The much awaited appearance of Perpetual Treasuries Limited owner Arjun Aloysius to testify before the Presidential Commission of Inquiry investigating into the Treasury Bond issue, reached an anti-climax, as Aloysius, shielded by President’s Counsel Gamini Marapana, stood before the commission to inform that he refuses to give evidence, as provisioned by the law.
Last week, the Treasury Bond Commission proceedings stirred public interest as the commission sent a Notice of Summons to Arjun Aloysius on September 11 2017 to testify before the tribunal.
Objection
Following the issuance of Notice of Summons, Aloysius’ legal counsel Marapana immediately stood to raise objections against the summons. Marapana PC insisted that the Commission could not compel Aloysius to give evidence.
Marapana PC, referring to Sections 16 and 24 of the Commission of Inquiry Act pointed out that Aloysius is a main figure in the Treasury bond issue, on which the commission is investigating. He was on the grounds that following the recommendations given by the Commission, the Attorney General’s Department will file a case in a criminal court.
He then pointed out that an accused person cannot be compelled to give evidence against himself, pointing out that such testimony will jeopardize Aloysius’ right for a fair trial.
Thus, Marapana PC argued that his client does not wish to incriminate himself by giving evidence before the court.
“I prefer to remain silent. If I have to face a criminal procedure, I cannot incriminate myself in advance, which is a well established law.”
AG argues back
Acting Solicitor General Dappula de Livera then rose to contest Marapana PC’s argument on the basis that PC Marapana’s argument is irrelevant to the summoning made by the commission.
ASG de Livera PC insisted that summoning Arjun Aloysius to testify before the commission is of utmost importance since the Treasury Bond Commission is a fact finding commission. “Arjun Aloysius, in my submission, is a necessary and material witness.” he said.
SASG de Livera, reasoning out his submission, pointed out that the Presidential Commission of Inquiry investigating into the Treasury bond issue is but only an inquisitorial process and not an adversarial process.
In such an inquisitorial process, he said, Aloysius’ testimony as a witness is crucial to find out the truth behind the Treasury bond issue.
Supporting his argument, ASG de Livera pointed out the differences in the provisions in the Commission of Inquiry law and the Special Presidential Commission of Inquiry law, where the former is not adversarial but the latter is. The Treasury Bond Commission is provisioned by the Commission of Inquiry law.
Taking on the warrant of the Commission, de Livera insisted that it was appointed to find the truth behind a specific Treasury bond auction, those involved in it, the outcome and the losses made to EPF, which is also restricted to a particular time period. The investigation is neither on a company or an individual, de Livera highlighted. SASG De Livera pointed out that a PCoI does not implicate anybody as a wrongdoer, which will be the same treatment to Arjun Aloysius. According to him, all persons are liable to be summoned before the PCoI.
“This is a truth seeking process. Section 7 of the Commission of Inquiry Act empowers the commission to procure and receive all such evidence written or oral by examining all persons necessary for the investigation.” SASG de Livera added.
National interest
Stressing the importance of Arjun Aloysius’ testimony, SASG De Livera said, it is only through his (Aloysius’) evidence that the commission will be able to identify the wrongdoings caused by other parties involved in the Treasury bond issue, most importantly, government institutions.
“People of this country are keenly awaiting the outcome of the commission, not only about wrongdoers, but as to who is responsible for this blunder or the robbery,” ASG Livera insisted.
De Livera, voicing the public yearning, pointed out that the “President appointed this commission in the national interest. People of this country are awaiting the outcome of the commission.”
“He is the only person who can give evidence as to who gave such information to him.” SASG de Livera pointed out. His knowledge of such facts makes it compulsory that this commission must call Aloysius to testify. If the PCoI does not summon Aloysius to give evidence, it will be failing in its duty, warrant, mandate and national interest.” ASG De Livera emphasized.
Making a rhetorical statement, ASG de Lievera stressed that “There will be a travesty of justice if Arjun Aloysius is not called here. The whole country is waiting till Aloysius comes before the Commission.
There are two persons who ought to take the witness stand. They are, Arjuna Mahendran and Arjun Aloysius, and there may be others. I won’t name them. There may be (he emphasized). So if these two persons don’t come, this Commission will be a failure,”
Order
Considering all submissions put forward by counsel with regard to summoning Aloysius to give evidence, the Treasury Bond Commission issued the order concerning the matter, on Wednesday morning. The courtroom was a full-house with lawyers, the public and journalists.
Aloysius walked into the courtroom early morning and sat awaiting the commencement of hearing, while being constantly flocked round by his lawyers and others personally known to him.
It was visible that he was giving his signature to a number of documents as he sat chatting away with his lawyers. Suspension was at its peak as the Commission commenced hearing Wednesday (13).
The PCoI in the order directs Aloysius to appear before the commission to give evidence, however observed, if Aloysius is unwilling or refuses to give evidence, his counsel is entitled to make an application on the basis that an accused cannot be compelled to give evidence.
According to the order, the PCoI investigating into the Treasury bond issue is of the view that Aloysius is required to give evidence before the commission.
The commission states that Aloysius’ evidence is relevant and material. It also believes that Aloysius should be given “the opportunity to explain” himself regarding the matter under probe.
The Commission observes that if Aloysius is unwilling or refuses to give evidence, it will “be duty bound to act in terms of the rule of law and refrain from compelling Aloysius to give evidence.”
The PCoI’s order states that it requires Aloysius to give evidence with regard to matters including, reasons for the PTL bidding for large amounts of Treasury Bonds at some Treasury bond auctions, transactions on the secondary market of Treasury bonds which PTL obtained by successful bids, the dealings and relationship which existed between PTL-Central Bank, Employees Provident Fund, Pan Asia Banking Cooperation PLC and some other Primary Dealers.
The matters also include, the profits/capital gains received by PTL as a result of the said Treasury bond transactions, the disposal of these profits/capital gains by way of dividends, fund transfers and transfers of profit and investment.
The Commission also requires Aloysius to give evidence on several matters which are within his personal knowledge. The Commission listed out 15 matters on which Aloysius seems to have gained personal knowledge, inter alia:
(i) the ownership, control and structure of the group of Companies of which Perpetual Treasuries (Pvt) Ltd is a member;
(ii) the role played by Aloysius in applying for and obtaining a Primary Dealer’s License from the Central Bank of Sri Lanka;
(iii) the role played by Aloysius in preparing the Business Plan of Perpetual Treasuries (Pvt) Ltd which was submitted to the Central Bank of Sri Lanka at the time Perpetual Treasuries (Pvt) Ltd applied for a Primary Dealer’s License and the subsequent Business Models followed by Perpetual Treasuries (Pvt) Ltd;
(iv) the role played by Aloysius in the day to day operations of Perpetual Treasuries (Pvt) Ltd while he was the Chief Executive of that Company;
(v) the reasons for Aloysius resigning from the post of Chief Executive of Perpetual Treasuries (Pvt) Ltd;
(vi) the role played by Aloysius in the day to day operations of Perpetual Treasuries (Pvt) Ltd after he resigned from the post of Chief Executive of that Company;
(vii) the profits and/or capital gains received by Perpetual Treasuries (Pvt) Ltd and the disposal of these profits and/or capital gains by way of dividends, fund transfers and transfers of profits (if any) and investments;
(viii) the audio recordings of telephone conversations which are said to have taken place between Aloysius and Kasun Palisena with regard to Auctions of Treasury Bonds held in March 2016 and the matters discussed therein including the information which Aloysius is said to have claimed, he possessed with regard to those Auctions;
(ix) the role played by Aloysius with regard to the Fine imposed by the Central Bank of Sri Lanka on Perpetual Treasuries (Pvt) Ltd in April 2016 after the aforesaid Auctions;
(x) the nature of the relationship between Aloysius and some officers of the Central Bank of Sri Lanka;
(xi) the nature of the relationship between Aloysius and Arjuna Mahendran, the previous Governor of the Central Bank of Sri Lanka;
(xii) the nature of the relationship between Aloysius and some officers of the Employees Provident Fund including Saman Kumara and Navin Anuradha;
(xiii) the nature of the relationship between Aloysius and Nimal Perera, the previous Chairman of Pan Asia Banking Corporation PLC and the resulting transactions on Treasury Bonds entered into by the Pan Asia Banking Corporation;
(xiv) the reasons for Aloysius telephoning Richie Dias of the Pan Asia Banking Corporation PLC during the period when Dias was furnishing his statement to the Commission of Inquiry; and
(xv) the reasons for Aloysius leasing an apartment which was occupied by Ravi Karunanayake and family.
Following the order, Marapana PC rose to state that Aloysius is unwilling to give evidence before the Commission. Aloysius then left the courtroom with his lawyers.
Outside the courtroom, a smiling Aloysius hugged his lawyers, seemingly elated by the outcome. Aloysius did not speak to journalists who were waiting for him outside the Commission premises.
A lie to COPE
Meanwhile, on Friday a very reluctant Kasun Palisena (PTL CEO) stated that PTL owner Arjun Aloysius has lied to the COPE sub-committee investigating into the Treasury bond issue with regard to his involvement in the operational activities of PTL.
Deputy Solicitor General Milinda Gunatilake took Palisena through a series of questions with regard to certain statements made by Arjun Aloysius to the COPE sub-committee on his resignation from the post of PTL CEO and his involvement in the daily activities of the PTL.
Supporting his argument, DSG Gunatilake played some call conversations where Aloysius gives specific instructions to Palisena. He then suggested that Aloysius has “lied” to the COPE sub-committee when he said he did not involve himself in the daily operational activities of the PTL.
Little Johnny
Several nicknames used by the PTL officers for dealers in the market surfaced yesterday adding humour to the very serious cross examination carried out by the AG’s department. Accordingly, “Little Johnny”, “Bee Hive” and “Mod Goviya (Fashionable Farmer)” are some of these code names used by PTL dealers when they are referring to each other.
When DSG Milinda Gunatilake played a call conversation which reflects a discussion between two dealers of PTL about a cash check worth Rs.one million to be sent to a person, known as ‘Little Johnny’, Palisena was continuously asked to reveal who “little Johnny” is.
Evading the question as to who “Littel Johnny” is, Palisena said “Little Johnny could be anyone.” Not only did his answer earn hearty laughs from those who were present at the hearing, it also earned a sharp and repeated “You are an unrepentant liar!” from DSG Gunatilake.
DSG Gunatilake also said, Palisena is “carrying the load” for his boss Aloyius, and is lying to the Commission for his nine digit bonus given by his company. Palisena with his usual unaffected countenance, disagreed with these suggestions.
Listening to several more similar evasive answers from Palisena, Commissioner Supreme Court Judge P.S. Jayawardena told him,“Mr. Palisena, at least out of courtesy, try to make it believable when you are lying!”
The Commission sent a Notice of Summons to Arjuna Mahendran to come before it to give evidence on September 19 2017.