate, about 80 to 90 per cent avoid courts for fear of the ordeal. Therefore, the proposed law for protection of rights from harm has only a limited reach, touching only that point manageable, avoiding the large area of impairment of rights of V&W – an area which is not manageable, and points inward. Therefore, protection of rights though the central object of this law, is of little concern in the existing law.
In the current criminal law there is a void of rights. Failure of system for criminal justice, often heard, is none else than rights of V&W denied. Even our own Parliament passed a vote of no confidence on this system to deal with V&W.
Britain in a white paper — ‘Justice for All’ CM 5563 July 2002 — said: “Our goal is strong, safe communities. That means among others: Rebalancing the criminal justice system in favour of the victim; and giving the police and prosecution the tools to bring more criminals to justice.”
Regular law proceedings, by reason of delay, of expense and desultory means have, in effect, abridged rights of parties to the case. Laws delay is very much possible only through denial of rights of V&W. Animus or rancour between parties to a case is the antonym of rights.
Witnesses to crime do not volunteer evidence. They would come forward only as they are related to either party to the crime, braving their way through denial of their rights in court. They are thus weak and their low standing is exploited in court proceedings. V&W have thus for long been waiting for want of rights. Even the statement of a witness made to police immediately at investigation is of no legal worth to found his rights. That statement can be used only to contradict the witness, not for corroboration, as the law so gives. The value of such statement given as witness to a crime is therefore undermined at source. Best evidence of a witness to a crime at the scene is thus undermined by law. This provision remains untouched. It is idle to talk of rights and entitlements of witnesses when their statements worth nothing.
The victim of crime is a mere witness in court. After the victim gives his evidence in court his attendance in court is dispensed with. The case goes on for months and more unknown to the victim. In the absence of the victim it is easy for a lenient punishment to be imposed on a plea of guilt, perhaps on a reduced charge, tendered after a long drawn out postponement of the case. There is some sort of compromise on the part of court officers who work out this contrivance, not an exercise in upholding rights. In fact, the victim of crime is twice victimised, first by the criminal and then by the system. All this is well known and needs no restatement. Rights of victim ring hollow in this situation.
Further, prohibition on the admissibility of confessions of the accused impairs rights of victims. Best evidence through confessions is struck out. “Is not remorse the justice which is administered by that very law which you would fain serve? Yet you cannot lay remorse upon the innocent, nor lift it from the heart of the guilty.” — ‘The Prophet’ by Khalil Gibran, Pan Books, Oxford 1991p 58.
Rights of victims and of witnesses will be much secured if the prohibition on receipt of confessions is reviewed.
Will persons, who would avoid courts, as best as they could irrespective of harm, go now before another court, suffering time and expense, to complain of wrong from harm? Why cannot the normal criminal law and courts set in rights of those who come and provide redress then and there? Is it not curious that V&W are now to come before a new law for protection from the ‘harm’ to V&W from the law in criminal court?
Resetting rights
A resetting of rights in the current criminal justice process is, however, a daunting prospect. Only a modicum of suggestions can be offered here. Promotion of rights will protect rights of V&W. Alternative dispute resolution supplementing court adjudication can reduce the workload of courts to promote rights.
Thus Mediation Boards should be reinstituted so that settlements reached by them will have the effect of acquittal. Rights of parties are then ipso facto ensured to them by their very participation in these alternative processes. This will promote rights well before protection is called for. Compounding of cases at police stations should, once again, has the effect of acquittal. Review the criminal law to admit best evidence for better adjudication helps rights; shutting out best evidence is denial of rights. Thus the limitation of the use of statements of witnesses to Police at investigation should be removed, to allow for their corroboration as well as an entitlement and for rights of witness. Confessions of accused to police or other authorities should be admissible with appropriate safeguards. Promotion of rights in this manner will reduce the need for protection of rights from harm. Since ‘laws delayed’ impairs rights of V&W, it is necessary that judges are also sensitised to this for promotion of rights of V&W. Significantly, however, judges are omitted from categories of officers who need to be sensitised in the new Law – Part IV section 13 (k).
Conclusion
The above comments on the proposed law points to one distinct feature, that the draft of the law has the bent of the law professional mind. In that outlook the proposed law is contrived only to touch a fringe of the problem, where there is harm, not a whole area where rights of V&W are absent and damage and distress are more. The draft is not concerned with the denial of rights per se of V&W in the total criminal justice process, a process entirely in control of law professionals. And from the perspective of law professionals, harm to V&W in the draft covers only threats from outside, not harm or threat which can come from within the court process.
An elaborate court procedure conceived in the proposed law to grant relief from the problems is heaped on V&W under the normal process. This new order will serve the interests of law professionals. The superstructure will incur considerable costs. Its effect will be only symbolic. In that vein of thought, problems envisaged in law professional perspective, as the draft implies, emanate from outside of them, not from among them. Protection rather than meaningful promotion of rights is their adopted perspective. “Oftentimes have I heard you speak of one who commits a wrong [denying rights] as though he were not one of you, but a stranger unto you and an intruder upon your world.” – ‘The Prophet’ by Khalil Gibran.
The current draft of the Law by law professionals is no different from many other drafts of law in which law professional interests are paramount. Obviously there has been little consultation with the public. The man in the street is irrelevant in this exercise. These comments are nevertheless offered, in brief, in the hope that they be considered during deliberation.