Further reflections on commission inquiries and rights violations - Part Three

By Kishali Pinto Jayawardena

Former Chief Justice Miliani Claude Sansoni was a man fighting a battle with himself. During the later stages of the Commission hearings, he remarked to a confidante gravely "I have never before headed a political commission."

In judging Sansoni's Report, we must go beyond the individual and take into consideration the milieu in which he was working. In a context where the politics of the nation is wayward and the executive both too powerful and thoroughly unscrupulous, to expect a good commission report on a matter involving high stakes, is to expect too much from individuals."

– Hoole, Rajan. (2001) 'The Citizenship Acts and the Birth of the Federal Party', in Sri Lanka, The Arrogance of Power; Myths, Decadence and Murder, University Teachers for Human Rights (Jaffna), Wasala Publications, Colombo, at page 37.

The above observation by one of the UTHR founders in his seminal study, (powerfully pertinent though it may seem to the present), was made decades back, in relation to an inquiry process into the communal violence during 13th August and 15th September, 1977.

Let us examine the contextual relevance of this observation to the Sansoni Commission and particularly the interaction of the officers of the Attorney General with the Commission. This analysis is pertinent as the objective of the three part examination of Commissions of Inquiry and Rights Violations, (of which this week's column is the concluding segment), is limited to analysis of the role of the Attorney General in regard to Commissions appointed to inquire into grave rights violations.

The Sansoni Commission and the Attorney General

Indeed, the Sansoni Commission presents us with a good example of the tremendous complexity of this relationship. Comprising former Chief Justice M.C. Sansoni, the Commission was appointed by the then President JR Jayewardene on 9th November 1977 and sat for some two hundred and ninety eight days, at Jaffna, Anuradhapura, Kandy, Colombo and Trincomalee. Its sittings were attendant with many difficulties, including official resistance as, at one point, the refusal of the Kandy police to furnish their Information. The Commission also faced some threats during its sittings. Its Report, though decidedly sympathetic to those persons of Tamil race who had faced death, injury and destruction of property during that period, fell far short of a robust condemnation of the events. The few perpetrators that it identified were never prosecuted.

What is interesting however is the fact that a senior state officer, Deputy Solicitor General GPS de Silva (later Chief Justice of Sri Lanka) withdrew from assisting the Commission, ostensibly for personal reasons. However, as Hoole observes, this withdrawal was more due to a disinclination to play in line with the Government's preferred method of leading the police witnesses. His place was taken by a more compliant state law officer, state counsel ADTMP Tennekoon. It was not long before this state counsel's partiality towards the police witnesses was taken exception to by lawyers appearing for organisations intervening on behalf of the victimised people. These objections were dismissed by Sansoni as being unjustified (Sessional Paper No VII-July 1980, at pages 19 and 20).Yet, as commented upon in this column previously as well, it has been established in historical retrospect that the objections had a great deal of merit to them.

The Sansoni Commission Report was one instance where tensions arising from the part being played by officers of the Attorney General in the functioning of the Commission, bubbled to the surface. During the years that have passed since this Commission was appointed, similar tensions in relation to other Commissions of Inquiry have played themselves out in the corridors of legal and political power without the public ever being made aware of the same. Though space does not permit a more detailed examination of these issues, it suffices to raise questions as to the proper role of the officers of the Attorney General in relation to Commissions appointed to inquire into grave human rights violations.

The vulnerability of the Office of the Attorney General

It is quite clear that this question is even more prominent now than at any time in the past given that, (despite being theoretically independent), the vulnerability of the office of the Attorney General to political pressure has increased exponentially. Is it proper for the Attorney General to be called upon to assist Commissions of Inquiry tasked with handling inquiries that are politically sensitive to the highest degree? Then again, is it proper that such assistance is required, particularly in the current context where the faults, (willful or otherwise) of the prosecutorial process are as much to blame for the culture of impunity as faults in the investigative process? Should not an insistence that the officers of the Attorney General be involved in the inquiry process tantamount to an insistence that the police be put in charge of investigating allegations of abuse by police officers, which, as well summed up by that pithy Sinhalese saying, is similar to 'asking the mother of the thief to identify who the thief really is?" (horage amma gen pena ahanawa wage).

While the insistence of the International Independent Group of Eminent Persons (IIGEP) that officers of the official bar should not be called upon to serve Commissions of Inquiry raised a storm of aggrieved protests at the time, these objections do have legitimacy in the current context. Last week's column took the case of Richard de Zoysa to illustrate the manner in which active interventions of the Attorney General's Department were responsible for the failure in justice. Here again, examples of other similar cases are manifest, the examination of which belongs to a more detailed study rather than a newspaper column.

In Richard's Case, if the Attorney General of the day had been asked to hand over a report accounting for the failures in justice, could an impartial and independent inquiry have been expected of him? These are uncomfortable questions perhaps but questions that need to be asked regardless. In that context, the question raised last week needs to be reiterated; could the extension of the mandate of the 2006 Presidential Commission of Inquiry to Investigate and Inquire into Allegations of Serious Human Rights Violations in a manner that precludes the Commission from examining the actions of the officers of the Attorney General in respect of the cases being inquired into, be justified in any way whatsoever?

The point here is not about holders of the office of the Attorney General, many of whom have attempted to discharge their duties bravely and honourably. One such example was, in fact, the immediate past Attorney General, K.C. Kamalasabeyson who was subjected to considerable political pressure and withstood these pressures to some extent, to the cost of further service at the official bar. The point here is about the vulnerability of the office itself to the political executive which cannot be denied however strenuously one may attempt to do so.

The 17th Amendment to the Constitution

It was precisely to negate such objections being raised that the 17th Amendment to the Constitution stipulated the office of the Attorney General to be among the high posts to which the approval of the Constitutional Council was required. Now, despite the so-called hurdle of the 'last nominee' having been cleared, President Rajapaksa refuses to make the appointments. Farcical reasons and puerile references to non-existent conditions in the 17th Amendment are advanced by government spokesmen as to the purported 'ineligibility' of former Auditor General S.C. Mayadunne. Worse, we are now told in an appropriately April Fool's joke, (except that we are still in the month of February), that ministerial guttersnipe Mervyn de Silva may be the Presidential appointee to the Council. Where does one, indeed, go from here?