Witness protection system vital for people - Justice Udalagama

By Dhaneshi Yatawara

A recent research done in Sri Lanka has found out that our Prisons are holding three times of their carrying capacity. It showed that Sri Lanka’s prisons are highly congested and over crowded.

“This is the same prison that existed since 50 – 60 years ago. The crime rate has gone up and the population has increased too but the prisons have not grown up to that level that should be,” said Retired Judge of the Supreme Court Justice Nissanka Udalagama.

According to the research done by Lawyers for Human Rights and Development headed by Senior Lawyer Kalyananda Tiranagama with the assistance of the UNDP Equal Access to Justice Project figures have emerged requiring serious concern of the relevant authorities.

Accordingly as at 2009 - 35p.c. of remand prisoners have spent more than six months in remand custody

10p.c. of all remand prisoners or 1315 individuals have been detained for more than two year pre-trial.

284 remand detainees have languished in custody for over five years without being charged or without being brought to trial.

In the past 15 years the prison population has increased to 27,823

More than 50p.c. of all prisons inmates are remand prisoners

Thus Sri Lanka’s Pre-Trial Detention system needs more concern.

A person held in remand custody suspected or accused of committing an offence has a right to expect trial within a reasonable time. Many of them are detained on the allegation of involvement of trivial offences punishable with a penalty far less than the time they have already been in custody.

Presumption of innocence is a core principle of Sri Lanka’s criminal law and is a fundamental right guaranteed by Article 13(5) of the Constitution. When a person who is innocent in the eyes of the law is kept in custody for years without being charged or without bail, the presumption of innocence has been violated.

“I believe the judges also have a role to play and that is why there is a requirement for the judges to make visits to prisons,” Justice Udalagama explained. “With my experience at the Judges Training Institute when I tell the judges to be more liberal about giving bail and that they can play a part in reducing the over-crowdedness of the prisons. If they decide that a person should be given bail, they should be bailed out and it is a reasonable bail. But some of the judges seem to think that bringing a solution to the over-crowdedness of the prisons is solely a Government responsibility,” he added.

The basis of the Bail Act says remanding is the exception and giving bail is the norm. Yet again, the decision is at the sole discretion of the judge in to which no one can interfere.

“When the police requests a remand of a suspect it is the duty of a judge to consider. In my personal view it is easy to remand a person,” Udalagama explained.

The grant of bail is regarded as the rule and the refusal to grant bail is the exception

No person to whom the Bail Act applies can be kept in custody for more than a total of two years unless that person is convicted and sentenced. Bail is not the only way a person can be released from custody.

There are other ways, such as bonds and personal undertakings, to facilitate pre-trial release without ordering bail. Ordering excessive bail amounts to refusal of bail.

Police

According to Justice Udalagama, even at the Police station itself the Police can give a Police Bail and release the person according to the conditions framed in the law, but usually it does not happen. “Most of the time the Police take such case up to the magistrate Courts though there are certain conditions where the police can give bail too,” he explained.

What is the reason? Is it Lack of human resources or lack of knowledge? The main concern about a suspect is that whether that person can be brought to courts easily on the hearing day. As Justice Udalagama explained, in such a situation the easiest thing to do is to remand a suspect irrespective of the level of the offence.

According to the law, offences like murder, rape are unbailable offences.

Depending on the offence a person has committed, other than the unbailable offences at the magistrate level, the judge can decide bail. For example, offences related to illicit liquor and selling of it is something even the Police can give bail. The Police is well aware of the ground situations of the area.

“They know who will evade and who will not. For instance, a suspect cannot evade if he has a family there or some other commitment. These things can be considered by the police themselves,” he explained.

“The legal discretion given to the Police officer is not used properly and this also is a cause of congested prisons,” he said. “The reasons I see is that the Police officers are concerned about the reprimand they will get from their higher officers,” he added. What can a person fallen victim to such a situation do?

At present, since the High Court system is expanded in the country for the people after getting the judgment from the Magistrate Courts only have to walk to the High Courts. “With the High Courts expanded, it is just a matter of walking next door to the High Court and make an appeal against the judgment,” he explained.

Earlier it had been a cumbersome process where the person had to travel to Colombo to file case in the High Courts. “More and more people are coming to the Legal Aid Commission for assistance as well,” he added.

Knowledge

According to Udalagama, other than the rest of the country the North needs more concern with regard to awareness of the public on the law of the country.

“I visited the North for official purposes and the people have absolutely no knowledge of the law,” he said. “People were under war for nearly thirty years and there was no proper legal System or practice of the law under terrorists. So people of the North especially need to be made more aware of the law of the country,” he explained. “Even for a simple case like women with children where the husband has left them, they go to the Police station seeking for maintenance. They do this when they should have gone to a lawyer and file a maintenance case. These people are unaware of such situations too,” he added.

“Many people have lost their birth certificates, deeds etc and that has also caused problems to these people when it comes to legal matters,” he added. Once Robert Browning has said Ignorance is not innocence but sin. With regard to law, it is a disaster.

According to Justice Udalagama not only the people but also the police officers need to refresh their memories. “Under a terrorist threatened environment even the Police had to be more concerned of the security as it was the need at that time. So for nearly 30 years this was the main concern,” he said.

Now in a peaceful environment and when life of the people living in North is returning to normalcy the Police need to reactivate its peace officer duties.

“The legal Aid Commission conducts lectures to police officers and actually we get nearly 300 police officers for each session,” he said, giving a hint that the police is eager to be on their actual duties.

Under the Prison Ordinance, remand prisoners are entitled to get daily visits from their family and receive food from home. But given their personal circumstances, most prisoners held in long term custody do not receive family visits even once a year.

Many of these prisoners are having no-date cases and as a result their cases may not be called in open court for several years.

As a result, their life is confined to prison and they have no contact with the outside world.

In some cases this leads to severe mental illnesses, as research shows. Due to their poverty they can neither afford the expensive lawyer fees and costs, nor can they furnish the heavy cash bail that is often ordered by courts.

They face difficulties in producing the burdensome sureties of the type ordered. Persons with means generally manage to be released on bail within a reasonable period. Many are afraid to voice their grievances or report ill-treatment.

Accordingly, above and beyond the rights of individuals, the broader socio-economic impact of pre-trail detention is becoming increasingly clear.

It exacerbates poverty, impedes economic development, has negative health effects and is a waste of State resources.

If remand prisoners are employed at the time of detention they will most likely lose their job and while detained are deprived of an opportunity to gain income. Thus, as commonly seen among these pre-trial detainees, the result is heavy financial burden on their family members.

There are significant benefits, both social and economic, that can be achieved if pre-trial detention is minimised and release pending trial is granted in all but exceptional cases.

There is no benefit to individuals or society at large by keeping large numbers of suspects in custody for long periods without bail. It does not assist in combating crime and there are effective methods of ensuring that once released, defendants appear at trial.

There are compelling economic aspects on this. Remand prisoners are a substantial burden on state resources with the Prison Department spending over Rs.300 per day to keep a pre-trial detainee in custody.

As prisoners on remand comprise approximately half of Sri Lanka’s prison population, increasing the number of suspects released on bail would provide significant cost savings and dramatically improve the current deplorable conditions in some prisons.

Witness protection

Lack of a witness protection system also contributes to long term pre trial detention, according to Justice Udalagama. Witness protection is now more relevant, he added.

“There are a lot of cases related to drug dealers and witnesses won’t come forward because people are afraid of the deadly threats from the drug dealers,” he said, explaining that cases will unnecessarily drag without proper evidence.

He insisted that a Witness Protection System is of utmost importance in the modern world.

According to Justice Udalagama the Courts should seek possibilities to use video conferencing, specially when investigating rape cases.

Condition

“At the present set up, the rape victim has to give evidence and relate what happened in front of the person who is supposed to have raped her and it is a very uncomfortable condition for the victim,” he said. “It is one of the reasons that rape cases are not coming to courts,” he added.

Thus, he emphasises an urgent need of a Witness Protection System in Sri Lanka.

“Many legal personalities like former Chief Justice Sarath Silva, Former Attorney General C. R. de Silva, Legal Aid Commission Chariman S.S.Wijerathne pioneered to bring the Witness Protection system but it is at a halt now,” he explained.

“It will be a costly matter for the Government, but is essential to protect people and proper practice of law,” he added.

The greatest homage to truth is to use it. The right to speedy trial encompasses all stages of the criminal justice system up to the final conclusion of a criminal case, namely, investigation, inquiry, trial, appeal, revision and retrial. Lengthy pre-trial detentions undermine these fundamental rights.

The research reveals that most prisoners held in long term custody without bail are not hardened criminals dangerous to society.

Many of them are first time offenders charged with petty offences.

Most remand prisoners languishing in prison without bail for lengthy periods are those who are unable to afford bail applications at the Court of Appeal or High Court.