Aloysius is a ‘required witness’, but cannot compel him to give evidence: PCoI

• After the order was delivered Gamini Marapana PC said Aloysius was not prepared to give evidence

 

• Justices K. T. Chitrasiri and Prasanna Jayawardane reminded Marapana PC to go through the contents of the order and let the Commission know precisely whether his client is willing or not to give evidence before the commission tomorrow  

 

By Shehan Chamika Silva

Ruling that Perpetual Treasuries Chairman Arjun Aloysius cannot be compelled to testify before it, the Presidential Commission of Inquiry (PCoI) into the bond issue today informed his counsel Gamini Marapana PC to notify the commission regarding the willingness of his client to give evidence by tomorrow.

Delivering a comprehensive order, the PCoI stressed today that it required Arjun Aloysius to testify, but considering the rule of law concept and the established law, as moved by his President’s Counsel Gamini Marapana that an accused cannot be compelled to give evidence, the Commission was of the view that Aloysius could not be compelled to give evidence if he was unwilling to do so.

 The commission, citing various precedents and established laws also stated that Aloysius’s evidence as a witness who possessed knowledge on certain matters was crucial to the Commission’s mandate.

Based on the evidence before the Commission so far, the PCoI mentioned in the order that it requires Aloysius to give evidence with regard to matters as to:

i) The reasons for Perpetual Treasuries (Pvt) Ltd bidding for large amounts of Treasury Bonds at some Auctions of Treasury Bonds;

(ii) transactions on the Secondary Market of Treasury Bonds which Perpetual Treasuries (Pvt) Ltd obtained by successful bids at Auctions of Treasury Bonds;

(iii) the dealings and relationship which existed between officers of Perpetual Treasuries (Pvt) Ltd and some officers of the Central Bank of Sri Lanka;

(iv) the dealings and relationship which existed between officers of Perpetual Treasuries (Pvt) Ltd and some officers of the Employees Provident Fund, Pan Asia Banking Corporation PLC and some other Primary Dealers;

(v) whether Perpetual Treasuries (Pvt) Ltd was in possession of information relevant to Auctions of Treasury Bonds which was not available to other Primary Dealers; and

(vi)4he profits and/or capital gains received by Perpetual Treasuries (Pvt) Ltd as the result of the aforesaid transactions on Treasury Bonds and the disposal of these profits and/or capital gains by way of dividends, fund transfers and transfers of profits (if any) and investments.

In addition, the evidence that is now before the PCoI, by way of the testimony of witnesses, documents and several audio recordings, has made it desirable that the Commission of Inquiry requires Mr. Aloysius to give evidence with regard to several matters which are directly within his personal knowledge, including, inter alia:

(i) (the ownership, control and structure of the group of Companies of which Perpetual Treasuries (Pvt) Ltd is a member;

(ii) the role played by Mr. Aloysius in applying for and obtaining a Primary Dealer’s License from the Central Bank of Sri Lanka;

(iii) the role played by Mr. Aloysius in preparing the Business Plan of Perpetual Treasuries (Pvt) Ltd which was submitted to the Central Bank of Sri Lanka at the time Perpetual Treasuries (Pvt) Ltd applied for a Primary Dealer’s License and the subsequent Business Models followed by Perpetual Treasuries (Pvt) Ltd;

(iv) the role played by Mr. Aloysius in the day to day operations of Perpetual Treasuries (Pvt) Ltd while he was the Chief Executive of that Company;

(v) the reasons for Mr. Aloysius resigning from the post of Chief Executive of Perpetual Treasuries (Pvt) Ltd;

(vi) the role played by Mr. Aloysius in the day to day operations of Perpetual Treasuries (Pvt) Ltd after he resigned from the post of Chief Executive of that Company;

(vii) the profits and/or capital gains received by Perpetual Treasuries (Pvt) Ltd and the disposal of these profits and/or capital gains by way of dividends, fund transfers and transfers of profits (if any) and investments;

(viii) the audio recordings of telephone conversations which are said to have taken place between Mr. Aloysius and Mr.Kasun Palisena with regard to Auctions of Treasury Bonds held in March 2016 and the matters discussed therein including the information which Mr. Aloysius is said to have claimed, he possessed with regard to those Auctions;

(ix) the role played by Mr. Aloysius with regard to the Fine imposed by the Central Bank of Sri Lanka on Perpetual Treasuries (Pvt) Ltd in April 2016 after the aforesaid Auctions;

(x) the nature of the relationship between Mr. Aloysius and some officers of the Central Bank of Sri Lanka;

(xi) the nature of the relationship between Mr. Aloysius and Mr. Arjuna Mahendran, the previous Governor of the Central Bank of Sri Lanka;

(xii) the nature of the relationship between Mr. Aloysius and some officers of the Employees Provident Fund including Mr. Saman Kumara and Mr. Navin Anuradha;

(xiii) the nature of the relationship between Mr. Aloysius and Mr. Nimal Perera, the previous Chairman of Pan Asia Banking Corporation PLC and the resulting transactions on Treasury Bonds entered into by Pan Asia Banking Corporation;

(xiv) the reasons for Mr. Aloysius telephoning Mr. Richie Dias of Pan Asia Banking Corporation PLC during the period when Mr. Dias was furnishing his statement to the Commission of Inquiry; and

(xv) the reasons for Mr. Aloysius leasing an apartment which was occupied by Mr. Ravi Karunanayake and family.

The Commission was of the view that Aloysius is in a position to provide vital evidence to the Commission with the matters falling within the scope of the inquiry.

Earlier, Mr. Marapana PC citing various precedents and laws said a person who is accused of an offence cannot be compelled to give evidence in the backdrop of the principles reflected in the Constitution as ‘right to fair trial’ and ‘Presumed innocent until proven guilty’.

However, Additional Solicitor General Dappula de Livera had contested earlier that these proceedings are regarded as inquisitorial process and therefore the concepts adapted in criminal procedure cannot be applicable as the Commission is of a fact finding mission.

The Commission considering the both submissions today delivered a comprehensive judgment considering the concepts of Rule of Law, the fairness, and the equity.

The Commission stated in the order that they are mindful of the fact that in the event Aloysius is compelled to give evidence and his evidence is considered in the Commission’s report then the question will arise whether to make any recommendation be made available to the Attorney General to take appropriate actions under criminal proceedings because Aloysius’ evidence would then be an evidence which was compelled to give.

“We are not willing to depart from established principles of law. if Aloysius is unwilling to give evidence and does not want to explain and clarify his stance relating to the maters transpired during the proceedings, then the Commission will be compelled to proceed on the basis of the evidence it has”, the Commission stated

After the order was delivered, Mr. Gamini Marapana PC said that Aloysius was not prepared to give evidence.

At this point, Chairman of the Commission Justice K. T. Chitrasiri and Commissioner Justice Prasanna Jayawardane reminded Marapana PC to go through the content of the yesterday’s order and let the Commission know precisely whether his client is willing or not to give evidence before the commission tomorrow (14).