Assessing Sri Lanka's presidential commission of inquiry

By Kishali Pinto Jayawardena

In a three part series commencing this week, this column will examine in detail the mandate and nature of the eight member Presidential Commission of Inquiry, (the Commission), established by the Government of Sri Lanka in 2006 in order to probe into fifteen selected incidents of assassinations, extra judicial killings and disappearances.

These cases include the assassinations of Minister Lakshman Kadirgamar, MP Joseph Pararajasingham, Kethesh Loganathan, the execution style shooting of 17 aid workers in Mutur and killings in Mutur, Trincomalee, Sancholai, Pesalai Beach, Kayts Police area, Pottuvil, Kebithagollawa, Welikanda, Digapathana and the disappearance of Rev Jim Brown, all of which occurred at varying points of time during 2005 and 2006.

The Commission (due to commence its formal sittings early next month) will be 'observed' by eleven 'eminent persons' whose functioning is also governed by a mandate issued by the Presidential Secretariat. While some nominations have invoked controversy, there is no doubt that Sri Lanka is fortunate to have had the inclusion of the highly respected former United Nations Special Rapporteur on Torture and current member of the United Nations Human Rights Committee, Nigel Rodley. Former Chief Justice of India, P.N. Bhagwati functions as the Chairman of this panel of observers.

The Government has been strident in its assertions that this Commission will constitute an effective mechanism in re-establishing accountability for rights violations in Sri Lanka. Consequently, the mandates of both the Commission and the international observers will be analysed in detail to see whether this is indeed, the case. In so doing, I will underline the fact that we have had enough of Commission Reports and Sessional Papers that have merely languished in the desks of bureaucrats.

On the contrary and insofar as killings allegedly by government forces are concerned, given the pervasive climate of impunity that has prevailed for decades, (aided by extraordinary emergency laws allowing abuses), an effective pattern of prosecutions will be the only actual deterrent. Yet, is the Commission satisfactorily structured to realise this objective? Where petitions involve issues of service responsibility as factually and immensely complicated as those relating to prosecutions for extra judicial killings, can they be satisfactorily resolved by fact finding Commissions of Inquiry as well as the law and procedures applicable to command responsibility and burden of proof as are currently in force? These are the questions that will be investigated.

Act No 17 of 1948 (the law under which the Commission is established), was enacted primarily to provide for small local inquiries concerning the administration of any department of Government or the conduct of any member of the public service among other things. It is very clear that while this law may have been suitable for that purpose, it was not meant to be used for complex inquiries such as investigations into extra judicial killings.

Page 2 of the mandate of the Commission affirms its fact finding nature in that its investigations are stated to facilitate and enable the President "to present the relevant material to the appropriate competent authorities of the Government of Sri Lanka including the Attorney General" towards efficacious prosecutions. Thus, it does not automatically follow that immediate prosecutions will ensue from the recommendations of the Commission.

Rather, in a context where the Commission has itself, no separate investigative powers or investigative staff, it will function purely as a body before which aggrieved persons may present their versions (often differing) of the violations in issue. This will obviously accomplish little. Past practice of the work of similar Commissions has indicated this very well. One immediate comparative instance concerns the four 1994 Presidential Commissions of Inquiry to investigate the Involuntary Removal or Disappearances of Persons which was appointed under the very same law in terms of which the current Commission has been constituted.

Out of these four Commissions, the Commission investigating the Disappearances of Persons in the Western, Southern and Sabaragamuwa Provinces (hereafter the Western Province Disappearances Commission) remain the best example of the futility of processes of this nature, even if the Commission itself functions satisfactorily.

Some 10,000 witnesses gave evidence before the Western Province Disappearances Commission, which found the security forces responsible for a large part of the disappearances. However, the prosecutions that followed from these findings were negligible. Despite the fact that tens of thousands of such cases are thought to have occurred in the past, we have had only nine cases of convictions since 1998.

A major reason as to why findings of Commissions of Inquiry are not used in the actual prosecutions relevant to those cases is primarily because the standards of proof used in both contexts differ in substantial respects. The commission inquiry will hear evidence of those affected, which may at times be ex parte. In addition, the provisions of Act No 17 of 1948 stipulate that hearsay evidence (statements by third parties) may also be heard, which evidence would however be inadmissible in an actual prosecution.

However, the High Court before which prosecutions may be brought will consider the specific question as to whether particular service officers specified in the indictment were responsible beyond all reasonable doubt for their complicity in that particular crime. Hearsay evidence will obviously not be admissible for that purpose.

Next week's column will examine past examples where despite Commission findings in respect of the culpability of senior army officers, these officers were acquitted in prosecutions precisely as a result of what has been highlighted above. It will stress the necessity for rigorous changes in the law incorporating internationally accepted norms of command responsibility among other factors, in order that an effective prosecutorial strategy may be enabled. Undeniably, rather than the continued enthusiastic endorsing of fact finding procedures, this is what is currently imperative.