The emperor’s new clothes: the new Commonwealth Charter and CHOGM in Sri Lanka

By Maja Daruwala, Director, Commonwealth Human Rights Initiative

Last week was the Commonwealth week.  As the Commonwealth begins celebrations on the theme ‘opportunity through enterprise’ it may see its own opportunities and credibility dwindle to zero by the time its prestigious Heads of Government Meeting is held in Sri Lanka this November. According to announcements  last Monday, the Commonwealth Heads of Government meeting (CHOGM), will go ahead in Colombo despite Sri Lanka’s atrocious human rights record. Ironically, last Monday was also the Commonwealth Day when the Queen sign a new Commonwealth Charter that promises human rights, rule of law and democracy. As the world prepares to censure Sri Lanka at the UN Human Rights Council this week, the Commonwealth is preparing to honour Sri Lanka with its premier meeting, even if it is at the cost of all the values it just reiterated. This need not happen. The Commonwealth has mechanisms to scrutinise, censure, suspend and expel countries that seriously and persistently violate its core principles of democracy, rule of law and human rights and it must use them.

Australia; Bangladesh; Canada; Jamaica; Sierra Leone; Tanzania; Trinidad and Tobago; and Vanuatu, currently make up the Commonwealth Ministerial Action Group (CMAG) – the Commonwealth’s watchdog body. For the moment Maldives another member is suspended and will be discussed at its April end meeting in New York. But, the elephant in the room is Maldives’ bigger island neighbour: Sri Lanka.

In 2009, Commonwealth Heads of Government initiated measures to reform the organisation and save it from irrelevance. Under pressure of reforms, in 2011 CMAG agreed to fully examine all serious or persistent violations of Commonwealth values, instead of acting against just the unconstitutional overthrow of governments. Now the proof of the pudding is in the eating.

CMAG and the Commonwealth have time and again failed to arrest Sri Lanka’s long running human rights abuses. Sri Lanka is instead now being rewarded with the position of hosting the Commonwealth’s most prestigious meeting. This has caused great dissension among members-states and is contradictory to the opprobrium Sri Lanka faces from the international community and at the UN.

The very fact that the organisation is still willing to conduct its premier meeting in a country that is being internationally charged with grave international humanitarian law violations and serious human rights abuses is enough to question the Commonwealth’s commitments.

Outside the Commonwealth, outrage over Sri Lanka’s behaviour has been mounting steadily. In 2011 UN Secretary General’s Panel of Experts on Sri Lanka found credible allegations of war crimes during the last months of Sri Lanka’s civil war that concluded in 2009.  This year another report commissioned by the UN Secretary General on the UN’s own behaviour during that time came out with chilling and credible accusations of systematic and planned violations of humanitarian law. A report by the UN High Commissioner for Human Rights released last month pointed to the same violations and added that little had been done toward making those responsible accountable in any way. In every case Sri Lanka has challenged the motivation of international institutions and rejected allegations outright. Even recommendations made by a flawed domestic commission of inquiry are yet to receive any serious attention. Last year the UN Human Rights Council passed a resolution on Sri Lanka asking it to at least implement these recommendations. Now in the absence of any results the Council is preparing for another resolution later this month.

Meanwhile human rights violations continue unabated. Disappearances and crackdown on dissent has been rife with journalists and judges being attacked and killed. The North remains militarised, amid muted and fearful allegations of abuse. Majoritarian ethno-religious extremism is on the rise in the absence of protection from the government to the populations of the country. In January Sri Lanka impeached its own Chief Justice and replaced her with a favourite, in the face of international clamour, through a process found illegal by the country’s Supreme Court.

In the absence of specific precepts, the standard for interpreting the breach of broad Commonwealth values has always depended on the moral strength of its leadership. For current leaders, it appears that internationally documented egregious wartime violations and grave ongoing abuses do not breach Commonwealth thresholds. While it is unbecoming to shelter in the vagueness of lofty values, it is even worse to gloss over specific standards. The Commonwealth’s Latimer House Rules clearly lay down specific values that may not be breached. It requires that separation of powers and the independence of the judiciary are maintained without interference.

The Commonwealth Secretary-General has a mandate to act through his good offices in times of crisis. While what happened with the Chief Justice of Sri Lanka was an apparent breach of values by any reading of the Latimer House Rules, instead of holding Sri Lanka accountable, the Secretary-General stated, after a recent visit that he welcomes “the recognition of the need for change, to ensure that any such process” (the impeachment) “in future is free of contention and does not call into question Sri Lanka’s commitment to the independence of the judiciary and separation of powers.” As it is now becoming apparent the Secretary-General’s good offices seem to be neither redeeming the Commonwealth’s flagging relevance nor underscoring its credibility.

CMAG’s April meeting can repair all this. It has the power to formally take Sri Lanka under scrutiny and set benchmarks that need to be fulfilled. Within CMAG, Canada has already taken a strong stance. Its Prime Minister has said he would not attend CHOGM in Sri Lanka without substantial progress on the human rights front.  Australia which has been relatively ambiguous has an opportunity to show its commitment to Commonwealth values. Bangladesh, as Chair will have a vital moment to take the lead in upholding the Commonwealth’s belief in democracy, rule of law and human rights. Bangladesh’s own current examination of war crimes will no doubt be a clear reminder that accountability cannot and must not be buried away anywhere. Trinidad & Tobago (T&T) was host to the 2009 CHOGM that first called for Commonwealth reforms and also decided to delay Sri Lanka’s offer to host the 2011 CHOGM to 2013 due to early concerns about its record. T&T, where the notion of reforms was officially born, will have the important responsibility of protecting its legacy of hosting one of the most progressive CHOGMs in Commonwealth history. Tanzania which stood resolute in the Commonwealth’s battle for justice against Apartheid will not want to see itself weak and vacillating in upholding association’s the core principles. The island states of Jamaica and Vanuatu have the opportunity to indicate the power of small states in upholding values and influencing others on points of principle.

With its weak and underperforming record the Commonwealth may prefer to be the proverbial ostrich that buries its head under the sand. But CMAG member states should realise that their choices at the April meeting may well be the only opportunity the Commonwealth has to right itself, if it is to escape historic ignominy and lose its credibility when Sri Lanka hosts the 2013 CHOGM. If CMAG fails to act, only sad laughter could acknowledge the Commonwealth Charter of rights that was adopted last week and the fact that it’s President will go on to Chair the Commonwealth till 2015.

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