{"id":101763,"date":"2020-04-30T15:05:18","date_gmt":"2020-04-30T22:05:18","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=101763"},"modified":"2020-04-30T15:05:18","modified_gmt":"2020-04-30T22:05:18","slug":"presidential-pardon-a-response","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/04\/30\/presidential-pardon-a-response\/","title":{"rendered":"Presidential pardon \u2013 a response"},"content":{"rendered":"

Neville Ladduwahetty<\/em><\/span><\/h2>\n\n\n

M. J.M, in response to my article of April 08, states,\n“Taking refuge in the inadequacies of the law, to justify the said\npresidential pardon, is hypocrisy\u2026. Here, the law did not fail. The prosecution\ndid.” I am not sure whether it is only the prosecution that failed. Since\nthe law did not fail, let us start with the law, and its application and\ninterpretation.<\/p>\n\n\n\n

As mentioned in my article of April 8, The Supreme Court\n\u2018set aside\u2019 counts one to 10 and stated that, “What remains are counts 11\nto 19 which are based on vicarious liability, or common intent.”<\/p>\n\n\n\n

What is \u2018Common Intent\u2019? Given below are the opinions of two\nformer Chief Justices as to what is meant by Common Intent, in law.<\/p>\n\n\n\n

Queen v. Vincent Fernando, Basnayake, J. has stated as\nfollows, “A person who merely shares the criminal intention, or takes a\nfiendish delight in what is happening, but does no criminal act in furtherance\nof the common intention of all, is not liable for the acts of the others. To be\nliable, under Section 32, a mental sharing of the common intention is not\nsufficient, the sharing must be evidenced by a criminal act. The Code does not\nmake punishable a mental state, however wicked it may be, unless it is\naccompanied by a criminal act which manifests the state of mind. In the Penal\nCode the words which refer to acts done extend also to illegal omissions.<\/p>\n\n\n\n

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

It is clear, from the above, that Common Intent has two\ncomponents. One, that \u2018sharing of common intent\u2019 is not enough. The second is\nthat the Common Intent has to be followed by an \u2018evidenced criminal act\u2019. There\nwas no evidence to establish that the former Corporal Rathnayake was part of a\ncriminal act, even if he took part in sharing a common intent. Furthermore, the\nfact that four others who perhaps participated in a common intent were\nacquitted for whatever reason, means that the planning and execution of the\ncriminal act was all done by Rathnayake; a fact the Court found\n“impossible or highly improbable”. This is the paradox that I\nreferred to, which M.J.M. cannot objectively comprehend.<\/p>\n\n\n\n

Although M.J.M. may find such conclusions frustrating,\nbecause as he states: “it\u2019s an open and shut case where all the accused\nseemed responsible for those barbaric killings”. This is not\n“wriggling out of legal loopholes.” This is the law and how it is\ninterpreted, notwithstanding its inadequacies. To call it hypocrisy, is to\ninsult the evolution of Law over the centuries; the very laws M.J.M. may\nsomeday find refuge in to address a personal grievance.<\/p>\n","protected":false},"excerpt":{"rendered":"

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\u2026. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":["post-101763","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/101763","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=101763"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/101763\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=101763"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=101763"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=101763"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}