Prisoners: A forgotten lot

Overcrowding, lack of basic living facilities and unjust imprisonment:

T.S. RAJAPAKSA

On September 2, 2007 prisoner No. W 9939 P. Kumaratunga undergoing a term of life imprisonment at the Welikada prison attempted to commit suicide by hanging in his cell. What are the circumstances leading to this incident?

The last execution of a convict guilty of murder and sentenced to death in our country was in 1976. Since then no such executions have been carried out.

All such convicts found guilty of murder and sentenced to death under our judicial system have been fortunate to get the Presidential pardon and get their individual death sentences commuted to life imprisonment.

Though the term life imprisonment implies that such a convict has to be incarcerated for life, the reality is not quite so. After four years and every two years thereafter the Prisons Department is duty bound to send to the Ministry concern reports on such prisoners, relating to their conduct, response to work etc.

Based on the Minister’s recommendation the President acting in terms of the Constitutional provisions commuted the life imprisonment to definite term of 20 years.

Such a prisoner thereafter became one like any other prisoner and had the opportunity of getting released in about 10-12 years after serving his sentence. This procedure went on satisfactorily till 04.03.1999.

On 04.03.1999, by order No. CPA/J/1/3 the President ordered that “When a sentence of death is commuted to one of life imprisonment the prisoner should undergo imprisonment for a period of at least 20 years before the term of imprisonment is commuted to imprisonment of or a specific period of time.

It would be only thereafter that such a prisoner would qualify for remissions that are granted according to the scheme that has been recommended”. The President’s order is very clear.

A minimum period of 20 years has been mandated for a prisoner undergoing life imprisonment to be eligible for commutation of his sentence to a definite period. A complete deviation from the practice that was in force till 04.03.1999.

However on 19.06.2002 ignoring her order of 04.03.1999 the President ordered the commutation of 23 prisoners undergoing life imprisonment to definite term of 20 years overlooking about 67 senior life prisoners in the same category.

The moment the order of 19.06.2002 was made all the 23 favoured prisoners referred to became eligible for release from custody in terms of the provisions of the prisons ordinance.

On 24.02.1993 three brothers, one of them being the life prisoner P. Kumaratunga (who attempted to commit suicide) was sentenced to death in case number 04/92 at the High Court of Ratnapura.

The death sentence enforced on the three had been commuted to one of life imprisonment at some stage under Presidential prerogative. Among the 23 prisoners were Kumaratunga’s two brothers.

Both of them were released from custody about five years back. But Kumaratunga is yet in the category of “life prisoners” at the Welikada prison. There is no special reason to single him out and adopt a different policy in his case and continue to keep him lingering in jail.

The President’s order of 04.03.1999 was made as a means to curb the incidence of crime taking place in the country. Ironically it was the only step taken in that regard. What are the consequences of this order today at the Welikada prison in particular? It is chaotic.

As at August 31 this year there were 161 condemned prisoners on Death Row at the Bogambara and Welikada prisons. Condemned prisoners are classified as ones needing special security and one prisoner is normally located in a cell in the Death Row. The situation is so bad now some cells accommodate about four prisoners.

There are 334 condemned prisoners in the appeal ward till their cases are taken up for hearing, some waiting for over three to four years. In the category of life prisoners there are 270, totalling up to 695 in all. The fate of all of them depends partly on the judiciary and the mercy of the Head of the State.

For a few decades now prisons are holding unmanageable numbers. Welikada prison is said to be accommodating about 4500 today whereas its capacity is meant for about 1000. In a cell having an area of about 75 sq.ft. eight to nine inmates are locked up from 6 p.m. to 6 a.m the following morning with their chamber pots.

The situation in the halls of locations is no better. On the date of our inspection about two years back there were about 450 on roll, all remandees in a building meant for about 150, in its two floors.

The four toilets were in an awful state. Water was such a scarce commodity even for their toilet requirements. It was not surprising to see some of the inmates were having fungal infections in their groins.

The aged and feeble were at the mercy of their fellow inmates. The Department appears to be unable to provide the inmates at least the minimum authorised requisites of life as laid done in the department’s standing orders.

The following figures quoted from the statistics of the department explain how the inmates admitted to the prisons during the last 5 years have kept increasing, daily average population of convicted and unconvicted prisoners and the accommodation available which has been static since 2002.

The Department seems to have opened the Polonnaruwa and Monaragala remand prisons and Wariapola work camp in 2002 to cope with the increasing intake.

But the important question is whether opening new prisons and increasing accommodation is the solution to solve the problem of overcrowding. For example because new prisons were put up during the period 1999 to 2002, overcrowding which stood at 114.8 per cent in 2000 came down to 73.7 per cent by 2001 and to 65.6 per cent by 2002 but again rose to 106.8 per cent by 2005.

What is needed first and foremost is measures to relieve the problem of overcrowding by reducing the admissions to the prisons. From the above figures it is observed that 96,007 persons had been remanded in 2005 whereas the convicted admissions in the same year had been 33,034, which indicate that only 34.4 per cent of the remanded had been convicted and 65.6 per cent had been unnecessarily remanded.

Therefore the bane of the problem of overcrowding is due to indiscriminate remanding of persons. If steps are taken to arrest this situation, to limit such imprisonments to bear necessities, the prisons department will be relieved of its long standing problem of overcrowding to a grater extent, if not completely.

Out of the total of 33,034 convicted prisoners admitted to the prison in 2005 a total of 16,244 or 49.2 per cent had been for non payment of fines. Actually the Court of Trial thought a fine was sufficient for the offence one had committed but his poverty prevented him paying the fine.

There is said to be provisions in the law to permit instalment payment of fines in the first place rather than coercing them to imprisonment at once. We have come out with this suggestion several times but none seems to be concerned.

Out of the 33,034 convicted prisoners in 2005, 20,611 or 62.4 per cent had been for periods for less than one month to one year and 12,423 or 37.6 per cent had been for periods for over one year to over 10 years. It is the view of our association that this category over one year should be given a proper institutional treatment aimed at correction and rehabilitation.

If the 20,611 convicted up to one year and less is further categorised, 9,122 or 27.6 per cent had been for periods for less than one month to three months and 11,489 or 34.7 per cent had been for periods from three months to one year.

We have been pointing out that the group less than three months should not have been sent to the prisons at all but taken under the community service programme now in operation in some of the Magistrate Courts in the island.

As for the group from three months to one year, we have suggested that a system of work camps be set up, especially for them where the emphasis should be on a rigorous system of productive labour work with whatever correctional steps that may be possible during their short stay in custody.

These are mostly the drugs and excise offenders and it is best that they are put on such a productive programme of work, rather than feeding and fattening them with hardly any work as is happening in normal prisons, at a colossal expenditure to the tax payer.

Non custodial sentencing options are said to be successfully operated in some countries of the world. This is yet another important matter that should be considered for implementation here. Legal delays are an inherent problem facing prison inmates. They are kept in custody for years, sometimes over five till their cases are taken up in courts. Is this justice or denial of justice?

The Prisoners Welfare Association of Sri Lanka has made representations to the Ministry of Justice on several occasions on the matters referred to above. We have appealed both to the present and former Presidents of the State to intervene, without any response.

How long prisoner P. Kumaratunga is to endure the mental and physical suffering he is undergoing due to the administrative blunder done on 19.06.2002 by misleading the former President? When will the authorities open their eyes and correct the existing ills in our prison system? Prisoners, a section of our society should not be treated as an unwanted lot and thrown to the dustbins. They are a helpless lot without the right of protest.

(The writer is Former Chairman, Central Committee of the Prisoners Welfare Association of Sri Lanka)