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