COMMONWEALTH, international law, and CHOGM

Vernon Botejue J.P.U.M. Senior Attorney at Law

The publicity given recently, both in the print and electronic media, to protests against the holding of the Commonwealth Heads Of Governments Meeting in Sri Lanka in September 2013, presided over by the Queen of England, has certainly focused the light on the Commonwealth of Nations, the multi-racial Association that undoubtedly has grown in strength and numbers through the years in like manner as the United Nations and has earned recognition as a ‘mini united nations’.

And it is chronic irony that the said protests emanate, not only from countries hostile to Sri Lanka but also from certain friendly members of the ‘Commonwealth’ eg. Canada; U.K; through officers holding high office in N.G.O.s in such countries, who make unilateral decisions in respect of matters purely within the realm of the internal affairs of another Independent Sovereign State like Sri Lanka and in order to galvanize their counter parts in such other country to implement their unilateral decisions into action accordingly, grant co-operation and support, including funding, for executing their own parochial agendas utterly destructive and detrimental to the Sovereignty and Independence of Sri Lanka.

The Members of he Commonwealth of Nations are truly Independent. The former contention that Commonwealth relations, inter se, were not governed by International Law because of their common allegiance to the Crown, no more, is tenable. Quote. Prof Smith “this curious doctrine, born a dying duckling, has perished quietly.” The common allegiance which was the foundation of the common status of British subjects no more exists and each Dominion has passed its own Citizenship Laws. The Immigration Laws vary from country to country. The Laws of the Commonwealth in themselves differ, but with this exception, in the field of Commercial and Industrial Law, a common pattern exists.” Thus it is manifestly evident no foreign country in the Commonwealth has the privilege or right to interfere with the Laws, in particular to interfere with the Supreme Law the Constitution of Sri Lanka.

“Three Commonwealth Associations wants Sri Lanka suspended” is a banner headline in the front page of the Daily Mirror published on April 19, 2013 that noted “The Commonwealth Lawyers Association (CLA) Commonwealth Legal Education (CLEA) and Commonwealth Magistrates and Judges Association (CMJA) passed a resolution yesterday calling for the suspension of Sri Lanka from the Union.” And have offered their unstinted support to their counterparts in Sri Lanka on issues raised by the said NGOs that have now become a dead duckling as it is manifestly evident by the fact that the stalwart parliamentarian designated as the “Cope Crusader” of the opposition UNP, former President of the BASL who had acted on such a brief given to him by foreign agents, stepped down, in breach of a tradition of the B.A.S.L that a President can run for a second term uncontested, because he - the ex President had foreseen the result in the event of his standing for an election, and passed the baton on to his Party colleague to follow in his foot steps who has totally politicized the BASL and destroyed its reputation and dignity by blatant breach of all hoary traditions and practices of the Bar Association of Sri Lanka, as evidenced by the news reports of the election and induction to office of his successor: “The absence of the Chief Justice and the Law officers of the State who play a dominant role at these ceremonies”.

LTTE Diaspora

It is no secret now and stands exposed that the foreign provocateurs perform on the brief given to them by the LTTE Diaspora and their apologists of the world’s most ruthless Terrorists Outfit in the Globe, including the local disgruntled lawyer politicians now embittered by loss of power and perks that they had enjoyed for quite a long time and lulled into a dream of staging a come back through foreign intervention and collaboration.

Jawaharlal Nehru

Queen Elizabeth II

In the premises it is deemed necessary and expedient in the public interest, to examine in this discussion, the relevancy and reasons for Sri Lanka opting to stay in the Commonwealth on becoming a free Independent Sovereign Nation by briefly delving into the origin and development of the Commonwealth.

Prof. De Smith has traced the commencement of the Commonwealth to the de-colonization of the British colonies by the typical mechanism for the attainment of Independence by an internally self-governing colony that, Prof De Smith set out in his treatise in great detail that has been accepted and followed by Britain and the colonies concerned. (Constriction of space restrains publication in full the details of such mechanism set out by Prof. Smith)

When the old colonies of the U.K. Canada, Australia and New Zealand and even South Africa were granted ‘Dominion Status’ these countries had their own home-grown constitutions and the term ‘British Commonwealth’ was used because of kindred affinity and the close association the citizens of these countries had with Britain.

When the UK granted Dominion Status to India she had her own constitution drafted by her own experts that included M. Ambedkar. However colonies including Sri Lanka, Malaya, Singapore and the former colonies in West and East. Africa were given constitutions that had many similarities, based on what is known as the “Westminister model.”

Britain had recognised that the moment a country was given Dominion Status it has equality of status with the U.K. and has attained sovereignty in International Law. In confirmation of this recognition the Balfour Report of the Inter-Imperial Relations Committee in 1926 declared that the U.K. and the Dominions were equal in status and in no way subordinate one to another in any respect of the domestic or external affairs though united by a common allegiance to the crown and freely associated as members of the British Commonwealth of Nations. But this definition was not deemed to be quite accurate at the time. Some Dominions remained less equal to the U.K. eg. The Constitution of Canada is tied up to the British North America Act.

Common interests

In 1971 the heads of Government of the Commonwealth held a meeting and drew up its ‘Declaration of Principles’ that described the ‘Commonwealth of Nations’ as “a voluntary association of Independent Sovereign States, each responsible for its own policies, consulting and co-operating in the common interests of their people and in the promotion of International Undertakings and World Peace”.

Thus it is manifestly evident that the resolutions referred to above taken by the NGOs as reported in the Daily Mirror article and reference, to call for suspension of Sri Lanka is ultra vires and contrary both to the spirit and letter of the principles enunciated herein and clearly points to a sinister attempt to cause disharmony and disruption of the calm and peace that now prevails throughout Sri Lanka after the total eradication, root branch and tree of the LTTE (Liberation Tigers of Tamil Elam) scourge from the soil of Sri Lanka in May 2009.

Membership in the Commonwealth was not automatic but open to all colonies of Britain, irrespective of colour, creed or different races or languages throughout the globe whether they were rich industrialized nations or the poor with freedom to frame their own policies, but the basic foundation on which the edifice of the Commonwealth has been built is “consultation” and “co-operation.” However it has to be remembered that despite the principles enshrined, conflicts and wars have been waged intermittently eg. between India and Pakistan.

It is noteworthy that Commonwealth Membership is not obtained automatically on de-colonization. It is well known that many colonies viz Egypt, Sudan, Iraq, Nepal and Burma under the British Raj opted to be out of the Commonwealth. Eire left in 1949. It is also on record that, “By a collective decision of the Commonwealth countries, South Africa was forced to leave in 1962.”

Independent nations

It is also noteworthy that some of the Independent Nations that even severed the unifying tie of allegiance to the Queen of England opted to stay in the Commonwealth. It is quoted that Jawaharlal Nehru has observed the reason for such decision “It is an Association that brought together, for frank discussion, without binding commitments, leaders from the various parts of the earth.”

Looking back in retrospect, when Sri Lanka adopted in 1973 “The Constitution Of The Democratic Socialist Republic of Sri Lanka” Chapter 1 Section 1 declared “Sri Lanka (Ceylon) is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the “Democratic Socialist Republic of Sri Lanka.” A pertinent question arises. Why Sri Lanka opted to stay in the Commonwealth? The answer is evidently found in the aforementioned observation of Jawaharlal Nehru that influenced Sri Lanka .

It was after free independent India and Pakistan sought and were admitted to full membership of the Commonwealth in 1947 that the organization gained recognition as a Multi-Racial Association. Until 1947 the Commonwealth comprised only of five countries viz Britain, Canada, Australia, New Zealand and South Africa.

Today the Commonwealth is comprised of 54 big or small countries according to the list of member states of the Commonwealth of Nations by population compiled by Wikimedia Foundation,Inc. a non profit organization, as last modified on April 7, 2013. The biggest is India, smallest is Nauru with a population of 10,000 and Sri Lanka is listed as no.16 with a population of 20,462,000.

The concept of common allegiance to a crown was abandoned the moment the Indian Republic was accepted as a member of the Commonwealth. Today it is ‘the Commonwealth of Nations’ and not the British Commonwealth, but all are united by an indissoluble Link viz the Queen who is the head of the Commonwealth.

A unique forum

Consequent to the change of status of the Commonwealth, a new Secretariat had to be constituted. A Secretary–General was appointed by the Commonwealth countries to which he owed allegiance. He was not responsible to the British Crown as was formerly the case when the British Commonwealth of Nations functioned.

It is interesting to note that many Independent countries that were under the British Yoke opted to retain the membership of the Commonwealth of Nations. The growth and utility of this Association is attributed to the efforts of a Canadian Arnold Smith who was at the helm of affairs of the new Secretariat who together with his loyal staff through their tact and diplomacy kept the Commonwealth together to overcome a series of catastrophes: the Pakistan - Indian war, the separation of the Malay Peninsula, the turmoil in Africa and lack of funds may have led to the dissolution of the Commonwealth.

It is matter of record, in an article published in the News Letter of The BASL, written by an eminent jurist and a former Judge of the Supreme Court, Dr H.W. Thambiah QC who was a lecturer at the Ceylon Law College when this writer was a student. “The Commonwealth is a unique forum. The meetings of the Heads of the Commonwealth have produced useful results. The meetings of the Finance Ministers, Law Officers, Heads of Departments, Parliamentary Associations, Chief Justices, Vice Chancellors, Officers of Broadcasting Corporations, Press, publicity and even athletes, have strengthened the Commonwealth. Common problems ranging from governmental policies to athletics, are discussed at these meetings and each Commonwealth country has benefited by such frank discussions”.

Dr Thambiah has also noted “That Mr Ramphal, the Secretary and his staff have done their best to organize meetings and provide opportunities to unite the Commonwealth countries and in particular to help the developing countries of the Commonwealth”. That includes Sri Lanka and certainly provides an answer to the question why Sri Lanka opted to remain in the Commonwealth.

Dr Thmbiah has also “noted that Canada, through CIDA Aid organization had considerably helped the developing countries. The only motivation is help to humanity, a gesture which is greatly appreciated by Sri Lanka and other developing countries”.

In this context it is heartening to note the banner headline in the Sunday Observer of April 21, 2013 “CHOGM will go ahead as scheduled” based on a press release issued by the Deputy Minister of External Affairs Neomal Perera ,” that everything was in place to hold the next Commonwealth Heads of Government Meeting (CHOGM) in Colombo in November despite the various false allegations against Sri Lanka.”