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Prosecutorial Injustice

There is an apparent loophole in our justice system, particularly from the prosecution side that needs to be addressed to ensure victims of crime are properly and fairly represented. Addressing the loophole will make a huge difference in the administration of justice and would greatly minimise all the emotional and psychological impacts of crimes against victims. This piece seeks to make the case that there is a need to revisit all relevant laws governing the administration of justice so that offenders face the full force of the law and justice is seen to be done. Campaign for Justice is firmly of the view that currently victims of crime still do not get that maximum protection, as intended by the Constitution. From the outset, we argue that victims of crime must also be given the same choice currently accorded to the accused, to choose who should prosecute crimes committed against them. Such a choice should be made between the Office of the Public Prosecutor, or any private lawyer, be it local or international once the police have completed all investigations and handed the case over to prosecutions. The gist of our argument is: if someone, charged with an offence is able to choose a legal representative, and yet that same privilege cannot be accorded to victims of crime; who must content with whatever service they get from the prosecutions department, then where is justice in all of that? Let’s unpack this a little further. The primary reason for why the Government allocates resources to the Office of the Public Solicitor, which is the public’s lawyer, so to speak, is so that people charged with offences can be fairly represented in court. It cannot get any fairer than that. It is their right. The Constitution says that everyone is presumed innocent until proven otherwise. A whole list of fundamental rights and freedoms are listed in Chapter 2:

  • life

  • liberty;

  • security of the person;

  • protection of the law;

  • freedom from inhuman treatment and forced labour;

  • freedom of conscience and worship;

  • freedom of expression;

  • freedom of assembly and association;

  • freedom of movement;

  • protection for the privacy of the home and other property and from unjust

  • deprivation of property;

  • equal treatment under the law or administrative action, except that no law shall be

  • inconsistent with this sub-paragraph insofar as it makes provision for the special

  • benefit, welfare, protection or advancement of females, children and young persons.

These are not there just for decorative purposes. They are there as ‘fundamentals’ of our sense of being as a nation – to protect us, citizens. The Constitution, our ‘mama’ law, also says: “…everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence”. Such a provision denotes that it has always been the intention of our framers that great care should be taken to ensure individuals – charged for any offence, get maximum protection from the law, until that same law says they are guilty as charged. The Constitution even makes provision for when someone feels that their rights, as guaranteed by the Constitution “has been, is being or is likely to be infringed may”, seek help from Supreme Court to enforce their rights. The difficulty with fully honouring all the above is when the Public Prosecutor’s Act, or any other relevant Acts of parliament, do not give victims of crime the same freedom to choose who should represent them, unless the Public Prosecutor granted his/her blessing. Currently, any person charged with an offence, does not need to pay hefty lawyer fees (unless they choose otherwise) to be represented in court by a practising attorney/barrister. The State takes care of the legal costs for them, through the Office of the Public Solicitor. Those with the financial means might decide to opt for a private barrister (And there have been numerous cases where people with the financial capability have even afforded the services of Queens Counsels (QC) from overseas, so long as they comply with other relevant laws that allows them to practice law in Vanuatu). Where the injustice arises is the law makes it almost impossible for victims of crime to opt for a private prosecutor. Even if they can afford it, they still have to be approved by the Public Prosecutor. There have been instances where, despite the inadequacies of the Public Prosecutor to handle cases, they still would not allow for a victim to hire the services of a private prosecutor because they feel such an approach would undermine the office. The question to be asked is: under such circumstances, whose interests are paramount – the victims’ and that of justice, or that of the office of the Public Prosecution? We strongly advocate that in the interest of justice and fairness, as provided for in Section 2 of the Public Prosecutor’s Act, due consideration should be made to amend the law so that perpetrators of crime face the full force of the law. We are aware of so many cases where criminals have been lightly let off, either through the incompetence of publicly-funded lawyers, or through pure ignorance and indifference, while victims of crime are forced to live with the trauma and psychological impacts of crimes– some for the rest of their lives. This is not justice! Our argument is, if someone slightly feels that the inadequacies of the prosecutions department would harm their interest in obtaining justice; or believes that their interests would be better defended by a lawyer outside of the public prosecution’s department, then that option should always be made available to them. It is not our intention to discredit the office of the public prosecutor. Far from it. They certainly have done well under difficult circumstances. Our interest is equal justice under the law. C4J is not oblivious to the fact that Vanuatu – as a developing country, will not always have all the legal expertise at its disposal to tackle all criminal matters. However we believe that once all evidences have been gathered by the police, and lodged with the Office of the Public Prosecutor, more options for prosecution should be made available by law to victims. As long as there is an institutional blockade, victims of crimes will not be guaranteed 100% that they will obtain justice they truly deserve.

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