• Attorney cum fmr. HRCSL Commissioner queries effectiveness of retributive justice in terms of deterrence and addressing root causes of crime
• Advocates for restorative justice that promotes healing and reconciliation

Combating crimes – in many countries – is a process that is confined largely to legal actions, punishments, and a justice system that is based on laws, where the social, legal, and economic systems appear to rely on this well-established system. This system has existed for a long time that penalising offenders, which is a direct and a short-term response to crimes, has become the most accepted way of dealing with the same. Whether this system’s approach is effective in the long run, i.e. whether the justice system functions as a deterrent to crimes and whether the overall response to crimes addresses the root causes of crimes, is a serious concern.

That is why it is crucial to discuss transitioning from a retributive justice model to a restorative justice approach, which, according to the South Asia Peace Action Network (SAPAN), will make it possible to move beyond the narrow focus on punishment and instead prioritise healing and reconciliation. This matter was discussed during a recent regional discussion on “Restorative Justice, Truth, and Reconciliation” which was organised by the SAPAN. To shed some light on the South Asian region’s situation in this regard, the discussion was joined by several activists from the region, including human rights advocate and former Human Rights Commission of Sri Lanka (HRCSL) Commissioner, attorney Ambika Satkunanathan, representing Sri Lanka.

Crime and punishment

Satkunanathan acknowledged the general acceptance of punishment within the criminal justice system as justice, and the tendency to not question the fundamentals of the criminal justice system despite the acknowledgement that there are gaps and shortcomings in it. 

“You never question the fundamentals of the system as to whether this is this actually working, is this what we need, or is this fit for the purpose,” she questioned, opining that through the years, the values of the criminal justice system have remained the same, although their real life practice has changed, or in other words, has become distorted while the system itself has become dysfunctional.

Noting that one of the questions that she began to ask during her studies surrounding Sri Lanka’s prisons system during her tenure at the HRCSL was that whether Sri Lanka’s criminal justice system actually functions in terms of deterring crimes, Satkunanathan added: “The short answer is no. One of the key reasons is because those in positions of power undermine the rule of law and politicise institutions that are supposed to dispense justice. These institutions, such as the Police and the Attorney General's (AG) Department, become instruments of discrimination and violence. All these institutions are part of the carceral state, which abuses mostly marginalised populations. Globally, these institutions, such as the Police, have also been shown to be corrupt. These abuses become normalised and these institutions became beyond the reach of the rule of the law. In Sri Lanka, we see continued arrests within the Police, of those who are involved in drug trafficking.”

With regard to the global situation, she pointed out as an example that in the United Kingdom in March 2023, there had been reports that 1,500 Police officers were accused of sexual assault within just six months. “In this context, it is therefore very easy to lock people up, throw away the key, and pat ourselves on the back for achieving justice. But, does this carceral State keep us safe? No, it does not, and we ignore the root causes of violence at our peril,” she stressed.

The cycle of poverty, violence, and imprisonment

According to Satkunanathan, in the broader discourse on restorative justice, particularly in relation to Sri Lanka’s internal conflicts, it is impossible to discuss that without discussing general violence and the criminal justice system in general. She highlighted the prison abolition movement, because, according to her, restorative justice and reconciliation are deeply connected to the said movement. 

Stating that the prison abolition movement does not say that all prisons must be closed down now but that it is necessary to work towards a world without prisons, and that the root causes of crimes play a key role in this discourse, Satkunanathan explained: “What does this entail? It entails looking at the root causes of crime and violence. For instance, in most countries including South Asian ones, persons in prisons are from poor and marginalised social groups. In Sri Lanka, for instance, around 60% of incarcerated persons are in prison because they were unable to pay fines as little as Rs. 3,000. Hence, poverty does impact and lead to incarceration. In fact, it creates a society to prison pipeline. Those who are imprisoned get caught in a cycle of poverty, violence and imprisonment, because the penal system, once they enter the criminal justice system and prison, makes their lives worse not better, and once they are released to the society too, makes their lives worse not better. 

It does it through stigmatising and ostracising such persons. The prison abolition movement integrates the root causes of violence and abuse, and demands that resources and energy be expended on addressing those root causes to prevent persons from coming into conflict with the law and being imprisoned.” However, at present, most prison abolition movement literature and discourses are from the global north and particularly the United States, and therefore deals mainly with these regions’ particular set of circumstances. They do not provide answers to many issues that South Asia is grappling with, such as mass violations such as war crimes and crimes against humanity or transnational crimes such as mass drug trafficking.

“If we take the long-term approach, we can say that we need to address root causes. But, in the short and medium term, how do we deal with these problems? In these conversations, one thing that we must keep in mind as we figure our way through this is that it is important to always place the victim front and centre, and pay heed to their demands, concerns and needs. What is it that they need to heal? Some even demand the death penalty in Sri Lanka. But, we argue against the death penalty because human rights law views it as a cruel and inhumane punishment, and there is a global movement against it. Also, the person who was spared from being sentenced to death will still be punished in some form.”

Establishing reconciliation in SL

The discussion paid attention to ongoing reconciliation efforts conducted by the Government, where Satkunanathan expressed concerns that successive Sri Lankan governments have failed to take concrete actions despite the existence of progressive recommendations: “The Sri Lankan Government is now proposing a truth and reconciliation commission (TRC). But, Sri Lanka's history is replete with many such commissions that have produced many reports, some of which were not even made public. These reports collectively contain thousands of recommendations as yet unimplemented. The victims view the latest attempt to establish a TRC as an exercise to tick the box and appease the United Nations Human Rights Council (UNHRC) so that the resolution on Sri Lanka is not renewed in 2024.” 

Instead of expending resources during a time of grave economic crisis in Sri Lanka and re-traumatizing the victims by making them testify before yet another commission, Satkunanathan said that the Sri Lankan Government should implement past recommendations. She added that by doing so, it will probably solve 50% of the problems, and will also show good faith and begin rebuilding the broken social contract and broken trust between the State and the citizens, and in particular, certain victim populations. 

“To move from retributive to restorative justice, it is critical that we integrate the fundamentals of the criminal justice system and look at how they have been distorted leading to grave injustices, and also use the concept of accountability rather than punishment, because at the end of the day, each one of us has to be held accountable for our actions,” she further remarked, opining that if the matters at hand were viewed through a lens of accountability, it will also provide more varied options to dispense justice.