As Tony Abbott became the lone public defender of the brutal Sri Lankan regime in Colombo last week, it emerged that the Commonwealth’s senior executive hid critical legal assessments from Australia and other countries that would have seen Sri Lanka removed as CHOGM host and Commonwealth chair for the next two years.
The Commonwealth secretary-general, Kamalesh Sharma, a former Indian diplomat known for his strong support of the Sri Lankan government, had commissioned legal advice on the Sri Lankan president’s sacking of the chief justice last January from senior British and South African judicial authorities.
He buried the reports, which contained advice from former chief justice of South Africa, PN Langa, that Mahinda Rajapaksa’s removal of chief justice Shirani Bandaranayake was unconstitutional and "sowing the seeds of anarchy". It is believed similar legal opinion was received by Sharma from British QC, Sir Jeffrey Jowell.
Sharma did not disclose the advice to the meeting of the Commonwealth Ministerial Action Group (CMAG) in London in March attended by eight Commonwealth foreign ministers, including the then Australian foreign minister, Bob Carr. The advice, sent on 5 March, six weeks before the meeting, became known publicly only when Langa passed away and a copy was found among his papers.
CMAG is the body set up by the Commonwealth to ensure all member countries comply with the Commonwealth charter of values, which include democracy, human rights, freedom of expression and separation of powers. The London meeting reviewed Sri Lanka’s adherence to these values, in view of its hosting of CHOGM and subsequent two-year chairmanship of the Commonwealth.
The Commonwealth Lawyers’ Association president, Mark Stephens, said the Commonwealth would have been forced to abandon CHOGM in Sri Lanka if this advice had been disclosed to the foreign ministers.
“The secretary-general of the Commonwealth had a high moral duty to disclose this and the fact that he didn’t means that the meeting of CHOGM [went]ahead in Sri Lanka when it wouldn’t have otherwise have done so,” he said. “The whole question would have been re-opened based on the legal advice that the heads of the Sri Lankan Government had behaved illegally.”
Sharma said he did not pass on the information because it was “in confidence”.
Canada's special envoy to the Commonwealth, Hugh Segal, described Sharma as “a shill for the Sri Lankan leadership, defending their every mistake”. Canadian Prime Minister Stephen Harper boycotted the meeting and said he would review the annual $20 million his country provides to the Commonwealth body. Another no-show, Mauritius, which objected strongly to Sri Lanka’s human rights abuses, declared it had rejected the CHOGM hosting role in 2015.
Deep divisions on human rights made this year's CHOGM the most controversial in decades. The UK Prime Minister, David Cameron, visited the north of the country, where he listened to stories of military repression and abuse of Tamils, including journalists. He then called on Rajapaksa to launch a credible investigation into war crimes his government is accused of committing at the end of the civil war in 2009. Rajapaksa countered by saying “people in glass houses must not throw stones”.
Prime Minister Tony Abbott defended Rajapaksa to the hilt against allegations of human rights abuses, including torture, saying “sometimes in difficult circumstances difficult things happen.” He also supplied two ex-Australian customs vessels to the Sri Lankan navy, to assist Rajapaksa to “stop the boats”.
"The Prime Minister's silence on human rights abuses in Sri Lanka was inexcusable complicity, but this is nothing less than collaboration and it is abhorrent," Greens leader Christine Milne said. Former Labor immigration minister Tony Burke also protested the decision. "You are not dealing with a transit country,'' he said. ''There may be some people who claim to be directly seeking asylum."
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