Untitled - International Commission of Jurists

ouster) clause ruling out judicial review of proceedings before the Commission”. 317
Legal principles as to the limited context in which judicial review of commission
proceedings may be invoked are, in any event, firmly laid down, 318 and it was
unnecessary that an ouster clause, problematic as it is in principle, be inserted into the
COI Act for this purpose.
The Reports of the Commissions submitted to President Kumaratunge in 1997 were
not made publicly available in a generalised way until some years later, even though
the Sessional Papers themselves are dated 1997. In any event, some portions of these
reports have still not been made public. The relatives of the victims and those who
appeared before the Commissions were not individually or collectively informed of
the findings of the Commissions. Except for the payment of compensation in certain
cases, no effective action was forthcoming in displacing the systems and structures
that permitted and encouraged the disclosed crimes. The manner in which the system
had failed the victims at every point was reflective in the following observation:
The loss of the victims' faith that there would be a solution forthcoming from
the legal and social system is an indisputable fact. Immediately following the
disappearances, most relatives of the victims did all they were asked by the
system: they made complaints; they gave all the information they had to those
who asked for it; they went from house to house, seeking the assistance of
politicians who had appeared to want to help them. Finally they also went
before the disappearances commissions. In addition, many of them took an
active part in elections to support those who promised them justice.
None of these actions brought them any tangible result. In fact, all these
actions taught them a stern lesson: that 'nothing is in fact working.'
Under these circumstances these people finally turned to religious rituals and
prayers. Some engage in cursing the perpetrators of violence, and some call
for divine vengeance. Such practices themselves demonstrate their loss of faith
in society's legal and social machinery. 319
317 Interim report of the Commission of Inquiry into the Involuntary Removal or Disappearance of
Persons in the Western, Southern and Sabaragamuwa Provinces, Sessional Paper No. II, 1997, at p. 20.
318 As is in any event, acknowledged by the Commissioners themselves, ibid. In Mendis, Fowzie and
others v. Goonewardene, [1978-79] II Sri LR 322, Court of Appeal) which held that the Commission’s
findings in that case amounted to findings affecting reputation and were therefore amenable to judicial
review under Article 140 of the 1978 Constitution. This decision was reversed by the Supreme Court in
appeal. See: [1978-79-80] 1 Sri LR 166, wherein it was ruled that the Commission findings were
merely recommendatory in nature and consequently not amenable to writ. The legal principle that
recommendatory reports of fact finding Commissions of Inquiry are not amenable to the writ
jurisdiction of the Court of Appeal was recently affirmed in relation to the findings of the Athurugiriya
Commission of Inquiry, see ‘CA dismisses writ against findings of Commission of Inquiry on
Authurugiriya Safe House raid.’, The Island, 06.08.2009. These decisions need to be distinguished
from instances where recommendations in consequence of which deprivation of rights occur, which
would be subject to judicial review as was indeed the case in Dharmaratne v. Samaraweera [2004] 1
Sri LR 57 where adverse findings against the appellants, including that they be deprived of their civic
rights and criminally prosecuted were quashed by the Supreme Court on the basis that the rules of
natural justice had been infringed.
319 Fernando, Basil, ‘Disappearances: 15% are Children,’ Asian Human Rights Commission, Human
Rights SOLIDARITY, Vol. 8, No. 8, Hong Kong, 1997, at p. 17.
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