The problem of Ar­jun Aloy­sius and the reach of the law

Sunday Times (Sri Lanka) - - COMMENT -

The Or­der by the Com­mis­sion of In­quiry into the is­suance of Trea­sury Bonds by the Cen­tral Bank de­clin­ing to com­pel Ar­jun Aloy­sius, prin­ci­pal share­holder and di­rec­tor of Perpetual Trea­suries (Pvt) Ltd to give ev­i­dence be­fore it, raises some in­ter­est­ing points of law for con­sid­er­a­tion. In­deed, its ef­fect has wider ram­i­fi­ca­tions be­yond the sub­ject mat­ter of this Com­mis­sion.

Priv­i­lege against self-in­crim­i­na­tion pleaded

In its Or­der, the Com­mis­sion has ex­haus­tively listed as to why it is ‘de­sir­able’ that the head of Perpetual Trea­suries gives ev­i­dence with re­gard to mat­ters that go to the heart of the fi­nan­cial scan­dal be­ing in­quired into. It has also de­tailed ob­jec­tions raised by his se­nior coun­sel to his be­ing com­pelled to give tes­ti­mony. These ob­jec­tions cen­ter on the con­sti­tu­tional pro­tec­tions that every per­son is en­ti­tled to a fair trial by a com­pe­tent court and pre­sumed in­no­cent un­til proven guilty.

It was con­tended that if the CEO of Perpetual Trea­suries is com­pelled to give ev­i­dence, that may tend to in­crim­i­nate him. There was ‘every pos­si­bil­ity’ of a charge or in­dict­ment be­ing made against him. There­fore, com­pelling him to give ev­i­dence may prej­u­dice his right to a fair trial in the event of him be­ing pros­e­cuted for an of­fence or of­fences. This was in the con­text of the well-es­tab­lished prin­ci­ple of ev­i­dence that an ac­cused per­son can­not be made to in­crim­i­nate him­self.

These ar­gu­ments were made in the con­text of the Com­mis­sion be­ing em­pow­ered to rec­om­mend ‘ac­tion that it con­sid­ers nec­es­sary to be taken against per­sons whose con­duct is the sub­ject of the in­quiry or in­ves­ti­ga­tion or who is in any way im­pli­cated or con­cerned in the mat­ter.’ A fur­ther con­cern was a 2008 amend­ment to the 1948 Act which em­pow­ered the At­tor­ney Gen­eral to in­sti­tute crim­i­nal pro­ceed­ings in re­spect of any of­fence on ma­te­rial col­lected by a Com­mis­sion.

‘Im­pli­cated’ per­sons are not com­pellable wit­nesses

In ac­cept­ing these con­tentions, the Com­mis­sion’s rea­son­ing was that un­der the Act, there are three cat­e­gories of per­sons who will be sum­moned to ap­pear. These cat­e­gories will com­prise first, per­sons who are ‘im­pli­cated’; sec­ondly, per­sons who are con­cerned; and thirdly, per­sons who con­sider it de­sir­able that they should be rep­re­sented.

The CEO of Perpetual Trea­suries was clas­si­fied as be­long­ing in the first cat­e­gory. This raised the pos­si­bil­ity that any ‘rec­om­men­da­tion’ of the Com­mis­sion and/or any pro­ceed­ings that may be in­sti­tuted by the At­tor­ney Gen­eral may rely at least partly, upon ev­i­dence which he may be com­pelled to give. If so, it was opined that the Com­mis­sion would be act­ing in dis­re­gard of the well founded Rule of Law that an ac­cused can­not be com­pelled to give ev­i­dence. A ‘some­what ar­ti­fi­cial de­vice’ of com­part­men­tal­iz­ing Com­mis­sion pro­ceed­ings from a crim­i­nal pros­e­cu­tion did not find much favour. Ev­i­dently the Com­mis­sion thought that re­sort to this de­vice might de­tract from the "cold neu­tral­ity" with which it should act and may even in­vite the charge of be­ing "over-zeal­ous.’

This Or­der de­serves par­tic­u­lar scru­tiny given its im­pact and im­por­tance. The priv­i­lege against self-in­crim­i­na­tion be­longs prop­erly, of course, to a crim­i­nal pro­ceed­ing. Its ap­pli­ca­tion to a fact-find­ing Com­mis­sion of In­quiry is an ex­ten­sion which is con­cern­ing. The fact that, un­like ear­lier, the At­tor­ney Gen­eral has now been em­pow­ered to act upon its find­ing fol­low­ing the 2008 amend­ment ap­pears to have weighed per­sua­sively in the mind of the Com­mis­sion. This seems to have con­trib­uted to tilt­ing the scales to­wards its de­ci­sion.

Con­se­quent ironies that arise

Un­doubt­edly this is an un­fore­seen devel­op­ment that is not with­out its own pe­cu­liar in­con­gruities. The 2008 amend­ment was due to per­sis­tent ad­vo­cacy call­ing for some strength to be given to find­ings of Com­mis­sions of In­quiry. This was in the face of sub­stan­tial doc­u­mented stud­ies show­ing dis­turbingly that even though sev­eral bod­ies had been ap­pointed on var­i­ous sub­jects rang­ing from as­sas­si­na­tions to gross hu­man rights abuses dur­ing the past sixty years or more, no ef­fec­tive prose­cu­tions re­sulted.

The Com­mis­sion of In­quiry process and the crim­i­nal jus­tice process pro­ceeded on en­tirely two sep­a­rate lines, one hav­ing ab­so­lutely no con­nec­tion to the other. It was to cor­rect this pal­pa­ble if not grotesque im­bal­ance that a com­plete over­haul of the old Com­mis­sions of In­quiry Act was called for. How­ever what tran­spired through a clos­eted process, led with force by the Depart­ment of the At­tor­ney Gen­eral was purely this one amend­ment to the Act, vest­ing more pow­ers in its of­fice.

Now given the in­ter­pre­ta­tion of the law in this Or­der and with all due re­gard to the sin­cere con­cerns of Com­mis­sion mem­bers not to in­cur the charge of be­ing ‘over-zeal­ous’, cer­tain para­dox­i­cal con­se­quences may en­sue. In fact, this in­ter­pre­ta­tion has wider im­pact be­yond the ‘bond scam’ mat­ter.

Warn­ings in 2008 are now borne out

For ex­am­ple, if we look at the pro­ceed­ings of the three Dis­ap­pear­ances Com­mis­sions ap­pointed in the 1990s and the all-is­land Com­mis­sion ap­pointed later which ex­am­ined in­vol­un­tary dis­ap­pear­ances in all parts of the coun­try dur­ing the sec­ond in­sur­rec­tion of the Janatha Vimuk­thi Per­a­muna (JVP), many high-level for­mer min­is­ters and politi­cians were cat­e­go­rized as in­di­vid­u­als who were ‘cred­i­bly im­pli­cated.’ In fact, the Com­mis­sions chose to name them pre­cisely on that ba­sis, some by send­ing their names un­der reg­is­tered con­fi­den­tial cover to the Pres­i­dent while other bod­ies cited the names pub­licly in the Com­mis­sion re­ports.

These were, of course, be­fore the 2008 amend­ment. If these Com­mis­sions had sat af­ter 2008 and if the same in­ter­pre­ta­tion had been ap­plied as in the in­stant case, these in­di­vid­u­als may have calami­tously not been com­pelled to give ev­i­dence. Em­pa­thy for hap­less com­mis­sion mem­bers caught on the horns of such un­en­vi­able dilem­mas is in or­der. But that does not de­tract from the dan­gers of piece­meal amend­ments which clas­si­cally il­lus­trate the problem as now is pre­sented be­fore us.

The po­ten­tial dan­gers that this amend­ment may in­voke were raised in 2008. What we have here is this warn­ing in ac­tion, al­beit in an en­tirely un­ex­pected con­text. Fol­low­ing the Com­mis­sion or­der, Aloy­sius has de­clared that he will not be giv­ing tes­ti­mony. There is a cer­tain de­li­cious irony here in see­ing the At­tor­ney Gen­eral be­ing hoist on its own petard, given that the 2008 amend­ment was of­fered by it, quite tonguein-the-cheek style, to off­set acer­bic pub­lic crit­i­cism at the time that Com­mis­sions of In­quiry were quite use­less.

Learn­ing lessons even now

But the over­all un­der­ly­ing point is that ad hoc and craftily en­gi­neered amend­ments purely to ‘get over’ an awk­ward sit­u­a­tion at a par­tic­u­lar point of time do not serve the cause of jus­tice. ‘Tin­ker­ing’ with laws is best avoided.

There is also no al­ter­na­tive to the crim­i­nal law work­ing prop­erly and ef­fec­tively. Com­mis­sions of In­quiry serve a dif­fer­ent pur­pose. And one can­not re­place the other or for that mat­ter, be bound by the dif­fer­ent con­texts ap­ply­ing to the other.

Per­haps this is a les­son to be learnt at least now.

Newspapers in English

Newspapers from Sri Lanka

© PressReader. All rights reserved.