Imprisoning innocents

In April 2013, Shehan was arrested in Kollupitiya and did not know why.

Earlier that day, he had signed for a package being delivered to two of his friends. It turned out that the package had been flagged by police because it contained 360 grams of hash.

To this day, Shehan, who asked that his full name not be used, says he did not know he was accepting a package full of drugs.

Despite his protests, the police charged him with aiding and abetting an offence under the Poisons, Opium, and Dangerous Drugs Ordinance.

“They didn’t take me to court for an initial hearing; they waited for courts to be over and then took me straight to the judge’s house,” he recalled in a recent interview. “I didn’t have my lawyer or anything.”

He was told that because of the seriousness of his charge, he could only apply for bail from the High Court – a process that would take three months. “Then they took me to remand,” he said.

When Shehan arrived at the Welikada New Magazine Remand Prison that night, he did not know that it would be his home for the next year.

But that’s how the remand system works in Sri Lanka.

Jailed with no conviction

Sri Lanka’s remand prisons are so overcrowded and the bail process so inefficient, that people like Shehan who are innocent in the eyes of the law end up spending long periods of time locked up.

Department of Prison statistics from 2016, the most recent year data is available, show that Sri Lanka’s remand prisons hold an average of 8,625 people a day in buildings that are only meant to accommodate 5,034.

That means the prisons are crowded over 70 percent above their capacity.

Of Sri Lanka’s entire prison population, 80 percent are remand prisoners, meaning that just 20 percent of those doing time have actually been convicted of the crimes they are accused of.

Meanwhile, people spend months, if not years, in squalid conditions awaiting the outcomes of their trials.

On Shehan’s first night in remand prison, he slept on the floor of a holding room with other prisoners, ‘packed in like sardines’,” he said.

He was later given a section and a cell. In New Magazine, some six-by-eight foot cells are shared with as many as five people, Shehan said.

“Most of those guys are quite scrawny addicts,” he said. But Shehan is over six feet tall and had trouble finding enough space on the floor to sleep in his cell. Some people sleep in the halls.

In the mornings, Shehan said he remembered waking to the smell of human waste, as people had defecated in the drains running along the hallways during the night.

“There’s no escape, every day is the same,” he said. “There is nothing to do. There are no board games except for one carrom board for 300 people.”

Because of this, some people turn to drugs for mental relief. For this reason, Shehan said, many prisoners call remand prison ‘the university’.

“(That’s) because they say you pass, or you fail. If you fail, it means you become a drug addict,” he said. “If you pass, you come out.”

Shehan said that while he avoided drugs, he watched many people sink deeper into their addictions, or begin using substances like heroin for the first time.

“Drugs are basically the only thing to do,” he said.

Shehan had never been arrested before and did not know how quickly he might be granted bail. But others did.

“They told me: ‘Listen man, no matter what you do, under this 54 (shorthand for Section 54 of the Dangerous Drugs Ordinance), you’re not going to get out.”

They said he would need to wait at least a year before he could receive bail.

“I was so angry initially for what happened to me,” he recalled. He said he was tortured not just by his confinement, but by imagining what other people were saying about him and saying to his parents, in the outside world.

“But I believe being angry for everything is only going to hurt me,” he said. “Because everyone who put me in here doesn’t give a damn and they’re not even thinking about me.”

“So I did the best I could in there,” he added.

Three months into his time at New Magazine, he applied for bail with the High Court. And then he waited.

‘Bail is the exception’

Government officials and politicians have been aware of the situation in remand prisons for a long time.

In 1997, Parliament passed the Bail Act in an effort to relieve some of the overcrowding.

One of the most significant reforms in the Bail Act was that it set the maximum length of time someone could serve in remand to one year. The High Court could extend that period to a maximum of two years, but only by request of the Attorney General.

“Nobody in this country should be deprived of freedom unless and until he is convicted by a court of law exercising competent jurisdiction,” Professor G.L. Peiris, then the Minister of Justice, said while presenting the bill.

He recognized the consequences of people staying too long in remand.

“During that period they come into contact with criminal elements. They cannot re-enter society as the innocent people that they were,” he said. “That is a great disservice to society and we think that we have to remedy that very sorry state of affairs.”

But it appears that that ‘sorry state of affairs’ still exists.

Kalyananda Tiranagama, a human rights lawyer in Colombo, said in an interview that he believes the Bail Act has failed its purpose.

“The Bail Act says bail is the rule, and remand is the exception. But it operates the other way around: remand is the rule, and bail is the exception,” he said.

In theory, bail is supposed to act as a surety that someone will re-appear in court after their initial hearing. Bail keeps the remand prison population down and saves the state money: the government spends about Rs. 750 a day housing a prisoner, according to the most recent prison statistics.

But in Sri Lanka, bail is still incredibly hard to get, even if you qualify for it.

Tiranagama said part of the problem is that the law gave police too much power to recommend the denial of bail, which he said is routine. Magistrates often just sign off on what the police ask for, he said.

But most people who are held in remand prison without bail are not seriously violent or connected to large criminal operations, according to the Lawyers for Human Rights and Development, the organization which Tiranagama heads.

In a comprehensive study of remand prisons the group released in 2012, the researchers found that the vast majority of people in remand were those who were accused of selling a small amount of marijuana or heroin, accused of having a hand bomb, or accused of committing an offence while armed with a gun.

These people, like Shehan, must apply for bail in the High Court or Court of Appeal, a process that takes time and costs money. Still others stay in remand because they cannot pay the bail amount set by the judge or produce a qualified surety.

All of these factors contribute to the overcrowding of remand prisons.

“The legal framework is good, but in terms of implementation, the Bail Act has failed,” said Vishwa de Livera Tennekoon, an attorney-at-law who represents remand prisoners. Indeed, the Prison Department’s own statistics show that many people are being held in remand in breach of the Bail Act. At the end of 2016, more than 730 people had been imprisoned for more than two years, the maximum allowed under the law, without a conviction.

One-hundred-and-forty-nine people had been held in remand prison for five years or more.

Reducing overcrowding

Although the overcrowding in remand prisons is a glaring problem, and the continued incarceration of people not convicted of any crime an issue, even prison administrators acknowledge, the issue is not a top Parliamentary priority.

“The government authorities do not like to concern themselves with this,” Tiranagama said.

But Thushara Upuldeniya, the spokesman for the Department of Prisons, said his agency is taking a number of steps to reduce prison overcrowding.

The most significant, he said, is the urban prison relocation programme. “Many of the old prisons are in the centre of towns, with high land values, so can’t be expanded,” he said.

So the prison department has targeted eight prisons around the island to re-open in new facilities in more rural areas.

“One is complete, two are finishing construction, and four are under the design process,” he said. “They will meet international standards and have enough space.”

Upuldeniya said the department is also exploring alternatives to prison, like sending drug users to an 800-person rehabilitation camp in the Polonnaruwa District, and allowing some convicted prisoners to participate in community-based rehabilitation.

A task force under the Ministry of Justice and the Ministry of Prison Reforms, Rehabilitation and Resettlement is studying judicial causes for prison overcrowding, like the slow bail process, he added.

Upuldeniya pointed to the fact that overall rates of prison overcrowding, meaning convicted and unconvicted prisoners combined, have fallen over the past five years, from 100 percent overcrowded to about 50 percent. “It shows our steps are working,” he said.

Life outside

The success of recent reforms did not come early enough for Shehan. He said his year in remand changed him forever.

In May 2013, the High Court granted him bail, and he ‘graduated’ from New Magazine Remand Prison.

The court eventually threw out all the charges against him, as the case against his involvement with the drug trafficking was too flimsy. He spent over a year in jail for no crime.

Shehan said that after he made peace with the fact that he was going to be imprisoned for a long time, he was able to make something of his life in prison.

He is a professional fitness trainer, and he led 15 people in group exercises over the year. He said he used exercise to help two people get through heroin withdrawal, and he taught English to former LTTE cadres.

But now he wants to leave that part of his past behind. “It put me through the depths of depths, and I came out,” he said. Now, he teaches workout classes in the mornings, spends time with his family, and works at resorts on the South and East coasts during the tourist season to make money. Every once in a while, though, his old life and his new collide.

Although he’s lost weight since being in prison, “still people recognize me after four or five years,” he said.

That was the case on a recent evening when he called a tuk-tuk while leaving his cousin’s house.

“I get in, and the guy is like, ‘OK, where do you want to go?’” he recalled. The driver then made a little smirk that Shehan said he’s come to recognize.

“He goes: ‘I think I have met you before. Don’t get angry, but…Magazine?’” He laughed, remembering the story.

“Oh yea, oh yea,” he replied. “I was there.”