In Malaysia, there is no legislation that specifically regulates victims’ rights.
In Criminal Procedure Code (ACT 593) there are several provisions which regulate payment of compensation towards victim.
Section 426 stated that:
(1) The Court before which a person is convicted of any crime or offence may, in its discretion, make either or both of the following orders against him, namely:
(a) an order for the payment by him of the costs of his prosecution or such part of it as the Court directs;
(b) an order for the payment by him of a sum to be fixed by the Court by way of compensation to any person, or to the representatives of any person, injured in respect of his person, character or property by the crime or offence for which the sentence is passed.
(2) The Court shall specify the person to whom any sum in respect of costs or compensation as aforesaid is to be paid, and section 432 [except paragraph (1)(d)] shall be applicable to any order made under this section.
According to case Yakman bin Mohamed Tahir & Another v The Public Prosecutor of Johore [1940] 1 MLJ 196:
Section 426 of the Criminal Procedure Code gives power to order compensation or costs to the complainant in addition to any other punishment and applies the provisions of Section 432 to any order made there under, with the exception of para (d) of sub-section (i) of Section 432.
Section 432 provides for the manner in which the order under section 426 can be made:
(1) Subject to the provisions of this Code where any person is, under this Code, for any reason whatsoever, ordered to pay any sum of money by way of costs or compensation, the Court making the order may in its discretion do all or any of the following things, namely-
(a) allow time for the payment of that sum;
(b) direct payment of that sum to be made by installments;
(c) issue a warrant for the levy of that sum by distress and sale of any property belonging to that person;
(d) direct that in default of payment or of a sufficient distress to satisfy such sum, that person shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of sentence:
Provided that where time is not allowed for the payment of that sum an order for imprisonment in default of payment shall not be issued in the first instance unless it appears to the Court that that person has no property or insufficient property to satisfy the money payable or that the levy of distress will be more injurious to him or his family than imprisonment;
However, according to Section 426(2) it is apparent that the provisions of Section 432 (1) (d) do not apply to an order for compensation made under Section 426, though the remaining provisions of Section 432 do apply. Thus, in Yakman bin Mohamed Tahir & Another v The Public Prosecutor of Johore [1940] 1 MLJ 196, Laville J held that, an order for imprisonment in default of payment of compensation ordered under that section, is ultra vires and cannot stand. The result is that no order for imprisonment in default of payment of compensation ordered under Section 426 can be made under Section 432 at all, and there appear to be no other provisions under which an order for imprisonment can be made in such case.
Section 427 provides for payment of expenses of prosecutors and witnesses:
In every criminal case tried before the High Court, and in every criminal case tried before a Sessions Court or a Magistrate's Court, the Court may in its discretion order payment out of the Consolidated Fund to the prosecutor and to the witnesses both for the prosecution and for the defence, or to such of them as it thinks fit, of the expenses incurred by them severally in and about attending the High Court, or the Sessions Court or Magistrate's Court and also compensation for their trouble and loss of time, subject to such rules as are prescribed.
Nevertheless, decision to claim compensation under the above sections is on the Public Prosecutor who decides on the charge and conducts of the case (Salim Ali Farrar, 2008). He believes that:
Although private prosecution does exist for minor offences (sections 108 and 128 of the Criminal Procedure Code), in practice prosecution is a state monopoly. Hence, neither victims nor offenders have any say in whether to bring charges of to adjust their content (p. 305).
This was illustrated in the Federal Court case of Long Bin Samat & Ors v Public Prosecutor where it was discussed that:
Clause (3) of Article 145 clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only he may institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted…..Anyone, who is dissatisfied with the Attorney General’s decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher court, should seek his remedy elsewhere, but not in the courts.
The above problems are not an issue in Islamic criminal justice system because the shariah protects the victim in the concept of Qisas. In this system, after the decision of qisas is awarded or conviction is made, the judge has no absolute right to make his further decision because it is subject to the right of wali (the next of kin). Wali shall have the right to demand qisas to be executed by the state or by himself, to pardon the offender altogether, to demand diyat (blood money) instead. In cases where the victim is alive, he shall demand such rights by himself (Hamid Jusoh, 2007).
On the other hand, Domestic Violence Act 1994 and Child Act 2001 govern victims’ rights for specific offences such as domestic violence and child abuse (Mohd Najid Bin Husain, 2008).
However with regards to statement by children, s. 133A of the Evidence Act provides that when evidence is given by a child on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless such evidence is corroborated by some other material evidence (Mohammad Akram, 1996). The very basis of the need of the corroborative evidence is based on the common belief of adults that children being children are less reliable as witnesses. On the contrary, researches show that regardless of a person’s age, memory is not entirely accurate (Abu Bakar Munir, 1991).
With regards to the right to be informed, Sanders (2002) found that “20 percent of victims found the information they had been given not useful at all” (p. 214). This is because the information was not further explained by the police to the victims since the police are a mere messenger for the decision made by the judiciary. Had the CJS been more sensitive towards the victim, it would have had included a simple reasons for the decision along with the information given out to the victim. In Malaysia, the victims were rarely given any information at all.
Regarding other promising rights listed above, the laws in Netherlands, America,
West Germany and France are not available in many other CJS in the world including Malaysia.
Other possible rights are the basic rights in the European Convention of Human Rights (ECHR). As a human being the victim should be entitled to any rights under the ECHR just like the accused. Unfortunately, Rock (2004) established that the European Convention was created only to protect European from ‘the crimes against humanity of the kind inflicted by totalitarian States in the 1930s and 1940s (p.232)’ as a respond to the effect of the Second World War. Therefore, ‘the Convention and the Act had not been framed directly to protect the rights of the victims of everyday offences, the robberies, burglaries, thefts, and assaults committed by citizen on citizen (p. 233)’ because the Convention originally viewed that only the State can be the perpetrator. Hence, it will be difficult for victims to claim his rights under the ECHR since he must be a victim of crime committed by the State against that victim. This is why only the accused may claim for breach of human rights by the State in prosecuting such accused. This goes to show that while the accused enjoyed the benefit of human rights in the criminal justice system, the victim did not and was oppressed by it when such rights exercised by the accused against the victim’s case. By analogy, the ECHR itself forgot to protect the victims of crimes as human beings.
Apart from the above there exist many other problems that tamper with existing rights of the victim. Davies (2007) had identified that among the problems in the administration of justice for victim is institutionalized racism which means that there was suspicion by the police that the victim might actually be the offender just because such victim is a black person which leads to prejudice treatment by the police towards the victim. In other words racism could be a factor leading to neglect of victims’ existing rights in any CJS. Due to the many tribulations on victims’ rights, Karmen (1990) concludes that:
The consensus among experts is that the criminal justice system does not measure up to expectations. It fails to deliver what it promises. It does not meet the needs and wants of victims as its “clients,” or as “consumers” of its services (p. 156).
Indeed it is disheartening to see that even when victims do have rights, such rights cannot be exercised in its entirety. Prompt actions should be taken to repair the weaknesses of existing rights of victims to avoid further victimization. Whenever any relevant rights are created in other countries’ CJS it should be adopted into the CJS that does not have it to fortify every CJS in the world. This is because victimization is a universal predicament.
Tuesday, April 14, 2009
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