ALTERNATIVE SENTECING IN SRI LANKA AND ITS CHALLENGES
FROM A REHABILITATIVE PERSPECTIVE
Nayomi Wickramasekera*

I. INTRODUCTION
The Sri Lankan response to crime over the past half century has been highly punitive, with a growth in
the number and scope of criminal laws as well as in the incarcerated population. The incarceration population
has continued to rise1 and all the while, crime continues to affect many Sri Lankan’s each year. Fine is thecommon punishment for petty offences, but most offenders are unable to pay the fine imposed and therefore
are unable to benefit from this alternative punishment. The rate of offenders imprisoned for default of
payment of fines is 70 per cent in 2019 from the total number of offenders admitted to the prisons that year.2
This percentage has been rising from year 2015 according to statistics. The reconviction rate of the drug
offenders in Sri Lanka is 33.3 per cent in year 2019.3 In this category the number of the direct admission ofreconvicted prisoners and recidivists is higher than first offenders. In 2018 and 2019 reconvicted prisoners
constitute approximately 26.7 per cent4 of the total prison population.5 Therefore, the philosophy of the penal
system of Sri Lanka needs to evolve into one with a correctional and rehabilitative focus, rather than apunitive purpose, and rehabilitation of offenders and their successful social reintegration into society should
be among the basic objectives of the criminal justice system. Dissatisfaction with solutions currently available
within the Sri Lankan Justice system has created an opening for a shift in response after a decades-long focus
on punitive sentences and incarceration. The importance of this issue has become even more importantamidst the Covid-19 outbreak and the overcrowding of the prisons.  Agitation due to this vulnerability at theAnuradhapura prison resulted in two deaths in March 2020 amidst the Covid-19 outbreak. This article
provides a directory of restorative justice statutes and practices to describe key features of restorative
justice legislation and polices in sentencing in Sri Lanka and the challenges faced by the criminal justicesystem in implementing and improving these statutes and polices.

II. THE EXISTING STATUTES RELATING TO RESTORATIVE JUSTICE
Sri Lanka, formerly under British colonial rule referred to as Ceylon, is a multi-ethnic and multi-lingual
island. It was colonized by three different foreign rulers over a period of four hundred (400) years. Sri Lanka
has remained a constitutional democracy since independence from British colonial rule in 1948. Prior to thearrival of the European powers in 1505, the country had varied laws, mostly catering to the different ethnic
communities. Before that in ancient Sri Lanka the hierarchy of courts and the source of all justice was theKing. The mode of punishment was retributive in nature.
The criminal law and procedure in Sri Lanka are governed by the Penal Code and the Code of Criminal
Procedure.6 The Penal Code, which was enacted in the year 1883, came into operation in the year 1885, andis still in operation to date. Some significant Amendments such as Penal Code [Amendment] Act No 22 of1995 and the Penal Code [Amendment] Act No 29 of 1998 were introduced for specific categories of* LLB, LLM, Attorney-at-Law, Former Prosecutor in Sri Lanka and Fiji Islands, High Court Judge of Sri Lanka.
1
Vol 39, Year 2020, Prison Statistics of Sri Lanka 2020, Statistics Division Prison [Headquarters], Sri Lanka.
2
Ibid, page 78.
3
Ibid, page 93.
4
Ibid, page 35.
5Ibid, page 45.
6Code of Criminal Procedure Act No. 15 of 1979.

87

RESOURCE MATERIAL SERIES No. 114
punishments. Section 52 of the Penal Code lists out the death penalty, simple imprisonment, rigorous
imprisonment, whipping,7 fines and forfeiture of property as criminal punishments. The punishments of thePenal Code are complemented by Section 303 of the Code of Criminal Procedure Act 1979. According to thisprovision, judges can substitute a sentence of imprisonment with a suspended sentence. There were several
amendments to the Code of Criminal Procedure Act No 15 of 1979 and some significant amendments
relevant to this article can be found in the Code of Criminal Procedure [Amendment] Act No 17 of 1997 and
the Code of Criminal Procedure [Amendment] Act No 47 of 1999. Furthermore, the Community Based
Correction Act No 46 of 1999 also facilitates the imposition of community-based correction orders in place ofimprisonment where the prescribed punishment does not include mandatory imprisonment or imprisonment
exceeding two-years. The Probation Ordinance 42 of 1944, Section 3, also gives courts the option of ordering
a release on probation taking into account the offence, age, gender and condition of the offender.

III. SENTENCING AND ALTERNATIVE PUNISHMENTS
Restorative justice is not an alternative paradigm that can replace the process of criminal justice. In Sri
Lanka when sentencing an offender in certain offences restorative justice is referenced in statute, but withfew mandates and little structure to support systematic use.  The Police Department, the Attorney General’s
Department [prosecution] and the Prisons Department [corrections] should work with the Judges to prevent
revictimization as well as recidivism in crimes, and this should begin at least at the sentencing stage of an
offender.  In Sri Lanka, imprisonment is the commonest mode of punishment other than imposition of fines.
According to statistics,8 95 per cent of the convicted prisoners are sentenced with an imprisonment periodof less than two years. Many of them who have committed minor offences and default of payment of a fineare sentenced with short-term imprisonment. A parole system is not available to them. The alternative
sentencing methods and community-based correction that is in existence should be utilized in a successfulmanner.
A. Need for a Uniform Sentencing Policy
Judicial attributes should be inclined more towards a rehabilitative approach as well as a deterrent
approach. Therefore, the judges should address their mind to a rehabilitative approach when sentencing,which should be considered as a foremost important matter. To achieve this end, a sentencing policy focusing
on rehabilitation is required to be formulated to avoid individual justice in Sri Lanka. Absence of a mechanism
to monitor sentencing trends and the need to set sentencing guidelines is paramount in this process. Sri
Lanka does not have a sentencing policy or sentencing guidelines. A national policy on sentencing would
provide guidance to judges in imposing sentences to ensure that they weigh aggravating and mitigating
factors affecting the sentence in a uniform manner. Nevertheless, it is important for this process to beundertaken in a manner that does not undermine the independence of the judiciary but enhances its
competence. Establishing a Sentencing Council to monitor sentencing trends and enact a statutory mechanism
and criteria for commuting sentences can be suggested as legislative reform. Introducing a National Policy
on Sentencing through collaboration of the Judiciary, Ministry of Justice and Attorney Generals’ Department
to provide sentencing guidelines can be suggested as a policy reform.
B. Suspended Sentence as a Non-custodial Measure
The judicial authority, having at its disposal a range of non-custodial measures, should take into
consideration in making its decision by considering the rehabilitative needs of the offender, the protection ofsociety and the interests of the victim. One such non-custodial method used in Sri Lanka is suspended
sentence. Section 303 of the Code of Criminal Procedure [Amendment] Act No 47 of 1999 lays down theexisting provision for suspended sentences. Suspended sentence cannot be imposed to an offender where thelaw provides a mandatory minimum sentence for the offence he has committed, or where the offender isserving a term of imprisonment or is yet to serve the term of imprisonment which has not been suspended,or where the offender committed the offence while he/she was on a probation order, conditional release ordischarge, or where the term of imprisonment or the aggregate terms of imprisonment exceeds two years.
The offender is convicted and the sentence is suspended for a period not less than 5 years from the date of7
8

Whipping was removed as a punishment under Section 3 of the Corporeal Punishment (Repeal) Act, No. 23 of 2005.
Year 2021, Prison Statistics of Sri Lanka 2021, Statistics Division Prison [Headquarters], Sri Lanka.

88PARTICIPANTS’ PAPERS
the order and Courts may suspend the sentence wholly or partly. But very rarely the sentence is partly
suspended in Sri Lanka. The offender is fingerprinted and therefore when Court calls for a fingerprint reportof a person, it is reflected as a previous conviction.
In Court of Appeal Case Kumara v. Attorney General [2003] 1 Sri L R 139 Justice Edirisuriya held that:
A suspended sentence is a means of re-educating and rehabilitating the offender, rather than alienating or
isolating the offender. No offender should be confined to a prison unless there is no alternative available forthe protection of the community and to reform the individual. Imprisonment has an isolating and alienating
effect on the family of the imprisoned offender because of the hardships they are faced with during theimprisonment of one of the family members. This authority has taken precedence and shows the judicial
attitude towards rehabilitation of offenders in Sri Lanka. The Sri Lankan Supreme Court in S.C. Reference
03/2008 held, “mandatory minimum sentences” in certain offences were inconsistent with the Constitution.9
One of the reasons attributed to the decisions of the Supreme Court was the imposition of mandatory
minimum sentences would result in legislative determination of punishment and a corresponding erosion of
a judicial discretion and a general determination in advance of the appropriate punishment without aconsideration of relevant factors which proper sentencing policy should not ignore; such as the offender andhis age, and antecedents, the offence and its circumstances (extenuating or otherwise), the need for deterrence
and the likelihood of reform and rehabilitation.10 These decisions paved way for judges to use their discretionand suspend a sentence even for an offence which carries a mandatory minimum sentence under a statue.
This non-custodial measure provided by the legislature has no provisions of monitoring and supervising
the offender. Although suspending a sentence avoids institutionalizing an offender, there is no provisions forsupervision and to provide assistance psychologically and socially to be reintegrated into society in a way
which minimizes the likelihood if returning to crime.
C. Community-based Corrections
Community-Based Correction Act No 46 of 1999 [hereinafter referred to as CBC Act] lays down legal
provisions, alternative to imprisonment. A magistrate can issue an unpaid community service order for an
offender instead of a fine or instead of imprisonment which is less than 2 years, taking into account thenature of the offence and the character of the offender. If used well, this legislation could substantively
address core issues affecting the prison system, such as overcrowding and rehabilitation. Community work
corrections, special rehabilitation [programme] for drug offenders and work under trained supervisors are
the ways in which this system works, and since these programmes are not residential offenders may
participate in the activities while staying in the community.
Even though the CBC Act does not provide for regular monitoring of the offenders, the correctional
officers recruited by the department of CBC, tasked with undertaking monthly visits to persons who havebeen ordered to have their progress checked by CBC. Following each visit, they prepare a report, which isthen forwarded every month to the senior correctional officer of the area where the offender resides, whothen forwards it to the commissioner of the department of CBC. The monitoring of persons on CBC, however,is not undertaken as regularly or effectively as required due to severe shortage of staff. The implementationand monitoring of CBC require employing a variety of nuanced approaches. This requires the CBC officers
to be trained in best practices, which requires considerable allocation of resources. Lack of financial resources
and human resources to provide adequate vocational training programmes to offenders and monitor offenders
is a huge setback in implementing the provisions of the said act.
Section 14 of the CBC Act does not provide the offender with an alternative non-custodial measure;instead, the offender is made to pay a fine and is imprisoned for the breach of the non-custodial measure. The
offender’s consent is required to issue a community-based correction order. Due to what appears to be theinherent bias of the different actors in the criminal justice system and lack of awareness about this law,offenders are not given CBC; hence offenders are ordered to pay a fine. This alternative punishment issanctioned as an alternative to paying a fine. It invariably means for those who cannot pay it and a perfectsolution for the offenders who are from very underprivileged backgrounds. The prison statistics illustratethat the majority (95%) of convicted prisoners were sent to prison for sentences of less than two years, while
9
10

Articles 4(c), 11 and 12(1) of the Sri Lankan Constitution.
SC Appeal No 17/2013 [decided on 12.3.2015].

89

RESOURCE MATERIAL SERIES No. 114
70 per cent of convicted prisoners in 201911 were in prison for non-payment of fines,12 which highlights thisexisting non-custodial option is not widely utilized in Sri Lanka. In 2017 the Judicial Service Commission, at
the request of the Department of CBC, issued a circular to all Magistrate Courts, instructing magistrates toensure the implementation of the CBC Act.13 Offenders incarcerated for non-payment of fines even with
provisions like Section 291(4) of the Code of Criminal Procedure, which grants courts the discretion to allow
an offender to pay the fine in instalments over a period of time, is alarming and an indication of implementationof these provisions are scarce.
The CBC orders should be realistic, precise and achievable.  One set back is that there are no guidelines
and criteria to assist Magistrates in devising Community Based Correction orders to ensure conditions
stipulated for non-custodial measures that are not so stringent for offenders that they fail and result inincarceration. It is important to increase awareness on Community Based Corrections Act and its importantrole in rehabilitation and restoration in order to reach communities and legal fraternity which will enableoffenders to fully understand how Community Based Corrections Act is different from imprisonment.
D. Conditional Discharge
This is one of the non-custodial measures implemented and under section 306 of the Code of Criminal
Procedure where the Court can "discharge conditionally" an offender on executing a bond, to be of good
behaviour, after taking into consideration the character, age, health, or mental condition of the person
charged, or the extenuating circumstances under which the offence was committed in lieu of convicting theoffender. This provision can be used to discharge an offender after an admonition as the Court shall seem fit
without entering a conviction and is even available for indicatable offences. In addition to a conditional
discharge, Court can order the offender to pay compensation to the affected person under section 17[4] of theCode of Criminal Procedure and order state cost. This provision however is seldom used.
E. Probation
Probation, as a non-custodial measure is provided in the Probation of Offenders Ordinance14 No 42 of 1944,
which was last amended in 1948. The Department of Probation and Child Care Services, which is within thepurview of the Ministry of Women and Child Affairs, is assigned the responsibility of overseeing the probation
system. Unlike the CBC Act, the POO does not provide a threshold to decide to whom probation should beawarded, and it is decided on a case-by-case basis. Any convicted person can be released on "probation" inan appropriate case for a period of not less than one year and not more than three years. A court can issue
a probation order after taking into account circumstances of the case, the nature of the offence, gender andcondition of the offender and if it appears that probation is more suitable in lieu of sentencing. The POO
makes provisions for when the probation order may be modified or cancelled and also stipulates theconsequences of non-compliance with the probation order. The POO provides the offender another means
through which to continue his/her probation in the event of non-compliance, instead of automatic imprisonment.
This ordinance has provisions to engage the community by recruiting volunteer probation officers by the
Minister. The Probation Department in Sri Lanka does not handle the probation of adult offenders and is onlyused for juveniles, which is a setback. Establishing a separate national entity to implement probation for
adult offenders and monitor their adherence to the conditions of their probation and communicating to
judicial officers and legal practitioners, the possible use of the Probation of Offenders Ordinance as analternative to imprisonment is very important.
F. Mediation
Mediation Boards Act No 72 of 1998 provides people an opportunity to follow a less cost-effective
mechanism to settle their minor disputes with the agreement of the parties to the dispute. Mediation Boards
are empowered to resolve disputes. Within the Sri Lankan system there are both mandatory and voluntary
mediation. Certain criminal offences are legally required to go to mediation prior to initiating proceedings incourt. The panel of mediators, usually three, all respected figures from the village, are moral authorities. The
mediator encourages the parties toward negotiation, improving communication and helping them to consider
11
For the purpose of this study 2020 statistics are not considered. This is due to the fact that the Courts in Sri Lanka was
not properly functioning due to the pandemic.
12
Pages 47, 78 of Vol 39, Year 2020, Prison Statistics of Sri Lanka 2020, Statistics Division Prison [Headquarters], Sri Lanka.
13
Judicial Service Commission, Circular JSC/SEC/CIR/2017.
14
Hereinafter referred to as “POO”.

90

PARTICIPANTS’ PAPERS
options and to assess alternatives to bring a closure to a criminal dispute. By attempting to resolve a highpercentage of minor criminal disputes, mediation reduces the number of cases being filed in courts, andpresumably plays a part in relieving case backlogs. Mediation improves social harmony and local dynamics
by introducing a method of problem solving that seeks out mutually agreeable solutions focused more on
restitution than punishment. Offenders are not incarcerated for minor criminal offences that are sent for
mandatory mediation [if settled] and are not even charged, which helps them to have a clean record.

IV. CONCLUSION
The hope of the world lies in the rehabilitation of the living human being, not just the body but also thesoul. Our country cannot lose its eligible work force to the criminal world.  It is the goal of this study toprovide a starting point for collaborative dialogue between practitioners, policy advocates and scholars whoare eager to consider the viability of alternative forms of justice in sentencing in Sri Lanka. Non-custodial
measures when used well could substantively address core issues affecting the prison system, such as
overcrowding and rehabilitation. It is however important to re-evaluate non-custodial measures regularly
and innovate according to changing socio-economic conditions.

91