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Many countries have faced situations in which their citizens demand accountability for injustices or atrocities committed by their own domestic governments, which are in violation of their human rights. The manner in which varying nations have provided for and acknowledged these facts, on their various public platforms, have been both controversial and diverse. These problems tend not to fade into obscurity if left unaddressed. History has dictated that struggle for truth has been adopted by subsequent generations, who demand responsibility from their own government in power as, in many cases, the events will have occurred at the hands of a preceding government.
The passing of time has illustrated that the quest for truth does not dissipate but can cause emotions to escalate and heighten the resolve of the aggrieved parties. Commentators suggest that establishing truth about the past is a precondition for preventing the recurrence of abuses in the future. This paper submits, in extension to this theory, that it is an essential ingredient in the desired passage towards restoration in public confidence and synonymous to the concept of justice in this modern legal world.
The focus of this question is specifically the model of Tribunal of Inquiry which is governed by Section 1 of the Tribunals of Inquiry (Evidence) Act 1921 , which is the legislation used to handle inquiries involving an official element, and truth commissions, the alternative model that has been internationally adopted, largely as a result of military agitation or liberation coups. This paper will also touch upon inquiries hosted in other countries.
Public inquiries themselves are rare and, this paper suggests, much resisted events, indeed Northern Ireland has borne witness to just three such inquiries under the aforementioned Act. These were the Scarman Inquiry in 1969, followed by the Widgery Inquiry in 1972, , the unsatisfactory outcome of which gave rise to the Saville Inquiry in 1998. Countries such as South Africa, Sierra Leone and Argentina, among others, have had their human rights redress distinctively characterized by the construction of truth commissions .
Whether this type mechanism would be more conducive to the pursuit of truth, in matters of vast public concern within the context of Northern Ireland, is a matter for this paper to explore.
The Character and Necessity of Inquiries
Walsh states that an inquiry of this nature can be established under the Act where it is resolved by both Houses of Parliament
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Inquiries may be held where one of three sets of events arise. This may be an occasion where the facts require public investigation, in that they are unknown but of immense public concern. Secondly, when the facts of an event are disputed, with conflicting versions of events which need to be reconciled, this will give rise to grounds for inquiry. Thirdly, and a theme common to truth commissions, is where the facts are known and have come to be accepted on a mass public level but still continue to be denied on an official level.
These inquiries are designed to be transparent on a public capacity, thus they do not sit in private under the provisions of the Act. The role of the inquiry is characteristically inquisitorial although critics, notably of the Saville Inquiry, have suggested that there has been an overlap into adversarial practices in this case, in particular regard to examination of witnesses’ backgrounds, in the context of their lives both prior to and following 30th January 1972, as being relevant to the matter at hand. How individuals have conducted their lives in the years following Bloody Sunday appears completely remote to why unarmed civilians were shot at the hands of state bodies, in the view of this paper.
Tribunals of this kind have all the powers of the High Court, whereby they require witnesses to attend and require documents to be produced. These witnesses are afforded the same legal protection as would be extended by means of the High Court, however this can be used against them as well as to their advantage. Salmon advises that witnesses must be treated fairly. Despite the fact that action cannot be pursued in terms of slander, failure to attend the tribunal or submit documents can result in parties being held in contempt of court.
This was the case for Toby Hardnen, however, “Controversial contempt of court proceedings against a Daily Telegraph reporter who refused to name his source to the Bloody Sunday inquiry have been dropped. The decision marks a significant victory for journalists’ right to protect their sources”.
A spokesman for the inquiry said that although it was sensitive to journalistic ethics, it had felt that Harnden's refusal to answer its questions without legal justification had prevented the inquiry from fulfilling its duty to find the truth. This paper cannot help but to refer to the incongruity of this when one considers the issue of anonymity, which will be discussed at a later point, which, this paper suggests, was predominantly more central to the matter at hand than the submissions of Toby Hardnen.
In an effort to protect the interests of witnesses and other parties to the inquiry, the Salmon Commission suggested six ‘cardinal principles.’ These principles are essentially designed to ensure that witnesses are afforded as much legal representation and as many rights as are necessary to protect them during the course of the proceedings. It is submitted that these principles, although recognised by Salmon himself as slowing the proceedings somewhat, are absolutely necessary in order to maximize the truth finding potential of the inquiry. Surely it is only through witnesses feeling at ease and being properly advised that the truth will be able to be told.
A public inquiry “takes the initiative in trying to ascertain the truth” but this is not its’ sole or perhaps most recognized function when examined critically. While Walsh’s definition of the purpose of the inquiry model offers a clear expectation that validates it’s existence, many legal commentators have levied criticism at the manner in which inquiries are conducted, and at whose hands. Hegarty offers the analogy of public inquiries serving a ‘dual purpose’ and indeed one cannot escape the fact that the purposes of a tribunal of inquiry under the 1921 Act is to investigate an alleged injustice inflicted by the state, which is nonetheless conducted by the state. This remains the largest area of controversy surrounding inquiries of this nature, that is, faith in the process, or the lack of it, notably when one considers how governments have the opportunity within the confines of the inquiry to use them as a buffering device which deflects blame.
Northern Ireland Tribunals of Inquiry
The fact remains that it is the people who demand and welcome these inquiries. This point of fact was no different in February 1972 when the government announced that Lord Widgery would conduct an inquiry into the events in Derry, on what has now regrettably become known as Bloody Sunday. Failing both the public and deceased in his findings on many levels , Widgery in his summary proceeded to attribute blame on those who had organized the Civil Rights march that day, for bringing the people to the streets, in the name of peaceful protest against social inequality.
For those involved in the Civil Rights Movement, as well as the families of the dead, and the people of Derry as a whole, the Saville Inquiry was arduously fought for and welcomed hugely as a means of telling their truth, as well as extracting the truth from the agents of the state, “I have always believed that the Civil Rights Movement would stand up to the scrutiny of historians. History will find our objectives and methods honourable and this is the first step in the process”. . More importantly, in the words of Winter, it was hoped that another inquiry would “exonerate properly the reputations of the deceased that had been denied”, by the Widgery Inquiry.
The Saville Inquiry, the findings of which at the time of writing this paper have yet to be released, has also seen the inquiry model as a means of providing a satisfactory account of the truth, being met with denigration. At the outset, the public hearings into Bloody Sunday appeared to represent a form of what the Czech democrats who peacefully overthrew communism in 1989 defined as 'lustration', literally, the cleansing of the past. Controversy has, however, raged on a number of levels, with the issue of anonymity providing basis for attack on the very core of the inquiry. Establishing grounds for anonymity, the soldiers counsel had argued that they would be subject to “risk of fatal attack” with Justice Kay subsequently referring to a failure on the part of the Tribunal that it “had not done justice to the material which the Ministry of Defense had provided as to risk”.
This accepted, it is left to be considered, why instances of downright obstruction, even hostility, were in turn not referred to, in order to give a flavour of the attitudes harboured by the Ministry of Defense, notwithstanding allegations of the destruction of important evidence. This paper suggests that this lack of co-operation with the Saville Inquiry, together with the granting of anonymity, saw the decisions of the courts and the influence of government, serving only to undermine public confidence in this particular inquiry.
Chief Constable Hugh Orde has said that society needs to draw a line under its history. He stated that the Saville Tribunal was unlikely to satisfy the families or any of the other groups involved, as well as criticizing the economics of it. However, he continued to state that, "Society has a responsibility to find out what has happened in historical cases, but we must also meet the needs of the present. There are a growing number of calls for investigations into historical cases, and what I was saying is that perhaps now is the time to look again at how we go about establishing the truth and meeting the needs of victims and their families." On this point Orde has called for an independent body to devise a modified version of Truth Commission for Northern Ireland.
While Tribunals of Inquiry tend to focus on a very specific event, truth commissions investigate abuses that have occurred over a lengthy period of time. Hegarty delineates that, “They are more about recording and acknowledging past human rights abuses than about providing precise public accountability and thus, are often quasi-legal”. Like the type of inquiry previously discussed, truth commissions are temporary entities in the context of the particular issue at hand, and similarly are required to produce a report of their findings .
As with the inquiries, truth commissions address the demand for justice by victims and their families by providing a forum to relate their stories, as well as an official public record. By acknowledging the truth and assigning responsibility for violations to certain individuals, both the violators and the victims can come to terms with the past. Hayner states that these commissions “are officially sanctioned, authorized or empowered by the state, which in principle, allows them to have greater access to information, greater security, and increased assurance that its’ findings will be taken under serious consideration”.
It is accepted that it is a difficult task to facilitate satisfactorily, these public dilemmas, and the unavoidability of involvement of the State is excruciatingly apparent, but if Hayner’s advantages of official involvement are to be accepted, then this paper is compelled to illustrate that this is a double-edged sword and the same difficulty as is experienced with tribunals of inquiry. The State, in the opinion of this paper, retains the prodigious power to reveal or conceal any matter it deems fit, irrespective of the magnitude of seriousness of the issue or the pressure that it is subjected to by the public to address the issue. Not to become preoccupied with far-fetched conspiracy theories, the very need for commissions and inquiries stands in itself to support the suggestion that concealment of truth by the State is a matter of practice.
This, in itself, serves always to taint the purity of the concept of ‘truth’ or any ‘truth-finding’ process. A number of commissions, which were set up by newly elected presidents of government, were highly partial. In Chad, for example, it became obvious that the truth commission had been used as a means of legitimizing the new government by discrediting the former one. This can create a certain disillusionment from any perspective.
In countries such as East Timor and Sierra Leone, truth commissions have been created alongside inquiries. Brahm suggests that they should not be seen to as plainly a second best option to criminal prosecution, as neither should inquiries, as they have inherent benefits of their own. Granted that they do not have the power to prosecute, it is submitted that the amnesty element for participants may serve a better, more productive purpose in longevity. In criticism of this, the amnesty factor may cause a conflict between finding the truth and administering justice .
Further to this matter, these commissions, in general terms, are not in the practice of naming names. On this point, it is with satire that this paper suggests that it is remarkable that the UK government did not announce the establishment of a truth commission overnight in Derry, to have avoided the embarrassment of the anonymity issue in the Saville Inquiry, which was a clear reflection of their practice of repeating major historical errors.
One of most obvious features common to both inquiries and truth commissions is the facet of proportioning accountability. Often, they serve to officially acknowledge what many already know about the past. In the case of the Labour Governments win in 1997, the new government saw the announcement of the Saville Inquiry as a way of establishing their legitimacy by promoting democratic ideals and social justice. Many truth commissions are born of the same ethos. Truth Commissions may recommend legislative adjustments and other changes which may serve to prevent the resurgence of events complained of, while the reports from inquiries may serve to influence decisions in the long term.
It would appear that both truth commissions and tribunals of inquiry have the capacity to deliver restorative justice,
“Restorative justice is concerned with healing victims' wounds, restoring offenders to law-abiding lives, and repairing harm done to interpersonal relationships and the community. It seeks to involve all stakeholders and provide opportunities for those most affected by the crime to be directly involved in the process of responding to the harm caused”.
On a whole, the response to the truth commission model has been a positive one. In terms of Northern Ireland, it would appear that it has the ravaged and painful background which is characteristic of most countries which host truth commissions. The model in South Africa has been credited with achieving monumental success notwithstanding the aftermath of apartheid and the huge injustices and divisions it waged. Northern Ireland has experienced similar divisions on a social, and on some levels, racial scale, with the complexities the influence of the United Kingdom has brought.
Hegarty has stated that, “ Any truth process, even one which is as unofficial a truth process as the Bloody Sunday Inquiry, needs to secure the support of the combatants, as well as the victims and the witnesses.” It is the submission of this paper that the truth would more likely be found through the use of a model similar to that of the truth commissions that have taken place in other jurisdictions. The problem inherent in so many inquiries is that the State sets the limits for the inquiry. This does not lend itself well to ensuring that the truth is told. In addition, the negotiations that take place before a truth commission commences serve to ensure that each party feels that their right to have their version of the truth heard is observed. Surely only then will each side participate as fully as possible in the truth finding process and ultimately obtain the most honest outcome for the inquiry.
Many legal commentators identify need for a revision of the Tribunals of Inquiry (Evidence) Act 1921. Currently, the government has decided that none of the models of inquiry adopted since the Act will be sufficient for an inquiry into the death of Pat Finucane, and that new legislation is required. The CAJ state that,
“Earlier this year, the Department of Constitutional Affairs issued a consultation paper entitled “Effective Inquiries”. Unfortunately, few individuals or groups in Northern Ireland were included on the initial list of consultees, and CAJ believes that not many groups have learned of the consultation or engaged actively in it from the perspective of the experience in Northern Ireland”.
It would appear from this that the government can see the problem areas surrounding inquiries of this nature and are taking steps to address it, however this comment by the CAJ is particularly worrying, in that, it is crucial, in the view of this paper, that inquiries which are held in Northern Ireland, should have a design which is unique to Northern Ireland. This could be achieved by using Northern Ireland individuals in the creation of that design. The history of this country demands that at the very least.
The notion of a truth commission as an alternative to tribunals of inquiry is an appealing one. However, the effectiveness of these truth commissions have not comprehensively been established and only time will determine how productive in their task they are, through study and comparison. The Sinn Fein Report on Truth Commissions offers some interesting suggestions on a Truth Commission specific to Northern Ireland However, a cynical aspect of this paper wonders if the novel nature of the truth commission idea is distorting the reality that, irrespective of what process is adopted or employed, the concept of truth is an elusive one.