The Commonwealth Lawyers Association says the controversial removal of Sri Lanka's Chief Justice shows a lack of judicial independence and transparency.
But so far only Canada has threatened to boycott the November meeting in protest against alleged human rights violations, while Australia has dismissed such proposals as 'wrong'.
Interviewer: Richard Ewart
Speaker: Alex Ward, vice-president, Commonwealth Lawyers Association
WARD: Well, I think there's a lot of disquiet about it, and the important thing about is what does the Commonwealth mean? And here I mean the Commonwealth of Nations, the former British Empire if you're looking at it, to say it's a place if governments, member nations aren't toeing the line, they're dealt with quite severe. We look at Fiji, we look at Pakistan, we look at Zimbabwe where they're saying because you're not acting in a way that's consistent with a proper rule of law, which is looking after people, having the independent judiciary and this sort of thing, that we're going to suspend you from the Commonwealth, that's how seriously we take it.
And so the problem that we see here, as Commonwealth lawyers dealing in these areas, and hearing from our colleagues in Sri Lanka is that the conduct of the government in Sri Lanka is getting to the point where we're saying well, isn't this against the sort of principles of the rule of law that we adhere to and if you go to CHOGM in Sri Lanka aren't you rather giving them the tick of approval? And that's the problem, well what's the point of the Commonwealth, if we'll kick out a Fiji, but we'll give Sri Lanka a tick of approval.
EWART: The difficulty though would seem to be that even the United Nations is consistently trying to put pressure on Sri Lanka to allow investigations into what happened at the end of the Civil War, with the human rights allegations, which, of course, are levelled at both sides -- the government and at the Tamils as well. But those investigations are yet to take place. Sri Lanka doesn't want to entertain that. So it's getting factual information as it were is very, very hard?
WARD: Well, it is and I guess that's another reason you'd say well, why would we go there, why would we go there and say all is well? Look the Commonwealth's all here, we're meeting you. And more importantly Richard, if they go to Sri Lanka then Sri Lanka becomes the Chair-in-Office of CHOGM, becomes generally the Chairman of the Board if you will, so it's rather giving a big green tick to what's going on. And if they're saying, we're not going to let the United Nations in, wouldn't that be that of itself a source of concern, to say, well then, why should we act like you're a good member of an institution that's supposed to uphold the rights of people?
EWART: From Australia's point of view, do you think any suggestion of them not going to the meeting is inextricably linked with the asylum seeker issue?
WARD: Well, it's difficult to think otherwise. When we look at it on this space, and why this is important now as we now have a new Prime Minister, we may have a new Prime Minister again by the time CHOGM comes up in November, 2013.
When we had Fiji, and we still have Fiji as an ongoing problem, but when that occurred, Prime Minister Rudd was very critical. The judges there in Fiji ruled that the military government was illegal and they were essentially sacked and the then Prime Minister Rudd was very critical of that approach.
Here in Sri Lanka, we have the Chief Justice ruling against issues pertaining to the government, the President's brother put up a bill that she ruled was inappropriate and then she was impeached. She was sacked. So that's a very serious thing to sack a Chief Justice. The impeachment proceedings were flawed in the view of people, because people left and wouldn't have anything to do with them and then a court subsequently ruled that it was inappropriate and that's been ignored by the government. So I find it very difficult to see a difference.
EWART: Is there an argument for saying that the best way of dealing with these issues and the best way possibly of getting to the bottom of these issues is to go to the meeting and try and put pressure on Sri Lanka from within as a group?
WARD: It might be, but I would think a better way to do that would be to have the meeting elsewhere and have Sri Lanka along and put pressure on them that way.
I mean, again I can't see the difference with Fiji, with us saying, if you're going to sack the judges who rule against the government, then we see that as a proper basis for you to be excluded and for us to stop dealing with you officially. Why the same situation doesn't apply in Sri Lanka?
And the Commonwealth Lawyers Association will continue to work with our colleagues in Sri Lanka, whatever should happen, to try and help them, because you have the lawyers there trying to push the rule of law and, of course, doing so very much at their own peril.
EWART: And as an organisation, how do you plan to bring pressure to bear on this matter?
WARD: It's a matter of just getting it known and raising questions exactly as we are now by getting the public thinking about it and saying do we want to go along and, and give support to this country?
Now there's a couple of issues, the important one is the rule of law, a bit more important to the lawyers. If you sack the Chief Justice, suddenly you're losing that independent umpire, the one that says to the government, you're doing the wrong thing and the government says yes, we will abide your decision. But you have that on top of the human rights issues, which, as you rightly say, are difficult to assess, because they're saying we're not going to let you come in and assess them.
So I think either of those by themselves are sufficient. Here you've got the two together.
EWART: Would you as an organisation be seeking meetings with political leaders here in Australia with the Prime Minister, Kevin Rudd, for example?
WARD: We'd certainly be happy to discuss matters with the Prime Minister or the Foreign Minister.
I think you have raised a practical issue, that Australia, for other reasons, doesn't really want to be overly critical of Sri Lanka, that we have an important working relationship with them on the asylum seeker policy, if one accepts that sending people back is important and necessary, then it's important that we deal with Sri Lanka, so I think that's going to be practical impediment. It shouldn't be, but it will be.
EWART: So from the Association's point of view, you will continue to raise the matters, continue to bang the drum, as it were, through now and CHOGM. But at this stage, it looks a fairly forlorn hope, would you say?
WARD: Oh no, I don't because there's quite a lot of international pressure being brought to bear, so you have the Law Society of England and Wales are very concerned about this and have raised issues directly with their necessary governments, with their leaders and also providing leadership elsewhere. Canada, as you say, it's still a bit of a way off, but when people have to focus and say will we do this and what's the consequence. Do they seriously take the Commonwealth as this club that you can be a member of as long as you abide the rules. Well, here's someone who we say is not abiding by the rules. And I guess it's like this Richard, If, for example, Julia Gillard moved to impeach Chief Justice French after the Malaysian Solution was struck down by the High Court. Would we say, oh well, that's bad luck, get rid of French and put in someone whose a bit more compliant with the government's wishes. That's the sort of thing that we're looking at here and Australians wouldn't stand for that and we previously haven't stood for it with Fiji as a specific example and Pakistan and Zimbabwe as I say.