Bond Commission denounces conduct of ASG De Livera

3 November 2017 01:16 am - 12     - {{hitsCtrl.values.hits}}

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Bond Commission Chairman Justice K.T Chithrasiri and Commissioner Prasanna Jayawardena yesterday said the conduct of Additional Solicitor General Dappula De Livera was " deplorable".

"I have served 37 years as a judge and I have never seen this happen after an order is made" Justice Chithrasiri told the Commission.

A heated argument erupted after the Commission made an order which prevented the marking of statements given to the Criminal Investigations Officers during their inquiry, during evidence given by the officers yesterday.

The practice during the proceedings is to mark documents during evidence of a witness. The Attorney General’s Department sought to mark statements given to the Police officers by persons who were questioned by the Police officers during the conduct of the investigation by the Police.

Admonishing ASG De Livera who continued to make statements following the order given by the Commission, Justice Jayawardena said that he had never witnessed such behaviour in his entire legal career.

"Your behaviour is not fitting to a senior counsel. I warned you about your behaviour at the chambers as well and I have never seen such behaviour in my 30 years of conduct as your behaviour is deplorable" Justice Prasanna Jayawardena said.

During the day CID officials, Ruwan Raban (IP), Nalinda Herath (IP), Siril Ranasinghe (PS) and Mahindasoma Jayatilleke (PS) had testified before the Commission yesterday with regard to the way in which they had recorded statements of the witnesses.

The witnesses testified that they had interviewed and recorded statements from the witnesses, who were called by the Secretary of the Commission or the Attorney General.

While leading the first witness, Additional Solicitor General Yasantha Kodagoda moved to mark a bundle of document which contained the copies of statements that were recorded by the CID officials from witnesses.

At this moment, Counsel Chanaka De Silva who was appearing on behalf of former Central Bank Governor Arjuna Mahendran strenuously objected to the marking of the statements recorded by the CID as evidence before the Commission.

He was of the view that the Commission opted to call witnesses to give evidence, and therefore the Commission acted upon the evidence given by the witnesses before the Commission.

“A statement made in front of a police officer is not evidence no where in our legal system that a statement made to a police officer is considered an item of evidence”, he said.

Mr. De Silva also objected to the process in which these statements were brought in before the Commission to place as evidence.

He said that the most of the statements were available when the witnesses came and gave evidence before the Commission and none of these statements were either shown to them or put to them or even use for the purpose of contradicting evidence.

Mr. De Silva contested on the evidential value of the statements which were attempted to mark as evidence before the Commission. He also said that the way in which the marking police statements to the Commission’s proceedings is alient to the current legal system.

Additional Solicitor General Yasantha Kodagoda replying to the objection stated “there are two mechanisms to the Commission’s process. First is the investigation process and the second is the Inquiry, we are currently going through the inquiry, where the witnesses being called and examined by the Counsel before the Commission. And the investigation process took place at the Commission’s premises affected by the CID officers is the process of investigation”.

ASG Kodagoda said according to the 2008 amendment to the Commission of Inquiry Act, there are specific reference with regard to the Investigation and Inquiry separately. Therefore, he said that the Commission, in arriving at the truth, can take cognizance of both evidence led during the Inquiry proceedings as well as the material collected during cause of the investigation.

ASG Kodagoda also stating the Section 7 (a) pointed out that this evidence will not be admissible in the civil or criminal future proceedings.

Then Senior Additional Solicitor General Dappula De Livera also reading the proviso of section 23 of the Commission of Inquiry Act said that the Commission is mandated and required in law to examine the material and then come to a conclusion based on natural justice.

ASG Dappula De Livera said that the Commission has to have the regard to the material collected during the investigation and there is no other way.

Counsel Chanaka De Silva then reading the proviso of section 23 stated that one cannot use such material unless rules of natural justice are observed according to the law. He said that it was a prohibition on the Commission as per law.

President’s Counsel Kalinga Indatissa who was appearing on behalf of Perpetual Treasuries Ltd and President’s Counsel Anuja Premaratne also contested against marking the police statements as evidence before the Commission questioning that whether it was the proper mechanism to lead evidence and what the law is expected to protect as fairness and natural justice.

Considering all the submissions made by the Counsel, the Commission then delivered an order on the marking of statements of witnesses which were recorded with the CID officials at the initial investigation process.

The Commission was of the view that it was against the rule of natural Justice to admit these statements of the witnesses given to the police. And therefore, the marking of those statements as evidence was not permitted.

At this moment when ASG De Livera sought further clarifications about the order, Justice Prasanna Jayawardena replied that the Commission does not want to compromise the integrity of its report by any means therefore reached to that conclusion considering the proviso of section 23 of the Act.

“We cannot observe at any material without concerning the natural justice, so far we have made every endeavor to act fairly”, Justice Jayawardena said.

ASG De Livera continued to harp on the admissibility of the statements pointing out a previous occasion in which a contradicting order was given, according to De Livera’s " recollection".

However, the Commission said that no order of that nature had been made. Thereafter Justice Jayawardena urged that the matter be left there and to continue with the proceedings.

“Now we have made an order so let’s move on”, Justice Prasanna Jayawardena said.

At this moment President’s Counsel Anuja Premaratne cross-examined the first witness and soon after he finished his questioning, ASG De Livera again addressed the Commission on the Commissions order given on admissibility of the statements.

ASG De Livera: Now this Commission prevented itself from looking at the investigating material

Justice K.T. Chitrasiri : Statements!

ASG De Livera: Yes that is what the material is all about

Justice Prasanna Jayawardena: Even if we had accepted those statements, they have zero evidential value

ASG De Livera: I’m making a legal submission that the Commission has prevented itself from looking at material

Justice Prasanna Jayawardena: If that is your position, then please file written submission in that regard because I do not agree with you because I think your submission is ridiculous. In my view your submission has no any merit because the investigation is a process prior to the inquiry and now we have listened to witnesses at the inquiry level and we are now in evaluating the evidence, so we have no reason to go through these statements because we cannot rely what stated in the statements as it was done without any oath. If there was a contradiction of the statements and the testimonies given by the witnesses then it should have been put to the witness at that stage.

ASG De Livera: I’m only saying that this Commission has prevented itself looking at the material which the Commission is mandated under the law to do and thereby now the Commission is making a mockery of these proceedings.

Justice Prasanna Jayawardena: I’m sure your words will be appropriately reported in the media reports, which will give you satisfaction. We are not interested in what newspapers report, we are interested in our job which I’m sure will upheld by any court. When an order is made, one can go and canvass against it at the appropriate court. Making statements standing in the bar table is not appropriate.

ASG De Livera: If the order is per incuriam we can do it.

At this moment there was a heated argument between the Commissioners (Justice Jayawardena and Justice Chitrasiri) and ASG Livera.

Justice Prasanna Jayawardena: I warned you about your behaviour earlier as well

Justice K.T. Chitrasiri: This is not the first time that you have behaved liked this after the Commission is made the order. Definitely we are going to think about this behaviour.

ASG De Livera: I’m only saying that the order is per incuriam ( Without due regard to Law or Facts)

Justice Prasanna Jayawardena: Your behaviour is not fitting to a senior counsel. I warned you about your behaviour at the chambers as well and I have never seen such behaviour in my 30 rears of conduct as your behaviour is deplorable.

Justice K.T. Chitrasiri: I have served 37 years as a judge and I have never seen this happens after an order is made

ASG De Livera: I only made this submissions in the interest of the justice. (By Shehan Chamika Silva)

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  Comments - 12

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  • Snowy Friday, 03 November 2017 01:26 AM

    Sad, this exposes the lack of upbringing and the education system. The Grade 5 "Parrot" exams and the "ABC" scores need to be stopped and sanity brought to the education system.

    De Silva Friday, 03 November 2017 01:45 AM

    ASG is trying to be too smart.

    Ram Friday, 03 November 2017 03:35 AM

    The Commissioners must report the conduct of Livera to the Supreme Court for necessary action. SC is the authority that admits Attorneys at Law accept the oath when a lawyer is appointed silk. After an order is made to argue with the Judge has some element of contempt.

    malij Friday, 03 November 2017 07:53 AM

    The nation wants to know the truth, nothing but the truth with same fairness expected from a court law and to punish the culprits. It does not want any glory hunters from any quarter who think that they could use the commission as a vehicle to pursue their personal agendas or agendas of any third party. The judges are doing a admirable job with fairness and candour.

    ceylon Friday, 03 November 2017 10:10 AM

    if did wrong punish him.denounce is not punishment. via DM Android App

    ceylon Friday, 03 November 2017 10:11 AM

    punish him.with big fine.his master in carlton pay for him. via DM Android App

    Senewi Friday, 03 November 2017 10:25 AM

    Commission seems to be putting "wettu"

    Sharon Friday, 03 November 2017 10:30 AM

    Dear Hon. ASG Livera. We respect you for your efforts. Keep it up, but don't get in to heated arguments which will disrepute you Sir...

    sas Friday, 03 November 2017 04:11 PM

    It seems that ASG has become a showman.

    A. Jurampathy Friday, 03 November 2017 07:51 PM

    Very silly, biased comments here. It is important to find the truth. Whatever that happened was obviously in the interest of finding the truth. It is important to punish the culprits without finding fault with those who are trying to trap them. Could you tell a batsman not to use the bat ?

    malij Saturday, 04 November 2017 08:30 AM

    The problem is the bat used here is not to the approved standards of the game.

    Aruna Friday, 03 November 2017 10:27 PM

    When it reaches to most important point that the PM is going to be questioned, it comes to trap the strong ASG and going to replace him to someone biased to PM.


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