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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. 119
person to produce any document, a certified copy thereof or any other material in his possession and to require any person to provide to the Commission, any information in writing which he is likely to possess. 418 The assistance of a public officer selected by the Commission, with the concurrence of the relevant appointing authority, to conduct investigations into the relevant matter or subject that is being inquired into/investigated by the Commission is also secured by the 2008 amendment. 419 Although, as noted above, the COI Act of 1948 vests considerable powers in the commissions to summon witnesses, one perennial complaint by the commissioners related to the failure of law enforcement officers to adhere to their summons. As stated by the 1994 Northern and Eastern Disappearances Commission, this was a frustrating experience: The Second Stage of the inquiry was to find out the persons responsible for these arrests and subsequent disappearances. This was a more complex problem. Most people who suffered in the North and East were illiterate and from rural milieu and could not distinguish the Special Task Force persons from the Army personnel. It was virtually impossible for them to identify any officers who were responsible for these arrests by name or by rank. The Sri Lankan Army does not display the name badge on the uniform like the American G.I. Except for some notorious cases of Army Personnel who were known far and wide for their terror tactics, most of the officers and soldiers who participated in the arrests could not be identified. We had to write to the Army and the Police to find out which officer was in-charge of a particular camp at a particular time. This operation was time consuming. There were delays in replies and often there were no replies at all. We were able to investigate into some complaints but the bulk of the exercise is left for the successor commission to look into. 420 In many instances, the commissioners made on-site visits. Insofar as resources are concerned, the following observation made by one of the 1994 Disappearances Commissions is pertinent: In addition we have to face administrative bottlenecks. The Secretary had to make several trips to various offices to get even small matters attended to. A photocopier which is a must is yet to come. Typewriters were made available only a few days ago. Our application for a telephone was approved on a priority basis on 23 rd January 1995; the connection has still not been given. 421 418 New sections (bb), (bbb) and (bbbb) to Section 7 of the COI Act of 1948 brought in by the Commissions of Inquiry (Amendment) Act, No 16 of 2008. 419 New section 23 to the COI Act of 1948 brought in by the Commissions of Inquiry (Amendment) Act, No. 16 of 2008. The Commission cannot arrive at any conclusion consequent to such investigations until it has examined the material collected in the course of such investigation and inquired into such matter or incident, observing the rules of natural justice. 420 Final report of the 1994 Northern and Eastern Disappearances Commission, Sessional Paper No VII, 1997, at p. 3. 421 Interim report of the 1994 Central, North Western, North Central and Uva Disappearances Commission, Sessional Paper No. III, 1997, at p. 1. The Commission’s complaint regarding the lack of a permanent telephone meant that, given the date on which the application had been made (1995) and the date of the interm report (1997), a telephone link had not been afforded to it for over two years. 120
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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
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excesses that had preceded the acti
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Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
Page 78 and 79: Date of Publication of Report: not
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
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
Page 94 and 95: (g) The relief if any that should b
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
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
Page 114 and 115: against any particular soldier or s
Page 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
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
Page 134 and 135: Lengthy delays in filing indictment
Page 136 and 137: officers who were prepared not only
Page 138 and 139: prosecutor’s office would be to i
Page 140 and 141: y the byzantine and unfair burdens
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
Page 154 and 155: any direct or indirect physical or
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
Page 168 and 169: 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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