on Commission of Inquiry and IIGEP
The Centre for Policy Alternatives (CPA) has produced a commentary
on the Commission of Inquiry (CoI) and the International Independent
Group of Eminent Persons (IIGEP) appointed by President Mahinda
Rajapaksa in 2006 outlining its key concerns on these matters. Following
are extracts from the paper.
The appointment of the Presidential Commission on November 3, 2006 by
President Mahinda Rajapaksa under the Commissions of Inquiry Act 1948,
and the subsequent issuance of the Terms of Reference (TOR) for the
IIGEP, resulted in debate and discussion on the rationale, mandate and
powers, membership, and practical outcomes of both the CoI and the IIGEP.
The paper aims to not only focus on the key characteristics of both the
CoI and the IIGEP, but also to highlight the importance of good
governance principles, human rights norms and the rule of law.
At the outset, the importance of investigating human rights violations
and holding perpetrators accountable, as well as restoring confidence in
the justice system, must be reiterated. CPA and other civil society
actors have continuously called on the State and other actors to address
several issues, including the deteriorating human rights and
humanitarian situation, the reconstitution of the Constitution Council
and the appointment of the independent commissions including the Human
Rights Commission (HRC) in accordance with the law. The announcement on
September 4, 2006 by President Rajapakse pledging to establish an
international independent commission to probe abductions, disappearances
and extra-judicial killings in all areas of Sri Lanka was welcomed by
civil society actors, who pointed out the importance of investigating
and bringing to justice the perpetrators and, at the same time, called
for an international human rights monitoring body that could monitor the
The key recommendations made by CPA in the paper to the Government and
other actors are:
= To develop the mandate of the CoI and IIGEP and appoint members to
both bodies in consultation with relevant stakeholders including victims
and affected persons, families and civil society. The appointing of
members and the conducting of investigations and inquiries should be
conducted in a transparent manner.
= To ensure that the CoI and IIGEP are composed of independent and
impartial experts who would be able to conduct a comprehensive
investigation and inquiry into the human rights violations and bestow
confidence in the process.
= To have a mixture of national and international members in the CoI
which will provide greater legitimacy to the CoI, provide greater access
to areas and persons and strengthen the aspect of independence and
impartiality in the CoI.
= To ensure that CoI and IIGEP have unimpeded access to all areas,
persons and documents.
= To make public the information available to the CoI and IIGEP unless
perceived as a threat to victims, affected families and witnesses. All
reports issued by the CoI and IIGEP should be made public speedily, with
all effort taken to implement the recommendations and initiate criminal
proceedings against identified perpetrators.
= Members of the CoI and IIGEP should not be imposed with unnecessary
restrictions on receiving evidence and issuing statements and reports,
unless seen as a threat to victims, witnesses and affected persons. CPA
urges the authorities to remove undue control on the CoI and IIGEP that
could lead to undermining their independence and impartiality.
= To take concrete measures to have witness protection within the
justice system, taking on board practical difficulties and the public
confidence in the police and the military.
= To ensure that recommendations made by both the CoI and IIGEP are
speedily implemented, with follow up action initiated. If necessary to
establish a separate body to ensure follow up is taken
= To suspend government and military officials who are under
investigation and are implicated with violations within the mandate of
the CoI and IIGEP
= To invite the services of international and independent forensic and
other experts to facilitate the investigations and inquiries
= To establish a comprehensive compensation scheme in consultation with
relevant stakeholders which will be used as a minimum in deciding and
= To establish an independent body comprising of both national and
international members to monitor human rights violations.
The paper aims to not only highlight certain shortcomings of the CoI and
the IIGEP, it also draws attention to larger governance and human rights
issues that need to be considered by the authorities and other
stakeholders. In light of the non constitution of the Constitutional
Council and national commissions, and the lack of confidence in the
existing law enforcement agencies, it is essential to establish a
mechanism capable of investigating the increasing numbers of human
rights violations and delivering justice to the victims and their
families. While welcoming an independent mechanism that is capable of
investigating and inquiring into human rights violations, the paper
questions the rationale and need for two separate bodies, the CoI and
IIGEP, and the process in which members to the two bodies were
The paper also draws attention to the shortcomings of investigations and
inquiries by the CoI and IIGEP, as well as shortcomings within the
justice system. The issues include delays and bureaucracy within the
system, conducting investigations and inquiries in a transparent manner,
holding perpetrators accountable and addressing the culture of impunity,
key issues that need to be addressed to ensure justice can be delivered
speedily and effectively, and thereby reviving public confidence in the
system. CPA also reiterates the importance of the CoI and IIGEP having
utmost independence and conducts their duties in an impartial and
neutral manner. Therefore, CPA emphasizes the importance of removing any
undue influence and control on the IIGEP by the authorities, and that
they are allowed to receive evidence and issue statements freely. While
the paper highlights several key issues that are imperative in
conducting investigations and inquiries, it also vital that the process
upholds good governance principles, human rights norms and the rule of
Smoking in public
By Dharmapala Senaratne
There have been quite a number of news reports in the media, both print
and electronic, on prosecutions by the police of persons found smoking
in public under the National Authority on Tobacco and Alcohol Act. Most
of them were reportedly dismissed by the respective Magistrates with a
reprimand to the prosecuting police officer!
Added to it, this writer is disturbed by regular telephone calls by
those who have read ‘New law on tobacco and alcohol’, appearing in The
Nation of October 8, 2006. Hence, an explanation is called for.
The police seem to have a field day in no man’s land. Somebody was heard
to say that the new law is an indirect increase of the salary of corrupt
policemen. Or, perhaps they are simply being over-enthusiastic.
Smokers have rights which must be looked after and manufacturers of
tobacco products are reportedly endeavouring to do so. According to
reports, they are collecting data on such unlawful prosecutions.
Furthermore, recent propaganda on adverse effects of smoking is so
highly exaggerated as to be all but absurd and ludicrous.
This statement should not be misconstrued as advocating or encouraging
smoking. But moralistic conduct must be distinguished from lawful
conduct. And all citizens must be conscious of the distinction.
It must be emphasized that the police have to act within the four
corners of the law. The police authorities must enlighten their officers
on what the law is. They have no business to arrest a person merely
because he was seen smoking in public.
According to one press report, a person was so arrested, taken to the
station and asked to stand on a chair for one hour by way of punishment!
The police must be made aware of their rights, duties and limitations.
Enforcement of morals is not their business. The sad consequences that
may follow if they attempt to impose their own standards of morality on
others disregarding its legality have been pointed out previously in
See ‘The police have no say in adultery and in peoples’ morals’ in The
Nation of June 11, 2006 about a case where the Supreme Court ordered the
Officer in Charge, Dankotuwa Police Station, and other respondents to
pay to the petitioner a sum of Rs. 55, 000/= by way of compensation and
The relevant provision in the Act pertaining to smoking in public reads
as follows. ‘No person shall smoke or allow smoking any tobacco product
within any enclosed public place’. [Section 39 (1)] Here and in
subsection 2, it must be noted, the expression ‘enclosed public place’
occurs three times.
Subsection (5) gives an inclusory definition of this expression. Thus,
it is an essential ingredient for the constitution of this offence that
the offender must have acted in the prohibited manner in an enclosed
Here, ‘public place means any place to which the public have access
whether as of right or otherwise’. Thus, obviously, seashore or even a
bus station which is not enclosed is not caught up in this provision.
Furthermore, policemen may make note that even in certain specified
enclosed public places such as hotels, restaurants, clubs, airport,
etc., some latitude is granted in favour of smokers, in terms of the
proviso to Section (39) (2). Thus, an enclosed area within the premises
may be set aside exclusively for smoking.
It is, however required that there must be adequate ventilation here. It
should also conform to the prescribed air quality standards. But when I
once walked into such an area at the Bangkok airport, it was found to be
a veritable smoke room with totally insufficient ventilation.
The offence under the relevant provision is to be summarily tried before
a Magistrate. The conviction will carry a penalty of a fine up to Rs.
2000/= or an imprisonment extending up to one year or both.
It should be specifically mentioned that the Act has not prohibited
taking intoxicating liquors at public places. This is a serious lacuna
in the law in that nowhere on our Statute Book is such a prohibition
available, according to a well-known criminal lawyer who is President’s
Sometime ago, Secretary, Ministry of Defence, in his ignorance, advised
the IGP to take action against such drinkers whereupon I had to warn the
IGP through the press against taking such unlawful steps which could
bring forth distasteful consequences upon the police, as it happened to
the OIC, Dankotuwa Police Station as mentioned above.
The writer is an attorney-at-law