Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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competence. Their findings must be made public in order to empower citizens to<br />
demand justice and reparations, including the right to understand the underlying<br />
causes and ensure non-repetition.<br />
4. Composition<br />
It follows that a mandate structured to provide independence to a commission <strong>of</strong><br />
inquiry requires a selection process that ensures capacity and willingness to act<br />
independently and impartially. As with the judiciary, but particularly so in the case <strong>of</strong><br />
commissions <strong>of</strong> inquiry due to public spotlight under which they typically carry out<br />
their inquiries, the selection process is critical. The subsequent independence <strong>of</strong><br />
commissioners needs to be protected through their irremovability (except for reasons<br />
<strong>of</strong> incompetence or incapacity) and through privileges and immunities necessary for<br />
their protection. Representation <strong>of</strong> women and other appropriate groups is also<br />
recommended explicitly under international standards. 408<br />
As noted above, the President possesses the authority under the 1948 COI Act to<br />
remove commissioners at any time without review. Notwithstanding this lack <strong>of</strong><br />
structural protection <strong>of</strong> independence, the commissioners appointed to the bodies<br />
described above appeared to have the required technical expertise and experience. Of<br />
greater concern in some cases was the independence and impartiality <strong>of</strong><br />
commissioners, as for example, in the case <strong>of</strong> the Batalanda <strong>Commission</strong>. A more<br />
contested question concerned the degree <strong>of</strong> their commitment to questions <strong>of</strong> human<br />
rights accountability. The presumption that lawyers and retired judges who were<br />
primarily appointed to these <strong>Commission</strong>s would automatically possess the requisite<br />
commitment to the rule <strong>of</strong> law and human rights was not always well-founded in<br />
reality.<br />
In addition, the predominance <strong>of</strong> commissioners with legal training has resulted in a<br />
somewhat unfortunate tendency on the most part to convert fact-finding inquiries into<br />
proceedings with the character and flavour <strong>of</strong> legal hearings rather than as fact-finding<br />
investigations. This had its own peculiarly paradoxical effect. Even though these<br />
commission inquiries conformed in many respects to legal proceedings, the<br />
commission findings, proceedings, and material collected remained largely irrelevant<br />
to all the later prosecutions in courts <strong>of</strong> law. <strong>Commission</strong> documents were not used<br />
even to a limited extent in regard to setting out the factual context to a particular<br />
violation <strong>of</strong> the law under scrutiny by the courts. At the same time, some<br />
commissions, while taking on the air <strong>of</strong> legal proceedings, were insufficiently<br />
cautious about naming alleged perpetrators without providing an opportunity for a<br />
public defence which illustrated a lack <strong>of</strong> fairness that was exacerbated by the absence<br />
<strong>of</strong> follow-up prosecutions. Neither truth nor justice was served by the outcome.<br />
Gender representation in many <strong>of</strong> these <strong>Commission</strong>s was also inadequate. Where the<br />
1994/1998 Disappearances <strong>Commission</strong>s were concerned, there was an element <strong>of</strong><br />
gender as well as minority representation in the composition. However, these<br />
<strong>Commission</strong>s remained the exception in this regard.<br />
408 Principle 7, Updated Set <strong>of</strong> principles for the protection and promotion <strong>of</strong> human rights through<br />
action to combat impunity, E/CN.4/2005/102/Add.1, 08.02.2005.<br />
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