By Kishali Pinto Jayawardhana
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 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 CEO of Perpetual Treasuries give 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 he 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.
The Commission is empowered under the 1948 Act 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 Act which empowers 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 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 prosecution or in some particular contexts, civil proceedings. Its application to a fact-finding Commission of Inquiry, which classically does not settle legal rights, is an extension which many would find somewhat concerning. Other countries have grappled with these same issues. Where fact finding inquiries are concerned, the weight of the precedents leans towards not applying the privilege against self-incrimination and thus ‘strait-jacketing’ the processes. However a signal difference here is the 2008 amendment which empowers the Attorney General to prosecute upon findings of these Commissions. This appears to have significantly contributed to tilting the scales for a contrary result.
Consequent ironies that arise
Undoubtedly this is an unforeseen development that is peculiarly incongruous. The 2008 amendment was due to persistent advocacy calling for the recommendations of Commission reports to be taken seriously and implemented properly. Documented studies showed disturbingly that even though Commissions had been appointed to inquire into a range of issues, from assassinations to gross human rights abuses since independence, their impact had been negligible.
It was to correct this palpable if not grotesque imbalance that a complete overhaul of the old Act was called for. However what transpired through a closeted process in 2008 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 Commissioners 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 Commissioners cited the names publicly in their reports.
These findings 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, the result may well have been calamitously different. Even if few prosecutions took place after these Commission reports, at least the record reflected a fairly accurate picture of the level of state abuse that had taken place. Now it may well be quite different illustrating the perils of passing piecemeal amendments to laws. Empathy for hapless commission members caught on the horns of such unenviable dilemmas is in order.
Indeed, the potential dangers of this amendment were raised in 2008. The present controversy reflects this warning in action, albeit in an entirely unexpected context. Following the Commission order, Aloysius has declared that he will not be giving testimony. Certainly there is a certain delicious irony in witnessing the office of the Attorney General being hoist on its own petard, given that the 2008 amendment was offered by it, quite tongue-in-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 point is that ad hoc and craftily engineered amendments purely to ‘get over’ inconvenient criticisms 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 different contexts applying to the other.
This is a difficult but essential lesson that must be learnt.