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.