‘Cosmetic’ Commissions and the Rule of Law in Sri Lanka

The Commission of Inquiry established by the Government of Sri Lanka (GOSL) in 2006 was a response to domestic and international pressure regarding increased extrajudicial killings following renewed conflict. The Commission is mandated to investigate 15 selected incidents, though there is a clause that, liberally interpreted, would enable it to venture beyond these parameters. 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, Keyts Police area, Pottuvil, Kebithagollawa, Welikanda, Digapathana and the disappearance of Rev Jim Brown, all of which occurred largely in the North/East at varying points of time during 2005 and 2006.

Responsibility for these crimes has been attributed to one or the other of the warring parties, namely the GOSL, the Liberation Tigers of Tamil Eelam (LTTE) and the recently added third element, the breakaway Karuna faction.

A novel feature of the Commission’s functioning is that it will be ‘observed’ by eleven ‘eminent persons’ whose functioning is also governed by a mandate issued by the Presidential Secretariat. The Commission commenced its formal sittings in March 2007 and the team of observers, (including many well known international jurists), were put into place by that time. The Government has been strident in its assertions that the Commission will constitute an effective mechanism in re-establishing accountability for rights violations in Sri Lanka. It is against this expectation that its nature and functioning will be critically analysed.

The Nature of the Problem

Lack of state accountability for human rights violations in Sri Lanka has applied both to the conflict in the North/East as well as in regard to the estimated 40,000 Sinhalese youth who ‘disappeared’ during insurrectionist violence during the eighties and early nineties. Out of the thousands of extra judicial killings, only two cases have been effectively investigated and prosecuted to a successful close; namely the rape and murder of Krishanthi Kumaraswamy, a 17 year old Tamil schoolgirl and the murder of her mother, brother and friend who went in search of her by soldiers attached to the Chemmani checkpoint as well as the ‘enforced disappearances’ of 25 Sinhalese schoolchildren of Embilipitiya, a Southern hamlet, due to a private vengeance of their school principal acting in collusion with army soldiers.

In both these cases, junior officers were convicted, not their seniors, even though there was clear evidence (at least in the latter case), that the abuses were condoned by a senior army officer.

The barbarities committed by the LTTE and, its breakaway group, the Karuna faction, (the latter acting allegedly in concert with some sections of government security forces in countering the LTTE and perpetrating a series of disappearances and abductions for ransom as well as for coercive reasons) have been significant. However, the culpability and/or inaction of the State in redressing abuses by its forces, attracts greater criticism due to the rationale that expects a different accountability from a lawfully functioning government as opposed to terrorists. The prevalence of emergency laws which allows, interalia, arbitrary arrests, incommunicado detention and admissions made to police officers above a particular rank has framed a convenient atmosphere for the continuation of these abuses and the conferring of impunity for the abusers.

Indeed, the impact of these laws was so great that, even during the short periods that Sri Lanka was at peace with the normal law of criminal procedure in force, law enforcement officers acted with all the brutality at their command in the darker days of the emergency. Endemic practices of torture resorted to by police officers, regardless of ethnicity or race and governed only by whether the victim belongs to the socially and economically marginalised classes, have been well documented. With the renewal of the conflict and the re-mergence of emergency law, the country experiences the abductions, enforced disappearances and extra judicial killings of journalists, academics, trade unionists, priests, businessmen and politicians, mainly Tamil but a few targeted Sinhalese as well, suspected of collaborating with the LTTE.

Inherent Deficiencies of the Commission of Inquiry

Act No 17 of 1948, (the law under which the Commission is established), was enacted in 1948 for a very different purpose than for what it is being currently utilised. The Act primarily facilitates small local inquiries concerning the administration of any department of Government or the conduct of any member of the public service among other things. Essentially, the current Commission is a fact-finding body and immediate prosecutions will not automatically follow from their recommendations. In addition, important limitations apply to its reports being made public. The lack of a comprehensive witness protection programme, (though a draft law has been prepared for this purpose, it has yet to gain public acceptance), and the fact that the international observers are not permitted to actually supervise the commission and to intervene in its substantive functioning are all factors that go towards depriving it of legitimacy.

This Commission is not the first of its kind, though the importation of an international ‘observer’ element distinguishes it from its predecessors. In the early 1990’s, four zonal commissions of inquiry (as well as a subsequent commission of inquiry) were appointed under this same law to inquire into enforced disappearances of persons during the period of the southern insurrectionist terror. In this case as well, though these commissions recommended prosecutions against several army and police officers, little action was taken. Detailed measures recommended in regard to reparations were also not implemented beyond paying the victims small amounts of compensation.

Deficiencies in Sri Lanka’s constitutional and criminal law

Despite the many decades of enforced disappearances, we do not have a right to life constitutionally enshrined, unlike for example, the Indian Constitution which has been used to good effect by India’s Supreme Court in the voluminous spread of public interest litigation. Very recently, Sri Lanka’s Supreme Court, due to the efforts of one or two of its liberal judges, (in marked contrast to otherwise conservative judicial thinking that has now withdrawn from previous rights protection interventions), brought in an implied right to life, using the constitutional prohibition that no one should be deprived of life unless through court order. This reasoning has also been further developed in one instance of an enforced disappearance where, in the Machchavallavan Case (SC Appeal No 90/2003, SC (Spl) L.A. No 177/2003, SCM 31.03.2005, judgment of Justice Shiranee A. Bandaranayake), the Court innovatively declared a violation of the right in an appeal from the dismissal of a habeas corpus application from the Court of Appeal. Yet, even where the Supreme Court has been bold in its interpretations, this has had minimal impact due to non-adherence by the political, law enforcement and military establishment.

At the level of the criminal law, due to the absence of a crime of ‘enforced disappearances’ in the Penal Code, the prosecution has had to rely on normal criminal offences such as abduction as well as abetment and conspiracy in order to file indictment. Proving these offences in situations of extraordinary conflict has proved to be difficult if not impossible. The non-incorporation of the doctrine of command responsibility in the criminal law has also proved to be highly problematic. Interestingly, the Supreme Court has, (except in one contra decision), affirmed the doctrine of command responsibility in the context of its fundamental rights jurisdiction, even in regard to the working of emergency regulations. We need however, criminal prosecutions affirming the responsibilities of senior officers rather than be content with scattered trials of junior officers for human rights abuses.

Conclusion

This analysis makes the point that much more needs to be done to address the prevalent culture of impunity than the appointment of fact-finding commissions of inquiry. Implementation of the rule of law in Sri Lanka stands at its lowest ebb today. Public faith in institutions meant to protect the rights of the people has greatly decreased. Politicisation of these institutions, including particularly Sri Lanka’s Supreme Court, has resulted in a serious crisis of confidence in the constitutional process. The recent actions by President Mahinda Rajapake in ignoring the 17th Amendment to the Constitution and appointing people perceived as his personal and political confidantes to important monitoring bodies, such as the National Human Rights Commission and the National Police Commission has worsened this situation.

What the country needs therefore is an affirmation of the government’s commitment to constitutional democracy at the highest level. A right to life should be constitutionally incorporated and the criminal law should be revised, inter alia, in order to bring in a specific crime of disappearances as well as the concept of command responsibility and the shutting out of the defence of superior orders. An office of a Special Prosecutor, functioning independently from government with a team of dedicated investigators and lawyers at its command, is an indispensable necessity.

International human rights monitoring should be resorted only to the extent of compelling these needed revisions in Sri Lanka’s legal and political environment. Ultimately, the answer to the country’s current crisis of the rule of law needs to come, not from international actors with their varying realpolitik interests, but from the strength of public opinion in Sri Lanka, which should unceasingly demand accountability and justice from the country’s rulers.

The writer is Deputy Director, Law and Society Trust (LST), public interest lawyer and legal consultant/media columnist to The Sunday Times, Colombo