• Public policy advocate Rohan Pethiyagoda on the rarity of anyone from a middle- or upper-class background being sent to prison

Sri Lanka’s prison system has five maximum security prisons, 18 remand prisons, two youth correctional centres, 10 work camps, and two open prison camps. As at November 2022, The World Prison Brief states that Sri Lanka had placed 32,402 people in prison, including pre-trial detainees and people on remand. This number has almost tripled with the ongoing ‘Yukthiya (Justice)’ operation, which has resulted in over 56,000 people being arrested within the first 50 days alone. But, there is a problem. The official capacity to house prisoners in Sri Lanka’s prison system is 11,786, which means that the occupancy level within the prison system has long been surpassed. The boundary wall at the main Prison in Welikada has a mural reminding passers-by that ‘prisoners are human beings’ and, in the spirit of reminding ourselves of this fact, conservationist, scientist, and public policy advocate and Linnean Medal Winner Rohan Pethiyagoda discussed on Kaleidoscope this week the system’s trials and tribulations and how society itself does not understand that very statement on the wall. 

Following are excerpts of the interview:

What are the most common reasons for imprisonment in Sri Lanka?

The most frequent cause of conviction is drug related. About half of the 30,000 people who go to prison every year are there because they have been trafficking drugs. This shows how serious the drug problem in Sri Lanka is and also highlights other elements in society. Why do Muslim people, who account for 10% of our population, also account for 15% of all drug convictions? Drugs are strictly prohibited in Islam. This is a signal to the leaders of that community to wake up and notice that there is something wrong with their young men which needs to be fixed before things get worse. 

How do you describe Sri Lanka’s prison population?

Prison is for poor people, primarily. It is very rare for anyone from a middle or upper class background to be sent to prison. Females comprise only 5% of prisoners, while 95% of prisoners are males. When it comes to bribery, very few people, around 100 every year, go to prison for it; 20% of that group is females. Another fact: 95% of people in prison have not studied beyond the General Certificate of Education Ordinary Level, which is a telling indictment. The best predictors for anyone getting into prison in Sri Lanka are being poorly educated, being poor, and being a man, and that is not a good thing. 

How many people remain in prison awaiting trial or unable to pay bail?

That is the worst of it. About three times as many people are on remand, as those who are convicted. About 60,000 to 90,000 are on remand in any year and about 30% of them are on remand for more than six months. Remand has become a method of extrajudicial punishment. The Judiciary has very little control over remand. The Police or the Attorney General request it and they get it. We have also seen an egregious miscarriage of justice in the course of last year (2023) as in the case of the former Director of the Criminal Investigations Department, retired Senior Superintendent of Police Shani Abeysekara. Here is a senior Police officer being put in remand for over a year at the height of the Covid-19 pandemic and at a time when prisoners were dying at twice the rate of the rest of the population. Then, the relevant Court finds that the evidence has been trumped up and that he has been imprisoned on completely false charges. Now, if that can happen to a senior Police officer, what chance do you or I have in this system? 

What is the social impact of imprisonment?

A total of 20% of prisoners are reconvicted and hence return to prison. The social impact is terrible because on the one hand you have a high population of males in prison. The densest demographic for imprisonment is males in their 30s and most being poorly educated who are unemployed and tend to be married with children, so the family is disrupted. Once the father is convicted, the children have a stigma for life. On another side, children from the age of 16 upwards can go to prison, but the 16-29 years cohort is only about a quarter of all prisoners. We are seeing a proportionately smaller number of males in this age group in prison. In terms of social standing, even a six-month prison sentence can destroy a person. The Judiciary is doing a good job in keeping sentences proportionate. More than 90% of the sentences are of less than one year, so, it is doing its part. However, any kind of imprisonment is a stigma on a family for life and this is very unfortunate. 

Are these really bailable offences?

The definition of ‘bailable offence’ has become moot now, because so many people are being incarcerated on the grounds of being part of an ongoing investigation, or being part of an incomplete investigation, or for being a flight risk. I think that these risks are actually minimal, which means that there is a huge amount of unnecessary incarceration in Sri Lanka. There is no presumption of innocence if you can be thrown in prison for several months on the say-so of a policeman. 

We have to look after prisoners with taxpayers’ money. How does this impact Sri Lanka’s finances?

The cost of running prisons is small. In comparison, it is less than the cost of running the Wildlife Conservation Department. The fiscal impact is not big. However, we must note that people go to prison on the most frivolous of contexts. Statistics show that some males are in prison for ‘watching blue films’. There were more than 100 females in prison for ‘lodging in the verandah’, whatever that means. It is a euphemism for something, but I have no idea what that is. There are about a dozen females in prison for unnatural sexual offences, which I assume means lesbianism, but we are not living in an age where this sort of sentencing should be valid. So, on the one hand, there is frivolous imprisonment and on the other hand, malicious imprisonment, like we saw with Abeysekara. Then, there is a Judiciary trying to plot through the regular course of criminals and control serious offences such as drugs and abuse against people. By and large, while the Judiciary does a good job, it can only work within its framework. The problem is the weakness of this framework.

There has been some rhetoric about prison law reform. How much of that has happened and what needs to be prioritised?

It is a question of reforming the Police. Right now, there is no civilian oversight on the Police, which is a problem. It would be good to have a panel of ombudsmen overlooking the Police, so that any miscarriage of justice gets nipped in the bud early on. To have a panel of retired judicial officers to serve as an informal court of appeal (long before cases get to a stage of prosecution), would be to have a body to catch the cases where people are falsely accused and sent to prison without sufficient evidence, before they are carried out. Our system can be used vindictively. We saw several ‘aragalaya’ (the public movement that sought the ouster of the previous Government led by the then President Gotabaya Rajapaksa) leaders sent to prison for long periods of time on basically no proper charges. This needs to stop. 

Do we have a system where prisoners can be rehabilitated and integrated into society?

The Prisons Department is sincere and seems to be interested in doing a good job. The problem is the stigma. Once a family member has been to prison, there is a lifelong impact. Children are not treated fairly at school because the teacher knows that their father went to prison. The wife has to deal with discrimination in the community and in society. Those are things that prisoner rehabilitation is not going to fix. The vast majority of prisoners are married with children, so we also need to extend some care to the families. There are several non-Governmental organisations that go into prisons and try to work with the prisoners. The Department is not full of evil people. They are actually trying to do a good job, but they are bound by a system that is unfair and forces more and more falsely charged and unfairly placed prisoners on them. 

As a community, we are very insensitive when it comes to prisoners and their families. As a message to the community, what would you like to say about how we treat them?

We still have this idea of revenge when it comes to justice. This idea is not just a human thing, it is a primate sense. This sense of justice is centred on retribution. However, I think that enlightened justice has to be about restorative justice. If we go about seeking retribution against wrongdoers, we will very soon have a society without arms and legs. Restorative justice can mean more much for the community, because it tries to right the wrong, rather than simply punish the wrongdoer. We have not taken to this just yet. Just as we look back in history and are shocked at how people were hanged and tortured in the name of justice for the smallest crime, I think that future generations will look back in shock at the way in which we, our generations, imprisoned people. We know that crime is largely driven by other factors like poverty and being male, but whose fault is that? We have to fix those issues. This is largely a phenomenon that emerges from the properties of our brains. The individual is not the criminal. There are systems that lead to crime and to the administration of justice in a way that is disproportionately harmful to certain groups. Thinking about that more closely and fixing that root cause is the way that the progress of humanity should be judged in the future. 

Lastly, capital punishment, to do or not to do?

I am completely against it. It is a barbaric practice of ‘justice’. There are no circumstances under which the State can kill. Where is the legitimacy of a State and where is the example you set to people about the idea of vengeance if you insist on killing people because they have caused harm? In the United States, about a third of those on death row are innocent. I cannot imagine that the statistics are any more different in Sri Lanka. The people who go to prison in the first place are poor people who cannot afford the posh lawyers who can talk them out of a sentence. Miscarriage of justice is so high that it is never justified to kill somebody. It is one of the most inhumane and barbaric things that mankind can do. 

(The writer is the host, director, and co-producer of the weekly digital programme ‘Kaleidoscope with Savithri Rodrigo’ which can be viewed on YouTube, Facebook, Instagram, and LinkedIn. She has over three decades of experience in print, electronic, and social media)