A Community Plea for Protection of Victims and Witnesses (V/Ws)

- An address to the Public and their Representatives in Parliament -



by Frank de Silva


A Bill for Protecting Victims and Witnesses (V/Ws) is before Parliament for consideration. Much effort has gone into the draft of the proposed law. This new law reflects little of the interests of the community. The purpose of this article is to highlight the concerns of the community in the deliberations.


Rights hitherto non-existent.


The criminal justice process has had no concept of rights no idea or even sense of rights of V/WS. This is evident on their faces either in the court house or under the banyan tree. That is the spectacle before the community. Conferring Rights on victims now is therefore eminently desirable. The proposed law however considers rights and violation of rights of victims only from harm to them from the community, not from denial of rights in courts. V/Ws suffer much from harm in courts which keeps V/Ws away from courts, if they could. That harm may be non-physical. Yet this experience of V/Ws in court is enduring, common and well-known. Justice delivered fairly and promptly, on the other hand, leaves little room for harm to V/Ws.


No rights for witness?


Strangely then, the community asks, why in this new law witnesses to crime have not a similar parallel right. Both victims and witnesses are specific representatives of the community, of community interests for law and order, for peace and security. Entitlements only without rights for witnesses fall short of the expectations of the community. The community only see victims of crime and witnesses to crime as just about irrelevant in courts. V/Ws have no standing in the criminal justice process after their evidence has been given; their presence is thereafter not required. The process goes on in their absence. The central figures thereafter in the continuing process are, instead, the judges, the lawyers and the police. The community does not understand the discrimination between victims and witnesses in respect of rights. Is this determined only by lawyers? Would conferring rights on witnesses stifle cross examination by lawyers, in prejudice to lawyers’ interests? Entitlement to witnesses, with no rights, is thus a measured and guarded provision included by other interests, far from community expectations.


Witness the best protector and promoter of rights.


For in fact the community would plainly consider the witness as the best protector of rights of victim of crime. V/Ws so discriminated against fall short of their status as representatives of the community. V/Ws are but the basic vital elements of the whole criminal justice process. The rest can only serve them. Witnesses are the best deterrent to crime. But, as it is offenders do not fear witnesses. This accounts for much of the brazen affront of criminals on the community when committing crime.


The law too has conspired in this process of devaluing the worth of witnesses’ evidence. The law allows only contradiction of their statements, while prohibiting their corroboration, in courts. The proposed entitlements of witnesses then do not extend to correction of this inconsistency. The standing of witnesses in law remains low. The social standing of witness is also low, perhaps flowing from the law. All other evidential factors, though important, are secondary to V/Ws. Technology, CCTV are no substitutes for V/Ws. They are only supportive. This idea nearly overturns the long settled notions in court which guided the process for so long.


Lawyer’s Law& Community Law in contest


The reason for the discrimination between victims and witnesses in the new law is an apparent contest, between a Lawyers’ law (LL) and Community law (CL). The two inevitably take the opposite sides in law making. LL is elitist. The new law is only in line with that elitist manner of law making in this country. Community aspirations or any idea of (CL) is thereby lost under the interests of the elite. Studies of law made in these post-colonial contexts refer to a lawyers’ law. The term lawyers’ law was introduced by Prof. Leslie Sebba. These analyses also pointed out that LL being within the exclusive control of the elite were able to ‘capture’ the process of law making to suit their own elitist interests. Capture, here, meant a form of subversion of process by the controlling elite, the ‘New Class’. The question then is whether the Bill for Protection of Victims and Witnesses (V/Ws) is yet another form of lawyers’ law ‘captured’ for their purpose. Clearly there was no public agitation for the need of such law. A clash of ideas and interests and discrimination basically informs the new law. Community stands by in the meanwhile.


CL resisted


In fact, community initiatives in law making have even been resisted strongly by law professionals. Examples are the cases of Conciliation Boards, Mediation Boards, and with AJL of 1973. The significance of these attempts is that they looked to promote rights. Vested interests then stood in the way. The problem is also in that protection and promotion of rights are not seen as one, in common sense terms. They are construed separately only in legalistic terms.


No equal treatment for rights


These belie the principle of equal treatment under rights law. Equal treatment in equal circumstances has been a concern of the Supreme Court in the context of this new law. S.C. (SD) No. 01/2014 to S.C. (SD) No. 06/2014 refers. But that reference was only to victims. Equal treatment, equal protection and equal rights as between victims and witnesses did not engage the Supreme Court. Neither was such claim advanced by the counsel for the petitioners or by the Attorney General. Protection is the basic thrust of this new law. But the proposed law offers unequal protection, to victims as against witnesses. Why is this difference? Victims and witnesses come before courts not as delinquents. They come forward as society requirement. Failure of equality before the law can then even be a violation of rights. Or is the differentiation of the two sources of evidence, that of the victim and that of the witness, in the proposed law, with deliberate intent, to serve different interests?


Protection of rights is enforceable in court. Promotion of rights is here only by exhortation, to the very officials at whose hands were the denial of rights.


Parliament represents the people at large, not particular vested interests. This aspect must therefore engage the attention of the legislators and the Minister of Justice in due time.


Criminal justice process and rights


Courts deal only with liability of the parties in court, not their rights. Nevertheless, victims of crime found their lot in being twice victimised, first at the hands of the offender and then in courts which engaged in a desultory process. Laws delay further undermined rights. Cases were disposed of with lenient punishment of the accused after protracted delay, that too in the absence of the victims in court. Inordinate costs and desultory process further undermines rights. In fact, therefore, it is the criminal justice process that has failed the victims of crime and witnesses to crime. Remedy of this system for rights is a larger problem. The new law touches only the fringe. This is then a plea from the heart of the community for some resolution of the larger problem for rights.


Invocation of International Norms and Standards and Best practices, the stated objectives of the new law, would then sound more credible.


Recommendations


The suggestion is then that even the limited rights of V/Ws can yet be advanced through this proposed new law, with some amendment. This effort towards rights can also be further reinforced by still other measures which consider some diversion of minor cases away from courts. They reduce the dysfunction of the process which is inimical to rights. Many minor cases can be directed for mediation by bodies outside court, such as the mediation boards, the Police, the AG, and even by courts through a panel of volunteers. The benefits from such re-direction of process are self-evident, inasmuch as they advance rights of all concerned.


The rationale is that rights of victim are better advanced through their direct participation in the process, more than would be secured through protection given by others as under the new law. Direct participation, as feasible, insures the victim all the more against physical harm. The community would see this.


 


(The writer is a former IGP)


 
 
 
 
 
 
 
 
 
 
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