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| Sunday, 3 March 2002 |
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Features |  |
| News Business Features Editorial
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Overcrowding in prisons by Walter Ladduwahetty
Such remedial action has been suggested in several studies even before, but regrettably any meaningful action has yet to be taken while the problem goes from bad to worse with the implementation home leave, licence and work releases schemes being tightened for whatever reason. The non implementation of amnesties granted earlier on various occasions, the tightening up of the imposition of suspended sentences add to the problem of overcrowding. One matter that should be emphasised is that the recidivist, the contract killer or other offenders committing serious crimes are not those who cause the problem of overcrowding. The reason for the recent amendment to the Bail Act No. 30 of 1997 was stated to be misapplication of the provisions relating to bail particularly of hard criminals. If that was the reason there would be no serious objection to restrictions being placed on bail being granted to them. But this category of offender is not the one who causes overcrowding, which in some instances is said to be as high as 400%. The category of prisoners causing the problem of overcrowding is the fine defaulter and the remandee for short periods. The remedy for overcrowding in prisons must therefore be sougth in that direction. Briefly stated (the object of this short note is not to discuss the remedies for over crowding) the remedies appear to be: (1) Greater vigilance by Courts not to remand suspects unless the law makes it mandatory and in any event to be circumspect, being aware of the problem of overcrowding and its harmful consequences to the inmates: (2) Amendments to the Law e.g. the Release of Remand Prisoners Act. No. 8 of 1991. It is widely believed that this Act is ineffective as the schedule covers only a limited number of offences. In any event the Dept. of Prisons sends a list of prisoners every quarter to the Ministry of Justice of prisoners on remand for over three months. Should not greater attention be paid to this list with a view to taking appropriate action in respect of the unconvicted prisoner - especially the granting of bail, conscious of the fact that according to statistics only 25% eventually get convicted while the balance 75% are either discharged or acquitted. (3) Where a person is sentenced to jail on being convicted of an offence adequate reasons should be given when a Court decides a jail sentence is required to be imposed, and not a non custodial sentence. According to the Dept of Prisons statistics (vide page 34, Table 4.24 for the statistics for 1997) of the total number of prisoners convicted amounting to 17,769 the first offenders amounted to 10, 382 (58.4%) while the reconvicted number was 4,689 (26.4%) and the recidivists numbered 2,698 (15.2%). One wonders why as many as 58.4% found their way to prison for the first time many of whom would have been for "other offences" referred earlier, i.e. Excise and Narcotic Drug Offences. In any event is there any justification for imprisonment for a short period - say less than six months - when nothing can be done to such prisoners towards their rehabilitation. The only problem that this category of prisoner creates is to aggravate the overcrowding in prison not to speak of the harmful effects on him of exposing the first offender to the hard core criminal thus enhancing the probability of the first offender finding his way back to prison. There have been occasions when it has been suggested that there should be legislative provision that no one should be sentenced to jail for less than six months. If this proposal appears too radical and therefore unacceptable, should not the giving of adequate reasons be made mandatory for imposing a jail sentence less than six months and for imposing a jail sentence on a first offender, so that the reasons given will become subject to judicial review. In regard to those in jail for default of payment of a fine, should the law abandon the provision for a default term of imprisonment and have resort to an appropriate alternative? (4) The need to make maximum use of non custodial sentencing mechanisms cannot be over emphasised. No one suggests that an accused found guilty should not be punished. All would agree that the punishment must be reasonable and adequate but also appropriate to the offence and all the attendant circumstances. One is glad that community service orders are now being made and over 1,000 offenders who would otherwise have found their way to jail, are being adequately dealt with in the community. On the other hand why have the figures of those placed on probation fallen drastically over the years from over 3,000 in 1980 to 1,360 in 1992 and only 570 in 1998. In some countries there are more persons on probation than in prison. Should not the authorities consider the reasons for this alarming reduction and take very early remedial action to make probation orders an alternative sentencing provision? Why not involve the community in probation work as is done with mediation. Japan has over 50,000 volunteer probation officers. (5) It has been said that suspended sentences, once very popular with the sentencing authorities have been severely restricted by the Amendment No. 47 of 1999? Has a study been made of the impact of this Amendment? (6) A fair number of prisoners have been released on schemes such as work release (240) home leave (329) and under the licence scheme (124). These are the figures for 1996. These schemes it is said are now being operated very restrictively. The total amount earned by prisoners engaged on work release in 1996 was Rs. 1,107,347 (vide table 7.2 page 44) which is not only a very valuable source of income for a prisoner who gets paid a pricely wage of Rs. 1 to Rs. 5 per day, but it should be remembered that work particularly outdoor work, is itself a therapy making a prisoners re-entry to society easier for him. If some of these remedies are implemented, the problem of overcrowding in prisons is, to some extent at least, likely to be reduced and therefore it is submitted should require very early consideration by the authorities. Failure to do so over the years is a serious dereliction of duty. Should they then be nudged into taking meaningful action by what is suggested later on? Overcrowding in prisons with the attendant consequences of lack of space for sleeping (it is sometimes said that one lot of prisoners in a ward keep standing till it is their turn to sleep) lack of adequate toilet facilities (a medical officer once told an official inquirer that prisoners were seen clearing a drain blocked with faecal matter with their bare hands) lack of adequate water for bathing and washing etc. all combine to produce conditions totally unsuitable for human existence and may well constitute torture and be in violation of human dignity. If so it will be in violation of article 12 of the Constitution which stipulates that "no person shall be subjected to torture or to cruel inhuman or degrading treatment or punishment". Courts in other jurisdictions have recognised some problems caused by overcrowding. In a landmark judgement the Lahore High Court in Afridi Vs Province of Punjab (PLD Lahore 120) condemned solitary confinement of a prisoner stating that it might amount to torture. Superior Courts have consistently held that all punishments which are inhuman and cruel are violative of the dignity of man. The degradation caused by overcrowding could very well be considered offending human dignity. In (1987) 1 All ER 324 R Vs Secretary of State for the Home Department ex parte Herbage, the Court of Appeal stated that a sane person kept in a psychiatric ward for purely administrative purposes might well be considered cruel and unusual punishment. The House of Lords in R Vs Deputy Governor of Parkherst Prison ex parte Hauge (1991) 3 WLR 340 confined the principle that prisoners had remedies against being subjected to intolerable conditions. The degradation and the intolerant conditions caused by overcrowding are therefore quite unwarranted and merit immediate remedial action - quite apart from falling far below the guidelines set by the Standard Minimum Rules for Treatment of Offenders and other International Covenants such as the covenant on civil and political rights and the European Convention of Human Rights. If some of these guidelines are incorporated in statutory form there will be a greater opportunity for judicial review. In any event public interest litigation has a place in our jurisprudence. (though not adequately widely known). Since 1991 the Supreme Court (Rules 44(7) permit any person to complain on behalf of a victim, even by means of a simple letter (epistolary jurisdiction) and many persons kept in detention camps have in fact obtained relief. Should not Prisoners' Welfare Association rise to this challenge and seek to obtain much overdue relief from the inhuman conditions to which men, women and even children (some of whom are born in prison) are thrust and which they endure uncomplainingly in gross denial of their basic human dignity? Excerpts from an article in Prisoners' Welfare Association Magazine 2002 |
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| Editorial | Security Produced by Lake House |
The purpose of this short paper is only to draw attention to the
problem of overcrowding and the obvious deleterious effects it has on the
prisoners themselves and on the administration and the staff and to
emphasise the need for effective action to remedy the situation.
