COMMENTS
ON THE CORRECTIONAL SERVICES
AMENDMENT BILL
These comments are restricted to the
proposed amendments to the Correctional Services Act, 1998, insofar as they
affect the office of the Judicial Inspectorate.
Supplementary comments on the
apparent revision of the provisions of the Bill relating to the Judicial
Inspectorate are also enclosed.
As recently as February 2005 the White Paper
on Corrections in
“14.4 Roles and responsibilities of the
Judicial Inspectorate:
14.4.1
The correctional system in
14.4.2
Section 85 of the Correctional
Services Act, 1998 states that the:
·
Judicial Inspectorate of prisons
is an independent office under the control of the Inspecting Judge.
·
The objective of the Judicial
Inspectorate is to facilitate the inspection of prisons in order that the
Inspecting Judge may report on the treatment of offenders in prisons and on
conditions and any corrupt or dishonest practices in prisons.
14.4.3
The Inspecting Judge must have at his/her disposal
a number of fulltime Inspectors. The
main responsibility of the Inspectors is to conduct independent inspections at
various prisons focussing specifically on emphasis on the treatment of the
offenders and the conditions in prisons. Their findings are reported to the
Inspecting Judge who is obliged to report to the relevant Minister responsible
for Correctional Services”
The importance of the independence of the
Judicial Inspectorate and its function as provided for in the Correctional
Services Act and the White Paper appears not to be in dispute.
The Jali Report emphasises how critical it
is that the Judicial Inspectorate remain independent and effective.
The memorandum on the objects of the
Correctional Services Amendment Bill states that the objects of the Bill are to
amend the Correctional Services Act in order “to align it with the White
Paper on Correctional Services…….”
It is accordingly disconcerting to read the
proposed amendments to paragraphs 85 – 95 of the Act as set out in paragraphs
68 – 78 of the Bill which appear to undermine the role of the Inspectorate as
described in the White Paper.
At the Portfolio Committee hearing an
official of DCS stated that there was no intention to interfere with the
independence of the Judicial Inspectorate but that the proposed amendments had
been motivated by concern over the separation of powers as articulated in the
Heath case about the Special Investigations Unit (SIU).
It is submitted that the Judicial
inspectorate is clearly distinguishable conceptually, historically and in
practice from the SIU and that the only possible cause for concern regarding
the Judicial Inspectorate is the indefinite tenure of the Inspecting Judge.
In any event, it is unclear how concern
over the separation of powers is remedied by proposing amendments that would
have the effect of reducing the independence and curtailing the powers of the
Judicial Inspectorate.
It is respectfully submitted that the
provisions of the Bill affecting the Judicial Inspectorate even as modified by
the subsequent amendments, constitute a retrograde and anomalous move at a time
when all concerned parties should be promoting the independence and greater
capacity of the Judicial Inspectorate.
It is noted with relief that there is no
longer a provision that a legal practitioner rather than a Judge be appointed.
However, whatever decision is made in
respect of Section 89 of the Act, the Inspecting Judge should retain the
authority to appoint his or her staff (including the Chief Executive Officer if
this post is approved) and there should be no requirement that such persons be
seconded from the Public Service.
Similarly it is submitted that if necessary the Inspecting Judge should
have staff to which he or she can delegate functions to ensure continued
independence. Serious consideration
should be given to ensuring complete financial independence of the Judicial
Inspectorate from the Department of Correctional Services.
There can be no good reason for the
deletion of the provisions relating to reporting on corrupt or dishonest
practices in correctional centres.
It is submitted that the proposed changes
are incompatible with the State’s commitment to accountability, responsiveness
and openness in the Constitution and are not reconcilable with the emphasis on
the independence of the office as set out in the 1998 Act, the 2005 White Paper
and the still more recent Jali report.
This Honourable Committee is respectfully
urged to protect and if possible advance the independence and capacity of the
Judicial Inspectorate.
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