Due to the increased involvement of the Ministry of Defence in the prison system, the approach to ‘reform’ is rooted in a military mindset and ethos – Pic by Ruwan Walpola
Militarisation to the rescue: Do quick fixes work?
The dysfunctional prison system discussed in the preceding section requires to be fundamentally changed. Yet, the root causes of the dysfunctionality are not being addressed in the government’s ‘reform’ agenda. Instead, the government is proposing quick fixes, which are embedded within the framework of militarisation, with the Ministry of Defence appearing to exercise extra-legal power over the functioning of the Department of Prisons. “Militarisation is the step-by-step process by which something becomes controlled by, dependent on, or derives its value from the military as an institution or militaristic criteria”.7
The militarisation of prisons initially began during the Yahapalanaya regime in August 2018 via a circular issued by the Ministry of Justice requesting the assistance of the Special Task Force (STF) at the Angunakolapalessa Closed Prison, Colombo Remand Prison, New Magazine Remand and Welikada Closed Prison to prevent the influx of drugs into prison. The STF was thereafter assigned to Boosa Prison in May 2019 after it was designated a high security prison to which several high profile drug offenders were transferred.8
During the month of June 2020, coinciding with the remarks made above by the President, the Attorney-General and the Secretary Defence, a number of raids were conducted jointly by the STF and prison officers during which they reportedly recovered contraband.9 The purpose of combatting and preventing organised crime from operating within prisons was highlighted as the purpose of these special joint operations.
It should be noted that prisons are entirely within the purview of the Department of Prisons and prisoners are released into the custody and care of the Department by the courts. Hence, no other entity has authority over prisons or prisoners. Further, the functioning of prisons as well as the Department of Prisons is governed by the Prisons Ordinance and subsidiary legislation, which are not applicable to either the police or the military. This raises numerous concerns regarding accountability, including from whom the police and military take orders, to whom they will be answerable and who will hold them accountable.
The next step in the process of militarisation was the creation on 2 June 2020 of a Presidential Task Force to build a Secure Country, Disciplined, Virtuous and Lawful Society, headed by the Secretary of Defence. The mandate of the Task Force is to inter alia ‘investigate and prevent any illegal and antisocial activities in and around prisons’ and ‘take necessary measures for prevention from drug menace, prevent entry of drugs from abroad through ports and airports and to fully eradicate drug trafficking in the country and to prevent other social illnesses caused by drug abuse’10. It should be noted that the Task Force, which has no membership of criminologists, or criminal justice or human rights experts, initially did not even have a representative of the Department of Prisons, who was only later appointed11.
The authority of the Ministry of Defence appears to extend to the functioning of the prison system in many ways. Firstly, there is an incremental expansion of the involvement of the defence establishment and law enforcement in the administration and management of prisons, even though the prison system is supposed to function independent of the military and law enforcement that have no role in a correctional service. For example, the announcement by the Commissioner General of Prisons (CGP) that Boossa would be made a high security prison was held at the Ministry of Defence and not at the Ministry of Justice or the Department of Prisons. During the press conference the regularisation of visits received by prisoners was announced not by the CGP but by Ajith Rohana, Deputy Inspector General of Police.12
Secretary Defence justified his involvement in the ‘reform’ of the prison system by stating that ‘he has a right to get involved in issues related to the Department [of Prisons] as over 27,000 prisoners in the island-wide prisons were apprehended by officers who were attached to the Defence Ministry’. One assumes that the officers to whom he refers are police officers, who, in a robust democracy, should not be within the purview of the defence establishment.
The extent to which the Secretary Defence, who has no authority over the Department of Prisons, believes he can get involved in the prison system is illustrated by his remark to prison officers that, “It is up to all you Commissioners to decide if the current Prison Commissioner Thushara Upuldeniya remains in his post until retirement, or whether an SLAS or military officer would have to take over the command of the Prison Department. It is up to you to ensure that your train operates without derailment.”13
Based on the remark, it appears that the authority of the military extends beyond legally prescribed limits, since the Secretary Defence feels he can publicly threaten the senior most officer of the Department of Prisons with dismissal, although he has no legal authority over him, and even state that he could be replaced by a military officer. This has to be viewed within the context of the overly-broad mandate of the Task Force to build a Secure Country, Disciplined, Virtuous and Lawful Society headed by Secretary Defence.
Due to the increased involvement of the Ministry of Defence in the prison system, the approach to ‘reform’ is rooted in a military mindset and ethos as illustrated by the remarks of the Secretary Defence who stated, “When we were in the military academy, we were taught that the most dangerous enemy is the enemy within. We now need to identify and confirm the enemy within us to eradicate drug menace. Otherwise, it will be a futile effort”.14
Labelling persons as enemies is a means of demonising them and creating an environment that justifies any action taken against them. The extent to which the involvement of the military and militarised law enforcement in the prison system has been normalised even amongst those within the prison system is evident in the Commissioner-General of Prisons’ remark that the STF would provide security to prisons, while the military and police would undertake training for prison staff.15
Drug offenders: Myths and realities
While there is no dispute that crimes, especially drug offences, being committed by those in prison should be prevented, it is inaccurate and misleading to point to drugs being smuggled into prison, prisoners committing crimes from within prison and corrupt prison officials as the cause of the dysfunctional prison system. They are not the cause but the symptoms and results of a dysfunctional system, and neither quick fixes nor militarisation will resolve these issues.
In 2019 of 29,164 of the total direct admissions of convicted prisoners, 15,123 persons were convicted for drug offences, which means the percentage of prisoners convicted for drug offences of the total number of convicted prisoners is 51.9%. Of the 15,123 persons, 854 persons were sentenced to less than one month, 10,799 to less than six months and 2,627 to less than a year. Hence, of 15,123 persons 14,280 were sentenced to less than one year.
The penalty for the offence of drug trafficking is the death penalty or life imprisonment, while the offence of possession or consumption is a summary offence that carries a maximum penalty of five years imprisonment and/or a fine not exceeding Rs. 10,000. Therefore, the short sentence periods of 14,280 persons indicate that 88.8% were most likely convicted for possession of small amounts or consumption.
It should be noted that the number of persons sentenced to death and life imprisonment, in 2019 i.e. for the offence of drug trafficking, is 15 and 38 respectively.
Secretary Defence stated, “If a remanded drug user comes out of the prison after a few months as a drug dealer, there is something radically wrong in the system.” The reason drug users might exit prison as drug dealers is because, as the statistics show, drug dependent persons, who have not engaged in sale or trafficking or a violent crime, are sent to prison instead of being provided with means to deal with their addiction. Imprisoning these persons and sending them to prison where there is no means to deal with their drug dependency, creates a market for drugs within prison. Hence, we need to assess the harm they are likely to cause vs. the harm that will be caused by sending them to prison. Drug dependency should therefore not be criminalised but should be treated as a public health issue.16
Moreover, when a drug dependent person is released from prison, s/he returns to the same socio-economic environment in which s/he is expected to behave differently without a social support system or an income. Within such a context, the likelihood of the person relapsing or becoming criminalised and imprisoned again is high. According to the statistics of the Department of Prisons, in 2019, of the total of 15,123 persons imprisoned for drug offences, 33.3% were reconvicted (convicted twice), and 26.1% were recidivists (convicted more than twice).
The fact that the majority of persons convicted for drug offences were convicted for possession or consumption demonstrates that those who are responsible for the trafficking and sale of drugs are likely outside prison, and continue to function with impunity. Meanwhile, drug dependent persons are criminalised, imprisoned and suffer devastating adverse consequences throughout their lives.
The continuum of corruption
We must keep in mind that arresting corrupt prison officers alone will not stem corruption in prisons, because it is linked to corruption within different institutions of the criminal justice system. Secretary Defence stated, “Police officers, including the STF are taking risks despite the threats to lives to nab criminals in the country to maintain the law and order,” explaining the huge responsibility that lies with the prisons officials in creating a lawful environment for the future generations to live free of crimes. Yet, the reality is that corruption in the prison system is part of a continuum of corruption within different institutions in the criminal justice system, such as the police, as evidenced by the recent arrest of police officers for colluding with drug traffickers.
Corruption within an institution that is part of the criminal justice system also has an impact on the criminalisation of persons, and even leads to their imprisonment. For example, the recent arrest of several police officers for involvement in drug trafficking, and the investigation of the STF by the CID for the same17, point to possibilities that allegations by persons that they were framed by the police for drug offences could be true. This is in line with the narratives of a number of persons we met during the prison study who stated they were wrongly imprisoned, especially for drug offences, due to evidence planted by officers. While in prison several had begun engaging in a criminal activity, and often became repeat offenders. As the experience of other countries shows, prosecution alone will not prevent or control corruption if related issues, such as fair and decent remuneration and cultural acceptance of certain forms of corruption, are not addressed. Once again, this would require not only change in the behaviour of individuals but also of the state.
Justifying incarceration and violence through demonisation and dehumanisation
The question, a world without prisons? might seem naïve and idealistic, and perhaps delusional and ridiculous to most. Yet, asking this question helps us think about the purpose of prisons. The purpose of a prison is to keep those we view as undesirables away from society, closed up and away from societys view. An example is the solution that has been proposed by the government to transfer high profile inmates to an island off the Eastern town of Batticaloa. This is an out of sight-out of mind solution that appears to be based only on the fact It is easier to jam telephones in such an area, as stated by the Minister for Justice.18
Persons labelled as undesirables are demonised and dehumanised in different ways to justify any action taken against them. The public is made to believe that these persons are evil and frightening and the only means of keeping the public safe is by subjecting these persons to violence. Stripping these ‘evil’ persons of their dignity and individual identity and making them appear less than human and unfit to be part of society lies at the core of these processes.
The dual processes of demonisation and dehumanisation also create a sense of vulnerability and fear amongst the public, and plays into public anxiety about the lawlessness of these undesirables. The fear thereby creates a lack of empathy amongst society at large for such persons. This in turn ensures that public outcries are minimised when such persons are subjected to ill-treatment. For example, when Ketawalaptiye Sampath, a drug dealer who was accused of many crimes was shot and killed on 26 June 2020 when he reportedly failed to stop at a police checkpoint, there was no public outrage.
We therefore decide that only certain types of persons are deserving of humanity and the protection of the law, which is dangerous, because at different times different persons or groups of persons can be labelled undesirable and a threat to society, and become fair game to be subjected to ill-treatment.
The dangers of penal populism
Blaming drugs and corrupt prison officers for the dysfunctional prison system is a simplistic narrative that will capture the public imagination and will not require any complex, difficult or long term social changes that entail dismantling structures of inequality, violence and corruption. In short it is penal populism, whereby the government, instead of basing policy decisions on research, or the advice of experts seeks to give the public ‘what they want’. This is often presented as acting based on common sense, in contrast to listening to experts who are viewed as disconnected from reality. Public opinion however can be easily created and manipulated.
Populist penal policy making is also based on a hyper-masculine notion of dealing with crime, i.e. that a strong hand is required to resolve the drug problem or a tough leader is needed to save society from crime. Machismo hence forms an integral part of the qualities deemed necessary to tackle crime, in particular to crush the drug menace. In Sri Lanka, the machismo based/driven strategy that is being used is the slow but certain militarisation of the prison system and the demonisation of certain groups, such as drug offenders and corrupt prison officers.
To reduce crime in society we have to transform the way we view crime, punishment and incarceration, and look at how harm is caused and how human vulnerability is structured. Prisons claim to reduce the vulnerability of society to crime and harm and make them safer. Yet in reality, prisons function not only as sites of harm but generate harm that extends to society. We also have to understand the penal culture in Sri Lanka.
Penal culture is the ‘broad field of institutions, practices, discourses and social relations which surround the ideas and practices of punishment’.19 For instance, how do we view punishment? What outcomes do we expect punishment to produce? Why are certain punishments acceptable and certain are considered cruel?20
In Sri Lanka, we do not seem to be aware that in a traditional penal system the deprivation of liberty, i.e. imprisonment, is in itself supposed to be the punishment. Once imprisoned, the person is not supposed to suffer other deprivations or be subjected to harsh or inhuman conditions. This is set out in Rule no. 5 of the Mandela Rules, which states, ‘The prison regime should seek to minimise any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings’. Being stripped of one’s dignity and subjected to inhumane and cruel treatment does not lead to rehabilitation or attitudinal change. Instead, it will only normalise dysfunctional and inhumane behaviour.
During the prison study we heard prisoners who were subjected to violence in prisons say that if they were to meet their perpetrator anywhere after they were released they would assault them or subject them to similar treatment. Therefore, ill-treatment in prison doesn’t stop the cycle of violence and criminality but perpetuates it and extends it beyond prison into society.
Dealing with crime, violence and harm, requires moving beyond penal populism, simplistic analyses and quick fixes that only the tackle the symptoms. Instead, we have to address the root causes, which requires reflection, empathetic and human rights based progressive policy-making, and the political will to implement even unpopular decisions. A military mindset and framework have no room for such policy-making or action.
(The writer is an Open Society Fellow. She was a Commissioner of the Human Rights Commission of Sri Lanka from Oct. 2015 to March 2020.)
7 Cynthia Enloe (2000) Maneuvers: The International Politics of Militarizing Women’s Lives. Berkeley: University of California Press: p. 291.
8 Sri Lanka Mirror, ‘Underworld criminals, drug traffickers to Boossa prison!’ 26 May 2019.
9 News First, ‘82 phones, 55 SIM cards, batteries and chargers seized during raids at 04 prisons.’ 10 June 2020.
10 Extraordinary Gazette 2178/18, issued on 2 June 2020
11 Extraordinary Gazette 2183/22, issued on 7 July 2020
12 ‘Prison visitation to be regularized’, Ada Derana, 16 June 2020
13 Daily News, ‘Clean up or face consequences – Defence Secretary tells prison officials.’ 19 June 2020. http://www.dailynews.lk/2020/06/19/local/221099/clean-or-face-consequences-defence-secretary-tells-prison-officials
14 Sri Lankan Defence Secretary vows to eradicate the ‘drug menace’, Tamil Guardian, 30 June 2020 https://www.tamilguardian.com/content/sri-lankan-defence-secretary-vows-eradicate-drug-menace
15 Sri Lanka Defence, ‘Cleansing corrupt prison system, the top priority – Prisons Commissioner General Upuldeniya.’ 29 June 2020, http://www.defence.lk/Article/view_article/1895
16 Drug Dependence Treatment: Interventions for Drug Users in Prison, United Nations Office on Drugs and Crime at https://www.unodc.org/docs/treatment/111_PRISON.pdf
17 Daily Mirror, ‘CID investigates STF.’ 13 July 2020 at http://www.dailymirror.lk/top_story/CID-investigates-STF/155-191793
18 Shazuli, Hassaan, ‘Government mulls transfer of high profile inmates to Manthivu island.’ News First, 11 June 2020. https://www.newsfirst.lk/2020/06/11/government-mulls-transfer-of-high-profile-inmates-to-manthivu-island/
19 Chris Cuneen et al (eds.) (2013), ‘Penal Culture: The Meaning of Imprisonment’, Penal Culture and Hyperincarceration: The Revival of the Prison. Taylor & Francis Limited, p. 4.
20 David Garland (2010), Peculiar Institution: America’s Death Penalty in an Age of Abolition, Belknap Press, quoted in Chris Cuneen et al (eds.) (2013), ‘Penal Culture: The Meaning of Imprisonment’, Penal Culture and Hyperincarceration: The Revival of the Prison. Taylor & Francis Limited, p. 14.