HRCSL can no longer be considered legally independent - Ambika Satkunanathan

• Prison guard seen slapping inmate
• Death penalty should be abolished
• Rehabilitation process must be impactful

The Human Rights Commission of Sri Lanka (HRCSL) conducted the first national study on the treatment and conditions of prisoners from February 2018 to January 2020. The findings of the report are very relevant now in light of the prisoner unrest and violence that took place at the Anuradhapura Remand Prison in April 2020 and at the Mahara closed prison most recently, in the context of the spread of COVID-19 in prisons.   
To discuss the report and matters related to the Mahara Prison riot. The Daily Mirror spoke to former member of the Sri Lanka Human Rights Commission (HRCSL) Ambika Satkunanathan.  

"If institutions are not independent, both in law and in practice, then naturally questions and doubts will be raised about their investigations"

  Q   So before we go into this report on the top, as a former member of the Sri Lanka Human Rights Commission, briefly tell us about the role of the commission so we have a clear picture of what was expected from the commission. 

21 December 2020 

According to the Act, by which the commission is established it is supposed to inquire into violations or imminent violations of fundamental rights, which are enshrined in our Constitution. If a member of the public thinks that his/her right is going to be violated, they can go to the commission and lodge a complaint. The commission will inquire into it and issue recommendations as to whether a violation has taken place. It cannot however issue orders. The commission also is mandated to visit places of detention, prisons, police stations, without giving prior notice. These are surprise visits. It also has the power to summon people to appear before the commission and to summon documentation. It can also give advice to the government on legislative and policy changes that we need to make to ensure that our laws and policies are in line with international human rights standards. Many of these standards are enshrined in conventions that we’ve signed and agreed to abide by, so these agreements were not forced upon us. We willingly accepted them. The Commission is also supposed to engage in public awareness and education on human rights.  

  Q   So the Mahara Prison riot has caused so many questions and raised so many concerns. But considering the fact that we still don’t have a clearer picture of what really went on during the Welikada prison riot in 2012, do you think the true story behind the Mahara prison riot will actually emerge? 

Our track record, not just in relation to prison rights, but in relation to many human rights violations, is that we either have not inquired into violations or if we have inquired into them the reports have not been impartial and objective or the reports have not been released or if the reports have been released no action has been taken to hold those responsible accountable for the violations. However, the interim report of the committee appointed by the Ministry of Justice to inquire into the Mahara incident is objective, impartial and takes into account the systemic problems that caused the violence, which is a positive development. That said, the violence was entirely avoidable and would not have taken place if the government had taken action at least after the incident at Anuradhapura prison in April 2020.  

"Right now, we are not adhering to one of the core Paris Principles, which is the independence of appointments"

  Q   There have been calls for an independent investigation into this incident. Can any investigation conducted by a local group or organization be seen as independent in your opinion? 

That depends. For instance, the Human Rights Commission became an independent commission with the 19th Amendment. But of course, with the 20th Amendment, legally it is no longer an independent institution because one of the key factors that determine independence is the process of appointment. 
Globally we have what are called the Paris Principles and any human rights institution that is established in any country has to abide by the Paris Principles. There is a Global Alliance on National Human Rights Institutions (GANHRI) which reviews human rights commissions all over the world, not just Sri Lanka, based on these Paris Principles and gives them grading. If a Commission fulfills all elements, it will be awarded ‘A’, if not ‘B’. Sri Lanka was downgraded from A to B first in 2007 and then again the downgrading was confirmed in 2009 because it was no longer deemed independent, since the appointment process after the 18th Amendment rested with the President. There were also allegations that it had not inquired into complaints of custodial violence, enforced disappearances and that it did not engage actively with civil society. So based on those factors, it was downgraded. After we were appointed, we re-applied for accreditation and in 2018 May were awarded ‘A’ status again. Right now, we are not adhering to one of the core Paris Principles, which is independence of appointments. If institutions are not independent, both in law and in practice, then naturally questions and doubts will be raised about their investigations. 

"The interim report of the committee appointed by the Ministry of Justice to inquire into the Mahara incident is objective, impartial and takes into account the systemic problems that caused the violence, which is a positive development. That said, the violence was entirely avoidable and would not have taken place if the government had taken action at least after the incident at Anuradhapura prison in April 2020"

  Q   Was the commission ever under pressure between 2015 and 2019? 

No. When I was there, I can truthfully say that at no point did any authority, whether it was the President or the Prime Minister, Foreign Minister or anyone tried to tell us what to do or attempted to insert pressure on us to do something or not to do something. That never happened. 
Of course, in the public sphere, there were various attacks. But I think that is something that comes with the territory when you do human rights work. It is something you have to expect, especially as a national institution. And perhaps that means that you are doing your job well.

"During the former regime, no one tried to tell us what to do or attempted to insert pressure on us to do something or not to do something. That never happened"

  Q   So let’s go into this report on the conditions of the prisons in Sri Lanka. It gives a very sad and maybe even shocking image of what happens in our prisons. And if I may quote one part of the report, it says: “At night prisoners are locked in their cells and do not have access to the toilet, which is outside the cell. As a result, prisoners have to use plastic bags or buckets to relieve themselves and multiple prisoners in a single cell have to use the same bucket/bag”. Overcrowding of our prison system has been an issue and yet, no concrete action has been taken. How do you see this?   

 Yes. When people are shocked or they blame one particular government, I would say that is very unfair, and it is something that is based on lack of awareness about the problems with the structure. So even now, to blame this government, I would say, is really not fair to do that, because this is a problem that has existed for decades and no regime has taken it seriously and tried to find solutions. The solution to overcrowding doesn’t rest with the prison. It rests with factors outside the prison, which is mainly the criminal justice system, and how we, Sri Lankans view crime and punishment. A few years ago, the Ministry of Justice established a task force, which if I recall was headed by Justice Yasantha Kodagoda, when he was at the AG’s Department. What they found was also reflected in our study, is that although according to law, granting bail is the rule, in Sri Lanka, it has turned out that bail has become the exception. That is one reason you have many remand prisoners.  
We have in Sri Lanka a law that allows a person to be sentenced to community corrections, rather than be sent to prison. You find that even in the criminal justice system, many are not aware of this law. Also due to various administrative reasons, they don’t wish to use this law because, for instance, if you use this law and send a person for community corrections, you need keep the file open for a long time. We have a Department of Community Corrections, but it is severely underfunded and doesn’t have enough human resources.  

"To be pardoned, a person doesn’t have to be commuted to life or 20 yrs. Any prisoner can be pardoned by the President at any time. Therefore, the process of commutation has no connection to pardoning someone on death row"

  Q   We hear this government is saying that they are going to release some 8000 prisoners and also looking at reducing the times by those on death row to 20 years. In your opinion, is that the way to go? 

I have seen all sorts of differing opinions on this. In my opinion this is a commendable move and I wholeheartedly support it. I will tell you why. Firstly, people should not be on death row. The death penalty should be abolished. You find that many people on death row are in prison for the very first time; for instance 67% of the male population in the prisons, are there for the very first time. Of this, there are many who are on death row. Many of them are in prison for murder, by the way, not for drugs. 
Now, what the Minister has suggested is the process of commutation, whereby you commute a death sentence to a life sentence or 20 years. I saw a report that the government is going to start evaluations once again, which is a fantastic idea, because it will allow prisoners to be released based on their progress. What they need to do is, to resume a process of permanent evaluation that would result in releases based on progress in rehabilitation. However, in order for that to work, the rehabilitation process must be impactful. For that we need more staff, particularly rehabilitation officers and persons with particular expertise, like mental health. 

"We have in Sri Lanka a law that allows a person to be sentenced to community corrections, rather than be sent to prison. You find that even in the criminal justice system, many are not aware of this law"

  Q   But there is a fear that the system might be misused to release certain people on death row…

Firstly, any process can be misused and to stop the misuse, we must not advocate stopping the process. If we can’t stop misusing, we must fix that first. Regardless of what others say, I am not going to say let’s keep 1225 people on death row because we don’t want one man to get out. Secondly, in order to be pardoned, a person doesn’t have to be commuted to life or 20 yrs. Any prisoner can be pardoned by the President at any time. Therefore, the process of commutation has no connection to pardoning someone on death row.  

"If a member of the public thinks that his/her right is going to be violated, they can go to the commission and lodge a complaint. The commission will inquire into it and issue recommendations as to whether a violation has taken place"

  Q   When you compare our prison system to the system in the region or around the world, are there something we can learn from other countries that we need to probably follow as well?

I haven’t visited prisons in other countries, but I have read a lot about them. I’ve also engaged and discussed this with my colleagues who work in other countries on the same issues. What I see are common patterns in many places, particularly, for instance, where death row prisoners are concerned. The patterns are very similar, even in the US, who is on death row? It’s often Afro-Americans, people who are from impoverished backgrounds. There is also a disparity, i.e. discrimination, in how sentences are given. For the same crime, you would find, two different people, depending on their socio-economic backgrounds, would have been given two different penalties, one severe and one lenient. 
In other countries too, conditions are terrible. For instance, in the US, violence and this is well documented, violence in prisons, particularly sexual violence, is quite bad. Violence in general is normalized in prisons. I can give you examples. There was an instance when a guard slapped a prisoner in the view of our researchers, not knowing they were present. Then he turned around, saw our researchers and started running. Our researchers started running behind him because they wanted to see his face and number. People can’t say violence doesn’t take place because I’ve seen it with my own eyes and have personally even located persons who were hidden from us because they had been assaulted prior to our visit and still had the physical evidence of assault.  

"Human Rights Commission became an independent commission with the 19th Amendment. But with the 20th Amendment, legally it is no longer an independent institution because one of the key factors that determine independence is the process of appointment"

  Q   UN organizations and human rights groups have been saying that apart from violence, even torture takes place in our prisons. Have you heard of this? 

Not just the UN and human rights organizations, but also the Supreme Court of Sri Lanka has said that such violence could constitute torture and the Commission when inquiring such complaints, would look at it as an alleged violation of the fundamental right enshrined in our Constitution that protects you against torture.  
(Disclaimer: This text version of an audio interview was changed to reflect changes that took place since the day the interview was conducted)