-Commission cannot compel Aloysius to give evidence: PC Marapana
-Commission's mandate allows to summon any competent witness to testify: ASG Livera
By Shehan Chamika Silva
Contesting the application made by President’s Counsel Gamini Marapana appearing for Arjun Aloysius that he was not prepared to appear before the PCoI and as such it could not compel him to give evidence, ASG Dappula de Livera said today if Aloysius did not appear before the PCoI then it would be a failure.
Mr. Marapana, PC raised a legal objection against his client being summoned to give evidence at the PCoI and said Mr. Aloysius was not willing to give evidence before the PCoI and that the Commission could not compel him to give evidence according to the law.
Referring the Section16 (legal representation of a witness before the Commission) and Section 24 (Summoning witnesses) of the Commission of Inquiry Act, Mr. Marapana PC said the entire proceedings commenced as a result of a bond issue in which Perpetual Treasuries Ltd took part and that Mr. Aloysius was the major shareholder in that Company.
He observed that the Commission can recommend certain legal action after the proceedings and based on that report the Attorney General would file charges at an appropriate criminal court in connection with the matter.
Mr. Marapana PC was of the view that subsequently, Mr. Aloysius would have to be tried in Court.
Mentioning Article 3, 13(3) and 13(5) of the Constitution, He said the Sovereignty of the people constituted fundamental rights in which ‘fair trial’ and ‘presumed innocent until proven guilty’ are linked with.
Citing several Supreme Court judgments relating to the importance of acting fairly and under the rule of law he also ascertained that Section 14 of the Commission of Inquiry (CoI) Act also gave immunity to witnesses as well.
Mr. Marapana PC said Mr. Aloysius has the right to avoid self-incrimination during the evidence, which could jeopardize his future right to a fair trial and therefore, Mr. Aloysius could not be compelled to give evidence against himself considering the possibility of hid being an accused in a court of law.
He questioned the way in which Mr. Aloysius’ personal communications were being taken into custody by the PCoI according to the law.
ASG De Livera contested the legal argument moved by Marapana PC.
Referring to Section 2 of the Commission of Inquiry Act, ASG De Livera highlighted the warrant of the Commission by the President, which is explained in the mandate of the commission.
He said the PCoI was appointed to find the truth behind the bond auction relating to a particular time period. The mandate provided to the it was to discover broadly as to what happened in trading in government securities and not things which were particularly relating to an individual or a company.
ASG De Livera said therefore the Commission could summon anyone to appear before it to find the truth.
He said there was no determination to be concerned about particular individuals or an entity by the PCoI, therefore all the agencies and parties should assist the Commission.
ASG De Livera also contested Mr. Marapana’s argument saying that the cited precedents relating to the matter are not applicable since the precedents he cited were in connection with the Special Presidential Commission of Inquiry Act (SPC), but this Commission was operating under the Commission of Inquiry Act (CoI).
He said Mr. Aloysius’ evidence would enable the PCoI to determine the truth and would assist the commission to do so.
The ASG said the President had appointed the PCoI taking into consideration the national interest as well.
“People of this country are keenly awaiting the outcome of the commission, not only about the wrongdoers, but as to who is responsible for this blunder or the robbery,” ASG Livera said.
He said Aloysius’ evidence was significant to the PCoI not only to identify the facts but also to recognize other people who had been involved.
The ASG drew the Commission’s attention at this point to the two deleted phone conversations in which Aloysius had referred to a “friends in the department.”
“There is information which can only be provided by Arjun Aloysius, because some facts are within his sole knowledge, therefore the Commission ought to call Aloysius before the Commission,” ASG Livera said.
He also observed that the Commission would not serve its purpose, if it fails to get Aloysius’ testimony before the Commission.
“There will be a travesty of justice if Arjun Aloysius is not called here. The whole country is waiting till Aloysius came before the Commission. There are two persons who ought to take this witness stand. They are Arjuna Mahendran and Arjun Aloysius, and there may be others. I won’t name them. There may be (he emphasized). So if these two persons don’t come, then this Commission will be a failure,” the ASG said.
At this point Counsel Chanaka de Silva who was appearing for Arjuna Mahendran extended his discontent over the reference to his client since he had not made any such application so far not to appear before the Commission.
PCoI Chairman Justice Jayawardena then asked whether he was going to do so in the future. Counsel de Silva said he had no instructions so far, amid ripples of laughter in the court room.
ASG Livera replying said that he was referring to persons who ought to testify before the PCoI in terms of the mandate and the evidence led so far.
He said he was also referring Section 14 of the Commission of Inquiry Act which said that such evidence before the Commission could not be used in subsequent place against that person.
The ASG said the Commission’s proceedings were regarded as an inquisitorial process and thereby any witness is a competent witness relevant to the inquiry.
However, Mr. Marapana also contested the ASG’s argument over what the ASG referred to as an inquisitorial process.
ASG de Livera said the communications devises of Aloysius had been taken into custody after receiving proper orders from the Commission.
At this juncture President’s Counsel Kalinga Indatissa expressed the view that his client, Kasun Palisena (CEO Perpetual Treasuries) cannot be questioned on the call recordings, because it was contradictory to the Commission of inquiry Act.
While he was submitting his stance before the commission that fairness should be considered in the proceedings Commissioner Justice Prasanna Jayawardena noted:
“A large number of people are talking utter rubbish about the Bond controversy over the past two years without any particular knowledge. There are pundits who know nothing when they make pronouncements. We also knew nothing when we came here. Now we are in the process of learning facts as opposed to wild rumors about this. We are only interested in facts. So all witnesses have a role to play in assisting the commission to understand the facts, and that is all.”
Justice Jayawardena said: “Let me also make this clear. This Commission has so far not come to any finding or fact over any wrong doing. We are still in the process of trying to arrive at whether there were wrongdoings”.
The Commission also considering both legal applications by Mr. Marapana PC and ASG Livera fixed the order to be given on Wednesday (September 13) morning.
Meanwhile, PCoI Chairman said Arjun Aloysius had been served with summons through a fiscal of the Court yesterday afternoon to appear before the Commission on September 13 (Wednesday) to testify.
At this point, President’s Counsel Gamini Marapana sought the Commission’s indulgence to provide Aloysius sufficient time to invoke the superior court over the matter if the Commission’s order on Wednesday was against Aloysius.
However, the Commission seemed reluctant to provide more time to appeal to a superior court over the matter and observed that it could continue the proceedings until an order comes from an appropriate authority.
At this moment, ASG Livera intervened and asked: “Is that some sort of a threat to the Commission”. In replying, Mr. Marapana PC emphasized that he doesn’t want to threaten any of the Judges, and his submission is not a threat but only a consideration of the rights of a citizen in the country because time constraints cannot be observed in providing individuals the access to justice.
The PCoIn said it would consider the matter on Wednesday.
PTL CEO Kasun Palisena will continue testifying today.
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