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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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Terror figuring increasingly in Russian invasion of Ukraine

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In yet another mind-numbing manifestation of the sheer savagery marking the Russian invasion of Ukraine, a shopping mall in Ukraine’s eastern city of Kremenchuk was razed to the ground recently in a Russian missile strike. Reportedly more than a hundred civilian lives were lost in the chilling attack.

If the unconscionable killing of civilians is a definition of terrorism, then the above attack is unalloyed terrorism and should be forthrightly condemned by all sections that consider themselves civilized. Will these sections condemn this most recent instance of blood-curdling barbarism by the Putin regime in the Ukrainian theatre and thereby provide proof that the collective moral conscience of the world continues to tick? Could progressive opinion be reassured on this score without further delay or prevarication?

These issues need to be addressed with the utmost urgency by the world community. May be, the UN General Assembly could meet in emergency session for the purpose and speak out loud and clear in one voice against such wanton brutality by the Putin regime which seems to be spilling the blood of Ukrainian civilians as a matter of habit. The majority of UNGA members did well to condemn the Russian invasion of Ukraine close on the heels of it occurring a few months back but the Putin regime seems to be continuing the civilian bloodletting in Ukraine with a degree of impunity that signals to the international community that the latter could no longer remain passive in the face of the aggravating tragedy in Ukraine.

The deafening silence, on this question, on the part of those sections the world over that very rightly condemn terror, from whichever quarter it may emanate, is itself most intriguing. There cannot be double standards on this problem. If the claiming of the lives of civilians by militant organizations fighting governments is terror, so are the Putin regime’s targeted actions in Ukraine which result in the wanton spilling of civilian blood. The international community needs to break free of its inner paralysis.

While most Western democracies are bound to decry the Russian-inspired atrocities in Ukraine, more or less unambiguously, the same does not go for the remaining democracies of the South. Increasing economic pressures, stemming from high energy and oil prices in particular, are likely to render them tongue-tied.

Such is the case with Sri Lanka, today reduced to absolute beggary. These states could be expected ‘to look the other way’, lest they be penalized on the economic front by Russia. One wonders what those quarters in Sri Lanka that have been projecting themselves as ‘progressives’ over the years have to say to the increasing atrocities against civilians in Ukraine. Aren’t these excesses instances of state terror that call for condemnation?

However, ignoring the Putin regime’s terror acts is tantamount to condoning them. Among other things, the failure on the part of the world community to condemn the Putin government’s commissioning of war crimes sends out the message that the international community is gladly accommodative of these violations of International Law. An eventual result from such international complacency could be the further aggravation of world disorder and lawlessness.

The Putin regime’s latest civilian atrocities in Ukraine are being seen by the Western media in particular as the Russian strongman’s answer to the further closing of ranks among the G7 states to the Russian invasion of Ukraine and the issues growing out of it. There is a considerable amount of truth in this position but the brazen unleashing of civilian atrocities by the Russian state also points to mounting impatience on the part of the latter for more positive results from its invasion.

Right now, the invasion could be described as having reached a stalemate for Russia. Having been beaten back by the robust and spirited Ukrainian resistance in Kyiv, the Russian forces are directing their fire power at present on Eastern Ukraine. Their intentions have narrowed down to carving out the Donbas region from the rest of Ukraine; the aim being to establish the region as a Russian sphere of influence and buffer state against perceived NATO encirclement.

On the other hand, having failed to the break the back thus far of the Ukraine resistance the Putin regime seems to be intent on demoralizing the resistance by targeting Ukraine civilians and their cities. Right now, most of Eastern Ukraine has been reduced to rubble. The regime’s broad strategy seems to be to capture the region by bombing it out. This strategy was tried out by Western imperialist powers, such as the US and France, in South East Asia some decades back, quite unsuccessfully.

However, by targeting civilians the Putin regime seems to be also banking on the US and its allies committing what could come to be seen as indiscretions, such as, getting more fully militarily and physically involved in the conflict.

To be sure, Russia’s rulers know quite well that it cannot afford to get into a full-blown armed conflict with the West and it also knows that the West would doing its uttermost to avoid an international armed confrontation of this kind that could lead to a Third World War. Both sides could be banked on to be cautious about creating concrete conditions that could lead to another Europe-wide armed conflict, considering its wide-ranging dire consequences.

However, by grossly violating the norms and laws of war in Ukraine Russia could tempt the West into putting more and more of its financial and material resources into strengthening the military capability of the Ukraine resistance and thereby weaken its economies through excessive military expenditure.

That is, the Western military-industrial complex would be further bolstered at the expense of the relevant civilian publics, who would be deprived of much needed welfare expenditure. This is a prospect no Western government could afford to countenance at the present juncture when the West too is beginning to weaken in economic terms. Discontented publics, growing out of shrinking welfare budgets, could only aggravate the worries of Western governments.

Accordingly, Putin’s game plan could very well be to subject the West to a ‘slow death’ through his merciless onslaught on the Ukraine. At the time of writing US President Joe Biden is emphatic about the need for united and firm ‘Transatlantic’ security in the face of the Russian invasion but it is open to question whether Western military muscle could be consistently bolstered amid rising, wide-ranging economic pressures.

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At 80, now serving humanity

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Thaku Chugani! Does this name ring a bell! It should, for those who are familiar with the local music scene, decades ago.

Thaku, in fact, was involved with the original group X-Periments, as a vocalist.

No, he is not making a comeback to the music scene!

At 80, when Engelbert and Tom Jones are still active, catering to their fans, Thaku is doing it differently. He is now serving humanity.

Says Thaku: “During my tenure as Lion District Governor 2006/2007, Dr Mosun Faderin and I visited the poor of the poorest blind school in Ijebu Ode Ogun state, in Nigeria.

“During our visit, a small boy touched me and called me a white man. I was astonished! How could a blind boy know the colour of my skin? I was then informed that he is cornea blind and his vision could be restored if a cornea could be sourced for him. This was the first time in my life that I heard of a cornea transplant. “

And that incident was the beginning of Thaku’s humanity service – the search to source for corneas to restore the vision of the cornea blind.

It was in 2007, when Dr Mosun and Thaku requested Past International President Lion Rohit Mehta, who was the Chief Guest at MD 404 Nigeria Lions convention, at Illorin, in Nigeria, to assist them in sourcing for corneas as Nigeria was facing a great challenge in getting any eye donation, even though there was an established eye bank.

“We did explain our problems and reasons of not being able to harvest corneas and Lion Rohit Metha promised to look into our plea and assured us that he will try his utmost best to assist in sourcing for corneas.”

Nigeria, at that period of time, had a wait list of over 70 cornea blind children and young adults.

“As assured by PIP Lion Rohit Mehta, we got an email from Gautam Mazumdar, and Dr. Dilip Shah, of Ahmedabad, in India, inviting us for World Blind Day

“Our trip was very fruitful as it was World Blind Day and we had to speak on the blind in Nigeria.”

“We were invited by Gautam Mazumdar to visit his eye bank and he explained the whole process of eye banking.

“We requested for corneas and also informed him about our difficulties in harvesting corneas.

“After a long deliberation, he finally agreed to give us six corneas. It was a historical moment as we were going to restore vision of six cornea blind children. To me, it was a great experience as I was privileged to witness cornea transplant in my life and what a moment it was for these children, when their vision was restored.

“Thus began my journey of sight restoration of the cornea blind, and today I have sourced over 1000 corneas and restored vision of the cornea blind in Nigeria, Kenya and India till date.

“Also, I need to mention that this includes corneas to the armed forces, and their family, all over India.

“On the 12th, August, 2018, the Eye Bank, I work with, had Launched Pre-Cut Corneas, which means with one pair of eyes, donated, four Cornea Blind persons sight will be restored.”

Thaku Chugani, who is based in India, says he is now able to get corneas regularly, but, initially, had to carry them personally – facing huge costs as well as international travel difficulties, etc.

However, he says he is so happy that his humanitarian mission has been a huge success.

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Health services face imminent collapse due to fuel crisis

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A file picture of a recent doctors’ protest

By Dr B. J. C. PERERA

MBBS(Cey), DCH(Cey), DCH(Eng), MD(Paed), MRCP(UK), FRCP(Edin), FRCP(Lon), FRCPCH(UK), FSLCPaed, FCCP, Hony FRCPCH(UK), Hony. FCGP(SL)

Specialist Consultant Pediatrician and Honorary Senior Fellow, Postgraduate Institute of Medicine, University of Colombo, Sri Lanka.

Our free National Health Service is something that brings succor to the poorest of the poor, as well as even the well-to-do, and everybody in-between. As a country and a nation, we are so proud of our health services. In fact, as a developing country, we have shown the entire world how much can be accomplished, even with our meager resources, and with so few facilities made available to us in our health facilities. Our healthcare personnel are second to none anywhere else on the planet, and they try to do their best, even under trying circumstances.

There are shortages of medicines, disposable articles and equipment in our healthcare institutions. It has really gotten worse during the current economic crisis. Yet, we have managed to rise above all that, innovate, beg, borrow and do our best for the patients who come to us. Generally, our health workers will not allow a life to be lost without a fight. A case in point is how these personnel, from the lowest-ranked to the highest, rose and fought tooth and nail during the current COVID-19 pandemic. They worked without any worthwhile rest, even foregoing their meals when things had to be done to save lives. Our countrymen and countrywomen hailed us as their saviours, singing hosannas to all of them for so selflessly handling the crisis. The healthcare personnel showed results and they sacrificed many things and went through hell on earth, to save lives.

However, there is a looming dragon that is likely to inflict telling blows to cripple this hallowed service that is provided for our people. It is not due to shortages of drugs or equipment. Those can be handled to the very best of our abilities. The problem is due to severe human resource depletion that is the likely result of the current fuel shortage. It is a looming catastrophe, as large as life, where our healthcare personnel will not be able to get to their places of work, and they will not be able to respond to sudden emergencies, as there is no transport. The government, ministers and all other stupid politicians do not seem to realise this, and perhaps could not even care less about that. That is of course to be expected, as they have their agendas. They will somehow get their things done, but the people who suffer would be the poor who come to our hospitals.

However, the most distressing thing about this entire fiasco is how among our general public, the thugs, ruffians, desperados, those engaged in nefarious hoarding of fuel and all kinds of Mafias, are beginning to treat healthcare personnel at fuel queues and fuel sheds. Healthcare personnel are not asking for special treatment at fuel stations. They are an absolutely essential service, and all they are asking is for some fuel to enable them to attend to their essential service provisions. Even ambulances have to wait in queues, and are not allowed by the irate public to get priority for fuel.

A couple of weeks ago we saw in the news that a lady doctor driver was driven away from a fuel station by a mob. The most distressing thing about that entire episode was the bravado of a non-health staff lady driver, who shouted with powerful gesticulation of her arms that she had children in the car and could not make concessions to lady doctors. God forbid, but what if one of those children suddenly fell ill and the person to attend to them was the very same lady doctor who was chased away, and that person was not able to get to the hospital due to the lack of fuel?

Starting from Friday the 24th of June 2022, there was a lukewarm arrangement made to provide fuel to essential services, from certain designated fuel stations. every Friday. This was not communicated properly through all the media, and in very many places the public vehemently objected to this. The Borella junction Ceypetco fuel shed was one of the stations which were allocated for this purpose, where the essential services people, including healthcare personnel, queued up in their vehicles from around 6.00 am. The bowsers of fuel arrived only in the late evening, after a 12-hour long wait. There was hardly any security cover and virtually a free for all, with the sparse security personnel turning a blind eye to all the misdemeanors of the general public. There were loads of nurses, doctors and other healthcare workers from the National Hospital, Lady Ridgeway Hospital for Children, National Eye Hospital, De Soysa Maternity Hospital and the Castle Street Hospital for Women, who were in these vehicle queues, twiddling their thumbs and being forced to keep away from their places of work. No doubt, these hospitals worked with only minimal skeleton staff. All these hospitals have a collective staff strength running into very large numbers, all working in an absolutely vital essential service. In some outstation areas, the incensed public insisted on the healthcare personnel queuing up with the general public, even on that dedicated Friday, and at least in one area, the hospital had to be closed as most of the hospital staff had to be in fuel queues. For whatever it is worth, this writer has not been able to see his patients for more than a week due to lack of fuel.

Unless a proper system to provide fuel to essential services is implemented by this impotent government, this situation will go from bad to worse. Many hospitals will have to be closed, not due to strikes or trade union actions, but due to a lack of human resources to run the hospitals. Medical personnel will not be able to attend to emergencies, especially outside working hours, and many lives will be lost. Our inability to provide timely treatment could also lead to some patients being maimed for life.

So be warned, our people of our own country. Selfishness and scant regard for law and order on the part of the general public will lead to an unprecedented catastrophe. There will be riots inside and outside the medical institutions with damage to public property. Innocent lives will be lost and blood will necessarily have to be on the hands of the decision-makers and the powers-that-be.

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