Colombo Telegraph

Exclusive: Secretary General Hides Two Key Legal Findings On CJ Impeachment From CMAG

Commonwealth Secretary General Kamalesh Sharma may have covered up two key independent legal opinions on the legality of Sri Lanka’s impeachment of Chief Justice Shirani Bandaranayake, withholding the content of those opinions even from the powerful Commonwealth Ministerial Action Group (CMAG), Colombo Telegraph learns.


Speculation in Commonwealth and diplomatic circles is that the Secretary General has decided not to disclose the content of the opinions because they may have forced him to act against Sri Lanka which is the next host of the Commonwealth Heads of Government Meeting this November, a top diplomat told Colombo Telegraph.

It is learned that CMAG Chair Bangladeshi Foreign Minister Dipu Moni is unhappy about Sharma’s lack of disclosure of these key legal opinions.

Sharma has responded that the Secretariat’s “good office engagements” were privileged communications but admits to having received several legal and other opinions on the controversial impeachment of Bandaranayake.

It is likely the Secretary General was hoping the legal opinions he sought from two Jurists, from South Africa and the UK, would cast some doubt upon the illegality of the Sri Lankan process to remove its 43rd Chief Justice, top diplomatic sources said. When these opinions mirrored the conventional legal opinion that the impeachment was flawed, Sharma buried the reports, the sources allege.

The South African lawyer is reported to have passed away a few weeks ago and the jurist from the UK does not wish to disclose his involvement in the Sri Lankan impeachment case, Colombo Telegraph learns. However both jurists are believed to be eminently credible and are unlikely to have gone against the general consensus that Bandaranayake’s removal was patently unjust and in violation of Commonwealth and other international values and covenants.

On May 30, 2013, Canada’s High Commissioner to the UK, Gordan Cambell writing to Secretary General Sharma asked to be provided the opinions as a member of the CMAG that is the organisation’s key decision making body.

“As these legal opinions would be germane to the deliberations of the Commonwealth Ministerial Action Group with respect to Sri Lanka, I request that these documents be provided to High Commissioners whose ministers sit on CMAG so that they may consider their findings. I would appreciate receiving the opinions today,” Cambell said in his letter in May.

The Canadian envoy said that the Secretary General had “rightly sought” independent legal opinions from two eminent Commonwealth Jurists, Pius Nkonzo Langa of South Africa and Sir Jeffrey Jowell QC of the UK, as to the constitutionality of the dismissal of the Sri Lankan Chief Justice. In his letter Campbell notes a statement by Sharma on January 13, two days after Bandaranayake’s impeachment in which he claimed: “The dismissal of the Chief Justice will be widely seen, against the background of the divergence between the Judiciary and the Legislature, as running counter to the independence of the judiciary, which is a core Commonwealth value.”

In a response to High Commissioner Campbell issued by Sharma the same day, the Secretary General claimed there was a  longstanding practice of successive Secretaries-General that communications in support of Good Offices engagements were privileged.

“Indeed, it would be injurious to the discretion, trust and ultimately the effectiveness of the Secretary-General’s Good Offices if the sources and nature of privileged communications were to be compromised,” Sharma’s response to Campbell that was copied to all High Commissioners whose Ministers are members of CMAG said.

“It is these longstanding parameters of Good Offices – a breadth of informed sources and their privileged nature – that have served Secretaries-General and the Commonwealth extremely well. And within these important parameters, you will know that I have introduced the practice of providing regular and more detailed briefings than hitherto to CMAG about the full scope of my Good Offices engagements with member states,” Sharma tells the Canadian High Commissioner in his letter.

Kamalesh Sharma has been widely criticised for soft-peddling the Sri Lankan state’s increasing violations of Commonwealth core values and the incumbent administration’s erosion of democracy and human rights. It is believed Sharma used his good offices to prevent Sri Lanka from being included in the CMAG agenda for its meeting in April. Sources say the cover up of the legal opinions could be part of those moves. More recently, in a bid to help Sri Lanka to pick up a dwindling economy, the Commonwealth seconded a former employee, Indrajit Coomaraswamy to help Sri Lanka to frame its economic policy and achieve stability in the run up to CHOGM 2013. Coomaraswamy is paid by the Commonwealth Secretariat and functions from the Presidential Secretariat where he reports directly to Presidential Secretary, Lalith Weeratunge. Sharma’s reticence on taking stronger action on Sri Lanka which will not only host CHOGM this year but also assume the chairmanship of the organisation for two more years, has been roundly criticised by Commonwealth scholars and experts around the world.

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