Untitled - International Commission of Jurists

Regardless of the amendment however, the question of the conflict of interest arising
in the context of these Commission inquiries in relation to the role of the Attorney
General remains pertinent.
Apart from concerns as to the political nature of the office of the Attorney General,
some commissions of inquiry were established and functioned with a patently
political mandate designed to discredit the actions of the predecessor regime.
Similarly, where commissions have been appointed by an administration to probe its
own acts while in office, the predominant motive had been to whitewash the alleged
abuses. While the four 1994/1998 Disappearances Commissions functioned with
integrity, the same cannot be said for each and every Commission appointed by the
president in this regard.
5. Powers and Resources
The terms of reference of commissions of inquiry should contain specific powers and
resources necessary for an independent and effective inquiry. Commissioners ought to
have the right to call for testimony from relevant actors, with the proviso that victims
and witnesses testifying on their own behalf can only do so voluntarily. 412 The
commissioners should have access to any necessary court action to address any risk
that their inquiries may pose to any concerned person or to evidence important both
for the inquiry and any future judicial process. 413
The terms of reference of commissions examined above reflected these powers to a
limited extent, the main weakness being the failure of compliance with commission
requests for documentation. The second area of concern is the lack of specific
provisions guaranteeing the voluntariness of victim and witness testimony, and the
access to court action to protect the safety of concerned persons or to preserve
evidence.
The powers vested in the commissions described above have included powers to
procure and receive all evidence and to examine all such persons as witnesses ‘as the
commission may think it necessary or desirable to procure or examine’, 414 to summon
any person residing in Sri Lanka to give evidence or produce any document or other
thing in his possession 415 and, notwithstanding any of the provisions of the Evidence
Ordinance, to admit any evidence, whether written or oral which might be
inadmissible in civil or criminal proceedings. 416 Additional powers may be conferred
by the President upon a Commission if it so requests, requiring the furnishing of
certified copies of bank documents and documents in the possession of the
Commissioner-General of Inland Revenue. 417
Section 7 of the COI Act was amended by Amendment Act, No 16 of 2008 conferring
further powers on a Commission in respect of applying to a court of law or any
tribunal, for certified copies of inter alia the proceedings of any case, requiring any
412 Principle 8(a), UN Updated Principles to Combat , supra note 7.
413 Principle 8(b), UN Updated Principles to Combat , supra note 7.
414 Section 7 (a) of the COI Act of 1948.
415 Section 7(c ) of the COI Act of 1948.
416 Section 7(d ) of the COI Act of 1948.
417 Section 8 of the COI Act of 1948.
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