Commissions of Inquiry - a democratic tradition

Dr. Ruwantissa Abeyratne

DEMOCRACY: The fundamental postulate of democracy in Sri Lanka, leading to the recognition of the rights of the citizen, is encapsulated in "Mahinda Chintana", the illustrious philosophy of the President of Sri Lanka.

His Excellency states: "My intention is to devolve power to the level of the citizen"... I would abide by the majority consensus which is a fundamental premise of democracy.

The majority national view will prevail over my individual view". Although these words primarily refer to the national conflict, they undoubtedly echo the noble intent of the President to ensure the highest level of democracy in the country in all spheres of activity.

There is every indication that the underlying principles of establishing a Commission of Inquiry are firmly entrenched in democratic roots. The word "democracy" means rule or governance by the people (from the Greek demos, which admits of the people forming their own government in which the right to take political decisions rests with the people and therefore by the whole body of citizens of a territory, following procedures of majority rule).

Therefore, it goes without saying that for the people to take a decision or form an opinion, they must be fully apprised of the facts of an issue about which they are unclear.

In this context, the Commissions of Inquiry Act No. 17 of 1948 provides for the appointment of commissions of inquiry as required. The function of these commissions is to investigate, to educate and inform society, and therefore they remain a quintessential democratic institution guaranteeing transparency and fair play.

A commission of inquiry is not expected to determine civil or criminal guilt of a person or persons. However, once appointed, a Commission has a high degree of autonomy and independence within the parameters of its terms of reference.

Public inquiries are an essential component of the political landscape of a democratic State and Sri Lanka is no exception. It is an integral part of our democratic tradition and is distinct from the courts of law in that commissions of inquiry are not bound by rules of evidence and have no punitive authority per se.

Whereas criminal trials require proof beyond a reasonable doubt and civil trials require proof on a balance of probabilities, commissions of inquiry have no requirement of a standard of proof. These characteristics have often exposed commissions of inquiry to criticism, one of which being that they are unfair to persons who are the subject of unfair comment in public, which commissions have the liberty to indulge in. Another criticism is that they take too long and cost too much.

There is also the accusation that commissions of inquiry are set up for the sole purpose of blaming particular people for wrongs allegedly committed, thus tarnishing their image in society and destroying their reputation. As commissions of inquiry are not bound by the rules of evidence, witnesses have the unique leverage to tarnish the reputation of others even if the proceedings of such commissions are broadcast by national television.

Often, a commission of inquiry is headed by a former judge, and if it is a one man commission it is invariably composed of a judge. This is arguably because judges have experience in presiding over hearings and are knowledgeable in rules of evidence and procedure even if they are not employed in the hearings of a commission.

Also, judges are generally reputed to be non partisan from a political perspective and that they are cloaked in impartiality, independence and autonomy. If more than one commissioner is appointed it is because different commissioners who are specialists in various areas of knowledge are required or because the task of the commission is too great for one person to handle.

Under the common law system frequently all hearings on an inquiry are open to the public except where the commission conducting the inquiry is of the opinion that matters involving public security may be disclosed at the hearing; or intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public, in which case the commission may hold the hearing concerning any such matters in the absence of the public.

It is also common that a commission usually accord to any person who satisfies it that the person has a substantial and direct interest in the subject-matter of its inquiry an opportunity during the inquiry to give evidence and to call and examine or to cross-examine witnesses personally or by counsel on evidence relevant to the person's interest.

Also a public inquiry usually does not record a finding of misconduct on the part of any person against that person in any report of a commission after an inquiry unless that person had reasonable notice of the substance of the alleged misconduct and was allowed full opportunity during the inquiry to be heard in person or by counsel.

Usually, a hearing before a commission of inquiry and proceedings before a court of law do not occur concurrently. As was seen in the 1995 Westray case in Canada, an injunction was issued to stop a public inquiry into a mine explosion in Nova Scotia causing a number of fatalities because the Attorney General of the province laid criminal charges of manslaughter against the mining company and some employees.

The basis of the injunction was that continuation of the inquiry could prejudice the minds of members of society, thus effectively precluding the possibility of empanelling an unbiased jury.

The most critical function of a public inquiry is fact finding. The leadership of a country establishes such inquiries when it is evident that the public are seeking answers to questions and the truth about certain circumstances that are not transparent.

Commissions of inquiry, unlike the courts, have wide ranging investigative powers. They are free from political and party loyalties and are better motivated than the legislature to view the broader picture. Above all, in times of crisis, commissions of inquiry may help appease the society with the promise of truth.

Embedded in the democratic tradition is the concept of the Charter of Rights and Freedoms, which meshes well with the concept of the commission of inquiry. A Charter of Rights is a list or summary of which is considered important and essential by a group of people.

The purpose of such a document is to protect certain rights against infringement by other persons. In a common law country such as Sri Lanka, a public inquiry, whether conducted through a Commission or any other body, has to abide by the principles of a charter of rights if such has been adopted either as a separate document or within the Constitution of the State.

Many common law countries have adopted charters of rights, most notable of which are the United States, India, United Kingdom, Canada, South Africa and Israel. In the case of Sri Lanka, the rights of citizens are incorporated constitutionally.

This incorporation, of fundamental rights within the Sri Lanka Constitution, makes the rights paramount and above all other law. This approach is different from the usual common law practice of incorporating rights in a Bill or Charter, where rights could develop incrementally through judicial decisions.

Fundamental rights of Sri Lankan citizens are enshrined in Chapter III of the Constitution, which starts off with the freedom of thought, conscience and religion by saying that every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

Under this chapter, no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and all persons are equal before the law and are entitled to the equal protection of the law. The Constitution also ensures that no citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth.

Furthermore, no person can be, on the grounds of race, religion, language, caste, sex or any one such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion.

Freedom of speech, assembly, association, occupation and movement are guaranteed by the fact no person can be arrested except according to procedure established by law.

Any person arrested has to be informed of the reason for his arrest. Furthermore, every person held in custody, detained or otherwise deprived of personal liberty has to be brought before the judge of the nearest competent court according to procedure established by law, and cannot be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

This right brings to bear the distinction between a public inquiry, which is authorised only to act as a fact finding mission, and the judicial process which ensures implementation of the Constitution in its guarantee of fundamental rights.

Every citizen of Sri Lanka has the right to the freedom of speech and expression including publication; the freedom of peaceful assembly; the freedom of association; the freedom to form and join a trade union; the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching; the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language; the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise; the freedom of movement and of choosing his residence within Sri Lanka; and the freedom to return to Sri Lanka.

The above rights are just some of those guaranteed under the Constitution. They were quoted in this article to demonstrate that democracy is the cornerstone of fundamental rights which in turn acts as a buffer against arbitrary inquiry into a person's actions.

It must be remembered however, that commissions of inquiry are created to fulfil a need for an investigation by an independent body, while acknowledging that such a need is prompted usually by some unfortunate event, be it a plane crash, miscarriages of justice, or irregularities in the public education system. In that sense, a Commission of Inquiry remains the ultimate tool of democracy.

(The writer is Coordinator, Air Transport Programmes, International Civil Aviation Organization, Quebec, Canada)