Bond Commission denounces conduct of ASG De Livera
Posted on November 2nd, 2017

By Shehan Chamika Silva Courtesy The Daily Mirror

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 Generals 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 rears 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 also 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 occassion in which a contradicting order was given, according to De Liveras ” 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 it self from looking at material

Justice Prasanna Jayawardena: If that 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: Only I’m saying is 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 what news papers 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 ()

4 Responses to “Bond Commission denounces conduct of ASG De Livera”

  1. ranjit Says:

    Dappula de livera keep it up your good work without fear. Don’t bow down to threats or intimidation. Be truthful to the nation you love.

  2. Ancient Sinhalaya Says:

    Hope Dappula isn’t a pawn (name suggests he is never seen near a temple, apologies if it’s not the case) of traitor chief die hard catholic token Buddhist Bay Gal Karaya Mega Thief Batalande Wadakaya Pol Pot R@nil Wickrama Sinhalakiller. If that’s the case Thappula will thappu lai to please the crowd and files will disappear after sometimes. And! Wadakaya will get away with murder again. Hope Sinhala modayas will keep a sharp eye on this mega robbery by the traitor chief with his catholic buddy maha horandran and put pressure on sorrysena the puppet to take action against the low lives!

  3. Dr. Sarath Obeysekera Says:

    Bond Commission denounces conduct of ASG De Livera…..
    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.
    I am not of legal background but I would like to express layman’s opinion .We have yahaplanaya to make sure that law and order prevails and judicial system is fair to everyone ,Few years back A S G Livera would not have behaved like this .
    We remember how previous chief justice behaved and later contradicted himself .Is Livera planning to migrate and plan to serve in a lucrative law tribunal in Holland or in UK ? If the judge make an order whether right or wrong lawyers should abide by it.Yahaplanaya was made a mockery and a Minister had to resign .Now Prime Minister is also called in for testifying. If Livera again try to become a star of the nation by ridiculing Prime Minister and the judges ,judiciary system is going to be compromised .
    If any ruling made by judges are to be contested he can take it up at a different bench or a forum, Some newspapers have given publicity to Livera and made him a hero for the down fall of a minister.,That may have given some more ammunition and Dutch Courage to him ( I wonder whether he is a Dutch decedent )?
    AG’s department sits on cases for years and years leaving poor accused in remand for very long period All of a sudden AG and his clan have become so active .
    What is the purpose ?Unless government can recover the purportedly looted money ,do they want to topple a government ?
    Government is falling like Pompei and it is inevitable way things are going.No investment ,no law and order ,no discipline in the country .Roads are in deplorable condition ,and people cannot see a promising future .We listen to people like Livera alias Dappula ( In Sinhala we “Thappulanawa)- the cattle mooing ) to get cheap publicity and forget our hunger and desperation
    Commission can now make decision and make Arjun and his SIL to pay the money back so that country can recover the loot .
    Livera alias Dappula will go to oblivion after this commission
    Dr Sarath Obeysekera

  4. Naram Says:

    I cannot see why this forthright lawyer cross examining a witness highlighting the statements the person had made previously to the Police is considered ‘unprecedented’.

    I hope the learned readers here will explain whether this is unusual in Sri Lanka. Ideally the judges should come prepared to the hearing by reading the statements made by the witness to the police beforehand. I have seen how the learned counsels remind those facts further in the course of cross examination; and then the witness has another opportunity to clarify any error or any wrong or misleading emphasis that hes crept into the statement as recorded by the Police.

    Of course world over the Judges too take a political stance, and that will become apparent to all. I recall a judgment to reject the application to re count of votes in the state of Florida that Bush won by a very slender majority over Gore in 2000 stating the importance of the stability of the country after Bush’s appointment. As one would guess the Judge in question had been appointed in during a previous Republican administration and I believe the practice is once appointed high court judges remain in position until each decides to retire on own volition.

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