The problem of Arjun Aloysius and the reach of the law

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.