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The Tragedy and the Farce of Legal Flirtations

with the 'Bond Scam'

By Kishali Pinto Jayawardhana,-- Sep 25, 2017


Applying Marxs denunciation of historic personages repeating themselves first as
tragedy, second as farce to grotesque financial scandals in Sri Lanka is a tad
adventurous. But there is no question that one satire follows the other, tragically
and farcically, with little respite.
In the interests of sanity
Close upon Arjun Aloysius, principal shareholder and director of Perpetual
Treasuries (Pvt) Ltd being declared a non-compellable witness by the
Commission of Inquiry inquiring into the Central Bank of Sri Lanka (CBSL) bond
issuance, his father-in-law, former CBSL Governor Arjuna Mahendran made other
equally riveting news.
Mahendran attempted, through his counsel, to hold out that his appearance on
summons and testifying before the Commission was a gracious concession. Under
Section 7 (c) of the 1948 parent statute, the Commission has the power to
summon any person residing in Sri Lanka. Based on this, it was argued that
because Mahendran was resident in Singapore, he was not subjected to the
Commissions jurisdiction. However, he was anyway presenting himself and
deserved to be treated courteously by his interrogators.
In the interests of sanity and basic common sense, it was a relief to see the
Commission peremptorily putting the record straight, declaring that it was
necessary that Mahendran obey the summons particularly in the context of his
appointment as CBSL Governor. Previous reasoning as to why Mahendrans son-
in-law, Aloysius was allowed to claim the privilege against self-incrimination
(referred to as the golden rule of the law) was meanwhile reiterated.
Anticipating legal challenges
Going by these consequent articulations by the Commission as reported, its
members appear to have been troubled by the possibility that, had Aloysius been
compelled to give evidence, this may have resulted in an application for judicial
review in the superior courts. As was remarked, this would have in turn resulted
in much delay in concluding the proceedings. But Mahendran was not in the
same position as he does not say he is likely to be an accused and does not say he
is likely to incriminate himself if he is compelled to give evidence.
At first blush and examined last week in these column spaces, it is a fair
assessment that a legal challenge by Aloysius has been made more possible by
the 2008 amendment to the 1948 Act. This empowers the Attorney General to
indict on the findings of Commissions of Inquiry. The amendment was clumsy, ad
hoc and unnecessary. Potential complications that may arise were raised by this
columnist when the amendment was first mooted but to little avail.
The consequences of the amendment become even clearer when key legal
precedents are examined. In pre-2008 legal challenges to Commissions of Inquiry
findings, the judicial view had inclined (albeit by a whisker), towards deciding that
the findings are merely recommendatory in nature, not having the effect of
affecting any partys rights, or interests and therefore not subject to judicial
review. For example, the authoritative opinion in Silva & Others v Sidique &
Others (1978-79-80) was that reports and inquiries conducted by a Commission of
Inquiry could not be quashed by writ.
A step in a statutory process
It was opined that writ will lie only if an order or decision is of binding effect. It
must either impose an obligation or involves civil consequences to a person or
alter his legal position to his disadvantage. Importantly such order or decision
must be a step in a statutory process which would have that effect. It must be
handed down by a body which had legal authority to determine questions
affecting rights.
The Court decided in that case that a Commission of Inquiry does not have the
legal authority to make binding decisions. Any penalty or consequence that
follows its Report is by the action of some other authority or body, although it
may be based on the Reports findings.
On this reasoning, the recommendations of a fact-finding Commission do not take
effect proprio vigore (by its own force or vigor). Accordingly, the conclusion was
that the writ of certiorari will not issue. Contrary precedents stating that judicial
review would lie where the reputation of a person whose conduct was being
inquired into by a Commission of Inquiry was affected, (Mendis Fowzie & Others v
Goonawardene (1978-79) were departed from.
Testing these issues in court
These are the decisions that should have been discussed in the Commissions
order relating to Arjun Aloysius rather than case law referencing the Special
Presidential Commissions of Inquiry Act which has entirely different provisions
and operates in a separate context. True, the 2008 amendment creates a greater
potential of a different outcome. The specific power of the Attorney General to
indict on Commission findings may well be seen, (in the words of the judges in the
Siddique case), as a step in a statutory process which alters his legal position to
his disadvantage.
Nonetheless, these are issues of law which must be legally tested at some point.
The privilege against self-incrimination ordinarily applies in a court proceeding
where it may be pleaded to shut out testimony, not at an earlier stage. And
regardless of potential legal challenges, a great deal of latitude is given to fact
finding Commissions which are wholly different from courts of law enjoined to
abide by strict rules of evidence.
This is precisely why Section 7 (d) of the 1948 Act allows the Commission to admit
any evidence, whether written or oral which might be inadmissible in civil or
criminal proceedings, notwithstanding the Evidence Ordinance. While
Commissioners have generally been reticent in utilizing this permission, there is
no doubt that the intent of the legislature was clear when the provision was made
part of the law. Also Section 14 affords special immunity for witnesses which
the Commission in fact, declared itself mindful of, despite its later conclusion
that Aloysius is not a compellable witness.
Stopping spectacular abuse of public funds
Members of the Commission seem to view a possible charge of being over-
zealous with the same startled annoyance with which a king cobra would eye an
imprudent mongoose. But that really need not be the case. Indeed, perhaps it is
time that judges are temperedly zealous, given the abuse of public funds that
has become a hideous feature of all our administrations.
Alleged corruptors should not be unduly allowed the liberality of high flown legal
arguments put forward by well retained counsel. Public opinion will no doubt
stoutly support raps over the knuckles in such instances. The effort must be to
ferret out the truth for the record.
That must remain the one primary objective.
http://www.sundaytimes.lkThe Tragedy and the Farce of Legal Flirtations with the
'Bond Scam' - Kishali Pinto Jayawardhana
Applying Marxs denunciation of historic personages repeating themselves first as
tragedy, second as farce to grotesque financial scandals in Sri Lanka is a tad
adventurous. But there is no question that one satire follows the other, tragically
and farcically, with little respite.
In the interests of sanity
Close upon Arjun Aloysius, principal shareholder and director of Perpetual
Treasuries (Pvt) Ltd being declared a non-compellable witness by the
Commission of Inquiry inquiring into the Central Bank of Sri Lanka (CBSL) bond
issuance, his father-in-law, former CBSL Governor Arjuna Mahendran made other
equally riveting news.
Mahendran attempted, through his counsel, to hold out that his appearance on
summons and testifying before the Commission was a gracious concession. Under
Section 7 (c) of the 1948 parent statute, the Commission has the power to
summon any person residing in Sri Lanka. Based on this, it was argued that
because Mahendran was resident in Singapore, he was not subjected to the
Commissions jurisdiction. However, he was anyway presenting himself and
deserved to be treated courteously by his interrogators.
In the interests of sanity and basic common sense, it was a relief to see the
Commission peremptorily putting the record straight, declaring that it was
necessary that Mahendran obey the summons particularly in the context of his
appointment as CBSL Governor. Previous reasoning as to why Mahendrans son-
in-law, Aloysius was allowed to claim the privilege against self-incrimination
(referred to as the golden rule of the law) was meanwhile reiterated.
Anticipating legal challenges
Going by these consequent articulations by the Commission as reported, its
members appear to have been troubled by the possibility that, had Aloysius been
compelled to give evidence, this may have resulted in an application for judicial
review in the superior courts. As was remarked, this would have in turn resulted
in much delay in concluding the proceedings. But Mahendran was not in the
same position as he does not say he is likely to be an accused and does not say he
is likely to incriminate himself if he is compelled to give evidence.
At first blush and examined last week in these column spaces, it is a fair
assessment that a legal challenge by Aloysius has been made more possible by
the 2008 amendment to the 1948 Act. This empowers the Attorney General to
indict on the findings of Commissions of Inquiry. The amendment was clumsy, ad
hoc and unnecessary. Potential complications that may arise were raised by this
columnist when the amendment was first mooted but to little avail.
The consequences of the amendment become even clearer when key legal
precedents are examined. In pre-2008 legal challenges to Commissions of Inquiry
findings, the judicial view had inclined (albeit by a whisker), towards deciding that
the findings are merely recommendatory in nature, not having the effect of
affecting any partys rights, or interests and therefore not subject to judicial
review. For example, the authoritative opinion in Silva & Others v Sidique &
Others (1978-79-80) was that reports and inquiries conducted by a Commission of
Inquiry could not be quashed by writ.
A step in a statutory process
It was opined that writ will lie only if an order or decision is of binding effect. It
must either impose an obligation or involves civil consequences to a person or
alter his legal position to his disadvantage. Importantly such order or decision
must be a step in a statutory process which would have that effect. It must be
handed down by a body which had legal authority to determine questions
affecting rights.
The Court decided in that case that a Commission of Inquiry does not have the
legal authority to make binding decisions. Any penalty or consequence that
follows its Report is by the action of some other authority or body, although it
may be based on the Reports findings.
On this reasoning, the recommendations of a fact-finding Commission do not take
effect proprio vigore (by its own force or vigor). Accordingly, the conclusion was
that the writ of certiorari will not issue. Contrary precedents stating that judicial
review would lie where the reputation of a person whose conduct was being
inquired into by a Commission of Inquiry was affected, (Mendis Fowzie & Others v
Goonawardene (1978-79) were departed from.
Testing these issues in court

These are the decisions that should have been discussed in the Commissions
order relating to Arjun Aloysius rather than case law referencing the Special
Presidential Commissions of Inquiry Act which has entirely different provisions
and operates in a separate context. True, the 2008 amendment creates a greater
potential of a different outcome. The specific power of the Attorney General to
indict on Commission findings may well be seen, (in the words of the judges in the
Siddique case), as a step in a statutory process which alters his legal position to
his disadvantage.
Nonetheless, these are issues of law which must be legally tested at some point.
The privilege against self-incrimination ordinarily applies in a court proceeding
where it may be pleaded to shut out testimony, not at an earlier stage. And
regardless of potential legal challenges, a great deal of latitude is given to fact
finding Commissions which are wholly different from courts of law enjoined to
abide by strict rules of evidence.
This is precisely why Section 7 (d) of the 1948 Act allows the Commission to admit
any evidence, whether written or oral which might be inadmissible in civil or
criminal proceedings, notwithstanding the Evidence Ordinance. While
Commissioners have generally been reticent in utilizing this permission, there is
no doubt that the intent of the legislature was clear when the provision was made
part of the law. Also Section 14 affords special immunity for witnesses which
the Commission in fact, declared itself mindful of, despite its later conclusion
that Aloysius is not a compellable witness.
Stopping spectacular abuse of public funds

Members of the Commission seem to view a possible charge of being over-


zealous with the same startled annoyance with which a king cobra would eye an
imprudent mongoose. But that really need not be the case. Indeed, perhaps it is
time that judges are temperedly zealous, given the abuse of public funds that
has become a hideous feature of all our administrations.
Alleged corruptors should not be unduly allowed the liberality of high flown legal
arguments put forward by well retained counsel. Public opinion will no doubt
stoutly support raps over the knuckles in such instances. The effort must be to
ferret out the truth for the record.
That must remain the one primary objective.
http://www.sundaytimes.lk
Posted by Thavam