Judges and magistrates who do not understand the Bail Act are contributing to dire overcrowding in prisons that sometimes hold close to twice as many inmates as they are designed to house, law reform activists say. Statistics show that while prisons should hold 11,762 inmates, in 2015 they had a daily average of 16,000 to [...]


We lock them up and throw away the key

Jails are bursting with inmates denied justice by muddled judges

Judges and magistrates who do not understand the Bail Act are contributing to dire overcrowding in prisons that sometimes hold close to twice as many inmates as they are designed to house, law reform activists say.

Statistics show that while prisons should hold 11,762 inmates, in 2015 they had a daily average of 16,000 to 19,000 with a daily average population of 8,406 remand prisoners.

For every convicted prisoner there are three remand prisoners in jail. The annual admission for the year 2015 is 113,734 of which 89,586 were remand prisoners. Only 24,148 were convicted by a court.

Some prisoners are awaiting decisions from appeals, others are awaiting trials/ cases postponed and have been granted bail but are still locked in due to rigid bail conditions that they have no capacity to fulfil.

Lal Wijenaike, Chairman of the Committee on Public Representations on Constitutional Reforms, said prisons were crowded because remand prisoners were kept behind bars for long periods. Even those who have committed minor offences are kept for two to four weeks without bail. They can be easily sent out on bail,” he said.

Mr. Wijenaike maintained that a person should be denied bail only if s/he were violent and posed a threat to society or had a history of previous offences or might abscond.

About 10 per cent of those arrested and remanded were convicted. “There is a serious flaw in the law,” Mr. Wijenaike said. “It is important to change the attitude of society and judges. Even young people and married men are being kept in remand. There is a dire need for the law to change.”

Mr. Wijenaike said the judges’ interpretation of the Bail Act was wrong and the country needed a new Act.

He believes judges do not have the correct understanding of the Bail Act, leading to situations where, say, a person is given a six-month sentence after trial but has already served over 18 months to two years in remand.

Mr. Wijenaike further said the public’s attitude towards the accused should change. ”If the case is not concluded the suspect is not guilty. The person may be enlarged on bail,” he said.

A senior human rights lawyer, Kalyananda Thiranagama, is a voice crying out in the wilderness for the rights of prisoners. He said he has been pointing out unlawful sentences and procedural anomalies in the criminal system for several years.

Illegal jail sentences are issued by magistrates covering up to 30 years, he said. According to the Penal Code Act (PCA) a magistrate court can give a sentence not exceeding four years. “But we find them announcing over 10, 12 sometimes up to 30 years. This is illegal,” Mr. Thiranagama said.

He said judges and the lawyers were aware of this but were ignoring the issue. Consequently, prisoners stayed in prisons without Legal Aid for months, if not for years. “This has been happening for the last 35 years, since 1981, resulting in crowding of prisons,” he said.

The Judicial Services Commission (JSC) rejected these claims. The commission’s Secretary, Pradeep Jayatilake, said suspects were charged according to varying statutes of the Penal Code and if there were any complaints the JSC would take them up.

The Lawyers for Human Rights and Development has taken up the cases of 25 prisoners and is contesting their sentences before the Court of Appeal. The prisoners have been picked from the Bogambara, Kalutara and Ratnapura prisons.

Mr. Tiranagama also pointed out that prisoners have to spend long sentences in prisons when they have multiple offences and judges omit to state their sentences should run concurrently. Consequently, the Prisons Department added up the sentences and incarcerated the prisoner for the term of consecutive sentences.

Prisons Commissioner-General H.M.N.C. Danasinghe said in instances where a prisoner has convictions on multiple counts the file is sent to the magistrate for advice. But if the magistrate does not reply the sentences are calculated in consecutive terms. “We do not have authority to determine what is correct,” he said. He said that under 300 of the CCPA only sentences given on the same day could be considered as concurrent sentences.

The Legal Aid Commission (LAC) has also stepped forward to help these unfortunate victims. Chairman Rohan Sahabandu said Legal Aid was being given to most prisoners who lack legal assistance. “The Prisons Department writes seeking our assistance for prisoners locked in for a long time. We get a list from the Prisons Department and help out those who need assistance with bail. We take cases such as maintenance, divorces, domestic violence,” he said.

LAC senior member U.R. de Silva said sometimes the police and the public alike want an accused to be kept behind bars. When there is a public outcry to keep the accused in prison saying that s/he poses a threat to society but the magistrate grants bail, the magistrate is suspected of being partial.

He said confessions made to the police or to the media are not acceptable by the law as there are concerns that they might have been made under duress. Under section 25/26 of the Penal Code only confessions made in courts are accepted. Exceptional circumstances would be under Prevention of Terrorism Act or under emergency regulation where the confessions are made in the presence of an Assistant Superintendent of Police (ASP) or a higher-ranking officer.

According to the LAC there are currently about 956 suspects who have been given bail and yet languishing in jail as they cannot fulfil the bail conditions. This includes 140 from the Mahara Prison, 119 at the Magazine Prison and 100 at Bogambara.

The Bail Act, Mr. De Silva said, has no uniformity and as such sentences passed are completely at the discretion of the magistrate. When there are multiple offences tried in different courts, one court might grant bail and another does not, depending on the attitude of the judges. Sometimes two different orders are given – one to remand and other to grant bail. “We are trying to bring in guidelines so that justice will be served in the courthouse,” he said.

Another factor that hinders bail is the complexity of the bail conditions. Bail conditions require that the sureties the suspects produce are high-ranking public servants. Many remand prisoners are unable to produce these sureties and languish in jail. Even if they find such a guarantor that person has to reside in the area where the incident occurred. Their Identity Cards are checked and in addition have to produce a letter from the Grama Sevaka confirming that s/he is a resident of the area.

Additionally, the person giving the surety has to possess property worth Rs. 500,000 or over and has to obtain a certificate from the Grama Sevaka to this effect. To get this certificate a payment of 1.5 per cent of the value of the property has to be paid as fee. Sometimes the passport of the guarantor is impounded.

With such restrictions it is seldom that people come forward to help the accused. This has resulted in many people being kept in jail for a longer period than the offence entails.

Another problem faced is the practice of requiring the accused to report to the police station in the area where the incident took place. This also breeds corruption where police officers are bribed for favours.

Mr. de Silva said the LAC had put forward many suggestions to circumvent these problems where the persons on bail could visit the closest police station to mark his attendance.

In non-summary cases including rape, murder and child abuse the Magistrates Courts and the High Court often send the file to the Attorney-General’s office for advice. The “no date cases”, as they are called, very often get misplaced and the accused languishes in remand jail for months or years. There is no one assigned to follow up the cases.

In other instances, the police sometimes fail to submit the Information Book (IB) to the AG’s office. The IB is important as the Attorney-General’s office acts on the evidence logged in the book to make decisions.

Sad list of forgotten suspects behind bars

Among the 126 “no-dates” cases languishing in prisons is case No. NS 168 at the Kaduwela Magistrate’s Court where, although police have forwarded the Information Book (IB) to the Attorney-General’s office the accused has been in remand prison for the past 10 years (since September 2006) with the Attorney-General still to make a decision on processing the case, the Legal Aid Commission (LAC) said.

In another non-summary case (No. 2924 at Walasmulla Magistrate’s Court) the accused has been in remand since 1994, for 12 years. There is no clue about the whereabouts of his file. The LAC is trying to trace it. The police have not forwarded the IB extract to the Attorney-General’s office.

In case No. 28158 at the Udugama Magistrate’s Court the suspect, who was arrested for murder in 2006, is still in remand. The LAC has requested details from the Attorney-General and has also written to the Magistrate’s Court and to the police to find out the exact position of the charge.

In case No.98305 at the Mahiyangana Magistrate’s Court the subject was arrested in 2008 and is still in Badulla remand.

LAC senior member U.R. de Silva said that there were several cases from 2010 involving people arrested under the Prevention of Terrorism Act, Emergency Regulations, and for the possession of narcotics.

The Penal Code requires that a maximum period a suspect could be kept in remand prison is two years, after which s/he should be released. The LAC said about 1,195 people are in jails for small offences and cannot pay fines.

“These people are unnecessarily in remand. The crowding in prisons can be solved easily. Stringent bail orders should be relaxed and non-summary cases heard quickly,” Mr. de Silva said.

Most importantly, judges had to be educated in the law and their attitude changed. “The bail is in the law and there is a provision for bail order,” he said.

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