Production of mobile phones, computers necessary for conducting investigations

Order issued by presidential commission inquiring into treasury bond issuance



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Continued from yesterday


Although Mr Indatissa, PC has not referred to section 7 (1) (bbb) of the Act in his written submissions, we consider that this statutory provision is directly relevant and applicable to the power vested in this Commission of Inquiry to issue an Order requiring Mr Palisena to produce his mobile communication devices and mobile computer devices and to submit an Affidavit containing information pertaining to the use of these devices, prior to Mr. Palisena giving evidence. In this regard, we note that, section 7 (1) (a) and 7


(1) (b) gives this Commission of Inquiry the power to procure and receive evidence and to examine persons and to require the evidence of any witness to be given. it is clear that, section 7 (1) (bbb) of the Act confers on this Commission of Inquiry, aseparate and different power to require any person to produce "any other material which is in his possession or custody". It is evident that, this power given by section 7 (1) (bbb) to require any person to produce "any other material which is in his possession or custody". It is independent of and may be exercised separately from the power given by section 7 (1) (a) and 7 (1) (b) to procure and receive evidence and to examine persons and to require the evidence of any witness to be given. Further, the use of the words "any other material" suggests that the legislature intended to confer on a Commission of Inquiry a wide power to require the production of any item or substance or data or information which is relevant to or which will assist the investigation and inquiry which that Commission of Inquiry is required to carry out in terms of its Mandate. In this connection, we note that, the Shorter Oxford Dictionary [5th ed.] defines the word "material" as including ".... a thing suitable fora specific role or purpose" "Items needed for an activity" and also "Information, evidence, ideas etc" .The inclusion of the words "any other" before the word "material" in section 7 (1) (bbb) of the Act suggests that, the legislature intended that the word "material" should be construed widely in order to invest a Commission of Inquiry with the power to require the production of any type or sort or description of "material" which is needed or is suitable for the Commission of Inquiry to duly, properly and fully carry out the investigation and inquiry into the matters specified in its Mandate. Therefore, we are of the view that, mobile communication devices and mobile computer devices and the data and information therein which can be extracted and examined for the specific purposes of this Commission of Inquiry and the activity of investigation and inquiry which this Commission of Inquiry is engaged in, can be correctly regarded as falling within the term "any other material’; used in section 7 (1) (bbb) of the Act.


With regard to Mr. Indatissa’s submission that, section 7 (1) does not refer to the power of a Commission of Inquiry to issue an Order exercising the powers set out in the several sub sections of section 7 (1), we are of the view that, when section 7 (1) (bbb) of the Act gives this Commission of Inquiry the power "to require any person to produce... any other material which is in his possession or custody" this section necessarily confers the power on this Commission of Inquiry to issue an Order addressed to that person requiring him to do so. To contend otherwise would render this statutory provision meaningless and ineffective.


For the aforesaid reasons, we are of the view that, in circumstances where this Commission of Inquiry considers that the production of a person’s mobile communication devices and mobile computer devices is necessary to enable this Commission of Inquiry to duly, properly and fully carry out the investigation and inquiry specified in our Mandate; this Commission of Inquiry has the power, under section 7 (1) (bbb) of the Act, to require that person to produce his mobile communication devices and mobile computer devices, prior to that person giving evidence and, in fact, it is independent of and separately from that person giving evidence.


Further, we also note that, section 7 (1) (c) of the Act, gives this Commission of Inquiry the power "to summon any person ... to give evidence or produce any document or other thing in his possession, and to examine him as a witness or require him to produce any document or other thing in his possession." [emphasis added]. As Maxwell states [Interpretation of Statutes 12th ed at p.232], in ordinary usage, the use of the word "or" is disjunctive. Next, as Maxwell states [at p. 28], the primary rule of statutory interpretation is that, words in a statute should be given their literal meaning and phrases and sentences are to construed according to the rules of grammar. Accordingly, it appears to us that, the use of the word "or" before the words "require him to produce any document or other thing in his possession." in section 7 (1) (c) gives this Commission of Inquiry the power to summon a person to produce "any document or other thing in his possession." in addition and separately to the power to summon a person "to give evidence." We are also of the view that, section 7 (1) (c) should be interpreted in a manner which gives effect to the clear intention of the legislature to invest a Commission of Inquiry with the power to require the production of documents and things which are necessary to examine a witness and that, therefore, where the production of a document "or thing is necessary before that person gives evidence, this Commission of Inquiry has the power, under section 7 (1) (c), to require a person to produce that doc ument or thing before he gives evidence. We also note that, the Shorter Oxford Dictionary defines the word "thing" as an "an inanimate material object" and also as "an individual possession" and that, here too, the inclusion of t6 words "any other" before the word "thing" in section 7 (1) (c) of-the Act suggests that, the legislature intended to invest a Commission of Inquiry with a wide power to require the production of any "thing" which is needed by or is suitable for the Commission of Inquiry to duly, properly fully carry out the investigation and inquiry specified in its Mandate. We are also of the view that, mobile communication devices and mobile computer devices can be correctly regarded as also falling within the term "thing" used in section 7 (1) (c) of the Act. Finally, we consider the aforesaid Order 01St August 2017 issued to Mr. Palisena to produce his mobile communication devices and mobile computer devices and, at the same time, to submit an Affidavit containing information pertaining to the use of these devices, to be in the nature of a "summons" as contemplated in section 7 (1) (c) of the Act.


Thus, we are of the view that, in circumstances where this Commission of Inquiry considers that the production of a person’s mobile communication devices and mobile computer devices is necessary to enable this Commission of Inquiry to duly, properly fully carry out the investigation and inquiry specified in our Mandate, this Commission of Inquiry also has the power, under section 7 (1) (c) of the Act, to require that person to produce his mobile communication devices and mobile computer devices prior to that person giving evidence.


For the aforesaid reasons, we see no merit or substance in Mr. Indatissa’s submission that, this Commission of Inquiry has no power to require Mr. Palisena to produce his mobile communication devices and mobile computer devices other than at the stage of Mr. Palisena giving evidence.


Next issue is with regard to the Mr. Indatissa’s submission that, procedure followed by the Commission of Inquiry up to now is flawed as a result of the Commission of Inquiry not having formulated Rules. It is clear that, section 25 of the Act only speaks of a discretionary power vested in the Commission of Inquiry to make rules. It is not a mandatory requirement that a Commission of Inquiry must frame rules. Further, even the discretionary power to make rules is only to make rules relating to "the organizational structure, mandates of subordinate structures and functions of officers of the Commission." In this regard, since this Commission of Inquiry has only a relatively small number of staff and the office and all staff of this Commission of Inquiry function at the same premises as this Commission of Inquiry and under the direct supervision of the Secretary of the Commission of Inquiry who reports to the Chairman on a daily basis. Also, since the Chairman and other Commissioners are sitting and conducting hearings on a day to day basis and have the means of exercising direct knowledge and control over the staff where necessary, this Commission of Inquiry has, so far, seen no need to make rules in the manner contemplated by section 25 of the Act.


For the aforesaid reasons, we do not agree with Mr. Indatissa’s submission that, procedure followed by the Commission of Inquiry up to now is flawed as a result of the Commission of Inquiry not having formulated Rules.


Lastly, Mr. Indatissa, PC has submitted that, the procedure followed by the Commission of Inquiry up to now is flawed because Mr. Indatissa, PC contends that, the witnesses who have testified before this Commission of Inquiry have been determined by the Hon. Attorney General and that the officers of the Hon. Attorney General’s Department have determined when such witnesses are to be called and have summoned such witnesses and also that, the officers of the Hon. Attorney General’s Department have been recording the statements of witnesses. Having made these contentions, Mr. Indatissa, PC submits that, the officers of the Hon. Attorney General’s Department who are assisting this Commission of Inquiry are not permitted to perform such functions under the law since it is only the Commission of Inquiry which may determine the witnesses to be called and when they are to be called and record statements of witnesses.


Mr. Indatissa, PC appears to be under a misapprehension. The officers of the Hon. Attorney General’s Department have been assisting this Commission of Inquiry, as provided for under and in terms of section 23 of the Act. They are also entitled to appear before this Commission of Inquiry and place before evidence before this Commission of Inquiry under and in terms of section 26 of the Act and they are empowered to examine any witness summoned by this Commission of Inquiry. It is the Commission of Inquiry, after discussion with the officers of the Hon. Attorney General’s Department who are assisting this Commission of Inquiry, which determines the witnesses to be called, determines the time a witness is to be called and issues summons to such witnesses. The recording of statements of witnesses is usually done by the police officers who are also assisting this Commission of Inquiry, as provided for under and in terms of section 23 of the Act. Thus, all the functions referred to by Mr. Indatissa, PC are being carried out by the Commission of Inquiry with the assistance of and through the aforesaid officers who are assisting this Commission of Inquiry and who are appearing before this Commission of Inquiry.


For the aforesaid reasons, we do not agree with Mr. Indatissa’s last submission.


We shall now proceed to make our Order with regard to whether Mr. Mahendran and Mr. Palisena are entitled to have their legal representatives present when the data on their mobile communication devices and mobile computer devices is extracted and copied at the Criminal Investigation Department.


Firstly, in making this Order, we take note of the fact that, mobile communication devices and mobile computer devices contain digital data and that such digital data and digital evidence or electronic evidence is fragile and also capable of alternation and manipulation and are liable to disappear without notice. Further, digital data and digital evidence or electronic evidence is liable to damage, if improperly handled.


Therefore, it is necessary to ensure that, when digital data is being extracted and copied from mobile communication devices and mobile computer devices which are subject to forensic examinations, procedures are in place to minimize, if not exclude, the possibility of compromising the integrity of the digital data contained in those devices and the possibility of alternation, manipulation or damage to such digital data and/or the devices. Recognized best practices have been developed to meet these needs. It is widely accepted that such best practices should be adhered to when data is extracted and copied from mobile communication devices and mobile computer devices.


In this regard, as mentioned earlier, the officers of the Hon. Attorney General’s Department have informed us that, to the best of their knowledge, the Criminal Investigation Department adheres to such recognized best practices when extracting and copying data from mobile devices so as to preserve the integrity of the data and the copies obtained and any evidence that may be obtained therefrom. We have every reason to place reliance on this information. However, since learned counsel appearing for Mr. Mahendran and Mr. Palisena have expressed the desirability of describing what such best practices are, we consider it useful to briefly refer to these best practices.


To be continued


 
 
 
 
 
 
 
 
 
 
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