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.
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.
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.
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.
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.
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
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
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
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.
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
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.
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
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
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.
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.
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.
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.
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?