The Commonwealth – the 54 ostensibly democratic nations formerly known as “the British Commonwealth” – is sleepwalking towards a human rights disaster. That will happen if it goes ahead with the high point in its calendar: the Commonwealth Heads of Government Meeting (CHOGM), scheduled for November in Colombo, Sri Lanka, where it will be hosted by the country’s president, Mahinda Rajapaksa.
Perhaps emboldened by getting away with murder – the army’s slaughter of 40,000 Tamil civilians in 2008 and 2009 – Rajapaksa’s government has now moved to destroy a pillar of the rule of law, the independence of the judiciary. It has sacked Chief Justice Shirani Bandaranayake for daring to make a decision that it finds inconvenient.
Bandaranayake was the first woman to be made a Supreme Court judge in Sri Lanka and was dean of Colombo University’s law school. Last year, she enraged the government by declaring unconstitutional a bill introduced by the president’s brother Basil Rajapaksa, the minister for economic development, which would have centralised political power, especially at the expense of the Northern (largely Tamil) Province and given the minister wide-ranging powers to infringe civil liberties. The government decided to remove her: 117 tame MPs introduced a bill to impeach her on 14 charges of alleged “misconduct”.
Impeachment is an arcane process in which parliament tries the misconduct charges and requests the head of state to remove a guilty jurist. Normally the judge is first convicted of a crime by the courts and is impeached on the basis of that finding, reached by an independent and impartial tribunal. The principle of judicial independence requires that no judge should be impeached for doing his or her duty merely because the decision has upset the government. Yet that is what the Rajapaksa government has done in the case of Bandaranayake.
The result was a foregone conclusion. She was found guilty on three charges of misconduct on evidence that would not stand up in any real court and would not amount to misconduct under any sensible definition of that term. Her impeachment was celebrated with a fireworks display from the Sri Lankan navy and with entertainment, feasts and more fireworks supplied by the government to crowds outside her home. Perhaps the nastiest aspect of all this was the government’s tactic of bussing in demonstrators with placards abusing the chief justice and encouraging the state media to join in the witch-hunt.
A visit to Sri Lanka by the Queen, as the head of the Commonwealth, would provide a propaganda windfall – a royal seal of approval – to the host president after his destruction of the country’s judicial independence. It would be a mockery of the core democratic values for which the Commonwealth is supposed to stand. The Foreign Secretary, William Hague, has been silent on the subject but the UK will have one last chance to save the situation when a CHOGM planning meeting is held in London in April – an opportunity to switch the meeting to the alternative venue, the exemplary democracy of Mauritius. If that fails, the Queen should stay at home and the UK should be represented by a junior diplomat.
What can be done about the 117 Sri Lankan MPs who brought fabricated charges against a judge for doing her duty and the seven government ministers who tried her so unfairly? There is a new tool to name and shame those who share some responsibility for human rights abuses – the “train drivers to Auschwitz”, so to speak – without whose participation such events would not be possible. It is called a Magnitsky act, after the US law ratified by President Obama last December. As applied to Sri Lankan politicians, it would deny them entry visas and freeze any bank accounts they hold in this country. If the UK parliament believes in doing something about human rights abroad, it should adopt this tactic as a way of deterring abuses of power by those with links to Britain.
The process of impeachment was left to Sri Lanka as a colonial legacy. Britain has not impeached a high court judge since 1830 (for embezzling court funds) and it would be inconceivable today without a prior criminal conviction. Yet leaving justice in the hands of politicians – in Bandaranayake’s case, malicious ones – cannot be countenanced.
As for the Commonwealth, when some of its governments criticised Sri Lanka at the UN, that country’s ambassador replied: “What is the value of the Commonwealth?” If CHOGM goes ahead at Colombo, the answer will be very clear.
Readers can download Geoffrey Robertson QC’s legal opinion on the impeachment of Sri Lanka’s chief justice from barhumanrights.org.uk