At least one of two eminent Commonwealth Jurists, whose opinion was sought by the Commonwealth Secretariat on President Mahinda Rajapaksa’s removal of Chief Justice Shirani Bandaranayake has found that her impeachment was flawed and a direct violation of Commonwealth Values.
On August 15, Colombo Telegraph exclusively revealed that the Commonwealth Secretary General Kamalesh Sharma who had commissioned two key legal opinions from eminent Commonwealth Jurists on the Sri Lankan Government’s impeachment of its Chief Justice, Shirani Bandaranayake had decided to withhold the findings of those reports from the rest of the organisation.
Sharma refused to disclose the findings, even to the Commonwealth Ministerial Action Group, the Commonwealth’s organ to measure state compliance with the organisation’s core values and principles. Queried on the topic by the Canadian High Commission in UK, Sharma responded that some matters were ‘privileged’ communications to his office.
Today, Colombo Telegraph can once again exclusively reveal to our readers one of the legal opinions sought and then allegedly buried the Secretary General’s Office. Justice P.N. Langa, former Chief Justice of South Africa and respected jurist, concludes that the Rajapaksa Government’s decision to disregard the Supreme Court Ruling on the impeachment of Chief Justice Bandaranayake was unconstitutional and said it was “sowing the seeds of anarchy.”
Justice Langa, who later passed away, issued his opinion on the matter in a memorandum to the Commonwealth Secretary General Kamalesh Sharma, dated March 5, 2013.
Langa concludes in his memo that the disregarding of the Supreme Court ruling on the so called impeachment of Chief Justice Shirani Bandaranayake was unconstitutional, a direct violation of the Commonwealth Values and Principles and a serious violation of the Doctrine of Separation of Powers.
The late Jurist also concludes that the appointment of a de facto Chief Justice (Mohan Pieris) to replace Bandaranayake was both unconstitutional and unlawful, since the incumbent Chief Justice was not validly removed.
Langa’s two key findings, having studied the report based on the terms of reference provided to him by the Secretariat, was as follows:
1. I view the decision of the Government to ignore the rulings of the Supreme Court as unconstitutional and sowing the seeds of anarchy. This conduct is a direct violation of the Rule of Law and contravenes the Commonwealth Values and Principles as agreed to by member states. lt is also a serious violation of the doctrine of the Separation of Powers which is enshrined in the Constitution of Sri Lanka.
2. lt follows that all subsequent actions flowing from that, by Parliament and the President, namely the impeachment of the Chief Justice and her removal from office were unconstitutional and unlawful. lt also follows that the purported appointment of a new Chief Justice was also unconstitutional and unlawful, since the incumbent Chief Justice has not been validly removed.
A copy of this report was found among Justice Langa’s belongings following his death. Justice Langa passed away after he concluded his report, which was possibly his last international assignment, which Commonwealth Scholars and analysts say should have been available to the CMAG before its meeting on April 26 2013. The CMAG during its April meet discussed the Sri Lanka issue extensively, even though it was not officially on the agenda, because of the country’s recent lapses in terms of upholding Commonwealth values and principles, especially in light of Bandaranayake’s impeachment. It is learnt that yet another legal opinion along the same lines was provided to the Commonwealth Secretary General by another UK Jurist, as commissioned by the Secretariat. Sir Jeffrey Jowell, Q.C., Emeritus Professor of Public Law and Dean of the Faculty of Law, University College London However that report too is believed to have been suppressed and withheld from CMAG and other member states.
A clear cut legal opinion that had been commissioned by the Commonwealth for clarity on the Sri Lankan issue, delivered by jurists eminently respected by the organisation would have provided greater insight for CMAG to exercise its mandate in terms of the Rajapaksa regime’s compliance with Commonwealth principles and values.
Sri Lanka’s compliance is in focus because it is the host of the Commonwealth Heads of Government Meeting November this year and will chair the Commonwealth until 2015 following the summit.
Secretary General Sharma, is viewed as soft-peddling Sri Lanka’s recent problems with democracy and human rights by virtue of his position. Despite scathing indictments on the country’s human rights record and descent into autocracy, Sharma has been buoyantly optimistic about Sri Lanka’s rights record and potential.
We publish below the report in full;