By Dharisha Bastians –

Dharisha Bastians

How the spectre of the Shirani Bandaranayake impeachment in Colombo continues to haunt the Commonwealth Secretariat and its Secretary General Kamalesh Sharma nine months later, especially after his decision to keep key findings on the legality of her removal from a powerful Commonwealth grouping

Nine months after the Sri Lankan Government ousted Chief Justice Shirani Bandaranayake from office, her sacking has caused unprecedented problems in a most unlikely place – Marlborough House London, the home of the Commonwealth Secretariat.

Commonwealth Secretary General Kamalesh Sharma who promised Sri Lanka would put plans in place to change its legislative procedures to remove senior judges within weeks of a key meeting of a Commonwealth Ministers grouping in April this year, is under increasing pressure show progress by Colombo on this and other democratic fronts ahead of a major Commonwealth summit to be hosted here in two months. This pressure has mounted after it was recently revealed that the Secretary General had opted to keep two key legal findings in his possession on the Sri Lankan impeachment from the eight-member Commonwealth Ministerial Action Group (CMAG) that is tasked with measuring compliance of Commonwealth member states to the organisation’s values, during the crucial April meet.

With the key Ministerial Grouping of the Commonwealth expected to meet on the sidelines of the UN General Assembly sessions in New York this Friday (27), Canada, backed by several other states have stepped up the pressure on the office of the Secretary General. It is learnt that in the absence of full disclosure by Sharma on the two legal reports, some Commonwealth Ministers from one or more of the eight countries who will meet for talks on Friday are demanding a full briefing on Sri Lanka’s human rights situation.

The tale of two reports

The saga starts with Secretary General Sharma’s decision to commission legal reports by two eminent Jurists of the Commonwealth, former South African Chief Justice Pius Langa and a UK Queen’s Counsel, Sir Jeffrey Jowell soon after Bandaranayake was removed from office in January this year. By March 15, at least one report was ready and submitted as a memo to the Office of the Secretary General, based on the terms of reference provided by Sharma. The 74 year old Justice Langa passed away in July 2013. It is widely believed that his report on the Sri Lankan impeachment of its Chief Justice was his final international assignment. His report to the Commonwealth Secretary General, first revealed on the Colombo Telegraph website in full, was said to have been found among the Judge’s belongings after his death.

Langa’s findings are specifically based on the terms of reference provided by the Secretary General of the Commonwealth. Sharma tasked Langa to determine not only if the removal of Bandaranayake was consistent with law, but also to determine whether in proceeding with her sacking, Sri Lanka, the incoming host of the Commonwealth Heads of Government Meeting in 2013, had violated core principles governing the conduct of member states. Having obtained the reports from the Jurists he commissioned by March however, the Commonwealth Secretary General chose to keep those findings contained within his office

In his memo to Sharma, Justice Langa concludes that the Sri Lankan Government decision to disregard the Supreme Court ruling on the 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. In his second conclusion, the former South African Chief Justice notes that the appointment of a successor to replace the sacked Bandaranayake was both “unconstitutional and unlawful, since the incumbent Chief Justice was not validly removed.” The decision of the Government to ignore the court rulings in pushing through with the impeachment, Langa says was “sowing the seeds of anarchy” a direct violation of the Rule of Law and values and principles as agreed to by the Member states of the Commonwealth. Justice Langa’s findings were consistent with findings of several other key international legal reports on Bandaranayake impeachment in Colombo, including a study by the International Bar Association, also based in London. IBA conducted a remote assessment of the Shirani Bandaranayake impeachment after the Sri Lankan Government blocked the entry of its high level delegation to Colombo, led by former Indian Chief Justice, J.S. Verma.

Sharma plays close to his chest

Langa’s findings are specifically based on the terms of reference provided by the Secretary General of the Commonwealth. Sharma tasked Langa to determine not only if the removal of Bandaranayake was consistent with law, but also to determine whether in proceeding with her sacking, Sri Lanka, the incoming host of the Commonwealth Heads of Government Meeting in 2013, had violated core principles governing the conduct of member states. Having obtained the reports from the Jurists he commissioned by March however, the Commonwealth Secretary General chose to keep those findings contained within his office.

Professor Manor says CMAG could have presumably demanded to see the reports, but the grouping he says, appears to be hesitantly led or has not done so. Sharma, the Commonwealth Scholar notes, has not revealed much about what his efforts to address the impeachment of Shirani Bandaranayke have been. “His conduct throughout this long episode suggests that his efforts were rather timid, and that they will have limited impact on as tough an outfit as the Government of Sri Lanka,” Manor told Daily FT.

Sharma’s decision to keep the findings from the Commonwealth Ministerial Action Group (CMAG) which met on 26 April where Sri Lanka was discussed at length has led to the Secretary General being criticised by some Commonwealth Member states for non-disclosure of key evidentiary assessments to the CMAG. Canada, that is pushing hard for a boycott of CHOGM in Colombo is naturally leading the charge, but is backed by several other powerful players in the 54-member organisation.

Sharma’s office has staunchly defended his position.

The Secretary General considered the two independent legal opinions along with other advice for the purpose of guiding his confidential ‘Good Offices’ work with the Sri Lankan Government towards legislative and other changes required for the lawful removal of senior judges, says Commonwealth Spokesman Richard Uku, in an email to Daily FT. “As a result, the Secretary-General has recently provided to Sri Lanka a compendium of Commonwealth practice across all member states, as well as an expert analysis, relating to the appointment, tenure and removal of senior judicial figures,” Uku says, about the steps taken by Sharma outside the ambit of the CMAG. Uku says Sri Lanka has also been offered Commonwealth technical assistance to make the necessary changes. He says the Government in Colombo has assured Sharma that the recommendations are currently being considered.

“A Scandal” says Canada But that argument, as also made by Sharma to the Canadian High Commission in London in May this year by the Secretary General has not placated people like Senator Hugh Segal, Canada’s Special Envoy to the Commonwealth. Segal has called the Secretary General’s decision not to disclose the findings of the Langa and Jowell reports a “scandal”.

“Any Secretary General who denies member states critical information on vital issues is not only “unduly but disrespectful of the need for full transparency in Commonwealth deliberations,” the outspoken Canadian official said on the subject, after Sharma’s office repeatedly refused requests to release the second legal opinion after the first Langa report was leaked to the media.

He charged that CMAG that is made up Commonwealth Ministers from nine member states had been denied “vital knowledge” during their April meet. “The scandal here is that when Commonwealth Ministers met in the spring to consider Sri Lanka, they were denied access to this and other legal opinions,” Segal said. However, Sharma’s office has repeatedly maintained that CMAG in April did not “officially” discuss Sri Lanka. Segal says Sharma’s decisions to keep information from the Ministerial grouping in order to conduct his ‘good offices’ work was “unduly reverential”.

Best evidence should be provided to CMAG: Britain

A less forthright Alistair Burt, the UK Foreign Office and Commonwealth Minister says that Britain has emphasised to the Commonwealth Secretariat that it expects decisions by the CMAG to the be  based on the most reliable and objective evidence about a country situation, including the state of democracy, rule of law and human rights. “We expect for evidence to be shared with CMAG members,” Burt told Daily FT.

While Britain is not currently a member of the Ministerial Grouping, it has highlighted to the Commonwealth Secretariat that it would welcome details of evidentiary sources and assessments that have led to the conclusions made by CMAG in his enhanced role as mandated by the Commonwealth Heads of Government in Perth in 2011, the UK Minister said.

“We continue to encourage the Commonwealth Secretary-General to ensure Sri Lanka is upholding Commonwealth values,” Minister Burt noted.

The fundamental question of whether Secretary General Sharma was compelled to make the findings of the legal reports on the Sri Lankan impeachment to CMAG remains a grey area, says Professor James Manor, a Fellow of the Institute of Commonwealth Studies in London.

Prof. Manor says there is a lack of clarity on the issue of whether Sharma was obligated to divulge the findings of the jurists since there are no written rules to guide the Secretary General’s actions.

The spirit of CMAG

“It would, however, have been in the spirit of CMAG to have divulged them,” the Commonwealth expert says, adding that the Secretary General appears to have been determined for some months to ensure that the CHOGM takes place in Sri Lanka in spite of reservations in some quarters about the country’s rights record and commitment to democracy.

Professor Manor says CMAG could have presumably demanded to see the reports, but the grouping he says, appears to be hesitantly led or has not done so. Sharma, the Commonwealth Scholar notes, has not revealed much about what his efforts to address the impeachment of Shirani Bandaranayke have been. “His conduct throughout this long episode suggests that his efforts were rather timid, and that they will have limited impact on as tough an outfit as the Government of Sri Lanka,” Manor told Daily FT.

“Destructive actions”

As Prof. Manor and other Commonwealth Scholars see it, Kamalesh Sharma’s actions to ensure CHOGM 2013 is held in Sri Lanka have been immensely destructive.

“Sharma can make up the rules as he goes along to some extent,” said an overseas based Commonwealth analyst who declined to be named in this article.

The decision to keep vital information from CMAG is particularly problematic, the analyst noted however, because the Ministerial Grouping has no secretariat or staff of its own. CMAG is therefore heavily dependent on the Secretariat for its information and support – something the expert notes is an impossibly broad mandate matched against almost zero capacity. “So if the Secretariat isn’t prepared to share with CMAG information indicating violations of core Commonwealth values,” the expert told Daily FT, “it’s operating entirely in the dark.”