The Commonwealth Lawyers Association went a step further and made an unprecedented call for Sri Lanka’s suspension from the Commonwealth of Nations. Funke Aboyade who in Cape Town, explains why…
The ‘Bad’ Member States…
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.
Sri Lanka’s Chief Justice, Shirani Bandaranayake, was removed 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.
About 60 judges and magistrates were subsequently arbitrarily relocated around the country.
In Zimbabwe too, the Mugabe government stands accused of continued violation of her citizens’ human rights. The arrest and incarceration last month of prominent Zimbabwean Human Rights lawyer, Beatrice Mtetwa, on spurious charges which were largely based on barely veiled political reasons also took centre stage at the CLC.
Mtetwa was arrested during a raid on the party office of Mugabe opponent, Prime Minister Morgan Tsvangirai. She spent eight days in Police custody before being released on bail upon appeal to the High Court after an initial denial of bail by the Magistrate’s Court.
Her arrest which prompted intense public and international outcry was seen as a thinly disguised ploy to prevent her from defending some members of Tsvangirai’s party.
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.
Upping the Ante…
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 ante 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.
The Sri Lanka Bar Speaks Out…
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.
The Fallacy of the Sri Lanka Government’s Arguments…
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.
Lawyers: An Endangered Species in Mugabe’s Zimbabwe?
The harsh realities of living in Mugabe’s Zimbabwe were underscored by Ms Mtewa’s absence from the CLC last week.
She had been scheduled to speak at last week’s CLC but due to her recent troubles with the government had been unable to come.
She sent these words instead: ‘I would have loved to be at the Conference in person but due to my recent arrest, my lawyers have recommended that I stay put due to fears it would not be prudent to publicly disclose at this stage.
‘As most of you will be aware, there has been a crackdown on civil society activists in recent months and I have been involved in the defence of most of these. Invariably, these activists are deemed to be involved in election related advocacy, which ZANU PF believes is their sole preserve’, she said.
She described her arrest in the course of the discharge of her mandate as a lawyer as being meant ‘to discourage human rights lawyers from representing their clients in so called political cases, particularly as we enter the election season’.
It was, she said, ‘a blatant and unashamed interference with my internationally recognised fundamental right to practise law without undue hindrances and interference’.
Unbowed, she concluded, ‘The observance and maintenance of the rule of law, is an international principle that lawyers the world over should fight together without apology’.
Zimbabwe was suspended from the Commonwealth in 2002 and withdrew from the body the following year before the issue of the renewal of its suspension could be considered.
A New Threat…’Come and Eat’
Ms Irene Petras, the Executive Director of Zimbabwe Lawyers for Human Rights, who made a presentation in Mtewa’s stead, pointed out a new, insidious threat.
‘A new challenge resulting from the Inclusive Government is reduced opposition to the status quo by the politicians, many of whom are benefitting from and enjoying the fruits of office’.
She explained that Zimbabwean Civil Society has ‘essentially had to become a form of "opposition" to keep the politicians in check and push for reforms. For such reasons, it has been targeted accordingly’.
‘Strategies used to clamp down on dissent and public critique of policies and governance have shifted since the extreme violence of 2008 to one of selective targeting of mobilisers, educators, human rights monitors and those providing support services (legal and medical).
‘Instead of beating or arresting hundreds, key individuals are now targeted to serve as a lesson and warning for others. This is mixed with high levels of intimidation of the national population as a reminder that what happened in 2008 can happen again’, she said.
The work of Human Rights defenders and Civil Society Organisations was essentially being criminalised, she said.
Recent months had witnessed ‘targeting of the last line of defense, being the lawyers and recently select members of the judiciary, whose support and presence ensures that civil society and HRDs have a safety net to continue their work. Attacks have been through arrests, vilification in judgments, attempts to force disciplinary proceedings for deregistration, amongst others’, she disclosed.
‘Arrests of lawyers and charging them with obstructing justice has been a psychological blow, the full effects of which still remain to be seen.
‘Coupled with this, is the lack of substantive reforms of the institutions highlighted by the targeting of independent-minded judges for removal. High Court judge, Hungwe J is currently waiting to face a tribunal which is expected to be established shortly to consider his removal after an intensive onslaught through the media and other unknown state personnel.
She called for the involvement of local private and public lawyers in regional and international capacity-building efforts to get a head start on reforms.
She also called for support for the work of the regional bar association, SADC Lawyer's Association and to amplify messages and recommendations which will come from them relating to the rule of law issues ahead of, and after, the impending elections
‘Encourage members of your own judiciary and legal profession to talk to their peers in Zimbabwe and encourage increased professionalism and courage; assist in amplifying the exposure of those named and shamed, particularly those in the profession so that the professional cost of their actions is increased’, she urged.
Aluta Continua, Victoria Ascerta?
She ended on a defiant note: ‘The message from lawyers back home is simple we have not given up, and we will continue to do what we can for as long as we must to push for rule of law, constitutionalism, and opening of space for HRDs ahead of elections’.
Petras made the presentation in spite of the probable danger to her person upon her return to Zimbabwe.
If the Commonwealth goes ahead to suspend Sri Lanka, it will join the unenviable league of countries like Fiji and Pakistan (which have each been suspended twice) and Zimbabwe (which withdrew from the organisation before its initial suspension came up for review).
Nigeria was suspended in 1995 in the aftermath of the execution of Ken Saro Wiwa by the Abacha government and was fully restored with the advent of democracy in 1999.
Suspension is the highest punishment that can be administered by the organisation on erring or recalcitrant member nations.