Archives

Attorney General K.C. Kamalasabeyson PC, delivering thirteenth Kanchana Abhayapala Memorial lecture at the BMICH recently. (Coninued from Tuesday, December 16)

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 layman's point of view, some of the crimes, particularly murders, that remain unsolved could have been solved. It is in such instances, that the society looses faith in the system.

Once the investigations are concluded, depending on the gravity of the crime, the case is referred to the Attorney-General's Department. Here again there is a backlog and a further delay.

My several attempts to increase the cadre have consistently failed. But this is no excuse or 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 the 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 Magistrate's Court. On the other hand there are High Courts 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, provisions 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 any event no 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 victim's 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 victim's Counsel and the prosecution could be at cross purposes. However, in my view, the victim's 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 Courts 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 provisions for examination and cross examination of victims of sexual abuse through modern methods.

This has proved to be very effective in the west wherein 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 Ordinance, 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 Justice 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.

It is 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.

"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", the AG said in conclusion.

(Concluded)

STONE 'N' STRING

www.ppilk.com

www.crescat.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright © 2003 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager