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Justice Maker Study on

Women Pre-trial Detainees in Sri Lanka

By Harshi C. Perera (AAL)

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Photos show the Entrance to the Welikada Prison, Colombo.

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ACKNOWLEDGEMENT

May I take this opportunity to thank all those who assisted me in this project to

carry to completion the study on "Women pre-trail detainees in Sri Lanka Prisons".

I would like to specially mention Mr. Chithral Perera, my father and my guide on

Human Rights Issues, Ms. Kishani Fernando, a true friend of mine, Mr. Eric

Feldman, a voluntary lawyer attached to International Bridges for Justice and all

my colleague at Janasansadaya.

This opportunity was given to me by the 'International Bridges for Justice', a

Geneva based non-profit organization and I am indeed thankful to them for

selecting me as a Justice Maker Fellow for the year 2010, and a very special thank

you is due to Mr. Sanjeewa Liyanage, the International Programme Director.

I have successfully completed, about 90% of the two objectives in the project of

my Justice Maker fellowship. One of which is giving legal aids to five women pre-

trail detainees at the Welikada Women's Ward and the other is completing this

study.

My thanks is also due to my best friend, Sharmaine de Silva Attorney-at-law, and

another two persons who are attached to the Prison Department whose names are

not disclosed here for obvious reasons, Mr. Nilantha Illangamua, Editor of Sri

Lanka Guardian, who provided space in his website to publish in English and

Sinhala articles on the 'State of pre-trial detainees and conditions of prisons', Mr.

Ismail, a senior colleague who always encouraged and assisted me and Mr. Pathum

- my malli/ younger brother, attached to Janasansadaya who assisted me in a

multiple other tasks.

Harshi C. Perera

20.08.2011

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Contents

Subject Page

Chapter one --- JM in Prison Study 5 --- 15

Map of Prison Institutions of Sri Lanka 16 --- 17

Chapter two --- Cited Cases as example 18 --- 42

Chapter three --- An Interview. 43 --- 50

Chapter four --- True condition of prisons 51 --- 55

Analysis 56 --- 57

Report of a JMO 36 --- 39

Prisons Photographs 58 --- 60

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Chapter one

Justice Maker (JM) Prison Study

Section 1 – Prison Statistics

In 2008, 8,083 women were admitted to the prisons in Sri Lanka, of which 7,075

were un-convicted pre-trial detainees.1 Over one-third of all women prisoners were

admitted to the Women‟s Ward at the Welikada prison.2 The age of the women

prisoners in 2008 ranged from under sixteen to over sixty, with about 27% falling

between the ages of twenty-two and twenty-nine and an additional 31% falling

between the ages of thirty and thirty-nine.3

On a daily average in 2008, there were 850 pre-trial detainee women held in

prisons.4 Most pre-trial detainee women spend less than six months in remand

(65.9%) or between six months and one year in remand (12.3%).5 The majority of

pre-trial detainee women were married (75%).6

Women prisoners were most often convicted on charges of excise offenses (39%),

narcotic drug offenses (15%), or theft (7%).7 The majority of convicted women

prisoners were married (72%)8 and literate (85.5%)

9 when admitted to prison. Of

the 128 death sentences passed in 2008, only 3 were women prisoners.10

Section 2 – The Law of the Prisons

1 Prison Statistics of Sri Lanka, Statistics Division Prison Headquarters, Vol. 28, Table 4.20 at p. 42 (2009), hereinafter 2009 Prison Statistics Report 2 2009 Prison Statistics Report, Table 4.20 at p. 42 (2,680 unconvicted pre-trial detainees and 442 convicted prisoners admitted) 3 2009 Prison Statistics Report, Table 4.21 at p. 42 (calculated from the values of 2,215 women prisoners in the 22 to under 30 years of age group and 2,497 women prisoners in the 30 to under 40 years of age group from the 8,083 total women prisoner admissions in 2008) 4 2009 Prison Statistics Report, Table 3.12 at p. 23 5 2009 Prison Statistics Report, Table 3.11 at p. 23 6 2009 Prison Statistics Report, Table 3.6 at p. 19 7 2009 Prison Statistics Report, Table 4.22 at p. 43 (calculated from the values of 396 Excise Offenses, 149 Narcotics Offenses and 72 Theft Offenses from the total of 1,008 convicted women’s prisoners) 8 2009 Prison Statistics Report, Table. 4.6 at p. 31 (calculated from the value of 728 married women convicted prisoners out of 1,008 total women convicted prisoners) 9 2009 Prison Statistics Report, Table 9.4 at p. 70 10 2009 Prison Statistics Report, Table 6.2 at p. 52

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Legal Foundations

The law of the prisons in Sri Lanka is derived from the Prisons Ordinance (PO).11

First and foremost, the PO established the authority of prisons to receive “prisoners

of every description committed or remanded under the authority of any court.”12

A

court can commit any person for any offence to any prison where that person can

be lawfully detained, even if not within the jurisdiction of the judge,13

and

prisoners can be moved between facilities as determined by administrative

authorities.14

Structure of Authority

At the highest level, the prison system is managed by the Minister of Prisons who

retains at all times the power to make any rules consistent with the PO that are

necessary to run the prison system. This power covers the ability to regulate and

restrict medical examination procedures, specifications and requirements of cells,

prisoner visitation rules, sanitation of the prisons and any official prison

inspections.15

The Commissioner of Prisons exercises administrative control over

the prison system.16

A staff of prison officers as defined by the PO, managed by a

prison Superintendant,17

runs day-to-day prison administration.18

Importantly, the PO itself only requires “at least one female officer” in every

prison in which female prisoners are detained,19

statutorily creating a situation in

which women‟s wards may wind up understaffed by women officers. In fact, in

many prisons,

All prisons with a women‟s ward require a Matron whose duty it is to constantly

supervise the female prisoners.20

Visitors and Inspections

11 (No. 16 of 1877) 12 PO § 2 13 PO § 5 14 PO § 3, 4 15 PO § 94 16 PO § 6 17 PO § 16 – 17 18 PO § 7 – 11 19 PO § 7(3) 20 PO § 32

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The Minister of Prisons has the power to appoint, but is not statutorily required to

appoint, a Board of Prison Visitors (BoP Visitors) whose duties include oversight

and investigation into the prison systems.21

BoP Visitors are statutorily entitled to

visit the prison at any time, to have free access to any part of the prison, and to

inspect the building, diet and living conditions of any prisoners during their visit to

the prison facility.22

Any jailor or subordinate officer who obstructs the entry of

BoP Visitors can be liable for an offence under the PO per § 40(2).23

In practice

however, Civilian prisoners are also allowed, subject to the regulations of the

Minister. Prisoners are allowed to speak with their family, friends and legal

advisors unless otherwise prohibited by the Minister‟s rules.24

Jailors may demand

the name and address of any civilian prisoners and may demand to search the

visitor if there are reasonable grounds to do so. If the civilian visitor is a female, a

female officer must perform the search. Failure to submit to the search provides

grounds for the prison officer to deny the visitor entry and any contraband can be

seized on the spot.25

This ability to demand a search of any visitors and subsequently deny those

refusing to submit to said search gives jailors a chance to significantly block

important visits by a prisoner‟s family or legal advisors.

Additionally, in practice the prison has restrictive rules as to the time and manner

of civilian visits – it is actually very difficult for anyone but the prisoner‟s family

to make direct contact.

The lawyer and friends of the prisoner are thus entirely reliant on a prisoner‟s

family to help in the legal process. A person with no family contacts is thus at a

severe loss and has significant difficulties in navigating the justice system while

incarcerated.

Please refer to case Nos. 02, 10, 11, 12.

Living Conditions

21 PO §§ 35 – 36 22 PO § 37 23 A complaint by the BoP Visitor is filed per the requirements of PO § 41 24 PO § 71 25 PO §§ 33, 72

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Upon admission and at any time thereafter, a prisoner is subject to being searched

by the prison officers. If the prisoner is female, the search must be performed by a

female officer. 26

At such time, a prisoner‟s name, age, fingerprints and physical

description can be taken down, and any prisoner refusing to answer or who

knowingly gives false information will be liable for an offence against prison

discipline.27

Prisoners are discharged according to the rules set forth by the

Minister.28

All prisoners are required to perform labor duties, whether manual or otherwise, as

assigned to them by the prison officers in accordance with the Minister‟s rules.

However, civil prisoners may be able to provide skilled labor instead of manual

labor, and both civil prisoners and pre-trial detainees shall only have to perform

labor reasonably necessary for keeping cleanly the prison conditions.29

A medical

officer is responsible for determining the ability of prisoners to work.30

As soon as convenient after admission, and before being moved to another prison,

every criminal prisoner shall be examined by a medical officer in order to state the

prisoner‟s health upon entering the facility.31

Medical officers are charged with

monitoring the health of prisons and assigning medical care and day-to-day

treatment accordingly.32

The Minister has broad discretion in setting the rules as to

how a medical officer conducts his job, including how often he visits prisoners and

reports on provisions and cleanliness.33

Whenever a prisoner is sick or desires to see the medical officer, the officer

attending to them reports the incident to a jailor,34

who “without delay” then calls

to the attention of the medical officer the incident.35

All prisons are required to

have an infirmary for the reception of sick prisoners,36

but infirmed prisoners can

also be removed to any public hospital controlled by the government.37

Please refer to case Nos. 01, 03.

26 PO § 42, 50 27 PO § 44 28 See PO § 47 29 PO § 65 30 PO § 64 31 PO § 43, 46 32 PO §§ 19 – 20 33 PO § 18 34 PO § 28 35 PO § 66 36 PO § 68 37 PO § 69

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Prisoners additionally are required to be provided a proper means of washing both

themselves and their clothes during which time men and women are to be kept

separate.38

Please refer to case No. 01.

Disciplinary Rules for Prisoners

For all disciplinary actions against prisoners, male and female prisoners are to be

separated.39

Throughout the discipline, female prisoners are to be attended by

female officers.40

The PO sets forth a series of statutory offences, making illegal certain prisoner

activities.41

Prisoners are prohibited from sneaking in illicit materials, including

drugs, tobacco and liquor, and are subject to a fine of 50 rupees or additional

imprisonment of three months if found guilty of such an action.42

In practice

however many prison officers turn a blind eye to such activity and prisons are full

of drug dealers who manage to sneak in illicit materials for distribution inside the

prison walls.

Prisoners can also be guilty of a number of infractions under PO § 78, including

assaults on other prisoners and using abusive or insulting language. Many times,

prisoners assault one another physically or sexually and engage in the use of

abusive behavior without reasons. Some prison officers defer in using violence by

established prisoners, towards newer prisoners and the situation created is one of

grave danger to the prisoners.

Please refer to case No. 05.

38 Prison Ordinance- (PO) § 70 39 PO § 48 40 PO § 53 41 The statutory rules however are not inclusive and the Minister can promulgate additional regulation under PO § 94. 42 PO § 73

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At no time is physical or mechanical restraint allowed as a means of punishing

prisoners.43

Mechanical restraint is however acceptable in order to prevent injury to

the prisoner and others, damage to property or in cases of insubordination or

mutiny.44

Legal Means of Redress

Prison officers can be held liable for any illegal actions taken against the prisoners.

Fundamental human rights violations are handled per the requirements of § 126 of

the Constitution, requiring a filing by the petitioner directly to the Supreme Court

of Sri Lanka. Both the government and the prison official can be held liable for

monetary damages that may result.

Please refer to case No. 15

Considering the Prisons Ordinance and the Standard Minimum Rules for the

Treatment of Prisoners adopted by the first U N Congress, Prison Officers are

bound not only to perform such duties for the purpose of preserving discipline and

enforcing cleanliness, order and conformity to the rules of the prison, but also to

treat the prisoners with kindness and humanity. (SL LR 40 Vol 1 of 2005)

.

Prison officers can also be held liable on a number of statutory violations. The PO

§ 14 prohibits prison officers from selling or benefiting from the sale of any

articles to prisoners whether they are illicit or not. The PO § 73 provision against

bringing in any illicit materials into the prison applies equally to the prison officers

and carries a fine of fifty rupees or imprisonment up to three months. In practice,

however, prison officers are often complicit in the illegal procurement and sale of

drugs and liquor to prisoners. Drug dealers are known to approach the prison walls

and throw over the wall packets of drugs which the prison officers can collect and

sell or turn the other way while prisoners engage in narcotics trafficking.

Please refer to case Nos. 13, 14.

Under Prison Ordinance § 78, prisoners can be guilty of an infraction and

subjected to further punishment for insolence towards prison officers, making false 43 PO § 88 44 PO § 90

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complaints against prison officers and referring false charges against a prison

officer. The crime of making false charges or insubordination against prison

officers further discourages prisoners from speaking out against prison officers

who do in fact abuse the system. Prison officers are known to physically and

verbally abuse prisoners but then shut down their complaints through threat of

further punishment. The prison administration is far more likely to take the word of

a prison officer than a prisoner, allowing for an easy circumvention of the means of

legal redress for prisoners.

Please refer to case No. 06.

Jailors or subordinate prison officers can be punished either administratively at the

Superintendent‟s discretion45

or by prosecution in a magistrate court with a

maximum punishment of a two hundred-rupee fine or imprisonment of not more

than three months.46

This maximum punishment at a low level the legal redress for

potentially grave abuses of prisoner‟s rights.

Any actions against prison officers or the government, such as actions for assault

or negligence, must be brought within six months of the incident or else will be

time barred.47

However, in practice, it is extremely difficult for a prisoner to have

proper access to the necessary means of legal redress to file complaints while they

serve their terms –

International Law On the Rights of Prisoners

The General Assembly of the United Nations has put forward a number of

resolutions regarding the treatment of prisoners and detainees. Both the Standard

Minimum Rules for the Treatment of Prisoners (Std. Min. Rules)48

and the Body of

Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment (Principles of Protection)49

seek to set out a body of principles by

which all member state prison systems should abide. The two conventions discuss

and set forth a series of minimum provisions that are to be incorporated into the

statutes of member nations.

45 PO § 87(1) 46 PO § 87(2) 47 PO § 103 48 G.A. Res. 663c (XXIV) (July 31, 1957) and 2076 (LXII) (May 13, 1977) 49 G.A. Res. 43/173 (Dec. 9, 1988)

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The Basic Principles for the Treatment of Prisoners (Principles of Treatment),50

on

the other hand, is a largely aspirational code of conduct to help direct member

country‟s prison policy and to serve as a reminder that prisoners should be treated

with the same fundamental human dignity as any other member of society.

The United Nations Standard Minimum Rules for Non-custodial Measures (The

Tokyo Rules)51

is a hybrid between aspirational and prescriptive in nature and

seeks to reform criminal systems with a directed set of guidelines for moving away

from purely detention focused measures as punishment for wrong-doing.

Failure to Comply with International Standards

Both on paper and in practice, the Sri Lankan prison system fails to live up to the

minimum standards set forth by the various United Nations Conventions regarding

the rights of prisoners.

The PO sets forth some very basic provisions regarding the minimum living

conditions for prisoners but leaves much of the day-to-day regulation of prison life

to the Superintendent.52

As a result, a system of abuse and neglect can flourish, as

there are not the necessary statutory or constitutional protections for prisoner

rights. In contrast, the Std. Min. Rules creates a very specific set of minimum

requirements for living accommodations,53

personal hygiene,54

clothing/bedding55

and food56

for prisoners. In practice many of these minimum standards are

violated.

Please refer to case No. 13.

One major violation of both statutory and international law is the practice of

mixing convicted prisoners with non-convicted pre-trial detainees. PO § 48(c)

requires convicted prisoners to be kept and treated separately from pre-trial

detainees, as does the Std. Min. Rules clause 85 and the Principles of Detention

principle 8. In practice however, many pre-trial detainees are mixed in with the

50 G.A. Res. 45/111 (Dec. 14, 1990) 51 G.A. Res. 45/110 (Dec. 14, 1990) 52 See PO § 94 53 Std. Min. Rules Cl. 9 – 14 54 Std. Min. Rules Cl. 15 – 16 55 Std. Min. Rules Cl. 17 – 19 56 Std. Min. Rules Cl. 20

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convicted prisoner population and the prison officers do very little to actually

distinguish between the two in regards to their treatment while incarcerated.

Please refer to case No. 09.

These were the statistics of prisoners in a women‟s ward in one of the Colombo

prisons on 1st September 2010,

Convicted – 146

Suspects – 344

Sentence of Death Penalty – 04

Appeal – 31

LTTE – Convicted- 02

Suspects- 03

Total – 530

Children – Males – 13: Female -16

Both the Std. Min. Rules clause 31 and the Principles of Protection, principle 6

prohibit the use of cruel, inhuman or degrading punishment of prisoners. The PO

has restrictions on the types of punishment available against prisoners, including

restrictions on restraint and corporal punishment, but in practice prison officers are

able to get away with degrading punishment without reasons. Prison officers are

known to use foul and abusive language against the prisoners and also to force the

prisoners to behave in certain degrading ways under threat of physical torture.

Please refer to case No. 07.

Additionally the written law on paper in Sri Lanka fails to function properly in real

life when it comes to the provision of both legal aid and health care. The Std. Min.

Rules calls for the prisoner to have access to free legal aid where available and to

receive private visits from his legal advisers, family and friends as necessary in the

administration of justice.57

The Principles of Protection similarly require any

detained or imprisoned person adequate access to and time to communicate with

legal counsel without delay or censorship. This right should not be abrogated save

for exceptional circumstances.58

PO §§ 71 and 72 provide for visits by legal

advisors to prisoners but do not cover anywhere near the protections required by

international law – visits are controlled by Magistrate regulation and visitors can 57 Std. Min. Rules Cl. 92 – 93 58 Principles of Protection, Principle 18

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easily be turned away at the door, greatly restricting prisoner access to legal

counsel.

Please refer to case No. 02.

Access to proper health care similarly is protected by international conventions.

Principles of Protection, principle 24 requires a proper medical examination upon

admission of a prisoner and subsequent treatment, as necessary, to be provided free

of charge. The Std. Min. Rules goes even further, requiring not only adequate

medical treatment for prisoners but also describes the specific medical officer

ability to inspect and advice as to the health consequences of food service,

cleanliness of the facility and suitability of prisoner clothing.59

Additionally,

women prisoners are entitled to pre- and post-natal considerations under Std. Min.

Rules clause 23. The PO of Sri Lanka fails to properly incorporate these ideals,

leaving instead the access to medical care decisions and requirements in the hands

of the prison officers themselves. As a result, prisoners often do not receive the

type of treatment required by international convention.

Please refer to case Nos. 01, 02.

The Principles of Protection, principle 27 helps to address these issues by barring

the introduction of evidence procured as a result of non-compliance with

international conventions. No such rule currently exists in Sri Lanka. Also, the

Principles of Protection outline a series of steps to help assure compliance with the

standards for punishing prisoners by demanding a clear statutory code for

applicable offences, the ability of prisoners to complain about abuse in prison and

the ability of a prisoner to properly bring their complaint as a cause of action.60

Sri

Lanka lacks a functional prisoner complaint system and many prisoner abuses go

unreported or unpunished. The added time bar on claims against prison officers or

the state is of a mere six months per PO § 103, combined with the hardships of

filing a complaint and the difficulties in accessing legal counsel from detention,

leads to a complete lack of compliance with international conventions on a

prisoner‟s ability to seek legal redress.

Additionally, Sri Lanka has not taken adequate steps to comply with the Tokyo

Rules. The Tokyo Rules call for the avoidance of pre-trial detention and encourage

alternatives to imprisonment and detention for accused persons. Volunteers and 59 Min. Std. Rules cl. 22 – 26 60 Principles of Protection, principles 29 – 32

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community participants are strongly encouraged to help facilitate a transition for

imprisonment to non-custodial measures of punishment or supervision to assist in

custom-tailoring the treatment of accused individuals. Pre-trial detention however

remains a firmly implanted facet of the Sri Lankan criminal justice process, and in

2008 over 7,000 women were held as pre-trial detainees.61

Also in 2008, 1,001

prisoners participated in a work release program, 608 in a home leave program and

356 on a license scheme.62

Of these released persons, however, only 6 women were

granted home leave63

and only 2 were granted a license leave.64

These figures show

a very low usage of non-custodial measures especially in regards to female

prisoners.

New Developments

Currently the United Nations is working on finalizing the Draft Standard Minimum

Rules for the Treatment of Female Prisoners and Non-Custodial Measures for

Women Offenders (Std. Min. Female Rules).65

The Std. Min. Female Rules seeks

to expand upon the Std. Min. Rules by calling sufficient attention to the specific

needs of female prisoners. The Std. Min. Female Rules do not in any way replace

prior conventions but instead expand upon their principles in order to create a

greater network of protection for women prisoners the world over. The rules cover

protections against violence against women in prison, greater access and protection

for the children of women prisoners, greater access to gender specific health care

and gender-considerate rules for searches and disciplinary measures. To date, the

Std. Min. Female Rules are still in draft form.

Map of Sri Lanka showing locations of prison institutions.

Other than prisons reserved only for male prisoners (such as Bogambara, Mahara,

New Magazine, Kegalle, & Boossa) all other prisons have separate Women's

Wards for female detainees and prisoners. A remand prison for women is opened

recently in Vavuniya.

61 Prison Statistics of Sri Lanka, Statistics Division Prison Headquarters, Vol. 28, Table 4.20 at p. 42 (2009), hereinafter 2009 Prison Statistics Report 62 2009 Prison Statistics Report, Table 7.1 at p. 60 63 2009 Prison Statistics Report, Table 7.3 at p. 61 64 2009 Prison Statistics Report, Table 7.4 at p. 61 65 Available at http://www.penalreform.org/publications/draft-standard-minimum-rules-treatment-female-prisoners

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Chapter two

Cases cited as example.

Reported Cases

Case No.01

Ms. Sumithra De Silva

Sumithra De Silva is a 40 year‟s old unmarried woman. She resides at No 33,

Chinamini Houses, Welimathugoda, Balapitiya.

Ahungalla police arrested Sumithra, claiming that they had a proper warrant to do

so. The policemen assaulted Sumithra in her head and legs during the arrest. On 10

October 2010, she was remanded at the Balapitiya remand prison. The police,

using fabricated charges, filed a case (# 72316) against Sumithra.

Sumithra relates:-There were twelve female pre-trial detainees in the prison but the

space was not enough to accommodate all of them. Overcrowding is the big

problem in Balapitiya remand prison. For all twelve women detainees, there was

only one toilet and a tap for bathing. Because of these awful conditions, I was not

able to bath for the entire period of stay in the prison. The other pre trial detainees

complained to the officers about the poor condition of the food supplied. I was

lucky because, my family provided better food for me.

The day Sumithra was brought to the prison, one of the inmates had her small child

in it. When a small insect went into the woman‟s ear, she yelled and demanded the

prison staffs to take her to a hospital for medical treatment. At first, they refused to

take her to the hospital claiming that there were not enough prison officers to

assist. After some time, they took her to the hospital.

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Case No.02

Ms. Madushika Perera

Madu, a resident of Kaduwela, is 20 years old, married with a three years old baby

girl. Now her baby is under the care of her mother in law. Her father is a drunkard

since Madu's childhood and the mother is a heart patient.

Madu states, 'One day I found my brother in law‟s clothes left in a basin for

washing. They looked brownish and so I asked him as to what was the reason for

the colour change. He replied that he had a fight with relatives.

This quarrel had taken place on 24 January 2010. My father had stabbed my

brother in law. In return, he had opened a knife and pierced my father. My father

died on the spot. We came to know about this incident on 26 January.

After the burial of my father, the police arrested my brother in law, brother and one

relative regarding the alleged murder. The police informed us to appear next day at

the police station.

Next day when we went to the police, a policeman assaulted me using a cricket

pole and told me to plead guilty. They took my signature to a written statement by

force. They did not either read or explain it to me. After that, they produced me

before the Magistrate Court. The Magistrate remanded me on 28 January although

I pleaded innocent.

A woman lawyer appeared on behalf of me. However, I did not know the details of

the lawsuit. I had no way to contact the lawyer. She did not come to the prison to

interview me. According to the ethics of lawyers, they have to do their best to the

clients.

The charge against me was attempted murder. This was my first offence and I had

never committed a crime earlier. I am detained in the Welikada women‟s ward as a

suspect for the last eight months. My remand number is 92.

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Case No.03

Ms. Sudarshani Priyanka

Sudarshani Priyanka is a 31 years old mother with one child. She resides in

Baddegama. On 4 June 2010 at 8 p.m., Baddegama police arrested her on

fabricated charges and brutally assaulted her. Because of the police beating,

Sudarshani fainted. She was sent to remand prison with her two years and eight

month old daughter.

On her second day in prison, a female prison officer ordered Sudarshani to work,

although she had a child with her. She was forced to make flowerbeds, remove

weeds and clean drains and toilets.

She relates:- 'There was a female officer, who forces every pre-trial detainee to

work. Some of the female officers bring dirty clothes from their homes and order

the pre-trial detainees to wash. The officers keep the drinking water near bathing

water, and the detainees have to drink the water, which is tainted by bathing water'.

Because of her child, Sudarshani was provided with a room that had enough space

to sleep. The other detainees, however, had to sleep in very overcrowded places.

She continues:- 'A 16 year-old girl who was in the prison, was sexually abused.

Once, she complained of stomach ache, the prison officers hit her and said that she

was pretending. However, after an examination, doctor found a small piece of glass

inside of her stomach. On an another occasion, when a female prisoner fell down

inside the toilet and got her head injured, only after two hours of bleeding, she was

provided with medicine and treatment'.

Sudarshani stayed for 10 days in the women‟s ward at Galle prison.

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Case No.04

Ms. Nalani Kahawala

Nalani is a 58 years old mother of five children. She is from the Southern part of

Sri Lanka. In this incident which happened on 13.04.2010 at around 8.30p.m., in

the night, several criminals had entered her house forcibly and robbed her

belongings including jewelries, four mobile phones, and a camera.

These criminals assaulted her and her loved ones and ran away. She threw acid on

to them in self-defense. She had complained of this incident to the police. Later she

was remanded because of throwing acid. She was released on bail on 19.05.2010.

She told: - 'When I was taken into the prison, I was wearing a white saree. A

female prison officer asked me as to whether I wanted to be a madam in white

saree and forced me to change it saying that it won't suit a prisoner. Prison

conditions were unbearable and awesome. There were more than 40 including the

convicted, pre trial detainees and infants. For all of them, there were only three

toilets. Some female prison officers had the habit of assaulting the prisoners. They

also used the inmates to remove lice from their heads and comb and massage their

hair.

Sawing machines donated by welfare societies were used to saw dresses of prison

officers although the main purpose of the donation was to develop sawing skills

among female detainees. Visitors used to bring gifts like milk packets and soap.

Some of the prison officials take them and give it to their favorites. Female officers

force pregnant women and mothers of infants also to work'.

On one night, she felt someone touching Nalani‟s leg while sleeping. She switched

on the light and caught the woman who did it. Nalini complained of this incident to

the female prison officer, but she blamed her instead of punishing the culprit and

insulted her saying 'are you going to be a baby?' Nalini had told this to her family

members and they complained to the prison authorities. Because of this, the

authorities reprimanded the said female prison officer.

She continues: - 'There were a few wicked female officers in the women‟s ward.

The others were good. If the corrupted ones were transferred, then it would be very

beneficial to the entire prison. I am forwarding this testimony, in anticipation of

improving the prisons and so that in future prisoners will be treated as human

beings'.

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Case No.05

Ms. U. A. Somawathi

Uva Adikarige Somawathi is a resident of 455/35/33, Fisheries office land,

Modara, Moratuwa. On 28.02.2003, she was arrested by police attached to the

Crime Division, Moratuwa. She was arrested for possessing 1100 mgs and selling

of 100 mgs heroine on the same day. The Magistrate ordered to detain her in

remand custody. The number of the case is 51443.

Although, the court ordered to submit the government analyst report on

27.06.2003, it was received only on 30.11.2004, i.e. after 20 court hearings.

Two sealed envelops marked pa I and pa ll were sent for analysis by the

Magistrate‟s Court, Moratuwa, with a letter dated 20.03.2003.

According to the analysis made by Ms. K.P. Chandrani, Assistant Govt. Analyst

and Mr. E.G. Somapala Government Analyst, it was revealed that on verification,

the contents in the envelop marked pa l contained a paper packet with a brown

coloured powder which weighed 25 milligrams (0.025 grams)

The other envelope marked pa ll contained ten paper packets, each containing

brown coloured powder and the combined weight of the brown coloured powder

was 228 mgs.(0.228)

Heroine (Diactyl Morphine) was found in brown colour in both envelops, pa l and

pa ll.

On 27.12.2004, the court requested the Attorney General‟s instructions. On

20.02.2006, the detainee Somawathi made an appeal through the prison. She was

in the Welikada prison and her number was 333. On 25.09.2008, the court ordered

to make a reminder to the Attorney General. Again, on 07.09.2009 the court

ordered to make another reminder to the Attorney General, because it had taken

five years for the Attorney General to submit instructions. On 19.11.2009, it was

pointed to the court that Somawathi is detained in remand prison for the past seven

years.

Attorney at Law, Mr. Janaka Amerasinghe appeared on behalf of Somawathi. He

made four appearances i.e. on 16.11.2010, 30.11.2010, 17.12.2010 and 24.12.2010.

24

On 22.01.2011, Somawathi herself wrote to the Attorney General with a

supporting affidavit. Later, on 05.02.2011 Somawathi appealed to the Chief

Justice.

On 22.02.2011, the Supreme Court heard the case and ordered the Superintendent

of Prisons, Prison Headquarters, Welikada to release Somawathi and she was

released on the same day.

Hence, on the same day, 22.02.2011, Vijith K. Mallalgoda, Deputy Solicitor

General, on behalf of the Attorney General with the signature of State Councilor

Shaminda Wickrema submitted instructions to the Director of Police Drugs Unit

with copies to Magistrate, Moratuwa, Director of Crimes, Police Headquarters and

the OIC of the Moratuwa police. According to the Attorney General's instructions,

it was ordered to the Magistrate Court to continue hearing of the case.

On 24.02.2011 and 08.03.2011 the Moratuwa Magistrate court heard the case.

When the case was heard on 08.03.2011 a lawyer Benshi M. Mendis appeared for

Somawathi.

When the case was heard again in the Magistrate court, Moratuwa on 14.03.2011

the Magistrate released again, an already released suspect, Somawathi saying that

the Supreme Court informed through a letter that Somawathi was released by the

Supreme Court on 22.02.2011.

Somawathi suspect number 333 was in remand prison for nine years and was

released by Supreme Court on 22.02.2011.

She said that one day inmates played cards to win soap in her square. She was the

oldest member in the square. They began to quarrel with each other. Seeing this,

the Head of the Women's Ward came, and tore the packet of cards and threw them

away. Hearing the noice, Kusum madam also came there. Somawathi guessed that

Kusum madam was a prison guard. The head of the ward insisted that the quarrel

began in Somawathi‟s square. So, Kusum madam, without inquiring as to what had

really happened, removed her belt and beat Somawathi badly. Because of the

severe beating, the colour of her body turned into blue. She had to take 'pain killer'

medicines. She complained to the doctor in charge of the prison hospital about the

assault. But, the Head Madam Kumari, told her not to proceed with the case.

According to Somawathi there was a suspect named Soma, who was detained in

prison for 15 years. She died near the prison gate. She was ill for long time while

25

in detention, but she was not provided a room in the female section of the hospital.

One day, when she was taken to be admitted to a hospital, she died at the gate

while the gate pass was being written. There are few doctors in the prison, who do

not permit to admit even for serious illness. The guards also blame these doctors.

They practice maximum for three hours per day in the prison. They receive all the

privileges, but never respect their professional ethics.

26

Case No; - 06

Ms. Indrani Malilika

Her name is Indrani Mallika, but in her village of Idegasthuduwa she is known as

“nona”. She is a 38 years old mother with two children.

Welipanna policemen wearing civilian clothes arrested her on October 11, 2010,

around 5.30pm.

Indrani was produced before the Matugama Magistrate on the next day at around

12 noon. The Magistrate ordered to detain her in remand for 11 days, but ordered

the prison authorities to provide any necessary medical treatments, as she was

tortured by the Welipanna police.

Indrani was detained in ward number 01 of the Kalutara prison.

She says:-'There was not enough space to sleep properly; and so it was impossible

to turn to this side or that side when sleeping. The prison officers forced pre-trial

detainees to work, mostly cleaning the toilets. Luckily, the police did not force me

to work because my hand was injured. Other than lack of sleeping space, the other

facilities in the prison were good. In the prison, enough water was provided to

bathe and the prison staff never assault the prisoners who were not in their proper

places in queues to get food'.

On October 23, 2010, Indrani was released on bail.

27

Case No; - 07

Ms. Anat Ansalita

'Gami Deriya', an organization, filed a lawsuit against Anat Ansalita, a 53 years old

resident of Welimada who worked in the organization. She appeared before court

for three times. Every time the case was postponed. At last, at the third sitting, the

court ordered to remand her. On 11.09.2010, she was taken to Badulla remand

prison.

She tells: - 'At the prison, the female jail-guards blamed me. I was given food to

eat and a mat to sleep. Other than these, no other facilities were there. I was left

with a mentally retarded girl. As she stamped on me, I was injured.'

She received medical treatment but she was denied to use the medicine brought

from home. She was detained in remand prison for two months and nine days.

28

Case No; - 08

Ms. Nilmini Pushpakumari

Nilmini, a 23 years old mother of one child was in remand prison. Her one year

and eight months old baby girl also was in the prison with her. They were detained

in the prison for more than a year. The child was remanded with pre-trial detainees,

convicted prisoners and suspects of terrorism. She said that it was not possible to

keep her child away from drug addicts who were the inmates in the prison.

Nilmini is now out on bail. She resides in Gampaha and works in a garment factory

to look after her child who was only four months old when they were detained in

the Women‟s Ward at Welikada.

29

Case No; - 9

Ms. R. Mangalika

R. Mangalika is a 30 years old mother with one child. Her husband who was

working in a hardware store abandoned her while she was detained in remand

prison. Her only child, a 5 year-old girl is currently under the care of her mother.

Mangalika gave a loan of Rs. 50, 000/= to a friend. One day this friend sent a

message to Mangalika saying that she was ready to repay her debt and invited

Mangalika to her home. When Mangalika arrived at her friend‟s house, the

narcotic officers were waiting there for her. The friend complained that the heroin

found in her house belonged to Mangalika.

The narcotic officers fabricated charges against Mangalika for the possession of

160 gms. Heroine. The narcotics police fabricated another charge against her

brother for the possession of 70 gms. Heroin and charged her friend for possession

of only 36 gms. Heroin. Later, both her brother and her friend were released.

Mangalika was detained as a remandee at the Women‟s Ward in Welikada prison

for more than 51 months. Her case is pending before the Maligakanda Magistrate

Court. She wants to plead her non-involvement, but there is nobody to assist her or

to hire a lawyer for her.

30

Case No; - 10

Ms. Sadashivam Krishnameni

Sadashivam Krishnameni came to Colombo to earn some money and help to ease

her parents‟ economic burden. She found a job as a domestic servant in a house at

Seeduwa. The owner of the house works in Sri Lanka Airways and his wife works

in the Sri Lanka Air Force.

Krishnameni had worked only for a week when Seeduwa police came to check her

national identity card. The policemen told her to report to the police station to

record a confession. The owners of the house also accompanied her to the police

station. Instead of recording a confession, the police detained her in the police

station for two months. The owner and his wife were the complainants to the

police. As she received several calls to her mobile phone every day, they suspected

that Krishnameni was working for the LTTE

Krishameni was handcuffed and made to sit on a chair for the whole day – the

police didn‟t provide even a mat. One day she decided to commit suicide and

escaped from the police custody when her handcuffs were removed, but she was

re-arrested and assaulted by the police. They slapped her and beat her severely.

Two days after the incident, Krishameni was brought to the Boosa Army Camp

where they tied her thumbs and hanged her to a beam and assaulted. They verbally

threatened that they would strip her and sexually abuse. At this point, she had to

obey the police request. Krishameni unwillingly accepted false statement that she

was a member of the LTTE because of fear of being stripped and abused. Her

parents work in a tea estate as labourers in Badulla. She was purposely labeled as

KOTTIYA (TIGER). She was detained in the Boosa army camp for two years.

Now Sadashivam Krishnameni, or Suspect Number 2248, is detained in the

women‟s ward at the Welikada prison. She was remanded on October 2, 2010. Her

case, bearing number 4483 is pending before the (# 8) Magistrate Court at

Hulfsdorph. There is nobody to help her or assist her to hire a lawyer.

31

Case No; - 11

Ms. Violet De Silva

Violet De Silva is a 58 years old widow who is held in the Women‟s Ward at

Welikada prison for more than nine months. As her husband died 20 years ago she

became a widow.

Violet sold vegetables at the Balake Kade junction. One day she set out to find a

room on hire. When she was crossing the road, her vegetable cart collided with a

trishaw. In that trishaw, three policemen were in civilian clothes.

One policeman got out of the trishaw, slapped Violet and yelled at her, “where

were you going old woman!” Violet responded only saying that she had a son who

was about the same age of the officer. All three policemen were drunk and abused

her in filth.

The officers called for a police jeep and took Violet to the Angulana checkpoint

where she was searched, inside the jeep without any cover and in an ugly manner.

Then Violet was brought to Mount Lavinia police station. On the way, one of the

policemen bought a tooth powder packet from a shop. At the police station, the

policemen marked this tooth powder packet as 18 mgs. of heroin and took her

thumb mark on to it.

Violet wants to plead innocent, but she has no family member to help her or no-

money to arrange a lawyer to help her.

32

Case No;-12

Ms.Anusha Fernando

Anusha Fernando, suspect number 799, a pre trial detainee who was at the

women‟s ward of Welikada prison, was bailed out on 17. 06. 2011.

She relates:-'The prison conditions are very bad. The water provided is not enough

to bath, the food not edible. The toilets are dirt and unclean. Dangerous drugs like

heroine and ganja are freely available inside the prison. The detainees use to

receive the supply over the high walls. When detainees throw money over the

walls the supply is thrown back over the wall. Sometimes they make it into a ball

and send. On one occasion, Anusha was assaulted by some senior detainees as

planned by an outsider to take revenge on her for a personal dispute.

33

Case No;-13

Ms. N.D. Anulawathi

N.D. Anulawathi was detained in the women's ward at Welikade Prison for two

years and eight months.

She was remanded on fabricated charges of possessing 600mgs. Heroin by the

Piliyandale Police. According to Government analyst report the little amount of

heroin found cannot be measured.

She says: - 'There are good and bad things in the prison. The main thing is drugs.

All varieties of drug such as heroin, ganjas etc. are freely available in prison.

Inmates receive the supply over the high walls. Although security guards are on

duty the dealing cannot be stopped.

One day when we were taken to courts, my finger got injured due to the

carelessness of a prison officer. I got medicine from Colombo National Hospital,

but did not make complaint against the officer'.

According to Government Analyst Report, which was requested by Court on 15

December 2008, the amount she possessed was small and immeasurable. As she

could not find legal assistance she accepted guilty and paid a fine of Rs. 5,000/= to

get her released on 29 October 2010 after delaying by Court for 54 hearings

anticipating the Government Analyst Report.. Pilyandala Police, on her arrest

fabricated charge as she was in possession of 600mgs. Of heroin, but according to

the report from the Government Analyst Department, the amount was very small to

measure. She was arrested on 16 September 2008, but the Government Analyst

Report was received only on 18 August 2010.

34

Case No; - 14

Ms. Nandani Kumari

G.H.G. Nandani Kumary, a 45 years old mother of 3 children resides at

Kahathoduwe Gedara, Bogambara, Matale.

On 27 June 2008, at around 2.00 – 2.30 p.m. her neighbourer R.M. Pathma

Kumary scolded and assaulted both her and her son. Then the so called, Pathma

Kumary, wife of the O.I.C. of Matale Prison, Mr. Ekanayake, got herself admitted

to Raththota Hospital with a false allegation that Nandani injured her by knife.

This is the story as told by Nandani Kumary in her complaint.

Wife of the O.I.C. of Matale Prison assaulted her and her son and purposely got

admitted to hospital. After the incident, on the same day, around 3.00 – 3.30 p.m.

two police women with another two police man came on a private van to her home

and arrested her. They took her in a van and the husband S.M. Abeyrathna also

went in the same van to Raththota Police Station.

According to the story told by her, at the Raththota Police Station, first, they asked

her to sit on a chair and then they took her to a room in the upstairs where a

confession was taken by forcing and threatening her using abusive language and

hard words.

After the completion of writing the confession according to their wish, they told

her to sign it. At the beginning, she refused to sign and requested them to let her

read before signing. Her request was denied and the police officer who took the

confession had said that, 'Whom do you think to read, you have a big mouth, I am

getting late to go home, here is it, you sign it'; by force he took her signature onto

it.

That night, she had to be in the station with much discomfort because she was

having menstruation at that time. She was told to sleep on a bench with another old

woman. Due to the menstruation agony and the uneasy way of lying on the bench,

she got aches and pain.

Next day morning, when she asked for painkiller medicine, it was not offered and

instead she was blamed and abused. Although she asked for sanitary pads, even

woman police officers denied it.

35

At noon, she was produced in the Magistrate Court, Matale on false charges that

she injured Padma Kumary. She had to hire an Attorney at Law for a big payment

to appear for her. At the court, police refused her release on bail. Therefore, the

Judge remanded her until the 30th.

Then she was taken to Matale Prison where the husband of Padma Kumay is the

O.I.C. The policeman who introduced the Attorney who appeared for Nandani,

spoke to the O.I.C. very freely and had said,' My job is over, now it's your turn'.

When the O.I.C. of the Prison asked as to who was the lawyer, the policeman had

replied, 'that one, will he look after us!'. Then the O.I.C. had replied, 'ok, ok let us

speak about it later'.

Then on the same day, she was taken to the Kandy Prison. There the woman

guards have asked her, „so you have come after beating the wife of O.I.C.; then

you stay till next day; then she will beat you'.

In the Kandy remand prison, they took her to a guard room and had asked her, '

you have come from Matale, why have you come here'. When she kept silent, they

had blamed her asking her „what do you have in your mouth, pittu?' Then she told

the incident and referred to the O.I.C. as the 'Guard Aiya or brother. They got

angry for referring to the OIC as brother and blaming her took her to another room.

When she was entering the room the two woman guards who took her there, had

pushed her and made her fall on the floor. As she fell on the floor, they told her to

get up while keeping their legs on her firmly. With difficulties, she got up and went

into the room.

In the room, there were four female guards. While she entered, they bashed her

head on the wall and assaulted her severely in an inhuman manner. They brutally

battered her saying that we have been asked to half-kill you. Due to the unbearable

assault and beating, she passed urine with blood. They gave her a piece of cloth to

clean up the mess on the floor and told her to have a bathe.

When she was taken out of the room, she was very tired and started to vomit. So,

they took her to a doctor. When the doctor was examining her, a woman guard who

had assaulted her signaled to her not to tell about the assault to the doctor. Due to

fear of being further assaulted, she did not tell the doctor about her torture. The

doctor prescribed a painkiller medicine.

36

Next day, on the 30th, they arranged to produce her before the Magistrate in

Matale. Meanwhile a guard who assaulted her earlier, warned her not to tell anyone

about the torture. Due to fear of reprisal, she had to keep silent.

On the way to the Matale Magistrate Court, she was kept for some times at the

Matale Prison where the O.I.C. Ekkanayake, had inquired „if the food or 'parripu'

(treatment /torture) was tasty? Thereafter he had threatened her that if she troubled

once more that she will be sent back home dead. Warning her in this manner he

had told the other prison guards, „we missed a good chance, we could have

detained her in prison and had some more fun.'

Her husband, at this stage, brought cloths for her. Her request to meet him was

refused, but the cloths brought by him were given to her to wear.

Later she was produced before the Magistrate court, where Attorney-at-Law,

Darshini Gunasekera appeared for her. Although she told the Lawyer about the

assault, she did not make any attempt to reveal this fact to the Judge. Nandani was

released on money bail (Rs. 1,000/-) and two surety bails. The number of the case

in the Matale Magistrate Court was B691/2008.

Nandani was very sick due to the torture she underwent in prison and in the police

station, as a result of which her husband admitted her to Matale Government

Hospital on the 30th. She was admitted to ward no. 9 and the police post in the

hospital recorded her statement about the assaults. The doctor who examined her

produced her to the Judicial Medical Officer (JMO). A scanned copy of the JMO

report is attached below for reference. She stated everything to the JMO, to the

doctor in charge of the ward and to the police at the hospital police post. The ward

doctor referred her to an Ear Nose Throat (ENT) clinic in Kandy where it was

found that her two ears were damaged and injured.

She was discharged from the hospital on 8 July 2008. When she was in the

hospital, on 4 July 2008, she appealed to the HRC in Kandy through her husband

and the reference number issued by HRC is HRC/K/S/T/89/8/111. Then on 8 July

2008, she complained also to HRC, Colombo and to the Commissioner of Prisons.

Now, her Fundamental Rights case is heard in the Supreme Court for violation of

human rights (case no. SC/FR No. 559/2009).

Below find Scanned copy of Nandani Kumari’s Judicial Medical Officer's

report:-

37

38

39

40

41

Case No; - 15

Ms.W. D Manel

W. Manel is a pre-trial detainee at the Women‟s Ward in the Welikada prison and

her number is 760. She was remanded on 14 or 15.05.2006. She is being held in

the remand prison for more than five years.

She is married with five children and her husband abandoned her while she was in

remand custody. Her 13 and 11 year old two daughters were also held in the

detention centers at Gangodavila and Kotte women‟s houses respectively. Her

elder son of 20 years old is engaged in labor work. Her 16 years old second son,

who too was brought up in a detention house after her arrest, is now employed in a

bakery. Her five years old, youngest son is looked after by her mother and mother

in law who are doing labor work. He was 09 months old when she was remanded.

She was arrested for the possession of heroin. She accepted selling heroin but

when the police arrested her, nothing was in her possession. Her husband, a drug

addict also sold heroin. Although she was arrested in an earlier offence for heroin,

she was released after paying a fine.

Her family came to see her during the first 8 months to the detention centre, but

later they gave up and never visited.

Charges against her in this case number B2585, is heard before the Hulftsdoff No.

04 Magistrate Court. She said that the Court received Government Analyst report

only after nine months and ten days. Then Court advised to seek the Attorney

General‟s instructions. The Attorney General's reference number to the case is CR

3/394/20. Until now, the Attorney General has not submitted the instructions to the

relevant Court although she has requested through the prison to speed up and

submit the instructions early. The Attorney General has failed to submit

instructions for the last five years.

42

Case No; - 16

K.R Mallika

Thalangama police arrested, a heart patient named K. R. Mallika, to take revenge

when she denied to pay a bribe of Rs. 300,000/= demanded by the police, and now

she, a heart patient, is detained in the Welikada remand prison for over three years.

She was remanded on 05.06.2008, her remandee number is 1110 and the case No.

B 2303 is being heard before the Kaduwela Magistrate Court.

The police arrested her on a charge of possessing, and selling of two packet of

heroin, which weighed 109mgs. And produced her before the court. In the

Government Analyst Report, it was confirmed that there was heroin but the amount

was not specified.

She is a 54 years old mother and a heart patient. The prison doctor who examined

her on 19.06.2008 diagnosed that there is a hole in her heart. Medical facilities are

not available to treat her at the Colombo National Hospital. It would cost Rs. 175,

000/= if she receive treatment from a paid hospital. Although, she applied to the

President‟s Fund, her request has not is not been heard yet.

Now her case is, kept aside, awaiting Attorney General‟s instructions and she too is

waiting for a long period in anticipation.

Mallika wrote to the Attorney General and the Chief Justice supported by

affidavits. However, there is no response yet.

When Legal Aid filed a bail application on behalf of her, she received a bail order

from the Awissawella High Court to bail her on Rs.25000/= of cash bail and two

surety bail each valued Rs. 500,000/= which was beyond the capacity of Mallika

and as such she is still in prison. According to the Government Analyst Report and

the Sri Lankan law, the Court should acquit her because the amount she possessed

was very small and immeasurable.

43

Case No; - 17

Ms. Jobamali Amman alias Wasantha Rani

Jobamali Amman alias Wasantha Rani is a resident of No 13, Makasthotawatta,

Nuwara Eliya. She is the first complainant in the case bearing number 315/2004,

which is heard before Gampaha High Court. Attorney General's reference number

is 2/34/2003. The indictment, which was filed on 20 August 2004, is that of rape

by an owner of one of the houses in which she worked.

The victim, Wasantha Rani, was remanded on 14.10.2010 because of failure to

appear in Court for over five years. On 05.04.2010, Court granted bail on payment

of cash of Rs.10, 000/= and two sureties (valued Rs.500, 000/= each), one of whom

should be her mother and the other should be an employer where she worked.

On 09.03.2011, the lawyer of the complainant, Ms. Harshi C. Perera, filed a

motion requesting the Court to take the case on 11.03.2011 and to consider

changing the bail conditions. However, the High Court judge said that the case

would be taken on the same day as usual i.e. on 29.03.2011 and the request for

changing the bail conditions would be considered.

On 29.03.2011, the case was postponed to 20.04.2011 to decide on changing the

bail conditions. On 20.04.2011, lawyer Janaka Amarasinghe requested to change

bail conditions, however, the Court declined the request to change the bail

conditions even on lenient grounds and remanded her further until 08.09.2011 to

record evidence from her and to release her without any conditions imposed

earlier.

Jebamala Amman alias Wasantha Rani, a suspect held for neglecting Court order,

is still detained at women‟s ward in the Welikada prison now for more than a year

and the next Court hearing is dated to 8 September 2011.

44

Chapter three

View of an Ex. Prisons Commissioner

The State of Women's Wards in Sri Lanka Prisons.

An Interview with Ex Prison Commissioner (welfare)

Interviewed By JusticeMaker Fellow, Harshi C. Perera (AAL)

1. Please introduce yourself, briefly.

I am Lionel Weerasinghe, Correctional Professional. I retired after serving 34

years in Prison Department. My retiring position was Commissioner of Prisons

(Welfare). I am a University Graduate and did my Post Graduate studies at Sri

Jayawardenapura University, in Criminology and Criminal Justice.

2. What is your opinion about the Women’s Wards in prisons and Women’s

Detention Centers?

Prison Department maintains 10 Female Detention Units all over the island.

Welikada Female Ward is the biggest where more than 500 females both

convicted and suspected are detained, except the Badulla female section, which

is located inside the male prison of Badulla. All other female wards are

maintained as a wing of the male prison but stationed separately outside the

male prison units.

When comparing with the population of prisoners in Sri Lanka, only 3% are

females. Because of this, very poor attention and priority is shown towards

female detainees. Anyone can easily criticize it as a Forgotten Group of Human

Being.

Pathetically, this minority group is under male domination. The male dominant

prison system does not give much room for the feminine behaviors and needs.

45

However, I should mention here that the female inmates of the Welikada prison

enjoy more opportunities and facilities than the inmates in other female

detention centers.

3. Can you point out some difficulties the women detainees face?

Overcrowding, severely affects the female detainees in prisons. The space

allocated for the females in Badulla, Galle and Tangalle prisons is not enough

and very limited. They have to spend the whole day and night in the limited

space with inadequate facilities.

Some mothers spend their prison sentence with their infants or children who are

under five years of age. I think it is a very difficult task for both the inmates and

the officials to accommodate them in a limited, closed environment with other

adult inmates. Maintaining family relationship and communicating with the

children is another problem for female inmates. In most of the female units, the

inmates are idling. They are not engaged in activities of skill development or

behavioral changes. In every female ward, I believe that there is a critical need

for legal assistance for pre-trial inmates who are detained inside, and social

support measures for relatives of the detainees who live outside helplessly in

their homes. Effective categorizing system has not been enforced inside the

female sections. Inmates detained for minor offences are left to mingle with the

criminal offenders, drug addicts and prostitutes. This is an inter defective and

very harmful process which exists in both male and female prison institutions.

4. There have been several irregularities and ongoing illegal activities inside

the prison. Are you familiar with these irregularities and illegal activities?

How prevalent do you think are these irregularities and illegal activities?

The Prison is a social creation and it gives the real reflection of the society. You

can cite the social behaviors in the mirror that is the prison.

In our country the authority of law has lost its supremacy. Social order has

collapsed. Everywhere we experience bribery, corruption, wastage of resources

and energy. All social institutions violate their norms and ethics but enjoy

46

discrimination. In such a social environment, you have to establish and maintain

more prisons to incarcerate certain amount of people.

These prisons are governed by the officials who live and come from the same

society, influenced by the prevailing trends of the society.

With such a social environment can you expect a well disciplined humanity,

and safe secured prison system? You can‟t.

As I have heard and learned, 'Prisons are built by stones of Laws'. But the

present situation is that these stones are gradually dismounted and the prisons

are hollowed. We have seen and heard about the worst situations of Sri Lankan

prisons through the mass media. Not only the mass media, but also the former

Minister of Prison Reforms, openly thrashed out recently on the critical

conditions of the prisons.

As a civilized society, we send criminals to prisons to protect the society from

their criminal activities. In the meantime, we want to correct these wrong doers

and reintegrate them to the society. But, the existing mechanism inside the

prisons is not efficient for the said purpose. Then what might happen is not the

good or the better, but not only the bad, but the worse.

5. Do you think that violation of human rights occur inside prisons? If so,

what is your opinion on how prevalent these violations are?

Answer to the first part of the question is, yes.

I consider that the daily functions, based on the Prisons Ordinance, are the

biggest violations of human rights of the prisoners.

Sri Lankan prison system is based on the Prison Ordinance enacted in the year

of 1884 by the British rulers, which was introduced in this country, before the

Universal Declaration on Human Rights. This ancient ordinance consists and

covers only the area of basic human needs of the detainees. (I.e. providing

shelter, food, water, cloth, sanitary conditions, health care etc.)

In addition to that the Constitutional Rights, specially the Fundamental Rights

enshrined in the Constitution, is entitling also to prisoners without any

exception.

But the actual and practical situation is entirely different.

47

Most of the humanitarian accesses of the Prison's Ordinance are not effectively

enforced by the prison authorities. And it is not so easy, for the protection of

Constitutional Fundamental Rights to reach prisoners who are detained in

prisons.

So I should mention that every day, violations occur everywhere and degrading

treatments exist in every corner. Assault and intimidation are the governing

instruments in Sri Lankan prisons. No remedial measures are stabilized.

6. Is there or was there any political influence in administrating your duties?

Prison is not an important institution for politicians. Because of this, important

politicians do not interfere in the day to day activities of the prisons.

But the bad effects of the 1978 Constitution affected the administration setup of

the Prison Department in similar manner, in the same way as the other

Departments and State Institutions.

Through the new practices, an administrative process like appointing Heads of

Departments is influenced by politics and the quality of correctional

professionalism is minimized. Political interference in transfers or promotions

of officers is also very common. In the same way, there are interferences in new

recruitments too.

7. There are lots of outside parties such as NGOs etc. that work with prisons.

By exposing the internal working system of prisons to the International

Community, do you feel that they might be able to improve their economic

positions and thus increase their ability to help in reforming the current

prison system?

Here, I would like to mention that there are not very many NGOs but only a few

who work with prisons in Sri Lanka.

The reason why I would like to comment on this is that the Sri Lankan prison

setup never prefers outsiders or organizations interfering in it, especially in

regard to Human Rights objectives.

In the prisons there are two attitudes and a category of behaviors, the hardcore

categories believes that outside interference is harmful or troublesome and they

always discourage it.

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The soft category expresses the view that organizations, which could easily be

controllable, may be allowed to work only on selected areas like offering

donations, instruments, materials, consumer commodities etc.

Meanwhile with the blessing of Sri Lanka Government, a few INGOs and

NGOs are permitted to enter in assisting the process of developing prisons and

its system.

Anyhow, I should mention here, that the system of the Sri Lankan prisons is not

updated by the State for a long time. Because of this, prisons cannot afford

developments without the engagement of the outside organizations.

If we go through prison history, we can notice that every major structural

change in the prison system or each new addition have occurred only due to an

external intervention.

For example, in 1976, Ex Prison Officers Training Centre was established by

the UNDP fund. Separation and treatment of drug addict prisoners program was

started with the intervention of the WHO. Prison Welfare Service was reopened

by the initiation of Prisoners‟ Welfare Association.

Therefore, I believe that the prison department needs self-renovation or

reformation. The relevancy of outside organizations that work in genuine

intention can contribute a lot for the reformation of current the prison system.

8. Today, prison reforms have become a popular topic of conversation. What

thoughts do you have on prison reforms? How would you go along with

reformation of prisons?

At first, I should say not only the prison but the whole society needs to be

reformed and restructured.

Secondly, the Sri Lankan Criminal Justice System needs to be reformed. Prison

is only one part of the system and without re-designing the other part; it will not

be able to produce the results we expect.

Acute overcrowding is the main cause for all problems. Because of the failure

of the criminal justice system, a huge amount of unnecessary crowd flows into

the prisons.

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From 1950 we face delays in the judicial service. Even after 60 years of

independency, we have not been able to stop or at less reduce the large

percentage of count proceeds. More than 75% of prison population consists of

pre trial detainees. Convict rate of the major offences is only 4%. The general

conviction rate is 25%; ie out of every 4 remanded prisoners, only one is a

convict. Majority of Court Convictions is on excise or narcotic drug offences. It

counts up to 60%.

The convicted majority belongs to short-term imprisonments, who are

sentenced to less than 3 months or so. 50% of the imprisoned victims are those

who couldn‟t pay the fine.

The one, who is unable to pay the fine at the Court House, will be sentenced to

serve a term in prison.

The bail procedure of the judicial system does not rend any assistance to reduce

the overcrowding. Most of the pre-trial detainees are remanded by order of

Magistrate Courts and they are considered as the bailable persons in the bail act.

I suggest that the following recommendations could be implemented when

doing prison reforms:-

*Implement the Bail Act to fulfill its basic principles.

*Implement the Prison Ordinance.

*Train the prison officials to adjust to the changed/ reformed situations.

*Reserve the post of Commissioner General of Prison only for the deserving

Correctional Professionals.

9. the prison systems in developed countries utilize a variety of approaches to

prison administration, which Sri Lanka does not employ. Do you believe that

we should employ their methods in our prisons? If so, what methods?

I firmly believe in implementing an advanced method, strategic of custodial

care and correctional system. Because, every profession has its own and

individual basic principles.

These principals are very common and with the beginning of overseas training,

which exist everywhere universally, but with limitation and conditions.

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New introductions by Magistrates make barriers on bail release. In some

occasions the wrong interpretation of law by Police and Court House add extra

burden onto the prison authorities.

So I would like to emphasize that:-

First, reform the prison system.

.

Then, prepare the prisons to accommodate the reformations.

Remove the unnecessary amount of inmates and reduce the crowd.

Categorize the prisoners who are sentenced for more than 5 years imprisonment

and locate them separately.

Remove the term-prisoners from custody by implementing community based

correctional system, Probation and Compulsory Drug-treatment etc.

Improve the conditions on pre-release and include low risks to convicted

prisoners Reduce the residential congestions; stabilize the pre release

preparations and voluntary after care scheme.

10. What can we do personally and officially to make the prisons a better

place and to improve the status of women pre-trial detainees?

For the free trial women detainees:-

1. First, we should unearth the real situation of pre trial woman prisoners; there

cause of incarceration, the main problems, the grievances and difficulties

they face.

2. When comparing with the population of male prisoners, as the number of the

pre-trial women prisoners is very small, it could be done because it

necessitates very low attention.

3. Pre-trial woman inmates are located in number of prisons and detention

centers all over the island. Only in Welikada female prison, the number

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amounts to more than 400 but in other places it ranks in between 20 to 50. In

some prisons and centers, the space for this minor group is very limited and

within this space limitation, the basic needs of them cannot be fulfilled. Prisons

are dominated by males. The administration setup is designed accordingly.

Hence, there prevail unseen inconveniences which are very small and forgotten

lot, especially in Anuradhapura, Negombo, Kandy, Welikada, Kuruvita and

Kalutara prisons. The space in Galle, Tangalle and Badulla prisons is not

enough.

Vagrancy Ordinance - implementing this ordinance creates most congestion

problems. The prison officials who work there introduce some changes. Mr.

V.N Pilla and Mr. J.P. Delgoda former Commissioners, who had the

intervention exposure, introduced the reformation aspect of Departments. From

gained experience and knowledge Mr. Delgoda introduced the reform activities

and he was been able to interpret Prison Ordinance for this purpose.

I believe that this was possible due to his forgive exposure. He had the strength

of the UN Standard Rules for Treatment of Prisoners and International

Guidelines for Prison Administration.

We accepted the guidelines of UN in 1970, but now we are in 2010 and still we

are not following these guidelines. As prison officials, we have not come to an

agreement in following these guidelines, because there is no encouragement to

follow these guidelines.

Interviewed By Justice Maker Harshi C. Perera (AAL)

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Chapter four

True Conditions in Prisons.

Every prison has tiled floored toilets, but the numbers of toilets are not enough.

The toilet pits in prisons at Welikada Prison, Colombo Remand Prison and

Magasine Prison over-flow once in every two days. This is seen in Tangale Prison

also.

There is not enough space between drinking water tanks and toilet pits. Sometimes

water in both mix together. Nine year, ex- pre-trial detainee, Somawathi mentioned

about this situation at Welikada Women‟s Ward and reported as to how the

detainees got sick due to this.

The amount of drinking water supplied in plastic bottles is not enough for their use.

Ex-pre-trial detainee, Anusha Fernando pointed that she was given only two plastic

bottles of water for drinking purpose for the whole day.

Buildings are old and damaged. There are poisonous serpents in old walls

including rats, cockroaches etc. There were many occasions in Welikada where

detainees were bitten by them.

There is no programme for renovation and in Welikada space is not enough to

erect new buildings.

According to prison statistics in 2008

Number of pre-trial detainees

Female: 7075

Male: 95170

Total; - 102245

Number Convicted

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Female; 1008

Male: 32558

Total; 33566

Youthful offenders:

Male: 36

Sentenced to death:-

Female; 03

Male; 125

Normally, one person will be locked in one cell.

No furniture provided for detainee's use. Although there is a rule to provide sports

equipments to detainees, in practice it happens very rarely. The plates, mugs and

mats are not sufficient in every prison. Clothes given for the convicted are not

sufficient. Lighting is not too bad. Inside, air smells bad because of overcrowding

and overflowing of toilets.

Even though there is a rule that a doctor should inspect all food, in practice it never

happens. Quality of the food is low. Rice is not properly cooked. Quantity of food

is not a problem. There is a variation of food items like grains, fish meat and eggs

but sometimes-rotten fish is supplied. Due to bad condition of food, there were

instances where detainees fell sick.

Breakfast is given before 7 Am., lunch provided at 12 noon and the dinner supplied

before 4 or 5 in the evening.

Water supplied is not sufficient, not enough to bathe. Any detainee cannot bath

every day. A detainee employed in manual does not have enough water to wash.

Ill-treatment, degrading, torture and violence prevail in every prison. Lack of

awareness among prison staff is the main reason for this. Prison officers violate

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rights of poor detainees and not of the wealthy prisoners. Prison staff prefer using

force instead of correctional methods.

There is no legal permission to use force. Prison officers have no sympathy on

detainees.

Male and female detainees are transported together to the courts in a same bus, and

so there are instances of abuses between detainees and abuses even by prison staff.

Female officers take detainees to work in their homes and after bail out continue it

by giving money.

Nobody complains about the abuses. Even female officers cannot take action

against perpetrators due to the influence of the underworld gangs and the influence

of their male prison staff.

Detainees are not locked up in cells; stay outside between 6 am and 5pm. They can

do exercises; they can go to classes to learn reading and writing. There are home

science classes and religious activities. They can practice any religion according to

their belief. There are entertainment programs. There is a small library in Welikada

where they can read books.

Convicted have to do work like sawing, making mats, sweeping, cleaning drains

and working in the office. These detainees who are kept in cells, taken out-side for

45 minutes in the morning and 45 minutes in the evening. They have facilities to

play games like chess, watch TV and read books. For convicted, a small wage is

paid. It is deposited in a bank account and given later when they are released.

There are literary classes. There is a Montessori for children under 5 years in

Welikada. If detainees wish to sit public exams like GCE ordinary level or

advanced level, they are allowed. They are allowed even to sit for University

exams.

A very important fact is that all these are available only in Welikada and

Bogambara prisons. But in other detention centers no facilities like these are

available. The prison welfare societies help to have these activities in Welikada

and Bogambara.

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Except on Sundays, suspects can be visited on any day, between 8 am to 4 pm. In

one visit, a maximum three persons per day will be allowed. The time is limited to

fifteen minutes.

For a convicted appellant, only one visit for a week containing of three persons.

Time limit is fifteen minutes.

For a convicted, only one visit for a month by maximum of three persons in a visit.

Time limit is half an hour.

They can write letters, with censor on writing about threats and sexual issues. All

letters will be sent under the supervision of the superintendent of prisons.

To obtain reading material, the prisoner has to make a request to the superintendent

of prisons and can get them down to the prison.

There is a rule to have a doctor in every prison. But some prisons have no doctors.

If there is no doctor in prison, a doctor from a government hospital must visit the

prison but in some prisons, this does not happen. Every suspect and every

convicted should undergo a medical test when they first enter the prison. This

happens to the convicted but medical tests are never administrated on suspects.

Every prisoner employed in works must undergo a medical test but this does not

happen. The prisoners have to be selected to do work after considering their age

and health conditions, but this never happens. Other than in Welikade, children do

not have medical facilities. Due to lack of prison staff, detainees are not produced

for medical checkups. The prison doctor should inspect the health conditions of

prisons but it never happens.

Every prison hospital should have equipments which are available in District

hospitals. Except in Welikada this is not the case. In some prison hospitals, there is

shortage or zero stock of medicine. Except in Welikada, patients are never

categorized according to their illness,. Every prison should have a nurse,

pharmacist and psychiatric. But there is a psychiatrist only in Welikada.

Staff cadre is not enough to increase the number of prisons. Categorizing of prison

officers never happens.

For new recruits, only ordinary training is given. They don‟t get psychological

training. They are recruited basing only on general qualifications. They get the

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knowledge of general laws, laws regarding prisons and positive thinking etc, and

the basic training.

When they are in service, no training will be given. Very rarely awareness on

AIDS, human rights, prevention of drugs, contaminated diseases etc. will be

provided. These trainings are given by NGOs. Prison officers attend these

workshops because they receive payments for the attendance.

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Analysis

Today, the statement that 'Prisoners are also human beings', has become a myth to

be ridiculed at.

Also a discussions on the prevalent Criminal Justice System has become a timely

necessity.

There is no necessity to pass new laws to eliminate torture cruel inhuman

degrading treatment and punishment and to revamp the corrupted system.

Although the Prison Ordinance is old, it is more than sufficient to cater for the

changes necessary. For example, article 14 of the Prison Ordinance prohibits

trading and gaining income from detainees. However according to case number 13,

N. D Anulawathi, it is obvious that, free access to almost all kinds of dangerous

drugs, including ganja, heroine etc. is quite easily available in the women‟s ward at

Welikada prison.

It is known fact that in prisons, police stations and army camps 'Civilian Torture'

continue without limits. In case No. 10, at Boossa Army Camp, Ms. Sadashivam

Krishnameni was hanged by thumbs from a beam and assaulted.

The police have a habit of engaging in the practice of fabricating charges on a

large scale. In case number 05, U. A. Somawathi, Moratuva police fabricated

charges on her for selling and possessing of 1200mgs heroine whereas the

Government Analyst report set out the amount at only 253mgs which is a huge

difference in quantity. It must be questioned how such a disparity is over looked

by courts?

Court delays have become a popular topic, and people protest, hold posters, wear

caps with slogans requesting an end to Court delays. In case number 13 of N. D

Anulawathi, the Court requested the Government Analyst report on 15.12.2008.

However, the Government Analyst Department, even after several Court

reminders, submitted the report to Court only on 18.08.2010, i.e. after 54 hearings.

Another example, is case number 05 of U. A. Somawathi, which the requested that

instructions of the Attorney Generals on 27.12.2004. The court made reminders on

25.09.2008 and 07.09.2007. On 22.02.2011 petition of Somawathis was heard at

the Supreme Court and she was released. On the same day, after a 07 years delay,

the Attorney General's instructions were submitted to Court.

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Such problems will not be remedied by increasing the number of Courts and

Judges. These problems are part and parcel with the Criminal Justice System

prevailing in Sri Lanka.

According to the Bail Act number 30 of 1997, granting of bail shall be regarded as

a rule and the refusal to grant bail as an exception. In case number 17, Ms.

Jebamala Amman alias Wasantha Rani, is the victim and the complainant of rape.

Her bail conditions were set out as a cash bail of Rs.10, 000/= and two sureties

valued at of Rs.500,000/= in which one surety had to be her mother and the other

her employer. As she could not fulfill the bail conditions, a lawyer on behalf of

her, asked the court to grant her more lenient bail conditions, but the court refused

it and detained her until 08.09.2011 to finish recording of her evidence. Now she is

detained as a suspect at the women‟s ward in the Welikada prison for more than a

year.

Another example is case number 16, Ms. K. R. Mallika, a heart patient on whom

charges were fabricated as revenge by the police. The charge referred to was for

the possession of heroine, but in the Government Analyst report the item was

identified but the weight was not mentioned. She received bail from the legal aid

but she could not fulfill the bail conditions which were Rs. 25,000/= cash bail and

two sureties for the value of Rs.500, 000/= each.

According to the case of N. D Anlawathi, police charged her for 600mgs of

heroine, the delayed Government Analyst report stated that heroine was identified

but failed to mention the amount. At Court, she pleaded guilty because if she

pleaded innocent, then the case would proceed and she would not have enough

resource to pay the lawyer‟s fee.

Above mentioned are some of the familiar conditions we have seen and heard in

the prisons and criminal justice system. These malpractices should be changed

because it is unfair, harmful and dangerous to the people specially the poor. These

bitter truths go beyond words to report. Not only the present generation but also

generations to come, should be protected from such injustice, agony and bitterness

prevailing in the Criminal Justice System.

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PHOTOGRAPHS

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