GUIDELINES FOR AN EFFECTIVE COMMISSION OF INQUIRY

GUIDELINES FOR AN EFFECTIVE COMMISSION OF INQUIRY

 TERMS OF REFERENCE (ToR)

  • The ToR should be drawn in consultation with civil society
  • The ToR should be framed in a neutral manner, i.e. in a way which does not suggest a predetermined outcome or limit investigations in areas that might uncover official responsibility
  • The ToR should be framed in a way that will require the commission to assess the operations carried out by security forces against international human rights law, including standards on the use of force and firearms
  • The inquiry should seek to identify those directly responsible for possible human rights abuses, including individuals who acquiesced or were complicit in such abuses, and should also look into chain of command responsibilities
  • The inquiry should not be confined to looking at incidents in isolation. It should look into the facts of individual cases and specific incidents, seeking to identify any systematic patterns, and analysing underlying reasons and contributory factors to the events which are the subject of the inquiry.
  • The ToR should include an obligation on the commission to formulate recommendations on how the security forces should operate in future
  • The ToR should include an obligation on the commission to identify all Jamaican laws and practises relating to state of emergency that are  inconsistent with Jamaica’s international human rights obligations, and to recommend reforms to address the gap

COMPOSITION

  • There should be no less than 3 members, in order to ensure the objectivity of the investigation
  • Members should be appointed on the basis of their recognised impartiality, independence, competence and integrity. They should not be closely associated with any individual, government, political party, or any party implicated in the inquiry
  • Competence should include proven skills in examining witnesses and evaluating evidence
  • Proposals for potential members should be solicited from Jamaican human rights organisations, and civil society should be consulted about appointments
  • Members should be irremovable from their offices for the duration of the enquiry, except on the grounds of incapacity or behaviour rendering them unfit to discharge their duties. They should enjoy immunity in respect of any civil or criminal actions brought against them on grounds relating to the investigation.

POWERS AND AUTHORITY

  • The Commission should have the authority to obtain all the information and evidence necessary, including the power to compel testimony under threat of legal sanction, to order the production of documents, including governments and medical records
  • The Commission should have the authority to conduct on-site visits, and to receive evidence from witnesses and organisations located outside the country, including foreign governments if relevant
  • The Commission should have the authority to produce interim public reports and be required to produce a full final report for publication

RESOURCES

  • The commission should have the necessary technical and administrative resources to effectively fulfil its tasks
  • It should have control of its own budget which should be adequate for its needs and to enable it to be practically independent of government
  • It should have impartial, expert legal counsel and its own investigators, and should be able to obtain advice from independent expert advisers.

INVOLVEMENT OF VICTIMS AND OTHER PARTIES

  • All victims, families and their legal representatives should be informed of the hearings and receive all information relevant to the investigation
  • Victims and their legal representatives should be able to present evidence
  • Opportunity for effective questioning of witnesses by the commission should be provided, and for parties to the inquiry to submit written questions to the commission
  • Provide other interested parties with the opportunity to be heard and submit evidence

SECURITY AND PROTECTION OF WITNESSES AND VICTIMS

  • The Commission should have the authority to ensure provision of adequate security measures to protect witnesses, victims, staff and others associated with the inquiry
  • If there is reasonable fear of persecution, harassment or harm of any party, the Commission should decide to hear evidence in private , to keep the identity of the informant or witness confidential or anonymous, or to take any other appropriate measures to ensure the privacy and safety of witnesses.
  • All witness should be allowed to have legal counsel if they are likely to be harmed by the inquiry

OPENESS TO PUBLIC SCRUTINY

  • All proceedings of the commission, and the evidence collected by it, should be open to public scrutiny
  • Hearing should be open to the public and the press, unless compelling and demonstrably justifiable reasons exist for the closure of a particulare part of the proceedings to the general public, in which circumstances the commission should be required to find some other means of making public the substance of the information received during the closed part of the hearings
  • Any claims by government officials that information must be withheld, whether from the commission, from victims, of their lawyers, or from the general public, on grounds such as “state secrets” or “public security” should be subject to challenges and ultimate determination by a court or other institution independent of the government
  • In no case should it be permitted to invoke “state secrets” or other similar grounds for non-disclosure or evidence in a manner that would prevent an independent, impartial and thorough investigation into allegations of serious violations of human rights; prevent accountability where such violations are established; prevent the truth emerging about serious human rights violations, or prevent those who have suffered human rights violations from obtaining effective remedy and reparation

RELATIONSHIP WITH OTHER LEGAL PROCESSES

  • A commission of inquiry is complementary to the normal legal system. It should not become a substitute for an independent, impartial and properly resourced judiciary whose ruling are enforced
  • A commission of inquiry should not be precluded on the grounds that a criminal investigation is pending or in progress. Nor should it preclude or prejudice future criminal trials, private criminal and civil actions or otherwise limit rights to compensation. Evidence obtained by an inquiry should not be thereby inadmissible in other proceedings
  • If the inquiry obtains information indicating that identified individuals may have been responsible for committing, ordering, encouraging or permitting human rights abuses, or complicity in such abuses, that information should be passed to the relevant judicial or law enforcement bodies for investigation with a view to bringing them to justice. In carrying out its inquiry, the commission should bear in mind the rules and conditions for the admissibility of evidence in the criminal process and should ensure that it produces admissible evidence for later criminal proceedings

COMMISSION REPORT AND GOVERNMENT RESPONSE

  • A public report should be release within reasonable period of time. This should include a description of the method(s) by which evidence was gathered and evaluated; an analysis of the applicable law and policy frameworks, including international human rights standards; conclusions and findings or fact, including attribution of responsibility where possible; and recommendations for policy and other reforms;
  • Where findings are not unanimous, commissioners should be permitted to file a public dissenting opinion
  • The government should reply publicly to the report and indicate the steps it intends to take to implement its recommendations