Untitled - International Commission of Jurists

worthy of investigation. For example, the 1994/1998 Disappearances Commissions
were prohibited from inquiring into involuntary removals and enforced
disappearances during 1984-1988, notwithstanding the fact that this was the period
during which such abuses were at their height. Again, the element of politicization of
the process emerges from the disclosure that, despite the mandates of the 1994
Disappearances Commissions requiring the Commissioners to investigate involuntary
removals and enforced disappearances after 1 January 1988 but with no end date
specified, the Commissioners were prevented from investigating ongoing violations as
a result of a verbal direction from the government of the day.
Recent changes to the law have sought to enforce greater accountability at least in
respect of the removal of commissioners. Amendment Act, No 16 of 2008, which
added new sub-sections (3) and (4) to Section 2 of the COI Act of 1948, stipulates
three defined situations where a Commissioner may be removed. These are namely,
where the President is satisfied that a Commission member has abused or misused his
or her office as a member or has abused or misused the powers conferred on him;
where the member has engaged in bribery or corruption, or where the member is
suffering from physical or mental infirmity. Consequent to the removal, the President
is required to forthwith report such fact to Parliament, stating the reasons for such
removal.
Although the amendments were an improvement on the earlier state of the law, the
continuing dependence on Presidential discretion in respect of removals of
commission members remains unsatisfactory. Mere notification to Parliament in this
regard is an insufficient fetter. Further, the Presidential power to revoke or amend a
particular mandate without assigning specific reasons for doing so needs to be
replaced by the stipulation that, in the minimum, such alteration or revocation should
be for legitimate and clearly stated reasons.
3.2. Relationship with criminal justice system
Accountability for gross human rights violations has at least three dimensions from
the perspective of victims: truth, justice, and reparations. The findings and
recommendations of commissions of inquiry go to all three dimensions, but
accountability, including through prosecutions, are a necessary follow-up if justice is
to be ensured and impunity addressed. The repeated experience of Sri Lanka’s
commissions of inquiry is their utter irrelevance in this regard. Even where
prosecutions have taken place in relation to the same set of alleged crimes, the
findings of commissions have not been considered.
On the other hand, it is worth noting that the mandates of all the commissions
discussed above were defined in such a manner as to prevent conflicts of jurisdiction
with courts of law. This is critical to avoiding the built-in risk of commissions of
inquiry usurping the individual guilt determination that is the exclusive jurisdiction of
the courts. One problematic case, for related reasons, is that of the Kokkadicholai
Commission, in which the mandate was in fact, problematically structured.
Commissioners were asked to recommend the forum in which further prosecutorial
action should occur, namely under military or civilian law. As discussed above, the
Commissioners opted for the military law purportedly due to its finding that though
the offences were punishable in terms of the Penal Code, as there was no evidence
112