By Basil Fernando –

Basil Fernando

The recent Negombo incidents have brought to the forefront an issue that has persisted for many years: Sri Lankan prisons hold far more unconvicted prisoners than they have space for, even for those already convicted. The problem is well known; the question is whether effective solutions exist. Can we remove all unwanted, unconvicted prisoners from our system and thereby, first, fulfil one of our most fundamental obligations – not to illegally arrest and imprison persons – and second, address the humanitarian impact of this practice, namely the unnecessary suffering of poorer people and their families?

Having served in the magistrates’ courts and observed this situation for a long time, I propose the following measures to stop this practice.

First, for a temporary period, the power to decide who goes to prison should be taken away from Officers in Charge of police stations (OICs) by restricting their discretion. They are the masterminds behind this process, bound by regulations or orders issued from above many years ago. These orders require them to meet quotas of prisoners against whom reports must be filed in court daily. Suppose the quota requires reports against ten persons, but the police can find only one or two genuine suspects against whom they have evidence. The rest they fabricate.

This is done by charging every poor person who comes their way with some false offence. In recent times, these fabricated charges are mostly drug-related. In recent times, these fabricated charges are mostly drug-related, often involving minor or trumped-up possession claims that poor suspects cannot afford to contest. Poor people, unable to afford lawyers or other defence costs, often agree – or are forced into this arrangement. This is a major cause of the increase in unconvicted prisoners in our jails. This issue was pointed out to Sri Lanka as early as 1993 by the United Nations Committee Against Torture (CAT). However, nothing has been done so far. It is to be hoped that this catastrophe will finally prompt action.

The second method of reducing the number of unconvicted prisoners sent to remand is to increase the powers of magistrates to examine cases as early as possible. This can be achieved easily if the reports filed are not merely sketchy but instead provide details of the evidence available against each person. Our magistrates are sufficiently learned to distinguish between cases based on real evidence and fabricated ones. Therefore, all restrictions placed particularly at the lower level on magistrates dealing with such cases should be removed. This would also give poor people a real opportunity to speak to the magistrates, so that the truth can emerge. There must be more open space for people to address magistrates in court. They should not be intimidated or discouraged from speaking when injustice has been done to them.

Emptying the prisons in this way has many other advantages. Much of the unnecessary time currently taken up in the courts would be eliminated. One of the greatest accusations against the courts—that there are delays in justice—could be addressed automatically if this unnecessary burden on the courts is removed.

This whole issue requires a more detailed response. For now, it is essential to raise the core point: it is better to empty the prisons of unnecessary and unwanted unconvicted prisoners than to continue this terrible practice. This requires concrete action, particularly from the Inspector General of Police (IGP) and other authorities responsible for the police and the prisons.