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3.1.3. Reflections on the Procedures The COI Act of 1948 gives significant discretion to commissions to determine their own procedures. While such discretion may be desirable in order to maintain flexibility in their functioning, it also created inconsistencies and oversights that impacted on perceived fairness. For example, public access to the three 1994 commissions varied. The 1994 Western, Southern and Sabaragamuwa Disappearances Commission decided to hold all their sittings in camera, 303 while the other Commissions took a different approach. The procedures affecting alleged perpetrators are similarly left for commissions to determine. Thus, all three 1994 Commissions decided not to proceed beyond the stage of ex parte inquiries. Perpetrators were not summoned or provided the opportunity to speak before the Commissions. A former commissioner expressed regret regarding this decision, but suggested that part of the explanation of this procedural decision related to the sheer number of complaints that were filed before the Commission, thus precluding extensive inquiry beyond ex parte testimony. 304 Since the alleged perpetrators were not heard and their accusers not cross-examined, the Commissioners decided that the names of those implicated should not be disclosed in the 1994 Commissions Report. Instead names were sent under confidential cover to the President, with the following explanation: The Commission feels that on ex-parte evidence alone, it cannot decide on the guilt of these people. Hence proper inquires have to be undertaken and evidence given by the complainants should stand the scrutiny of crossexamination. This is a task we leave to the next Commission. 305 In fact, the ‘next Commission’ in this respect (1998 All-Island Commission; see next section) was not authorised to reinvestigate cases already examined by the 1994 Disappearances Commissions. Thus it was that the 1994 Disappearances Commissions limited its role to recording testimony and, in practice, leaving further investigation and prosecution to the police and Attorney General. Of course, the fact-finding mandate of the Commissioners was 303 The rigid policy of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission in insisting on holding all its hearings in camera, thus depriving the press and public from participation and thereby taking away an important element of public accountability from the process was in fact, regretted in retrospect by one Commissioner, Jayantha de Almeida Guneratne, “The Role of Commissions of Inquiry in Sri Lanka’s Justice System’, State of Human Rights Report 2007, Law & Society Trust, at page 194. The one exception to this policy was in relation to the Richard de Zoysa assassination which would be discussed later. 304 De Almeida Guneratne, Jayantha, op. cit. 305 Final report of the 1994 Northern and Eastern Disappearances Commission, Sessional Paper No VII, 1997, at p. 62. The usage of the term ‘guilt’ in this context which permeates many of these Commission reports reflects the wide gap between public expectations that the Commission would bring to brook those responsible for gross human rights violations and the legal limitations of such Commissions which precludes such findings in the first instance given the fact finding nature of their mandate. See also ‘Your Commissioners recommend that the investigations by the IGP should be under the supervision of the Attorney General and be referred to the Attorney General for the determination of the appropriate legal proceedings that should ensure,’ at p. 29 of the final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997. 87
clearly distinct from the determination of individualized guilt by a criminal court, but it is also clear from the quotation above that – between these institutional mandates – there was significant scope for ambiguity about respective roles, particularly when it came to the identification of perpetrators where crimes were disclosed by testimony. The use of the word, “guilt”, for example, is not unusual in the work of commissions during this period, although the same commissions also acknowledged the limitations on their role. What remains unresolved is whether and how the 1994 Commissions might have gone further in recommending prosecutions. For example, the likelihood of Commission recommendations being taken more seriously might have improved if their queries had gone through to the second stage (inquiry beyond ex parte testimony) with sufficient resources and time. The irony and frustration in what actually transpired in this regard was not lost on the commissioners, who in their reports laid out plainly compelling reasons for doubting the likelihood of adequate follow-up investigations and prosecutions. The distortion of the investigations to conceal more than to reveal and mechanically labelling as ‘subversive act’ without investigation, were some of the practices of avoidance used in the rare instances where the authorities could not refrain from semblance of an investigation. 306 The three examples cited are not isolated departures from practice or ‘excesses’. They exemplify a generalised practice, which in its turn warrants the reasonable inference that this practice denotes a generalised direction NOT to investigate such incident (emphasis in the original). 307 The observations were similarly harsh in regard to the absence of prosecutions. In the few cases where evidence regarding removals of persons existed and those responsible were revealed, not only was there even failure to take further action (prosecution, disciplinary action) but some of them had even received promotions and medals. 308 Despite these explicit acknowledgements of defective investigations and prosecutions, the 1994 Disappearances Commissions had little choice but to refer specific cases back to those very same government institutions. This referral was no doubt accompanied by the expectation that there would be some changes evidenced in investigative and prosecutorial processes and a new political will would be manifested in bringing perpetrators to justice. 306 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997, at p. 53. cited as a prefatory remark to discussing the February 1990 killing of Richard de Zoysa (examined later in detail), the January 1989 killing of Sarath Sepala Ratnayake, a human rights lawyer and the opposition’s area candidate at the then forthcoming General Election and the Hokandara mass graves where a bomb crater on a public highway was transformed into an open grave containing several charred corpses. 307 ibid, at p. 55 citing the cases of the “Dambarella Incident”, the “Marawala Incident” and the “Dickwella Incident” which all concerned disappearances of persons in state custody but with no investigation or prosecution evidenced thereafter. 308 ibid, at p. 65. 88
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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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Page 40 and 41: • Perera v. AG 89 and Wickremeban
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Page 44 and 45: The Court’s reasoning at times ap
Page 46 and 47: however, linked the habeas corpus a
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Page 50 and 51: The Court of Appeal when sending th
Page 52 and 53: anything. We have received informat
Page 54 and 55: the findings of guilt against the a
Page 56 and 57: The Embilipitiya case is unique in
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Page 60 and 61: sexual intercourse […].” 177 He
Page 62 and 63: accused even though the relevant do
Page 64 and 65: confession made to the military pol
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
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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 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
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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 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
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
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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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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