Nature and Scope of Article 60 (1) of The Constitution
- The power conferred under article 60 (1) of the Constitution may be exercised either in respect of the conviction of a person for an offence or in respect of the penalty imposed for the offence. The legal effect of the exercise of the power is different in each case.
- Where the conviction of a person is “forgiven”, that conviction ceases to exist. It is removed completely from the record of that person. For example if a person has been convicted of theft, on the person being “forgiven” of the conviction the record of the person must cease to show that the person has ever been convicted of the particular offence of theft. Secondly, if the conviction is “forgiven” then the penalty which the court has imposed for that offence must necessarily disappear. In our example therefore, if the person has been sentenced to imprisonment for 6 months for the theft the sentence must also disappear and if he were serving that sentence he must immediately be released.
- Where on the other hand only the penalty for an offence is the object of the exercise of the power under article 60 (1), the conviction remains and the record of the person will continue (until the conviction is spent by virtue of any other written law) to show that the person had once been convicted of the offence. However his sentence may be reduced or suspended or its implementation deferred.
- The effect of a grant of a pardon under article 60 (1) (a) is to annul the conviction of the person to whom the pardon is given with immediate effect, in the case of a free pardon, or on satisfaction of the conditions of the pardon, in the case of a conditional pardon.
- Article 60 (1) (b) to (d) on the other hand only affects the penalty imposed in respect of an offence committed by a person. The conviction is not affected. Each of the paragraphs affects the penalty in a particular way. It is necessary to know the scope of each of them:
- Article 60 (1) (b) provides for the giving of a delay in the imposition of the penalty. The penalty as meted out by the court remains though. For example a six month imprisonment imposed for an offence may be delay for 2 weeks or 2 years but in the end the offender must serve the term of imprisonment.
- Article 60 (1) (c) provides for the imposition of a less severe penalty than that imposed by the sentencing authority. For example, instead of 2 years in prison a convicted person could be asked under article 60 (1) (c) to pay a fine of SCR 5, 000 or be made subject to a probation order. The substituted punishment can be any punishment which the law allows to be imposed in respect of an offence, as prescribed under section 25 of the Penal Code (cap73) and the Probation of Offenders Act (cap 78).
- Article 60 (1) (d) deals with the remission or forgiveness either wholly or partly of the penalty or punishment imposed by a sentencing authority for an offence. Although in practice the end effect of article 60 (1) (c) and article 60 (1) (d) may look the same legally however each is based on a different premise. Under article 60 (1) (c) a different sentence replaces the original sentence imposed whereas under article 60 (1) (d) the sentence remains the same but it is not enforced either in whole or in part. Thus if a person has been sentenced for six months in prison the sentence remains but the President may, under article 60 (1) (d) require that person to serve only 1 month in prison or not to serve at all.
- It is necessary in each case for the Committee to know exactly what it wants to recommend to the President and to ensure that its recommendation falls within the scope of article 60 (1).