Untitled - International Commission of Jurists

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against any particular soldier or soldiers as such, “the offenders cannot be brought before a criminal court of law.” 393 It is also worth noting that legal proceedings, at least in respect of some incidents being investigated by the 1994 Disappearances Commissions, proceeded in parallel to the Commission hearings. The Commission inquiries into the cases themselves did not invoke conflicts with the courts in parallel hearings. This is also an important observation, inasmuch as the establishment of a commission of inquiry should not in principle be used as an excuse to delay prosecutions. While not usurping the criminal justice process, and while useful as some of these commission reports undoubtedly were in supplying a historical record of the violations investigated, most commission reports have remained in a state of limbo. They have not proved useful to the progress of the legal developments on the one hand and, on the other, they have been insufficiently powerful in terms of their public impact as a truth-finding tool. The reasons as to their insufficient impact on public opinion, relating primarily to the politicization of these commission processes. A 2008 amendment to the COI Act (1948) conferred new powers upon the Attorney General to “institute criminal proceedings in a court of law in respect of any offence based on material collected in the course of an investigation or inquiry, as the case may be, by a Commission of Inquiry” appointed under the Act. 394 Vesting discretion in the office of the Attorney General in this regard, as did the 2008 amendment needs to be distinguished from the more specific reforms called for by the 1994 Commissions: namely, the amendment of the laws of criminal procedure, penal culpability and evidence in order to vest the proceedings and findings of commissions of inquiry with specific legal relevance. The 2008 amendment is liable to be critiqued on the basis that merely conferring powers of indictment upon the Attorney General in this regard poses a certain element of risk given the politicized nature of this office. 395 In fact, these concerns were raised during the relevant Parliamentary debates on this amendment. 396 393 Final report of the Kokkadicholai Commission of Inquiry, Sessional Paper No. 11, 1992, at p. 6. 394 New Section 24 of the COI Act of 1948 brought in by the Commissions of Inquiry (Amendment) Act, No 16 of 2008. 395 Kishali Pinto Jayawardena ‘Discussing mock turtles and commissions of inquiry’ in ‘Focus on Rights’ The Sunday Times, 28.10.2007. Also, ‘Further Reflections on Commission Inquiries and Rights Violations, Part 1’ in ‘Focus on Rights’ The Sunday Times, 03.02.2008 and ‘Further Reflections on Commission Inquiries and Rights Violations, Part 11’ in ‘Focus on Rights’ The Sunday Times, 10.02.2008. 396 In the debates that took place in Parliament on the passing of this amendment, leader of the Sri Lanka Muslim Congress (SLMC) Rauf Hakeem, himself a lawyer, while referring to ‘Discussing mock turtles and commissions of inquiry’ in ‘Focus on Rights,’ The Sunday Times, October 28, 2007, questioned as to whether it was wise to vest discretion of this nature in the office of the Attorney General, given the precedents of the Richard de Zoysa case and other such cases where the politicisation of state law officers in controversial prosecutions had been credibly documented – see the Hansard of 07.02.2008, at pp. 850-852. See also “AG gets greenlight to initiate criminal proceedings’, Daily Mirror, 08.02.2008. Government ministers replying to this charge pointed out that giving the power of indictment to the AG did not mean that the accused would be convicted of an offence since the conviction would ultimately depend on a legal assessment by a Court. However, this point of view ignores the extreme harassment of politically motivated indictments in a context where though the principle of judicial review of mala fide indictments by the AG in exceptional circumstances has been 113
It also has been recommended that evidence given by family members regarding enforced disappearances and extrajudicial executions be conferred the status of a “first information” under Sri Lanka’s criminal procedure laws. Normally the first information is mandatory before a criminal investigation can proceed that might lead to a prosecution. 397 This recommendation emerges from the fact that many of the family members of the “disappeared” did not lodge a police complaint due to overt hostility being directed towards them by police, amounting to, at times, refusal to record the complaint. These witnesses testified, some years later, before the commissions as to both the fact of the incident and the reasons for the delay or inability to lodge a first information as to the enforced disappearances or extrajudicial execution of their loved ones. 398 As later discussed, some High Courts dismissed prosecution cases on the basis that the delayed complaint had undermined the credibility of the complaint. On the one hand, this is undoubtedly a judicial position that does not take into account the frequent hostility shown by the law enforcement machinery towards the family members of the disappeared, a reality exhaustively documented commissions of inquiry. On the other hand, judges who handed down such decisions have contended that the law does not allow them to go further in showing empathy for family members of the victims. 399 While this aspect of the law is considered more fully later, it may be observed that formal conferring of the status of a first information on evidence given by a witness at a commission of inquiry in the context of extraordinary human rights violations may be one way of overcoming this problem. These observations support a general lesson learned, which is that commissions of inquiry will not fulfil the state’s obligation to carry out an independent inquiry if the underlying problems with the criminal justice system and broader separation of powers issues are not addressed. Ultimately, even a genuinely independent commission of inquiry must rest on the foundation of the criminal justice system and the independence of the judiciary, both decisive as to whether disclosed crimes are adequately investigated, prosecuted and punished. Measures required to address underlying structural problems in the criminal justice system are addressed in the next chapter. However, in urging a stronger nexus between commission of inquiry findings and the regular judicial proceedings, the underlying assumption is that the courts themselves enjoy independence and exercise authority impartially. As noted earlier in the asserted in principle by the Supreme Court (see Victor Ivan v. Sarath Silva, AG [1998] 1 Sri LR 340), the courts have practically abstained from such review. 397 Section 109(1) of the Code of Criminal Procedure Act states that “every information relating to the commission of an offence may be given orally or in writing to a police officer or inquirer.” 398 De Almeida Guneratne, Jayantha, op. cit. 399 Discussions with former High Court judges, 15.02.2009. This point of view may however be subject to refutation given that legal precedent does indeed allow such laxity in clearly defined cases – vide Sumanasekera v. AG [1999] 3 Sri LR 137 where it was ruled that if a valid reason is given for the delay, it must be accepted. However, this legal rationale has not held good uniformly. In Jayawardene v. The State CA No 98-100/97: [2000] 3 Sri LR 192, the judicial view was that, as normalcy prevailed in the country by 1991, it was not reliable to act on a complaint made in 1995 in regard to an incident of enforced disappearance in 1989. 114
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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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sexual intercourse […].” 177 He
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accused even though the relevant do
Page 64 and 65: confession made to the military pol
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
Page 78 and 79: Date of Publication of Report: not
Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: The 1994 Western, Southern and Saba
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
Page 94 and 95: (g) The relief if any that should b
Page 96 and 97: Interdiction from service of allege
Page 98 and 99: The Batalanda Commission recommende
Page 100 and 101: 3.3.3. The Bindunuwewa Commission D
Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
Page 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
Page 134 and 135: Lengthy delays in filing indictment
Page 136 and 137: officers who were prepared not only
Page 138 and 139: prosecutor’s office would be to i
Page 140 and 141: y the byzantine and unfair burdens
Page 142 and 143: […] while those in authority hold
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
Page 148 and 149: as to why specific reform of the cr
Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
Page 154 and 155: any direct or indirect physical or
Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
Page 160 and 161: The Human Rights Committee affirmed
Page 162 and 163: 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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