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Pardons Remissions and Releases

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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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Features

31st night…Down Under

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The NYE scene at the Grand Reception Centre, in Melbourne

Despite the COVID-19 restrictions, the Voluntary Outreach Club (VOC) in Victoria, Australia, was able to hold a successful New Year’s Eve celebration, at The Grand Reception Centre, in Cathies Lane, Wantirna South.

In a venue that comfortably holds 800, the 200 guests (Covid restrictions), spanning three generations, had plenty of room to move around and dance to the array of fabulous music provided by the four bands – Replay 6, Ebony, Cloud 9 with Sonali, Redemption and All About That Brass. 

The drinks provided, they say, oiled the rusty feet of the guests, who were able to finally dress up and attend such an event after nine months of lockdown and restrictions. With plenty of room for dancing, the guests had a thoroughly enjoyable time. 

According to an insider, the sustenance of an antipasto platter, eastern and western smorgasbord, and the midnight milk rice and katta sambol, were simply delicious, not forgetting the fantastic service provided by Jude de Silva, AJ Senewiratne and The Grand staff.

The icing on the cake, I’m told, was the hugely generous sponsorship of the bands by Bert Ekenaike. This gesture boosted the coffers of the VOC, which helps 80 beneficiaries, in Sri Lanka, comprising singles and couples, by sending Rs. 3,000 to Rs. 3,500, per month, to each of these beneficiaries, and augmenting this sum, twice a year, in July and December, with a bonus of the same amounts.

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Fall armyworm:

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Strategies for effective management

by Prof. Rohan Rajapakse

Emeritus Professor of Entomology University of Ruhuna and former Executive Director Sri Lanka Council of Agriculture Research Policy

Fall armyworm Spodoptera frugiperda (Lepidoptera; Noctuidae), a quarantine pest, has been identified as a very destructive insect pest of Maize/Corn. This insect originated in Americas and invaded the African region in 2016 and was detected in India the following year and perhaps would have naturally migrated to Sri Lanka last year from India. Now, it is reported that FAW is present in all districts of Sri Lanka except Nuwara-Eliya and Jaffna. In winter in the USA the pest is found in Texas and Florida and subsequent summer when it gets warmed up, the pest migrates up to the Canadian border. The corn belt of China is also at a risk due to its migratory habit and the cost to Africa, due to this invasion, will exceed $ 6 billion. Maize is a staple food crop in Africa and millions depends on it for food. Hence in Africa and now in Asia it is a global food security issue for millions of people that could be at a risk if FAW is not controlled. The adult moth migrates very fast almost 100 km every night and nearly 500 km, before laying 1,500 eggs on average. The entire life cycle lasts 30 days in tropical climate. There are six larval instars and mostly the destruction is caused by the last three instars and the growing moth pupates in the soil for 10-12 days and the nocturnal adults lay eggs on leaves for about 10 days The pest thrives on about 80 host plants but the most preferable host is Corn/Maize. In Sri Lanka the preferred hosts includes Kurakkan and Sugarcane in addition to Maize. The symptoms of damage- scrapping of leaves, pin holes, small to medium elongated holes. Loss of top portion of leaves fecal pellets in leaf whorl which are easily recognizable. The Comb is also attacked in later stages with a heavy infestation, but after removing the FAW affected portion of the comb the remaining portion is still suitable for consumption and there is no fear of any toxicity. There are two morphologically identical strains––maize strain that feeds on maize and sorghum, and rice strain that feeds on rice and pasture grasses. However, in Sri Lanka only the maize strain has been detected so far. FAW thrives in a climate where drought is followed by heavy rains on a similar way we have experienced last year.

Although new agricultural insect pests are found in Sri Lanka, from time to time a number of factors make FAW unique (FAO Publication 2018)

1

FAW consumes many different crops 2 FAW spreads quickly across large geographical areas 3.FAW can persists throughout the year. Therefore Sri Lanka needs to develop a coordinated evidence based effort to scout FAW for farming communities and effective monitoring by the research staff

 

Management

Since the pest has already arrived in Sri Lanka, the Government/ Ministry of Agriculture should formulate short, mid and long term strategies for its effective management with all stakeholders. Also it has to be clear that a single strategy ex pesticides will not help in effective control but a proper combination of tactics, such as integrated pest management should be employed in the long term. In the short term, the recommended pesticides by the Department of Agriculture should be employed along with cultural and sanitary control strategies. These strategies have now been formulated and what is required to enlighten the farmers and people by utilizing the trained staff. The country should be placed on a war footing and an emergency should be declared in the affected areas to coordinate the control strategies. The integrated control tactics, such as cultural control, should be integrated with pesticides based on the recommendation of the research staff. The residues should be destroyed after harvest and avoid late planting and staggered planting. The Ministry of Agriculture should create awareness among the farmers and train the farmers on early detection of egg masses found on leaves and destroy them by hand. The pesticides for FAW control is recommended by the Department of Agriculture (Please contact Registrar of Pesticides of the Department of Agriculture for the recommended list of Pesticides) and they have to make it available at subsidized rates or given free with technical information considering the emergency. When the larvae are small early detection and proper timing of pesticides are critical for elimination of the pest. With this outbreak some farmers and the private sector is engaged using highly hazardous pesticides which should be avoided to make way for sustainable alternatives. The Department Entomologists should train the farmers for early detection of egg masses when present on 5% of the plants and when 25% of the plants show damage symptoms and live larvae are present on war footing. The economic threshold has been calculated as 2-3 live larvae per plant and the control strategies should commence as soon as this threshold is detected by visual observation. The majority of development officers, agriculture and science graduates working in Divisional Secretariats, are already trained on pest control and their participation on training the farmers for early detection and pesticide selection and application warrants the strategy. Some of the recommended pesticides are follows: Chlorantraniliprole 200g/1SC: Trade name Corogen, Emamectin benzoate 5%SG: Trade name Proclaim,, Flubendiamide 24% WG : Trade name Belt. The Principle Entomologist of the Dry Zone Research Station of the Department of Agriculture ( Mrs KNC Gunawardena) has prepared an effective online presentation on FAW control and this has to be shared by all. The African country Ghana has declared a state of emergency in response to this invasion as Maize is a staple crop which should be followed by us in Sri Lanka.

The long term strategies include early detection. Stopping its spread and initiation of a long term research programme to identify tolerant varieties and granting permission to import such varieties as seeds. The country should ear mark on a Biological control strategy by breeding and releasing FAW parasitoids regularly. In USA larval parasitoids such as Apanteles marginiventris, Chelonus insularis and Microplitis manilae have contributed to keep the pest population down along with egg parasitoids Trichrogramma spp and a similar program should be initiated in the affected districts. Finally the best option is to establish a task force with the involvement of entomologists, extension personnel along with the administrators and scientists working in the universities to ensure the country are safe with regards to food security

 

 

The author has read for a PhD at University of Florida Gainesville in the USA in 1985 and his PhD thesis exclusively deals on Fall armyworm parasitoids and its ecology

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President’s decision on Colombo Port in national interest

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by Jehan Perera

President Gotabaya Rajapaksa has announced that the government will be entering into an agreement with the Adani Group, based in India, to offer them 49 percent of the shares in a joint venture company. This joint venture will include Japanese government financing and will manage one of the terminals in the Colombo port. The entry of Adani Group, into the Colombo port, has been opposed by a wide coalition of organisations, ranging from port workers, and left political parties, to nationalists and civil society groups. These groups have little in common with each other but on this particular issue they have made common cause and even held joint protests together. The main thrust of their objections is that control over the East Terminal of the Colombo port will pass into foreign hands and result in an erosion of Sri Lankan sovereignty.

The cause for alarm, among the protesting groups, may be fueled by the observation that one by one, the ports of Sri Lanka are being utilized by foreign powers. In particular, China has entered into Sri Lanka in a big way, obtaining a 99-year lease in the Hambantota port that it constructed. The Hambantota port, in its early period, showed it was economically unviable in the absence of Chinese cooperation. The burden of debt repayment induced the previous government to enter into this agreement which may become unfavorable in terms of national sovereignty. There were protests at the time of the signing of that lease agreement, too, though not as effective as the present protests regarding the change of management in the Colombo port, which is led by the very forces that helped to bring the present government into power.

In addition to the Hambantota port, control over the South Terminal in the Colombo port, and a section of the harbour, has been given to China through one of its companies on a 35-year lease. In both cases, large Chinese investments have helped to upgrade Sri Lanka’s capacity to attract international shipping lines to make use of the port facilities. The Hambantota port, in particular, could benefit enormously from Chinese ships that traverse the Indian Ocean, the Middle East and Africa. Instead of making refuelling stops elsewhere along the way, such as Singapore, they could now come to Hambantota. However, with these investments would also come a Chinese presence that could cause concerns among international actors that have geopolitics in mind. It may be that these concerns are finding expression in the opposition to the Indian entry into the Colombo port.

 

RATIONAL ANALYSIS

It will not only be Sri Lankans who are concerned about the Chinese presence in the country’s ports. As Sri Lanka’s nearest neighbour, India, too, would have concerns, which are mirrored by other international powers, such as Japan. It might be remembered that when Japan’s prime minister visited Sri Lanka, in 2014, there was a diplomatic furor that a Chinese submarine entered the Colombo port, unannounced, even to the Sri Lankan government, and docked there. With its excellent relations with China, that go back to the 1950s, when the two countries signed a barter agreement, exchanging rice for rubber, most Sri Lankans would tend to see such Chinese actions in a benign light. In recent years, China has emerged as Sri Lanka’s largest donor and its assistance is much appreciated. However, India’s relations with China are more complex.

The two countries have massive trade links, but they have also gone to war with each other due to territorial disputes. Even at the present time Indian and Chinese troops are in a stand-off on their disputed Himalayan border. In this context, India would be concerned that the Chinese presence in Sri Lankan ports could eventually take the form of an overall strategy to encircle it and use this leverage to India’s disadvantage. Sri Lanka’s location at the bottom of the Asian continent gives it a strategic importance in the Indian Ocean that goes beyond any possible India-China rivalry. The recent visit of US Secretary of State to Sri Lanka included an acerbic exchange of words between the US and Chinese representatives on that occasion and an open call to Sri Lanka to take sides, or not to take sides. As a small actor in itself, Sri Lanka would have no interest in getting involved in international geopolitics and has a longstanding policy of non-alignment and friendship with all.

More than anyone else, President Gotabaya Rajapaksa would be aware of these geopolitical issues. As Defence Secretary, during the years of war with the LTTE, he was a key member of the government team that obtained wide ranging international support for prosecuting the war. Today, the President’s key advisers include those with military backgrounds who have special expertise in geopolitical analysis and who have spent time in leading military academies in different parts of the world, including the US, China and India. This contrasts with the more parochial thinking of political, nationalist and even civil society groups who have come out in opposition to the agreement that the government has entered into with the Indian company to manage the Eastern Terminal of the Colombo port.

 

GEOPOLITICAL IMPERATIVE

President Rajapaksa was elected to the presidency in the context of the security debacle of the Easter Sunday suicide bomb attacks and with the expectation that he would provide clear-cut leadership in protecting the country’s national security without permitting partisan interests from becoming obstacles. In his meeting with the representatives of the trade unions, opposing the handing of management of the Eastern Terminal to foreign hands, the President is reported to have said that geopolitics had also to be taken into account. As many as 23 trade unions, representing the Ports Authority, the National Organisations collective, and a number of civil organizations, have joined the formation of a new national movement named the ‘Movement to protect the East Container Terminal’.

One of those political representatives at the meeting, leader of the Frontline Socialist Party (FSP), Pubudu Jayagoda, is reported to have said, “When trade unions met President Gotabaya Rajapaksa on Wednesday (13), he told them about the broad geopolitical factors in play. This is reminiscent when the unions met former Prime Minister Ranil Wickremesinghe a few years back. The unions told Wickremesinghe what they told Rajapaksa––the ECT could be operated by Sri Lanka in a profitable manner. Wickremesinghe told the union representatives, ‘You are talking about the port, I am talking about geopolitics’.” However, former Prime Minister Wickremesinghe may not have had the necessary political power to ensure that his vision prevailed and failed to ensure the implementation of the agreement.

Entering into the agreement with the Indian company will serve Sri Lanka’s national interests in several ways. By ensuring that India is given a presence in Sri Lanka’s most important port, it will reassure our closest neighbour, as well as Japan, which has been Sri Lanka’s most consistent international donor, that our national security interests and theirs are not in opposition to each other. Second, it takes cognizance of the reality that about two-thirds of the Colombo port’s shipping is due to transshipment with India, and thereby ensures that this profitable business continues. Third, it will give Sri Lanka more leverage to negotiate with India regarding key concerns, which includes Indian support to Sri Lanka at international forums and in providing guarantees for the unity of the country in the face of possible future threats and the need to ensure devolution of power to satisfy ethnic minority aspirations.

 

 

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