Discussing mock turtles and commissions of inquiry

By Kishali Pinto Jayawardena

The discovery this week that the Government intends to amend the Commissions of Inquiry Act, No 17 of 1948 (as amended) in order to interalia, permit the Attorney General to institute criminal proceedings based on evidence recorded at a Commission of Inquiry proceeding, reminds me of the famously satirical lament made by the Mock Turtle in Alice in Wonderland when it observed dismally that "once, I too was a turtle."

Perhaps for the less imaginative, it may be difficult to conceive as to precisely why the latter should call into mind, the former. The similarities in the two situations are however succinctly explainable. A Commission of Inquiry, in its formation, character and functioning does not approximate to a legal body in any sense of the word as much as Lewis Carroll's Mock Turtle cannot equate itself to the real thing, regardless of its laments.

To take this argument further, what exactly is the 'mischief' that these draft amendments are meant to remedy? If its objectives are better investigations and the greater deterrence of the law, then what is needed is not the vesting of Commissions of Inquiry with increased powers and conferring legal legitimacy to their findings. Rather it is the ensuring that criminal investigations are done efficiently, independently and fairly by those legally empowered to do so as well as the systematic revision of the criminal law, criminal procedure and laws of evidence in particular. This is the case whether the matter concerns the malfunctioning of a Municipal Council or extra judicial executions and enforced disappearances. What we have however is the virtual replacement of these legal imperatives by 'mock mechanisms.'

Such moves have inimical impact in a very specific sense. By their very definition, Commissions of Inquiry are not called upon to function within the law. While space in this column does not permit a detailed examination of all the characteristics that differentiate Commissions of Inquiry from legal bodies, it may suffice to describe some. For example, a Commission does not necessarily comprise legally trained persons and is indeed, allowed by Section 7 (d) of the Act to (notwithstanding any of the provisions of the Evidence Ordinance), admit any evidence, whether written or oral which might be inadmissible in civil or criminal proceedings. Unlike a court which is subject to strict rules in this regard, Commissioners may declare that their proceedings not be open to the public.

These are all features that were thought perfectly appropriate in 1948 for fact finding bodies of this nature with a limited mandate. Their findings were deemed as merely recommendatory in nature, not involving the infringement of rights which, in turn, would make the findings amenable to judicial review. As the politically subverted use for which Commissions of Inquiry were employed increased with the passage of time, many Commissions resorted to the admittance of hearsay evidence while also closing their hearings to the public.

Some transformed themselves into potent political weapons in the hands of their political masters or mistresses as the case may be. Examination of the various Commissions appointed particularly in regard to inquiry into grave human rights violations, (from the 1977 Sansoni Commission, the 1991 Kokkadicholai Commission, the 1994/1998 popularly termed 'Disappearances' Commissions to the 1995 Batalanda Commission, the so-called 'Truth Commission' of 2001 and the Bindunuwewa Commission, also in 2001), indicates the tremendous disparities in the way in which each Commission functioned. While some tried their best to act impartially, others were less circumspect.

In some instances where rights of persons were in fact infringed by commission findings, as for example when arbitrary disciplinary action was taken against certain police officers consequent to the findings of the Batalanda Commission of Inquiry, the Supreme Court quashed the actions for want of natural justice. Thus, allowing the potentially abusive character of these Commissions to remain on the statute book while merely conferring greater powers upon them gives rise to an uneasy mix of legal and extra legal elements. Worse, it leads to a dangerous question; will these Commissions be used to witchhunt persons out of favour with the current political establishment?

Of course, the contra argument may be that as the Attorney General is left to decide as to whether the findings of a Commission of Inquiry warrant being taken further in the legal process, such discretion may suffice to prevent any abuse of the process. But this again, is to repose a touching if not quite misplaced faith in the sanctity of the opinion of the Attorney General. As we have seen in the past, instances where the Attorney General of Sri Lanka has acted with a blatant political motive are not hard to enumerate. And to meet the storm of criticism that such a comment may give rise to, some historically valid examples prove this point; as for instance, the manner in which the then Attorney General colluded with the police to 'cover up' investigations into the death of acclaimed journalist Richard de Zoysa in 1990. The culpably shameful manner in which this occurred has been recorded in a revealingly blunt manner by de Zoysa's lawyer at that time, Batty Weerakoon.

In fact, the happy collusion of officers of the Attorney General with politically motivated Commissions of Inquiry is also a matter of historical fact. Rajan Hoole, in his inimitably styled book "The Arrogance of Power; Myths, Decadence and Murder, University Teachers for Human Rights (Jaffna) 2001" pointed to the way in which the assistance of then Deputy Solicitor General G.P.S de Silva (later, Chief Justice of Sri Lanka) was dispensed with, in regard to the Sansoni Commission. Though this withdrawal was ostensibly cited to be due to personal reasons, the actual reason was government displeasure with the fair manner in which evidence was being led by then DSG de Silva. His place was taken by a state counsel whose manner of leading the police witnesses were objected to by the lawyers appearing for the victims of the ethnic violence in 1977 but to no avail.

In fact, political influences besieging the office of the Attorney General have been the reason as why those who with a modicum of integrity have been unable to serve independently; witness for example, the many trials and tribulations that beset former Attorney General K.C. Kamalasaybeyson during his term in office. Suffice therefore to say that the functioning of the office of the Attorney General has long since departed from its theoretically independent character, as it were.

Insofar as these amendments are concerned, there are many troubling aspects, the further examination of which necessarily needs to left for another forum. But, one final question remains; why are these amendments being brought forward as an urgent bill? Surely their import calls for adequate public discussion and debate? Indeed, if there had been prior public scrutiny, much of the alarm that is being felt now may have been dissipated. Are these not questions that go to the very heart of the Government's commitment, (if such remains), to the Rule of Law?