3 November 2017 01:16 am
"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)