Mahendran ‘compellable’ to give evidence: PCoI

* After accepting the appointment as Central Bank Governor Mahendran cannot claim to be outside our Law

* Mahendran being a foreign citizen does not preclude him coming within this country's jurisdiction and he has to obey summons

* The two positions, that of Aloysius and Mahendran are not similar

In a special statement, the Presidential Commission of Inquiry (PCoI) today ascertained that Central Bank's former governor Arjuna Mahendran is “compellable” to give evidence and that being a foreign citizen did not preclude him from falling within PCoI jurisdiction and therefore had to obey summons.

“Especially after accepting the appointment of Central Bank Governor, Mr. Mahendran cannot claim he is outside our Law,” PCoI Chairman Justice K.T. Chitrasiri said while reading out the special statement at the end of yesterday’s sessions.

PCoI's full statement is as follows:

"As you are all aware, this Commission of Inquiry has tried to refrain from making statements with regard to media reports and media discussions, since we believe our task is only to carry out our Mandate as completely as possible within the available time period and to honour our duty to act within the Law and fairly, as emphasized by the Supreme Court in several decisions and not to engage with the media. However, media reports about a submission made yesterday, requires us to make a brief statement now. At the time these submissions were made yesterday, there was no need to respond since it was clear that Mr. Mahendran would be testifying and there was no need to delay proceedings.

"However, in view of media reports, we wish to now state with regard to that submission that, firstly, in our view, Mr. Mahendran being a foreign citizen does not take him outside our jurisdiction and he had to obey the Summons. Especially after accepting the appointment as Governor of the Central Bank of Sri Lanka, Mr. Mahendran cannot claim that he is outside our Law.

"Secondly, Mr. Mahendran is in a very different position to Mr. Arjun Aloysius who appeared in response to summons and pleaded that he is likely to be the accused in a Criminal Case in the High Court and that he is likely to incriminate himself if he is compelled to give Evidence. Mr. Aloysius invoked a Golden Rule of the Law that an accused cannot be forced to incriminate himself.

In view of those specific statements and after consideration, this Commission decided to refrain from compelling Mr. Aloysius to give evidence because we are of the view that doing so will result in us departing from our duty to act fairly and equitably. We are obliged to keep within the intent and spirit of the Law. We also cannot disregard the fact that, this Commission has assumed some characteristics which are far from the more formal or perfunctory bodies that may have been envisaged in 1948 when the Act was passed.

Further, we are of the view that, compelling Mr. Aloysius to give evidence would have resulted in an application for judicial review in the Superior Courts which, given the question of law involved, may have resulted in much delay in concluding these proceedings. In our view, such delay would have been very detrimental to the process of Inquiry.

Further, compelling Mr. Aloysius to give evidence against his wishes may have raised a potential question of Law at a possible future Indictment in the High Court [Mr. Aloysius states he thinks is likely] as to the admissibility of the entirety of the evidence that may emerge from these proceedings. At this stage, that is only a question that may arise. However, it must be considered.

It is only after taking all these factors into consideration, that we made the Order which we considered to be lawful, fair and also prudent.

Mr. Mahendran is not in the same position. He does not say that he is likely to be the accused in a Criminal Case in the High Court and he does not say that he is likely to incriminate himself if he is compelled to give evidence. He has entered an appearance under Aection 16 of the Act saying only that it is desirable that he is represented. He does not invoke any right of an accused or likely accused. 

Therefore, he is compellable to give evidence.

In any event, we do not think Mr. Mahendran is so foolish as to not take the opportunity to give evidence and give his explanation, if any. Even if he did not want to give evidence, we are certain that his Counsel would advise him that it is in his interests to give evidence."