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In our prisons, there are a large number of prisoners serving long-term illegal jail sentences imposed by Magistrate’s Courts exceeding their jurisdiction. They are kept in illegal detention in violation of their fundamental rights guaranteed by Article 13(4) of the Constitution, compelling them to serve illegal jail sentences which they are not bound to serve.

Any person with little understanding of Criminal Law and Procedure knows that the maximum penalty a Magistrate’s Court can impose in the exercise of its ordinary criminal jurisdiction on an accused in a criminal case tried by it is imprisonment for a period not exceeding two years or a fine not exceeding  Rs. 1,500. It is clearly laid down in S. 14 of the Code of Criminal Procedure Act.

A Magistrate’s Court can impose a higher penalty of imprisonment exceeding two years or a fine exceeding Rs. 1,500, where there are special powers of punishment given to it by some special enactments.

It is the Penal Code that contains general criminal law of the country. The Penal Code does not grant any special powers of punishment to a Magistrate’s Court. The maximum penalty a Magistrate’s Court can impose on an accused in respect of an offence under the Penal Code is imprisonment for a period not exceeding two years or a fine not exceeding Rs. 1,500. Only the High Court can impose a higher sentence of imprisonment exceeding two years.

However, where a person is convicted of several offences at one trial, under the proviso to S. 16 of the Code of Criminal Procedure Act, a Magistrate’s Court can impose a higher sentence of imprisonment exceeding two years. In such a case a Magistrate’s Court can impose an aggregate jail sentence not exceeding four years.

Under the proviso to S. 16 of the Code of Criminal Procedure Act, where a person is convicted of several offences at one trial, the aggregate sentence that can be imposed by a Magistrate’s Court shall not exceed twice the amount of punishment which such court in the exercise of its ordinary jurisdiction is competent to inflict. That means in such a case a Magistrate’s Court can impose a sentence of imprisonment for a period not exceeding four years. That is the maximum penalty a Magistrate’s Court can impose on an accused in the exercise of its ordinary criminal jurisdiction under the law.

Where the person convicted has previous convictions, a Magistrate’s Court can impose an additional sentence of two years of imprisonment under the provisions of the Prevention of Crimes Ordinance. Where a person is sentenced under the provisions of the Prevention of Crimes Ordinance, the Court must state that.

Whether a person is convicted of two offences or ten offences at one trial, the maximum aggregate sentence that can be imposed by a Magistrate’s Court is four years of imprisonment. There is no provision of law whatsoever that grants power or jurisdiction to a Magistrate’s Court to impose a sentence of imprisonment for a period exceeding four years. A Magistrate’s Court is not competent to impose such a sentence. It is beyond its jurisdiction.

Any sentence of imprisonment exceeding four years imposed by a Magistrate’s Court is an illegal sentence. It is not a sentence of imprisonment imposed by a competent Court. It has no validity in law. A prisoner is not bound to serve such an illegal sentence. Prison Authorities are not legally entitled to enforce such manifestly illegal jail sentences.

In a visit made to Mahara Prison to conduct a Legal Aid Clinic for prisoners in 2010, Prison Welfare Officers brought to the attention of the Lawyers for Human Rights and Development (LHRD) a pathetic case of a 63-years-old prisoner who has continuously spent almost half of his lifetime in prison serving jail sentences. He had already completed serving 30 years of jail sentences. According to prison authorities, being compelled to serve illegal jail sentences of 72 years, he is due to complete serving his sentences on 31. 03. 2053, 43 years later.

As shown by the Warrants of Commitment maintained at Mahara Prison, this prisoner had been sentenced to 84 years rigorous imprisonment in three cases by Morawaka Magistrate’s Court in 1988. In these three cases, Morawaka Magistrate’s Court had imposed jail sentences of 15 years, 34 ½ years and 34 ½ years respectively. These sentences are clearly illegal sentences imposed exceeding the jurisdiction of the Magistrate’s Courts. In these three cases Morawaka Magistrate’s Court can legally impose only 12 years. Out of the 84 years, 72 years are illegal jail sentences.

According to prison authorities, this prisoner had completed serving all legally imposed jail sentences by May 2010 and he was entitled to be released. Now he is kept in custody to serve 72 years of illegal jail sentences. He still remains in custody serving this illegal sentence.

In 2011, LHRD filed a FR Application to bring this grave injustice and violation of fundamental rights to the attention of the Supreme Court. However, the Court refused to grant leave to proceed stating that the Court would be inundated with similar applications of prisoners if leave granted.

Thereafter LHRD  made a complaint to the Human Rights Commission of Sri Lanka (HRC) in 2012 and seeking relief against this grave injustice and infringement of fundamental rights. In response to the said complaint the Chairman of the Human Rights Commission of Sri Lanka (HRC) Hon. Justice P. R. P. Perera sent a letter dated 2. 10. 2012 to the Hon. Chief Justice Mrs. Shirani Bandaranayake drawing attention to the grave injustice caused to the prisoners mentioned therein..

In response to the said letter of the Chairman of the HRC of Sri Lanka, the Judicial Service Commission (JSC) has sent a letter dated 7. 11. 2012 to the HRC stating that the cases mentioned in the HRC letter are incidents that happened long time back and requesting the HRC to bring to the attention of the JSC if there are any recent cases of that nature.
By its letters dated 13. 9. 2013 and 18. 8. 2014, the Lawyers for Human Rights and Development requested the Human Rights Commission of Sri Lanka (HRC) to exercise the powers vested in the Commission and take steps to release the prisoner from this illegal custody. There was no response from the HRC to these communications. It appears that the HRC is of the view that the illegal detention of these prisoners being a consequence of judicial orders, it is not within their purview.

Since then LHRD has come across a number of prisoners compelled to serve illegal jail sentences imposed by Magistrate’s Courts. A totally blind prisoner serving 14 years illegal jail sentence imposed by Minuwangoda M. C.; a prisoner serving eight years illegal jail sentence imposed by Tangalla M. C.; a prisoner serving eight years illegal jail sentence imposed by Panadura M. C; a prisoner serving 10 years illegal jail sentence imposed by Avissawella M. C; a prisoner serving two years illegal jail sentence imposed by Minuwangoda M. C.; and a prisoner serving 24 years illegal jail sentence imposed by Colombo M. C are among them. There are many more prisoners belonging to this category in our prisons.

The LHRD volunteered to provide legal support to these helpless men and women to bring the grave injustice and violation of law and fundamental rights they are subjected to the attention of the concerned authorities by way of Fundamental Rights Applications filed in the Supreme Court. When these FR applications came up before the Supreme Court, the Attorney General’s Department, instead of taking some effective steps to address these grievances and grant relief to victims, took up the view that these cases, being consequences of judicial orders, do not come within the FR jurisdiction of the Supreme Court and suggested to file revision applications.

This is not a valid argument. “No person shall be punished with death or imprisonment except by order of a competent Court, made in accordance with procedure established by law” – Article 13(4) of the Constitution. These are not valid judicial orders made by a competent court. No Magistrate’s Court has competence to impose a jail sentence exceeding four years on a person. Enforcement of such an invalid and illegal judicial order is not a judicial act, but an administrative act coming within the scope of FR jurisdiction of the Supreme Court.

How can these helpless prisoners languishing in jails for decades, who did not have any legal representation at their trials, file revision applications? Most of these illegal judicial orders have been made long time back, 5, 10, 15 or 20 years ago. Case Records are not available. No revision applications can be filed without certified copies of case records or judicial orders. Only warrants of commitment issued by the Courts for the enforcement of sentences are available in Prisons. A separate revision application has to be filed in respect each judicial order. Who will bear the costs of filing and pursuing these applications?
Under the above mentioned illegal judicial orders, these helpless prisoners are liable to be detained in illegal custody in prisons for 72 years, 24 years, 14 years, 10 years, 8 years … It is wrong, unjust, unfair and illegal to detain a person even for a day. When a person is kept in Police custody for a period exceeding 24 hours, we clamor that it is illegal detention and a violation of fundamental rights. However, when prisoners are kept in illegal custody for years on illegal judicial orders, every body is silent.

Every person and institution concerned with and involved in the administration of criminal justice, every person and institution concerned with good governance and the rule of law have a duty and responsibility to take necessary steps to address this issue, to take prompt steps to immediately release these prisoners held in custody on illegal judicial orders and to prevent the recurrence of imposition of manifestly illegal sentences by Magistrate’s Courts. The Superior Courts, Judicial Service Commission, Judges Institute, Ministry of Justice, Human Rights Commission of Sri Lanka, and the Attorney General’s Department have a special duty and responsibility in this regard.

Probably some of the concerned institutions may not have been aware of these illegal judicial orders. It is a small wonder why the Bar Association of Sri Lanka has not raised its voice on the violation of the rights of prisoners.  There is no reason for lawyers appearing in Criminal Courts not to be aware of illegal jail sentences imposed by Magistrate’s Courts.
LHRD appeals to all concerned institutions to make a joint effort to address this issue.
(The writer is the Executive Director of the  Lawyers for Human Rights and Development.)