Commission Response to both Statements
8th June 2007
First Public Statement :
It was in November 2006 that the President of Sri Lanka established this Commission of Inquiry. From the date of the establishment of the COI, it commenced taking effective measures to develop, establish and set in place its internal working structures. This was done by the development of the ‘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 the ‘Mandate, Organizational Structure and Rules of Procedure of the Investigation Unit’. I believe it was necessary for the Commission to in keeping with best practices and international norms develop these structures prior to commencing any investigations or inquiries. Had the COI rushed into commence investigations and inquiries without having its own internal systems in place, a justifiable criticism could have been made that the COI had ‘rushed into work, without developing an appropriate and systematic internal and transparent system’. These internal constitutional documents have been made available to the IIGEP, and any form of comment has been received only with regards to the role of counsel from the Attorney General’s Department in the COI. Thus, the Commission can infer that, the rest of the system and the rules are in the view of the IIGEP in accordance with international norms and standards.
Soon following the development of internal mechanisms and structure, the Commission commenced its first investigation, based on a Plan of Investigation developed and adopted by the COI. The first case being investigated is the incident pertaining to the killing of 17 aid workers of ACF in Muttur, in August 2007.
An issue has been raised that, the participation of counsel from the Attorney General’s Department affects public perceptions pertaining to the independence of the COI. It was the COI that invited the Attorney General to nominate a few officers to assist the Commission. Following the nominations being sent, the COI considered the nominations and appointed five officers who possess necessary academic qualifications, experience and expertise to serve as members of the Panel of Counsel of the Commission. The Commission was satisfied with their professional abilities and integrity. These officers do not possess any prerogative power when functioning in the Commission in any particular manner, nor would they have any reason not to act in the best interests of justice and fair play. None of them or any other officer of the Attorney General’s Department have taken part in any criminal investigation, or directed the conduct of criminal investigations. That is the statutory function of police officers. Under the Sri Lankan law and practice, during the course of an investigation, the Attorney General and his officers only provide legal ‘advice’ to criminal investigators. The professional function of the Attorney General commences only upon the completion of criminal investigations, for the purpose of considering the institution of criminal proceedings. Thereafter, he launches and conducts the criminal prosecution, which functions are done in a quasi-judicial manner. In the COI, officers of the AG’s Department have a very limited function, and that too to be exercised in accordance with directions and under the supervision of the COI. The Commission does not see any basis to doubt that officers of the Attorney General’s Department would find themselves investigating their own officers. In view of the terms of reference of the COI, we do not see any basis to even doubt that a need would arise to summon officers of the Attorney General’s Department to testify as witnesses. We are also satisfied that, they do not face any situation involving a conflict of interest. We are satisfied regarding their professional integrity and the professional services being rendered to the COI by officers of the Attorney General’s Department.
When the Chairman of the IIGEP originally made his observations known to the COI regarding the participation of Counsel from the AG’s Department in the COI, with the view to creating an institutional mechanism in which the independence of counsel assisting the COI would be manifest, the COI established a parallel Panel of Counsel comprising members of the unofficial bar. Two very senior and eminent private practitioners were appointed by the COI to work alongside officers of the AG’s Department.
Indeed, due to the absence of legislation at a national level regulating the provision of assistance and protection to victims of crime and witnesses, the COI has been constrained in its activities in regard to the development of a victim and witness Assistance and Protection scheme. The COI understands that, a national law on the matter is presently being developed by the Law Commission. Notwithstanding the absence of such specific legislation, the Commission has developed its own ‘Scheme of Assistance and Protection’, and upon being submitted to the IIGEP, it has not yet adversely commented on the scheme. Thus the Commission reasonably believes that, even according to the IIGEP, the ‘Mandate, Organizational Structure and Rules of Procedure’ of the ‘Victim and Witness Assistance and Protection Unit’ and the ‘Scheme of Assistance and Protection’ are in accordance with international norms and standards. The COI has had to start from the very beginning by setting in place the scheme, recruiting necessary personnel, and obtaining necessary resources. Therefore, it has taken some time to effectively set in motion the system of assistance and protection.
On the 14th of May 2007, the COI commenced investigating the first case, i.e. the killing of 17 workers of ACF. This was based on a previously developed ‘Plan of Investigation’, a copy of which has been transmitted to the IIGEP, and in respect of which the IIGEP to-date has not made any adverse comments. This leads to the inference that the IIGEP is satisfied that the said plan of investigation meets with international norms and standards. The investigation takes two forms. On the one hand, members of the Commission directly interviews possible witnesses. Parallel to that, officers of the Investigation Unit acting under the supervision of the Commission conducts fresh criminal investigations. So far, the Commission has been conducting Sessions of Investigations on two days of the week, and from the 1st of June 2007, sessions will be held on three days of the week. These days have been made known to the IIGEP in advance. The Investigation Unit works daily. In the circumstances, since the COI has commenced its work proper and is committed to work continuously, the Commission hopes that the IIGEP would give effect to its mandate and members of the IIGEP would be present in Sri Lanka to observe the work of the COI.
The Commission is presently engaged in a discussion with the Presidential Secretariat to ensure that, funds required for the efficient functioning of the COI are available readily. The Government has assured the COI that it will make available all required resources for the Commission.
Members of the Commission are confident that, the COI could continue to discharge its functions independently, and that, the mandate of the Commission can be implemented in the best interests of justice. The Commissioners are committed to ensure that, perpetrators of serious violations of Human Rights (who have been involved in incidents falling within the mandate of the Commission) are properly identified and sufficient material is collected enabling their prosecution in courts of law.
Second Public Statement :
This Statement also contains the views of the IIGEP pertaining to the issue relating to the participation of Counsel from the Attorney General’s Department in the work of the Commission. The Commission has dealt with this issue in its observations regarding the first Public Statement of the IIGEP. We wish to state that, the Commission is satisfied regarding the professional services being given to the COI by members of the Panel of Counsel from the Official Bar (Attorney General’s Department). They remain under the supervision of the Commission and the Counsel perform functions entrusted to them in accordance with the wishes of the Commission.
The Commission is presently taking necessary steps to activate the ‘Panel of Counsel from the Unofficial Bar’.
We are confident that, in accordance with the rules of procedure of the Commission and the practices of the Commission applied so far, the Commission would be able to identify those responsible for having committed Human Rights violations pertaining to incidents being investigated and inquired into by the COI.
The Commission wishes to take this opportunity to request the IIGEP to ensure that, at least one Member of the IIGEP is present in Colombo to observe the investigations and inquiries of the COI. We feel that, such direct observation of the Commission by Members themselves would provide to the IIGEP a clear picture and would erase possibly doubts regarding the efficacy of the Commission.
N. K. Udalagama, Chairman
