Abstract
Within the framework of retributive justice, crime is understood as an offence against the State and defined as a violation of law. It represents the punitive approach of reaction to crime, where the offenders are considered as an unwanted group who should be punished. However, with the development of criminology, offenders are identified as the persons, needing rehabilitation and reintegration into the society as law-abiding citizens. This novel thinking leads to establishing the concept of restorative justice where crime is understood to be an infringement on man and human relationship. It involves reintegration of both offender and victim within the community. The restorative justice principle could be found in community service orders, probation, parole and other non-custodial measures as alternatives to the traditional incarceration, victim offender mediation, sentencing, peace-making and healing circles, police cautions, active participation of victim in the criminal justice process, etc. This paper evaluates Sri Lanka’s transformation from retributive justice to restorative justice by incorporating the above-mentioned means and methods to the criminal justice system. Further, it examines how these innovations have affected the crime rate in Sri Lanka.
Attorney-at-Law; Senior Lecturer Public and International Law Department, Faculty of Law University of Colombo; Course Director of Advanced Criminal Law and Criminal Justice, LLM Programme, Faculty of Law University of Colombo; Coordinator—Certificate Course in Criminology and Society, Development Resource Centre (DRC), Department of Economics, Faculty of Arts, University of Colombo; Visiting Lecturer, Department of Law, University of Jaffna; Member of the Prison Welfare Association Sri Lanka; Member of the National Research Committee, National Science Foundation, Sri Lanka; Member of Asia Crime Prevention Foundation, Sri Lanka; Life Member of South Asian Society of Criminology and Victimology, India; Member of Advisory Penal, International Journal of Contemporary Laws; Member of International Economic and Development Research Foundation India and Member of International Bar Association; Editor of US–China Law Review. Contact: jeevaniriella@yahoo.com
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Notes
- 1.
This Convention came into operation in 1957.
- 2.
There are three closed prisons in Sri Lanka, namely, Welikada, Bogambara and Mahara. Welikada Closed Prison is for the first offenders, who had been admitted to prison for the first time. Bogambara Closed Prison is for the reconvicted prisoners, those who had been admitted to the prison for the second time. Mahara Closed Prison is for the recidivists, who had been convicted and admitted to prison more than twice.
- 3.
There are Twenty Remand Prisons in Sri Lanka. Those prisons are situated in Cololmbo, Kandy, Tangalle, Jaffna, Anuradhapura, Batticaloa, Badulla, Galle, Matara, Negombo, New Magazine, Kegalle, Tricomalee, Kalutara, Boossa, Kurunegala, Polonnarwwa, Retnapura and Vavunia.
- 4.
Work camps are prisons without a perimeter wall where prisoners are sentenced with short term (less than 2 years) or medium term (2 years to 5 years) of imprisonment and the offenders are detained under minimum security conditions. The eight work camps are in Watareka, Meethirigala, Navodawa, Weeravila, Anuradhapura Kuruwita, Wariyapola and Kandewatta.
- 5.
There are two Open Prison Camps in Sri Lanka at Pallekelle and in Anuradhapura.
- 6.
Two Training Schools attached to our prison system for the youthful offenders and situated in Pallansena and Ambepussa.
- 7.
There are two Correctional Centres for Youthful Offenders in Pallansena and Taldena. Offenders between the ages of 16 and 22 are sent to these correctional/rehabilitation centres. Taldena correctional centre is an open camp and Pallansena Correctional centre has both a closed prison and an open camp.
- 8.
Sri Lanka has only one Work Release Centre.
- 9.
There are 28 Lock-ups in Sri Lanka in Ampara, Avissawella, Balangoda, Balapitiya, Chilaw, Elpitiya, Embilipitiya, Gampaha, Gampola, Hambantota, Hatton, Kalmunai, Kalutara, Kilinochchi, Kuliyapitiya, Kurunegala, Maho, Mannar, Matale, Mullaitivu, Nuwara Elliya, Panadura, Point Pedro, Puttalam and Vavuniya.
- 10.
The number of the direct admissions of both convicted and un-convicted prisons from year 2000 to 20007 is as follows: 2000—89,325, 2001—95,725, 2002—107,210, 2003—116,216, 2004—114,354, 2005—129,014, 2006—117,922, 2007—130,819, 2008—135,820, 2009—146,760, 2010—132,619. See Prison Statistics of Sri Lanka Published by the Statistics Division, Prison Headquarters Sri Lanka 2010 p. 24.
- 11.
Release on bail 294, on punishment 18,644, on payment of fines 9,326, on special occasions 2,978.
- 12.
Reconvicted and recidivism number together: 2000—8,160, 2001—10,300, 2002—11,303, 2003—12,833, 2004—12,925, 2005—16,408, 2006—13,618, 2007—16,430, 2008—16,401, 2009—18,596, 2010—12,597. These statistics were obtained from the Prison Statistics of Sri Lanka Published by the Statistics Division, Prison Headquarters Sri Lanka.
- 13.
Reconvicted and recidivism number together: 2000—8,160, 2001—10,300, 2002—11,303, 2003—12,833, 2004—12,925, 2005—16,408, 2006—13,618, 2007—16,430, 2008—16,401, 2009—18,596, 2010—12,597. These statistics were obtained from the Prison Statistics of Sri Lanka Published by the Statistics Division, Prison Headquarters Sri Lanka.
- 14.
Section 17(6) of the CPC Act, No. 15 of 1979.
- 15.
Section 364 of the Penal Code (Amendment) Ordinance, No. 22 of 1995, says that whoever commits rape shall, except in the cases provided for in subsection (2) (3), be punished with rigorous imprisonment for a term not exceeding twenty years and, with a fine, shall in addition be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for the injuries caused to such person. For more see section 364(2) (g) of Penal Code (Amendment) Ordinance, section 365, as amended by the Penal Code (Amendment) Ordinance, No. 22 of 1995.
- 16.
Inoka Gallage v Addaraarachchige Gulendra Kamal Alias Addaraarachchi 2002 1 SLR 307.
- 17.
Sections 364 (1) and (2), 365 A of the Penal Code (Amendment) Ordinance, No. 22 of 1995.
- 18.
Section 303 (A) (2)of the Penal Code (Amendment) Ordinance, No. 22 of 1995.
- 19.
Section 5 (1) of Community Based Corrections Act No. 46 of 1999.
- 20.
Section 5 (2) of Community Based Corrections Act No. 46 of 1999. The facts that the court should consider are the nature and the gravity of the offence, age of the offender, other relevant circumstances relating to the offence and the offender, pre-sentence report and facilities available for implementing such order.
- 21.
The court did not justify a conditional discharge where the offence was accompanied by the use of violence.
- 22.
Section 303 (1) of the CPC Act No. 15 of 1979 says that “A Court which imposes a sentence of imprisonment on an offender for a term not exceeding two years for an offence may order that the sentence shall not take effect unless, during a period specified in order, being not less than five years from the date of the order (hereinafter referred to as the ‘operational period’) such offender commits another offence punishable with imprisonment (hereinafter referred to as ‘subsequent offence’)”.
- 23.
According to section 2 of the CPC (Amendment) Act, No. 19 of 1999 “a mandatory sentence of imprisonment was changed to a mandatory minimum sentence of imprisonment”.
- 24.
Section 303 (2) (d) of the CPC (Amendment) Act, No. 47 of 1999.
- 25.
Section 303(2) (a) of the CPC (Amendment) Act, No. 47 of 1999.
- 26.
Section 303 (2) (c) of the CPC (Amendment) Act, No. 47 of 1999.
- 27.
Section 303 (2) (b) of the CPC (Amendment) Act, No. 47 of 1999.
- 28.
In some murder cases where an accused pleaded guilty to the offence culpable homicide not amounting to murder, the term of imprisonment was suspended by High Court: Kurunegala H.C.85/95; H.C 89/95; Negombo H.C. 675/87. In some rape cases where an accused pleaded guilty, two years rigorous imprisonment was suspended for five years by High Court: Kurunegala H.C. 99/95(rape); Kandy H.C. Jury 1226/92 (rape).
- 29.
Annual Prison Reports, Sri Lanka.
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Niriella, M.A.D.S.J.S. (2013). Thinking for New Horizon in Criminal Justice: Moving from Retributive to Restorative Justice in the Treatment of the Offender in Sri Lanka. In: Liu, J., Hebenton, B., Jou, S. (eds) Handbook of Asian Criminology. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-5218-8_18
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