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Governtment of Sri Lanka

Sri Lanka Rights Watch 30 - Preventing languishing in jail

( Created date: 09-Jul-2012 )

When I wrote about the Laws’ Delays last week, I was referring to delays in bringing forward laws or amendments that everyone agreed were essential, but which were held back because of inefficient coordinating mechanisms for all stakeholders. This factor, combined with the lethargy or perhaps diffidence that affects so many government departments, leads to protracted suffering for citizens.

But there is another area too in which the laws’ delays cause problems. This is systemic failure with regard to those in remand or indicted, which results in cases not being settled for years. I have referred to this previously, but now the Human Rights Commission has done some investigation and produced a Preliminary Study which includes some worrying statistics. It seems that 53 persons have been in remand for over 3 years with no prospect of an end to their cases. One has been in remand for over 15 years, having been arrested in 1996, while seven others have been in remand for over 10 years.

I was told about this when I met the Chairman of the Human Rights Commission, in pursuing fulfillment of the policy laid down by the President in last year’s budget speech. There he spoke of the enormous wastage in human and material resources caused by the practices of remanding practically automatically, and of indiscriminate sentencing to jail, and suggested alternative procedures. In addition to greater reliance on non-custodial sentencing, these could include much readier recourse to bail, as well as entrenching systems to ensure swift disposal of cases.

I was thankful that the Human Rights Commission, in its much more active incarnation now, has been looking at this and other problems, and seeking structural solutions. We had previously had a meeting at the Ministry of Rehabilitation and Prison Reforms, but that had dealt more with other questions, so it had been decided to have a separate meeting on this issue. The task would I thought be easier because the ICRC had prepared a preliminary paper on the subject, which they had shared with the Ministry of Justice as well as Prison Reforms. The Minister of Justice was keen to proceed, but even though the legal changes required were the responsibility of his Ministry, obviously the lead would have to be taken by the Ministry with specific responsibility.

It turned out that the Human Rights Commission had not seen the paper, which is a pity, because they too would be in a position to contribute to reform. I am not sure whether the ICRC, which deals with government Departments, has a line of communication with the Human Rights Commission, but that should be encouraged by government. Given the responsibilities of the Commission, and the research they have done, they could advise the Ministry of Justice as well as the Judicial Services Commission on precisely what reforms are needed, with regard to expanding the category of bailable offences, requesting the police to proceed on the basis of that category rather than that of non-bailable offence, and instructing magistrates to exercise discretion liberally when necessary.

There should also be rigid guidelines, with exceptions having to be justified, as to the time within indictments should be issued. In the cases explored by the Human Rights Commission, indicting had taken a couple of years or longer. Failure to apprehend others suspected of the same offence should not lead to delays, but decisions ought rather to be made swiftly on whether the evidence available is sufficient to indict those in custody. If not, they should be released within a reasonable time.

With regard to delays for those who are actually indicted, reasons range from failure to translate necessary documents in time to required reports not being available. We had discussed this previously, at meetings of the Task Force, and I was pleased to find that, as recommended, the Secretary to the Ministry of Justice has instituted meetings at which officials from different departments responsible for cases meet to ensure that whatever is needed will be available when the case is called. I would have liked these to happen on a weekly basis, but I suppose once a month will do, provided all those involved are well prepared. Those in charge of prosecution should ensure attention to all cases to be taken up that require reports from the Government Analyst, translated documents, police evidence and so on, so that we do not hear horror stories of the Analyst travelling to the East Coast, for instance, only to be told that the police case was not ready. 
We have also suggested that courts should share information about the speed with which they act. Currently the Ministry is supposed to have statistics as to cases settled and postponements granted, but there is no compulsion to study these and issue advice accordingly to expedite justice. If however such information were available to the public, on websites, or at least in documentation readily examinable at each courthouse, that would provide a much needed spur to dispose of matters swiftly. There is certainly no reason not to publicize such statistics, apart from the old colonial mentality that information belongs to those in authority unless there is good reason to share it. On the contrary, in the modern age the principle should be that information belongs to the people, and must be made available, unless there are good reasons, involving security issues, why it should be withheld.

Certainly the research done by the Human Rights Commission should be made widely available, and it will I hope be studied by the Ministry of Justice, the Judicial Services Commission and the Judges Training Institute. It cannot be reiterated enough that the judicial system exists to benefit the people, and its delays are unjust to victims as well as those suspected of perpetrating crimes – and indeed also to those involved in Civil Cases who have sought judicial remedies.


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