Focus on Rights

Is chaining of prisoners to hospital beds justified in all instances?
The monumentally startling news report of a remand prisoner who was discovered casually relaxing at his home with his prison guard this week indicates the differential treatment of those who commit grave crimes but suffer no miseries by virtue of either their privileged backgrounds or their ability to bribe prison officials. The contrast between the inhumane treatment of poor and marginalised detainees, (taken in most often for the pettiest of crimes), as compared to others more fortunate, cannot be starker.

Such inhumane treatment encompasses, in many cases, the automatic chaining of such disadvantaged prisoners even when they are on their hospital beds after being committed into remand, despite being seriously injured and physically incapable of moving around.

The recent case of Rohitha Upali Liyanage, injured on July 28 this year when police officers attached to the Wattegama Police Station beat him and his friend with iron rods allegedly when Rohitha attempted to stop the officers from riding his motorcycle, without his permission, is illustrative in this regard.

The beating resulted in Rohitha suffering a fractured leg and other injuries. He was taken to the Wattegama hospital and chained to the bed, consequently being unable to attend court to sign his bail bond. It was only after pressure was brought to bear by local activists that some relief was provided for the victim.

The supreme irony of an individual with a severe leg fracture being further chained to his hospital bed, ostensibly in order that he not flee the hospital, should not be allowed to pass unnoticed.

One might also recall at this point, the notable chaining of 'Tony' Michael Fernando, a forty two year old former teacher of English who was committed to one year hard labour in February 2003 for contempt of court.

Following his imprisonment in the Welikada Prison in Colombo upon the order of the Supreme Court, Fernando developed a serious asthmatic condition and was admitted to the Prison Hospital (and thereafter to the National Hospital) where, despite his deteriorating health condition, he was kept chained to his bed on the express orders of the prison authorities.

Later, the conditions of his detention were alleviated not so much due to intervention by locally based rights bodies including the Human Rights Commission of Sri Lanka or, for that matter, the many highly funded domestic NGO's 'working' on human rights concerns but only upon swift movement of a few individual as well as regional activists and international pressure including statements issued by then United Nations Rapporteur on the Independence of the Judiciary, Param Cumaraswamy. Fernando had to spend eight months in prison however.

Early this year, his petition against the conviction and sentencing for contempt of court was upheld by the Geneva based United Nations Human Rights Committee to which he had appealed under the right of individual appeal permitted by the Optional Protocol to the International Covenant on Civil and Political Rights which Sri Lanka had ratified.

Resoundingly, the Committee observed that his sentencing for alleged contempt violated the prohibition on arbitrary" deprivation of liberty imposed by ICCPR Article 9, 1 in that the imposition of a draconian penalty without adequate explanation and without independent procedural safeguards fell within that prohibition. Primarily, no reasoned explanation was held to have been provided by the court or the State party as to why such the 'severe and summary penalty' of one year RI was warranted, in the exercise of a court's power to maintain orderly proceedings.

The jurists did not however, rule on that aspect of Fernando's petition regarding the alleged violation of his right to be free from torture in terms of ICCPR, Article 7 due to his being assaulted by prison guards and by the conditions of his detention, including specifically, the fact that he was kept chained to his hospital bed.

The Committee declined to consider this aspect of the petition due to pending cases in the domestic courts at the time that the petition was taken up in respect of these very allegations of his torture and ill treatment. This was understandable due to its strict observance of the rule regarding non-exhaustion of domestic remedies. However, if the jurists had, in fact, responded, the General Comment issued by the Committee itself on Article 7 of the ICCPR which is that "the prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim" would have been undoubtedly relevant to its finding.

Fernando was, after all, not a dangerous criminal with a propensity to violence but rather an innocuous individual who at the worst, had been culpable not of murder but of the relatively non-threatening offence of contempt, a sentence moreover which was decided to have been disproportionate by a tribunal of international jurists from a variety of enlightened jurisdictions and whose authority had been explicitly accepted by the Sri Lankan State. Was it necessary therefore, that he should have been chained to his bed like an animal during that period? The treatment meted out to him can only be said to vitiate the observance of the fundamental Buddhist tenets of proportionality and compassionate mercy so loudly proclaimed as informing if not influencing our legal system.

Recently, Sri Lanka's Supreme Court ruled in the Wewelage Rani Fernando Case (SC(FR) No 700/2002, SCM 26/07/2004, judgement of (Dr) Justice Shiranee Bandaranayake with Justices JAN de Silva and Nihal Jayasinghe agreeing), where death of a father of three minor children (arrested for stealing a buch of plantains) was directly due to assault by prison officials, that both the State and the prison officials had to pay compensation amounting to one million in equal shares.

The gruesome way that the deceased was treated at the Negombo prison, which "....where a hapless prisoner was brutally tortured and left alone, tied to an iron door, to draw his least breath," was a significant contributory factor in the award of high compensation.

The case law of other jurisdictions clearly mandates that handcuffing of prisoners can never be used for punitive purposes or for longer than is strictly necessary. This prohibition is also contained, impliedly or explicitly in the applicable domestic statutes, including the Prisons Ordinance as well as in international instruments including the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations Congress which was, in fact, referred to in the Wewelage case in a more general context.

The unnecessary use of handcuffs by the police has been ruled to be a violation of the right to personal liberty guaranteed by Article 21 of the Constitution of India in a number of Indian cases, including the seminal Prem Shankar Shukla v. Delhi Administration case.(1980). Even though our constitution does not guarantee a right to life, (unlike Article 21 of the Indian Constitution), this has been implicitly recognised in such a manner as to imply a similar prohibition.

Sri Lankan remand authorities need to re-evaluate their treatment of prisoners on the above grounds. Theoretically, of course, the law should compel such a re-evaluation. Practically, the reality mocks at the law as well as all the high sounding pronouncements of justice that trip from the tongues of many. It is only in an overtly shameless culture that Sri Lanka can now proudly lay claim to, that such blatant injustice and hypocrisy is tolerated and even praised. For how much longer will we continue to bear this?

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