The Judicial Service Commission in a circular issued today (26) has laid down guidelines to be observed when exercising judicial discretion with regard to releasing prisoners who have been granted bail yet are languishing in remand custody over the non-fulfillment of bail conditions, on bonds without sureties.
Secretary to the Bar Association of Sri Lanka, Kaushalya Navaratne, who is a member of the Presidential committee which on 26 March made recommendations on providing legal redress for prisoners who have been charged with or have committed minor offences and those prisoners who unable to meet the bail conditions imposed on them, said that approximately 1,400-1,500 prisoners (approximately 1,463) were thus eligible for release and that as an immediate step, the private and unofficial bar would be filing the necessary applications in this regard within the course of a week.
The said circular comes as a response to the need to take preventive action and protective measures against the Novel Corona Virus Disease 2019 (COVID-19) pandemic, in particular to safeguard the local prison inmate population within congested prisons from the spread of COVID-19 by easing the congestion.
The said guidelines are applicable to High Court Judges, Magistrates and Additional Magistrates.
Section 3(1) of the Release of Remand Prisoners Act, No. 8 of 1991 states that if a person to whom this Act applies has been granted bail but continues to remain in remand custody even after the expiry of one month from the date of the order of remand due to the inability to furnish bail, the relevant Prison Superintendent should produce the said person before Court and the latter should release the person upon execution of the bond without sureties by way of the person’s appearance in Court.
The circular specifies that Magistrates and High Court Judges may exercise discretion and release such persons upon entering into a bond without sureties and order that bail however be furnished within a specific time period, preferably on or before 15 June 2020.
The circular has been sent to the Attorney General (AG), the Secretary to the President, the Secretary to the Ministry of Justice, the Acting Inspector General of Police and the Commissioner General of Prisons for necessary action.
Meanwhile, the Committee for Protecting the Rights of Prisoners (CPRP) recommended both immediate and short to medium term measures concerning detainees at Police stations, remand prisoners, convicted prisoners and those at the Immigration Detention Centre (IDC) in Mirihana.
The CPRP recommended that persons be detained at Police stations only if absolutely necessary and to release as much as possible those detained in such a manner on Police bail.
In the case of remand prisoners, the CPRP recommended that the judiciary grant bail to those who have been remanded for bailable, minor or non-violent offences, and those who have not had adequate legal representation, and to release on bail those who have been unable to seek bail or plead guilty and pay a fine due to case postponement.
With regard to convicts, the CPRP requested that those who are unable to pay the fine be pardoned, for those who have been sentenced to less than six months and those who have less than six months remaining of their sentence left to serve to be given early, unconditional release, and to release prisoners eligible for home leave and license.
Concerning those at the IDC, the CPRP urged to release the refugees and asylum seekers whose applications and appeals are pending at the United Nations High Commissioner for Refugees along with those whose migration applications are pending before the Canadian High Commission, and those who have been detained for prolonged periods. The CPRP also requested that the cases of persons held at detention centres for youth offender, and detainee women and their children at Methsevana in Gangodawila be reviewed and they be released in consultation with the National Child Protection Authority and the Department of Probation and Child Services.
Of the short to medium term measures, the CPRP has requested the judiciary to take into consideration the nature and seriousness of the offences and review and release on bail those prisoners who have been remanded for many years sans indictment, those whose trials have been proceeding for many years and those with pending appeals. In this connection, the CPRP has recommended the release of women with children under the age of five living in prisons with them, release under community based correction orders those with sentences of less than two years and for the AG to expedite decisions on sanctioning bail for detainees held under the Prevention of Terrorism Act.
Elsewhere, in connection with the stoppage of visits to prisons by prisoners’ families and others, the CPRP proposed that prisoners be provided with supervised phone calls and for the Department of Prisons to provide prisoners with personal hygiene related products (soap, toothpaste and sanitary napkins).
‘The Department should also formulate a protocol in consultation with the Ministry of Health to monitor and identify infections in prisons along with measures to quarantine and provide medical treatment to those with symptoms along with the provision of the necessary personal protective equipment to those working in prison medical centres and hospitals,’ the CPRP noted.