The Commonwealth1 Challenge

Briefing Paper for the occasion of Commonwealth Day, 11 March, 2013

The Commonwealth has repeatedly reaffirmed its commitment to uphold core values of democracy, human rights and rule of law. Every year Commonwealth Day is celebrated on the second Monday of March. This Monday it adopted a new Charter that promises human rights, democracy and rule of law, amid doubts about its commitment to uphold core values- . Colombo for CHOGM 2013 Controversial choice? In !!", right after the end of its civil war, #ri $an%a offered to host the !&& C'()M. This offer, seen as a bid by the country to boost its sagging credibility, became controversial due to the grave allegations of human rights violations that it faced in the conduct of its war. The !!" C'()M decided to defer #ri $an%a as a venue to !&* in the possible hope that the ground situation would improve by then. In the intervening four years however little has changed, instead credible allegations of war crimes, alleged ongoing human rights violations and lac% of any genuine +ustice and accountability process within the country have become the reality. The recent ,anuary !&* impeachment of #ri $an%a-s Chief ,ustice,

The Commonwealth of Nations is a voluntary association of 54 countries: with 19 member countries from Africa, very two years, "uring the Commonwealth &ea"s of 'overnment (eeting )C&*'(+, member countries

eight from Asia, three from the Americas, 10 from the Caribbean, three from uro!e, an" 11 from the #outh $acific region% get together to "iscuss the !rogress ma"e in ,ee!ing their commitments to the organisation-s core values%

despite a #upreme Court decision declaring the process illegal, is another recent e.ample of the government-s intransigence. Credible allegations/ In !&!, the 01 #ecretary )eneral-s 2anel of E.perts found reliable allegations of serious human rights violation by the #ri $an%an government during the final phase of the civil war in !!".3mong others, it has recorded the manner in which the military in #ri $an%a caused large number of civilian deaths in 1orthern #ri $an%a through 4large-scale and widespread shelling5, intimidated and silenced the media and also allegedly used white vans to abduct and ma%e people disappear. 3 recent second report from the 01 on its own performance during the war was released this year and it further substantiates the claims of the earlier report. In March !& the 01 'uman 6ights Council passed a resolution as%ing #ri $an%a to e.peditiously present a comprehensive action plan detailing the steps for implementing the recommendations of the domestic $essons $earnt and 6econciliation Commission 7$$6C8 and to address alleged violations of international law. Twenty four countries - 3ustria, 9elgium, 9enin, Cameroon, C:ech 6epublic, Chile, Costa 6ica, )uatemala, 'ungary, $ibya, Mauritius, Me.ico, 1igeria, 1orway, India, Italy, 2eru, 2oland, 6epublican Moldova, 6omania, #pain, #wit:erland, 0nited #tates of 3merica and 0ruguay - supported this resolution. Though this was a wea% demand, given that the $$6C was a deeply flawed body, even these demands went unheeded. This lac% of response from #ri $an%a has now led to another resolution being discussed on the country currently at )eneva. It appears li%ely that India, which is frustrated at #ri $an%a- reneging on promise to leaders in 1ew Delhi to transfer significant powers to elected regional councils and to give the island-s Tamil minority autonomy, will vote against #ri $an%a this time as well In her !&* report to the 'uman 6ights Council, the 01 'igh Commissioner for 'uman 6ights

recommended that the #tate should investigate action by the security forces, which may have led to death or in+ury of civilians. The 'igh Commissioner also e.pressed concern about the transparency, independence and impartiality of the process by which the #ri $an%a army had appointed a military court of in;uiry to investigate instances of civilian casualties and also loo% into allegations broadcast on Channel <, irrespective of whether the video footage was authentic. There has also been concern about the protection of witnesses and victims during investigations due to the militari:ation in the 1orth. The #ri $an%an response to international allegations and appeals has been to deny all allegations and refuse to either cooperate with the international community or establish credible mechanisms for truth, +ustice and accountability within #ri $an%a. In the meanwhile human rights abuses within the country have continued unabated. 2

6ecent civil society and media reports on developments in #ri $an%a point to lac% of any political will to investigate allegations of international humanitarian law violations and further point to the ongoing intolerance for dissent, inade;uate protection of +ournalists +udges and others critical of the present regime, the targeting of minorities, and the increasing tendency to centrali:e all power into the hands of the 2resident and his family. Breach of separation of po ers! The manner and motivation surrounding the ,anuary !&*

impeachment of the Chief ,ustice #hirani 9andaranay%e has created even greater concerns about the suitability of Colombo as a venue. #ri $an%a-s #upreme Court has held that the impeachment violates the Constitution. Members of 9ar Councils and legal associations across the world have been vociferous in denouncing the impeachment. The 01 #pecial 6apporteur on the Independence of ,udges and $awyers has pointed out that 4the irremovability of +udges is one of the main pillars guaranteeing the

independence of the +udiciary and only in e.ceptional circumstances may this principle be transgressed.5
(f importance to the Commonwealth in upholding its own standards is the fact that the impeachment is in clear violation of the Commonwealth-s own fundamental values which hold that, there must be a separation of powers, the +udiciary must be an independent arm of government and must function without interference from the e.ecutive or the legislature. 0nli%e other aspirational values often reiterated by the Commonwealth, the $atimer 'ouse 6ules adopted in !!*as a core value is a measurable set of =hardbenchmar%s whose breach must engender a proportionate response from the organi:ation. The Commonwealth-s response to earlier allegations of serious violations of in #ri $an%a and to now to the violation of the $atimer 'ouse 6ules has been e.ceedingly mild and accommodative. The Commonwealth #ecretary-)eneral initially voiced =deep disappointment- at the impeachment. 'owever, his departure statement made after a >ebruary visit to the country referred to 4the differences of view5 it generated and mentioned 4the need for change, to ensure that any such process 7of removing senior +udicial figures8 in future is free of contention and does not call into ;uestion #ri $an%a-s commitment to the independence of the +udiciary and separation of powers5. Through his =good offices- role he has preferred to ta%e a ;uiet diplomacy approach. The #ecretary-)eneral has not formally referred #ri $an%a to the Commonwealth Ministerial 3ction )roup 7CM3)8. 1or has the body ta%en #ri $an%a under consideration suo motu to date. CM3) is the Commonwealth-s watchdog body. It has the power to %eep a country under scrutiny for =serious and persistent- violations of the Commonwealth-s fundamental principles of democracy, rule of law and human rights. It can as well suspend and e.pel a country. In the past it has done so in case of 1igeria, 3

2a%istan and >i+i. 2resent membership under the chairpersonship of 9angladesh includes 3ustralia, 9angladesh, Canada, ,amaica, #ierra $eone, Tan:ania, Trinidad and Tobago and ?anuatu. It is slated to meet in 1ew @or% in the last wee% of 3pril. "he Common ealth #eform Conte$t >ollowing concerns about its relevance in a changing world at the !!" C'()M, 'eads of )overnments decided to move toward reforming the organisation. To this end, between !!" and !&&, an Eminent 2ersons )roup 7E2)8 established to come up with a set of recommendations, produced a report titled =3 Commonwealth of the 2eople/ Time for 0rgent 6eform-. 3t the !&& 2erth C'()M its over !! recommendations were discussed but very briefly. 3 recommendation to set up an independent Commissioner to oversee the implementation of the core values of Democracy, 'uman 6ights and 6ule of $aw was dropped for lac% of agreement between member states. 3 reinvigorated Charter of fundamental principles was agreed upon and left to be refined for endorsement. @esterday the Aueen signed this new Charter which promises rule of law, democracy and human rights. The Eminent 2ersons )roup had emphasi:ed that the Commonwealth Ministerial 3ction )roup 7CM3)8 should not merely ta%e action against coup d-Btat or military sei:ure of power in member states, but fully comply with its mandate by acting on violations of rule of law and human rights. In parallel, the Commonwealth Ministerial 3ction )roup 7CM3)8 itself also reviewed the operation of its own mandate by committing to %eep under review member states adherence to the 'arare Declaration, which contains the Commonwealth-s fundamental political values and not merely concern itself with countries overta%en by military coups. 2resently >i+i Islands has been fully suspended from the Commonwealth. Civil society has called upon CM3) to formally consider #ri $an%a and set benchmar%s which if fulfilled could then allow the country to host C'()M. 6eacting to #ri $an%a-s lac% of response and doubtful adherence to the Commonwealth-s core values, Canada-s 2rime Minister has said that he will not attend C'()M unless there is substantial progress. In >ebruary !&*, The 'uman 6ights Committee of the 9ar of England and Cales pointed out in its report / 4The Commonwealth is an organisation which pretends to uphold democratic principles, and on occasion e.pels or suspends member states which disregard them. It cannot be ta%en seriously, however, if it permits #ri $an%a to showcase its destruction of +udicial independence at the Commonwealth 'eads of )overnment meeting planned for Colombo in 1ovember this year. 3 government which trashes the $atimer 'ouse principles and gets away with it D to such an e.tent that it is permitted to host the most prestigious event in the Commonwealth calendar D would ma%e the whole organisation a moc%ery

7paragraph ""8.5 0E M2 and former foreign secretary David Miliband has recently voiced similar concerns. 9ritish M2s also moved a motion at the 'ouse of Commons where many of them voiced the opinion that the 9ritish government should not be represented at the !&* summit until an international in;uiry ta%es place. The issues before the Commonwealth in the coming months are whether or not to bring it under review at CM3) - the 3pril meeting will be a vital momentF whether the circumstances warrant changing the venue of its prestigious meeting or ris%ing low level attendance and the absence of the ;ueen or royal representative at ColomboF and assessing what damage will be done to the Commonwealth-s reputation or CM3)-s ability to act against other violations in future. #ri $an%a is that test case. 3fter adopting its lofty Charter that promises human rights, democracy and rule of law can the

Commonwealth afford to mar% its premier meeting in a country that faces international opprobrium for grave human rights violationsG 3s host #ri $an%a will also become the Commonwealth-s Chair in office for the ne.t two years until the ne.t host ta%es over in !&H. There is concern as well that the divisiveness of the #ri $an%a issue may create fatal fissures between members of an already fragile institution. #ri $an%a-s posture as being representative of the young, new non-white member victimised and ranged against the old =white- Commonwealth invites the membership to divide colour lines obscuring the real issue/ who is ready to stand up for internationally agreed standards that the people of the Commonwealth can e.pect from #tates and who is not. #everal developing countries have also not been comfortable with #ri $an%a. India decided to vote for a 01 'uman 6ights Council resolution on #ri $an%a last year and most li%ely will do so again this year. 1igeria another influential Commonwealth country also voted along India. %or f&rther in'&iries( please contact!
Vidya Venkat Media and Communications Officer Commonwealth Human Rights Initiative vidya@humanrightsinitiative.orgB !!"# $arvodaya %nclave# $econd &loor 'ew (elhi !!))!" I'(I* +h, -! !! ./)01.""# .10).12&a3, -! !! 2/0/./00More info on our website: www.humanrightsinitiative.org

CHRI is an independent, non partisan, international non-governmental organisation working for the practical realisation of human rights in the countries of the Commonwealth.