Kishali Pinto Jayawardena
Applying Marx’s 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 Commission’s 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 Mahendran’s 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 party’s 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 Report’s 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 Commission’s 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.