Untitled - International Commission of Jurists

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.
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