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make no mention of the preconstitutional arrangements for the remission of sentences.
Therefore, the post-constitutional legislation on the remission of sentences must be seen as
the only legitimate source for the delegation of the reserved power of the President to
grant pardons and to commute or remit sentences. Thus, it is likely that the purported
exercise of the power of remission of sentences and fines by the Minister for Justice was
irregular for the period fromthe 27 th December 1937 to the 20 th October 1998. 145
As previously noted the activation of the part suspended sentence may be influenced by
the remission or non remission of the initial custodial sentence before it is then suspended.
While there is no longer any difficulty about the entitlement of the remission it is only
relatively recently that the issue relating to the power to grant remission has been finally
settled.
In summary the activation of the suspended sentence is subject to certain discretionary
practices. When the infraction complained of is regarded as a trivial offence, the activation
of the suspended sentence may not occur. Where the breach of the suspended sentence
is not regarded as trivial, the full suspended sentence is mandatory under the Judge made
suspended sentence. In order to allow for the activation of a suspended sentence, the
court must determine that there has been a breach of a condition which determination is
based upon evidence. The standard of proof in making such a determination need not be
as high as that required in a criminal trial but the mere making of an allegation of breach is
not sufficient to warrant activation. Finally, the interface between the part suspended
sentence and the issue of remission of sentence may present difficulties when a breach is
brought before a court for consideration of activation of a sentence.
(v) Activation of the suspended sentence and the role of the recognisance.
A suspended sentence is usually constructed upon the convicted person entering into a
recognisance to keep the peace and to be of good behaviour for a specified period of time
known as the operative period. Moreover, s/he further undertakes to come up for
sentence if called upon to do so. Prior to October 2006 the use of a recognisance was not
universally deployed in constructing a suspended sentence, particularly in the District
Court. The recognisance, this writer contends, is not an essential feature of the
145 Clearlyunder Section 23 subsection 1 the Government as a corporate bodyhad the power to remit sentences, but the remission of a sentence byCabinet
decision must indeedbe a rarity.
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