Untitled - International Commission of Jurists

justified and spelled out in the mandate, and must not undermine the right of and
individual to a fair trial before an independent and impartial court in accordance with
international standards. 389
Third, commissions of inquiry ought to be able to perform an advisory function
regarding measures to ensure reparations, including guarantees non-repetition. In this
sense, the mandate can establish commissions of inquiry as catalysts of policy,
legislative, and institutional change that will enhance human rights protections and
combat impunity. 390 Further, while some parts of a commission’s work may be
necessarily confidential, for example to protect victims and witnesses, its final report
ought to be widely disseminated and freely available. 391
The commissions of inquiry described in the previous chapter reveal weaknesses with
regard to all three aspects of their mandates.
3.1. Independent Inquiry
Under the COI Act 1948, the President of Sri Lanka may revoke or alter the mandate
at any time. 392 Coupled with the discretionary power of the President to remove
Commissioners at any time, the degree of independence in principle that these
Commissions enjoy is unsatisfactory.
In practice, this lack of independent determination of mandates has been reflected in
the way mandates have been framed. Where the relevant commission of inquiry
related to the investigation of events that had occurred during the time of the
prevailing regime, the mandate and terms of reference have been cautiously worded, a
classic example of which is the mandate of the Kokkadicholai Commission of
Inquiry. This Commission was not required to report on the identities of alleged
perpetrators; the mandate - in convoluted form - did, however, ask the Commission to
recommend whether any action against any members of the Armed Forces should be
taken under military law or the normal civil law. Commissions of inquiry are not
intended to make individualized findings of guilt, but in this case the commission
went to the extent of finding that there was no evidence of individual responsibility
among the “soldiers run amok” and, therefore, nothing for a criminal court to
consider. In so doing, the commission ran the risk of displacing the jurisdiction of
criminal courts by failing to take due care for issues of fairness and preservation of
evidence.
In other cases, such as the 1994/1998 Disappearances Commissions, in which the
government requested inquiry into the actions of a previous political regime, their
mandates have been more expansive while also tailored to certain periods. In these
cases, the political nature of these mandates was also revealed by the periods deemed
389 “If the commission’s mandate overlaps significantly with that of the regular criminal justice
institutions (for example, where it is tasked with investigating and identifying perpetrators, duties
normally performed by police and public prosecutors), a sound rationale needs to be provided by the
Government to justify the creation of such a commission. Without such justification, the commission is
likely to be a tool to delay prosecutions or deflect the international community’s attention from
advocating for prosecutions.” Alston, supra note 384, para. 55.
390 Principle 12, UN Updated Principles to Combat , supra note 7.
391 Principle 13, UN Updated Principles to Combat , supra note 7.
392 Section 5 of the COI Act of 1948 as amended by Amendment Act, No. 16 of 2008.
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