Procedure before the Presidential Commission of Inquiry

Background and mandate

After the killings, and in response to numerous pressures from the international community in favour of establishing a surveillance mechanism to monitor human rights in Sri Lanka, President Mahinda Rajapksa created an inquiry commission. On 6th October 2006, the president appointed a Presidential Inquiry Commission in charge of examining 15 cases of human rights violations (to which a 16th case was later added), amongst which was the case of the 17 murdered ACF employees. The Presidential Commission’s mandate is to present the President with the facts and circumstances related to the incidents; and to make recommendations on the decisions to be taken against the persons responsible for these violations, and on measures that should be taken to avoid a repeat of such incidents. However the Commission cannot make constraining decisions.

This Presidential Commission consists of 8 Sri Lankan members whose work is monitored by a group of 11 international experts (International Independent Group of Eminent Persons - IIGEP). These two bodies have quite different mandates: the principal directive of the group of experts was to observe the work of the Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (“the Commission”), “with a view to satisfying that such inquiries are conducted in a transparent manner and in accordance with basic international norms and standards pertaining to investigations and inquiries.”

By the fact that the IIGEP was only allowed a mere observer’ role, the mixed team that made up the Commission was unable to generate better results than the other proceedings. After a year on the job, the members of the IIGEP has decided to close their mission on March 31, 2008 and to withdraw at the end of April of the same year, considering that their recommendations, rendered in quarterly reports, were not taken into consideration; that international norms and standards were not respected; and criticising the absence of will on the part of the government  to support a search for the truth.

Main critiques

The IIGEP members’ constant dissatisfaction with the failures to respect international norms and standards, together with ACF’s observations of a great number of procedural irregularities, have led the organisation to believe that these numerous problems not allow the identification of the perpetrators of the crime.

• Absence of judicial independence
The intrusion of the Attorney General  in the proceedings of the Commission has affected the independence of this institution. The Commission has created a real conflict of interest by giving the officers representing the Attorney General a mandate to guide the investigation on incidents that may have been committed by organs of the state (such as the police or the army); and on their own interventions with, and recommendations to, the police during the initial stages of the investigation. This role given to the representatives of the Attorney General, casts serious doubts on the neutrality of the Commission, and therefore on its independence. Furthermore, and despite numerous critiques expressed by the group of international observers on this subject, the Commission did not modify its behaviour.

• Lack of transparency
Dividing the proceedings into two distinct phases has directly interfered with the transparency of the process. The first phase of the investigation, which only started in May and ended in October 2007, consisted mainly of hearings of secondary witnesses. Unfortunately, the Commission early on decided to hold these hearings in camera that is, in the absence of any public observers (except the IIGEP) such as ACF, the family and representatives of the victims, or their attorneys. The Presidential Commission of inquiry flouts the principle of transparency and diminishes public trust in the institution and in the procedure.

The second phase of the proceedings, that is the public hearings, started at the end of March 2008. In the absence of an efficient witness protection programme and considering the circumstances, it is not very likely that any key witness, as well as the official designation of person criminally responsible of this war crime, will come forward.

• Absence of witness protection
Contrary to the Magistrate Court, the Commission of inquiry has been clearly instructed to find a solution to remedy the absence of a witness protection programme. Despite its promises, the Commission has never offered an efficient protection programme. Witnesses were summoned without any offer of assistance, when concrete security measures were absolutely necessary to enable the collection of crucial evidence.

• Non-compliance with the role of the IIGEP
All through the proceedings, the IIGEP has respected its mandate, releasing quarterly reports highlighting the failures of the Commission to apply international norms and standards during the inquiry. Most of its essential recommendations were disregarded by the Commission, raising the question on whether the IIGEP was only used as a showpiece for the benefit of the international community.

 Since the group of international observers withdrew from the Presidential Commission of Inquiry, the failure of this recourse has become obvious. With the departure of the IIGEP, ACF has lost confidence in this Commission. The organisation no longer believes in its capacity, will and commitment to totally respect the international norms and standards. Consequently, ACF estimates that the Commission is no longer able to conclude its proceedings; or formally identify the perpetrators of the crime; or issue recommendations to initiate criminal proceedings.

>> Report of the University Teachers for Human Rights (Jaffna) (UTHR)

 On April 1st, 2008, the University Teachers for Human Rights in Jaffna (in the Tamil part of the island), released the results of their own investigations in the Muttur case in a report. According to the thesis defended by the UTHR, the Muttur crime is linked to the January 2006 killings of five Tamil students in eastern Trincomalee.
 
 ACF has attentively read this report which delivers the facts with great precision; names the alleged perpetrators; and provides the motive for the Muttur killings. ACF is troubled by the level of details delivered in this report, when compared with the slow progress of the institutional proceedings. ACF takes cognizance of the content of this report issued by the UTHR, but its absolute priority remains to bring the perpetrators, their accomplices and collaborators, to justice and to have them legally prosecuted and convicted for their crimes.