Attorney General’s letter to Parliament on COPE findings: A response

By T. Rusiripala

I wish to tender my observations regarding certain references made in person to me in the article titled ‘Attorney General’s letter to Parliament on COPE findings’ carried in the Daily FT on 15 March (see http://www.ft.lk/article/603561/ft). The writer, who is not known to me, has commented on some of the contents of an article by me on the same subject titled ‘Attorney General’s letter to Parliament’, which appeared in your paper on 9 March (see http://www.ft.lk/article/602172/ft).

Presuming that he is not someone writing under a pseudonym, I wish to clarify the points raised by this person in his article which is tantamount to a gross misrepresentation of the facts.

I wish to reiterate the fact that the PM has sought the advice of the AG on the legality and validity of the bonds issued by the CBSL, now in the possession of third parties which purchased them for value, definitely as a matter taken up by him separately. It is clearly born out of the fact that the AG ‘s letter states that he is responding to a letter written to him by the Secretary to the PM while the other clarifications, explanations and advice on the subject matter have been in response to a letter sent by the Secretary General of Parliament. 

The writer should now understand that the AG has referred to a separate query made on behalf of the PM. This Mr. Janitha Devapriya appears to have mixed up the chronological order of actual events. In order to make matters clear to the readers, I wish to indicate the relevant dates to show how he is confused about this matter in case he is not intentionally attempting to confuse others.

The letter of the AG, dated 7 February 2017, is a reply to the Secretary General’s letter sent to him on 28 January 2017. The COPE report, which was tabled in the House on 28 October 2016, was debated by Parliament only on 24 January 2017. So there cannot be any doubt to the fact that the Secretary General of Parliament wrote to the AG in sequel to this debate immediately following the debate. 

His statement that the PM referred the COPE report first to the AG is therefore irrelevant to what he was trying to prove in his article. 

The fact of the matter is that the reference of the COPE report to the AG by the PM was not an action approved or endorsed by Parliament. This matter was brought up during the debate and MPs were not in agreement with that action. When a COPE report was placed before the Parliament it was the Speaker who had to take a decision on the matter and act accordingly. There was no plausible explanation as to why it was hastily sent to the AG by the PM. 

I wonder whether Devapriya was oblivious to the statement made by the President at a public meeting where the AG had opined that the Bond scam issue was a civil matter and the President therefore had made a decision to refer it to an independent commission of inquiry.

Devapriya makes matters worse by further referring to other areas without exactly grasping the relevant facts. In order to support the advice sought by the PM about the legality and validity of the previous bonds issued by the CBSL, he cites the gazette fiasco! There is no mention of an invalid gazette in the AG’s letter to Parliament. 

This issue was raised for the first time at the COI and the Finance Minister too stated that he was unaware of such an issue until it was brought up at the COI. To the best of our knowledge there was absolutely no commotion expressed by anybody on the legality and validity of the previous bonds until the Finance Minister made a huge cry about the matter in the public domain. And the AG’s letter states that his clarification is based on the letter of inquiry he received from the PM’s Secretary. There isn’t a semblance of any reference to the gazette commotion in his clarification. The points raised by Devapriya have only embarrassed the authorities and have not served any purpose other than to confuse the readers.

He has entered into further areas of confusion by desperately attempting to defend the culprits by quoting sections from the AG’s letter out of context. He goes on to state that the AG is quite emphatic with the word ‘possibility’ and he has not conclusively stated that the transgressions have taken place.”

As he is making a desperate attempt to dilute the issue by omitting other relevant parts in the AG’s letter, I wish to state it in full for the readers to clearly understand: “The contents of the above COPE report point to the possibility of several transgressions known to the law, including market manipulation, insider dealing and non-compliance with mandatory procedure.”

Devapriya fails to understand that there is something called a prima facie on which civil and criminal remedies may be availed of and the AG clearly states in his letter the sections and the regulations under which such actions can be taken. Only a nincompoop will expect the AG to conclude convictions before a trial. 

What is important is the fact that the AG has pointed out the sections of the law under which the wrongdoers should be prosecuted. He goes on to state that it is the CBSL which should initiate proper investigations and gather relevant evidence to initiate legal action. Alas! The minister in charge of the CBSL then becomes responsible according to Devapriya!!!

Devapriya’s references to the visits of Arjuna Mahendran to the auction floor further confused the issue and made matters worse for the suspects. He apparently has no clue about the evidence already given by the officials at several forums - the Bribery Commission, COPE 1, COPE 2 and the three-man committee of inquiry appointed by the PM. 

At all these forums the witnesses have clearly stated that Arjuna Mahendran on his second visit to the auction floor at about 12.30 p.m. has asked the PDD officials to take Rs. 20 billion, the total of the bids received in that auction. When the PDD officials argued against it, the Governor has insisted that they take Rs. 10 billion. Arjuna Mahendran has done this according to evidence tendered, after examining the bid list. What is most important is the fact that out of the Rs. 10 billion awarded Rs. 5 billion was for his son-in-law’s company. 

If the entire Rs. 20 billion was awarded, his son in law’s company would have got Rs. 15 billion to their company. Who has gotten information from whom is clearly visible from the result. Further conjectures about the possibility of others giving information becomes immaterial as there is no other person who has unduly benefitted at this auction due to any suspected leakage of information.

What Devapriya has failed to comprehend is all those officers at the PDD and the front office are capable of passing information. Not only in this instance but in all other instances also, that is a fact. But nothing of the sort has been alleged before or after.

Devapriya is also oblivious to the fact that the requirement was only Rs. 13.5 billion and already some amount out of this requirement had been raised before the auction. The amount for which bids were called was only Rs. 1 billion. Why did Arjuna Mahendran request the PDD officials to accept Rs. 20 billion? Who had bid as one single company for Rs. 15 billion? (Rs. 13 billion has come from the BOC on behalf of the son-in-law’s company). 

All these events lead to one thing - that there was a need for extra funds created beyond the total amount requested by the Treasury for the March expenses and there was a primary dealer, only one, who knew about this requirement and that company submitted bids for Rs. 15 billion. Mr. Devapriya now you can do your homework to find out who has informed whom.

The fallacy of Devapriya’s ostensible defence is better exposed by examining what has transpired at the BOC dealer room (Treasury Department) just a few minutes before the closing time of the auction. BOC officials who gave evidence at the COPE inquiry have stated that Perpetual Treasuries persuaded them to submit bids to the value of Rs. 13 billion on their behalf at the last moment. When those at the BOC dealer room commented on the irrationality of the bid value the response was Avoth atha thamai. This information should be sufficient to enlighten Devapriya about the way in which Perpetual Treasuries, the company of the son-in-law of Arjuna Mahendran, has acted to lodge their last-minute desperate bid to frantically enter the fray. They appear to have known the circumstances better than any other primary dealer. The COI can now establish the veracity of the evidence given by the BOC vis-a-vis the employees of Perpetual Treasuries by examining the phone conversations between the relevant parties. 

Devappriya goes on stating further in his article as follows:

“Recovery of losses by the Government if any from the related parties” and he says that the word ‘if’ is significant. Devapriya’s article is based on the AG’s letter to Parliament. In the letter we have seen, the one which was tabled in Parliament, we fail to see any such reference by the AG. So from where did these ‘ifs’ and ‘buts’ come?

He also misquotes the AG’s letter in another instance. He has stated the “Auditor General’s Department, with the assistance of an independent expert or experts whose evidence can be relied upon in a court of law, in calculating the alleged loss.”

The AG does not refer to any “alleged loss” in his letter as quoted above. The section “in calculating the alleged loss” is something imported into the letter by Devapriya. Only he and his advisers will know why he has done so.

This is an important public issue. The President of the country has considered it appropriate to investigate the matter under a COI. Therefore when articles are contributed for public consumption one has to bear in mind to remain within the realms of truth and nothing but the truth however non-palatable it is due to vested interests.