Presidential pardon – a response
Posted on April 30th, 2020

Neville Ladduwahetty

M. J.M, in response to my article of April 08, states, “Taking refuge in the inadequacies of the law, to justify the said presidential pardon, is hypocrisy…. Here, the law did not fail. The prosecution did.” I am not sure whether it is only the prosecution that failed. Since the law did not fail, let us start with the law, and its application and interpretation.

As mentioned in my article of April 8, The Supreme Court ‘set aside’ counts one to 10 and stated that, “What remains are counts 11 to 19 which are based on vicarious liability, or common intent.”

What is ‘Common Intent’? Given below are the opinions of two former Chief Justices as to what is meant by Common Intent, in law.

Queen v. Vincent Fernando, Basnayake, J. has stated as follows, “A person who merely shares the criminal intention, or takes a fiendish delight in what is happening, but does no criminal act in furtherance of the common intention of all, is not liable for the acts of the others. To be liable, under Section 32, a mental sharing of the common intention is not sufficient, the sharing must be evidenced by a criminal act. The Code does not make punishable a mental state, however wicked it may be, unless it is accompanied by a criminal act which manifests the state of mind. In the Penal Code the words which refer to acts done extend also to illegal omissions.

Ariyaratne v. Attorney-General. (2) In that case Silva, C.J. has reiterated that the inference of common intention must be not merely a possible inference, but an inference from which there is no escape’. The facts revealed that the principal witness speaks only of the presence of the Appellant at the scene. The Appellant had thrown a stone at the deceased and uttered the words “This is what you deserved”. This utterance was at a stage when two other Accused had attacked the deceased with a sword i.e. the evidence against the Appellant was the incriminating words uttered by him and throwing of a stone. Which in fact has not been mentioned to the Police, or non-summary inquiry. The learned Chief Justice has held that the prosecution was left only with the presence of the Appellant at the scene, and therefore a conviction on the basis of a common intention by the jury, was clearly unreasonable, having regard to the evidence.

It is clear, from the above, that Common Intent has two components. One, that ‘sharing of common intent’ is not enough. The second is that the Common Intent has to be followed by an ‘evidenced criminal act’. There was no evidence to establish that the former Corporal Rathnayake was part of a criminal act, even if he took part in sharing a common intent. Furthermore, the fact that four others who perhaps participated in a common intent were acquitted for whatever reason, means that the planning and execution of the criminal act was all done by Rathnayake; a fact the Court found “impossible or highly improbable”. This is the paradox that I referred to, which M.J.M. cannot objectively comprehend.

Although M.J.M. may find such conclusions frustrating, because as he states: “it’s an open and shut case where all the accused seemed responsible for those barbaric killings”. This is not “wriggling out of legal loopholes.” This is the law and how it is interpreted, notwithstanding its inadequacies. To call it hypocrisy, is to insult the evolution of Law over the centuries; the very laws M.J.M. may someday find refuge in to address a personal grievance.

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