IIGEP Paper Final

8/8/2019 IIGEP Paper Final

1/10

Copyright Centre for Policy Alternatives (CPA) August 2007 1

Discussion Paper

THE COMMISSION OF INQUIRY ANDTHE INTERNATIONAL INDEPENDENT GROUP OF EMINENT PERSONS

Presented at a discussion organized byThe Centre for Policy Alternatives (CPA)

20 th August 2007

The discussion paper highlights several salient issues related to the Commission of Inquiry (CoI) and the International Independent Group of Eminent Persons (IIGEP). Manyof the issues highlighted in this document have previously been raised by CPA in itspolicy briefs. 1 There is limited or no evidence demonstrating that these issues have beenadequately addressed by the authorities and other relevant actors. CPA stresses theneed for the authorities to speedily and effectively address these issues.

1. The establishment of the CoI and IIGEP: Has it achieved itsobjectives?

The steady increase in grievous human rights violations throughout Sri Lanka and thedelays and interferences experienced with inquiries have resulted in a culture of impunity. The non constitution of the Constitutional Council under the 17 th Amendmentto the Constitution, followed by the Presidents unilateral and arbitrary appointment of members to the independent commissions including the Human Rights Commission(HRC) and Police Commission 2, the Attorney General (AG), the Auditor General, the

Inspector General of Police (IGP), Justices of the Supreme Court and Court of Appeal 3,have called into question the independence and impartiality of such bodies, the legalvalidity of their standing and the increasing politicization of such actors and institutions.Increasing control and interference by the Executive, coupled with the limited capacityof government structures to deal with mounting human rights cases and the lack of confidence among the general public in the national law enforcement agencies includingthe AG, have resulted in large numbers of human rights violations being eitherunreported, not investigated in an independent manner or in delays in institutingcriminal prosecutions. In response to the mounting calls for international human rightsmonitoring, the Government established the CoI and IIGEP to investigate and inquire

1 Two policy briefs on the CoI and IIGEP are available on www.cpalanka.org 2 Article 41B (1) of the 17 th Amendment provides that no person shall be appointed by the President as theChairman or a member of any of the Commissions specified in the Schedule to this Article, except on arecommendation of the Council.33 Article 41C(1) of the 17 th Amendment provides that no person shall be appointed by the President toany of the Offices specified in the Schedule to this Article, unless such appointment has been approved bythe Council upon a recommendation made to the Council by the President.


2/10


into 16 past cases. The CoI does not have the mandate to deal with ongoing and futureviolations.

The increasing human rights violations in the country demonstrate that theestablishment of the CoI and IIGEP has not been a deterrent. Human rights abuses have

increased in 2007, with the high numbers of violations demonstrating the threats tohuman security in all parts of Sri Lanka.

With unprecedented human rights violations and the deteriorating humanitarian crisis,the need for an independent international monitoring mechanism and field basedpresence for human rights protection is vested with greater urgency. Such sentimentswere also stressed in the first public statement issued by the IIGEP on 11 June 2007. TheIIGEP stated that the CoI and IIGEP should not be used as a substitute for national andinternational monitoring.

2. Are the investigations independent?

Role of the AGs departmentIndependence is a vital and necessary ingredient in any successful investigation andinquiry. Both statements issued by the IIGEP 4 discuss the role of the AGs department inthe investigations and inquiries and raise concerns regarding independence and conflictof interest. A serious discussion of these concerns and their legitimacy is necessary.

The Chairman and the AG have responded to the IIGEP statements by stating that theofficers of the AGs Department are not involved in criminal investigations or in directingthe conduct of criminal investigations and are only involved in providing legal advice toinvestigators. The AG in his letter to Justice Bhagwati 5 goes on to say that officers of theAGs Department do not manage, direct, supervise or take part in investigations, theconduct of criminal investigations remains the sole responsibility of the law enforcementagencies, such as the police.

The Chairman further states that the professional function of the AGs departmentcommences only upon the completion of criminal investigations.

The above statements by both the AG and the Chairman create confusion as to the exactrole of the AGs department. While both claim that officers of the AGs department are

not to be involved in the criminal investigations, they concede that legal advice will beprovided by the officers of the department. This raises the following questions-

How is legal advice to be provided to the investigations when officers of the AGsdepartment are not to be involved in the process?

4 The first public statement was issued 11 June 2007. The second 15 June 20075 Dated 18 June 2007


3/10


Could providing legal advice at this stage result in a conflict at a subsequentstage?

In the event legal advice is provided by counsel of the state on a particular issue, it isexpected that information related to the issue will be shared and therefore counsel will

be privy to information related to the investigations. Such information can be used insubsequent criminal proceedings. State counsel who are privy to information at theinvestigation stage could be the same state counsel who initiate criminal proceedings,thereby raising the issue of a conflict of interest. While the case of the same counselproviding legal advice in the investigations and being involved in legal proceedings maynot be a regular occurrence, the possibility of it occurring raises concern of a conflict of interest and of the independence of counsel.

Further, the Chairman states that the professional function of the AGs department onlycommences after the completion of investigations.

Does this mean that providing legal advice constitutes acting in a private capacityand beyond their professional function?

If that is the case, the question is whether state counsel can act in their privatecapacity in criminal investigations conducted by the State?

The issue of the involvement of officers of the AGs department in investigations andinquiries of the 16 cases need to be reconsidered. This is largely because the exact roleof the AGs department remains ambiguous, with both the Chairman and the AGadmitting that the departments involvement and functions will commence prior tocriminal proceedings. In such a situation where there is ambiguity with no clearguidelines and demarcations as to when the professional and private functions separate,there is a high possibility of wavering by officials leading to questions of independence,impartiality and conflict of interest. CPA recognizes the important role played by the AGand his department in ensuring justice in the cases of human rights violations andstresses that the above statement is not a blanket criticism of all state counsel. It pointsto the lack of clear demarcations between private and professional functions, andguidelines on ensuring independence and impartiality in investigations and inquiriesbefore the CoI.

The CoI is to have a Panel of Counsel, comprising of six members of the AGs department

and two independent counsel. It is imperative that there is an independent panel of counsel, reinforcing the notion of impartiality and neutrality that is required ininvestigations and inquiries of this, or indeed any other nature. Such a measure wouldgive confidence to victims, witnesses and the public to come forward with evidence andinformation.

What is the role of the Panel of Counsel? Who should be part of the Panel of Counsel?


4/10


Should officers of the AGs department be part of the Panel of Counsel? Would this lead to a conflict of interest at a subsequent date?

Involvement of the AGs department in the process of investigations and inquiries of theCoI and IIGEP, further raises concern pertaining to public perceptions. With the

increasing involvement of the AGs department, many will question whether the CoI andIIGEP are in reality independent of the State or whether they are indeed functioning withand/or on the advice of the Government and Government actors.

Funding

The first statement by the IIGEP also raises the issue of finances of the CoI. Thestatement states that the finances are managed by the Presidential Secretariat and thatthe CoI does not have financial independence. Financial independence is crucial for thefunctioning of an independent commission, demonstrating their ability to actindependently and not be dependent on an external actor. By imposing various

restrictions and delaying funding to the CoI, the Government is in reality controlling thefunctioning of the CoI and the investigations and inquiries.

In his letter to Justice Bhagwati, the AG points out that the Presidential Secretariat hasalready spent Rs 13 million on the activities of the CoI, with a supplementary budget of Rs 90 million being approved. The AG nor the Chairman have answered the question of the financial independence of the CoI and the control over its resources by thePresidential Secretariat.

Financial control by the Government and the reliance on the Government forfunding begs the question whether the CoI has actual independence andautonomy from the Government?

How much funding has actually been made available to the CoI?

3. Are there delays in the investigations and inquiries?

The statement by the IIGEP also raises the issue of time and the delays inherent in theinvestigations and inquiries. The IIGEP states that the CoI only commenced preliminaryinvestigations and inquiries in May 2007, despite the warrant being issued in November2006- six months earlier.

The IIGEP further questions the functioning of the CoI and the processes followed. Theyhighlight the lack of transparency in internal processes, the failure to announce adetailed work plan, in recruiting essential staff and in sharing evidence and informationin the possession of the government with the IIGEP as well as the non functioning of theinvestigative and witness protection units . The IIGEP goes on to state that such delaysundermine public confidence in the ability of the Commission to carry out its mandatein a timely manner.


5/10


The Chairman states that the CoI established several mechanisms 6 and did not rush intoinvestigations and inquiries so as to ensure that there was an appropriate, systematicand transparent internal system.

The AG in his reply to the first IIGEP statement states that the CoI only commenced workon 12 th February 2007. He attributes this largely to the last nomination of the IIGEP onlybeing received on 9 th February. He fails to address the governments delay in acceptingthe last nomination to the IIGEP. Such a delay by the government in the early stages of the process stands as an indicator of the commitment and sincerity of the differentsections of the government in respect of the urgency and importance in bringing to

justice the perpetrators of the sixteen cases of human rights violations.

It is evident that there have been several delays in the investigations. Firstly, the lack of witness and victim protection legislation has hampered many from coming forward.(discussed below). Further, as already discussed there have been delays in providingfunding for the functioning of the CoI, with the CoI being unable to recruit the necessarystaff for the investigations. There have also been delays in obtaining information andevidence pertaining to cases (discussed below).

Could the delays in the investigations and inquiries be avoided or reduced? What is the impact on the investigations and inquiries by not having an effective

witness and victim protection framework in place? How have the delays and obstacles in obtaining funding by the CoI impacted the

investigations and inquiries? How have the delays and obstacles in obtaining information and evidence

pertaining to cases impacted the investigations and inquiries?

As pointed out by the Chairman and the AG, the CoI is presently looking into the killingof the 17 ACF workers. The sessions involve the questioning of actors related to the caseand are not open to the public. It has been reported that these sessions involve only theCoI, IIGEP, officers from the AGs department and witnesses. Representatives from ACFor their counsel have not been given access. It has also been noted that these sessionsare initial measures taken prior to the official hearing of the CoI. Therefore it can beassumed that the investigations and inquiries into the ACF killings are still very much intheir infancy, with a longer process expected when official proceedings commence. It

has also been reported that the statements made by witnesses and others during thepresent sessions, will have to be taken down again by the Police for it to be admissible incourt proceedings. Such a process would be time consuming as the same questions will

6 Organizational Structure and Rules of Procedure of the Commission, Mandate, Organizational Structureand the Rules of Procedure of the Victim and Witness Assistance and Protection Unit and Mandate,Organizational Structure and Rules of Procedure of the Investigation Unit.


6/10


be asked and the same information, provided twice. The CoI must ensure that thisaspect is addressed. There should be no wastage of time and duplication of effort thestatement should be taken once and it should be admissible in court.

While all necessary measures need to be taken in the investigations and inquiries, the

feasibility of the present sessions in camera needs to be questioned. Are the present sessions shedding light on sensitive facts for them to be closed to

the public and interested parties? Is the process adequately transparent?

4. Continuing Setbacks in obtaining information

It is imperative that information on the 16 cases specified in the Warrant and otherrelevant information is made available. This involves the sharing of information collectedby government actors in the investigations and inquiries into the 16 cases, and other

information that is requested by members of the CoI. An ongoing problem faced by theCoI is obtaining information pertaining to cases within their mandate. According tomedia reports, the CoI has had difficulties obtaining government records of investigations conducted. In the case of the assassination of the former foreign ministerLakshman Kadirgamar the COI was refused these records by the Colombo Magistrate. 7 The Magistrate was cited as saying that the release of the documents would interferewith future investigations. The court also observed that no Commission or person exceptthe Attorney General should be allowed to file indictments in this case. This order sendsa clear message to the CoI, the IIGEP and the public, on the unwillingness of the State toassist with the investigations and inquiries, and of the extent of its commitment to bringto justice the perpetrators of human rights violations. This setback in obtaininginformation highlights not only the bureaucracy within the justice and law enforcementsystem but increasing government control and interference in investigations. This raisesa number of questions-

Why are there delays in the COI obtaining information pertaining to the cases,especially when the CoI is provided powers under the 1948 Act?

Why is the Government and its agencies not facilitating the investigations andinquiries and not providing the information required?

By not providing information directly pertaining to the cases, is the Governmentand its agencies deliberately delaying finding the truth and providing justice to

the victims?

5. The Importance of Witness and Victim Protection Framework

Another major obstacle to the investigations and inquiries is that witnesses are reluctantto make representations as they lack the confidence that the will be protected from

7 Daily Mirror, March 30, 2007


7/10


reprisals. This is due to a variety of reasons including a lack of trust in institutions such asthe AGs department, the police, public service, the judiciary and the Human RightsCommission. There is also no witness and victim protection legislation in Sri Lanka. Thesefactors have hindered many people from coming forward with information andevidence. As a result of the fear experienced by many to come forward with information,

only 12 representations have been made so far to the CoI, as stated by the secretary tothe CoI, Mr Piyadasa. 8 It is imperative to provide protection and security to victims,witnesses and affected persons in any investigation, ensuring that their lives and thelives of people close to them are safe. This will ensure their confidence in comingforward with evidence and information.

The Chairman in his reply to the IIGEP statement recognizes the difficulties faced indeveloping a victim and witness assistance and protection scheme and goes on to statethat a bill is in the process of being formulated. Both the Chairman and the AG speak of the victim and witness protection unit. They both fail to address the following questions-

How will the victim and witness protection unit effectively function in theabsence of a national law?

In the event a national law is formulated, would it actually protect victims andwitnesses?

What is the process to be followed in the formulation of a national law? How are witnesses and victims expected to come forward and provide sensitive

information, with no protection mechanisms in place? What is the security available when security forces and government officials are

implicated? (protectors becoming perpetrators?) What is the definition of victim and witness? Would it be bureaucratic and

miss out on the subtleties of protection? Would the protection only cover a limited period? How would authorities ensure

the protection of victims and witnesses beyond the scope of the CoI?

6. Consistent and regular visits and meetings

It is important that the CoI and IIGEP visit the sites of the violations under investigationand speak to as many people as possible related to the cases. Such visits and meetingsmust be conducted in manner that takes on board the difficulties faced by victims,witnesses and communities in the areas and without jeopardizing the security of persons

that the CoI and/or IIGEP meet. Visits by the CoI and IIGEP to Trincomalee town andMuttur in April 9 and subsequent visits made by the IIGEP to Kantale and Batticaloa andother areas are welcomed.

8 Daily Mirror, March 20, 20079 Sunday Leader, April 29, 2007


8/10


The visit by the IIGEP to Kantale magistrates courts to observe the inquest of the ACFkillings has come under attack by the AG. In his letter to Justice Bhagwati, the AGcriticizes the presence of a member of the IIGEP and an assistant to the IIGEP at theinquest, their subsequent meeting with the Magistrate in his chambers and themhanding over a document to him that is critical of the investigations conducted by the

government into the ACF case. The AG goes on to say that this amounts to not onlyacting in excess of the mandate, it amounts to an improper interference with the judicialsystem of this country. While agreeing that the IIGEP should not interfere with the

judicial system of Sri Lanka and that it should operate within its stipulated mandate, asto whether the IIGEP actually interfered in the inquest proceedings needs to be furtherexamined. The visit by the IIGEP was to observe the conclusion of the inquest. Theverdict was issued prior to the meeting with the Magistrate. Therefore it is unclear howthe presence of the IIGEP at the inquest and the subsequent meeting could have beenan interference with the judicial system. Further, the document which is a report by theInternational Commission of Jurists (ICJ) is a public document which can be obtained byanyone. It has been widely quoted in the media. Accordingly, the document was widelyavailable; the Magistrate and others associated with the inquest could have had prioraccess to it.

Members of the IIGEP made a subsequent visit to Batticaloa to visit the site of one of thekillings included in the 16 cases, the killing of Parliamentarian Joseph Pararajasinghamon 24 th December 2005 at the Batticaloa Cathedral. It has been reported that during thevisit by the IIGEP there were meetings with various local actors. Subsequent to the visit ithas been reported that one of the offices visited was attacked. This raises concern withregard to the security of people and places visited by the CoI and IIGEP, and reinforcesthe need for a strong witness and victim protection mechanism. While visits to the sites

are necessary, all measures need to be taken to protect the people in the areas. Withoutan effective victim and witness protection plan in place, there is the risk of endangeringthe security of witnesses and communities. In addition, hesitation on the part of peoplein coming forward will persist.

The AGs letter to Justice Bhagwati also raises the issue of the mandate of the IIGEP toobserve and interview witnesses. The AG states that It does not enable or empower theIIGEP to observe investigations and inquiries conducted by the routine competentauthorities, and in particular judicial proceedings. Nor would it empower for examplethe IIGEP to interview or record the statements of possible witnesses either in Sri Lankaor overseas. The IIGEP has been invited by the government to observe theinvestigations and inquiries into the 16 cases before the CoI. It must be emphasized thatthe IIGEP is here at the invitation of the government, is appointed to ensure thatinvestigations and inquiries are conducted according to internationally accepted normsand standards. In such a situation, the government and its officials must make everyeffort to facilitate the working of the IIGEP, providing them access to places and people.It is vital that the Government facilitate rather than obstruct and hamper the working of


9/10


the IIGEP. Unnecessary prohibitions and obstacles should not be imposed by state actorsincluding the AG.

This further highlights the intrusive role of the AGs department in the investigations andinquiries. The letter to Justice Bhagwati, subsequently made public, reflects the AGs

belief that he has the authority to write directly to the IIGEP. Neither the TOR nor anyother document related to the investigations and inquiries provide the AG with suchexcessive powers to chastise a senior jurist in this way, a jurist who is present in SriLanka at the invitation of the State. The AG and other state officials should desist frommaking such statements. Any issues with the IIGEP should be dealt with them directly bythe CoI, or the President who invited the IIGEP.

There should also be regular meetings of the CoI and the IIGEP, jointly and individually,with civil society and other relevant actors to obtain new information and to inform therelevant groups on the progress in investigations and inquiries. Further, measures shouldbe taken to ensure that such consultations are conducted in a manner that ensures thesecurity and confidence of witnesses and communities in the areas. Creating suchinformation channels will not only keep all actors informed and provide transparency tothe process, but also build public confidence. Two meetings initiated by the CoI with civilsociety have taken place. While the first meeting was announced publicly with sufficienttime given, the second meeting was called in a rushed manner. Many civil society actorswere unaware of such a meeting. Consequently, as none of the local actors wereinformed, only a few Colombo based organizations were present. It is also hoped thatthe CoI will ensure there is a regular and transparent flow of information pertaining tothe investigations and inquiries.

Is there a need for regular visits by the CoI and IIGEP to the sites? What measures should be taken to protect the security of people who meet with

the CoI and IIGEP? Is the presence by the IIGEP at a judicial proceeding related to the 16 cases

overstepping their mandate? Is there a need for regular meetings of the CoI and IIGEP with civil society and

interested parties?

7. The importance of a regular presence of the IIGEP

There is concern about the lack of sustained presence by the members of the IIGEP in SriLanka to observe the investigations and inquiries. According to the TOR, members of theIIGEP are not expected to spend long periods of time in Sri Lanka, and will be expectedto work on a rotational basis agreed upon by them. Such a level of involvement alsoraises issues on the exact nature of the work of the IIGEP, as none of the members areexpected to be continuously present. Visits by members on a rotational basis may provecounter productive. They will not be identified by victims, witnesses and affectedpersons as being fully involved in the process and the latters confidence in the process


10/10


could be adversely affected. As pointed out by the AG in his letter to Justice Bhagwati,the limited presence of IIGEP members raises concerns with regard to the degree andextent of their involvement in the investigations and inquiries. It also opens the door toattacks on the IIGEP in respect of their interest and commitment to the process.

Is there a need for the members of the IIGEP to have a regular presence in Sri

Lanka? How can regular visits by the members of the IIGEP facilitate the investigations

and inquiries?

8. Transparency in the process and availability of reports

This document has highlighted key issues such as having public sessions, providingtransparency to the process and building public confidence through these and othermeasures including systematic information flow on the progress made by the CoI andIIGEP in relation to the investigations and inquiries. The government should also make

every effort to make available all documents related to the investigations and inquiriesand assist in other forms in the process.

CPA welcomes the statement made by the AG in response to the IIGEPs publicstatement , that initiatives are underway to amend the Commissions of Inquiry Act of 1948. The possibility of the amendment of the 1948 Act raises concern not merely withregard to the process to be followed but also in respect of the intention behind such anamendment. The 1948 Act focuses directly on inquiry. Section 2 (1) provides Wheneverit appears to the President to be necessary that an inquiry should be held andinformation obtained. No where in the 1948 Act does it provide for investigations.This raises the question as to the basis on which the President appointed a CoI toinvestigate and inquire when the 1948 Act only provides for inquiry?

How transparent are the present investigations and inquiries? Why are there initiatives to amend the 1948 Act? What is the process to be followed in amending the 1948 Act? What provisions

would be amended? Is the power to investigate by the CoI ultra vires ?

Both the Warrant and the TOR state that the investigations and inquiries are conductedin the public interest, public safety and welfare of the people of the Democratic

Socialist Republic of Sri Lanka. It is recommended that the government immediatelyaddresses the shortfalls in relation to the CoI and IIGEP that have been raised in thispaper and elsewhere. Most importantly, it is vital that the authorities take measures tolegalise the investigations and inquiries that are underway in a transparent manner andin line with international norms and standards.

IIGEP Paper Final

Documents

Transcript of IIGEP Paper Final