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pattern of harms, to recommend measures to prevent their repetition as well as reparations, and to provide a basis for prosecutions where crimes are disclosed. 384 The following analysis assesses whether these legitimate purposes have been served in the case of commissions established in Sri Lanka between 1977 and 2001. 2. Establishment The establishment of a commission of inquiry is often a reluctant move by a government whose immediate political objectives may not be served by an independent inquiry, but which is prompted at least to appear to take action, as a consequence of domestic and international pressure. 385 This is a common feature of the commissions described in the previous chapter, as is the reverse problem, in which a commission is established for partisan rather than public interest. In neither case are the interests of truth, justice and reparations appropriately served. This reality highlights both the importance and challenge faced by the state in taking a principled approach to establishing commissions of inquiry. Principle 6 of the UN Principles on Impunity requires the inclusion “broad public consultations” as the basis for determining the terms of reference and composition of commissions of inquiry. The consultations should seek especially “the views of victims and survivors”, and in its subsequent investigations, seek to secure “recognition of such parts of the truth as were formerly denied”. 386 While often the result of widespread public pressure, including that of victims and their families, the commissions in Sri Lanka have generally not been established through public consultation, nor does the COI Act of 1948 contemplate anything other than executive fiat in establishing commissions. The lack of sound, non-partisan criteria for establishing commissions of inquiry in Sri Lanka is apparent when one notes similar incidents that did not lead to these extraordinary measures. For example, although a commission of inquiry was appointed to look into the Kokkadicholai massacre, other massacres such as at 384 See Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/8/3, 2 May 2008, para. 12-58, in which he summarizes key purposes and concerns in relation to commissions of inquiry, and lists the main sources of international norms as follows; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E/1989/89 (1989), especially Principle 11; Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly resolution 55/89, Annex, especially Principle 5; Updated Set of principles for the protection and promotion of human rights through action to combat impunity, Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1 (8 February 2005), especially Principles 6-13; United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, Model Protocol for a Legal Investigation of Extra-Legal Arbitrary and Summary Executions (“Minnesota Protocol”), E/ST/CSDHA/12 (1991); Report of the Secretary-General, E/CN.4/2006/89 (15 February 2006), para. 2. Philip Alson, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/8/3, 2 May 2008, para. 19. 385 Alston, supra note 384, at para. 19. 386 Updated Set of principles for the protection and promotion of human rights through action to combat impunity, Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher, E/CN.4/2005/102/Add.1 (8 February 2005), especially Principles 6-13 109
Kumarapuram (11 February 1996), at Mylanthanai (9 August, 1992) and at Thambalagamam (1, February 1998), received no such special treatment. The context in which the violations occurred in these situations were, however, similar, given that they all involved alleged massacres by army personnel following attacks by the LTTE designed to provoke a reaction. It appeared that the Kokkadicholai Commission of Inquiry was established wholly as a result of the wide publicity that the massacre generated nationally and internationally. Needless to say, while public attention and demand is often an ingredient in the decision to establish a commission of inquiry, it is not a sufficient basis, and lends itself to action primarily on the basis of political expediency. In other instances of gross human rights violations, ministerial committees or committees headed by judges and police officers have been appointed to inquire and report. 387 Such inconsistency in the appointment of these bodies highlights the arbitrariness of the process. Successive governments at least indirectly have acknowledged the weakness of the ordinary criminal investigative mechanism as the basis for establishing these Commissions. However, actual reform of the investigative mechanisms has been consistently disregarded. The pattern has instead been to appoint a commission of inquiry on a reactive basis in response to public pressure and, ultimately, as a means of glossing over chronic failures in law enforcement and ordinary investigative mechanisms. 3. Mandate No commission of inquiry will achieve a useful purpose unless it is able to conduct an inquiry independently. This is an important area in respect of which lessons may be learned from the experience of commissions described in the previous chapter. It is critical, in this regard, to look at whether the commissions of inquiry were structurally designed to ensure independence and then to examine whether in fact they actually functioned independently to achieve their mandate. A second important aspect of the commission mandate is its relationship to the regular criminal justice system. Commissions of inquiry may disclose crimes that merit criminal investigations and prosecutions; however, it is important that their terms of reference clearly distinguish the role of the commission of inquiry from civil, administrative, or criminal courts. With regard to criminal courts, no other body – including a commission of inquiry – has jurisdiction to pass judgement on individual criminal responsibility and punish accordingly. 388 This remains an area of ambiguity internationally, since commissions of inquiry often will identify perpetrators and recommend prosecutions that may or may not take place; meanwhile, the rights of perpetrators to a public defence and fair trial may be jeopardized (this issue is taken up further below). The key point is that, where a commission appears to take on the role of a criminal court in assigning individual responsibility, it must be clearly 387 For example, the Ministry of Defence Board of Investigation into Disappearances in the Jaffna Peninsula (report issued in 1998). In other instances, the Human Rights Commission of Sri Lanka has made some useful interventions such as the Committee of Disappearances in the Jaffna Region (report issued in 2002). 388 Principle 8, UN Updated Principles to Combat , supra note 7. 110
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In exploring what constitutes a ver
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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Page 82 and 83: were SLFPers. I was told, that area
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Page 102 and 103: ecommendation to this effect by the
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
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Page 132 and 133: arrests. In consequence, most of th
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Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
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Page 156 and 157: have been adjourned by the relevant
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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