PUBLIC STATEMENT – THE IIGEP REITERATES CONCERNS OVER THE WORK OF THE COMMISSION OF INQUIRY
On 18 September 2007, the International Independent Group of Eminent Persons (the IIGEP) submitted its second Interim Report to HE the President of Sri Lanka. The report contains details of the IIGEPs continuing efforts to ensure transparency and monitor the conduct of the work carried out by the Presidential Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (the Commission), in accordance with basic international norms and standards, as directed in the Presidential Warrant.
The IGEP had meetings with the Commission on 18 August 2007 and with HE the President on 20 August 2007 and highlighted a number of issues which continue to cause concern to members of the IIGEP.
The meeting with the Commission of Inquiry examined several issues of concern. These included the continuing slow progress of the Commissions investigations and inquiries, including the procedures being followed; the independence of the Commission in the light of its inclusion of the Official Bar as its Panel of Counsel; the continuing need for effective victim and witness protection and assistance; and inadequate disclosure of information.
The exchange with the Commission was thorough and amicable. The IIGEP took note of the important efforts of the Commissioners to speed up its procedures and become more personally involved in the examination of the witnesses. The parties agreed on identification of the main issues at stake. Nevertheless, the IIGEP still has serious concerns as to the outcome of the process.
The meeting with HE the President, which was useful and constructive, tracked a number of the same issues, with a particular accent on the budgetary aspects of possible solutions that would enhance the effectiveness and independence of the Commission.
Investigation Proceedings: The IIGEP remains concerned about the speed of the Commissions investigation process. The first investigation into the ACF case (the killing of 17 aid workers) commenced on 14 May 2007. Since that time, only a few witnesses have been examined. On 23 August 2007, the Commission commenced a second investigation into the killing of five youths in Trincomalee. Since the inception of the Commission, no public inquiry has been held and no substantial progress has been made into any of the mandated cases. While recognizing the practical steps taken by the Commission to accelerate the investigation phase, the IGEP considers that the Commission is unlikely to have completed any case before the expiry of the Commissions mandate in early November 2007.
The Commission has made a decision that all of the investigations are conducted in closed sessions, and not open to the public or the families of the victims or their lawyers. The IIGEP fears that this may undermine the transparency of the Commissions work. The IIGEP is also concerned that recent amendments to the organisational rules and procedures of the Commission imply that Commissioners can make a decision not to hold a public inquiry at the end of an investigation. While the Commission has said it will not decide against proceeding to an inquiry without involving the IIGEP, the IIGEP remains uncertain as to the purpose of an amendment that seems to allow the Commission to decide not to inquire into a case it has been mandated to inquire into.
Independence: The IIGEP reiterates its opposition to the leading role of the officers of the Attorney Generals Department in the Panel of Counsel to the Commission, which involves serious conflicts of interest. This situation lacks transparency and compromises both national and international standards of independence and impartiality that are central to the credibility of and public confidence in the Commission.
Following the public statements by the IIGEP in June, the Attorney General made objections to their contents in a public letter addressed to the Chairman of the IIGEP. While the Attorney General is, entitled to make objections to the contents of the IIGEPs public statements, the members of the IIGEP expect that their mandate and integrity be respected and any exchange of views be conducted in a manner befitting the high office of the Attorney General. Members of the IIGEP are of the opinion that the language employed was inappropriate, detracting from the substantive issues therein addressed by the IIGEP. It also failed to show a proper understanding of the very notion of conflict of interest, that is, where a person or body is confronted with having to address competing interests so that defending one may mean neglecting the other(s). Here, the Attorney Generals Department has to represent the Government of Sri Lanka, inquire into events that may have been committed in the name of the Government and even to defend its own actions regarding advice it may have given the police involved in the original investigations.
The role of the Attorney Generals Department in the work of the Commission therefore continues to render the process flawed. The IIGEP made an urgent request to the Commission to reconsider the involvement of counsel from the Attorney Generals Department in its work and amend its rules of procedure. The Commission rejected this request on 29 August 2007 and stated that it wanted to continue with the hybrid system of having counsel from both the Attorney Generals Department and Independent Counsel to assist it, pointing to the leading role that the independent counsel took in the Commissions recently-commenced second investigation. In the light of this evolution which the IIGEP representatives had already observed, the IIGEP has decided that for the time being it would continue to monitor the Commissions work. This is without prejudice to its continuing view that the conflict of interest is structural.
The IIGEP is also concerned that the Commission does not have sufficient financial independence enabling it to exercise direct control of its resources and avoid delays to its operations. This situation could adversely influence the recruitment of the services of independent counsel and the security of witnesses.
Victim and Witness Assistance and Protection: The IIGEP is concerned that the Commission still has no functioning Victim and Witness Assistance and Protection Unit. Staffing issues have been addressed. However, it is essential that an adequate training programme be implemented without delay in order to ensure that potential witnesses have the confidence and protection to testify in an inquiry session of the Commission, knowing that they have the guarantee of a confidential and secure environment.
In the absence of a permanent witness protection program and complementary legislation, protection for those witnesses under the Commissions victim and witness assistance scheme will cease at the expiration of the Commissions mandate. The IIGEP urges the timely adoption of a permanent national witness protection program, and enactment of comprehensive, workable and effective witness protection legislation.
Disclosure: The Commission is currently conducting investigations without relevant and sufficient information and evidence from state bodies and other persons. Such information is vital for comprehensive and effective investigations. The IIGEP urges the Commission to exercise the powers that are available to it in the Presidential Warrant and secure adequate disclosure from Government departments.
In order for the IIGEP to observe and monitor the Commission, the IGEP requires all information and material that the Commission has in its possession. The IIGEP has been concerned that the Commission had not fulfilled its obligation of full disclosure. The IIGEP is pleased to learn, however, that the Commission has appointed a Deputy Secretary with the function of liaising with the IIGEP to address the above disclosure issues.
Conclusion: Taking into account the areas of concern identified in this public statement, the IIGEP concludes that the investigation and inquiry process to date fails to comply effectively with international norms and standards. The IIGEP calls upon the Commission of Inquiry and the Government of Sri Lanka, in order to achieve the objectives of the Commissions mandate, to take urgent steps to remedy these concerns.
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The IIGEP consists of the following 11 Eminent Persons: Justice P.N. Bhagwati (India) (Chairman), Judge Jean-Pierre Cot (France), Mr. Marzuki Darusman (Indonesia), Mr. Arthur E. Gene Dewey (USA), Prof. Cees Fasseur (Netherlands), Dr. Kamal Hossain (Bangladesh), Prof. Bruce Matthews (Canada), Mr. Andreas Mavrommatis (Cyprus), Prof. Sir Nigel Rodley (UK), Prof. Ivan Shearer (Australia) and Prof. Yozo Yokota (Japan).
International Independent Group of Eminent Persons (IIGEP)
Information Office
Hilton Residence Suite 705
No. 200 Union Place
Colombo 2
Sri Lanka
Email: IIGEP@iigep.org
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984. The above statement has only been forwarded by the AHRC.
