Presidential Commission probing the Bond Scam has issued an Order prohibiting Arjun Aloysius from tampering with or altering in any manner, the data in that "Apple ID" or "Apple Account" and prohibiting his agents or others acting on his behalf from doing so.
The Presidential Commission made the order consequent to an application made by Additional Solicitor General Yasantha Godagoda. Additional Solicitor General Yasantha Kodagoda submitted to the Commission that though Aloysius’ phone had been handed over to the commission and his number was under surveillance, he had used his wife’s Singaporean mobile number to access his live Apple account during the past 48 hours. Therefore, Aloysius’ claim that he could not remember the password word was a lie, Kodagoda said, pointing out that Aloysius would not have been able to do so if he had forgotten the password.
ASG Kodagoda further stated that Aloysius had not submitted his password to the commission though he had been asked to do so ten days back. The Aloysius’ objective was to delete the backup data, Kodagoda said, arguing that it was risky for him to be allowed to access his account.
Chairman of the Commission Justice K. T. Chitrasiri yesterday issued the order. The Commission warned Arjun Aloysius to refrain from deleting data or assisting in any such act or he would have to face criminal charges.The Secretary to the Commission was ordered to give a copy of the order to the Counsel of Arjun Aloysius.
The order said: On 01st August 2017, learned Senior Additional Solicitor General made an application that the Commission of inquiry issues an Order prohibiting Mr. Arjuna Aloysius from accessing his " Apple ID" or "Apple Account" and also prohibiting Mr Aloysius from tampering with or altering the data in that " Apple ID" or "Apple Account". We are well aware that an "Apple ID" or "Apple Account" is a personal data account maintained by Apple Inc. We are also informed that, an user of a "Apple" mobile telephone can create a personal "Apple ID" or "Apple Account" and that he will use that "Apple ID" or "Apple Account" to access the data arising from or relating to the use of his mobile phone. We are also informed that, such data is stored in several data bases including data bases known as "ICloud" and "IMessage".
Learned Senior Additional Solicitor General has submitted that, the Commission of Inquiry has the inherent or consequential power to make the Orders sought by him.
We appreciate the reasons why learned Senior Additional Solicitor General saw the need to make this application, since any tampering with or alteration of the aforesaid data would delay or hinder the investigation which is being carried out.
However, while being cognizant of these reasons, we are acutely conscious of the fact that this Commission of Inquiry must act within the terms of the lawful authority vested in us. We also note that, the Commissions of Inquiry Act No. 17 of 1948, as amended, does not have a clear provision conferring on the Commission of Inquiry, the power to make such Orders as may be required for the purposes of carrying out our Mandate. It appears to us that, the powers vested in us are specifically set out in the provisions of the Act.
In these circumstances, while we recognise that, in accordance with long established principles of law which do not need to recounted here, there must be some inherent power or jurisdiction vested in the Commission of Inquiry to make such Orders as are required to give meaningful effect to the provisions of the Act, we are of the view that we should approach the exercise of any such power or jurisdiction, with much circumspection and care.
We have carefully examined the provisions of the Commissions of Inquiry Act No. 17 of 1948, as amended. We are not satisfied that, the provisions of the Act give us the power to issue an Order prohibiting Mr. Aloysius from accessing his "Apple ID" or "Apple Account". In taking this view, we note that, the "Apple ID" or "Apple Account" of an individual is his personal property and we are mindful that this Commission of Inquiry should give due regard and respect to the right of a person to access his property.
However, the position is different with regard to the second part of the application made by learned Senior Additional Solicitor General which is to prohibit Mr. Aloysius from tampering with or altering the data in that,"Apple ID" or "Apple ID" or "Apple "Account".
In this regard, we are of the view that, the mobile phone belonging to Mr. Aloysius is a thing or item which has been duly produced to the Commission of Inquiry in terms of the Act and, is therefore, in our custody. In these circumstances, this Commission of Inquiry has the power to ensure that, such thing or item in the custody of Commission is not tampered with or altered. The data in the "Apple ID" or "Apple Account" which is integral to that mobile phone falls within that description.
Therefore, we issue an Order prohibiting Aloysius from tampering with or altering in any manner, the data in that "Apple ID" or "Apple Account" and prohibiting his agents or others acting on his behalf from doing so.
We also consider it appropriate and necessary to refer to the provisions of sections 201 of Chapter XI of the Penal Code read with section 9 of the Commissions of Inquiry Act which make causing the destruction or secreting or obliteration or rendering illegible of documents (which in our view include data) which any person may be compelled by law to produce as evidence before this Commission of Inquiry and with the intention of preventing such documents (which in our view include data) before this Commission of Inquiry, an offence punishable with a term of imprisonment. In this regard we also refer to section 198 and the other provisions of Chapter XI of the Penal Code and other laws which are relevant in this regard.
Arjuna Aloysius is warned that, any act on his part which attempts to or commits one or more of the aforesaid offences may result in the commission of an offence and, consequently, the institution of appropriate criminal proceedings against him.
We also observe that, the deletion of data may, in appropriate circumstances, justify the drawing of appropriate inferences or presumptions under the law including under the provisions of the Evidence Ordinance.
We direct that a copy of this Order be made available to learned President’s Counsel appearing for Arjuna Aloysius so that he advises his client accordingly and also that a copy of the Order be served on Arjuna Aloysius.