The latest Commission of Inquiry in Sri Lanka: Another Exercise in Deception
Louise Arbour of the International Crisis Group is reported to haveÂ said during an interview in the BBC that the government violated the laws of war by blurring the line between combatants and civilians, and that its killings of civilians were not accidents. Â Perhaps in response to this, speaking to the BBC Tamil Service recently,Â the Sri Lanka’s Ambassador to the United Nations, Dr. Palitha Kohona is reported to have said thatÂ the commission on Lessons Learnt and ReconciliationÂ set upÂ recently by the government is sufficient to investigate the allegations of humanitarian standards and human rights violationsÂ during the war.
Let us therefore have a look at some of the commissions of inquiry appointed by the governments in the past to checkÂ how effective they have been to understand the veracity of the statement made by Dr. Kohana with regard to the current commission. It is common knowledge that several commissions of inquiry had been appointed from time to time to inquire into disappearances of persons and other serious human rights violations in Sri Lanka. I do not intend to go into matters relating to all these commissions now. Instead, as a sample,Â IÂ propose toÂ deal with the two Commissions of Inquiries into Disappearances to whichÂ I was theÂ SecretaryÂ and theÂ Commission of Inquiry into Certain Serious Human Rights ViolationsÂ in the recent pastÂ where I wasÂ an adviser to the International Independent Group of Eminent Persons (IIGEP).Â The IIGEPÂ had beenÂ invited by President Rajapakse, to dispel the fear expressed widely at that time, on the efficacy of such commissions. He wanted give credibility to that commission by asking the IIGEPÂ to ensure that the investigations and inquiries conducted by that Commission are in keeping with internationally accepted norms and standards.
Commissions of Inquiry in Sri Lanka, are appointed in terms of the provisions of the Commissions of Inquiry Act. This Act provides for the President to appoint such Commissions whenever he thinks there is a need to find out more information on any matter of national interest and direct such Commission to inquire or investigate and report to him on matters set out in the Mandate given to such commissions.Â In other words, their inquiries shouldÂ be strictly confined to the terms of reference.Â It is mandatory for the Commission to submit the report to the President and not toÂ make its contents public.
In 1994 three such commissionsÂ known as Zonal Commissions on Disappearances of Persons,Â were appointed to inquire into and report on disappearances of persons after 1st January, 1988 ,Â while another was appointed in 1998, known as the All Island Commission on Disappearances,Â to inquire only into the complaints received by the Zonal Commissions and remainÂ un-inquired.Â These Commissions handed over their Reports in September 1997 and May, 2000, respectively.
These Commissions, inter alia, reported that they came across evidence that several torture chambers managed by the police and the military existed in different parts of Sri Lanka during the relevant period. Many persons who had been taken to be caused to be disappeared hadÂ been tortured in these chambers to elicit information from them.Â A few of them hadÂ escaped. They appearedÂ before the Commission andÂ gave evidenceÂ on theÂ gruesome manner in which they and others who are no more, had been tortured. They even gave the names of the persons who had been managing these torture chambers.
It was the same in the case of more than ten mass graves in the in various parts of the country.Â Information about them had beenÂ made available to these Commissions by personsÂ who knew about them. These graves have still not been disturbed. All that the Commissions could do in respect of these torture chambers and the mass gravesÂ was to list the locations of the torture chambers and the mass graves in their ReportsÂ and makeÂ a recommendation that the President should take further actionÂ to investigate into them.Â They could not investigate into these because theirÂ mandatesÂ did not authorize them to do so.Â Up-to-date no action whatsoever had been taken on this recommendation about the torture chambers and mass graves. Instead,Â some of thoseÂ who were alleged to have been responsible for these,Â are still in service havingÂ received promotions in their respective services. Others have retiredÂ without having to face any consequence on their dastardlyÂ criminal actions.
The same is true with regard to the recommendations made to take disciplinary action against several police and military personnel whose misconduct during the performance of their duties came to light during the investigations. There was evidence of their violation of Â departmental rules and regulationsÂ inÂ dealing with complaints of disappearances, detention of persons taken into custody, Â destruction of PoliceÂ information books relating toÂ the relevant period,Â in spite of a directive by the Inspector General of Police to preserve these books and make them available for investigation by the Commissions.
As stated earlier, these Commissions were mandated to inquire only into complaints of disappearances that occurred after 1st January, 1988. This resulted in a large number of disappearances of persons that occurred prior to thatÂ being excluded from being inquired into.
Similarly,Â the Commission that was appointed in 1998 had a specific limitation debarring it fromÂ inquiring into any new complaints butÂ was authorized to deal only with thoseÂ complaintsÂ whichÂ had been received by the Commissions appointed in 1994 and remainÂ un- inquired.Â Consequently this Commission could not inquire into about 12,000 new complaints received by this Commission. This number includedÂ complaints of about 600 persons from the North who had disappeared following the military operation in 1996 called ‘Riviresa’ after whichÂ the government took control of the Jaffna Peninsula from theÂ LTTE, and about 7000 complaints of persons who had gone missing in the Batticaloa District during the relevant period.
To cap it all, the manner in which action was taken against thoseÂ police and security forces personnel and others againstÂ whom the Commission reported that there is credible material indicative of their responsibility for the disappearances,Â is a sad reflection on the sincerity of the successive governments in dealing with perpetrators of such incidents. Â This only helped to perpetuate the culture of impunity Â which had, by this time, pervaded into the police and security forces personnel.Â Consequently the families of the victims of disappearances are yet to receive justice being meted out to them though nearlyÂ 20 years have lapsed since most of these incidents had occurred while Â many of them who had given evidence on the alleged perpetrators live in frustration seeing them still in service after having caused the disappearance of their loved ones.
A Report ofÂ the International Commission of Jurists reveals that “The lack of state accountability for human rights violations in Sri Lanka crosses ethnic divides, all governments and political parties. Neither the regular criminal justice system nor commissionsÂ Â of inquiry have been able to satisfy the state’s obligation to its citizens.”
It appears thatÂ the only useful purpose Â served by these Commissions wasÂ to help successive governmentsÂ to know who and who in the police and security services are experienced andÂ competent in effectively carrying out disappearances of persons, so that those in these governments who required their servicesÂ could use them when the need arose. Â It is perhaps such persons are the ones behindÂ the disappearancesÂ that continue even today, and are often convenientlyÂ blamed to be acts of unknown persons.
Another matter that needs to be remembered is that the Commissions of Inquiry Act does not place any obligation on the part of the President to make public the findings of any Commission of Inquiry.Â There are reports of several commissions appointedÂ in the past that have never been published. Others have been published only in parts. It is the sole discretion of the President to publish the whole or any part of the Report if he so desires or not publish them at all. Â It may not be known to manyÂ that a special report was called by the then President Chandrika Bandaranayake into the killing of a prominent politician in a hilly district, allegedly by another who had contested him.Â Â The Commission concerned did an exhaustive investigationÂ and reported that there was enough evidenceÂ againstÂ the alleged person who was at that timeÂ a prominent Member of Parliament.Â Yet no action was taken against him.Â The wife of the person who was killed was later made a minister and the matter ended there.Â No action whatsoever was taken on this Report which was never Â published !
Similarly,Â When a Â prominent Muslim leaderÂ was killedÂ following a helicopter crash, to stem the allegation that he had in fact been murdered the then government appointed a commission to inquire into the circumstances of his death.Â That Commission conducted extensive investigations and submitted its Â report. That report was neverÂ published but the wife of the deceased was laterÂ made a Minister and a large amount of money had been paid to her and her siblings as compensation.Â The matter ended there.
Journalistic ethics prevents me from mentioning the names of the persons concerned but these facts cannot be denied by those concerned.
Commissions of Inquiry were initially appointed to appease pressure from human rights organizations or the people, to endÂ systematic violations of their rights.Â But successive governments have followed a pattern of subverting them. In fact, the non-implementation of the many recommendations of these Commissions on the need to deal with the perpetrators swiftly and effectively, promoted the culture of impunity prevailing among the police and the security forces personnel to become galvanized.Â What is more, the Commissions spared no efforts in making well considered recommendations on the steps to be taken to prevent the incidence of disappearances of persons in the future. Â These recommendations are gathering dust in the archives of the President.
Let me now deal with the Commission appointed in year 2007Â to inquire into serious human rights violations such as the killing of five university students in Trincomalee, the killing of seventeen employees of and NGOÂ in Muttur, Â bombing ofÂ a children’s home in Sencholai in the Mullaitivu District,Â etc.Â The series of such high profile incidents thatÂ took place during that period resulted in a public outcry for the government to end such incidents.Â President RajapakseÂ decided to appoint a commission to inquire into such incidents to contain the surging pressure on him from various quarters.Â Given the past experience on what happened to the disappearances commissions and many others, both the local and international human rights organizations expressedÂ theirÂ reservations on the outcome and efficacy of the Commission proposed by the government. Â Consequently, the President himself came out with a suggestion that he was prepared to invite aÂ fewÂ International IndependentÂ Group of Eminent PersonsÂ (IIGEP)Â who could be tasked to ensure that the proposed Commission conducts its investigations and inquiries in keeping with international norms and standardsÂ and does not end upÂ the way the other commissions in the past had ended.
The Commission of 2007 wasÂ createdÂ with seven members.Â A few days after the commencement of the proceedings of this CommissionÂ the IIGEPÂ found that the services of a representative of theÂ Attorney General (AG)Â was being availed ofÂ byÂ this CommissionÂ to lead the evidence in respect of the casesÂ the Commission was mandated to deal with.Â Former Chief Justice of India â€“ the late Justice BhagawathyÂ who headed the IIGEPÂ hadÂ to point out toÂ Justice Udalagama who was the President of the Commission, and later to the President himself of the improprietyÂ of the AG leading the evidence of witnessesÂ during the proceedings of the Commission which was inquiring into the propriety of the investigations already carried out by the police.Â Both the President and the head of the Commission persisted on insisting thatÂ the AG should be thereÂ and that he is an independent official.Â Haggling over this issue went on for some time. IIGEP wasÂ told that they being foreigners, did not understand the nuances of the laws in Sri Lanka and the independence of the AG.Â Subsequently IIGEP had to obtain the opinion of two eminent retired judges of renown,Â on the question of the independence of the AGÂ and the justification for the involvement of the AG in the proceedings of the Commission.Â They gave a well-considered written opinion to the IIGEP,Â confirming thatÂ the Attorney-General is not an independent officialÂ and that the role played by the AGÂ in the proceedings of the Commission was a conflict of interest as the AG’s representative had advised the original investigations in the cases which had been mandated for inquiry by the Commission. Even though this was pointed out, the AG’s representative continued his role in the CommissionÂ and eroded theÂ Commission’sÂ real and perceived independence. Incidentally, this particular AG who has now retired has been appointed as the Chairman of the Lessons Learnt and Reconciliation Commission. Â
In view of theÂ high profile nature of the cases the Commission was inquiring into, witnessesÂ to the incidents were hesitant to comeÂ before the Commission and give evidence for fear of reprisals.Â Though the IIGEP insisted on the need for a law to protect witnesses coming before the Commission,Â the government failed toÂ take meaningful and effective steps toÂ provide protection for the witnesses.
Eventually the IIGEP had to abort its mission statingÂ thatÂ they (I quote), found there a lack ofÂ political and institutional will on the part of the Government to pursue with vigourÂ the cases under review by the Commission, with the intention of identifying the perpetrators or at least uncovering the systemic failures and obstructions to justice that renderedÂ the original investigations in to these cases ineffective.
Ultimately the term of the Commission which was mandated toÂ inquire into 15 high profiles cases was not extended even though inquires in the cases concerned had not been completed.Â That Commission then ceased to exist, confirming the suspicion that the government was not even at the outset,Â keen on investigating into the serious human rights violations concerned.Â A report this Commission is said to have handed over to the President, has never been made public.
From the disclosuresÂ I haveÂ madeÂ so far about what happened to the CommissionsÂ referred to,Â it would be clearÂ that in Sri Lanka, successiveÂ governments hadÂ been appointing Commissions not with the honest intention of finding out what actually happenedÂ and to mete out justice to the victims,Â but with the intention of deceiving the people concerned and the international community. Â Commissions have always helped governments to divertÂ pressure on the government regarding the relevant issues.
The commissions appointed so far, have failed to address the serious questions that have been affecting Sri Lanka in the conflicts in the recent past. These commissions have been condemned by international organizationsÂ as well as by local human rights groups who have published extensive reports and analysis on the workings of these commissions. Amnesty International hasÂ called the work of these Commissions as â€œTwenty Years of Make Believe”Â in a report analyzing the work of these commissions. The International Commission of Jurists has published a work on this subject entitled â€œFamilies of the Disappeared, Still Waiting for Justice”. The reports of these organizations only confirm the fact of the ineffectiveness of these Commissions.
There isn’t a single commission appointed by the governmentÂ so far whose report or findings had been taken seriously and steps taken to implement their recommendations.Â In fact, all such commissions have only beenÂ exercises of denial of state responsibility, in instances when theyÂ had been mandated to look into violations of human rights.
The recently appointedÂ ‘Lessons Learnt and Reconciliation Commission’Â in connection with the incidents relating to the conflict,Â is bound to be another attempt at deception by the government which has now become well known for adopting such dubious tactics. As stated earlier this Commission is headed by the former Attorney General who crossed swords with IIGEP when he was in service and was well known for hisÂ pro-government views.Â HisÂ personal links to the PresidentÂ since their youthful days are also known.Â Another key member of this Commission is the former representative of Sri Lanka at the UN where he had been vehemently defending the government’sÂ blood bath in the beaches of Mullaitivu during the war.Â It is widelyÂ alleged thatÂ the President’s brother, the Defence Secretary who claims to have managed the war, had committedÂ violations of the rules of war and is responsible for the death of large number of civilians.Â In the circumstances how can one expectÂ this commission to conduct its proceedingsÂ without any bias ?
It isÂ obvious from the very beginning that this Commission is going to be another in the series ofÂ deceptive commissions appointed so far,Â and would suffer the same fate as most of the other Commissions. Â To cap it all, the President was heard to say at an interviewÂ Al Jazeera hasÂ had with him recently,Â that he was not going to punish any of his soldiers who fought the war valiantly to defeat the LTTE ! This statement is a pointer to the Commission not to find any military personnel guilty of any violation of theÂ rules of war or even the human rights of the victims of war.Â Isn’t that statement of the President enough to expose the dubious intention of the President in appointing this Commission ?
[Editors note: The author was one of the secretaries of the first Provincial Council of the Western Province. We also encourage you to read Still waiting for justice in Sri Lanka by the author, published in March 2010, which also deals with Commissions of Inquiry in Sri Lanka.]