Commissions of Inquiry under Sri Lankan Law: What Cost to Sri Lanka?

President receives the final report of the PCoI into the Easter Sunday attack

Sri Lanka has seen a dramatic proliferation of commissions of inquiry, set up to probe into high profile problems facing the governments of every hue. Commissions have been a feature of Sri Lankan government since independence and they have had a lasting presence in Sri Lankan political life and various forms of inquiry have developed over the years.  
 Whenever a tragedy or public scandal arises, demands to establish a new commission of inquiry has become a common place in Sri Lanka. This is a knee-jerk reaction allowing successive regimes to kick the problem into the long grass. 

This excuse/need for appointing commissions of inquiry has grown over the years because of the delays, inadequacies and the limitations of the ordinary process of law. One of the strongest incentives for a government to set up a commission of inquiry is the belief that the government will be able to remove an unpleasant controversy from political agenda.  People’s acceptance of commission’s report hinges on the perception that it is an objective and unbiased report. Mandate, working method, procedure, composition can be the determinant for its reception by the public. It is also important that their mandate should not contain penal consequences.
Commissions are designed to be fact focussed and they arrive at non binding conclusions and recommendations, as such they should not move beyond the task of fact finding and be involved in an analysis of law, which is a matter coming within the purview of ordinary courts.

Although there are numerous enactments which authorise the governmental authorities to institute inquiries in respect of many matters of importance, there are two important statutes which empower the President to institute inquiries in respect of matters which he considers to be in the public interest or public safety and welfare.
They are Special Presidential Commissions of Inquiry Act No, 7 of 1978 and the Commissions of Inquiry Act No.17 of 1948, which has since been amended from time. It is under these two enactments the President is empowered to commission inquiries into matters of public interest, such as wrong doings of persons occupying positions of political or governmental power.

Comparatively The Special Presidential commission Act is vested with more powers than the Commission of Inquiry Act 1947, as it can subject an individual who is found guilty to civic disability whereas a Commission of Inquiry is only a fact finding and exploratory body whose findings are not enforceable. 

The Central Bank Commission, Political Victimisation Commission and the Easter Sunday Attack Commission were among the many commissions of inquiry appointed by the present and past Presidents of this country under the Commission of Inquiry Act and the reports of the latter two commissions have not been seen in positive light and subject to a plenty of criticism and controversy. Commissions of inquiry should be w independent of the government. They must act strictly within their terms of reference and ensure their processes are within the law. 
As a fact finding body, the commissions have no power of adjudicating in the sense of passing penal sanctions, which is a task assigned to a court of law. The findings and of a recommendations can simply be rejected by the government. Even if accepted, the government is not bound take further action on them. Inquiries conducted by commissions cannot be looked upon as a judicial inquiry and it cannot usurp the powers of court of law. 
It is important any mechanism set up to investigate and expose should have adequate procedural safeguards for those against whom investigations are launched. This is all the more necessary if the penal consequences follow at the end of the inquiry. Commissions should command the respect and confidence of the general public and not pander to the political party in power.

As the sole object behind the appointment of a commission of inquiry is the ascertainment of all the relevant facts and the truth in regard to any of public importance and concern it would be necessary that such inquiry should be conducted with objectivity fairness having regard to principles of natural justice and fair play free from preconceived notions, as any adverse finding can cause irretrievable damage to the persons whose conduct was the subject of inquiry by a commission. 

Examination of Special Presidential Commission law shows, it does not provide customary procedural and evidentiary safeguards contemplated by Criminal Procedure Code and Evidence Ordinance of the country. Any person aggrieved by it has no right of appeal it further stipulates any report finding order, determination ruling or recommendation shall be final conclusive and shall not be called in question in any court by way of writ or otherwise. 

It is alleged that the Special Presidential Commission law was enacted by the United National Party following the election held in 1977 is in fact a legislative scheme, designed exposit facto, to disqualify and disenfranchise selected political opponents such as Sirimavo Bandaranaike on arbitrary grounds and is motivated by considerations of personal revenge and political expediency. Contrarily to the public expectations some commissions, which have been setup have not led to any tangible and meaningful result. As a result they tend to be treated with cynicism.

In the final analysis we are left with the following questions. 

Has anyone examined how many of the numerous commissions have had their recommendations implemented? Who is holding governments to account? Has anyone analysed the figures through an RTI request of what these various commissions have cost the tax payer? 

The recent Easter Sunday attack Commission, may enter the Guinness Book of Records, in the ‘longest report’ category: 100,000 pages. These commissions alone may no doubt have cost the taxpayer well over a million rupees, in time and resources. We have to ask ourselves, are we not better solving some of the inefficiencies in our legal processes, that would delivery faster justice through the prosecutorial process, rather than spending millions on producing reports. If the justice sector does not resolve these issues, the public will treat such commission reports with continues cynicism, perhaps, deservedly so.
Are we creating commissions for political purpose or advantage, or do they genuinely assist in shaping government policy for the better. 
Are we ensuring that the prosecutorial agencies and the judiciary remain front and centre of the decisions to prosecute and to uphold convictions?