The Sunday Times Online
14 January 2007
ASSESSING SRI LANKA’S PRESIDENTIAL COMMISSION OF INQUIRY [Part 1]
In a three part series commencing this week, this column will examine
in detail the mandate and nature of the eight member Presidential
Commission of Inquiry, (the Commission), established by the
Government of Sri Lanka in 2006 in order to probe into fifteen
selected incidents of assassinations, extra judicial killings and
disappearances.
These cases include the assassinations of Minister Lakshman
Kadirgamar, MP Joseph Pararajasingham, Kethesh Loganathan, the
execution style shooting of 17 aid workers in Mutur and killings in
Mutur, Trincomalee, Sancholai, Pesalai Beach, Kayts Police area,
Pottuvil, Kebithagollawa, Welikanda, Digapathana and the
disappearance of Rev Jim Brown, all of which occurred at varying
points of time during 2005 and 2006.
The Commission (due to commence its formal sittings early next month)
will be ’observed’ by eleven ’eminent persons’ whose functioning is
also governed by a mandate issued by the Presidential Secretariat.
While some nominations have invoked controversy, there is no doubt
that Sri Lanka is fortunate to have had the inclusion of the highly
respected former United Nations Special Rapporteur on Torture and
current member of the United Nations Human Rights Committee, Nigel
Rodley. Former Chief Justice of India, P.N. Bhagwati functions as the
Chairman of this panel of observers.
The Government has been strident in its assertions that this
Commission will constitute an effective mechanism in re-establishing
accountability for rights violations in Sri Lanka. Consequently, the
mandates of both the Commission and the international observers will
be analysed in detail to see whether this is indeed, the case. In so
doing, I will underline the fact that we have had enough of
Commission Reports and Sessional Papers that have merely languished
in the desks of bureaucrats.
On the contrary and insofar as killings allegedly by government
forces are concerned, given the pervasive climate of impunity that
has prevailed for decades, (aided by extraordinary emergency laws
allowing abuses), an effective pattern of prosecutions will be the
only actual deterrent. Yet, is the Commission satisfactorily
structured to realise this objective? Where petitions involve issues
of service responsibility as factually and immensely complicated as
those relating to prosecutions for extra judicial killings, can they
be satisfactorily resolved by fact finding Commissions of Inquiry as
well as the law and procedures applicable to command responsibility
and burden of proof as are currently in force? These are the
questions that will be investigated.
Act No 17 of 1948 (the law under which the Commission is
established), was enacted primarily to provide for small local
inquiries concerning the administration of any department of
Government or the conduct of any member of the public service among
other things. It is very clear that while this law may have been
suitable for that purpose, it was not meant to be used for complex
inquiries such as investigations into extra judicial killings.
Page 2 of the mandate of the Commission affirms its fact finding
nature in that its investigations are stated to facilitate and enable
the President "to present the relevant material to the appropriate
competent authorities of the Government of Sri Lanka including the
Attorney General" towards efficacious prosecutions. Thus, it does not
automatically follow that immediate prosecutions will ensue from the
recommendations of the Commission.
Rather, in a context where the Commission has itself, no separate
investigative powers or investigative staff, it will function purely
as a body before which aggrieved persons may present their versions
(often differing) of the violations in issue. This will obviously
accomplish little. Past practice of the work of similar Commissions
has indicated this very well. One immediate comparative instance
concerns the four 1994 Presidential Commissions of Inquiry to
investigate the Involuntary Removal or Disappearances of Persons
which was appointed under the very same law in terms of which the
current Commission has been constituted.
Out of these four Commissions, the Commission investigating the
Disappearances of Persons in the Western, Southern and Sabaragamuwa
Provinces (hereafter the Western Province Disappearances Commission)
remain the best example of the futility of processes of this nature,
even if the Commission itself functions satisfactorily.
Some 10,000 witnesses gave evidence before the Western Province
Disappearances Commission, which found the security forces
responsible for a large part of the disappearances. However, the
prosecutions that followed from these findings were negligible.
Despite the fact that tens of thousands of such cases are thought to
have occurred in the past, we have had only nine cases of convictions
since 1998.
A major reason as to why findings of Commissions of Inquiry are not
used in the actual prosecutions relevant to those cases is primarily
because the standards of proof used in both contexts differ in
substantial respects. The commission inquiry will hear evidence of
those affected, which may at times be ex parte. In addition, the
provisions of Act No 17 of 1948 stipulate that hearsay evidence
(statements by third parties) may also be heard, which evidence would
however be inadmissible in an actual prosecution.
However, the High Court before which prosecutions may be brought will
consider the specific question as to whether particular service
officers specified in the indictment were responsible beyond all
reasonable doubt for their complicity in that particular crime.
Hearsay evidence will obviously not be admissible for that purpose.
Next week’s column will examine past examples where despite
Commission findings in respect of the culpability of senior army
officers, these officers were acquitted in prosecutions precisely as
a result of what has been highlighted above. It will stress the
necessity for rigorous changes in the law incorporating
internationally accepted norms of command responsibility among other
factors, in order that an effective prosecutorial strategy may be
enabled. Undeniably, rather than the continued enthusiastic endorsing
of fact finding procedures, this is what is currently imperative.
The Sunday Times Online
28 January 2007
ASSESSING SRI LANKA’S PRESIDENTIAL COMMISSION OF INQUIRY [Part 2]
In the last column, the constitution of the eight member Presidential
Commission of Inquiry, (the Commission), established by the
Government of Sri Lanka last year in order to probe into fifteen
selected incidents of extra judicial killings and other grave human
rights violations, was examined. The Commission will begin sittings
in early February.
The point made was very simple; precious little can be achieved by
fact finding Commissions of this nature. Instead, what is required
are substantive legal changes that relate to the determination of
questions of service responsibility as factually and immensely
complicated as those relating to prosecutions for extra judicial
killings. This week’s column takes this discussion somewhat further.
However, rather than limiting the debate to the fifteen cases
mandated for inquiry by this Commission, let me put these matters in
their historical context. During the past three decades, we have
undergone civil and ethnic conflict as a result of which, more than
sixty thousand people have died. These killings have occurred both
in the North due to the conflict between the separatist Liberation
Tigers of Tamil Eelam (LTTE) as well as during the late eighties when
there were attempts by the Janatha Vimukthi Peramuna (JVP) to capture
the government through armed force.
The abuses that occurred during these periods of conflict were
manifold. While the LTTE and the JVP were responsible for countless
acts of terror, the counter response on the part of the various
Governments was equally ruthless. Many people were simply
’disappeared’ by state agents using emergency laws that gave them
extraordinary powers or by paramilitaries acting with the knowledge
and concurrence of sections of government.
There is no question that these deprivations of life were due to a
system that allowed and even encouraged such abuses. A familiar
argument of successive governments has limited responsibility to
rogue elements within its ranks. One primary factor however gives the
lie to this spurious defense.
This is that despite the many thousands of disappearances and extra
judicial killings, the Sri Lankan State has been demonstrably
unwilling to put into place, specific mechanisms of legal
accountability that counter impunity for these perpetrators. Most
particularly, we have seen only two successful prosecutions in recent
times. Ironically, one case concerned brutal acts of rape and murder
of a Tamil schoolgirl and members of her family by soldiers in the
North (the Krishanthi Kumaraswamy Case) while the other concerned the
no less brutal enforced disappearance of fifty three Sinhalese
schoolboys in a remote village in the South (the Embilipitiya Case).
The reason why prosecutions in respect of disappearances and extra
judicial killings fall by the wayside is very clear. Present Sri
Lankan legal structures, based on old notions of British criminal
justice, are wholly unable to deal with questions of service
responsibility as factually and immensely complicated as they are in
these cases. Let me now illustrate this point in one simple but
nevertheless extremely powerful example.
Prior to the Embilipitiya prosecutions, the Western, Southern and
Sabaragamuwa Disappearances Commission of Inquiry (the Western
Province Disappearances Commission) submitted a Special Report on the
Embilipitiya incidents to President Chandrika Kumaratunga on
29.11.’95 which found not only a group of junior officers but the
district coordinating military secretary (who was in effective charge
of the military for that area) responsible for the enforced
disappearances.
However, when the case went to the Ratnapura High Court for
prosecution, even though that senior army officer, Brigadier ’Parry’
Liyanage was indicted along with the other junior officers, he was
acquitted due to the Court holding that no evidence could be found
directly linking him to the charges of abduction with intent to kill.
(See Application No; 121/94, Judgement of the Ratnapura High Court on
23/02/1999. Some of the junior officers were convicted). What is
striking is that the findings of the Western Province Disappearances
Commission were not relevant for this prosecution and, in fact, did
not appear to have even been cited before the High Court.
As remarked previously in this column, the precise reason for this
non-relevance is not difficult to discover; commissions of this
nature are purely fact finding and function very differently from
courts of law. Standards of proof used in findings of the Commission
and in judicial prosecutions differ. Hearsay evidence (unlike in the
case of Commission proceedings) will not be admissible for that
purpose in judicial proceedings.
There is a very strong possibility that this same pattern will repeat
itself in the fifteen cases that would be inquired into by the
current Commission of Inquiry. In other words, (and confounding
current cynicism) even if the inquiry/investigative process of the
Commission proceeds successfully, its findings may well prove to be
useless when the matter goes to actual prosecutions in terms of the
existing criminal law.
Within this rigid framework of the law, it is no surprise that the
most that can happen is the successful prosecution of junior
officers. However, senior officers escape unscathed and the system
itself (which condones and encourages such actions) remains in place.
So we have the paradoxical result that while state appointed
Commissions of Inquiry find culpability on the part of state
officers, the laxity of the law allows them escape. Practically, in
both the Embilipitiya Case and the Krishanthi Kumaraswamy Case, only
the junior level officers were successfully prosecuted with their
convictions being upheld on appeal.
Even more disturbingly, the law has developed in such a manner that
even though the doctrine of command responsibility has not been held
applicable to state agents in times of war in the relevant
prosecutions, such principles have nonetheless been affirmed in a
different judicial context of fundamental rights violations in
situations of ordinary law and order. The inconsistency in this
differential application of judicial principles has been marked.
The concluding part of this column next week will examine these cases
and will urge a different approach to securing accountability in
regard to human rights violations as contrasted to a fact finding
Commission of Inquiry from which improbable miracles continue to be
promised by this Government.
The Sunday Times Online
4 February 2007
ASSESSING SRI LANKA’S PRESIDENTIAL COMMISSION OF INQUIRY [Part 3]
This is the concluding segment of a three part series of articles
critically examining the recently established eight member
Presidential Commission of Inquiry, (the Commission), to probe into
fifteen selected incidents of grave human rights violations that had
occurred in the country during 2005 and 2006. A team of international
“eminent persons” will observe the Commission’s work and the
functioning of both bodies will be in accordance with their
particular Mandates.
Some eminently commonsensical points may be disposed of first. The
fifteen incidents selected for the scrutiny of this fact-finding body
are only a minute fraction of similar abuses that continue to take
place even as this column is being written. Is it not discriminatory,
if not wholly irrational that some incidents have been selected for
inquiry by this special process while others have been exempted? On
what basis has this selection been done and the spatio-temporal
limits of the Commission’s mandate defined?
In addition, problematic conditionalities govern the release of the
findings of the Commission in regard to which, the President can
withhold the publication of any material which is in his opinion,
"prejudicial to or absolutely necessary for the protection of
national security, public safety or wellbeing." Curiously, different
grounds seem to govern the release of the reports of the Commission
and the International Observers. It seems that though at an early
stage, both mandates used the same vague term of ’public safety and
well being’, the Mandate of the Observers (see the supposedly final
version of the Mandate of the International Observers dated November
24, 2006 and signed by the Secretary to the President) was changed
later to the more rigorous wording of ’national security’ and ’public
order’ while the Mandate of the Commission remained the same.
Meanwhile, ambiguities in the relevant last paragraph of the Mandate
of the Commission leaves the publication of its Report dependant upon
yet another contingent factor; namely that the publication should be
immediately after the Attorney General decides to prosecute and files
indictment for that purpose. The question then arises; what would be
the situation if the Attorney General decides that there is not
enough prima facie evidence to prosecute? Or, for that matter, in a
country where the indictments take up to two years even in the case
of ordinary crimes, what if there is interminable delay in the
issuance of the indictments? Would the Report then not be made public
till all these conditions are complied with?
From the question of publication we should proceed to the issue of
prosecution. The Mandate of the International Observers contains a
clause that permits objections to be made public when the Attorney
General unlawfully or unreasonably refrains from instituting
prosecutions on the findings of the Commission. It is however
relevant that the Commissioners are directed to come to a finding on
the ’identities, descriptions and backgrounds of persons and groups
of persons who are responsible under the applicable laws and legal
principles of Sri Lanka’ for the commission of deaths, injury or
physical harm in respect of the fifteen selected incidents.
By itself, this stipulation seems innocuous. After all, the relevant
standard should indeed, be "the applicable laws and legal principles
of Sri Lanka." But then, what would be the case if such laws and
standards are manifestly inadequate to deal with the complexity of
war crimes that the Commission will undoubtedly be called upon to
deal with? For example, if the question of culpability involves
indirect rather than direct responsibility, could the Commission
recommend prosecution and would the Attorney General be justified in
issuing indictment? If not, would the Observers be justified in
regarding this as an unreasonable or unlawful decision of the
Attorney General to refrain from prosecution?
Last week’s column looked at a singular instance of the Embilipitiya
Case concerning the abduction of twenty four Sinhalese schoolchildren
with intent to kill by officers of the army during the height of the
Janatha Vimukthi Peramuna insurrection in the late eighties. In this
instance, the Attorney General did, in fact, prosecute Brigadier
’Parry’ Liyanage, the district coordinating military secretary and
hence in effective charge of the military for that area.
Notwithstanding the fact that a fact-finding Commission of Inquiry
into Disappearances had found a measure of responsibility on the part
of this senior army officer, he was acquitted in the High Court due
to the finding that no evidence could be found directly linking him
to the abductions.
This was a good illustration of the absence of the doctrine of
command responsibility in our criminal law. Principles of the Rome
Statute on the International Criminal Court imposing responsibility
where a commander either knew or should have known that such crimes
were being committed by forces effectively under his or her command,
and failed to take all necessary and reasonable measures to prevent
the commission of the crimes or to have them investigated, (Article
28), are important in that regard.
But apart from the criminal law, it is disturbing is that even in a
different judicial context of exercising its jurisdiction pertaining
to fundamental rights violations, Sri Lankan judges have been wary of
emphasizing the doctrine of command responsibility in situations of
conflict. For example, following Brigadier Liyanage’s acquittal
referred to above, he subsequently won a fundamental rights case
against his non-promotion to the rank of Major General. The Supreme
Court took the contested position that in the absence of direct
involvement in the disappearances, Brigadier Liyanage merely occupied
’a place of authority in the chain of command.’ (see SC Application
No;506/99, SCM dated 25.11.99). To give the proverbial devil her just
due, it must be said however that despite the direction of the Court,
then President Chandrika Kumaratunge refused to make the promotion.
In puzzling contradistinction, the Supreme Court has been far more
receptive to applying the doctrine of command responsbility in
situations of ordinary law and order. For example, in Silva vs
Iddamalgoda, ( 2003 [2] SriLR, 63) and in the Wewelage Rani Fernando
Case SC(FR) No 700/2002, SCM 26/07/2004,) the officer-in-charge of a
police station and senior prison officials were respectively held
liable, not on direct involvements in the acts of torture but rather,
on their non-action.
These paradoxes are understandably bewildering to human rights
activists who tend to shy away from rarefied battles over obscure
points of legal theory in the courtrooms. Yet there is no doubt that
the reform of the legal/justice system and the law itself is key to
ensuring rule of law norms in times of conflict. Ideally, the
Commission process and the involvement of an independent objective
element through the international observers could be used to urge
such a process, including the establishing of an effective witness
protection programme.
In the alternative, we will be reluctant observers of yet another
dilatory, obfuscatory ’fact-finding’ process with no perceptible
impact on a prevalent culture of impunity and a manifest lack of
prosecutorial/judicial will.