Introduction

It is a fundamental principle of most, if not all, legal systems that state agents should not have unfettered authority to search persons or property. In the case of highly invasive searches, a standard safeguard is to require prior judicial authorization. In the common law, this is achieved by means of a “warrant,” which generally consists of a written order issued by a court authorizing a limited power of search and seizure. The two most common types of warrants are arrest warrants and search warrants. This chapter deals only with the latter, since truth commissions and commissions of inquiry have, appropriately, lacked arrest warrant powers (i.e., the power to seize persons). References to “warrant” in this chapter should, therefore, be understood as references to search warrants only.

If a truth commission is to have the power to search property and seize relevant evidence, this must be specified in its mandate. A truth commission cannot unilaterally arrogate such a power unto itself. Consequently, like the prior chapter, this chapter may be primarily relevant at the “design stage” of a commission. Also, because a power of search and seizure is found in all major legal systems, its exercise will generally be controlled by the relevant standards and practices of the particular state. For these reasons, this chapter focuses on only the key fairness issues at stake.