In light of various recent media reports, the Antigua and Barbuda Bar Council (the Executive Body of the Antigua and Barbuda Bar Association) consider it our duty to speak publicly to clarify the law as it relates to early release of convicted prisoners and to address concerns expressed in public fora as to whether the law permits commutation or other reduction of a prison sentence from one year to one day.
Having considered the applicable law, we note that the law does allow for early prisoner release (remission) in specified circumstances. However, we are satisfied that the law does not allow a sentence of one year to be commuted to one day in the absence of a decision of an appellate court or a grant of pardon by the Governor General.
It is the Council’s understanding that a prisoner, one Shannon Martinez, was recently released after serving only one day of a one-year sentence, based upon the recommendation of the Superintendent of Prisons to the Minister of Legal Affairs and Justice. It is further our understanding that in doing so the Superintendent relied upon Rule 211 of the Prison Rules, as amended.
We have reviewed the Prison Rules and are respectfully of the opinion that Rule 211 (as amended) does not support the action taken in releasing the said prisoner. It is the Bar Council’s view that the law as it currently stands does not vest in any Minister of Government nor in the Superintendent of Prisons the right to commute a sentence to less than 31 days, even where there may be “special circumstances”.
In this regard, it is important to note that Rule 211 was amended in 1999 (by Statutory Instrument # 6 of 1999) so that it is the amended Rule (and not the original rule) which now applies. Additionally, the Prison Rules were further amended by section 8 of the Prison (Amendment) Act, No 17 of 2017.
Based on the foregoing, any decisions or recommendations made to release Ms. Martinez after only one day in reliance on Rule 211 would have been a flawed decision and would not comport with the law. Indeed we are of the view that the only lawful basis upon which Ms. Martinez could have been released from prison after only one day of her sentence would have been by the grant of a pardon by His Excellency the Governor General pursuant to section 84 of the Antigua and Barbuda Constitution Order. However, it is our understanding that this was never done.
There can be no justification for the release of a prisoner outside of the authority of law. Neither the Superintendent nor any Minister of Government is, by virtue of his office alone, clothed with any authority to reduce a prisoner’s sentence. Such authority can only be derived from the law. This is imperative in order to maintain the separation of powers between the Executive, the Legislature and the Judiciary, which underpins our Constitutional democracy and must be vigilantly protected.
We therefore call upon the Honourable Attorney-General to reconsider the action taken in the Martinez case, to acknowledge the ultra vires nature of the action taken in that case, and to take such steps as are appropriate to rectify the situation and restore confidence in the inviolability of the doctrine of Separation of Powers.
On a separate but related point, we also take this opportunity to register the Bar Council’s concern as to certain recent amendments to the Firearms Act, Cap 171 which removed some judicial discretion in matters of sentencing. We wish to place on record the Bar Council’s absolute and enduring confidence in the commitment of the Magistracy and the Judiciary to the administration of justice, and to flag the importance of judicial officers being provided with all the tools necessary for justice to be done. Those tools include the room to exercise judicial discretion in sentencing where it is warranted. If laws do not allow judicial officers such discretion or where there is uncertainty as to whether such discretion exists, justice will inevitably suffer.
The Antigua and Barbuda Bar Council intends to continue dialogue with the Honourable Attorney-General on all of the foregoing matters and will remain vigilant as officers of the Court to speak out against any and all encroachments or potential encroachments of the Rule of Law, the Separation of Powers and our Constitutional freedoms, which together form the bedrock of our democratic society.