Untitled - International Commission of Jurists

Chapter Three - Commissions of Inquiry from 1977 to 2001
The preceding chapters set the stage for an examination of the role played by
commissions of inquiry in Sri Lanka in addressing fundamental questions relating to
truth, justice and reparations. The decision to confine the analysis to commissions
operating between 1977 and 2001 is aimed to complement work undertaken already in
this area with historical analysis that is free from current controversy, for example,
that surrounding the 2006 Commission of Inquiry. 205 The central objective is to
record an important part of Sri Lanka’s quest for truth, justice and reparations and to
draw lessons from that history.
From a political-historical perspective, commissions of inquiry established by
successive government reflect the exigencies of the day, in which governments have
faced demands for accountability. However, as demonstrated below, the same
governments have not had the unambiguous intention or capacity to come to grips
with the causes of the crimes investigated. From a legal-institutional perspective,
commissions of inquiry are also a mechanism to address the systemic weaknesses
discussed above, in order, for example, to overcome conflicts of interest as well as to
look beyond the narrow focus of criminal courts on individual criminal responsibility
to broader questions of truth and reparations. Commissions of inquiry should prompt
accountability, including through prosecution, as well as remedial measures for
victims and should provide as basis to reform institutions to prevent a repetition of
crimes. Again, as shown below, commissions of inquiry have also failed to fulfil these
purposes.
1. Background
The history of appointment of commissions of inquiry dates back to the passing of the
Commissions of Inquiry Ordinance No. 9 of 1872, which may be regarded as the
legislative precursor to the present COI Act of 1948. Prior to the adoption of this
ordinance, such Commissions were appointed pursuant to Article VII of the Letters
Patent constituting the office of Governor and Commander in Chief of the island of
Ceylon, then a crown colony.
With the coming into operation of the Independence Constitution, power formerly
vested in the Governor stood conferred on the Governor General as the representative
of the Monarch in England, the nominal Head of State. The President de facto
assumed the Governor General’s role with the entry into force of the 1972
Constitution, which preserved the “Westminster” model of cabinet government. The
promulgation of the 1978 Constitution gave the newly established Executive President
the power to appoint such commissions (The continuation of the COI Act of 1948 was
preserved mutatis mutandis in terms of Article 16(1) of the 1978 Constitution). 206
205 See Amnesty International, Sri Lanka: Twenty years of make-believe. Sri Lanka’s Commissions of
Inquiry, ASA 37/005/2009, 11 June 2009.
206 See Section 2(1) of the COI Act of 1948.
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