Justice NEEDS BE ‘JUST’

Jeevan THIAGARAJAH

The National Human Rights Action Plan offers much in terms of improvements to individual and group rights in the country. A vital element in ensuring the success of delivering the benefits lie in the manner in which our system of Justice delivers services.

This writer is privy to the countless ways in which Justice can not only be delayed, but also denied and Judges held captive by unscrupulous practitioners and their erstwhile contractors. An add on is the manner which elements of the Police Department is used by some citizens as if it were their private domestic service.

For the benefit of readers, the sections below are extracted and edited from a paper which supported the research and development component of a Justice Audit tool at technical working meeting of a high level multi-disciplinary group of professionals and donor agency observers convened at Wilton Park (England) chaired by Justice Kriegler from South Africa who heads the Justice Audit Project of the Governance and Justice Group.

Laws

What laws (mainly criminal but with reference to civil laws too, regulate the lives of ordinary people?

Of particular interest is:

How the constitution defines fundamental rights, and the mechanisms in place to protect them? How is gender equality dealt with? Whether the rights defined are consistent with international standards, especially any reservations entered.

Are the criminal laws and procedures broadly in line with international standards (ie in providing for a fair trial)? Are sentences proportionate? Is the death penalty applied (for what offences and what guarantees are in place)?

How are young persons in conflict with the law treated: what is the age of criminal responsibility; what special procedures apply to juveniles, what sentencing options are provided for?

How informal mechanisms (ADR) or non-state ‘courts’ are recognized in law; or exist in practice; and how they relate if at all to the formal justice system (ie is there an appeal to the formal justice system; is there a mechanism for the formal system to refer/divert cases to these informal or non-state mechanisms – see IV below.

What laws are pending – and for how long? What is the cause of delay? Are laws under active review – have any been decriminalized in recent times? Is there a body/institution to inform the development of criminal justice policy?

III. State Justice Institutions

The aim is to gather data in each institution on the caseload (volume, throughput and characteristics) as well as data on resources to administer the justice system.

The institutions included are:

* police

* the courts (all courts, including religious and military)

* prosecution

* legal service providers

* places of detention

* probation

III.I Police - data

a) Infrastructure: number of police stations (regional, district and police posts) and location; state of repair; plans for new police stations. Any special arrangements/personnel for female complainants or young persons in conflict with the law? If so, how many and where?

b) Crime rates, types of offences (nationally and for each region), global trends in reported crime (2000-2005-2011)

c) Number of incidents reported, investigated and leading to charge (workload per station)

d) Human resources: total numbers (according to rank-by-gender, ethnic and religious status); qualifications, selection, training and promotion; salaries and terms and conditions of service; equipment (fleets and communications); databases: criminal case records, fingerprints, vehicle registration; transfer rotations.

e) State budgetary allocation to the police

f) Caseload for 2011 showing:

See table 1

g) Recidivism: are rates of recidivism captured?

h) Public perception of police; public perceptions of security and fear of crime; complaints systems: no of police suspended/dismissed in past 5 years.

i) Police perception of some categories of offence (ie GBV)

j) Private policing role? Proportion of private security guards to police?

- process

k) Case management: discretionary powers of police: caution, bail, diversion, referral; special measures for dealing with: victims of crime, young offenders, women victims of violence, and other vulnerable groups; time management and quality control of junior staff.

l) Crime prevention: community policing initiatives; diversionary mechanisms in place (number of cases diverted); victimization surveys

m) Access to legal advice/assistance: representation/advice at police – is ‘confession-based’ evidence a feature of criminal cases? Access to doctor or family members? The services of an interpreter?

n) Average time a case takes to investigate: i) minor matters, ii) serious matters) - from arrest to court (law and practice), from arrest to charge, from arrest to trial, from arrest to disposal)

o) Average time spent in police custody and custody time limits in law (including Emergency and Security laws).

Sources: Police HQ annual crime figures, case management reports (annual report), national strategy plan

III.II Courts – data

a) Infrastructure: numbers of courts and location; state of repair; plans for new courts

b) Human resources: number of judges and support staff at each court level (from the apex court down), as well as ethnic and religious make-up, salaries and terms and conditions (including allowances and general ‘package’); qualifications, selection, training, mechanisms for oversight/discipline and promotion.

c) State budgetary allocation to the courts and judiciary: amount for a) the judiciary b) operation of the courts c) development and training

d) Caseload for 2011/2012 showing for civil and criminal cases:

See table 2

Note: This should be undertaken for each level of court (apex court, appeal, high court etc) and each geographical area/ court region throughout the country.

e) Trends in caseload over past 10 years (2000 – 2005 – 2011).

f) In civil matters: what are the most common causes of dispute? Some percentages would be useful here (or figures), for instance: land, family, inheritance.

g) Is court annexed mediation applied? Figures

h) In criminal cases: what are the top three types of criminal offence with which the courts are principally concerned?

i) What law reports exist? What do they cover? How accessible are they?

- process

j) Hierarchy of courts and jurisdiction; special courts: ie mobile courts, juveniles, domestic violence, drugs etc: list and jurisdiction

k) Time-frame: what is the time frame in law for completion of summary matters and more serious matters? And in practice?

l) Average number of adjournments per case

m) In criminal cases: what percent of cases (all kinds) end in conviction?

n) Are court orders for release of suspects followed by law enforcement officers

o) What oversight measures to ensure application of sentences? How effective are they?

p) Sentencing policy; alternatives to custody

q) Is there a co-ordination mechanism for the justice actors to meet? At which levels?

Sources: Court annual reports, Min of Justice reports, strategic plans for courts, policy documents, public perception surveys; NGO reports on the criminal justice system; academic research papers on the workings of the criminal justice system; local and international press articles.

III.III Prosecution - data

a) Human resources: total number of prosecutors; organizational structure (including special units – ie corruption, serious fraud etc); established/actual positions at each court; qualifications, selection, training and promotion; salaries and terms and conditions of service; supporting services (including forensic laboratory technicians, chemists and psychologists).

b) Code of ethics / internal code of conduct

c) Strategic planning/policy; state budgetary allocation to prosecution of offences.

d) Case load: by court / prosecutor

See table 3

e) Trends in case load over past 10 years (2000-2005-2010)

f) Most commonly prosecuted type of offences

g)Disaggregation of accused persons by gender, ethnicity, educational status.

- process

h) Case management: discretionary powers (ie to stop or divert a case); first case/docket review; advice to police on evidence; pre-trial hearings; plea bargain; average no of adjournments per case pre and during trial; case monitoring / tracking system.

i) Time management: average time from arrest to charge; from charge to start of trial; from start of trial to end of trial; from conviction to end of appeal hearing.

Sources: Prosecution annual reports, Min of Justice, Registrar, courts

III.IV Legal service providers

Lawyers

a) numbers of registered members of the Bar, no. in practice, distribution of lawyers (per region); percentage of women lawyers.

b) qualifications for entry to the Bar; expected monthly income for young lawyers (capital/regionally based)

c) Pro bono services offered – estimated outreach (percent of population)

d) ADR services offered – nos. of matters mediated, at what stage of proceedings

e) Number of defendants represented by privately retained counsel for a fee

f) Range of costs to retain counsel lower end starts at…

g) Average no of adjournments per case pre-and during trial

h) Number of defendants not represented by counsel

i) Code of ethics/conduct regulating members of the legal profession; no of complaints made in 2011; number of lawyers disbarred in last five years.

Non-lawyers

j) number of law schools and total young lawyers graduating each year; percent that enter practice; student practice rules in place (ie can law students practice under supervision in the courts / offer advice)?

k) Do ‘paralegals’ exist, are they recognized in law? Who, where, what, how many and under whose supervision/organization. What training do they receive? How are they “validated”?

State legal services

l) numbers of lawyers employed to provide legal services: senior lawyers ratio to junior lawyers; ratio of state lawyers in rural:urban areas; qualifications; payment rates and system

m) Process: first access to legal aid (at police, at court on first appearance, in prison); what means/merits test is applied; when will a legal aid provider first meet his/her client? Does legal aid extend to the victim of crime? Does legal aid include ADR? Does legal aid extend to all crimes? Does legal aid extend to appeal (preparation and presentation)?

n) Average number of adjournments per case pre-and during trial

o) Average length of trial from first appearance in court to verdict

p) Annual budget for the provision of legal services

q) Legal services caseload:

See table 4

r) How are legal aid services monitored in terms of quality of service? Is there a complaints system in place?

Non-state legal services

s) numbers of NGOs /faith based groups/others providing legal services (who, what and where); funding sources.

t) Caseload: where the data is available identify the sort of caseload civil society actors are managing and cost-benefit of these services; alternatively, what are the most common issues on which people seek advice/assistance?

u) Process: access to legal advice and assistance in a) police b) prisons c) legal representation at court on first appearance; are ADR services offered – nos. of matters diverted/mediated.

v) Are there any partnership agreements in place between state and non-state legal service providers?

w) Are there any regulations limiting the scope of legal services provided by non-state actors?

Source: Legal Aid annual reports and statistics, Bar Council reports, Code of Conduct, NGO register and reports of main legal service providers.

III.V Places of detention – data

a) Infrastructure: number of places of detention (total - and disaggregated: adult and young offender, security levels (max, medium, minimum/open etc), women, special places (ie immigration, borstals, mental hospitals) and location (ie central, regional, district).

b) Indicators of institutional conditions of confinement: Health and mortality rates, state of infrastructure (age of prisons); how many new facilities built in the past 10 years; how many planned in next 10 years.

c) Human resources: total numbers prison staff (according to gender-by-rank, ethnic and religious status; including civilian specialist staff such as doctors/nurses etc and teachers/trainers); qualifications, selection, training and promotion; salaries and terms and conditions of service (including state of staff accommodation); equipment (mobile prisons, communications – eg do all prisons have access to electricity?)

d) State budgetary allocation to the prison service. Estimated cost of maintaining a prisoner per day.

e) Prisoners: total number, total capacity, total sentenced, total unsentenced, total women, total under 18. Trends in rise or fall of prison population: 1990, 2000, 2010.

f) Disaggregated: ratio of serious offenders to minor offenders (ie those serving over three years); proportion of drugs related offenders (what percent of these are: possession, street sale, cultivators/suppliers/importers); most common type of offence; proportion of remand prisoners on bailable offences;

g) Total throughput of prisoners per year.

- process

h) prisoners’ access to legal advice/representation;

i) time spent on remand: no. waiting trial >10 years, >5 years, >1 year;

j) time spent during trial process;

k) judicial access to places of detention; how often do judiciary visit, and at what level? What other oversight mechanisms are in place and are they acted upon?

l) sentenced prisoners: no. serving >15 years; >10 years; > 5 years; >3 years.

m) reintegration: available options/sentencing plans, other programmes (vocational training) - percent of prisoners who benefit; recidivism rate.

Sources: Prisons HQ and line ministry responsible for young persons – human resources dept – returns from prisons (regional/individual), national strategy plan.

III.VI Probation

a) Human resources: total number of probation officers/social workers (established/actual); structure; location (regional/district); availability at court; dedicated to juvenile cases; numbers in child courts; qualifications, selection, training and promotion; salaries and terms and conditions of service;

b) State budgetary allocation to probation service.

c) Case load:

See table 5

d)Most common type of offence

e) Average length of a probation order

f) Aftercare services? What proportion of released prisoners benefit (if any)?

Source: Probation Services, annual reports.

The writer though has no illusions about the actual willingness to undertake much of the above as one which would genuinely instill public confidence and maintain a sense of pride in a system of Justice about in which everyone involved could be proud. Nevertheless the struggle for Justice has and will always be daunting but can never be silenced. The recent debates where much has been written about laws, Courts and Judges provides an opportunity to widen the debate on fundamentals of Justice in Sri Lanka and its access to each and every citizen.