Conducting a National Inquiry into Systemic Patterns of Human Rights Violation Public hearings provide opportunities for the inquiry to ask critical questions, in public and before the media, to those with responsibilities relating to the issue being investigated. They also enable the inquiry to identify areas of inconsistency and conflict in the evidence provided in written submissions or given by different witnesses and to put these contradictions to the witnesses in public for their response. For example, the inquiry can put to Government officials the evidence provided by victims and witnesses and seek the officials’ responses to this evidence. The public examination places everything on the record. Public hearings are also critical to the inquiry’s strategy for follow-up. They build the momentum of the inquiry and public support for the recommendations the inquiry will make when it reports. In this way, the inquiry’s report is released into a community that has been prepared for it, is looking with anticipation for its findings and recommendations and is expecting positive responses from those to whom recommendations are addressed. Finally, public hearings ensure transparency in the conduct of the inquiry. The inquiry is not proceeding in secret and gathering evidence in secret, but in the full glare of publicity. The picture of the particular human rights situation is gradually put together, piece-by-piece, with the nature of the evidence and its sources openly available and well known. Every submission is made public, unless there is a good reason related to an individual submission to keep it confidential. Public hearings are conducted in public. If video or audio recordings of the hearings are made, they can be made public too, perhaps being placed on the inquiry’s website, unless on a case-by-case basis the safety or privacy of a witness requires the evidence to be kept confidential. Transparency protects the inquiry from charges that it is biased or lacking objectivity or uninformed. The basis of its conclusions and recommendations is known and so those conclusions and recommendations are far more easily defended. One challenge for the inquiry in taking evidence is assessing its reliability and the credibility of the witness. This is something that courts have to do all the time and so is not new to legal processes. Nonetheless, it is a difficult task. The best way to test the reliability of evidence is to identify inconsistencies and put them to witnesses. Public hearings assist the inquiry in its tasks of fact-finding and truth-seeking by making this possible. They provide the Inquiry Commissioners with opportunities to put allegations and inconsistencies to witnesses to seek their response, to assess the credibility of witnesses by seeing them present their evidence in person and respond to questions, to gather as much information as possible and to seek corroboration. Although public hearings are not judicial proceedings, they have many of the characteristics of judicial proceedings, the same challenges and opportunities, and the same strengths and weaknesses. 11.2. CONFIDENTIAL EVIDENCE National inquiry hearings are always conducted in public unless the inquiry considers it necessary for some particular part of the hearings or a particular witness to be given the opportunity of a confidential hearing in a closed session. This can occur where the identity of the witness has to be protected or where the information the witness provides is especially sensitive. For example, victims may wish to testify confidentially because of the very personal nature of the experience or because they may be in danger if perpetrators know of the evidence. Or whistleblowers may wish to testify confidentially so that their superiors are not aware of the evidence. In both cases, the information provided to the inquiry may be important to the inquiry’s task of discovering all relevant material, understanding the underlying causes of the problem and developing solutions. Most national inquiries have power to take the evidence in confidence where they consider it necessary for the performance of their functions. Because public hearings are essential to the national inquiry methodology, all alternatives should be explored before evidence is taken in a closed session. It may be sufficient, for example, simply to suppress the name of the witness rather than close the hearing entirely. Or it may be sufficient to hide the identity of the witness by permitting the person to address the inquiry without being seen by the media, members of the public and others attending the hearing – heard but not seen. 48