By Dharisha Bastians –

Dharisha Bastians

In what feels like a repeat of Geneva 2012, behind-the-scenes manoeuvring by New Delhi may have tipped the scales in Sri Lanka’s favour in London last week, where the Commonwealth’s most powerful grouping decided an eleventh-hour venue shift of the Commonwealth Heads of Government Meet was simply not an option.

In exchange, will the Rajapaksa administration pursue engagement with the country’s main Tamil party on power devolution and conduct a poll in the Northern Province by September 2013? Or is India setting itself up for disappointment again?

When the Commonwealth Ministerial Action Group (CMAG) completed its meeting at the Commonwealth Secretariat at Marlborough House London last Friday, it released its customary concluding statement. The CMAG statement only made reference to the case of Fiji, the key agenda item of the April meet. The release caused spirits to soar in Colombo, where senior regime officials were eagerly awaiting the outcome of the CMAG meet.

Sri Lanka was expected to be taken up under ‘other matters’ even though the country was not officially on the group’s agenda for the 26 April meeting. The favourable result for Colombo came on the back of frantic lobbying on the part of Minister of External Affairs G.L. Peiris who has undertaken at least three visits to the Bangladeshi capital of Dhaka since February to ensure Sri Lanka stays off the CMAG agenda. Colombo has sought Dhaka’s good offices to ensure that if any adverse proposals that could hinder a key Commonwealth summit in Colombo in six months’ time arise, there would be enough CMAG countries supportive of Sri Lanka to shoot them down.

The 26 April meeting of the CMAG, the only body in the Commonwealth with the power to scrutinise a member state for violating Commonwealth values and recommend a member state for suspension and expulsion from the grouping for those violations, was effectively the final diplomatic hurdle in Sri Lanka’s path to becoming the next host of the Commonwealth Heads of Government Meeting in November 2013.

With CMAG’s April meet now done and dusted, Sri Lanka dodged this final bullet and the Rajapaksa administration can now proceed full steam ahead with its grand plans for the massive summit in Colombo. With international opposition building against allowing Sri Lanka to host the key Commonwealth meeting and the CMAG meeting still in limbo, especially after a strong case was made against the country at a CMAG teleconference held in March by Canada and Trinidad and Tobago, the ruling regime had effected a go-slow on major summit planning.

Lanka in the spotlight at post-CMAG presser

All this notwithstanding, at the CMAG press conference last Friday, it became abundantly clear that while Fiji might have been the official CMAG topic this April, Sri Lanka as host of the next CHOGM will be the only real focal point of any meeting of the Commonwealth from now until November 2013.

Journalists at the media briefing peppered the CMAG ministers and Commonwealth Secretary General Kamalesh Sharma with questions about Sri Lanka from the moment it began. With the exception of a single question regarding the position on Fiji, every other question at the press conference centred on Sri Lanka, the country’s rule of law situation, its human rights record and its suitability to play hosts of the major Commonwealth Summit later this year.

Bangladeshi Foreign Minister Dipu Moni who chaired last Friday’s CMAG meet acknowledged that while Sri Lanka was not on the agenda, the group did take up for discussion situations and issues and other matters of interest to Ministers. “These deliberations are, however, in-house and not reflected in the concluding statement. During today’s meeting, we did also discuss situations in various other countries, including Sri Lanka. These discussions, as per CMAG procedure, are confidential and not for public disclosure. But we did discuss Sri Lanka along with many other countries,” Moni admitted.

The relentless questioning on the Sri Lanka issue during the press conference caused Commonwealth Spokesman and Director of Media and Public Affairs Richard Uku to try to steer the focus away from the next CHOGM host, to little avail. “Other questions? Do not feel that you need to limit yourself to questions on Sri Lanka. This is not a press conference on Sri Lanka,” Uku said after the first three questions from Channel 4’s Jonathan Miller and former BBC reporter Frances Harrison all centred on Sri Lanka. Uku’s pleas fell on deaf ears with the journalists present asking another eight questions before the Spokesman felt compelled to interject once again.

“Not a press conference on Lanka”

“In case you walked in a short while ago, this is not a press conference on Sri Lanka per se. It was not on the agenda for this morning’s CMAG meeting, so if you have any other issues that you would like to address to members of the panel, please do so,” Uku appealed.

When the line of questioning did not change, Moni was forced to acknowledge that Sri Lanka had in fact been discussed during the meeting, although the scope of that discussion was confidential. In response to a question raised regarding a change of venue by Canadian Foreign Minister John Baird, who later went on to call the Sri Lankan Government “evil,” Moni explained that the CMAG does not have the power to the change the CHOGM venue once it is decided by the Commonwealth Heads.

CMAG’s mandate

While Moni’s point about CMAG’s jurisdiction in terms of venue is factual, the reason the Group of 8 meeting in London became such a focal point in terms of Sri Lanka’s CHOGM hosting prospects was because CMAG’s true mandate in fact lies in another, equally critical, area. CMAG has the power to place member states under scrutiny for perceived violations of Commonwealth principles and values – values that Sri Lanka purportedly violated during its recent impeachment of the Chief Justice and the ruling administration’s continued assaults on the rule of law and democratic institutions.

During the CHOGM in Perth in 2011, CMAG was given a broader mandate by the Commonwealth, permitting the grouping to exercise its power to scrutinise and put member states on notice, when situations in a country in terms of its adherence to Commonwealth values were beginning to deteriorate. In 2011, CMAG noted that it had been too reactive and not sufficiently proactive. “Thus, it had dealt decisively with situations where constitutionally elected governments had been overthrown, but had not always been able to address other situations where Commonwealth values and principles were being seriously or persistently violated,” the CMAG website explains.

The enhanced mandate given to CMAG in Perth 2011 allows the grouping to inquire into situations where a member state’s commitment to the Harare Principles upon which the Commonwealth is founded is called into question repeatedly. Those calling into question Sri Lanka’s suitability to host CHOGM, including international rights groups, UN officials, international legal associations such as the International Bar Association and the Government of Canada, believe the country is eligible to be scrutinised by CMAG on several such scores, even if CMAG does not have the authority to shift the summit venue. Had CMAG commenced scrutiny of Sri Lanka, these critics believe Commonwealth Heads would then be in a position to make a decision on whether or not to change the CHOGM venue.

Values-based organisation

The Commonwealth has retained its relevance in the world because it continues to be primarily a values-based organisation that calls on its members to live up to certain key ideals pertaining to democracy, human rights and the rule of law. CHOGM, critics of Sri Lanka believe, is a place at which those commitments and values are reiterated and upheld. They argue that to gift Sri Lanka the hosting of the summit and the CHOGM chair for two more years is akin to rewarding a member state that is failing to uphold Commonwealth principles in several key respects. Commonwealth scholars argue that awarding Sri Lanka the opportunity to host CHOGM erodes the credibility of the Commonwealth and everything it stands for, and could be damaging to the organisation in the future – especially with regard to the conduct of its other member states.

Secretary General Sharma, put on the spot again and again with regard to the organisation’s position on Sri Lanka, claimed a workshop on reconciliation would be held in London next week, at which Sri Lanka was expected to participate. The Secretary General, who has come under fire lately for his ‘soft’ position on Sri Lanka, repeatedly assured reporters that he was confident of Sri Lanka’s progress. Sharma told reporters who kept firing questions on the recent-flawed impeachment of Sri Lanka’s 43rd Chief Justice Shirani Bandaranayake, that during his meeting with Speaker Chamal Rajapaksa in Colombo in February, it was made clear that the appointment and dismissal practice of judges had to be corrected. Sharma said this process would be better in a matter of weeks instead of months.

“We would be happy to make an illustration of what the practices are in the rest of the Commonwealth in respect of the appointment and dismissal of senior judges. This is what we are engaged in right now. Secondly, we said that once this exercise is done, we will be happy to make analysis as well as to what is closer to the Sri Lankan experience and institutional type than any others. From this exercise, we will be able to make recommendations as to what needs to be done moving forward in order to have those immediate measures, whether systemic or legislative, so that the kind of constitutional crisis which arose earlier and the polarity and the excuse for confrontation never arises again,” he assured.

New Delhi’s good offices

It had been speculated for some months that Sri Lanka was attempting to use the good offices of India to sway Secretary General Sharma, who was formerly an Indian diplomat. The regime in Colombo hoped that Secretary General Sharma, being South Asian in origin, would not view the matters pertaining to Sri Lanka’s human rights record and democratic conditions in the same light as the Western bloc of nations that are all pushing the country for greater accountability on the human rights front and a restoration of democracy and the rule of law.

During his visit to Colombo in February, just weeks after the Chief Justice of the country had been sacked from office in violation of two rulings by the highest courts of the land, Sharma was full of praise and hope for Sri Lanka’s democratic future. It was those same platitudes the Secretary General seemed to repeat at last Friday’s press conference. It is perhaps because South Asian officials better understand the challenges of developing nations and their struggles with living up to lofty democratic ideals that Sharma has adopted a somewhat protective position with regard to Sri Lanka and the country’s progress and suitability to host CHOGM. On the other hand, details are also emerging of a certain amount of backroom negotiation between Colombo and New Delhi, which reportedly lobbied some powerful Commonwealth member states to steer the focus away from a shift in venue if the topic were to be raised at CMAG or any other forum.

Big brother roles

India has been known to play such roles on Sri Lanka’s behalf in the past, most recently in March 2012, when New Delhi intervened to significantly dilute the language of the first US-backed resolution at the UN Human Rights Council in Geneva. In fact, while the overtures were significantly less public in Geneva this year, when the second US resolution was floated at the Council, it is no secret that some clauses deemed by New Delhi to be overly “intrusive” especially with regard to Sri Lanka granting “unfettered access” to UN Rapporteurs, were deleted in the final draft adopted.

New Delhi stuck its neck out this way even in 2013, despite losing a key constituent ally in the DMK, led by Tamil Nadu strongman M. Karunanidhi, whose party was demanding India move a resolution of its own at the UNHRC or at least propose far-reaching amendments to the US-sponsored draft that included acknowledgement of genocide by the Sri Lankan Government during the final phase of the conflict.

Revelations currently coming to light about New Delhi’s role in cementing Colombo as the CHOGM venue are ironic especially in light of reports that a delegation from the pro-LTTE DMK lobbied the CMAG Ministers in London on the sidelines of Friday’s meet, in a bid to convince them that Sri Lanka should not be the CHOGM host. It also indicates that despite attempts by regime-sponsored critics to vilify and demonise India, especially in the aftermath of the UNHRC sessions in Geneva, where New Delhi supported US-backed action against Sri Lanka for two successive years, relations and goodwill between New Delhi and Colombo remain as rock solid as ever.

Two days after the CMAG meeting concluded, President Mahinda Rajapaksa announced he was ready to hold talks with the Tamil National Alliance on reaching a political settlement to the ethnic question, on the condition that the main Tamil party agrees to be part of the Parliamentary Select Committee set up to find a solution to the issue. President Rajapaksa told the Sudar Oli newspaper that the ‘doors remain open for talks,’ and said the TNA had nothing to fear from being part of the PSC.

Talks between the TNA and the Government were suspended after the Government insisted the TNA join the PSC that was set up to find a solution to the question of devolution and Tamil rights. The TNA has also consistently maintained that there was no point in talks with the Government until the Rajapaksa administration lived up to its international commitments that it would give full effect to the 13th Amendment to the Constitution by devolving land and police powers to the provinces, including the north and east.

The TNA has drawn strength from the Government’s repeated assurances to India that a final political solution would be based on the full implementation of the 13th Amendment to begin with, but also by going a few steps further. India has been at the forefront of pushing for the Government and the TNA to return to the table for negotiations on a political settlement on devolution.

Poll promises?
The Government’s position on the Northern Provincial Council poll also appears to be shifting somewhat, in recent days, with the President making repeated assurances about a poll being conducted by September. The Rajapaksa administration has been desperate to hold on to its CHOGM dreams and its advisors may have counselled that holding a northern election would be but a small price to pay in exchange for the prestige hosting the key summit would accrue the incumbent regime.

Needless to say, a decision by the Sri Lankan Government to hold a poll in the north would mean the end of significant headaches as far as New Delhi is concerned. It will mean that the Congress Government can finally justify to the emotive Tamil Nadu state that it backed Colombo’s war against the LTTE in the confidence and knowledge that the Northern Tamils would be granted political autonomy by the Sri Lankan state. From New Delhi’s perspective then, representations made to call support for Colombo as CHOGM hosts could also be a worthwhile trade-off if the Rajapaksa regime follows through on its promise to hold the northern election.

Yet the dichotomy and factionalism within the ranks of the ruling regime remain as complex as ever. While Mahinda Rajapaksa the politician might be able to live with holding and potentially losing the northern election if it means he can be crowned king all over again as the chair of a major international summit, other hawk-like elements within the regime remain adamant that a northern election will pave the way for separatism that the LTTE was finally unable to achieve. These hardline elements remain as potent and powerful as ever, and are unlikely to yield on the issue of granting rights of provincial administration to the TNA, which will most likely win an election in the Northern Province.

In fact, faced with this conundrum, the Government, which was not so long ago seriously contemplating scrapping the 13th Amendment altogether and replacing it with another unit of devolution entirely, now appears to be engaged in a fresh effort to dilute the powers that could be accrued to a political authority in the north and east by the current provincial council system. Perhaps realising the fallout from repealing the New Delhi designed 13th Amendment will be immense, the Rajapaksa administration will not seek to amend the provisions to ensure many of the council’s most significant powers are returned to the central government.

Given the chaos that reigned over the enactment of the Divi Neguma legislation without the express sanction of all nine provincial councils as determined by the Shirani Bandaranayake-led Supreme Court, the Government is mulling an amendment that allows the central government to pass into law any bill pertaining to subjects devolved to provincial administrations, provided they are sanctioned by a majority of the provincial councils, as opposed to all nine. Amendments are also being envisaged relating to the restoration of police and power over State land to the centre.  While land and police powers are devolved to the provinces under the 13th Amendment, police powers were never devolved to the provincial councils despite the constitution of the councils. This dilution of what it perceives as the ‘dangers’ of the 13th Amendment would allow the regime to rest easier about the prospect of holding elections in the north and losing complete control over that region. The calculation appears to be that if India and the international community want an election, they will get one, but only on the regime’s explicit terms as to what the limits of political autonomy for Sri Lanka’s minority Tamil population will be. If the provisions of the 13th Amendment are revised ahead of the crucial elections in the north, it will be a case of Colombo having once more shifted the goalposts after making significant commitments internationally, especially with respect to its giant neighbour. But if New Delhi has learned anything in the last four years since the war’s conclusion in Sri Lanka, it is that promises made to India by the ruling administration in Colombo, especially with regard to power devolution, are simply made to be broken.

Courtesy Daily FT