Untitled - International Commission of Jurists

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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. 121
to proceed to a second stage of ‘public inquiry’. As noted by the Commissioners to an Amnesty International team visiting Sri Lanka in 1992: [W]hen complaints are received, they are first investigated by a team of ten investigating officers under the direction of the Chief Investigating Officer who is a retired policeman. Once they have established that there is prima facie evidence of disappearances, relatives are called to Colombo to give evidence. […] [O]nce the evidence has been collected, the senior state counsel assigned to the Commission decides whether there is sufficient evidence available to proceed to a public inquiry before the five Commissioners. 424 Unfortunately, as noted earlier, the PCIIRP conducted all of these inquiries in secret, was not mandated to look at the worst of the disappearances cases, and never published its report. Most observers have concluded that this outcome was foretold by the underlying intention in establishing the PCIIRP, which seemed to be to deflect rather than invite scrutiny. Some legal commentators have raised questions as to the legitimacy of establishing two distinct stages of investigation and inquiry in the context of the COI Act of 1948 (as the law stood in 2008). 425 In 2008 however, this concern was met this concern by amending Section 2 and adding new Sections 23 to 26, which authorised a Commission to engage in ‘an investigation or inquiry or both where appropriate.” 426 This amendment is in keeping with the spirit of commissions of inquiry under international standards, which requires that the proceedings and procedures of commissions of inquiry be conducive of public accountability and measures to prevent recurrence, while protecting the rights of accused and the security of witnesses and victims. 6.3. Cross examination and legal representation Various procedures regarding the right to cross-examine and the right to legal representation have been adopted. While the Kokkadichoai Commission did not permit cross-examination, the Sansoni Commission and the Batalanda Commission developed procedures to allow the exercise of this right. The 1994/1998 Disappearances Commissions, as observed, did not proceed to the second stage of calling the persons credibly implicated in their investigations, before them. Such procedures, alone, however, could not rescue a commission’s work where political interference was prevalent. The case of the Batalanda Commission is instructive in this regard (see above, Chapter 3, s. 4.1). While it permitted crossexamination and allowed witnesses to be represented by legal counsel, the context in which the Commission functioned and the partisan manner in which its findings were used, seriously impugned its credibility. 424 Amnesty International, ‘Sri Lanka; An Assessment of the Human Rights Situation’, AI Index, ASA/37/1/93, 1993, at p. 4. 425 De Almeida Guneratne, Jayantha, op.cit. These questions were raised primarily in the context of the 2006 Commission to Inquire into Serious Human Rights Violations adopting such a two-stage process from 2006. 426 Commissions of Inquiry (Amendment) Act, No. 16 of 2008. 122
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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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property of Sinhalese persons domic
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Page 82 and 83: were SLFPers. I was told, that area
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Page 102 and 103: ecommendation to this effect by the
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
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Page 120 and 121: Regardless of the amendment however
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Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
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Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
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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
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Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
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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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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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