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New Sentencing Structure and Policy in the RepUblic of S11 Lanka

by I.R.M. Perera*

Introduction mitted within their respective zones. The sentencing powers of both the The Administration of Justice Law No. district and magistrates' courts were 44 of 1973, which came into operation on also considerably enhanced. Prelimina­ January 1st, 1974, is without doubt one ry inquiries or pre- proceedings, of the most revolutionary and certainly which were conducted in magistrates' progressive enactments affecting both the courts in cases of grave crime were sentencing structure and policy of the law abolished, and a newly created Di­ courts in Sri Lanka. This law was intended rector of Public Prosecutions will ic to achieve simplicity and uniformity in future examine the available procedure, fairness in administration, the in such cases and forward an indict­ elimination of unjustifiable expenses and ment against an accused directly to delay, and the just determination of every the appropriate high court or district judicial proceeding. As its provisions have court for trial. now been in operation for the past two Prior to the introduction of the new years, it would be opportune to consider law, there exisfed in Ceylon (as Sri Lanka what kind of changes have been brought was then known) a considerable number about in the sentencing structure and how of law courts, which had come into exis­ far the objectives of the new sentencing tence from time to time as and when policy have heen realized under the new the necessity arose. There were at that l;!gislation. time Conciliation Boards, Rural Courts, Courts of Requests, Magistrates' Courts, District Courts, Assize Courts, the Su­ Reorganization of Court System preme Court, and the Court of Criminal Appeal. An appeal may be made against The law was intended to provide, inter a judgment of the Supreme Court or the alia, the establishment and constitution of Court of Criminal Appeal to the Judicial a nf}W system of courts for the adminis­ Committee of the Privy Council in Eng­ tration of justice within the Republic of land. Sri Lanka and to regulate the procedure After appeals to the Privy Council in and before such courts. The immediate were abolished in 1971, the Court of Ap­ changes which it brought about were as peal, Rural Courts, and Courts of Re­ follows: quests were also abolished by the new 1. It abolished several law courts which law of 1973. Since then, the Law Courts were found to be either redundant or (other than Conciliation Boards) in exis­ unnecessary. tence have been: (1) Magistrate!)' Courts, 2. It enlarged the composition of ,the (2) District Courts, (3) High Courts, and Supreme Court from nine judges to (4) the Supreme Court. 21 judges and vested the court a posi­ The sentencing powers of tionas the final and only court of by Magistrates' Courts were trebled from appeal in all civil and criminal cases. six months Ito 18 months, while their powers of imposing fines were increased 3. It established 16 new high cm.\rts in 15 times from Rs. 100 to Rs. 1,500. The 16 important towns of the Island, and powers of imprisonment by District Courts empowered them to try all cases, be­ were increased two and a half times from fore a judge and a lay-jury of seven, two years to five years, and five times in of grave Clime including murder com- the case of fines from Rs. 1,000 to Rs. 5,000. Consequently it 'Was possible for a * High Court Judge, Colombo, Sri Lanka. District Court ,to try even a case of at-

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. w4 ,..... SENTENCING STRUCTURE AND POLICY: SRI LANKA tempted murder. Further, new Magistrates' prisoner is unable ·to pay a fine. The court and District Courts were established in is empowered to require the accused to areas where they were considered neces­ perform unpaid work for the community sary, and today ,there are as many as on the basis of one month for every Rs. 51 District Courts and 49 Magistrates' 100 instead of imposing a term of im­ Courts, which, together with the 16 High prisonment at the rate of one month for Courts, constitute a total of 116 "trial" every Rs. 100. courts for an island of 25,000 square There is the provision in the law to miles and inhabited by nearly 14 million " conditionally" an offender on people. his executing a bond .to be of good heha~ viour, after taking into consideration the Changes in Sentencing Policy cnaracter, age, health, or mental condition of the person charged, or the extenuating circumstances under which the offence What was the purpose or objective of was committed. There is also the provision these increased numbers of law courts and to release any convicted person on "pro­ the enhanced sentencing powers? For one hation" in an appropriate case for a period thing the new law certainly did not intend of not less than one year and not more to impose either longer terms of imprison­ than three years. Further, convicted of­ ment or larger fines. The new sentencing fenders who are between 16 and 21 years policy introduced by the law appears to can be sent for "borstal training" for a have changed the emphasis drastically period of not less than nine months and from deterrent or retributive to reforma­ not more than three years, tive and rehabilitative sentences to be im­ posed in fllture, enabling the prisoner to take his place as a useful member of Discretion in Sentencing society once he has paid the price for his lapse. In spite of this change of emphasis in It should be noted that, for the first the policy of sentencing brought about by time in the history of sentencing in this the new law, the question of selecting the country, provision was made for imposing appropriate to impose on a par­ sllspended sentences, whereby all convicts ticular accused is one which still presents who are sentenced to a term of imprison­ difficulties to a judge. As Professor P.I. ment of two years or less, can have their Fitzgerald pointed out, the punishment of sentences of imprisonment suspended for a criminal is a combined operation of a minimum period of five years. If he is Parliament, the courts, and the administra­ not convicted of any other offence during tion. The part played by the courts is only that period of suspension in which the one part of the whole operation of punish­ offender was at liberty, he would not ingthe offender. One result of this is have to serve any portion of that imprison­ that once sentence has been passed, the ment which was imposed upon him. courts are no longer concerned with the The three forms of legal punishment offender's fate; their task is concluded. which are stilI being imposed in most This means that the effect of the sentence "developed" as well as "developing" COun­ can be seen less by the courts themselves tries are: deprivation of life, liberty, pro­ thall by those whose function is to see perty, and, in rare cases, t.be infliction of that the sentence is. carried out and by positive suffering such as whipping. The those who study the social effect of new law in Sri Lanka has adopted several punishment. For this reason those who alternative forms of punishment other actually pass s{mtence on the offender than "suspended sentence;' with a view to must to some extent work in the dark, reforming and restoring the offender as a unless they.are willing to accept the guid­ useful member of society rather ,than ance of those who study ·the effects of punishing him as a deterrent to himself punishment. and the rest of society. In regard to the senten.cing policy, a One of such alternatives is ,the perfor~ notable feature of the criminal justice mance of "community service\> where a system of Sri Lanka from colonial times 59 PARTICIPANTS' PAPERS to .the present day has been the extremely which the imprisonment was imposed, wide dist;retion vested in the sentencing namely, to reform the offender. No of· judge as to the type and the quantum of fender can be reformed if he feels that the sentence which he may impose on the he has been unfairly or UlljUStly punish­ convicted offender. While the new law ed. It is therefore essential that judges made far-reaching changes in the criminal should select not only the appropriate sen­ justice system in respect of the structure tence but the sentence which will achieve and policy of the courts, hardly any at­ the object for which it was imposed. tempt has been made to control or fetter The traditional controls ofa judge's the wide discretion of judges in sentencing sentencing powers are virtually absent in the convicted offender. the new law except in regard to the im­ For example, a high court judge has position of an upper limit on .the terms the options of the following sentences of imprisonment and the amount of fines. against a person who has been convicted Mandatory sentences are extremely rare of the offence of rape: (a) imprisonment in the penal statutes with rare exceptions for any .term from seven days to 20 years; such as the compulsory death sentence for (b) imprisonment for up to ,two years murder and an obligatory sentence together with an order that ;the sentence of not less than three months for offenders be conditioD9Uy suspended for a period convicted of a second or subsequent of­ of not less than five years; (c) imprison­ fence under the Control of Prices Act. ment for a term up ,to five years together In the present criminal justice system, with whipping up to 24 strokes with a any errors, disparities, or inconsistencies rattan; Cd) for a period of not in sentences may be corrected by the Ap­ less ,than one year and not more than pellate Court, i.e., the Supreme Court, three years; (e) conditional discharge on whose principal function under the law the offender's executing a bond with or is the hearing of appeals against the judg­ without sureties; Cf) order to be detained ments and orders of all the subordinate in .the precincts of the court, in lieu of courts. In disposing of an appeal from the imprisonment, until a specified hour on judgment of a District Court or a. Magis­ the date of (lentencing, not being later trate's Court. the Supreme Court has the than 8 p.m.; (g) fine of any sum without power to increase or reduce the amollnt any restriction upon the judge's discretion of the sentence or .the nature thereof. In as to an upper or lower limit; or (h) order the case of an appeal against the sentence to perform community service for a speci­ imposed by a judge of the High Court, the fied period with the consent of the of­ Supreme Court has the power to quash fender. the sentence pronounced by the trial judge Such unfettered discretion is quite a and pass in its stead such other sentence desirable provision, because any attempt warranted in law as it thinks ought to to control the sentencing judge by such have been passed by the High Court. measures as a set of rules for .their guid­ Although under some systems the ap­ ance is much more iikely .to cause more pellate jurisdiction is not vested with the harm ,than good. Since all the circum­ power ,to enhance the (lentence passed by stances relating to any two cases can .the lower jurisdiction, the appellate court hardly be the same, it is generally agreed in Sri Lanka is not fettered by any such that restricting the judge's freedom would restriction, and it may impose a more inevitably result in miscarriages of justice severe sentence on the offender. Nor is or substantial hardship to ,the offender and there any provision that only the convicted his dependants in many cases. offender can appeal against the sentence. There is a school of .thought which ad­ vocates that the law should, make it obli­ Disparities in Sentences gatory for judges to state reasons in detail for the Eentences they choose to impose. Disparities in sentences would not only There is much to be said in favour of cause a prisoner who has received the such a provision not only because it will longer term to nurse a grievance but result in judges giving more thought and would also defeat the very purpose for anxious consideration to the question of 60 SENTENCING STRUCTURE AND POLICY: SRI LANKA

sentence but also because it would help that judges of various lower cOllrts, who the appeal court considerably in reviewing read such published reasons which have and judging on the propriety and quantum been upheld by the appeal cour,t, will tend of the sentence imposed by the subordi­ to fall in line, ,thus ensuring some degree nate court. It has the further advantage of uniformity of sentences.

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