In light of owner of primary bidder Perpetual Treasuries Private Limited, Arjun Aloysius who is involved in the Treasury bonds scam at the Central Bank of Sri Lanka (CBSL), refusing to testify before the fact finding Presidential Commission of Inquiry investigating into the issuance of Treasury bonds, legal experts opined that there was a possibility that Aloysius’s silence could come back to haunt him in any process that could arise in the future, especially in the event he is indicted in a High Court case and becomes an accused party in relation to the matter.

Aloysius and his father-in-law former Governor of the CBSL, Arjuna Mahendran are among those whose names have come up in relation to perpetrating the said massive scam.

The said Presidential Commission to Investigate and Inquire into the Issuance of Treasury Bonds chaired by Supreme Court Judge, Justice K.T. Chithrasiri issued an order this week, stating that although Aloysius was a competent witness, he was however in the view of the Commission not a compellable witness, and that therefore the Commission could not compel Aloysius to give evidence if he was unwilling or refusing to do so.

The Commission after deciding that Aloysius was a necessary witness and was required to give evidence because the evidence was both, relevant and material, summoned him and provided him with an opportunity to give an explanation or clarification or response on his own accord to matters coming within the mandate of the Commission and concerns referred to it, which Aloysius declined.

There is also the likelihood that Mahendran too would invoke the right to remain silent.
Meanwhile, when queried about the legal consequences that would arise out of or result from the recent position taken by Aloysius, President of the private and unofficial bar, the Bar Association of Sri Lanka, President’s Counsel (PC) Udaya Rohan De Silva whilst reiterating that the law of the land (no provision) did not allow for anyone to be forced or mandatorily required to give evidence before any proceeding (including in the setting of a fact finding mission, a non-summary inquiry, a preliminary inquiry, an inquest, a special Presidential commission of inquiry, etc.) in any setting including in a court of law (for an example, Magistrate’s Court or High Court), added that therefore it was up to the prosecution to prove the guilt of a party beyond reasonable doubt by way of building up a strong prima facie case.

There are however instances where a judge can draw the inference that a party’s silence attests to the said party’s guilt.

De Silva PC explained that certain legal principles such as the test of spontaneity (witness having informed at the first available opportunity or come out at the earliest available opportunity which in turn would be taken as bona fide/bona fides) would apply. The test of consistency (the internal consistency of a witness, both inter se and per se) too is applicable.

As noted by Justice Anil Gooneratne in the Court of Appeal case (216/2010) Singharam Thiyagarajah v. Attorney General, a witness’s means of knowledge, the tests pertaining to spontaneity and consistency, the test of inconsistency (contradictions and omissions), the test of interest (the information based on which the justice process commenced), and the test of falsehood (whether there was a reason to falsely implicate) would be useful in deciding on the culpability of an accused person.

“If the matter is taken up in or comes up before a High Court, and if the accused makes what is termed as a belated statement (a statement made after the fact) which is lacking in terms of corroborating evidence, the prosecution, in this instance, the Attorney General’s Department, would probably raise the point as to why the statement was not made in the first instance and why the accused remained silent at the time. The Judge or Judges at that juncture after listening to all the submissions and the evidence, may come to the conclusion, either that there was a genuine reason as to why the said party could not volunteer the information or come earlier with the information or that the said party’s statement was a pre-arranged one made subsequent to and after listening to all the evidence presented in the relevant proceedings. In the case of the latter conclusion, it would prove detrimental to the interests of the accused,” De Silva PC noted in addition.