This article by Kishali Pinto Jayawardene appeared in the Sunday Times on July 19, 2009 ¡V Editor).
The recommendation of the 2006 Commission to Investigate Serious Human Rights Violations (the Udalagama Commission in short) that a permanent Commission should be established to investigate violations is by far, the most remarkably asinine recommendation that one has been privileged to witness in recent years. A Commission of Inquiry is called upon to perform the investigative function that is ordinarily entrusted to the police but where, due to situations of extraordinary conflict, the police have not been able to engage in its task satisfactorily. It is by its very logic, necessarily of a temporary character since otherwise, this would amount to the abdication of the normal investigative systems in a country and imply a failed state in the most profound sense of that term. Putting a permanent Commission into place is consequently objectionable in more ways than one.
Proper working of the ordinary investigative and prosecutorial function
The problem in Sri Lanka has always been that the militarization of the police and the subversion of its command structure by the politicians have resulted in investigative systems being crippled to the extent that even honorable police officers are unable to work properly. They are transferred out, demoted or disgraced. The primary prosecutorial arm of the State, namely the Department of the Attorney General has also been plagued by excessive politicization. Here too, state lawyers, including at times, the Attorney General himself have been at the receiving end of retribution by the executive if they refused to jump when the whip was cracked. The twin impact of this has resulted in implementation of the rule of law being reduced to a joke.
It is this which needs to be remedied rather than the establishing of a ‘permanent’ Commission on which funds would be wasted to no account and whose reports would be treated cursorily by the government of the day, whether this political regime or others. We have seen the fate of the ‘permanent’ and ‘independent’ National Police Commission and the National Human Rights Commission.
Meanwhile the reports of Commissions of Inquiry established for countless reasons ranging from corruption in the public sector to failed finance companies and irregularities in the Department of Inland Revenue are yet to shrouded in mystery. The funds that have gone from the public coffers (comprising citizens’ tax funds as well) to maintain these bodies are colossal. In questions asked in Parliament by opposition members in December 2008, it was revealed that millions of rupees have been squandered on these commissions to no purpose. The distaste that grips the public mind upon even hearing the term’ Commission of Inquiry’ is therefore palpable.
An Office of an Independent Prosecutor
Insofar as this particularly asinine suggestion regarding a permanent Commission of Inquiry is concerned, a far more sensibly relevant recommendation has been made by one past Commission, namely the 1994 Commission of Inquiry into the Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces, (Sessional Paper No. V-1997). This relates to the setting up of an Office of Independent Human Rights Prosecutor as an institution similar to the Commissioner of Elections and the Auditor General, with funds provided by Parliament and charged on the Consolidated Fund. This office would have powers to supervise and direct investigations, with ideally, a dedicated team of police officers for that purpose. Though the problem of guaranteeing the independence of such an Office is undoubtedly significant given the pervasive politicization of Sri Lanka’s governance processes, it is infinitely more preferable than a permanent Commission to inquire into human rights violations, which recommendation (again) beggars the imagination.
The rest of the Udalagama Commission’s recommendations comprise a sad litany of previous recommendations made by more than eleven such Commissions of Inquiry appointed by successive government since 1977. They include the suggestion that the doctrine of command responsibility be included in the country’s penal statute, that the military should be provided training and that the amount of compensation payable to victims be increased. These are all factors adverted to by previous bodies including most particularly the 1994/1998 Commissions of Inquiry appointed by Chandrika Kumaratunga to inquire into post 1988 mass scale disappearances. Their reports, in fact, are far more comprehensive on this count than any other body.
The one concrete finding made by this most recent Commission is its (reported) conclusion that, the initial police investigations into the cases being inquired into lacked any semblance of professionalism. It must be noted that this, in turn, reflects on the liability of the State itself as responsibility may arise not only due to direct responsibility of state forces for a violation but also due to the failure on the part of the authorities to conduct effective investigations in that regard.
Integrity of the Commission process
But we are now onto related questions. Is this all, pray, that this Commission could come up with after more than three years of sittings? What about questions of integrity relating to the Commission process itself? For example, the inquiry process has been marked by the progressive resignations of some of its Commissioners. We would like to know the reasons for these resignations and as to whether they were propelled by reasons of conscience as much as, for example, Supreme Court judges left the Judicial Service Commission in the term of former Chief Justice Sarath Silva some years back. It is time that the veil of secrecy is torn away in respect of these happenings. These bodies are, after all, maintained by our public funds as well.
And what, meanwhile, is one to say of the interaction of the Attorney General’s Department with this Commission? In an opinion given in 2007 or thereabouts on the integrity of state law officers assisting the Commission process, two senior and much respected Justices of the Supreme Court unequivocally expressed the view that the involvement of at least one senior state lawyer with the Commission raised a clear conflict of interest given that he had himself been directly involved in previous investigations into the cases being inquired into.
Thus, there was a possibility that he may have been required to come before the Commission as a witness in respect of testifying to the ‘adequacy and propriety’ of such investigations. Though these queries were raised numerous times in the public forum as well, they were summarily brushed aside by the Commission. The body’s so called witness protection programme was also a farce.
Singularly unfortunate fate
Ultimately this Commission achieved the singularly unfortunate fate of not being appreciated either by the victims whose cause they were supposed to inquire into and ensure justice or by the government, which summarily terminated the body before it had finished inquiring into even half of its mandated cases.
Undoubtedly this remains one of the worst such experiences in recent times.
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