Commissions of Inquiry and Eminent Observations

By Kishali Pinto Jayawardena

The fracas currently surrounding Sri Lanka's 2006 Presidential Commission of Inquiry into Grave Human Rights Violations was poignantly predictable; at the outset, some of us warned that this latest commission would only amount to a futile exercise. Perhaps many may not have predicted how swiftly matters would come to a boil; however, the no-holds barred critique of the Commission by its International Independent Group of Eminent Persons (IIGEP), brought matters to a head far more quickly than anticipated.

In a way, such exposure of the limitations of the Commission process can only be welcomed, even though it may be unpleasant reality to many and yet others may an question the legitimacy of foreign observers engaging in such a scathing critique of our domestic institutions. But this was precisely the task for which the observers were invited into the country; namely to monitor or critically observe the Commission and to ensure that it is acting according to international standards of rights protection. To fault them for acting on this mandate is to be, at the worst, irrepressibly unfair and at the worst, maliciously vindictive.

The question then could be posed by some; was it necessary to invite foreign observers in the first place? The answer to this question is easily supplied by our own lack of credibility in establishing such commissions; for example, the multifarious commissions of inquiry set up within the past one year or so with no perceptible results from their functioning except the wastage of taxpayers money is just one illustration. Remember that one-man Commission of Inquiry headed by a former High Court Judge, Mahanama Tillekeratne who had a hilariously similar mandate to the current 2006 Commission of Inquiry? Mr Tillekeratne was, at that time also a serving member of the now discredited National Human Rights Commission which incidentally, also has a similar mandate of inquiring into enforced disappearances and the like.

Meanwhile, what has happened to all these reports of these Commissions? Are any of them available for public scrutiny? The answers to these questions are unequivocally in the negative. So, could blame be laid at anyone's door for understandable skepticism being shown in regard to the viability of this latest Commission venture? It was to allay these fears that the eminent observers were invited. Now it appears that their observations would be the most damaging insofar as the credibility of the Commission is concerned.

The perennial problem in Sri Lanka has been the selection of persons as Commissioners who, not only have professional/personal integrity but also possess strong human rights allegiance, have not been compromised in relation to their affiliations to any political party and have the commitment to challenge the system. There are only very few such individuals in Sri Lanka unfortunately! And the guarantee that the Commissioners are legal/judicial persons does not carry an automatic endorsement of their credibility.

The fact remains that we need to confront the questions at the core of this country's slide into anarchy; commissions of inquiry are only a marginal step in this process. In no way can they be used to sidestep the far graver failures that lie at the heart of the real problem.

And this is that, despite the many thousands of disappearances and extra judicial killings, the Sri Lankan State has been demonstrably unwilling to put into place, specific mechanisms of legal accountability that counter impunity for perpetrators of grave human rights violations. Most particularly, we have seen only two successful prosecutions in so far as high profile extra judicial executions and enforced disappearances are concerned in recent times. Ironically, one case concerned brutal acts of rape and murder of a Tamil schoolgirl and members of her family by soldiers in the North (the Krishanthi Kumaraswamy Case) while the other concerned the no less brutal enforced disappearance of fifty three Sinhalese schoolboys in a remote village in the South (the Embilipitiya Case).

There are a plethora of reasons for this failure, including compromised criminal investigations processes, absence of a witness protection system, lack of effective and committed prosecutorial policies and an outdated body of penal law/rules of criminal procedure and evidence. The answer to addressing impunity of perpetrators of grave human rights violations lies in redressing these failures rather than establishing commissions of inquiry.

The IIGEP may draw comfort from the fact that scrutiny of the lawfulness or the reasonableness of the prosecutorial decision making powers of the Attorney General is already a part of Sri Lanka's law as judicially asserted by the Supreme Court in Ivan v Attorney General (1998] 1 Sri LR, 340, (SC Application No 89/98 decided on 3rd April, 1998). In this case, the question was whether a decision of the Attorney General to grant sanction to prosecute or to file an indictment or the refusal to do so, could be reviewed. Answering this question in the affirmative, the Court (in the judgment of MDH Fernando J) discussed first the circumstances in which the discretion to grant sanction could be reviewed, concluding that such a power of review existed where the evidence was plainly insufficient, where there was no investigation, where the decision was based on constitutionally impermissible factors and so on.

In terms of the terms of reference (TOR) of the IIGEP, such negative observations can be made only if the decision of the Attorney General is unlawful or unreasonable. Analysis of both these terms are pivotal in the context that the Commission itself has been mandated to come to a finding on the 'identities, descriptions and backgrounds of persons and groups of persons who are responsible under the applicable laws and legal principles of Sri Lanka' for the commission of deaths, injury or physical harm in respect of the fifteen selected incidents.

Proving the question of direct responsibility for the crimes will not be easy given the difficulties that arise on obtaining eye-witness evidence etc. On the other hand, the doctrine of command responsibility is not incorporated in our criminal law. So for example, if the question of culpability involves indirect rather than direct responsibility, could the Commission recommend prosecution and would the Attorney General be justified in issuing indictment? If not, would the Observers be justified in regarding this as an unreasonable or unlawful decision of the Attorney General to refrain from prosecution?

It is submitted that the IIGEP should push for such an expansive interpretation of the law and use in that context, decisions of the Supreme Court that have indeed, incorporated the doctrine of command responsibility in using its sui generis fundamental rights jurisdiction in terms of Article 126 of the Constitution. The term 'under the applicable laws and legal principles of Sri Lanka' undoubtedly includes constitutional principles and the court's interpretation thereof. The limitations in the criminal law which stems from provisions in an old and archaic statute should not be allowed to restrict a liberal interpretation of this phrase and developments in the constitutional jurisdiction could be used for that purpose.

This leads us to a paradox in the Sri Lankan legal process; as pointed out previously in this column, where violations occur in normal times, a police officer or a prisons officer could be vicariously held liable in terms of the constitutional law. Yet, that same rationale will not apply to these officers or their colleagues in the services when prosecutions are brought against them in terms of the criminal law.

It is imperative that these paradoxes are substantively addressed for the better certainty and indeed the justice of the law. Inescapably, we will not need fact finding commissions of inquiry or external international 'observers' monitoring our domestic bodies if we could show that we have a credibly functioning system in the first place. If we do not, then the first effort should be to address these lacunae and not engage in futile and pointless repetitions of past failures.