By Professor Philip Murphy, Director, Institute of Commonwealth Studies
Well in advance of today’s meeting of the Commonwealth Ministerial Action Group (CMAG), the Commonwealth Secretariat was attempting to dampen expectations that the Group would act decisively in response to growing concerns about the internal situation in Sri Lanka, which is due to host the 2013 Commonwealth Heads of Government Meeting (CHOGM). On 26 March, Richard Uku, a spokesman for the Commonwealth Secretary General, confirmed that the CHOGM would be held in Sri Lanka, and that the country would not be on the CMAG agenda. He claimed, ‘It was the Commonwealth Heads of Government that made the decision to hold the 2013 meetings in Sri Lanka. Such decisions are made at the Commonwealth Heads of Government level and not by CMAG’.[i] The clear implication of his remarks was that, having been made at heads of government level, the decision to hold the CHOGM in Colombo could only be revoked by heads of government. This line seems to have been accepted even by those critics of the Sri Lankan government who claim that its record on democracy and human rights makes it an unsuitable host for the next CHOGM. Speaking at the Institute of Commonwealth Studies on 18 April, Dr. Paikiasothy Saravanamuttu, Executive Director of the Sri Lanka-based Centre for Policy Alternatives argued powerfully that recent developments in the country should result in the 2013 CHOGM being moved to another location. Yet even he appeared to accept that this decision could only be made by heads of government.
What, however, is the basis for this doctrine?
The protocols for the organisation of CHOGMs have never been the subject of any formal statement agreed by heads of government. In the absence of clear guidance, the Commonwealth tends to work on the basis of precedent; and there simply is no precedent for a decision to hold a CHOGM in a particular member state being overturned on the grounds of concerns about that country’s behaviour.
The history of the Commonwealth does, however, provide some helpful pointers. Although a CHOGM has never been relocated as a mark of disapproval of the actions of a member state, this is precisely what happened in the case of the 1981 Commonwealth Finance Ministers’ meeting. It was due to take place in New Zealand, but was moved as a reproach to the government of Robert Muldoon, which had failed to prevent the South African Springbok rugby team from touring the country in defiance of the 1977 Gleneagles Agreement. The Commonwealth Secretary General of the day, Sonny Ramphal, was personally outspoken in his criticism of Muldoon’s policy.[ii] In moving the Finance Ministers’ meeting, however, Ramphal acted in the name of the heads of government. His ability rapidly to construct a consensus around this issue was presumably aided by the fact that the Springbok controversy erupted at a time when many Commonwealth heads of government were gathered in London for the wedding of Prince Charles.
Of greater relevance, perhaps, is the example of the CHOGM originally scheduled to take place in Brisbane on 6-9 October 2001.On 28 September, with only days to go before the meeting was due to commence, Commonwealth Secretary General, Don McKinnon, announced its postponement citing security concerns following the terrorist attacks in the US on September 11th. But there was no vote on this by member states. Instead, McKinnon appears to have taken soundings and learned that a number of heads of government including the prime ministers of the UK, Canada and India, no longer planned to attend. Concluding that there would not be enough high-level representation to make the CHOGM viable, and that heads of government were likely to accept his judgement, he acted on his own initiative, advising John Howard, the prime minister of Australia, to postpone the meeting. Howard’s press statement, announcing that he had reluctantly agreed to accept this advice, strongly implied that there was far from unanimous agreement among member states that the meeting should not take place as planned. He claimed, ‘As recently as Tuesday, some 45 Commonwealth members had advised the Commonwealth Secretary-General and ourselves of their commitment to attend at Head of State/Head of Government level. But since then the aftermath of the terrorist attacks of 11 September on many levels has caused many of those leaders to review their plans and conclude that the world situation requires them to stay at home.’[iii] There was, in short, no formal agreement among member states to postpone the CHOGM; nor was there even any apparent consensus. What mattered, however, was that the prime minister of the host country was prepared to accept the Secretary General’s recommendation for a postponement.
The decision to hold the 2013 CHOGM in Sri Lanka becomes more controversial with each month that passes. On 17 April, the Commonwealth Law Conference meeting in Cape Town urged Sri Lanka’s suspension from the councils of the Commonwealth on the grounds of serious breaches of the rule of law and judicial independence. It also asserted that staging the CHOGM in Sri Lanka would ‘tarnish the reputation of the Commonwealth’. A resolution to this effect was ratified by the Commonwealth Lawyers Association (CLA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA). Given that just three days before today’s meeting of CMAG, the Foreign Secretary of Bangladesh – which currently chairs the Group – reassured President Rajapaksa that his country would ‘stand by our Sri Lankan brothers on the issue of human rights’, decisive action against Sri Lanka was clearly highly unlikely.[iv] So where does this leave the issue of the CHOGM?
Speaking at a press conference at Marlborough House today at the end of the CMAG meeting, the Commonwealth Secretary General, Kamalesh Sharma, claimed that no Commonwealth member state had so far indicated that it wished to see the CHOGM moved. But there is another side to this issue. As concern mounts about the situation in Sri Lanka, some heads of government may feel uncomfortable about attending the meeting in person. Clearly, if a significant number of them stayed away, the whole purpose of the heads of government meeting would be undermined – just as McKinnon believed it was likely to be undermined in 2001. It would surely be appropriate for Sharma to take soundings from member states about whether they intended to be represented at heads of government level in Colombo. If a sizeable number indicated that they did not, the precedent of 2001 suggests that the Secretary General would be within his rights to advise President Rajapaksa that the interests of the Commonwealth would be best served if the CHOGM was moved to another location. The difference, of course, is that Rajapaksa is highly unlikely to accept that advice. Beyond that stage, the Commonwealth would obviously be entering into uncharted territory. But in the event of the Sri Lankan government rejecting the advice of the Commonwealth Secretariat, it would also seem appropriate for the Secretariat to seek a more formal expression of views from heads of governments about whether they wished to revisit their decision made at Perth in 2011 to award the next CHOGM to Sri Lanka. The point here is that it would be unfortunate if the misleading impression gained ground that the Secretariat is powerless to act because the matter is one for heads of government. The precedent of Brisbane suggests that the Secretary General might have a constructive role to play in taking soundings among member states and to form a view about whether a CHOGM in Colombo would be in the best interests of the Commonwealth.
[i] News.LK, 28 March 2013, http://www.news.lk/news/sri-lanka/4667-chogm-summit-in-colombo-as-scheduled
[ii] Sir Shridath Ramphal, ‘How Muldoon let the side down’, The Times, 5 August 1981
[iii] Australian High Commission, India, Press Release 28 September 2001, http://www.india.embassy.gov.au/ndli/PA_18_01.html
[iv] Daily News, 24 April 2013.