Expenses of witness: A comparative legal overview
Administration of justice in Bangladesh comprises the civil justice system and the criminal justice system. In civil justice system burden is on both parties to the suit for disposal of the same. But in criminal justice system burden is on the prosecution to prove the case and lead it to the final decision. After filing of a criminal case, law enforcing agencies, medical experts, prosecution team and witnesses play a vital role for the Judge or Magistrate concerned to decide the case.
When a case becomes ready for trial the prosecution applies for issuing processes to witnesses as listed in the complaint or police report. This process may be in the form of summons or bailable warrant of arrest or non-bailable warrant of arrest. Under the Code of Criminal Procedure, 1898 and the Criminal Rules and Orders, 2009 the police department is bound to ensure attendance of witnesses before courts. The presiding officer of the court that is judge or magistrate, police personnel executing summons or warrant, doctors issuing injury certificates and prosecution team conducting the case all concern are getting remuneration from the state.
Even government employees appearing before the court as witnesses also get transport allowances and dearness allowances.
But what about mass people who are appearing before the court as a witness and contributing to the disposal of a case?
As a Judicial officer, while recording evidence of witnesses I have found people of different occupations as witnesses. CNG driver, local tea stall manager, day labourer, non-govt. school teachers, imam of a mosque, shebayet of the mandir, small businessman, bus-truck driver, helper, old aged farmer, a student often come to court as witnesses. But the court or the prosecution has no fund for payment of fees for witnesses they incurred in attending court.
Section 544 of the Code of Criminal Procedure, 1898 has a provision regarding expenses of complainants and witnesses. The section says that the Government may make rules so that, any Criminal Court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for any inquiry, trial or other proceedings before such Court under this Code.
But in reality, no such rules framed yet.
In all Sessions court and all Chief Judicial Magistrate Court has no fund for payment of expenses of any complainant or witness attending for any inquiry, trial or other proceedings. As a result, mass people coming in court become frustrated for expenses he incurred and probable loss he suffered for non-attending his workplace. This situation severely discourages people for attending court as witnesses. As a result, thousands of cases remain pending for years for want of vital witnesses.
But, in India, after its independence, the Punjab Government under the powers conferred by Section 544 of the Code of Criminal Procedure, 1898, framed Rules regulating the payment of subsistence and travelling allowance to witnesses attending trials, etc., in Subordinate Courts.
In 2015, Government of National Capital Territory of Delhi issued the Delhi Criminal Courts (payment of expenses to complainant and witnesses) Rules, 2015. This Rule is for the regulation of payment of expenses paid to complainant and witnesses appearing for any enquiry, trial or other proceedings before a criminal court in the Metropolitan area of Delhi.
In Canada, the Province of Alberta issued the Fees and Expenses for Witnesses and Interpreters Regulation by the Alberta Regulation 123/1984 for regulating the fees and expenses of witnesses and Interpreters.
The Republic of Malta, long ago, enacted the Witnesses Fees Ordinance providing that witnesses shall be entitled to the fees prescribed in the respective Schedule A to the Ordinance for attendance before a superior court and to the fees prescribed in Schedule B for attendance before any other court.
In Australia witnesses are to fees and expenses they incurred in appearing before the court under Witness Protection Act, 1994. In New Zealand fees, allowances and expenses payable to the witnesses are governed by the Witnesses and Interpreters Fees Regulations 1974. This law has another unique provision which says that in case of a witness under the age of 16 years to be accompanied by a parent or guardian such parent or guardian shall also be paid fees and expenses. It further provided that where a witness, because of illness or infirmity, is to be accompanied by an attendant, the parent, guardian, or attendant may be paid the fees, allowances, and expenses prescribed by these regulations as if he or she were himself a witness.
In China, the issue of witness fees and expenses is regulated by the Civil Procedure Law of the People's Republic of China (as revised up to 2017). Article 74 of this law makes specific provision that the necessary costs and expenses incurred by a witness in connection with the fulfilment of an obligation to give testimony in court, including for transport, accommodation and meals, as well as the loss of salary or wage, shall be borne by the losing party of the case. Where a party applies for testimony given by a witness, the abovementioned costs and expenses shall be advanced by the party; where the people's court notifies a witness to give testimony without the application by any party, the costs and expenses shall be advanced by the people's court.
So, we see that several countries of the world have special legislation to deal with the fees and expenses of the witnesses. In Bangladesh, we have a statutory principle that is section 544 of the Code of Criminal Procedure for framing special Rules regarding witnesses' fees and expenses. Special law in this regard will encourage existing and prospective witnesses to attend before court and adduce evidence which will help disposal of thousands of pending cases thereby creating a new horizon in the administration of criminal justice system of Bangladesh.
Sheikh Sadi Rahman is Senior Law Research Officer, International Crimes Tribunal