Recent developments in Sri Lanka and Zimbabwe took centre stage at last week’s Commonwealth Law Conference in Cape Town, South Africa with the General Assembly of members giving unanimous acclaim to the Resolution by their Association, the Commonwealth Lawyers Association (CLA), calling for the suspension of Sri Lanka from the 54 member state Commonwealth of Nations.
This was in relation to Sri Lanka’s Chief Justice, Shirani Bandaranayake’s removal from office in January this year in what is generally regarded as a flawed impeachment process and in defiance of court judgments by the Supreme Court and Court of Appeal.
The impeachment of the Chief Justice of Sri Lanka, as well as the arbitrary transfer of judges, has raised grave concerns about the independence of the country’s judiciary. About 60 judges and magistrates were subsequently arbitrarily relocated around the country.
Previously, the CLA had called on member states to boycott the CHOGM (Commonwealth Heads of Government Meeting) meeting scheduled to hold in Sri Lanka later this year, but had stopped short of calling for a suspension of the country.
Last week’s resolution upped the stake in high wire diplomatic and political stakes as the CLA showed it was determined to fight this cause and see it through to a logical conclusion.
CLA President, Mrs. Boma Ozobia, read out the Resolution to the house. It was unanimously carried and not a single hand was raised against.
CLA said that the Commonwealth Latimer House Principles on the proper relationship between the Executive, the Legislature and the Judiciary, as well as the Commonwealth Declarations of Principles and Values as embodied in the Commonwealth Charter must be upheld by all member states, including Sri Lanka.
‘Membership of the Commonwealth is seen as a badge of respectability but that badge is being tarnished by repressive actions in Sri Lanka’ she said.
The Association frowned on the continued erosion of the independence of the judiciary, the Executive’s failure to abide by court orders and the gross and persistent harassment of members of the legal profession and others who are seeking to defend these values in Sri Lanka.
The Resolution stated that the CLA, CLEA (Commonwealth Legal Education Association) and CMJA (Commonwealth Magistrates and Judges Association), representing three branches of the profession, having assembled at the 18th Commonwealth Law Conference, in Cape Town, South Africa now called upon the Members of the Commonwealth, through the Commonwealth Ministerial Action Group ‘to place Sri Lanka on the agenda of its next meeting on 26 April 2013 and suspend it from the Councils of the Commonwealth for serious and persistent violations of the Commonwealth fundamental values’.
It also urged member states to ‘reconsider the holding of the next Heads of Government Meeting in Sri Lanka as to do so will tarnish the reputation of the Commonwealth especially given that the Sri Lankan Head of State will thereby assume the role of Chair- in-Office; call into grave question the value, credibility and future of the Commonwealth; be seen as condoning the action of governments who violate its principles and by its silence will undermine the moral authority it purports to have in protecting and promoting fundamental values of the rule of law and human rights’.
The Commonwealth Lawyers Association was founded in 1982 with the aim of promoting and maintaining the rule of law throughout the Commonwealth.
Earlier, the President of the Bar Association of Sri Lanka, Mr. Upul Jayasuriya, had in an impassioned address raised an alarm over judges who were acting in accordance with political leanings rather than their judicial conscience and called on judges to adhere to the Beijing Statement of Principles of the Independence of the Judiciary.
‘The doomsday of the rule of law and the independence of the judiciary was not too long ago in Sri Lanka’ he declared.
Tracing the history of Chief Justice Bandaranayake’s travails, he described the Sri Lankan government’s actions as ‘a comedy of errors’, saying that even the Chief Justice’s husband had not been spared with government-sponsored labour unions picketing banks of which he was chairman.
‘This’ he said ‘is the plight of the rule of law and justice in Sri Lanka’. ‘If we cannot defend our right to practice our profession with dignity, then everybody will be at risk’ he warned.
‘In many countries where the rule of law has been undermined, litigation has been reduced to bargaining. ‘We must remedy this crisis of confidence’ he said.
Lord Lester QC who chaired the session pointed out the fallacies in the Sri Lankan government’s attempts to justify their actions by comparing it with the practice in the UK. In the UK, he clarified, a senior judge could in theory be impeached, but before his removal he must be given a fair hearing by a quasi-judicial body. Further, he said, the doctrine of parliamentary sovereignty which the Sri Lankan government relied on would not avail them in this instance.
Lord Lester called on CHOGM not to hold their meeting in Sri Lanka.
He also called for a travel ban on members of the Sri Lankan Parliament who had participated in the Chief Justice’s impeachment. ‘We must send a message that they cannot be rewarded.
‘The government must be isolated and not be allowed to participate in the Commonwealth’, he said.
The Executive Director for the Foundation of Human Rights in South Africa, Ms Jasmin Sooka who also spoke declared that the rule of law was under siege in Sri Lanka, with anyone, including lawyers and judges, who voiced opposition being kidnapped and disappearing.
Ms Sooka was appointed in 2010 a member of an expert advisory panel on Sri Lanka to UN Secretary-General Ban Ki-Moon. The panel completed its report in 2011.