Focus on Rights

During the next two weeks, this column will examine several aspects of the functioning of the 2006 Presidential Commission of Inquiry to Investigate and Inquire into Allegations of Serious Human Rights Violations (hereafter the 2006 Commission) as well as the role and the impact of the International Independent Group of Eminent Persons (IIGEP) in this regard.

Such a critical analysis is pertinent not only due to the fact that a period of time has lapsed since the commencement of commission sittings but also given the speculation that the international observers would not continue beyond March/April 2008 as a consequence of considerable disenchantment with the process.

This column will concern itself this week with some preliminary comments prior to examining core questions that have emerged as a result of the Commission process. It will, for this purpose, look at the proposed amendment to the Commissions of Inquiry Act, Act No 17 of 1948 that will be brought before Parliament in the following weeks and which in all likelihood would be passed in the House.

Permitting Criminal Proceedings to be Instituted based on Evidence before a Commission

On an earlier occasion, (see 'Focus on Rights', Sunday 28 Oct 2007) this column deliberated on that part of the amendment permitting the Attorney General to institute criminal proceedings based on evidence recorded at a Commission of Inquiry proceeding. It was cautioned that however innocent such amendments may appear to be, their actual result may not be all that salutary.

Two issues predominate; first, a Commission of Inquiry is not a strictly judicial body and indeed, is permitted to advance beyond the rigid boundaries of the law in the collection of its evidence as for example, its conferred latitude in admitting any evidence, whether written or oral which might be inadmissible in civil or criminal proceedings, notwithstanding any of the provisions of the Evidence Ordinance (Section 7 (d) of the Act).

Secondly, the potential of Commissions to transform themselves into political weapons, to be used at will by their masters and mistresses as the case may be, is high. As Sri Lanka's history illustrates, while some Commissions have been admirable in their conduct and proceedings, others have been less reticent.

Thus, the initiation of criminal proceedings based on evidence collected by such bodies is fraught with danger. And though the amendment contemplates the Attorney General's sanction as a condition precedent to the institution of criminal proceedings, great faith cannot be placed in the office of the Attorney General in this respect, given the tremendous political pressures that this office has been subjected to in recent decades.

What should be emphasized further is that the contemplated amendment has several purposes and is not, (contrary to popular perception), merely aimed at allowing a Commission to sit in the absence of its total membership. Among its other more important purposes is allowing a Commission to "investigate or inquire or both to investigate and inquire, as the case may be…" rather than merely authorizing the Commission to 'inquire', which is the wording of the existing provision.

As may be recalled, the 2006 Commission had, for the better part of last year engaged in 'investigations' which was not open to the public nor indeed, to those persons intimately concerned with the nature of the incidents that were being inquired into by the Commission. It was only in late December 2007, (if memory serves me correctly), that the Commission declared the holding of 'public inquiries' and opened their sessions to the public as well as the press.

The previous Commission had generally engaged in a single process of inquiry rather than a two staged process of investigation cum inquiry with some opening its sessions to the public and others preferring to hold their sittings in camera. The 1991 Presidential Commission of Inquiry into the Involuntary Removal of Persons (PCIIRP) appointed by President Ranasinghe Premadasa (roundly criticized both for its lack of efficacy as well as for its secretiveness) however engaged in a two stage process of investigation and then inquiry. As noted by the Commissioners to an Amnesty International team visiting Sri Lanka in 1992; 'When complaints are received, they are first investigated by a team of ten investigating officers under the direction of the Chief Investigating Officer who is a retired policeman. Once they have established that there is prima facie evidence of disappearances, relatives are called to Colombo to give evidence…..once the evidence has been collected, the senior state counsel assigned to the Commission decides whether there is sufficient evidence available to proceed to a public inquiry before the five Commissioners." The question was however as to whether this much touted stage of 'confidential investigation' was an euphemism for a far more unpleasant task of 'weeding out' what cases or witnesses may be innocuous enough to be brought before the public at the stage of 'public inquiry'.

Though the PCIIRP was an example of a Commission that followed such a two staged process, this was hardly a worthy example to be emulated. And it remained a matter of some contention as to whether the Act itself permits such a two staged process, which controversy is perhaps sought to be minimised now by the bringing of such an amendment to the Act. However, the question as to whether this amendment would rationalize (I hesitate to use the term 'legalise') the 'confidential investigations' already engaged in by the 2006 Commission last year is more complex given that the amendment cannot have retrospective effect. This is a question that could relevantly be given further thought in a more detailed analysis of its functioning.

Let us however proceed to examine what is required from the Commission inquiry in so far as the public is concerned. There is no doubt that the Commission's inquiry should relate to, not only identification of the perpetrators of the crimes but also interrogation of general questions as to whether the State engaged in prompt and effective investigations and whether the legal process was procedurally as well as substantively fair. The latter point would include the question as to whether the officers of the Attorney General had performed their duties according to law in respect of the cases under inquiry. This would be the principle even if acts of non-state actors were in issue.

The question however as to whether the extended mandate of the Commission allows such an expansive inquiry is an aspect that will be examined next week. Regardless, the importance of these questions is high. For example, if one were to take the execution style killings of the Action Contra L' Faim aid workers in August 2006 which is a key case being investigated by the Commission, the nature of the evidence put forward by the military and the government would be central to the question of evaluating the government's bona fides.

Thus, were the records of the ongoing military operations in Mutur in 2006 accessed or produced? Were detention records or information relating to the cordon and search operation adduced? Was important information provided by parties and not followed up by government investigators? Were the needed witnesses identified and provided with concrete protection in order to enable them to testify? Seeming deficiencies apparent in the handling of the case such as its transfer from the Magistrate of Mutur to the Magistrate of Anuradhapura on a phone call made by the Secretary to the Ministry of Justice (with differing reasons being given by state officials), the drawbacks in the preservation of the scene of crime, the deficiencies in the forensic process (including the chain of custody being broken) are all relevant factors in this respect.

This column next week will critically examine the role of the Attorney General vis a vis the functioning of the 2006 Commission of Inquiry in the context of the extension of the Commission's mandate.

Further reflections on Commission inquiries and rights violations - Part One