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.
Justice P.N. Langa, former Chief Justice of South Africa
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.
and
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;
Exclusive: Secretary General Hides Two Key Legal Findings On CJ Impeachment From CMAG
Release The Buried Reports, Be Transparent – Bar Association SL Tells Commonwealth Sharma
Canada Slams Commonwealth SG Sharma Over Burying Legal Reports On Sri Lanka
Chandra / September 9, 2013
Thank you CT for a good find.
It only confirms what we all along knew the impeachment motion was flawed and a direct violation of fundamental laws.
It was and still is a “witch” hunt.
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Upul / September 9, 2013
So, even the Sec-Gen of the Commonwealth can be hoodwinked and bought off. But the, who is the Commonwealth ? A bunch of looted colonies run by the rogues left behind by the white masters! The exceptions are Australia, New Zealand, Canada. singapore and the Caribbean nations which have wisely stayed under the Dominion of the throne.
Every other nation is still struggling decades after Independence the Pukka Sahibs had a ball for a few decades and after they screwed it up, the Rajapakses, Mugabes and Zumas are playing hell!
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Rohan / September 9, 2013
Everyone has a price….
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Gaje / September 9, 2013
Was it a white van that bumped off Hon. Justice Langa??
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@yudhanjaya / September 9, 2013
Glad to know that the international community is opening its eyes to what Sri Lankans have known for a long time now.
Nevertheless, the Commonwealth taken as a whole is powerless. As long as the government of Sri Lanka has China’s backing, our leaders will continue to show the finger to the international community. It’s only when China calls in her debts that the Raja Paramparaawa will realise the situation – at which point it’ll be someone else’s problem.
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Leon / September 9, 2013
Is it any wonder that Sharma refused to share this information at the Commonwealth Heads of Government meeting?. CT should try and get the opinion expressed by Sir Jeffrey Jowell, Q.C., Emeritus Professor of Public Law and Dean of the Faculty of Law, University College London.
The Heads of the Commonwealth should decide that in future there cannot be any privileged information and opinions expressed in the future should be passed on to the Heads of the Commonwealth.
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gonbella / September 9, 2013
This fellow Sharma must be closely watched. He is up to no good.
The question keeps popping up. What makes Sharma go to such criminal lengths as withholding important information that the rest of the world is entitled to? What is so special about him that he receives ‘privileged’ information and worse still his right to suppress that information?
What flows on from these questions is, was any privileged services made or other inducements given by the government of Sri Lanka to buy Sharma’s corporation.
Must keep a close watch on this bloke – he is up to no good.
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Thiru / September 9, 2013
You are right, this guy thinks he is above the members who appointed him to do a job on their behalf. How cheeky, he claims to have privilege to hide some vital information from those who appointed him?
This is like intelligence agencies in some countries operating without the knowledge of elected representatives of government.
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Kekille / September 9, 2013
Kamlesh Sharma the cheeky bugger surely been bribed ny the southern criminals. He must be removed from this good office with immediate effect and called for explanatiion.
There must be a wonderful hidden truth behind all these.
SHarma is shame to this office and to his county.
He better change his name as Kamalesh Mohan Peries Sharma or Kamalesh Anura Priyadarshana sharma Yapa.
Man, give us a Show Cause Notice!
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gamini / September 9, 2013
What is this MOCKERY where some of the Corrupt are trying to hoodwink us all by hiding Reports and allowing a De Facto CJ to appoint crony Judges to exculpate him of abuse? The whole Bar Association and all Lawyers in the country should come out strongly to preserve the Dignity and the Independence of the Judiciary if the CHOGM does not address these wrong doings. CT thanks a million for highlighting this issue, which otherwise would have been swept under the carpet as the War Crimes issue by the UN.
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Saro / September 9, 2013
UN SG Kamalesh Sharma must have decided what to do even before calling for expert opinion on CJ’s impeachment from Justice Langa and Prof of Law, Sir Jeffrey Jowell, otherwise he would have shown their analytical opinions to the Commonwealth Ministerial Action Group and enabled a right decision to arrive at. From what he did unilaterally ignoring the professional opinions he did a favour to Rajapakse rulers. Why? This is difficult to answer as the customery bribes of perks and employment of close relatives of people in high places by Rajapaksas is well known but difficult to trace.
What Sharma can do now is to resign from his SG post and allow some one else who stands for justice and neutrality does the job. You need not be a legal expert to conclude that he has justice to the job.
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Thiru / September 9, 2013
You bet, he will not resign, he has powerful backers!
Nowadays there is cloak and dagger business in international politics.
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Saro / September 9, 2013
Commonwealth SG Kamalesh Sharma must have decided what to do even before calling for expert opinion on CJ’s impeachment from Justice Langa and Prof of Law, Sir Jeffrey Jowell, otherwise he would have shown their analytical opinions to the Commonwealth Ministerial Action Group and enabled a right decision to arrive at. From what he did unilaterally ignoring the professional opinions he did a favour to Rajapakse rulers. Why? This is difficult to answer as the customery bribes of perks and employment of close relatives of people in high places by Rajapaksas is well known but difficult to trace.
What Sharma can do now is to resign from his SG post and allow some one else who stands for justice and neutrality does the job. You need not be a legal expert to conclude that he has justice to the job.
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Leo / September 9, 2013
Sharma is an Indian and [Edited out]. Corruption perverts justice.
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Lapatiya / September 9, 2013
There is no difference between this Shameless person, Kamalesh Sharma and our Shameless President, Saddarmadvvepa Chakrawarthi about appointing persons or Committees to have Independent views.
Our Shameless President may have appointed countless commissions for various reasons and conveniently transferred the reports to his “Hamas Pettiya”
This other Shameless person Kamales Sharma also did the same thing.
On the other hand our own Opposition also keeping quiet about the Illegal Impeachment Kamalesh Sharma can do what ever he wish.
We have a Shameless President and Shameless Opposition Leader. Only CT is fighting for the Justice.
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Lankan / September 9, 2013
Over to you Canadian Government!
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D.Panabokke / September 9, 2013
In the absence of conscientious Commonwealth leaders, Sharmas and Ukus will have to keep putting on dramas. Poor Secretariat!
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Chandra Seneviratne / September 9, 2013
Grateful to Colombo Telegraph in unearthing one of the opinions of eminent jurists that was hidden from other member states of the Commonwealth by Kamalesh Sharma, the Commonwealth’s Secretary General.
From the terms of reference issued to Jurists by Sharma required, among other things, the jurists to provide with an opinion as to the extent of compatibility of the removal of Sri Lanka’s Chief Justice with the Commonwealth values and principles.
The key findings of Justice P.N. Langa, former Chief Justice of South Africa on the impeachment process leading to Sri Lanka’s Chief Justice showed that it a direct violation of the Rule of Law and contravenes the Commonwealth Values and Principles as agreed to by member states.
That has been the considered opinion of Justice Langa whose services had been commissioned by Sharma to advise on the extent of compatibility with the Commonwealth values and principles with regard to the conduct that led to the removal of Sri Lanka’s Chief Justice .The pivotal issue of the Commonwealth Ministerial Action Group (CMAG), is to measure state compliance with the organization’s core values and principles. The suppression of material relevant to the determination of state compliance with the organization’s core values and principles from the (CMAG) was a perverse act done by the Commonwealth Secretary General. Sharma’s response in defense of his mischievous act of suppression and his moral culpability of non disclosure of relevant material on the guise that those being ‘privileged’ communications received by Commonwealth Secretariat is an apish statement unbecoming of the high office that he holds. The callous dismissal of Canadian envoys request for copies of opinions of jurists on the pretext of ‘privileged’ communications is offensive of commonwealth funds that has been used to procure such opinions and a high and mighty takeover of responsibility of measure of country’s compliance with the commonwealth’s core value and principles on the Secretary Generals personal forte ousting the collective action of CMAG and other member states on the issue.
Now Sharma’s independence and integrity is seriously at stake and his conduct irresistibly suggestive that he has been bought over by MR’s regime. Sharma should step down from the office of Commonwealth’s Secretary General.
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W. Kevin / September 10, 2013
The CHOGM is big bucks for all the commission agents in Colombo and big ‘prestige’ for the Big Man. The question is, how much did it take in US$$$$m terms to have these things suppressed? It was so obvious from the beginning the Commonwealth Secretariat was playing a double game. It should be renamed the Charlatan’s Secretariat. It’s an insult to use the formerly hallowed name of The Commonwealth for that institution. What a cesspit it has become.
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Tony Francis / September 10, 2013
It is outrageous to permit SG Sharma to get away with withholding/suppressing the findings of eminent jurists
under the pretext of “privileged” document.His action demeans
the core values of the Institution.CMAG must urge the Heads of States
to discpline/remove Sharma, if he does not step down.
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