Sri Lankan law broadly allows for two distinct types of commissions of inquiry to be appointed by the President. The first are commissions of inquiry (CoI) established in terms of the Commissions of Inquiry Act No 17 of 1948. The second are Special Presidential Commissions of Inquiry established in terms of the Special Presidential Commissions of Inquiry Law, No. 7 of 1978. The former is essentially a fact-finding body with comparatively limited punitive powers. Dozens of CoI’s have been appointed in the last 20 years. In fact, as was reported to Parliament in 2014, 17 such CoI’s were appointed between 2005 and 2013. These CoI’s cost taxpayers millions of rupees but their final reports are rarely made public and even if they are made public the recommendations of these CoI’s are almost never implemented.
Special Presidential Commissions of Inquiry on the other hand are a more insidious creatureof the law. The Reports of Special Presidential Commissions of Inquiry have inundated the media recently. As such this article will focus only on these Special Presidential Commissions of Inquiry (“Commissions”) and its impact on the independence of the judiciary. Specifically, this article will discuss the impact of appointing sitting or retired judges to serve on these Commissions.
There have been challenges to the manner in which the appointed Commissions functioned. Their recommendations have been challenged as woefully inadequate, going beyond the terms of reference or not having considered the fundamental issued referred to the Commissionas well as the challenge that the Commission has made tangentialrecommendations outside its statutory mandate or powers. The allegations abound that the Commissioners are merely fulfilling the dictates of some puppeteers for an ulterior purpose. At the bottom of it all is the sad fact that some Members of these Commissions are retired or functioning judges of apex Courts who are expected to be persons of undisputed integrity and objectivity especially as such appointees carry the prefix of “Justice”.
History of the Special Presidential Commissions of Inquiry Act
The enactment of the Special Presidential Commissions of Inquiry Act No. 7 of 1978itself smacks of a sordid past. In 1978 then President J.R. Jayewardene is alleged to have used his bumper majority in Parliament toenact this ad hominem Law with retrospective operation to fix his political opponents, the main person being Sirimavo Bandaranaike who previously held the post of Prime Minister. The circumstance behind this enactment at that time including challenges and litigation are well documented. Mrs. Sirimavo Bandaranaike was eventually stripped of her civic rights and hooted out of Parliament in the most disgraceful manner and unbecoming of Parliamentarians. To the credit of some Parliamentarians there were those including some belonging to the governing party who opposed this move to strip Mrs. Bandaranaike of her civic rights (a trait of Parliamentarians to oppose on principle seldom seen today). Alas the majority vote (which is not necessarily right) prevailed to achieve the objective of depriving her of her rights.
This law has been used by several Presidents of Sri Lanka to get at their political opponents. Former President MahindaRajapakse is credited as being the only President who did not resort to this law to deal with his opponents.
Justification for the Law
It has been sought to justify this law as having as its objectivea fact finding function and providing recommendations towards taking of further steps by legitimate authority including the imposition of civic disability. Whether the function has been actually so on the findings of these Commissions is greatly debatable. Additionally, it is alleged that this law provides a speedy fact finding mechanism as contrasted with the procedure of Courts which are tardy or long drawn. As to whether Court procedures as at present are outdated, resulting in courts and the legal system becoming irrelevant is an aspect which though spoken of, very little has been consistently andperiodically addressed apart from reports, speeches, projects and knee jerk reforms with little lasting effects.
So the issue arises as to whether the enactment of the Special Presidential Commissions of Inquiry Act of No. 7 of 1978 is a remedy for the sluggishness of Courts or is an undermining of the Rule of Law. It is theCourts that are constitutionally entrenched bodies to ensure the Rule of Law and the ultimate bastion against abuse.Subject to the rules on jurisdiction and standing, any person can invoke the jurisdiction of Courts against a violation of their rights. However, these Special Presidential Commissions of Inquiry are forums created by the President for issues he thinks are worthy of consideration. The history of these Commissions has shown that they have often been used as political tools and mechanisms to prosecute political opponents.
Implications for the Judiciary
In the past, Commissions have been set up under the Act by one political dispensation to “fact find” matters related to another political dispensation. This has been suggestive of a political witch hunt.
Unfortunately, S. 2(1) of the act mandates that all members of the Commission shall beconstituted of Judges of the Supreme Court or of any other court not below a District Court. However, considering the history of these commissions raises the question as to whetherjudges, or at least by the virtue of the office they hold, should get involved in this type of political exercise? The writer has always been averseto the appointment of judges, especially sitting judges, to these Commissions. The fact that the selection of judges or retired judges to these Commissions is done at the discretion of the President of Sri Lanka raises the question as to why a particular judge has been selected or favoured among several to be so appointed. Such does not augur well for the independence and integrity of the judiciary as an institution.
In the not so recent past, the Bar Association of Sri Lanka has been critical especially when sitting judges are appointed toCoI’s and to these Commissions. Quite apart from the heavyworkload and back log in all Courts, such appointments itself can sully the reputation of the judiciary when some judicial officers are selected thereby raising the query whether they are “axe men” of the appointing powers that be.
The very act of appointment, especially of sitting judges, to these Commissions in matters politically contentious in nature, undermines and erodes the reputation of the Judiciary itself as having persons who can be cherry picked towards the objectives of politicians. Even the appointment of retired judges too close upon their retirement could evoke suspicions as to whether their term of office on the bench had political implications.
This has to be contrasted with instances where judges have been appointed in other jurisdictions not involving a country’s internal political issues but where international espionage was concerned and also where there are safeguards to ensure Commissioners are appointed transparently without political agendas. An example is Lord Denning’s appointment to conduct a judicial inquiry into the Profumo Affair, inquiring into a possible national security risk, when the Secretary of State for War, John Profumo, was found to have been having an affair with a young model, Christine Keeler, who in turn was having an affair with the Soviet naval attaché in London, a presumed spy.
In Britain today we have the setting up of a panel under the Inquiries Act of 2005 which provides safeguards when judges are to be appointed under this Act. A Minister can cause an inquiry to be held where it appears to him that:
In the event the Minister proposes to appoint a Judge to the panel, he has to first consult the person specified (senior members of the Judiciary) thereto. Thus there is no free-hand given to the Executive in appointing a Judge to the panel.
The Legal Profession, includingpolitical parties, politicians, clergy, religious and other persons have been casting aspersions on the Justices or retired Justices who sat on Commissions or their findings. Motives havebeen attributed to the Commissions / Commissioners by the procedures they adopted, the powers they claimed to exercise and or their having avoided critical issues or tasks with which they had been entrusted. Would at least any self-respecting member of the judiciary envy sitting on such Commissions quite apart from realizing the damage it does to the Judiciary as a whole for generations to come? What would the public perception of such judges be or for that matter the public perception of the Judiciary itself? After all, the Judiciary is Custodian and trustee of the rights of the people in what should be a democratic society. It has to adjudicate between citizen and citizen and a citizen and the State. Can it be considered a power in the hands of the politicians?
Rumours abound in Hulftsdorp that sitting judges \have been appointed to Commissions notwithstanding their reluctance to accept such appointment or to function as such. Are we destroying an institution in which the ultimate hope for justice should reside? Another relevant factor is the colossal waste of much needed public finances on these Commissions where their reports languish not even in archives and very little of significance becomes the outcome of these Commissions quite apart from “Bad Dreams”.
Is it not time that this Act is re-looked at or revamped if not preferably done away with?