Untitled - International Commission of Jurists

It was recorded by at least some of the Commissioners of the 1994 Disappearances
Commissions, as noted above, that there were problems with the allocation of
resources at least at some points. At the time of the writing of the 1995 Amnesty
International report, two of the commissions had not been able to acquire a
computer. 422 The other Commission reports were more circumspect in complaining
regarding the lack of resources. Information in this respect is therefore more
anecdotal.
One factor common to the Disappearances Commissions in particular was the lack of
sufficient time to complete their tasks, again resulting from the lack of full preparation
as well as serious political will in regard to the drafting of these mandates. While the
work of such commissions should not drag on indefinitely and risk public frustration,
politicization, and loss of relevance, it must be noted that an unreasonably short
mandate undermines a full determination of truth, and weakens the likelihood of
establishing conditions for justice and reparations. This was in fact, the case in respect
of these commissions. It should be recalled that the latter principle of reparation
includes the principle of guarantees of non-repetition, an element vital in the case of
Sir Lanka and the context in which these commissions operated.
6. Procedures and Proceedings
The terms of reference of commissions of inquiry should include procedures, in
particular, for protecting victims and witnesses, for ensuring fairness to those who
may be identified as alleged perpetrators, and for protecting evidence. 423
6.1. Security of Victims and Witnesses
Confidentiality of testimony was taken into account and preserved as necessary in the
case of the 1994 Commissions. The most significant failure on the part of the 1994
Commissions, however, was in respect of their inability to put into place concrete
procedures ensuring the safety and security of victims, witnesses and complainants.
Although the 1994/1998 Disappearances Commissioners did engage in some efforts
to ensure witness protection, these efforts were undertaken in a piecemeal rather than
systemic manner. Successive governments that established these Commissions
evinced a marked lack of commitment in this regard.
6.2. Investigation vis a vis Inquiry
The COI Act of 1948 permits, on the face of Section 2, only the single stage of an
inquiry into the alleged incidents in regard to which a Commission is appointed. An
investigative stage, to establish the grounds for public inquiry, is not contemplated.
The commissions analysed in this research generally carried out their work in a
single-stage process of inquiry, with the exception of the 1991 Presidential
Commission of Inquiry into the Involuntary Removal of Persons (PCIIRP), which
conducted a preliminary ‘investigation’ to determine if prima facie evidence existed
422 Amnesty International, ‘Time for Truth and Justice’, AI Index ASA 37/04/95, 1995, at p. 12.
423 Principle 10 (e-f), UN Updated Principles to Combat , supra note 7.
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