June 17, 2022

By: Ambika Satkunanathan

Pre-trial detention, particularly extended pre-trial detention, is common in South Asia with persons in pre-trial detention often constituting the majority of the prison population. It is no different in Sri Lanka where  the daily average number of persons in prison held on pre-trial detention was 66% in 2020.^[1]

Pre-trial detention should be recognised as a form of structural violence, which is the result of an unequal criminal justice system that perpetuates existing inequalities and enables the state to abuse the law. The law is assumed to be neutral. But the law is a system of power, which excludes and includes persons. Laws can discriminate against certain groups, either directly or indirectly.  Laws that claim to protect the state and citizens, such as national security laws and drug control laws, create a deviant who is portrayed as a threat to society. The ‘deviant’ person is then dehumanised and demonised to justify any violation to which the person is subjected.^[2] It is these people who are in unending detention and imprisonment.

Unjust outcomes in an unequal system

Punishment bureaucracy, a concept crafted by civil rights attorney Alec Karakatsanis^[3] to describe the interlocking systems of laws and institutions, which are supposedly neutral and objective but often in practice are not, provides a framework to understand the human rights impact of pre-trial detention. Within the punishment bureaucracy, factors such as ethnicity, religion, sexuality, economic status and class can make people more vulnerable to being subjected to state violence and being imprisoned. The punishment bureaucracy discriminates, is violent and cruel and functions on a masculine, hierarchical, militarised, control-based ethos. Leaders, particularly authoritarian leaders, use the punishment bureaucracy as a predatory tool to restrict and violate human rights. In India and Sri Lanka for instance, activists and dissenters are portrayed as deviants, arrested under anti-terror laws and languish in pre-trial detention. 

One of the main reasons for lengthy pre-trial detention in Sri Lanka is bail being treated as an exception rather than the norm. This in turn results in prison overcrowding. Similarly, protracted trials, when the person has been refused bail, not only lead to the extended incarceration of persons but also exacerbates prison overcrowding. If the person is acquitted, the person would have spent years criminalized, in remand, being separated from their family, not earning an income and not engaged in any productive activity. The person’s imprisonment would have also resulted in stigmatization of their family and resulted in adverse socio-economic and emotional repercussions for them.  

Prison as a tool of dehumanization

The living conditions in prisons^[4], which are overcrowded as a result of a large number of persons in pre-trial detention, are a form of structural violence as they are well below the threshold of what would be considered basic, humane living standards. The buildings in which persons are housed are, in many instances dilapidated, with poor light and ventilation and unfit for habitation. Many are also infested with pests, such as rodents, bed bugs and mosquitos. Prison overcrowding results in persons not even having the space to lie down, due to which they take turns sleeping or sleep in the washrooms. Their access to water and sanitation facilities is limited, the condition of sanitation facilities is poor, and overflowing and blocked toilets are not uncommon. Further, since most persons do not have access to sanitation facilities at night as their cells or wards are locked at night, they relieve themselves in plastic bags or buckets. These are often hung precariously, and even spill over, in overcrowded cells or wards, and are emptied in the morning. The poor sanitary conditions are exacerbated by the lack of specific budgetary allocation for cleaning tools and products.

Access to critical services, such as healthcare, is also limited due to the lack of resources to address the needs of all incarcerated persons. For instance, medical infrastructure and specialized medicine inside prison hospitals is in short supply, thereby limiting the options for treatment available inside prisons, which require the imprisoned to be transferred to the general hospital for diagnosis and treatment. Yet transferring them to public hospitals is a challenge due to the shortage of transportation facilities as well as prison officers, because officers have to also perform court duty and transfers to other prisons.

Communicating with families during imprisonment is difficult since only Welikada Closed Prison has monitored phone facilities. In every other prison, families must either visit the prison in person or communicate through letters. Many families cannot afford to travel long distances to visit, and even those that visit are most often able to see the imprisoned person for only a few minutes due to the large number of visiting families that have to be accommodated in a day. Visit rooms are small, overcrowded, have poor ventilation and don’t afford any privacy. In many instances, due to the large number of persons in a visit room at any given time, it is not even possible to hear what is being said and persons have to resort to shouting to be heard.

The lack of means of communication also prevents imprisoned persons from communicating with their lawyers, which hampers their ability to mount a vigorous defence. The majority of persons cannot afford the extra cost of requesting the lawyer to visit them in prison and are forced to consult with their lawyers only in court for a few minutes prior to the proceedings. This adversely impacts their right to a fair trial.

Transform not reform

Pre-trial detention violates human rights. Violent and inhumane prisons, which function as sites of harm in an unjust and unequal criminal justice system, exacerbate the rights violations suffered by incarcerated persons. In South Asia, due to the normalization of pre-trial detention, even of extended periods of pre-trial detention, the harm it generates and the resultant social insecurity have been largely ignored.

Change is long overdue.