Focus on Rights

This is the concluding segment of a three part series of articles critically examining the recently established eight member Presidential Commission of Inquiry, (the Commission), to probe into fifteen selected incidents of grave human rights violations that had occurred in the country during 2005 and 2006. A team of international "eminent persons" will observe the Commission's work and the functioning of both bodies will be in accordance with their particular Mandates.

Some eminently commonsensical points may be disposed of first. The fifteen incidents selected for the scrutiny of this fact-finding body are only a minute fraction of similar abuses that continue to take place even as this column is being written. Is it not discriminatory, if not wholly irrational that some incidents have been selected for inquiry by this special process while others have been exempted? On what basis has this selection been done and the spatio-temporal limits of the Commission's mandate defined?

In addition, problematic conditionalities govern the release of the findings of the Commission in regard to which, the President can withhold the publication of any material which is in his opinion, "prejudicial to or absolutely necessary for the protection of national security, public safety or wellbeing." Curiously, different grounds seem to govern the release of the reports of the Commission and the International Observers. It seems that though at an early stage, both mandates used the same vague term of 'public safety and well being', the Mandate of the Observers (see the supposedly final version of the Mandate of the International Observers dated November 24, 2006 and signed by the Secretary to the President) was changed later to the more rigorous wording of 'national security' and 'public order' while the Mandate of the Commission remained the same.

Meanwhile, ambiguities in the relevant last paragraph of the Mandate of the Commission leaves the publication of its Report dependant upon yet another contingent factor; namely that the publication should be immediately after the Attorney General decides to prosecute and files indictment for that purpose. The question then arises; what would be the situation if the Attorney General decides that there is not enough prima facie evidence to prosecute? Or, for that matter, in a country where the indictments take up to two years even in the case of ordinary crimes, what if there is interminable delay in the issuance of the indictments? Would the Report then not be made public till all these conditions are complied with?

From the question of publication we should proceed to the issue of prosecution. The Mandate of the International Observers contains a clause that permits objections to be made public when the Attorney General unlawfully or unreasonably refrains from instituting prosecutions on the findings of the Commission. It is however relevant that the Commissioners are directed 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.

By itself, this stipulation seems innocuous. After all, the relevant standard should indeed, be "the applicable laws and legal principles of Sri Lanka." But then, what would be the case if such laws and standards are manifestly inadequate to deal with the complexity of war crimes that the Commission will undoubtedly be called upon to deal with? 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?

Last week's column looked at a singular instance of the Embilipitiya Case concerning the abduction of twenty four Sinhalese schoolchildren with intent to kill by officers of the army during the height of the Janatha Vimukthi Peramuna insurrection in the late eighties. In this instance, the Attorney General did, in fact, prosecute Brigadier 'Parry' Liyanage, the district coordinating military secretary and hence in effective charge of the military for that area. Notwithstanding the fact that a fact-finding Commission of Inquiry into Disappearances had found a measure of responsibility on the part of this senior army officer, he was acquitted in the High Court due to the finding that no evidence could be found directly linking him to the abductions.

This was a good illustration of the absence of the doctrine of command responsibility in our criminal law. Principles of the Rome Statute on the International Criminal Court imposing responsibility where a commander either knew or should have known that such crimes were being committed by forces effectively under his or her command, and failed to take all necessary and reasonable measures to prevent the commission of the crimes or to have them investigated, (Article 28), are important in that regard.

But apart from the criminal law, it is disturbing is that even in a different judicial context of exercising its jurisdiction pertaining to fundamental rights violations, Sri Lankan judges have been wary of emphasizing the doctrine of command responsibility in situations of conflict. For example, following Brigadier Liyanage's acquittal referred to above, he subsequently won a fundamental rights case against his non-promotion to the rank of Major General. The Supreme Court took the contested position that in the absence of direct involvement in the disappearances, Brigadier Liyanage merely occupied 'a place of authority in the chain of command.' (see SC Application No;506/99, SCM dated 25.11.99). To give the proverbial devil her just due, it must be said however that despite the direction of the Court, then President Chandrika Kumaratunge refused to make the promotion.

In puzzling contradistinction, the Supreme Court has been far more receptive to applying the doctrine of command responsbility in situations of ordinary law and order. For example, in Silva vs Iddamalgoda, ( 2003 [2] SriLR, 63) and in the Wewelage Rani Fernando Case SC(FR) No 700/2002, SCM 26/07/2004,) the officer-in-charge of a police station and senior prison officials were respectively held liable, not on direct involvements in the acts of torture but rather, on their non-action.

These paradoxes are understandably bewildering to human rights activists who tend to shy away from rarefied battles over obscure points of legal theory in the courtrooms. Yet there is no doubt that the reform of the legal/justice system and the law itself is key to ensuring rule of law norms in times of conflict. Ideally, the Commission process and the involvement of an independent objective element through the international observers could be used to urge such a process, including the establishing of an effective witness protection programme.

In the alternative, we will be reluctant observers of yet another dilatory, obfuscatory 'fact-finding' process with no perceptible impact on a prevalent culture of impunity and a manifest lack of prosecutorial/judicial will.