By Basil Fernando

A constitutional crisis is not just a matter relating to a legal text. It influences all aspects of life and, in particular, the working of public institutions. The Prison Study carried out by the National Human Rights Commission of Sri Lanka (HRCSL) reflects the magnitude of the problems in the criminal justice system in general and the prison system in particular.

The study was done by a team of researchers on behalf of HRCSL and deserves careful examination and consideration. It is a comprehensive and clear statement about the situation that prevails in prisons. It is a painful story but a good example of truth telling.

The report related the basic problems affecting the prison system. What came out glaringly was the heavy overcrowding that created a situation of inhumane treatment of prisoners. There was a lack of space for sleeping facilities; prisoners said “they are tucked like sardines”.

During the night the toilets were closed and prisoners had to use buckets. Where there were many people in the same cell, one bucket was used by all of them throughout the night.

The overcrowding is not a product of the prison system itself but a result of issues besetting the system of the administration of justice. If the law relating to bailing out of prisoners was used in an appropriate manner, overcrowding could be reduced to a great extent, and this depended on the police and the magistrates.

Criminal lawyers observed that it had become a practice for the police to require the remanding of almost all prisoners produced before magistrates while enquiries were being conducted. However, inquiries should have been conducted before the arrests and only in instances where there was a basic case against the suspects. Quite often, a mere statement by a complainant was treated as adequate grounds for arresting of the person and it was routine practice to request the magistrate to remand the suspects. Often this was granted by magistrate without going into the details of the case or questioning the police about inquiries conducted so far and why further remanding was necessary at all.

Most of the prisoners are from lower income groups. They are arrested for minor offences, sometimes without any real evidence. Remanding of prisoners provides an opportunity for the police to file reports to their superiors saying that the complaint had been attended to and the culprit had been arrested.

Studies of a large number of cases show that beyond the remanding of suspects, the police did not follow up the cases. Very few cases were actually prosecuted. Thus the process of arrest and the demand for remand were a matter of routine rather than by any kind of necessity. The failure to grant bail for bailable offences often contravened the law.

One more glaring problem that came out in the study was the poor quality of food served to prisoners. The prison regulations stipulated the kind of food that should be provided to meet the nutritional standards required for prisoners’ health but these standards were not being met.

There is a vast list of other problems that showed the extremely harsh conditions in the prisons. It was not only difficulties of administration but also the process of coordination of many activities that created subhuman prison conditions. Among these were questions that relate to jurisprudence. The proper use of sentencing guidelines at the magistrates courts could lead to a reduction of persons being sent to the prisons. The use of community service as an alternative to prison sentences is recognized by the law but often neglected in sentencing.

The use of rehabilitation as an alternative to imprisonment was used a few decades ago but this practice was being neglected now. This not only created overcrowding but also denied the possibilities of reform; prison sentences for minor offenders could create more hardened criminals, as observed around the world.

The most appalling revelation made in the study related to the treatment of women prisoners.

Following statement from the report show how low it could go:

“Female prisoners also complained about the lack of access to sanitary napkins, as these are not distributed by the prison unless a donation is made to the prison by an external organization. Remanded women rely on their family members to supply them with sanitary napkins through family visits. Convicted women and foreign nationals obtain them by completing the following household tasks. It could be washing dishes and clothes for other inmates who have adequate supplies in return for sanitary napkins and toiletries.”

This observation revealed a debasement of unimaginable proportions.

Such neglect is not the product of only the prison system; it is a result of a crisis caused by the collapse of the legal system as manifested through the degeneration of public institutions. The conclusion to draw is that things will become even worse.

 – Basil Fernando, is  a Hong Kong based  Sri Lankan jurist, author, poet, human rights activist, editor of Article 2 and Ethics in Action, and a prolific writer, associated with Asian Human Rights Commission and Asian Legal Resource centre