The BBC Sinhala Service today quoted the Presidential Commission of Inquiry to Investigate and Inquire into Serious Violations of Human Rights (CoI) as stating that it could not recruit independent lawyers to assist the probe due to financial constraints. The report further stated that the two senior lawyers have volunteered to assist the CoI. The commission has to depend on the lawyers from the Attorney General’s Department due to lack of capacity to recruit independent lawyers for lack of funds.
The IIGEP in their final report pointed out some serious defects affecting the operation of the CoI which included the absence of the financial independence of the commission.
The most glaring defect that was pointed out was the absence of a witness protection law and a witness protection programme. Although a draft law was brought to the Supreme Court and announcements were made about it being taken up urgently, the law was not taken up as the parliament was prorogued. Meanwhile, an incident was reported where a witness complained of being threatened by two officers at the CoI inquiry during a tea break.
It is perhaps worth repeating the basic criticisms made by the IIGEP and the recommendations that were made:
1. A conflict of interest in the proceedings before the Commission
2. Lack of effective victim and witness protection
3. Lack of transparency and timeliness in the proceedings
4. Lack of full co-operation by State bodies
5. Lack of financial independence of the Commission
The IIGEP has recommended the following to the president of Sri Lanka:
1. That the President should ensure that all State bodies comply with international norms and standards and his directive to provide full disclosure of information and cooperation to the Commission.
2. The Government should respect and implement the internationally agreed doctrine of command responsibility as part of the law of Sri Lanka, whereby superiors of those who have committed criminal acts may also be held responsible.
3. The Government of Sri Lanka should establish, as a priority, a workable, effective and permanent system of victim and witness protection. The Commission should endeavour to train the staff of its victim and witness protection unit in order to provide the optimum level of security and assistance to potential witnesses. The IIGEP also calls for the establishment of a facility whereby essential witnesses, who have left Sri Lanka, and who can continue to give first hand evidence as to some of the events under examination by the Commission, can give their oral evidence to the Commission by video-links under conditions of complete safety. In this respect, international support to the Commission has proven critical.
4. The Commission of Inquiry should include in the course of its inquiries an examination of the reasons for systemic failures and past impunity in relation to the cases under review, and consider the making of recommendations for the eventual appointment of independent special prosecutors in cases in which the security forces have been involved in serious human rights violations.
5. The Government of Sri Lanka should provide the immediate and necessary financial resources to the Commission of Inquiry, and place adequate funds at its disposal, to enable it to fulfill its mandate.
6. The Government of Sri Lanka should not entrench the role of the Attorney General as counsel assisting the Commission of Inquiry through legislation.
As the AHRC has pointed out earlier these are not just aspects that need to be addressed to the CoI but the entire criminal justice system which has been in a dysfunctional state for some years now.
For further information please see: Sri Lanka’s Dysfunctional Criminal Justice System which may be found at: http://www.ahrchk.net/pub/mainfile.php/sldysfunctional/
