20th July 1997

The 'convict' and the suspended sentence

By Mudliyar

Minister G.L. Peiris, delivering the Felix R. Dias Bandaranaike commemoration lecture referred to the introduction of the suspended sentence which was a new concept in our criminal jurisprudence.

"It is Felix who recognised the lacuna that existed in the laws of 1973 and introduced this totally new idea into the criminal jurisprudence in Sri Lanka. The Judge will hand down the sentence, but there is what Felix's law referred to as an 'operational period'. During that 'operational period' if the accused person commits a second offence, it is only then that the punishment imposed on the first occasion will take effect. In other words, what is Felix saying? Felix is saying that society will pardon this man. It will extend to the offender some degree of forgiveness and understanding, and society, according to Felix's law, is in fact is telling the offender, 'we understand you, we sympathise with you on this occasion, but we cannot tolerate such behaviour in the future. If therefore you are successful in refraining from such delinquent activity during the operational period then you will not have to go to prison'. If however there is a recurrence of criminal activity during the period then the punishment handed down on the previous occasion will take effect."

What the learned Professor did not deal with is what happens in a situation where the accused does not commit any subsequent offence during the 'operational period'. I believe one of the most important aspects of the suspended sentence is to completely exonerate the person found guilty if he or she does not commit any future offence during the operational period.

Section 303(5) of the Code of Criminal Procedure Act No: 15 of 1979 states, 'if the offender does not commit a subsequent offence during the operational period the conviction and the suspended sentence imposed on the offender shall be deemed for all purposes never to have been entered or imposed'.

As far as I can see this is the most innovative section that was introduced by Felix Dias Bandaranaike. If the accused does not commit any offence during the operational period the law will treat him as a person who has never been convicted in a Court of Law and the sentence never to have been entered or imposed. This provision where a conviction is completely erased from the case records was not there even under the conditional discharge of offenders which was available under the old Criminal Procedure Code.

Therefore, anyone convicted of an offence and given a suspended sentence under the provisions of the Criminal Procedure Code cannot be treated as a convict until he commits another offence and is found guilty of that offence. It is only then does the Court order the first offence to take effect immediately. He will then be punished for the first offence and the subsequent offences as well.

The most salutary provision in this new method of punishment introduced for the first time in Sri Lanka by Felix Dias Bandaranaike, was that a person found guilty of any offence will not be treated or considered as a convict unless he commits a subsequent offence within the operational period. If he commits another offence immediately after the operational period the Court shall not consider the first conviction and the sentence, imposing the sentence for the subsequent offence. Therefore, the legal luminaries, the state media men who virtually crucified Sinha Ratnatunga as a 'convict' in my contention have themselves committed the offence of criminal defamation.

Some media men who are on the payroll of the Government compared the conviction of Mr. Ratnatunga and the sentence imposed on him to that of a rapist and of a murderer who had been convicted and sentenced. I cannot recall of any person who had been convicted of murder being released from Court on a suspended sentence. Though in some rape cases on the accused tendering of a plea of guilt the Courts did impose a suspended sentence. This discretion vested in the High Court to impose a suspended sentence to a rapist is now removed and mandatory jail sentence is imposed. Therefore the comparison of a person convicted of criminal defamation, with any other offence like murder, rape and possession of heroin is unreasonable and unrealistic.

The offence of criminal defamation is a compoundable offence and an offence that could have been referred to the mediation board. Further this is an offence where no private party can file action for defamation in the Magistrate Court on a private plaint as the sanction of the Attorney General is mandatory. Therefore if Silva defames the President he can be indicted in the High Court. But if the President defames the judges of the Supreme Court accusing them of various misdemeanours no one can charge the President as the President is immune from legal action. But if Silva defames a Minister he will be indicted but if the Minister defames Silva he (Silva) will have to lodge a complaint at the nearest Police Station and the Police will probably use a third degree method for having complained against the Minister. Nevertheless if he insists then the statement may be recorded. Again the Police may not record what the complainant says, but what the Police Officer desires to record in order to weaken the case against the Minister. Later a typed brief will be submitted to the Attorney General's Department and it will be kept in custody until the Government changes. Then when the new Government is formed the Attorney General's Department will probably enter Nolle prosecui for all pending actions against newspaper editors and others but will prosecute the Minister for criminally defaming Silva, provided the ex Minister does not have friends in the new government. The criminal defamation laws in Sri Lanka are as old as the Criminal Procedure Code. So the right of a person to sue another person for criminal defamation depends on the Attorney General. I believe this is one of the reasons considered by the R.K.W. Goonasekera Committee which recommended a repeal of these laws from the Statute Book.

We take this opportunity to congratulate Bar Association Chief Romesh De Silva, P.C. for the speed with which he acted in convening a meeting of the Executive Committee of the Bar Council to discuss a resolution regarding the garlanding of the editor of The Sunday Times by one of its illustrious members, Desmond Fernando, P.C.

Apparently some members of the Council were moved so much by this action of Mr. Fernando they thought that the garlanding of one of their colleagues and a life member of their association by its former President and President of the International Bar Association was an affront to the judiciary.

The very same members who took a stand for preserving the independence of the judiciary did not say that the real reason was not the judiciary but may have been an affront to the complainant, the President of the country. The very same Bar Association was extremely effective in stifling the resolution brought by some members to condemn the complainant for having made some statements regarding the Supreme Court The complainant had the privilege of immunity afforded to her to make these statements. But she was not immune from a resolution of the Bar.

Then there was another member of Parliament against whom the Supreme Court made an order for having violated the fundamental rights of a citizen. He came over National TV and castigated the Supreme Court and specially the judge who made that order against him. But the Bar Association and some members who were moving heaven and earth were silent and no action was taken to prevent such abuse in the future. The Executive Committee was absolutely mum, and the cahoots of the Government were able to stifle any protest.

The members of the Association voted overwhelmingly to elect Romesh De Silva P.C. as he was very vocal as a Member of the Council against such blatant interference of the Judiciary by the Executive. He made a soul stirring speech at his convocation in the presence of the present Minister of Justice. Some said it was only a speech to please his critics. as all elected people and politicians would do quite the opposite. But those who expressed these sentiments were people who had other reasons for saying so. The majority expected him to remain apolitical, and fight for the cause of justice and the rule of law.

When Minister G.L. Peiris made a sweeping statement about Fort Magistrate Mervyn Wijetunga, with regard to the Punchinilame affair, some senior lawyers were of the opinion the statement attributed to Dr. Peiris was not only an affront to the judiciary but an attempt at coercing the judges to act according to the dictates of the executive.

Romesh De Silva, P.C. and other members of the Executive Committee may have seen the statement appearing in the front page of the Daily News. The Executive Committee was silent. It was the view of some members that this matter should be brought to the notice of the Executive Committee. But there was no murmur of protest and no discussion about this matter even at an ordinary meeting of the Executive Committee. When this statement appeared in the newspapers there was no High Court Lawyer's Association to express concern about such a statement.

When the Judges were not promoted by the Executive, and on a number of times, the Judges of the Court of Appeal had expressed concern that they have to work with fewer judges as judges were not being promoted to fill the vacancies. This was an important matter which concerns the administration of justice.

Was the non promotion of judges on any ground less important for the administration of justice than the garlanding of an editor who had been given a suspended sentence and his conviction operates only if he is found guilty of a subsequent offence?

The pet excuse of the Executive Committee would be that these matters were not brought to their notice. Suddenly the Executive Committee which was silent perhaps with the grace of the Almighty had recovered its senses and decided on its own motion to discuss the matter of garlanding the editor of the Sunday Times.

We do not for a moment accept the rumour that a Minister or a politician wanted Romesh de Silva to act and condemn Desmond Fernando, but still the rumour persists at the Hulftsdorp Hill.

When Romesh De Silva was a member of the Bar Council I distinctly remember of an incident where some lawyers of the Horana Bar had invited the Minister of Justice to discuss various problems they faced, especially the lack of office accommodation. The Minister then met the judges of Horana courts and lawyers and had a cordial discussion. A report and a picture appeared in the Daily News. Mr. Silva took serious exception to this and said that the judges should not meet the Minister and if the Minister does meet the judges the lawyers should not participate at these discussions. These were the very noble sentiments expressed by Mr. Silva. Though some members of the council rejected these views, others thought that there was nothing wrong in the manner the judges or the members of the Horana Bar hosted the Minister.

Romesh de Silva is now the President of the Bar and may or maynot have changed his views. He went to Avissawella to participate at a ceremony where some plots of land were to be allocated to lawyers to build an office complex. Other distinguished persons present at this ceremony were Dr. Peiris and the judges of the Avissawella courts. Mr. Silva's speech at Avissawella was reported very prominently on the Daily News.

Romesh de Silva requested the Administrative Secretary to summon an Executive Meeting to be held at the President's Counsel's Room at the Supreme Court Complex, but most members could not attend as some members are from the outstations and others could not be contacted.This shows the enthusiasm with which the Bar Association acted about the garlanding affair. What is most interesting is that Mr. Silva had the resolution ready and due to two important members opposing it the meeting was postponed.

The Daily News reporter was constantly telephoning the Bar Association office to find out the text of the resolution and to know whether it was adopted. Your guess is good as mine as to how the Daily News reporter knew about the text of the resolution and that an emergency meeting of the Executive Committee was summoned . Mr.de Silva forgot the provisions of the BASL constitution which states that 'At least three days notice of a meeting of the Executive committee shall be given to each member unless such notice be waived expressly by such member.'

When there were other important and burning issues the Executive Committee which believed that the matter of politicians castigating judges must brought to the notice of the committee by motion, sat to pass a resolution against one person right throughout his career as a lawyer fought for the independence of the Judiciary. He is a person who even in his wildest dreams would have ever wanted to criticise the order of the judge. He is one of the few people who opposed the removal of Judges by J.R. Jayewardene, and the stoning and parading in front of Judges houses.

I believe with this precedent the Executive Committee will discuss the failure of the Executive to promote the second senior most Judge of the High Court Shirani Thilakewardene to the Appeal Court. The Bar will obviously say that it is the prerogative of the Executive and no one can question such a decision. Depending who is the President of the Bar Association and depending which Government is in power, the Bar would react very differently under different circumstances. When Justice Wanasundara was overlooked and Parinda Ranasinghe was appointed as the Chief Justice, there was a resolution in the Bar Association expressing concern of the super cession of Justice Parinda Ranasinghe overlooking Justice Wanasundara, as the Chief Justice.

Justice Parinda Ranasinghe was one of the Chief Justices who in spite of these resolutions of the Bar worked very closely with the Bar Association. He will go down in the history of Sri Lanka as the first Chief Justice of Sri Lanka who waived the Supreme Court rules to accommodate the letters written by the detenues of various detention Camps and granted them permission to inquire their grievances and got the co-operation of Desmond Fernando and his new found Human Rights Centre to support these application in Court.

Shirani Thilakewardene was one of the most astute Judges in the High Court and is known for her absolutely independent qualities. She was not promoted to the Court of Appeal, but we do not for a moment say that T.B. Weerasuirya, High Court Judge, Panadura, is any way less qualified than Ms. Thilakewardene, as much as Mr. Parinda Ranasinghe was not less qualified than Mr. Wanasundara to be the Chief Justice of Sri Lanka. But nonetheless the Bar thought it was a kind of an interference to the independence of the Judiciary by the Executive. I do not know the position of the Bar, and what the newly formed High Court Lawyers Association would think of Ms. Thilakewardene not being promoted to the Court of Appeal. I would like to refer to the judgment of Justice Mark Fernando in Shiranee Bandaranaike's case, where he said that when the appointments are made the Executive must consult the Chief Justice and act on his recommendations. We at the Bar are certain that the Chief Justice would have recommended Ms.Thilakewardena, but we know most politicians dislike fiercely independent judges.

Then there was the decision of the Attorney General with regard to Rienzi Arsakularatne's handling of his own brother-in-law's file. The Attorney General made a strange pronouncement about his ruling on matters concerning friends and relatives of those in the Attorney General's Department. This ruling was criticised by many members of the profession. The Bar did not discuss this matter or the Executive Committee did not think it was necessary to call an emergency meeting of the Executive Committee to decide matters relating to the ruling given by the Attorney General.

Go to the Jungle Telegraph

Return to the Editorial/Opinion contents page

Go to Rajpal's Column Archive