MERCY MUST BE TEMPERED WITH JUSTICE


The Advisory Committee, recently appointed by the President, has constitutional responsibility only in relation to persons who have been sentenced to death. But article 190 of the Constitution, which provides for its functions, omits to state what exactly in relation to the sentence of death the Advisory Council is to advise on, even though as a matter of practice it is known that the Advisory Council advises on the commuting of death sentences.

In article 188 the President is given extensive powers in relation to prisoners. After consultation with the Minister, the President may grant to any convicted prisoner a free or conditional pardon, an indefinite respite or for a prescribed period, a less severe form of punishment or a remission of the whole or part of a punishment.

The Parole Act makes provision for the release of convicted prisoners on parole. It provides for the appointment of a Parole Board by the Minister to advise the Minister with respect to the release on licence or recall of a person whose case has been referred to the Board by the Minister.

There is no provision in the Constitution for the President or the Advisory Committee, or in the Parole Act for the Parole Board, to take into consideration the views of the victims of the crimes or their families or relatives. It is not known whether this has been happening informally but it is doubtful. Such an omission is a grave, and has been an historic, injustice in Guyana and many other countries where the victim of crime is given short shrift and little consideration. I have written about this before but it is a subject that is worth emphasis by repetition.

Starting from the Police Station, through trial, to commuting, pardoning or parole, there is little consideration for the victims of crime. Wholesale criticisms against the Police would be unjustified because some victims are treated with courtesy and respect and the Police have carried out training in relation to victims of sex offences and domestic violence. But numerous complaints of contemptuous treatment of victims by the Police suggest that training in how to treat victims needs to be consistent and ongoing.

When matters reach trial stage there is little protection for victims from aggressive or hostile questioning by defence counsel. In fact some inexperienced magistrates and judges are known to lose their patience with victims who are witnesses and join with defence counsel in harassing them. While it would be difficult to legislate against this, training of magisterial and judicial officers and public education of victims of their rights and the protection that they are entitled to expect, should be matters of urgent consideration.

At the justice level consideration of victims is woefully lacking. Sentences are handed down from murder, manslaughter causing death by dangerous driving and sex offences to wounding, assault, robbery and fraud where victims are never heard and their pain and suffering never recorded or considered by the court before imposing sentence. There is no law in Guyana requiring courts to hear victims before passing sentence.

When sentences are commuted or prisoners are released by pardon or parole, there is no legal provision for evidence from or consultation with families or relatives for their views to be taken into consideration. Families get no opportunity provided by any statute to speak to magisterial or judicial authorities, or the Advisory Tribunal, President or Minister. Families themselves are victims in a sense – victims of a system that has too long ignored their rights.

We recently witnessed the pain of the parents of Vishnu Bhim, an only child, whose killer, Ravindra Deo, was pardoned by President Ramotar after serving 21 years in prison. It was such a clear case that after adamantly defending his decision, President Ramotar relented and later expressed regret at not consulting the parents.

Very often in Guyana and elsewhere, domestic violence results in the death of a partner, usually the wife, reputed wife or girlfriend. The husband who is charged may be either found guilty or pleads guilty to a lesser offence. We often hear that the parties have children. The children are victims too but any consideration that might be given to children is at the discretion of the judge. There is no requirement that the children be heard in chambers with a counselor present or that their welfare be otherwise considered. Quite often magistrates and judges do ask for probation reports but these are at the discretion of the magistrate or judge, even in the case where children are involved.

It would be a major step for our society and judiciary to take on board the rights of victims. There would have to be many more articles like this from many others for public opinion to be energized to make this issue a priority. Action is not likely to be taken otherwise. Hopefully, with this my second article in which the subject is discussed, some people might be moved to argue that the mercy that is entrenched in our laws and consciences should be tempered with the justice of a hearing accorded to victims.

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