Recapping Bond Commission proceedings Cake is almost baked!

As any preface to a trilogy of a world class movie, the Treasury bond debacle saw its prequel this week, right before the Presidential Commission of Inquiry investigating into the issuance of Treasury bonds resumed its public hearings. That prequel however, turned out to be a false prophet at the end and would have flopped at the box office, like a fish out of water.

The reference is to the much publicized Voice Against Corruption’s decision to release seemingly “new phone call record evidence” pertaining to several conversations related to the mandate of the Inquisitorial Commission. On 29 October, the Voice Against Corruption claimed that it had been able to obtain several phone call recordings that document conversations between individuals, including those of Chief Executive Officer of the Perpetual Treasuries Ltd. (PTL) Kasun Palisena, officers from the Central Bank’s Public Debt Department and the Tender Board, and State Banks such as the People’s Bank and the Bank of Ceylon.

Interestingly enough, however, it was revealed that the 19 telephone conversations have already been filed before the Commission as evidence, during the initial stages of the Commission’s proceedings. Sources close to the Commission told Ceylon Today that the supposed phone call records documenting conversations between the Perpetual Treasuries Limited (PTL), officers of State Banks, the Central Bank’s Public Debt Department and the Tender Board, have already been marked as evidence before the Commission. However, the VAC publicized the phone call records to the media on 1 November claiming that they had received “new evidence” confidentially through a person living abroad.

The VAC had obtained 19 phone call recordings through a confidential source from overseas.

The records document conversations that took place on 27 February 2015, while the controversial Treasury bonds auction was taking place at the Central Bank (that was also the day the Central Bank accepted bids for 10 times the advertised bonds and at a higher than expected rate), as well as conversations that took place on the following day, which discussed how the auction had impacted the market.

VAC’s Samarasinghe was quick to disregard the claims, despite his previous statements he made to the media saying that the VAC will submit this “new evidence” to the Commission in the coming weeks. He opined that the evidence contained in the said recordings proved beyond doubt the culpability on the Part of the PTL in the Central Bank Treasury bonds scam (during which bids for higher than previously approved of amounts were made at higher than approved of interest rates), owing to their foreknowledge of the bidding auction and dealings and links with other primary bidders and dealers including the Bank of Ceylon.

Samarasinghe added that the VAC was expecting to receive a further three audio recordings from the same overseas source soon.

Hopefully, this time around, these will be of some use to the public, other than becoming a complete media stunt.

The biggest news to break from the resumed public hearings of the Commission was the request made to Prime Minister Ranil Wickremesinghe to appear before the Commission to give his testimony. Accordingly, the premier has made note of his willingness to arrive and give the necessary evidence and clarifications on a date convenient to the Commission.

PM‘s affidavit

Chairperson of the Commission, Supreme Court Judge K.T. Chithrasiri making a statement at the newly resumed Commission proceedings on 2 November (Thursday), noted that Prime Minister Wickremesinghe’s affidavit was received last October, as per the request made to him. Accordingly, the Commission has perused the Premier’s written affidavit and had come to the decision to summon Wickremesinghe for further clarifications.

If he arrives, without pulling yet another Karunanayake/Aloysius Move on the Inquisitorial Commission, it will be the first time in Sri Lankan history where the country’s Prime Minister will testify before a Presidential Commission of Inquiry. And in such a context where he has been summoned to give evidence, it is in his best interest to oblige to the order, in order to save face.

Chairperson Chithrasiri opined, “The Commissioners have carefully perused the affidavit and would like to obtain a few clarifications and any other evidence which may be necessary. Therefore, the Commission will be requesting the Prime Minister to attend a hearing of the Commission of Inquiry for that purpose.”

However, the Commission proceeded to withhold the deciding date, which will be made in due course, taking into account the fact that Commissioner, Supreme Court Judge Prasanna Jayawardene’s health. Due to this, it was notified, that the Commission will not convene for two weeks and will resume on two separate occasions to hear the evidence of two persons including the premier.

Digital forensic evidence

The Commission will resume proceedings on 16 November to continue the examination of digital forensic evidence and the data connectivity sessions of electronic devices of persons of interest to the Commission. Chairperson Chithrasiri, concluding his statement, added that following the conclusion of the hearing of evidence, the Commission would devote the remaining time until 8 December for the preparation and finalizing the report. The other proceedings of the Commission saw the testimony examination of officers of the Criminal Investigation Department (CID), assisting the Commission.

Accused of wrongdoing

Accordingly, two Inspectors and two Police Sergeants of the Criminal Investigation Department, assisting the Commission were called to give brief explanations as to their conduct and investigations that they had carried out, under the mandate of the Commission. The decision to call evidence came following a Fundamental Rights (FR) petition filed by the former Assistant Superintendent of the Employees Provident Fund (EPF), S. Pathumanapan, against the officers assisting the Commission.

In the FR petition filed in the Supreme Court on 26 October, Pathumanapan claimed that he was not given an opportunity to testify before the PCoI or the officers assisting the Commission – specifically the Attorney General’s Department – which has led to him being accused of wrongdoing. He accused the officers of the Attorney General’s Department of “cruel, inhuman or degrading treatment” and states that he is being punished and victimized for refusing to provide favourable testimony to the officers assisting the PCoI.

Accordingly, Additional Solicitor General (ASG) President’s Counsel (PC) Yasantha Kodagoda leading the four CID officers in evidence, inquired as to whether they had intimidated or influenced any witnesses during their investigations; all four officers asserted that the due process had been followed when interviewing persons of interest to the Commission mandate and during the recording of their statements.

Among the persons interviewed by the four CID officers are former Central Bank Governor Arjuna Mahendran, Perpetual Treasuries Ltd. Owner Arjun Aloysius, Chief Executive Officer of the Perpetual Treasuries Limited Kasun Palisena, its Primary Dealer Nuwan Salgado, its technical officer Sachith Devathantri and the petitioner, S. Pathumanapan.

During yesterday’s proceedings, Kodagoda made a move to mark the recorded statements given to the CID officers during interviews. This was objected to by the counsels for the defendants Chanaka de Silva, Kalinga Indatissa PC and Anuja Premaratne PC who claimed that the marking of the statements as evidence cannot be allowed as they had been given to Police officers and not before the Commission, under oath. They argued that the move would violate the rules of natural justice.

In response both ASG Kodagoda PC and Senior Additional Solicitor General Dappula de Livera PC retorted claiming that the statements included those who had avoided giving evidence before the Commission as well – namely Arjun Aloysius, who in September, refused to give evidence on the matters in which his name has surfaced since the inception.

President’s Counsel Kalinga Indatissa questioned the mechanism of leading evidence, considering the alleged circumstances in which some witnesses had made their statements.

“We have waited and waited for rules of natural justice. Statements have been made about PTL being a criminal organization. You don’t make statements like that. This is a forum,” he said.

Brief debate

Following a brief debate, the Commissioners considering the submissions from both sides set forth an order citing Section 23 of the Commissions of Inquiry Act, asserting that it is against the rules of natural justice to mark statements given to the CID officers as evidence. Chairperson of the Commission, Supreme Court Judge K.T. Chithrasiri emphasized that the marking of the statements will not be allowed, however, the rest of the evidence will be heard.

“We are of the view that it is against the rules of natural justice to admit the statements of the witnesses given to the Police.”

In response, de Livera PC inquired as to how the Commission is going to complete the task of collecting evidence, in the face of the latest order, adding that the Commission had effectively prevented itself from looking at investigative material with the order, adding that one part of the mandate has been rendered redundant as a result. To which Commissioner, Supreme Court Judge Prasanna Jayawardene responded claiming that the Commission does not intend to risk the integrity of the final report by filing these statements. “We do not want to have spent eight months of our lives on this and at the end of it have the whole thing squashed, as it was squashed in some other cases.”

The ASG reiterated that the Commission has prevented itself from looking at the investigative material, which he said it was mandated by law to do, “thereby making a mockery of the proceedings.”

This resulted in another argument between the parties involved at the Commission and the Commission warning de Livera PC for his conduct and behaviour before the Commission.”It’s deplorable,” said Justice Jayawardena, telling de Livera to take up the matter elsewhere if he didn’t like the order. Proceedings of the Commission also saw the first ever recording of digital forensic evidence in the Sri Lankan Judicial System.