The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

Amongst the Ministries and Departments that have contributed most actively to work on the National Human Rights Action Plan are the Ministry of Rehabilitation and Prison Reform, and the Department of Prisons. They have explained to us the problems they face, and have made it clear that they would welcome a reduction in the numbers they have to take charge of. Unfortunately that aspect of Prison Reform is not their responsibility, it comes under the Ministry of Justice.

Unfortunately Justice too has some difficulties in this regard, for the Prisons are full beyond measure because people are committed to them by Magistrates. Unfortunately Magistrates do not carry out their duties with the full awareness that the system in fact demands of them, and most of them, as the Commissioner General of Prisons told us, hardly visit the prisons, to see the consequences of the, at best careless, certainly callous, approach they adopt.

We heard this during a visit to the Prisons arranged by the Human Rights Commission. Its active Chairman, and members of his staff, including several Commissioners, had asked the Commissioner General to permit us to look over some of the areas in his charge. This is in fact a right the HRC enjoys, and I believe its officials do exercise this, but sadly they do not have enough staff to maintain the practice at the level of frequency that is needed. However, even if they did so, and were therefore able to prevent the abuses that occur because of individual aberrations, they could not prevent the systemic abuse that results because of overcrowding.

There are on average 26,000 prisoners in jails throughout the country on any given day. Half of these are simply on remand. At Welikada, which we visited, there are 4,000 prisoners in a facility built for a thousand. About 1,000 of these are in remand, while a couple of thousand more are in for offences such as drug and alcohol abuse and the non-payment of fines.

It makes no sense to keep these people in custody, and the President has suggested, in the budget speech last year, that we should make use of non-custodial sentencing, including rehabilitation for those who are more victims than perpetrators of criminality. We should also stop the practice of remanding at the drop of a hat, but should rather use bail more systematically, with simple tracking systems to ensure that it is not abuses. Such proposals have come up again and again, in the many reports on Prison Reform that have been presented in the past, but sadly there is far too much lethargy about implementing them.

Part of the lethargy springs from the difficulty of coordination, which is an endemic problem in this country. In the first place we need some judicial reform, including ensuring that many more offences are made bailable. But then we also need more clearcut guidelines for magistrates, to ensure that they use discretion positively, and in a socially responsible fashion. We must also ensure that police do not take the easy way out and remand, when they should be using bail. Then, we also have to promote non-custodial sentencing, and develop systems, including better Rehabilitation units, to ensure that police and magistrates do not automatically resort to sentencing to jail as the answer to criminality, certainly not to what I would describe as passive criminality, the offences that are not really threatening to society which are the reason so many people are now incarcerated.

The Secretary to the Ministry of Justice has in fact written to the Chief to suggest consultations to promote practices that reduce the number of the jailed but, though all the others contacted in this regard, from the Ministry of Prisons to the Attorney General’s Department and the Police have expressed eagerness to move on this matter, the Judiciary has failed to act. In one sense this is understandable, because our Courts have never developed the social activism that marks so many distinguished judiciaries, such as the Indian, or the Americans under Earl Warren.

In one sense I sympathize, because they obviously have a tough time ensuring their independence. But they have not I think realized that independence applies to the decisions they make, whereas the methods they adopt must be responsive to social needs. Indeed, the manner in which they have challenged the laws of the land, as exemplified for instance in the refusal to treat mandatory provisions as anything other than directive, or to ignore minimum sentences enjoined by the legislature, suggests that they have never studied the Jurisprudential tradition embodied in, for instance, Herbert Hart’s Concept of Law. Conversely, the Rights based activism that characterizes alternative traditions has always been avoided, in part I suppose because of their adherence to British passivity, given the generally conservative nature of British judges.

If however the problem persists, I think it will be necessary for the President to step in, through Parliament, given the constitutional requirement for the judiciary to accept the forms laid down by the Executive and Legislative branches. I cannot reiterate enough that, for this to be acceptable, those branches must make it clear that they cannot, and will not, interfere in decision making. And it would of course be infinitely preferable if the Judiciary, as kindly requested by the Secretary to the Ministry of Justice, took the lead in promoting reforms that will give prisoners a better deal while also overcoming the practical problems, moral, financial, psychological, caused by over-crowding.

But if there is no action, I believe Parliament should appoint a select committee which, with the help of imaginative jurists such as the Chairman of the Human Rights Commission, will ensure the reforms we so sorely need.

Daily News 30 July 2012 – http://www.dailynews.lk/2012/07/30/fea04.asp

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