At the CHOGM

Sri Lanka’s authorities are in buoyant mood. As Prince Charles prepares to open the Commonwealth Heads of Government Meeting in Colombo, the Defence Ministry is helping to organise celebrations. But it isn’t the queen they are honouring. The CHOGM is gathering to acknowledge the Sri Lankan president, Mahinda Rajapaksa, as chairman of the Commonwealth, a position he will occupy for the next two years. His allies at home are delighted.

Rajapaksa himself has high hopes. Four years after he led the national army to victory over the Tamil Tiger guerrilla movement, he wants to show the world that Sri Lanka has left its troubles behind. He was already on the case at the last CHOGM, held in Perth in 2011, when he strained to conjure up the sense of a paradise regained. Sri Lanka, he observed, had ‘famous beaches’ and ‘lofty mountains’, with ‘an amazing variety of flora and fauna and safari parks teeming with wildlife’. Having seen off ‘thirty years of violent terrorism unleashed by the world’s most ruthless terrorist organisation’, it was now a place ‘full of promise, with an economy poised to take off’.

Most of that is true, as far as it goes. Sri Lanka is indeed bountiful; it suffered enormously from the murderous depredations of the Tamil Tigers; and the end of the war has been followed by economic recovery. But none of this says much about Rajapaksa’s fitness to act as chair of the Commonwealth. The only attribute he brings to that position is his zeal to occupy it, while the institutional damage his elevation could cause is immense.

Stung by suggestions that the Commonwealth is just a relic of empire, officials and leaders who believe in its continued relevance have been trying to establish that member states have more in common than loyalty (or disloyalty) to the British monarchy. Last year, a charter was drafted to bring together ‘the values and aspirations which unite the Commonwealth – democracy, human rights and the rule of law’. The document goes on to list no fewer than 16 ‘core values and principles’, among them tolerance, respect and understanding, freedom of expression, the separation of powers and good governance, which the Commonwealth’s 53 member states are all now pledged to uphold.

The problem is that Rajapaksa, for all his eagerness to seize the Commonwealth’s helm, has spent years undermining those values and principles. Though democratically elected, he has relied on his popular mandate to sidestep or get rid of all the safeguards that ordinarily stop democrats from turning into demagogues. Soon after winning his second presidential term, he abolished a law that would have prevented him standing for a third; two of his brothers, Basil and Gotabaya, head powerful ministries, while another one, Chamal, has become the speaker of parliament. His government refuses to acknowledge, let alone investigate, allegations of serious official misconduct: the claim, for example, that the Defence Ministry, run by Gotabaya Rajapaksa, bundles away – ‘white-vans’ – those it perceives as opponents in unmarked white vehicles. There is compelling evidence that tens of thousands of civilians died during the army’s final onslaught against the Tigers; and according to the UN Working Group on Enforced or Involuntary Disappearances, Sri Lanka has more citizens who have vanished without trace than any other country except Iraq. Free expression has suffered as much as all this suggests, with at least 22 outspoken journalists killed over the last seven years, all of them murdered by unidentified persons who remain at large. And the situation is not improving. The UN Human Rights Commissioner Navi Pillay reported last August that ‘surveillance and harassment appears to be getting worse… Critical voices are quite often attacked or even permanently silenced.’

That state of affairs sits uneasily with the aspirations set out in the Commonwealth Charter. It oughtn’t to be a surprise, therefore, that the organisation’s secretary-general, Kamalesh Sharma, showed some concern after Rajapaksa made his boldest power-grab yet at the beginning of the year, removing the country’s most senior judge, Shirani Bandaranayake, when she ruled against a law that gave the minister of economic development, Basil Rajapaksa, control of a fund containing 80 billion rupees (roughly £380 million) of public revenue. The proposed fund would have been exempt from parliamentary controls on spending, and the uses to which it was put would have been covered by official secrecy laws: anyone who disclosed how the moneys were spent would have been exposed to criminal charges. Chamal Rajapaksa, the parliamentary speaker, duly arranged for the troublesome chief justice to be impeached.

The move against Bandaranayake clearly boded ill for good governance and the separation of powers, but the steps taken by Secretary-General Sharma have cast their own baleful shadow over the CHOGM. Sharma, who is not himself legally trained, began by inviting two senior jurists to tell him whether removal of the chief justice was consistent with Commonwealth values and principles. Their responses were unequivocal. Jeffrey Jowell, a QC who directs the Bingham Centre for the Rule of Law, found that the chief justice had been ousted by an unfair process that ‘did not comply with … Commonwealth values and principles’. The second lawyer Sharma consulted, the late Pius Langa, a former chief justice of South Africa’s Constitutional Court, was even more forthright. Sri Lanka’s government, he concluded, had not merely contravened Commonwealth values and principles: it was ‘sowing the seeds of anarchy’ and ‘directly violating the rule of law’.

Those conclusions shouldn’t have come as a shock to Sharma, echoed as they were by every independent legal organisation that gave an opinion on the impeachment, including the International Commission of Jurists and the Commonwealth Lawyers Association. But even if he was surprised, he was not spurred to action. He didn’t just ignore the opinions; he failed to show them to Commonwealth foreign ministers at a meeting they held in April to discuss plans for the CHOGM. Even four months later, when Sharma’s office belatedly acknowledged requesting ‘a number of background reports and opinions’ about Sri Lanka, his spokesman said nothing about the substance of the advice. ‘It would be injurious to the discretion, and ultimately the effectiveness of the secretary-general if information of this kind were to be released,’ he explained.

Discretion is no longer an option, however: the text of both legal opinions has leaked, which in itself reveals something about the secretary-general’s effectiveness. If his claim of confidentiality is to stand up, there needs to be evidence that he is protecting or repairing Sri Lanka’s decapitated Supreme Court – and there is none. All that Sharma’s office even claims to have done to safeguard judicial independence is to have provided the government with ‘a compendium of Commonwealth practice’ and ‘technical assistance to make the necessary changes’. Whatever that might have involved (which seems to be another secret), it has had no tangible effects. Bandaranayake was summoned to court in mid-September on charges that would be laughable if they weren’t so vindictive: her failure to disclose empty bank accounts, it is alleged, amounts to the corrupt concealment of valuable assets. The pliant figure that Rajapaksa chose to succeed her, Mohan Peiris, a former attorney-general and cabinet adviser, is meanwhile supervising Supreme Court judges who are soon going to be asked to rubber-stamp Bandaranayake’s removal and his appointment. If, as looks likely, some of the judges prefer instead to retire, the president will get to pick their successors, at which point the last significant obstacle to executive domination will disappear.

It is for Commonwealth leaders to decide whether a man so little concerned with the rule of law should spend the next two years as the public face of their association – but all the signs are that Rajapaksa’s apotheosis is already a done deal. The reasons for that are various: a hand-wringing timidity among Commonwealth bureaucrats; a strangely reverential attitude among developed nations towards emerging economies; and a simple sense in some quarters that Sri Lanka ought not to be singled out for criticism by countries that have failings of their own. But scale matters. If the Commonwealth chooses to reward blatant and sustained violations of its supposed values and principles, clearly identified by authoritative legal opinions obtained on its behalf, it should expect to be treated with contempt.