By P.K. Balachandran

COLOMBO – Although the recent series of riots in Sri Lankan prisons (which claimed 11 lives) stemmed from the scare over the spread of the coronavirus, the violent agitation has wider and deeper roots, which if recognized and acted upon, could prevent further outbreaks of lawlessness.

The history of violence in Sri Lankan prisons shows that though the immediate causes vary, all are basically rooted in a deeper malaise afflicting the penal and justice system in Sri Lanka since British times.

The basic problem is overcrowding. This is partly due to the fact that the police and judges have a tendency to send suspects to jail, irrespective of the severity of the crime, while space in the prisons remains unchanged.

An overwhelming majority of detainees are remand prisoners who are only suspected wrongdoers. According to the Prison Department’s website, in 2018, the prison system held 24,852 convicted prisoners and 108,263 unconvicted or remand prisoners (about four times the number of convicted prisoners). Many or most of these remand prisoners, would not be jail if the authorities had applied their minds to the cases and implemented the laws and international norms.

The prisoners are put up in dilapidated century-old buildings, with very poor sanitation. Personal hygiene products, such as soap, are not given to the inmates. According to Senaka Perera, who runs an organization for the protection of prisoners’ rights, inmates are locked up at 6:00 p.m., and are not allowed to go out even to use the toilet. They end up easing themselves in the cell itself.

Ambika Satkunanathan, a former member of the Human Rights Commission, writes in the South Asian periodical Himal that most of the remanded are booked for bailable, minor and non-violent offences. In 2018, those who were sentenced to less than two years constituted 92% of the prison population, she says, noting that many are in jail simply for failing to meet bail conditions or fines (some as low as Rs 2000).

The number of persons imprisoned for non-payment of fines ranged from 12,045 in 2012 to 16,111 in 2018, which is 42.4% and 64.8% respectively of the total number of persons jailed during those years.

In a paper entitled: New Sentencing Structure and Policy in the Republic of Sri Lanka, I.R.M. Perera says the Administration of Justice Law No. 44 of 1973, which came into operation on January 1, 1974, is one of the most progressive enactments affecting both the sentencing structure and policy of the law courts in Sri Lanka. The law was intended to achieve uniformity in procedure and fairness in the administration of justice. The judges were given a lot of autonomy in sentencing. But whether suspects and prisoners have benefited from this is open to question.

The Community Based Corrections Act of 1999 gives courts the right to order community-based correction to anyone charged with an offence with a sentence of less than two years. There is a legal provision for early release of inmates who are over the age of 65 or inmates with serious and terminal illnesses, Satkunanathan points out. But is this act used adequately?

The Centre for Policy Alternatives (CPA) in its report on prison conditions urges the government to follow its own Constitution; the UN Basic Principles for the Treatment of Prisoners, and the UN Standard Minimum Rules for the Treatment of Prisoners. There is a legislative framework on bail for remand prisoners and pardons in Sri Lanka. But these are largely disregarded. There is a Legal Aid Commission but it does not provide legal aid to persons charged with criminal offences despite having the legislative power to do so. The judiciary is not guided by a sentencing policy or an advisory council on sentencing, the CPA notes.

Recently, a Presidential Task Force was appointed with a mandate, among other functions, to “investigate and prevent any illegal and antisocial activities in and around prisons”. But the Task Force comprises present and former military, intelligence and law and order officials with no representation of officials having expertise or the civil society, the CPA points out.

Rules 9-14 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) require each prisoner to be allocated one cell or room. Sharing of a cell is to be an exception due to temporary overcrowding, administered cautiously based on suitability of the prisoners associating with each other and subject to regular supervision, especially at night.

Rules 67-69 say that the classification of prisoners must aim to separate the hard-core criminals who are likely to exert bad influence on others. But these rules are not followed. Prisons are full of drug addicts and no consistent and sufficient attempt has been made to segregate them from other prisoners. These norms are not applied in Sri Lanka, as indeed in other South Asian countries.

The Community Based Corrections Act No. 46 of 1999 facilitates the imposition of community-based correction orders in place of imprisonment, where the prescribed punishment does not include mandatory imprisonment or imprisonment exceeding two-years. But correctional facilities are too few for the huge number of drug cases. The authorities are still to realize that the drug addict, unlike a drug trafficker, is not a criminal who has to be punished. He is a case to be rehabilitated in a correctional centre. In most cases that can be done in a year without imprisonment.

Article 34 of the Constitution of Sri Lanka allows the president to grant free or conditional pardons to convicts, provide respites, substitute less severe sentences and to remit sentences. This provision ensures executive clemency in the event retributive justice is assessed to be too harsh. However, this provision has also been used by successive presidents to pardon prisoners with political and personal linkages, the CPA points out.

The proviso to Article 34 says that in the case of pardoning a convict condemned to death, the president shall seek a report from the Judge who tried the case, advice of the Attorney-General and the recommendation of the Minister of Justice. But it appears that this procedure is not followed, which makes remissions and pardons look very arbitrary.

Perera points that apart from the lack of protection against COVID, the main and persistent complaint of the prisoners has been that the existing rules are not followed by the authorities. The authorities break rules to pamper the rich and the powerful. The influential and elite are accommodated in jailors’ quarters which have all the basic facilities, he alleges.

However, mainly due to the fear of COVID from spreading in the prisons, on March 25, after the riot in the Anuradhapura prison, President Gotabaya Rajapaksa appointed a committee to explore the possibility of early release of persons who had been imprisoned due to their inability to pay bail and for minor offences. Subsequently, Presidential pardon was given to over 600 inmates arrested for minor offences for which fines could not be paid.  A State owned English daily quoting U.R.Jayasinghe, Advisor to the Ministry of Justice, said on Thursday (3) that 6000 inmates held without bail would be released on Monday (7).

There have been plans to modernize jails, build new jails and open correctional centre. Some of these are being implemented. But implementation must be faster. Gross over-crowding and the woeful lack of sanitary facilities in prisons are not only a danger to the health of the society at large, but an embarrassment to the country, which comes under the spotlight of the UN Human Rights Council and under the lens of human rights bodies regularly.

–  -P K. Balachandran is a senior Colombo-based journalist who in the past two decades, has reported for The Hindustan Times, The New Indian Express and the Economist