A prisoner files FR Executive action of fmr. President challenged

• Court of Appeal found that the accused was 16 years of age at the time of committing the offence

by Lakmal Sooriyagoda  

In a rare legal case, a prisoner has filed a Fundamental Rights petition in the Supreme Court seeking an order to set aside the life imprisonment imposed by former President Maithripala Sirisena in 2019.  

The petitioner, Ponnambalam Koneshwaran was convicted by the Jaffna High Court under section 296 of the Penal Code for the murder of Yogan Priyatharshani and he was sentenced to death by Jaffna High Court on August 19, 2010. The petitioner said at the time of the incident, he was a child.  

However, the Court of Appeal after having heard the appeal, decided to set aside the death sentence imposed by Jaffna High Court on the ground that a person under the age of eighteen years cannot be convicted for murder. On perusal of the evidence, the Court of Appeal found that the accused was 16 years of age at the time of committing the offence.  
The Court of Appeal held that according to section 53 of the Penal Code a person below the age of 18 cannot be sentenced to death. Accordingly, the Court of Appeal decided to set aside the sentence of death and directed the Commissioner General of Prison to inform the President of the republic to take appropriate action regarding the accused in terms of section 53 of the Penal Code.  
The petitioner said he came to know through his counsel Nimal Muthukumarana that former President Maithripala Sirisena had sentenced him for life imprisonment on 5th of September 2019 and thereby he is currently serving Life Imprisonment imposed by the former President.   
The petitioner states that after independence, neither the Governor Generals nor the Presidents of the republic imposed sentences on any persons.  
The petitioner maintained that the former President was misdirected by the Legal Adviser to the President when imposing life imprisonment contrary to the Article 34 of the constitution.  
The Petitioner further states that his fundamental rights guaranteed by Article 11, Article 12 (1) and Article 13 (4) of the Constitution have been infringed by the respondents. The petitioner had named former President Maithripala Sirisena, the Minister of Justice and the Attorney General as respondents. The petitioner has filed this petition through Attorney-at-law Nimal Muthukumarana.  

The petitioner said punishment of detention in lieu of death for persons under eighteen years of age is mentioned in section 53 of the Penal Code.  

“Sentence of death shall not be pronounced on or recorded against any person who, in the opinion of the court, is underage of eighteen years; but, in lieu of that punishment, the court shall sentence such person to be detained during the Governor- General’s pleasure.” The petitioner stated that the legal Advisers, Secretaries of the former President and former President were unable to understand the difference between the meaning of detention and imprisonment. He said the meaning of detention is keeping a person in custody for a short period.