Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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appointed under the <strong>Commission</strong>s <strong>of</strong> Inquiry Act, No. 17 <strong>of</strong> 1948 (as amended) 8<br />
during this period to inquire into grave human rights violations;<br />
2) Examination <strong>of</strong> credible data in connection with prosecutions for enforced<br />
disappearances and extrajudicial executions which were recommended by prior<br />
commissions <strong>of</strong> inquiry<br />
3) Examination <strong>of</strong> credible data in connection with prosecutions for enforced<br />
disappearances and extrajudicial executions which were not initiated by<br />
recommendations <strong>of</strong> commissions <strong>of</strong> inquiry;<br />
4) Examination <strong>of</strong> Sri Lanka’s justice system in order to identify the systemic causes<br />
<strong>of</strong> its consistent and comprehensive failure in redressing victims <strong>of</strong> grave human<br />
rights violations;<br />
5) Recommendation <strong>of</strong> overall reforms to the relevant law and practice;<br />
The analysis comprises firstly, a historical overview <strong>of</strong> the escalation <strong>of</strong> a culture <strong>of</strong><br />
violence in Sri Lanka. Reliance placed on commissions <strong>of</strong> inquiry or ad hoc factfinding<br />
bodies rather than on a properly functioning legal system to restrain abuses<br />
forms part <strong>of</strong> the historical background outlined in this section.<br />
This is followed by a detailed examination <strong>of</strong> the proceedings, functioning and<br />
findings <strong>of</strong> nine commissions <strong>of</strong> inquiry (hereinafter, ‘COIs’) appointed by the<br />
executive from 1977 to 2001 to primarily inquire into extrajudicial executions and<br />
enforced disappearances 9 which have formed part <strong>of</strong> the country’s political landscape<br />
since the 1970s. The recommendations <strong>of</strong> these COIs in regard to investigations,<br />
prosecutions and reforms <strong>of</strong> the relevant laws and regulations in each factual context<br />
are analysed. This precedes a general evaluation based on common issues <strong>of</strong> concern<br />
relating to the establishment <strong>of</strong> these bodies, their terms <strong>of</strong> reference, composition,<br />
procedures, powers and resources. The 2008 amendment to the COI Act receives<br />
specific attention in this regard. The third level <strong>of</strong> analysis is then contained in<br />
examination <strong>of</strong> the actual prosecutions (or lack there<strong>of</strong>) that followed in consequence<br />
<strong>of</strong> these commission reports during later years.<br />
Thereafter, broader patterns <strong>of</strong> judicial responses to grave human rights violations are<br />
examined, taking into account the actual mechanisms <strong>of</strong> habeas corpus and de facto<br />
impunity granted systematically to alleged perpetrators. At the crux <strong>of</strong> this impunity is<br />
the lack <strong>of</strong> independence <strong>of</strong> Sri Lanka’s judiciary, itself part <strong>of</strong> broader weaknesses in<br />
the constitutional framework. Constitutionalism in Sri Lanka, meaning the higherorder<br />
commitments to principles <strong>of</strong> governance, including human rights and the rule<br />
<strong>of</strong> law, has been dramatically reshaped by successive captures <strong>of</strong> executive authority<br />
8 Hereafter COI Act <strong>of</strong> 1948.<br />
9 The analysis engages in critical scrutiny <strong>of</strong> state actors, not with the intention <strong>of</strong> minimising the<br />
serious violations <strong>of</strong> civilian rights by non-state actors such as the Liberation Tigers <strong>of</strong> Tamil Eelam<br />
(LTTE) committed during the past decades <strong>of</strong> active fighting or by other militant groups including the<br />
Karuna Group, but on the premise that, as opposed to terrorist groups, the Sri Lankan State is held<br />
responsible for democratic governance within the framework <strong>of</strong> the law and the due functioning <strong>of</strong><br />
legal institutions, police, prosecutions and the judiciary. The standard <strong>of</strong> accountability is therefore<br />
wholly different and it is against this necessarily high standard that State actions are measured.<br />
11