Untitled - International Commission of Jurists

A two stage procedure – an informal stage to receive and procure evidence
where identities of alleged perpetrators may transpire, and a formal sitting to
afford an opportunity to state their case should such identities transpire before
reporting and recommending to the President – is therefore highly
recommended. Nothing more nor less would respond to the duty to act fairly
as would be required from a Commission of Inquiry as articulated in the
Supreme Court decision in Fernando v Jayaratne. 432
As held (in another context), in Wickremesinghe v. Tambiah, 433
[T]there can be no reasonable objection to the Commissioner interviewing
witnesses or reading documents in private with a view to ascertaining whether
the material so elicited is of sufficient materiality to be adduced at a formal
sitting. What he does object to is the use of facts so elicited for the guidance of
the Commissioner in compiling his report, without having such matters tested
at a formal sitting.”(emphasis added)
In ironic contrast, those Commissions (such as the Batalanda Commission) that did, in
fact, bring the perpetrators before them, were tainted by serious doubts regarding their
political integrity. While there was no such overt taint with respect to the 1994
Disappearances Commissions, the practical impact of the laborious exercise stretching
for over three years and falsely raising the expectations of many victims of abuses and
the members of their families may be reasonably questioned. Citizens were denied the
right to a public accounting and measures to prevent recurrence. In the absence of
prosecutions, moreover, there was no opportunity for a full determination of
individual responsibility, robbing both perpetrators and victims of an opportunity to
see justice done.
432 ibid. For the Supreme Court decision cited, see [1974] 78 NLR 123.
433 [1945] 46 NLR 105. This related to a Commission of Inquiry appointed under Ordinance No. 9 of
1872.
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