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competence. Their findings must be made public in order to empower citizens to demand justice and reparations, including the right to understand the underlying causes and ensure non-repetition. 4. Composition It follows that a mandate structured to provide independence to a commission of inquiry requires a selection process that ensures capacity and willingness to act independently and impartially. As with the judiciary, but particularly so in the case of commissions of inquiry due to public spotlight under which they typically carry out their inquiries, the selection process is critical. The subsequent independence of commissioners needs to be protected through their irremovability (except for reasons of incompetence or incapacity) and through privileges and immunities necessary for their protection. Representation of women and other appropriate groups is also recommended explicitly under international standards. 408 As noted above, the President possesses the authority under the 1948 COI Act to remove commissioners at any time without review. Notwithstanding this lack of structural protection of independence, the commissioners appointed to the bodies described above appeared to have the required technical expertise and experience. Of greater concern in some cases was the independence and impartiality of commissioners, as for example, in the case of the Batalanda Commission. A more contested question concerned the degree of their commitment to questions of human rights accountability. The presumption that lawyers and retired judges who were primarily appointed to these Commissions would automatically possess the requisite commitment to the rule of law and human rights was not always well-founded in reality. In addition, the predominance of commissioners with legal training has resulted in a somewhat unfortunate tendency on the most part to convert fact-finding inquiries into proceedings with the character and flavour of legal hearings rather than as fact-finding investigations. This had its own peculiarly paradoxical effect. Even though these commission inquiries conformed in many respects to legal proceedings, the commission findings, proceedings, and material collected remained largely irrelevant to all the later prosecutions in courts of law. Commission documents were not used even to a limited extent in regard to setting out the factual context to a particular violation of the law under scrutiny by the courts. At the same time, some commissions, while taking on the air of legal proceedings, were insufficiently cautious about naming alleged perpetrators without providing an opportunity for a public defence which illustrated a lack of fairness that was exacerbated by the absence of follow-up prosecutions. Neither truth nor justice was served by the outcome. Gender representation in many of these Commissions was also inadequate. Where the 1994/1998 Disappearances Commissions were concerned, there was an element of gender as well as minority representation in the composition. However, these Commissions remained the exception in this regard. 408 Principle 7, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, E/CN.4/2005/102/Add.1, 08.02.2005. 117
A further concern is that officers of the Attorney General’s Department were assigned to assist the Commissions in many of these instances. While such assistance was rendered without controversy, the part played by the state lawyers attracted no small measure of criticism in some instances as in relation to the Sansoni Commission, as remarked previously. In principle, the assistance rendered to Commissions of Inquiry by state law officers raises the questions as to an actual or perceived conflict of interest situation, particularly when a Commission is being required to inquire into poor or flawed prosecutions as part of an inquiry into failed justice processes in respect of a specific human rights violation. In such instances, problems may be clearly posed by the interaction of the Attorney General with a Commission’s functioning in terms of rendering legal advice and directing the inquiries. 409 This potential for conflict of interest has been reflected upon by a number of commentators. For example, in calling for an independent commission of inquiry to be appointed into the political assassination of Richard de Zoysa during the early nineties, the Liberal Party was at pains to stress that such a Commission should be independent of the Attorney General and of the police and was indeed instrumental in trying to bring in a parliamentary motion that sought to exclude the Attorney General from participating in the work of a Commission of inquiry to be appointed into the case. The motion was not successful. However, the following observation is pertinent in the context of the Liberal Party concluding that the credibility of the Attorney General’s Department had been undermined: We reiterate that we have arrived at this opinion because of the large body of evidence that suggests the immense partiality and lack of integrity by the Attorney General and his Department and of the police in this case. 410 Recent changes to the law have been noteworthy in this regard. By Amendment Act, No 16 of 2008, the Attorney General and his or her officers have been specifically authorised to appear before any Commission, to place any material before the Commission that is determined by the Attorney General to be relevant to the investigation or inquiry and to examine any witness summoned by the Commission if ‘it appears to him that the evidence of such witness is material to or has disclosed information relevant to, the investigation or inquiry, as the case may be.” 411 409 Kishali Pinto-Jayawardena ‘Discussing mock turtles and commissions of inquiry’ in ‘Focus on Rights,’ The Sunday Times, October 28, 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. These queries were raised particularly in respect of the conflict of interest questions relating to officers of the Attorney General assisting the 2006 Commission to Inquire into Serious Human Rights Violations, which were highlighted by the International Independent Group of Eminent Persons (IIGEP). 410 Amaratunge, Chanaka and Wijesinha, Rajiva, eds.,‘The Liberal Party Replies to the UNP’ in The Liberal Review, February 1991, at p.37. Wijesinha was the head of the current Government’s Peace Secretariat and remains the Secretary to Sri Lanka’s Ministry of Human Rights. 411 New Section 26 of the COI Act of 1948 brought in by the Commissions of Inquiry (Amendment) Act, No 16 of 2008. The 2008 amendment was an unequivocal rejection by the government, of the IIGEP’s objections. 118
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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
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confession made to the military pol
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Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
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Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
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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
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Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
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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
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
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Page 116 and 117: analysis, these pillars of the judi
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
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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
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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]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: 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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