It was reported in the Island newspaper on November 5th that President Rajapakse is expected to announce the possible appointment of an eight member commission of inquiry to investigate fifteen cases of abduction, disappearance and extrajudicial killings that occurred after 2005 (Eight-member local team to probe abductions, killings – by Namini Wijedasa). The immediate reaction from many persons has been to demand the terms of reference and the powers of this commission.
The Asian Human Rights Commission and its affiliated organisations in Sri Lanka support this call for the publication of the terms of reference of this commission. However, just as important is the fact that the people do have the right to know the basis of the selection of these fifteen cases. The equality of everyone before the law demands that all disappearances need to be investigated. In fact it is an obligation of the state to investigate each and every disappearance.
Disappearance is a heinous crime recognised by international law and the only way to investigate any crime is through competent and credible criminal investigations. Previous commissions such as a number of commissions that were appointed to investigate disappearances which took place in the late eighties were basically fact finding commissions which were of trivial importance from the point of view of discharging the obligation of the state to conduct investigations under criminal law with a view prosecute the offenders. If the present commission is to be based on the same model then it is worth nothing. The primary test of the credibility of the present commission is as to whether it will have at its service a component consisting of competent criminal investigators whose independence in conducting such investigations can be guaranteed.
Thus, we urge that the first question to be taken up about the terms of reference is that they have the powers and resources to cause competent and credible criminal investigations into all cases of abductions and disappearances. The criminal procedure code gives powers to criminal investigators to conduct searches, record statements, to cause forensic and other forms of investigations, arrest persons and to bring cases before courts. The meaning of a commission under the present circumstances should be to supervise and monitor the proper performance of such investigations and to receive reports as speedily as possible. Therefore this should be a central element of the terms of reference of the commission. The popular conception of commissions in Sri Lanka is that they are self serving and the public expectation is that they will end as a farce. Perhaps in the past those in authority wanted this to reinforce the people’s fear that their calls for inquiries in to gross human rights abuses does not end in anything other than a sham. This causes a popular feeling that justice is something that cannot be achieved within their local context, an advantageous situation to a state that wants to safeguard impunity.
Are we in for another farce? This is what the people need to ask themselves.
