Mahendran’s, Palisena’s

Published : 9:10 am  August 15, 2017 | No comments so far |  |  (353) reads | 

reps allowed to observe data retrieval

  • PCoI delivers 21-page order   
  • PTL CEO continues to testify on secondary market transactions 


 LATE-CITY-DM-1-19By Shehan Chamika Silva  

The Presidential Commission of Inquiry (PCoI) yesterday allowed legal representatives of Central Bank’s former governor Arjun Mahendran and PTL CEO Kasun Palisena to be present when data was being retrieved from mobile devices and copied by IT experts at the CID. 

Considering all submissions made by the Attorney General’s Department and the Counsel appearing for Mahendran and Palisena, the Commission yesterday delivered a 21-page order in relation to the legal issues raised earlier by counsel.  

On an earlier occasion, Chanaka de Silva who appeared for Mahendran made an application seeking permission for Mr. Mahendran’s legal representatives to be present during the extraction of data from mobile devices.  

Additional Solicitor General Yasantha Kodagoda objected to the application and was of the view that it was not desirable or necessary that a legal representative should be permitted on the basis that internationally such representation was not permitted.  

However, the PCoI thereafter permitted both parties to assist the PCoI submitting the names of relevant authorities.  

While observing best international practices, it considered Article 19 of the Budapest Convention, the Principle of Proportionality, Evidence Special Provisions Act, Computer Evidence Act, and other appropriate legislation.  

The PCoI was of the view that it would permit legal representatives of Mr. Mahendran and Mr. Palisena to be present when the data was extracted and and copied at the CID because it was not prohibited by the law and is not contrary to international best practices.  
It said there was reason to believe that allowing representatives to be present would compromise the process of the extraction and copying of data or prejudice this investigation.  

It said it had comprehensively dealt with the legal issues raised by President’s Counsel Kalinga Indatissa earlier that the PCoI had no power to require one’s mobile communication devices and computer devices other than when the person was giving evidence.  
However, referring to the Section 7 (1) of the Commission of Inquiry Act, the Commission said to properly carry out the investigation and the inquiry specified in the mandate, the PCoI had the authority to require a person to produce his communication devices prior to that person giving evidence.  


With regard to the earlier matter raised by PC Indatissa that the procedure followed by the PCoI up to now was flawed as a result of not having formulated rules; the PCoI was of the view that under Section 25 of the Act which only reflected discretionary powers vested in the PCoI to make rules, it was not mandatory for a Commission to frame rules.  

PC Indatissa said the AG’s Department officials who were assisting the PCoI were not permitted to perform such functions under the law since it was only the PCoI which might determine the witnesses to be called and when they are to be called and statements recorded.  
However, the PCoI held that the AG’s Department officers have been assisting the commission as provided under Section 23 of the Act and that they were also entitled to appear before it and give evidence under Section 26 of the Act.  

Meanwhile, PTL CEO Kasun Palisena continued with his evidence for the fifth day with regard to  secondary market transactions which they had engaged in with the EPF directly and through an intermediary in 2015.  

The witness was of the view that by May 2015 the market yield rates were sliding because of various macro economic factors and that resulted in the PTL dealing with the EPF in secondary market bonds at a low interest rate.  

During his evidence, he also showed that there were other transactions in the secondary market with the EPF and other primary dealers at a similarly low interest rates at this time.  

President’s Counsel Nihal Fernando and Counsel Romali Tudawe who led the evidence on behalf of PTL were of the view that PTL had dealt with the EPF in the secondary market both directly and through ‘switches’ (or intermediaries) at a market-prevailing rate in 2015.  
The counsel also said there were errors in the documentation submitted earlier by the Additional Director of CB’s IT Department, Wasantha Alwis as to the methodology he used in calculating losses because some inclusions identified in that document as switches were actually sell and buy back transactions.  

However, considering the time constraints, the PCoI yesterday questioned the PTL counsel whether it was necessary to mark and lead all the documents relating to the secondary market transactions since they were already in place before the PCoI.   

“Is that not superfluous to lead evidence in that way,” Justice Prasanna Jayawardena asked.  

Deputy Solicitor General Milinda Gunathilake said, “It was not superfluous evidence but cosmetic.”  

However, Counsel Fernando PC was of the view that the Commission was restraining them by leading evidence through every single transaction referring to relevant documents and this could affect his client. He said to prove the wrong matching of the previous document submitted by Mr. Alwis they should be permitted to continue with the way they were presenting their case.  

Subsequently, the Commission allowed the PTL Counsel to continue with evidence and requested to speed up the process.