Article by Zeev Segal
The complexities of modern political affairs and public administration, coupled with the need of citizens in a democratic society to know that its officials are answerable for their misconduct or indiscretion in public matters, have created the need for a governmental mechanism designed to bring to light the truth about matters of vital importance to society. The use of committees or commissions of inquiry to answer the above need is deeply rooted in the American system of government. Congress has exercised power through the means of congressional committees since the beginning of the republic. Congress' authority to conduct investigations is not explicitly recognized by the Constitution, but the Supreme Court has held that the investigatory power is “an essential and appropriate auxiliary to the legislative function,” thus making this power implicit in the general article I, section 1, grant of “legislative powers” to Congress.
In England, the use of committees or commissions of inquiry to probe into matters of public concern dates back to the 16th century. The usual method of investigating the alleged misconduct of ministers or other public servants was, until the 20th century, by a select parliamentary committee. In Canada and in Australia, commissions of inquiry have become a part of the regular machinery of government. Generally, then, it can be said that inquiries by committees or commissions have become part and parcel of the baggage of democracy, regardless of the exact shape that democracy takes in one country or another. The contribution of a full investigation to the allaying of public anxiety is as significant in a parliamentary democracy (such as England or Israel) as it is in the United States, where the Constitution provides for three equal and separate branches of government.
Generally speaking, commissions of inquiry are of two types. First, there are those that advise governments on matters of policy and serve as a source of policy ideas. They have a role in the complex process of policy formulation, and their major contribution is in the early stages of governmental decisionmaking. They might be called advisory or policy commissions. Second, there are commissions that investigate, addressing themselves primarily to the facts associated with a special event regarding the functioning of government. The investigation conducted by such a committee might focus on an action or inaction attributed to the executive branch. The primary contribution of such an investigatory commission is its service as a fact-finding agency, bringing to light all of the important facts relating to the subject under inquiry. In fulfilling its tasks, the investigatory commission pays respect to the people's right to know who is responsible for a certain action or failure to act. In matters arousing intense public controversy, it is essential that the evil, if it exists, be exposed so that it may be rooted out. This latter form of the committee of inquiry—the investigatory commission that probes into matters of vital public importance—is the focus of this article.
In all democratic countries, allegations and rumors of official wrongdoing or error can cause a nationwide crisis of confidence in the integrity, the ability, or the discretion of public authorities. Public suspicion that something morally unacceptable has happened is often accompanied by a strong public sentiment that something should be done about the wrongdoing and that a “cover-up” must not be allowed. The very subject of the controversy, as one of vital public importance, creates a demand for a thorough investigation in order that the purity of public life may be preserved, confidence restored, and acceptable standards of public administration maintained. It is also essential to the functioning of a democratic society that citizens may expect that, once a commission of inquiry has made a report, its recommendations will be implemented.
In order to satisfy the need for truth-finding that a public scandal engenders, England created the special machinery of an independent tribunal. The Tribunals of Inquiry (Evidence) Act of 1921 established a general statutory power to set up a tribunal of inquiry. The Act resulted from a general feeling in England that investigations of alleged public misconduct by parliamentary committees of inquiry had become entirely discredited whenever the matter was significant enough to create a nationwide crisis of confidence. In February, 1966, a Royal Commission was set up in England, under the chairmanship of Lord Justice Salmon, “to review the working of the Tribunals of Inquiry (Evidence) Act of 1921 and to consider whether it should be retained or replaced by some other procedure, and, if retained, whether any changes are necessary or desirable.” The report of this Commission was published in November, 1966. The Commission recommended that the Act should be retained, subject to certain amendments dealing with safeguards for the rights of persons involved in the inquiries. In July, 1968, an Interdepartmental Committee, also under the chairmanship of Lord Justice Salmon, was appointed “to inquire into the law of contempt as it affects . . . matters referred to a tribunal of inquiry.” The report of this Committee was published in June, 1969. The Government in England has considered the recommendations included in these two reports, and has declared that it will introduce a bill giving effect to most of the suggestions. A new act regarding contempt of court, which also applies to tribunals of inquiry, was enacted in England in 1981. To date, however, no changes have been introduced into the English Act since the Salmon Report on the Tribunals of Inquiry (Evidence) Act of 1921 was published in 1966.
Despite its passive reception in England, some of the Salmon Report recommendations came to be implemented in Israel. Lord Justice Salmon delivered a lecture on “Tribunals of Inquiry” at the Law Faculty of the Hebrew University in Jerusalem shortly after submitting his report relating to the 1921 Act. The Israeli Government then introduced a bill regarding a commissions of inquiry law to the Knesset. The explanatory notes to the bill stated that it was based in part upon the English Act and the Salmon Report. The Israeli Law, as passed by the Knesset in December 1968, is based on the English Act of 1921, and includes some of the reforms suggested in the Salmon Report. Therefore it seems justified to examine the Israeli Law as a good, although not perfect, example of placing the power to probe into matters of vital public importance in the hands of an independent quasi-judicial commission.
An examination of the Israeli machinery of investigation is especially timely now, since the world's attention has been drawn to the Israeli Government's use of a commission of inquiry, acting under the Israeli Law, to probe into the events of September, 1982 at the Sabra and Shatilla refugee camps in Beirut, Lebanon. At a meeting of the Cabinet on September 28, 1982, the Government of Israel resolved to establish a commission of inquiry in accordance with the Commissions of Inquiry Law of 1968. The Cabinet charged the commission as follows: “The matter which will be subjected to inquiry is: all the facts and factors connected with the atrocity carried out by a unit of the Lebanese Forces against the civilian population in the Shatilla and Sabra camps.”
In response to this resolution, Yitzhak Kahan, the President of the Israeli Supreme Court, in whom section 4 of the Commissions of Inquiry Law vested the authority to appoint a commission, appointed a commission of inquiry comprised of the following members: Yitzhak Kahan, Commission Chairman; Aharon Barak, Justice of the Supreme Court; Yona Efrat, Major General (Reserve). Thus, a majority of the commission members were Justices of the Supreme Court of Israel, and the chairman was the President of the Supreme Court, who was also responsible for appointing the other commission members. Many observers, both within Israel and abroad, welcomed the establishment of this independent, quasi-judicial commission. Its composition was viewed as promising a thorough, impartial, and expert investigation of the crisis. As an American professor of law wrote after the commission was established:
The only analogous experience in our own country's recent past was the killing of Vietnamese civilians at My Lai in 1968. America's response to My Lai is well-known . . . . In the ensuring uproar, a Commission of Inquiry was set up by the U.S. Army—known as the Peers Commission—which did not complete a report until two years after the massacre . . . . In contrast, the State of Israel, within one month of the deaths in Beirut, convened a special Commission of Inquiry to investigate what role, if any, Israeli Defense Forces played in the events at Sabra and Shatilla. Unlike the Peers Commission, which was composed of American Army officers, charged with investigating their colleagues, the Israeli Commission of Inquiry is an independent body.
The Commission held fifty-eight sessions and heard sixty witnesses. It signed its report on February 7, 1983, about five months after its creation. The report was published, as section 20(a) of the Israeli Law requires, and was 108 pages in length with appendices. Also in accordance with section 20(a), the Commission decided that a twelve-page portion of the report, to be called Appendix B, would not be published, because maintaining the confidentiality of this material was deemed essential to the protection of the nation's security or foreign relations.
The Commission's main finding was that direct responsibility for the acts of slaughter rested on the Phalangist forces. The Commission found that “absolutely no direct responsibility devolves upon Israel or upon those who acted in its behalf.” But at the same time, the Commission concluded that the decision to allow Phalangists to enter the refugee camps was made by Israeli officials without consideration of the danger that the Phalangists would do violence to inhabitants of the camps—a danger that those responsible for the decision should have foreseen as probable.
The Commission found also that when reports of the actions of the Phalangists in the camp began to arrive, Israeli officials did not properly heed them, did not draw the correct conclusions from them, and did not take energetic and immediate actions to restrain the Phalangists. Those findings, in the opinion of the Commission, reflected and exhausted Israel's indirect responsibility for the massacre in the refugee camps. The Commission then examined the personal responsibility of a group of men who held senior positions in the Government and in the Israeli Defense Forces, and made recommendations concerning each of them. Its main finding was that the Minister of Defense at that time, Mr. Ariel Sharon, bore indirect personal responsibility. The then Chief of Staff, the Director of Military Intelligence, and the Division Commander were also found responsible to the same degree as Sharon. The Commission's recommendations regarding these men will be discussed below.
The report of the Commission and the full-scale inquiry was praised outside Israel. The former American Secretary of State, Dr. Henry Kissinger, said in a nationally televised interview that “[i]t is true that there are very few governments in the world that one could imagine making such a public investigation of such a difficult and shameful episode.”
The purpose of this paper is to put before the American jurist the basic characteristics of an independent, quasi-judicial commission of inquiry that probes into matters of vital public importance. In the context of American public affairs, such matters as the My Lai massacre or the Watergate affair would lend themselves to investigation by such a commission. This paper shall concentrate on the English and the Israeli examples of commissions of inquiry.
About the Author
Zeev Segal. Lecturer of Law, Tel-Aviv University; LL.B., The Hebrew University of Jerusalem; Doctor of Law, Tel-Aviv University.
Citation
58 Tul. L. Rev. 941 (1984)