Untitled - International Commission of Jurists

analysis, these pillars of the judicial branch have also been severely challenged in Sri
Lanka. 400
A commission of inquiry bereft of justice, leaves the issue of truth and reparations to
the political will of the government of the day. The government in most cases only
reluctantly acquiesces to the establishment and operation of a commission of inquiry
in the first place, or may seek to use it for particular political purposes. There is
therefore little transparency or accountability in the way the truth is told or reparations
addressed. The end result, seen in the commissions analyzed above, is a failure to pass
the fundamental test of their usefulness, in other words, whether the commissions are
able effectively to address impunity. 401
3.3. Advisory function
In addition to recommending prosecutions, commissions of inquiry are uniquely
placed to recommend measures for reparation, including compensation, rehabilitation,
restitution, satisfaction, and guarantees of non-repetition. 402 As part of the
commission’s advisory function, they can recommend legislative and other action to
combat impunity, and the UN principles make special note in this regard of the role of
women’s experiences in making its recommendations. 403 Importantly, the terms of
reference ought also to include a Government undertaking to “give due consideration”
to commission recommendations. 404
Commissions of inquiry examined above had limited success in establishing the
circumstances surrounding alleged violations and even less impact in terms of giving
rise to prosecutions in order to ensure justice. With regarding to reparations and other
recommendations designed to address underlying causes, there is little to report.
Further, the long delay in making the Commission reports public have detracted from
the authority attaching to the Commission hearings. This delay has been evidence in
relation to the 1994/1998 Disappearances Commissions as well as other
Commissions. In certain cases, such as the PCIIRP of 1991-1993, the reports of the
Commissions were never made public.
In his study of commissions of inquiry over the last 26 years, particularly in relation
to extrajudicial killings, Special Rapporteur Philip Alston notes that, in the context of
an armed conflict, it may be not be feasible to establish an independent inquiry
domestically, and that international participation may be needed. This may explain in
400 In some instances, the findings of such Commissions (other than the 1994/1998 Disappearances
Commissions) have been set aside by the Supreme Court on the basis that their procedures were in
flagrant violation of the law in that criminal prosecutions and deprivation of civic rights had been
recommended without affording the impugned persons an opportunity to be heard. See Dharmaratne v.
Samaraweera [2004] 1 Sri LR 57. See also the controversy relating to arrests and detentions of police
officers that had taken place in connection with the proceedings of the Batalanda Commission of
Inquiry, examined in the next chapter.
401 Alston, supra note 7, at para. 24: “The basic question that must guide an assessment of a commission
is whether it can, in fact, address impunity.”
402 Principles 34 and 35, UN Updated Principles to Combat , supra note 7. See also para. 16-23, UN
Principles on Reparations, supra note 7.
403 Principle 12, UN Updated Principles to Combat , supra note 7.
404 ibid.
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