Features
Pardons Remissions and Releases
by Rohini Marasinghe- Retired Judge of the Supreme Court
The President appears to have issued a directive to the Ministry of Justice to present a paper to the Cabinet to pardon the prisoners who are eligible to be pardoned, primarily due to the Covid Pandemic. All prisoners under death sentence will have their sentences reduced to twenty years, and all those who have served twenty years in prison to be released.
According to Government statistics as of the end of 2019, there are approximately about 1,300 prisoners in the death row. The death sentences of approximately 420 men and 50 women have been confirmed.
It must be noted that capital punishment remains as a part of the Law of Sri Lanka. It is a part of the penal Law of Sri Lanka that: “Whoever commits murder shall be punished with death.” (Sec. 294-296 Penal Code)
Additionally, whoever has in possession of ‘2 or more grams of heroin shall suffer the penalty of death or life imprisonment. (the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act 13 of 1984)
It is manifest that under the Poisons, Opium and Dangerous Drugs Ordinance, the court has no discretion but to impose the death penalty or as an alternative a sentence of life imprisonment. There is no discretion available to a court to determine the appropriate sentence of imprisonment independently. When the sentence is mandatory as in murder and drug trafficking, the judge has no authority to determine the proper sentence less than death or life imprisonment.
The President has the power under the Constitution, to commute any sentence imposed by the court to a lesser one. The question as to whether a case is appropriate for the exercise of the power of Pardon conferred upon the President by Article 34 of the Constitution depends upon the facts and circumstances of each particular case.
The nature and effect of a pardon reach both the punishment prescribed for the offence and the guilt of the offender. When the Pardon is deemed to be a full pardon, it releases the punishment and erases the guilt 0f the convicted person. Therefore, in the eyes of the law, the offender is as innocent as if he had never committed the offence. (Justice Fields in ex parte Garland 71 US (4 Wall 1867) It is because the Pardon is viewed as an acknowledgment of the fallibility of a human judgment, which could even be a product of a well trained legal mind. Therefore, errors are remedied by entrusting a power of Pardon subscribed in the above-mentioned Article 34 of the Constitution. The Head of State has the supreme authority to exercise the executive power of granting Pardon after taking into consideration several reasons and appropriate circumstances which may not be apposite for reference before the courts
Where the government considers it reasonable that the power of Pardon should be exercised in respect of a particular category of prisoners, in that case, the government has the ability do so and also for excluding a specific type of prisoners which in its thinking does not seem suitable to be pardoned. A decision to pardon a given category of prisoners and not others of a different category is a matter of governmental policy. In the absence of any ill motives in making that choice, the aforementioned Article 34 justifies making it.
Where the President views it as reasonable to pardon those in the death row due to spread of the Covid virus within the prison premises, in that case, he is using his prerogative powers under the Constitution subscribed and protected under Article 34 of the Constitution. Other than the powers conferred on the President, we do not have any legislation in place to change an indeterminate period of punishment to a limited period of a sentence for incarceration to have a prisoner released after the appeals have exhausted.
Undoubtedly the President has the power in an appropriate case to commute any sentence imposed by a court into a lesser sentence. But the question as to whether the case is suitable for the exercise of that power depends on the facts and circumstances of each particular case. But the President cannot act independently in exercising the pardon power. When a sentence of death has been imposed, the President is subjected to the procedure stipulated in Article 34( See Proviso) The President cannot act according to his free will. And that power of Pardon is subject to judicial review.
The issue that concerns this article is, whether it is justifiable for the President to commute the death sentences to 20 years by a declaration and release all those who have served a sentence of twenty years; and the effect of such a ruling in the future concerning these offences.
The commutation of a sentence means the process of substituting the punishment imposed by a competent court with a lesser or lighter sentence.
Capital punishment or the death penalty can be defined as a punishment which is passed against a criminal who had committed a heinous and unforgivable crime under the Penal Law. Under this sentence in Sri Lanka, the life of the prisoner is put to an end by hanging. (Sec.286 Criminal Procedure Code).
The underworld kingpins in drug trafficking are a great menace in Sri Lanka. At one time, the previous government took steps to implement the death sentence and execute all those convicted in drug trafficking and those serving their term in the death row. Some of those convicts are presently serving life imprisonment. Ironically this government is thinking of releasing all of them.
Many countries which have abolished capital punishment view it as providing the criminal with an easy escape from all his wrongdoings through the sentence of death. Therefore, life imprisonment without parole or any remission is considered to be an equivalent punishment to capital punishment, which allows the State to punish the wrongdoer adequately without taking the life of such criminal who had committed a Capital Offence.
In India, after the insertion of section 433 A to the Criminal Procedure Code, imprisonment for life amounts to incarceration up to 14 years. The case of Swamy Shradananda, which is considered to be carrying a landmark judgment, that position was altered. As a sequel to that judgment, the courts are now empowered to substitute the death sentence with life imprisonment for a term of over 14 years and direct that the convict must not be released from prison for the rest of his life or until the actual period specified in the order is served. Whilst not endorsing the death sentence that was imposed on Swamy Shrdananda, the court found that since life imprisonment subject to remission customarily worked out to 14 years, it would be grossly disproportionate and inadequate, when considering the nature of the offence committed. ((Swamy Shrdananda v State of Karnataka- Supreme Court of India July 22, 2008)
In dealing with a life sentence as an alternative to a death sentence, the courts in India had systematically held that the persons convicted for murder, where the death penalty is not imposed, the convict should be incarcerated for a period for 30 years. He is not entitled to be released before the expiration of 30 years. The imprisonment for life must prima facie be treated as imprisonment for the whole life of the remaining period of the convicted person’s ‘natural life’ was the view of the Indian Supreme Court dealing with life imprisonment as an alternative to the death penalty.
The punishment for murder under India’s Penal Code is life imprisonment or death.
In England, persons who are found guilty of murder are given a mandatory life sentence. If the circumstances are severe enough, a ‘whole life order’ will be imposed meaning that the offender will never be released. The validity of the ‘whole life sentence’ was appealed. Now such a penalty will be reviewed after the convict has served a minimum of 25 years in prison. Amidst the severe spread of Covid, the government of Boris Johnson is proposing new laws to ensure that the most dangerous criminal spend longer in custody. The government has said that it would toughen sentences for violent offenders, including terrorists. Automatic early release of a convict at the halfway point is to be abandoned.
Usually, the minimum term the prisoner should serve is determined by the judge at the time of sentencing. Life sentences may be imposed with or without parole. The life sentence is intended for dangerous offenders who have committed the offences with the utmost brutality. In such circumstances the judge will set the minimum term he must serve before being eligible for release. Once the minimum term expires, the prisoner can apply for parole and will be released if he is deemed not to pose a threat to society. Once released he remains on license for the rest of his life. If the prisoner violates any of the conditions on the permit, he will be recalled. He will also be liable to be recalled if he becomes a threat to the public. At the moment, there are about 8,500 inmates serving life sentences. And around 60 with whole life sentences.
The parole board will decide whether or not the offender is safe to return into society. The decision of the parole board is based on evidence from the victim, health professional, prison staff and the offender.
These safeguards are essential to be considered in the event the prisoners who are now in our jails are to be released early or at any time.
The spread of the virus in the prisons may not be a good reason to release the dangerous offenders to society without a proper assessment of their behaviour.
Singapore’s laws maintained the mandatory death penalty for several offences. In 2012 the capital punishment laws were revised by the Singapore government. The mandatory death penalty for those convicted for drug trafficking or murder was lifted under specific conditions. Before the judgement of Abdul Nasir Bin Ahmed Hamsah,[1997] SGCA 38) a life sentence meant 20 years imprisonment, and with one-third remission for good behaviour, the offender would have to serve only 13 years and four months in jail. In the case of Abdul Nasir, the court clarified the meaning of ‘life sentence’. It held that in future cases, it should be interpreted to mean the whole duration of the person’s natural life and not merely 20 years. The first issue the court faced was whether the sentence of life imprisonment should equate to 20 years or the remainder of the convicted person’s natural life and concluded that unless the legislature in the future provides otherwise, this sentence should mean the rest of the person’s natural life.
The death penalty is the severest punishment prescribed in the Statute for grave offences. But this would not be the case if the death sentence was equated for 20 years. Death sentences would then become excluded as a part of the penal law of the land.
If the capital punishment is replaced by a period of imprisonment for 20 years, then persons who commit the most gruesome murder and all those large scale drug kingpins will be liable to spend even less than 14 years in prison once their period of good behaviour is deducted from the original sentence of twenty years of incarceration.
Where the method used for the commission of the original offence of murder is exceptionally gruesome or cruel, or the commission of the drug offence is spread wide and pervasive the sentence should be commensurately applicable, a sentence of less than 14 years would be grossly inadequate.
Where the legislature believes that sentence for murder and drug trafficking should be 20 years as an equivalent to capital punishment, then they should remove the death sentence as a mandatory sentence. Then the judge who heard the case would be given the discretion to impose the appropriate sentence to fit the crime and decide the suitable length of the convict’s incarceration.
A Presidential Declaration cannot equate the death penalty to an imprisonment of 20 years. Such a declaration would amount to abolishing the death penalty, which is authorized as a legitimate punishment under the 1978 Constitution. There is no provision to equate a death sentence to 20 years. It violates the Constitution and violates the “truth in sentencing.”The death sentence would mean that convicts life is put to an end.
It will not be justifiable without any legal provision being put in place, for a court to commute the death sentence to life imprisonment, and equate it to imprisonment for twenty years, only, through a Presidential declaration.
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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
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By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
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Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!
