The flight from rights : rule aversion in dealing with the criminal process Molimi, Zuma, Thint (Holdings), Shaik and Zealand

Abstract

In an adversarial criminal justice system, rules tend to favour the accused. Rules, when applied strictly, create rights. The fewer the rules, the more likely the conviction. The longer the view taken by a justice system, the more generous the system to those at its barrelend. Due process intrudes upon the immediate desire to punish with an appeal to the perennial need to be humane. It arrives at the critical moment, embodying the conscience of society, to spoil the quenching of the bloodlust at the hanging party. Woe betide the accused whose case is considered with regard only to its own facts, to the crime he stands accused of committing, and to the need to do something about it. More often than not, his salvation will lie in the extent to which he is able to invoke rules, rights and principles that were created for the benefit of others, for situations other than his, and for the long-term benefit of society. He will want the judge to apply an ancient rule uncritically, instead of asking whether, in the case at hand, society's interests in fighting crime outweigh the merits of whatever complaint he has raised about the way the trial is being conducted. Such balancing exercises will tend, in the nature of things, to end badly for him.