Untitled - International Commission of Jurists

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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. 91
A factor that is sometimes overlooked in this context is that apart from prosecutions, the findings in these Commission Reports would have warranted internal disciplinary action to be taken in respect of officers found credibly implicated in the incidents investigated in terms of internal departmental orders of the police and services regulations of the forces. However, whatever action taken on this basis has also been negligible. 320 Further, as adverted to later, a 1996 presidential direction to the Commander of the Armed Forces to send 200 services personnel implicated in the findings of the three 1994 Disappearances Commissions on compulsory leave, was ignored. 3.2. The 1998 All Island Disappearances Commission Date of Appointment: 30 April 1998. 321 Date of Report: March 2001. 322 Mandate: to inquire into and report on the following matters: (a) The allegations about the involuntary removal of persons from their residences, or the disappearances of person s from their residences, made to the Commissions of Inquiry appointed under the Commissions of Inquiry Act, and terms of reference of which are published respectively, in Gazettes No. 855/18, 855/19 and 855/20 of January 25, 1995, being allegations in respect of which no investigations have commenced on the respective dates, appointed by the respective warrants appointing such Commission of Inquiry, for the rendering of the reports of such Commissions of Inquiry; (b) The evidence available to establish such alleged removals or disappearances; (c) The present whereabouts of persons alleged to have been so removed or to have so disappeared; (d) Whether there is any credible material indicative of the person or persons responsible for the alleged removals or disappearances; (e) The legal proceedings that can be taken against the person held to be so responsible; (f) The measures necessary to prevent the occurrence of such alleged activities in the future; 320 Conversations with Mr M.Q.M. Iqbal, Secretary to the 1994 Central, North Western, North Central and Uva Disappearances Commission and the 1998 All Island Disappearances Commission. 321 Appointed by President Chandrika Kumaratunge. The Commissioners comprised Manouri Kokila Muttetuwegama (Attorney-at-Law) functioning as Chairperson, Hetti Gamage Dharmadasa (former Commissioner of Prisons) and Ponnuchamy Balavadivel (former High Court judge). 322 Final report of the Commission of Inquiry into Involuntary Removal and Disappearances of Certain Persons (All Island), (hereafter referred to as the 1998 All-Island Disappearances Commission) Sessional Paper No. I – 2001, March 2001. 92
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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
Page 42 and 43: was also spared the distinction of
Page 44 and 45: The Court’s reasoning at times ap
Page 46 and 47: however, linked the habeas corpus a
Page 48 and 49: The ineffectiveness of the writ rem
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
Page 58 and 59: police did not carry out the arrest
Page 60 and 61: sexual intercourse […].” 177 He
Page 62 and 63: accused even though the relevant do
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Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
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 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
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Page 96 and 97: Interdiction from service of allege
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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
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
Page 114 and 115: against any particular soldier or s
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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Page 140 and 141: 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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