Discussion Paper

THE COMMISSION OF INQUIRY AND

THE INTERNATIONAL INDEPENDENT GROUP OF EMINENT PERSONS

Presented at a discussion organized by

The Centre for Policy Alternatives (CPA)
20th 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). Many
of the issues highlighted in this document have previously been raised by CPA in its
policy briefs.1 There is limited or no evidence demonstrating that these issues have been
adequately addressed by the authorities and other relevant actors. CPA stresses the
need for the authorities to speedily and effectively address these issues.

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

objectives?

The steady increase in grievous human rights violations throughout Sri Lanka and the
delays and interferences experienced with inquiries have resulted in a culture of
impunity. The non constitution of the Constitutional Council under the 17th Amendment
to the Constitution, followed by the President’s unilateral and arbitrary appointment of
members to the independent commissions including the Human Rights Commission
(HRC) and Police Commission2, the Attorney General (AG), the Auditor General, the
Inspector General of Police (IGP), Justices of the Supreme Court and Court of Appeal3,
have called into question the independence and impartiality of such bodies, the legal
validity of their standing and the increasing politicization of such actors and institutions.
Increasing control and interference by the Executive, coupled with the limited capacity
of government structures to deal with mounting human rights cases and the lack of
confidence among the general public in the national law enforcement agencies including
the AG, have resulted in large numbers of human rights violations being either
unreported, not investigated in an independent manner or in delays in instituting
criminal prosecutions. In response to the mounting calls for international human rights
monitoring, 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 17th Amendment provides that no person shall be appointed by the President as the
Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a
recommendation of the Council.
33
Article 41C(1) of the 17th Amendment provides that no person shall be appointed by the President to
any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by
the Council upon a recommendation made to the Council by the President.

Copyright © Centre for Policy Alternatives (CPA) August 2007 1

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

The increasing human rights violations in the country demonstrate that the
establishment 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 to
human 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 based
presence for human rights protection is vested with greater urgency. Such sentiments
were also stressed in the first public statement issued by the IIGEP on 11 June 2007. The
IIGEP stated that the CoI and IIGEP should not be used as a substitute for national and
international monitoring.

2. Are the investigations independent?

Role of the AG’s department

Independence is a vital and necessary ingredient in any successful investigation and
inquiry. Both statements issued by the IIGEP4 discuss the role of the AG’s department in
the investigations and inquiries and raise concerns regarding independence and conflict
of 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 the
officers of the AG’s Department are not involved in criminal investigations or in directing
the conduct of criminal investigations and are only involved in providing legal advice to
investigators. The AG in his letter to Justice Bhagwati5 goes on to say that officers of the
AG’s Department do not “manage, direct, supervise or take part in investigations, the
conduct of criminal investigations remains the sole responsibility of the law enforcement
agencies, such as the police”.

The Chairman further states that ‘the professional function of the AG’s department
commences only upon the completion of criminal investigations’.

The above statements by both the AG and the Chairman create confusion as to the exact
role of the AG’s department. While both claim that officers of the AG’s department are
not to be involved in the criminal investigations, they concede that legal advice will be
provided 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 AG’s
department are not to be involved in the process?

4
The first public statement was issued 11 June 2007. The second 15 June 2007
5
Dated 18 June 2007

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

In the event legal advice is provided by counsel of the state on a particular issue, it is
expected 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 in
subsequent criminal proceedings. State counsel who are privy to information at the
investigation 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 counsel
providing legal advice in the investigations and being involved in legal proceedings may
not 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 AG’s department only
commences after the completion of investigations.

• Does this mean that providing legal advice constitutes acting in a private capacity
and beyond their professional function?
• If that is the case, the question is whether state counsel can act in their private
capacity in criminal investigations conducted by the State?

The issue of the involvement of officers of the AG’s department in investigations and
inquiries of the 16 cases need to be reconsidered. This is largely because the exact role
of the AG’s department remains ambiguous, with both the Chairman and the AG
admitting that the department’s involvement and functions will commence prior to
criminal proceedings. In such a situation where there is ambiguity with no clear
guidelines 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 AG
and his department in ensuring justice in the cases of human rights violations and
stresses that the above statement is not a blanket criticism of all state counsel. It points
to the lack of clear demarcations between private and professional functions, and
guidelines on ensuring independence and impartiality in investigations and inquiries
before the CoI.

The CoI is to have a Panel of Counsel, comprising of six members of the AG’s 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 in
investigations and inquiries of this, or indeed any other nature. Such a measure would
give confidence to victims, witnesses and the public to come forward with evidence and
information.

• What is the role of the Panel of Counsel?

• Who should be part of the Panel of Counsel?

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

Involvement of the AG’s department in the process of investigations and inquiries of the
CoI and IIGEP, further raises concern pertaining to public perceptions. With the
increasing involvement of the AG’s department, many will question whether the CoI and
IIGEP are in reality independent of the State or whether they are indeed functioning with
and/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. The
statement states that the finances are managed by the Presidential Secretariat and that
the CoI does not have financial independence. Financial independence is crucial for the
functioning of an independent commission, demonstrating their ability to act
independently and not be dependent on an external actor. By imposing various
restrictions and delaying funding to the CoI, the Government is in reality controlling the
functioning of the CoI and the investigations and inquiries.
In his letter to Justice Bhagwati, the AG points out that the Presidential Secretariat has
already 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 the
Presidential Secretariat.
• Financial control by the Government and the reliance on the Government for
funding begs the question whether the CoI has actual independence and
autonomy 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 the
investigations and inquiries. The IIGEP states that the CoI only commenced preliminary
investigations and inquiries in May 2007, despite the warrant being issued in November
2006- six months earlier.

The IIGEP further questions the functioning of the CoI and the processes followed. They
highlight the lack of transparency in internal processes, the failure to announce a
detailed work plan, in recruiting essential staff and in sharing evidence and information
in the possession of the government with the IIGEP as well as the non functioning of the
investigative and witness protection units. The IIGEP goes on to state that such delays
“undermine public confidence in the ability of the Commission to carry out its mandate
in a timely manner”.

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The Chairman states that the CoI established several mechanisms6 and did not rush into
investigations and inquiries so as to ensure that there was an appropriate, systematic
and transparent internal system.

The AG in his reply to the first IIGEP statement states that the CoI only commenced work
on 12th February 2007. He attributes this largely to the last nomination of the IIGEP only
being received on 9th February. He fails to address the government’s delay in accepting
the 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 different
sections 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 providing
funding for the functioning of the CoI, with the CoI being unable to recruit the necessary
staff for the investigations. There have also been delays in obtaining information and
evidence 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 killing
of the 17 ACF workers. The sessions involve the questioning of actors related to the case
and are not open to the public. It has been reported that these sessions involve only the
CoI, IIGEP, officers from the AG’s department and witnesses. Representatives from ACF
or their counsel have not been given access. It has also been noted that these sessions
are initial measures taken prior to the official hearing of the CoI. Therefore it can be
assumed that the investigations and inquiries into the ACF killings are still very much in
their infancy, with a longer process expected when official proceedings commence. It
has also been reported that the statements made by witnesses and others during the
present sessions, will have to be taken down again by the Police for it to be admissible in
court 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 Structure
and 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.

Copyright © Centre for Policy Alternatives (CPA) August 2007 5

be asked and the same information, provided twice. The CoI must ensure that this
aspect is addressed. There should be no wastage of time and duplication of effort – the
statement 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 other
relevant information is made available. This involves the sharing of information collected
by 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 the
CoI is obtaining information pertaining to cases within their mandate. According to
media reports, the CoI has had difficulties obtaining government records of
investigations conducted. In the case of the assassination of the former foreign minister
Lakshman 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 interfere
with future investigations. The court also observed that no Commission or person except
the Attorney General should be allowed to file indictments in this case. This order sends
a clear message to the CoI, the IIGEP and the public, on the unwillingness of the State to
assist with the investigations and inquiries, and of the extent of its commitment to bring
to justice the perpetrators of human rights violations. This setback in obtaining
information highlights not only the bureaucracy within the justice and law enforcement
system but increasing government control and interference in investigations. This raises
a 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 and
inquiries and not providing the information required?
• By not providing information directly pertaining to the cases, is the Government
and 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 reluctant
to make representations as they lack the confidence that the will be protected from

7
Daily Mirror, March 30, 2007

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reprisals. This is due to a variety of reasons including a lack of trust in institutions such as
the AG’s department, the police, public service, the judiciary and the Human Rights
Commission. There is also no witness and victim protection legislation in Sri Lanka. These
factors have hindered many people from coming forward with information and
evidence. 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 to
the 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 the
lives of people close to them are safe. This will ensure their confidence in coming
forward with evidence and information.

The Chairman in his reply to the IIGEP statement recognizes the difficulties faced in
developing a victim and witness assistance and protection scheme and goes on to state
that 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 the
absence of a national law?
• In the event a national law is formulated, would it actually protect victims and
witnesses?
• 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 investigation
and speak to as many people as possible related to the cases. Such visits and meetings
must 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 and
Muttur in April9 and subsequent visits made by the IIGEP to Kantale and Batticaloa and
other areas are welcomed.

8
Daily Mirror, March 20, 2007
9
Sunday Leader, April 29, 2007

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The visit by the IIGEP to Kantale magistrate’s courts to observe the inquest of the ACF
killings has come under attack by the AG. In his letter to Justice Bhagwati, the AG
criticizes the presence of a member of the IIGEP and an assistant to the IIGEP at the
inquest, their subsequent meeting with the Magistrate in his chambers and them
handing 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 only
acting in excess of the mandate, it amounts to an improper interference with the judicial
system 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, as
to whether the IIGEP actually interfered in the inquest proceedings needs to be further
examined. The visit by the IIGEP was to observe the conclusion of the inquest. The
verdict was issued prior to the meeting with the Magistrate. Therefore it is unclear how
the presence of the IIGEP at the inquest and the subsequent meeting could have been
an interference with the judicial system. Further, the document which is a report by the
International Commission of Jurists (ICJ) is a public document which can be obtained by
anyone. It has been widely quoted in the media. Accordingly, the document was widely
available; the Magistrate and others associated with the inquest could have had prior
access to it.

Members of the IIGEP made a subsequent visit to Batticaloa to visit the site of one of the
killings included in the 16 cases, the killing of Parliamentarian Joseph Pararajasingham
on 24th December 2005 at the Batticaloa Cathedral. It has been reported that during the
visit by the IIGEP there were meetings with various local actors. Subsequent to the visit it
has been reported that one of the offices visited was attacked. This raises concern with
regard to the security of people and places visited by the CoI and IIGEP, and reinforces
the 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. Without
an effective victim and witness protection plan in place, there is the risk of endangering
the security of witnesses and communities. In addition, hesitation on the part of people
in coming forward will persist.

The AG’s letter to Justice Bhagwati also raises the issue of the mandate of the IIGEP to
observe and interview witnesses. The AG states that “It does not enable or empower the
IIGEP to observe investigations and inquiries conducted by the routine competent
authorities, and in particular judicial proceedings. Nor would it empower for example
the IIGEP to interview or record the statements of possible witnesses either in Sri Lanka
or overseas”. The IIGEP has been invited by the government to observe the
investigations and inquiries into the 16 cases before the CoI. It must be emphasized that
the IIGEP is here at the invitation of the government, is appointed to ensure that
investigations and inquiries are conducted according to internationally accepted norms
and standards. In such a situation, the government and its officials must make every
effort 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

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

This further highlights the intrusive role of the AG’s department in the investigations and
inquiries. The letter to Justice Bhagwati, subsequently made public, reflects the AG’s
belief that he has the authority to write directly to the IIGEP. Neither the TOR nor any
other document related to the investigations and inquiries provide the AG with such
excessive powers to chastise a senior jurist in this way, a jurist who is present in Sri
Lanka at the invitation of the State. The AG and other state officials should desist from
making such statements. Any issues with the IIGEP should be dealt with them directly by
the 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 the
relevant groups on the progress in investigations and inquiries. Further, measures should
be taken to ensure that such consultations are conducted in a manner that ensures the
security and confidence of witnesses and communities in the areas. Creating such
information channels will not only keep all actors informed and provide transparency to
the process, but also build public confidence. Two meetings initiated by the CoI with civil
society have taken place. While the first meeting was announced publicly with sufficient
time given, the second meeting was called in a rushed manner. Many civil society actors
were unaware of such a meeting. Consequently, as none of the local actors were
informed, only a few Colombo based organizations were present. It is also hoped that
the CoI will ensure there is a regular and transparent flow of information pertaining to
the 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 Sri
Lanka to observe the investigations and inquiries. According to the TOR, members of the
IIGEP are not expected to spend long periods of time in Sri Lanka, and will be expected
to work on a rotational basis agreed upon by them. Such a level of involvement also
raises issues on the exact nature of the work of the IIGEP, as none of the members are
expected to be continuously present. Visits by members on a rotational basis may prove
counter productive. They will not be identified by victims, witnesses and affected
persons as being fully involved in the process and the latter’s confidence in the process

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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 and
extent of their involvement in the investigations and inquiries. It also opens the door to
attacks 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, providing
transparency to the process and building public confidence through these and other
measures including systematic information flow on the progress made by the CoI and
IIGEP in relation to the investigations and inquiries. The government should also make
every effort to make available all documents related to the investigations and inquiries
and assist in other forms in the process.

CPA welcomes the statement made by the AG in response to the IIGEP’s public
statement, 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 with
regard to the process to be followed but also in respect of the intention behind such an
amendment. The 1948 Act focuses directly on inquiry. Section 2 (1) provides “Whenever
it appears to the President to be necessary that an inquiry should be held and
information 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 to
investigate 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 conducted
“in the public interest, public safety and welfare of the people of the Democratic
Socialist Republic of Sri Lanka”. It is recommended that the government immediately
addresses the shortfalls in relation to the CoI and IIGEP that have been raised in this
paper and elsewhere. Most importantly, it is vital that the authorities take measures to
legalise the investigations and inquiries that are underway in a transparent manner and
in line with international norms and standards.

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