Further reflections on commission inquiries and rights violations

By Kishali Pinto Jayawardena

In the intervening period since last week's column, the amendment to the Commissions of Inquiry Act, Act No 17 of 1948 was passed by Parliament. The contents of this amendment were discussed last week. The objective of this week's analysis however is to focus on the vitally important interaction of the Department of the Attorney General with a Commission of Inquiry in the context of this country's recent history.

The Role of a Commission of Inquiry
It is axiomatic that a Commission of Inquiry which occupies itself solely with the investigative function in respect of an extraordinary human rights violation cannot claim any credibility or indeed expect that their findings would be vested with any significance. This is because the perennial failure to bring perpetrators to justice in Sri Lanka, (which failure is of public notice and established through numerous case studies that have been referred to previously in this column and elsewhere), is not limited to the failures in investigation alone. Rather, such failure encompasses the prosecutorial function as well. It is, after all, a matter of even the most commonplace understanding that given a rare instance where the investigations are conducted with the highest integrity, these efforts would come to naught if the prosecutorial function is not attended to with a similarly high degree of integrity.

Should Conduct of State Law Officers be removed from a Commission Inquiry?
So when a Commission of Inquiry is appointed to inquire or investigate into extrajudicial executions or involuntary disappearances, should its ambit of inquiry exclude examination of the prosecutorial function in those cases that are the subject of its inquiry or investigation? Should the role and conduct of state law officers be postulated as over and above the scrutiny of Commissioners? In this respect, it is important to draw a distinction between the judicial function and the prosecutorial function for this argument does, at no point extend itself to such a point of absurdity as to affirm that the judicial function ought to be scrutinized or critiqued by a Commission of Inquiry. However, the prosecutorial function is vastly different and as would be argued, should form the legitimate subject of a Commission Inquiry if the circumstances so warrant it.

On the other hand, if attempts have been made to exclude the prosecutorial function from the ambit of such inquiry, this raises a fear justified on the very basis of the exclusion itself, that the exclusion has as its basis, the need to protect something untoward. In fact, such an unnecessary exclusion may raise fears that are irrational and which may not be cause for concern, if not for that very exclusion itself.

The Recent Extension of the 2006 Presidential Commission of Inquiry
This question becomes eminently relevant in the context of the recent extension of the mandate of the 2006 Presidential Commission of Inquiry to Investigate and Inquire into Allegations of Serious Human Rights Violations (hereafter the 2006 Commission) for a further one year (up to 2nd November 2008). The extension was however subject to an additional condition that' The Commission is not required in any way to consider, scrutinize, monitor, investigate or inquire into the conduct of the Attorney General or any of his officers with regard to or in relation to any investigation already conducted into the relevant incidents. However, the Commission could continue to obtain the assistance of officers of the Attorney General's Department."

The rationale of such an additional condition being attached to the Warrant of the Commission which was absent in the original Warrant raises grave questions as to the propriety of the extension. The original Warrant merely stated that the Commission should cause independent and comprehensive investigations into the serious violations of human rights as specified in the Warrant and other incidents. That the actions of the Attorney General or his officers would form part of that investigation was a matter of assumption if (and I repeat) the circumstances so warrant it.

The Richard de Zoysa case as comparative analysis
For good comparative analysis, let us take the 1994 Presidential Commission of Inquiry to investigate the Involuntary Removal or Disappearances of Persons in the Western, Southern and Sabaragamuwa Provinces, (Sessional Paper No V - 1997), (hereafter the 1994 Western, Southern and Sabaragamuwa Disappearances Commission). This was, as may be recalled, one of three Commissions appointed by the then President Chandrika Kumaratunge to inquire into the estimated 40,000-60,000 persons 'disappeared' variously at the hands of the Janatha Vimukthi Peramuna (JVP), government troops or paramilitaries during the eighties and the early nineties.

Out of the eight 'special cases' examined by this Commission, the abduction of Richard Manic de Zoysa on 18.02.1990 occupied a particularly central place. While the circumstances of the abduction and extra judicial killing of this incandescent journalist and communicator is of frequent public reference, the role played by the state law officials of that time in preventing the legal apprehension and punishment of the perpetrators of this killing is less well known. In the first instance, the police investigations into his murder were close to non-existent; crucial documents such as the report of the investigations and a summary of witness statements were not filed at the magisterial inquiry despite repeated requests by the magistrate. Due to an intervention naming the perpetrator by De Zoysa's mother, Dr Manorani Savaranamuttu, the arrest and detention of SSP Ronnie Gurusinghe was ordered by the magistrate. However, the police claimed that there was insufficient evidence to arrest the accused, which claim was strongly supported by state counsel intervening on behalf of the Attorney General on a later date. The evidence of de Zoysa's mother was deemed to be irrelevant and the proceedings were terminated. Further investigations were not evidenced and there was no prosecutorial intervention evidenced to pursue the matter further.

These highly suspect actions of the state law officers were subjected to stringent criticism by de Zoysa's lawyer as well as by others, (Weerakoon, Batty, (1991) The Extra-Judicial Execution of Richard de Zoysa, Star Press, published by the author). See also Civil Rights Movement, The Next Step in the Richard de Zoysa Case' E-01/9/90. and Civil Rights Movement 'Death Threats in the Richard de Zoysa Case' Civil Rights Movement, E-01/6/90).

In this regard, the 1994 Western, Southern and Sabaragamuwa Disappearances Commission did not shy away from examining this seriously flawed (to use a polite term) prosecutorial intervention in the de Zoysa case(see Volume Two of its Report (31.05.1997)). Instead, it documented the position of the Attorney General presented to the magistrate and further, called for the Attorney General to direct that the Inspector General of Police conduct further investigations as earlier directed. None of these directions were however implemented. Years later, the case remains unsolved. The overwhelming majority of extrajudicial executions/enforced disappearances of Sinhalese and Tamil civilians during this period suffered the same fate; namely inadequate investigations and lackadaisical prosecutions.

Disproving Legal Accountability for Rights Violations
In such a context, it becomes relevant to question as to why, (if the prosecutorial function was deemed to be a legitimate subject of inquiry by the 1994 Commission), should the prosecutorial role be specifically removed from the ambit of inquiry of the 2006 Commission? Why is it that the Commissioners themselves have submitted so tamely to these unwarranted limitations in the extension of their warrant?

Apropos, it was the subject of some press reports recently that some Commissioners and the Secretary to the Commission were considering resigning due to contemplated 'pay cuts' that they deemed 'insulting.' To my mind, the greater insult would have been offered, (not by the pay cut which incidentally has been reversed consequent to the publicity), but by this limited extension of their Warrant against which the Commissioners should have protested vigorously if they had real commitment towards their assigned task of bringing about a difference to the rampant culture of impunity in this country.

In the alternative, (as is popularly coined), this only becomes a further nail in the dismal coffin of legal accountability for human rights violations in Sri Lanka.