By Basil Fernando –

An open letter to Cardinal Malcolm Ranjith and the Bishops’ Conference of the Catholic Church, and also to all men of goodwill. The issue: the tragic circumstances experienced at the Negombo jail within this month.

“I was in prison; you did not visit me.”

The whole nation, and indeed many countries beyond Sri Lanka, have been shocked by the events that took place at the Negombo prison. These events have raised questions that go beyond the immediate issues of deaths and injuries. A central question is this: how much protection is actually available to prisoners, to the prisons themselves, and to those who are the guardians of these prisoners?

The primary obligation to protect those in the custody of the state—an obligation that is a paramount consideration in both international law and our own domestic law—lies at the heart of this matter. This issue arises not merely as a legal obligation, but also as a moral and ethical one. In this statement, we address you primarily on the basis of the ethical, moral, and civilisational obligations that we bear as a people, as a community, and as a state.

When we look into the circumstances that created this whole problem, one issue emerges very clearly: the overwhelmingly overcrowded nature of the prison population in Sri Lanka. It has been well-documented that the total designed capacity of the prison system is only around 10,000 to 13,000 persons. However, at present, the prison population exceeds 40,000 inmates. Thus, the system is currently operating at over 300% of its intended capacity, forcing a vastly larger population to be accommodated in very limited space.

The question of how such a situation arose is something the community can no longer ignore. It has developed over a long period of time; this is an accumulated problem. We must now ask how this problem was allowed to accumulate to such an extent.

One clear factor that emerges is that this problem is related not merely to the prisons themselves, but also to the manner in which people are brought into them through the actions of the police authorities. It has been shown that, for a long period, every police station has been given quotas for the number of persons who must be arrested and produced in court each day. This was ostensibly intended to suppress crime.

However, what actually happens is that, as police officers are often unable to locate or arrest real culprits, they instead arrest innocent persons, fabricate charges, and bring them before the courts with false reports. According to these reports, most cases are filed in such a way that the suspect cannot obtain bail. One of the main methods used is to file charges related to illicit drugs, where even a small quantity can automatically lead to at least three months of remand imprisonment, because magistrates are not permitted to grant bail on such charges.

Thus, the majority of those in these prisons are people who were caught in this way, so that the police may escape their obligations by registering false cases in court, thereby placing the freedom and liberty of these individuals in peril. Naturally, the people selected in this manner are among the poorest, because they are the ones least able to fight back, to obtain necessary legal support, or to secure other forms of assistance, including family support. As a result, they are almost invariably forced to remain in this situation.

This is one of the most inhumane, barbaric, and uncivilised practices being carried out in the name of law enforcement by the Sri Lankan police. Mostly, this happens at the police station level.

The person primarily responsible at each police station for this practice is the Officer in Charge (OIC). He is the mastermind behind the use of fabricated drug charges, and very often he even provides the material used for this purpose. The “material” is very often found, later, when the Government Analyst examines it, to be rubbish that has simply been collected, put into a cover, and presented as if it were a drug. Frequently, the Government Analyst ultimately declares, at the end of the examination, that there is no drug-related material in these exhibits at all.

If this practice could be brought to light and stopped, a large number of such cases would be eliminated from the courts. The result would be that the prisons would, in effect, become much emptier. There may still be a few genuine cases, but they are in fact few, particularly because of the incompetence of the police in catching real culprits and because of other corrupt practices.

Therefore, the issue is how to limit or remove the authority currently exercised by the Officers in Charge of police stations in order to stop this practice. The easiest way would be to require that the Senior Superintendent of Police (SSP) in charge of the area under which each police station falls must authorise, after examining the evidence, whether any person should be presented to court on the basis of such charges. This would help to prevent arbitrary arrest and detention.

Anyone at the rank of SSP or above carries authority, and therefore it could be more reliable, at this stage, to ensure that this process is carried out through them. These are, in fact, the obligations of SSPs. When we look at the history of policing from the 19th century, provisions already existed making the Assistant Superintendent of Police (ASP) ultimately responsible for what happened in each police station. Unfortunately, this practice has been forgotten, and a certain degree of corruption has likely entered into this area.

Thus, the first element of any intervention on behalf of the prisoners and prisons of Sri Lanka is to abolish this quota system forthwith. It is a simple matter that could be done either by regulation issued by the Inspector General of Police (IGP) or by the government itself, which currently holds an overwhelming majority in Parliament.

This issue has remained unresolved largely because the community has shown no interest in it. The reproach, “I was in prison, you did not visit me,” is an accusation that can be made against every Sri Lankan at the present time. This includes the clergy and all other hierarchies. It can be said that they have failed in the duty implied in the words, “I was in prison, you visited me.” Instead, their position has effectively been, “We will not visit the prisoners.”

It is now time for the community, and particularly all leaders—including religious leaders—to intervene in a decisive manner. The incident at the Negombo prison has provoked a national reaction, and people are demanding action. This is a moment when, if proper counsel prevails, it is possible to undo the entire process of imposing quotas.

Beyond overcrowding, there are other serious problems in the prisons. The toilet situation is described by everyone as hellish. It is a basic right of any human being to have proper toilet facilities. Prisoners in Sri Lanka do not enjoy this right. Because of these conditions, all kinds of diseases spread.

To be brief, another major problem is that in such overcrowded prisons it is not possible to maintain discipline. As a result, these prisons themselves become “universities of crime.” From many reports, we know that a large number of criminal activities are organised from within prisons, sometimes with the assistance of certain prison authorities themselves.

This is only a very brief statement of the enormous problem we face and of the need for the community to become involved and finally to find a solution. The solutions are available. They include:

1. Completely abolishing the quota system.

2. Requiring an officer not below the rank of SSP to certify, at each police station, whether there is sufficient evidence to place any case before a court.

3. Releasing all those who are being kept without any real basis other than false reports made by the police.

4. Taking immediate steps to provide proper sanitary facilities for prisoners.

We hope that this statement will help to generate greater discussion and some decisive action at this moment. Decisive action is, in the end, the task of the government, whether it is carried out through the relevant ministries, through the Cabinet, or through Parliament is for the government to decide.

However, it is the responsibility of the state that has been completely ignored, and that is the underlying reason for the deaths that have occurred, whatever the immediate causes may have been. The ultimate responsibility lies with the government and with the Sri Lankan state.

We urge everyone to act now to bring this situation to an end. Doing so will bring many other benefits to Sri Lanka. One such benefit would be a reduction in the great delays associated with our justice system. If unnecessary and fake cases were removed from the courts, the remaining time could be devoted to more substantive cases.