Untitled - International Commission of Jurists

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