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Defence: Shipping agent and X-Press Pearl captain can’t be charged in the same indictment
The shipping agent and captain of the X-Press Pearl cannot be charged in the same indictment, argued the counsel appearing for the shipping agent when the case was taken up at the Colombo High Court on Thursday.
Representing the shipping agent, Sea Consortium Lanka (Pvt) Ltd, Sarath Jayamanne, PC, argued that the shipping agent and the captain could not be charged in the same Indictment.
He submitted that the Code of Criminal Procedure Act only allowed for multiple persons to be charged for jointly committing the same offence, or for committing different offences in the same transaction. In the case at hand, the multiple accused were charged with the commission of the same offence, but on the basis that they committed the same transaction. This was a clear violation of the Code of Criminal Procedure Act, he told the court.
He argued that the MEPA Act also only allowed for one person, such as the owner, operator, master, or agent, to be charged.
The six directors of the Shipping Agent were represented by Anil Silva, PC, Anura Meddegoda, PC and Asoka Weerassoriya.
Anil Silva, PC, said his clients had been included in the case based on corporate criminal liability, where directors are held accountable for the actions of the company.
He said that while the MEPA Act allowed for the “agent” of the ship to be charged, it did not provide for the “Shipping Agent” to be charged. Therefore, he argued that neither the Shipping Agent nor its directors should face charges.
Nipuna Wimalasekera, appearing for the X-Press Pearl’s Captain, said that since the ship was under the control of the Marine Environment Protection Authority (MEPA) at the time of the explosion, during which the harmful substances entered the sea, no criminal charges could be brought against his client as per Section 33 of the MEPA Act.
Mr. Wimalasekera contended that according to the Sinhala version of the MEPA Act, which takes precedence over the English version, the Captain does not fall under the category of the ship’s master and, therefore, cannot be held accountable.
He also emphasised that the MEPA Act had vested the power to institute legal action for pollution in the MEPA, not in the Attorney-General’s Department.
Deputy Solicitor General Madhawa Tennakoon said he would reply after all the defence counsel had submitted their objections in writing. The case will be taken up again on June 23.
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