Presidential powers and Commissions of Inquiry

Sri Lanka has had its fair share of Commissions of Inquiry in the last few decades with one of them being the much spoken of Presidential Commission of Inquiry, investigating into the Treasury Bond issue, which was appointed on February 27, 2017.

A Commission of Inquiry (CoI) is one of many bodies available to the government to inquire into various issues in the interest of the public. A CoI report findings, give advice and make recommendations.

The Commission of Inquiry to Investigate and Inquire into Serious Violations of Human Rights which are alleged to have taken place in Sri Lanka since August 1, 2005 (The Udalagama Commission) appointed on November 13, 2016, the Presidential Commission of Inquiry to inquire into the alleged VAT fraud at the Department of Inland Revenue in the process of making VAT refunds during the period October 1, 2002 to August 25, 2004 (Paranagama Commission) appointed on September 25,2007, the Presidential Commission on the Disappeared (The Mahanama Tilakaratne Commission) appointed on September15, 2006, the Lessons Learnt and Reconciliation Commission (LLRC) appointed in May 2010, the Presidential Commission of Inquiry to Investigate and Inquire into Serious Acts of Fraud, Corruption and Abuse of Power, State Resources and Privileges (PRECIFAC) appointed in 2015, are some of the commissions of inquiry much spoken about in Sri Lanka in the recent past.

The Social reception towards Commissions of Inquiry in Sri Lanka, besides in foreign countries, has always been a mixed-bag. While some questions the independence of a Commission of Inquiry, some view it as a political tool used by a government to delay or refrain from taking action in a particular matter. However, the Commissions of Inquiry are generally seen in a positive outlook.

A Commission of Inquiry is appointed under the Commission of Inquiry Act, which was first enacted in Sri Lanka on September 8, 1948. The CoI Act has been amended in 1950, 1953, 1955 and 2008.

Powers of a Commission of Inquiry

* Procure and receive all evidence (written or oral) regarding the matter inquired

* Examine all persons whom the commission thinks should be procured or examined as witnesses

* Require the evidence (written or oral) of any witness to be given on oath or affirmation

* Summon any person residing in Sri Lanka to attend any meeting of the commission to give evidence or produce any document or others in his possession, and to examine him as a witness or require him to produce any document or others in his possession

* Admit any evidence (written or oral) notwithstanding any of the provisions of the Evidence Ordinance

* to admit or exclude the public from the inquiry or any part

* to admit or exclude the press from the inquiry or any part

Subsequent to the amendments done to the CoI Act, the Commission has also been vested with powers to obtain certified copies of any proceedings of any case, any document, any other material filed or recorded at any Court of Law or at any tribunal and to require any person to produce any document or material which is in his/her possession or custody. It also has the power to require any person to provide whatever the information which he/she posses, in writing.

A Commission under the Commission of Inquiry Act differs from a Special Presidential Commission of Inquiry, which is appointed under the Special Presidential Commissions Inquiry law. The latter is relatively more powerful than the former. Whereas a Commission of Inquiry is a fact finding commission whose findings are not enforceable, a Special Presidential Commission has the power to subject a person found guilty to civic disability. A report, finding, order, determination, ruling or recommendation made by a Special Presidential Commission cannot be questioned in any court or tribunal as well. Section 9 of the Special Presidential Commissions of Inquiry Act explains the special powers it is vested with, which makes it more powerful than a Commission of Inquiry.

Power of the President regarding the Commission of Inquiry

The CoI Act has vested power to the President to appoint a Commission of Inquiry when he/she believes it is necessary to examine or obtain information regarding the administration of a government department, a public/local authority, or about the conduct of any member of the public service. It also gives the power to the President to appoint a Commission to hold an inquiry regarding any matter, in his view, being in the interest of the public safety or welfare.

The President is also authorized by the COI Act to set the terms of the reference for the Commission and appoint members. Usually, a CoI will comprise of one or more members. The President has the authority to add new members to the Commission at his/ her discretion and to alter, amend or revoke the warrant establishing a Commission at anytime. The President can also give directions to the Commission’s Secretary without consulting the Commission or its Chairman.

The President is also warranted by the CoI to extend the time period within which a CoI needs to submit a report on the inquired matter, despite the time for the submission of such a report has expired or not.

The CoI Act does not require Commission report or recommendations to be made public. The President has the power to decide if the inquiry or part of the inquiry should be publicized or not.

Role of the Attorney-General

Under the provisions of the COI Act, the Attorney General (AG) can appear before the Commission when an inquiry or investigation is conducted. The AG can place any evidence or any other relevant material before the Commission, which in the AG’s opinion is relevant to the conducted investigation. The AG can also examine any witness summoned by the Commission if it is the AG’s opinion that the evidence of that particular witness is relevant.

Criticisms and Suggestions

Criticism has been levelled against the Commission of Inquiry saying that there is a lack of credible mechanism to investigate into the cases of human rights violations due to the broad executive powers vested on the President by the CoI Act regarding appointment, finance and follow up of the CoI.

Concerns have also been raised against the President not being obliged to ensure that the report of a CoI is made public.

The role of the Attorney General is also questioned by human rights organizations based on the Commissions of Inquiry investigating the human rights violations and war crimes that took place in Sri Lanka. Criticisms say that there is a conflict of interests from the part of the Attorney-General as a counsel to the Commission and a representative of the government, especially regarding Commissions of Inquiry appointed in Sri Lanka to examine war crimes and human rights violations.

Human rights activists and law reformers demand for the power vested on the President to be amended in order to reflect the independence of a Commission of Inquiry while the importance of making the President obliged to publicize the report of a CoI is also stressed upon. 


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