Mahendran can be compelled to testify despite foreign citizenship: Bond Commission

Thursday, 21 September 2017 00:00 -     - {{hitsCtrl.values.hits}}

By Himal Kotelawala

The Presidential Commission of Inquiry on the controversial bond issuance yesterday declared that despite former Central Bank Governor Arjuna Mahendran’s foreign citizenship he is indeed compellable to testify in the ongoing proceedings.

Making a special statement with regard to media reports on a submission made on Tuesday, Commission Chairman K. T. Chitrasiri said Mahendran being a foreign citizen does not take him outside the commission’s jurisdiction and that he had to obey the summons - especially after accepting appointment as CBSL Governor.

“He cannot claim he’s outside the law,” said Justice Chitrasiri.

Mahendran, the commission observed, is in a very different position to Perpetual Treasuries Ltd. (PTL) former Director Arjun Aloysius as the latter had pleaded that he was likely to be the accused in a criminal case in the High Court and that he was likely to incriminate himself if he was compelled to give evidence.

“He invoked the golden rule of the law that an accused cannot be forced to incriminate himself,” the commission noted, reiterating its reasons for refraining from compelling Aloysius to give evidence.

Compelling Aloysius to give evidence, the commission further said, would have resulted in the application for a judicial review in superior courts which would have in turn resulted in much delay in concluding the proceedings.

Mahendran, however, is not in the same position as he does not say he is likely to be the accused in a criminal case in the High Court and does not say he is likely to incriminate himself if he is compelled to give evidence.

“He does not invoke any right of an accused or likely accused. Therefore he’s compellable to give evidence,” noted the commission, adding that, “In any event, we do not think that Mr. Mahendran is so foolish as to not take the opportunity to give evidence and give his explanation. Even if he did not want to give evidence, we’re certain that his counsel will not allow him to make such a mistake.”

Mahendran’s lawyer President’s Counsel Romesh De Silva, in response, said that his submission on Tuesday had been misinterpreted, pointing out that while he did say that his client was not a citizen of this country, he made the submission that Mahendran was not “resident in the country.”

In terms of Section 7 1, (c) of the Commission of Inquiry Act, he pointed out, the commission is only empowered to summon any person residing in Sri Lanka. In spite of this, however, Mahendran had agreed to testify.

The section reads: “To summon any person residing in Sri Lanka to attend any meeting of the commission to give evidence or produce any document or other thing in his possession, and to examine him as a witness or require him to produce any document or other thing in his possession.”

Meanwhile, proceedings of the commission were adjourned yesterday until tomorrow, following a request by the Attorney General’s Department seeking two days’ time to better prepare itself to effectively cross-examine former Central Bank Governor Arjuna Mahendran.

Acting Solicitor General Dappula de Livera, referring to a motion submitted to the commission seeking the adjournment, said that considering Mahendran’s evidence so far has been at variance with the testimony of most witnesses, there was a need to permit the AG officers to have access to all materials available in order to “ready itself” for a successful cross-examination of the witness.

There’s a volume of evidence that had not been forthcoming, said de Livera, adding that evidence submitted by the witness so far has been based on non-material testimony presented purely on memory.

“In order to perform our task properly, this adjournment is essential,” he said.

Mahendra’s attorney, President’s Counsel Romesh De Silva, who examined his client yesterday, expressed his displeasure at the AGD officers not handing his side a copy of the motion.

It was only courteous that he should have been given a copy, he said.

He also questioned the AGD officers’ request for more time, given it had been well aware that Mahendran was supposed to appear before the Commission yesterday. Nothing that that the “very eminent, very capable” officials, at least three of whom are Presidents Counsel, have been attending the hearing since the beginning, at the taxpayers’ expense, De Silva said “still they’re not ready to cross-examine” his client, despite all documents having been made available to them.

“But still for some strange reason they’re not ready to cross examine Mr. Mahendran, possibly because he’s telling the truth,” said the senior lawyer.

However, he did concede that if the Acting Solicitor General was genuinely not ready, there was nothing that could be done but wait.

“We’re quite happy to face any cross-examination,” he said, after which he informed the commission that he would be unable to attend next week’s proceeding as he has a five-judge bench in the Supreme Court on Monday.

De Livera insisted that the AG Department was not focused solely on Mahendran’s evidence.

“We have 101 things on our agenda,” said de Livera, adding that the commission is “far from over.”

Commission Chairman Justice K. T. Chitrasiri said the commission would have to consider the fact that the AG officials would have to go through all evidence and materials and will, therefore, accommodate the request.

PC De Silva then objected to the “questionnaire” handed to his team on Tuesday referring to data allegedly missing from two mobile phones provided by Mahendran as evidence some weeks ago.

“When we came to give evidence yesterday we were handed a questionnaire. That’s bad practice,” he protested, pointing out that his client had been given only 48 hours to answer the questions, especially given the AGD was “not even ready to cross-examine him.”

When De Silva requested for an extension of the 48-hour deadline till next Monday, Justice Chitrasiri said “I think that’s unreasonable.”

Additional Solicitor General Yasantha Kodagoda observed that the AG officers had also been given 48 hours and, as such, Mahenrdan had received equal treatment before the commission. He also pointed to the fairly straightforward nature of the questions raised such as the type of phone used.

The questions are as follows (paraphrased):

nWhat is/are the mobile phone connection number(s) which was/were used by you during the period 1 January 2015 and 1 April 2016?

n In particular, what is/are the mobile phone connection number(s) which was/were used by you on 23 February 2015 to 1 March 2015?

n What are the mobile phone devices and the corresponding IMEI numbers of such devices used by you during the aforestated periods, pertaining to the aforestated mobile telephone numbers?

n Have you submitted the aforestated mobile phone devices to this commission for examination? If not, reasons therefor.

n Do you have any explanation to provide for information being absent pertaining to the use of mobile phones submitted by you to this commission, pertaining to a considerable period of time?

The commission had noted earlier, when the matter came up on Tuesday, that the examination of the two phones provided by Mahendran suggested that data “covering a significant period” during its mandate could not be located. The 48-hour deadline is for explanation from the former Governor, if he has any to offer.

The commission yesterday directed Mahendran to comply with its order on or before 12 noon tomorrow.

Meanwhile, attorney-at-law Harsha Fernando, appearing on behalf of Deputy CBSL Governor (Rtd) P. Samarasi, seeking clarification from Mahendran on evidence given on Tuesday, pointed out that three out of the eight Tender Board members of CBSL had also been members of the Market Operations Committee (MOC) and another three members from the Public Debt Department, while the remaining two had been his client and Assistant Governor Sepala Ratnayake. 

Due to the pressures, Mahendran claimed to have faced to raise money, said Fernando, two significant things happened on 27 February 2015: The removal of the 5% penal rate and the departmental recommendation by the PDD to accept Rs. 10.058 billion that afternoon.

It necessarily followed the start of the Tender Board meeting, he suggested, the three MOC members would have known about the penal rate removal and the three PDD members had to have known about the decision to recommend Rs. 10.058 billion. Mahendran agreed.

Fernando then asked if it was correct to say that under the Monetary Law Act and the powers vested in the Governor therein, if the Governor were to make a suggestion or recommendation to a subordinate officer or team of officers, within reason, they would accept.

“To a large extent,” said Mahendran.

Asked if the suggestion made by him and the discussions he had had to be followed through by relevant officials, Mahendran said the purpose of the Tender Board was to advise the Governor on recommended policy.

“In this particular instance, I fully agreed with the Tender Board’s decision,” he said, adding that it was a mutually agreed upon solution to a pressing problem.

Fernando then suggested that given Mahendran had said in his testimony that he exercised veto power on recommendations (although, he had opted not to, in this instance), the MOC and Tender Board decisions were mere recommendations and not implementable decisions until his signature had been placed.

Due to the pressures he was facing, Fernando put to the witness, Mahendran’s suggestions resulted in those two significant events, adding that they would not have taken place otherwise. Mahendran disagreed.

 

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