Even High Court can’t compel accused to give evidence

Bond scams

The principal shareholder of the owning company of primary dealer, Perpetual Treasuries Limited (PTL), Arjun Aloysius, could also refuse to give evidence in the High Court of Colombo on the same basis that he refused to give evidence before the Presidential Commission of Inquiry (CoI) probing the alleged bond scams involving the Central Bank of Sri Lanka (CBSL) and PTL during Arjun Mahendran’s tenure as the Governor of the CB, legal sources told The Island.

The Attorney General’s Department, too, confirmed that Aloysius or any other person summoned by the three member CoI comprising Justice K.T.Chitrasiri (Chairman), Justice Prasanna Jayawardena and K. Velupillai, could exercise their right not to give evidence.

Singaporean national Mahendran was appointed  Governor of CBSL in January 2015. President Maithripala Sirisena replaced Mahendran in mid 2016 in the wake of the second alleged bond scam in late March 2016. The first controversial bond transaction after the change of government in January 2915, is alleged to have been perpetrated in late Feb 2015.

Mahendran has been summoned to give evidence before the CoI on Sept 19.Aloysius and his legal team wouldn’t have taken that decision lightly, legal sources said, adding that the young businessman could exercise his right not to give evidence, if the Attorney General indicted him in the High Court of Colombo, depending on the CoI’s recommendations.

Appearing on behalf of Aloysius, President’s Counsel Gamini Marapana has explained to the CoI why his client decided against giving evidence.

A veteran lawyer speaking on the condition of anonymity told The Island that Aloysius wouldn’t have exercised his legal right to avoid giving evidence before the CoI if he hadn’t also examined the possibility of avoiding giving evidence before a court of law subsequently. Asked whether Aloysius or any other accused could be compelled to give evidence in the High Court of Colombo if indicted on criminal charges, the President’s Counsel emphasized that whatever the circumstances, the court lacked the power to intervene. Forcing people to give evidence was contrary to the existing laws, the PC said.

Aloysius functioned as Chief Executive/Managing Director of PTL until early 2015.

The CoI has so far summoned about 50 persons, mostly officials of the CBSL.

Having taken into consideration that the accused couldn’t be compelled to give evidence even in a court of law, the CoI would proceed on the basis of evidence gathered so far, sources said.

Authoritative sources said that having recorded a lengthy statement over a period of five days at the CoI,  the Criminal Investigation Department (CID) was continuing investigations into the bond scams.

President of the Bar Association of Sri Lanka (BASL) U.R. de Silva, PC, yesterday told The Island that one couldn’t find fault with Aloysius or anyone else for responding to a particular situation in accordance with the law. The BASL chief said that he didn’t see any requirement to amend that particular provision in the law. Having said that PC Silva explained in case an accused remained silent in face of a strong prima facie case, the court could presume he or she was guilty. But even then, an accused had the right to remain silent, the BASL President said, underscoring the importance of a strong prima facie case.

Former External Affairs Minister and Law Professor Prof. G.L. Peiris, too, yesterday confirmed that the accused enjoyed the right not to give evidence in a court of law.

In an unprecedented move, the CoI, on Wednesday (Sept. 14) revealed that based on the testimony of witnesses, documents and several audio recordings, the CoI wanted to question Aloysius on the following matters:

(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 the officers of Perpetual Treasuries (Pvt) Ltd and some officers of the Central Bank of Sri Lanka; (iv) the dealings and relationship which existed between the 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) the 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 transfer of profits (if any) and investments.

The COI said that in addition to the above mentioned issues, it wanted to obtain Aloysius’ evidence in respect of several matters 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.