It’s dangerous to be right in matters where the authorities are wrong

By Shanie
Courtesy: The Island

(March 20, Colombo, Sri Lanka Guardian) In all honesty, I’m not sure I would be capable of the courage he has shown. The man’s life is in ruins, and yet he has continued to do the thing he was born to do. Shunted from one safe-house to another, cut-off from

his son, surrounded by security police, he has continued to go to his desk every day and write. Knowing how difficult it is to do this even under the best of circumstances, I can only stand in awe of what he has accomplished......The struggle has gone on for nearly half a decade, and we are no longer closer to a solution than when the fatwa was first announced. Like so many others, I wish there was something I could do to help. Frustration mounts, despair sets in;.....His plight has focussed my concentration, has made me re-examine my beliefs, has taught me never to take the freedoms I enjoy for granted."

Paul Auster, the novelist and poet, was writing over fifteen years ago about Salman Rushdie. Many of us may not agree with Salman Rushdie, even though his The Satanic Verses’ was written only as a novel. But as in that statement attributed to Voltaire, we may not agree with a word of what Salman Rushdie wrote, but we need to defend to the death his right to write it. It is now over twenty years since The Satanic Verses were written and the fatwa issued; His life is no longer under the same threat, even though the fatwa has not been withdrawn.

Writers, journalists, academics and activists the world-over have always been under pressure not only from authoritarian regimes but even from governments that profess to be democratic. It was Voltaire again who said that it was dangerous to be in the right in matters where the establishment authorities are in the wrong. We have seen the truth of this through the ages, even in Sri Lanka. Writers and others have learnt the hard way how dangerous it sometimes is to be in the right. But yet there have been many courageous men and women from that tribe who, despite the danger, continued to speak out and write in terms of their conscience. Of course, also from the same tribe, were those who found it expedient to be in the wrong along with the establishment authorities. The less said about such conscience-less sycophants and apologists the better.

It is the men and women of courage who have dared to stand up to the tinpots who wield political power that deserve recognition. As we have noted in this column before, some of them like Ken Saro-Wiwa in Nigeria, Richard de Zoysa, Neelan Tiruchelvam, Kethees Loganathan, Lasantha Wickrematunge and Taraki Sivaram in Sri Lanka have had to pay the supreme sacrifice for their courageous activism. Others like Vaclav Havel in the Czaech Republic, Adam Michnik in Poland, Jayathilleke de Silva and Malinda Seneviratne in Sri Lanka have survived to tell the stories of their incarceration on fictitious charges; still others like Aung San Suu Kyi in Myanmar, J S Tissainayagam and Sarath Fonseka in Sri Lanka will have to await another day to tell their stories. Yet another category are people like Professor Raveendranath, the Vice-Chancellor of the Eastern University, and Prageeth Ekneligoda, the journalist, who have just disappeared without trace. Then there are those like Salman Rushdie, the brave activists of the UTHR, several journalists and civil society activists who have been forced to go underground, with or without a formal fatwa being issued against them. To all these named persons must be added millions the world-over, including tens of thousands in Sri Lanka – the unsung and the powerless, who have been killed or disappeared or become prisoners of conscience.

The stories of the survivors

After the last southern insurgency in the late eighties, the Asian Human Rights Commission brought out a a powerful book which contained several stories from the families of those killed or disappeared. In writing an introduction to the stories, Basil Fernando, the Executive Director of AHRC, wrote: ‘As the survivors from these families look back at what happened to their loved ones, they are aware that any of these acts could have been done to them as well, such being the situation of law enforcement in the country at that time. Many today wish to forget these things. However, surviving families remind us that that the legal framework within which these were committed has not undergone any fundamental change. Particular emergency laws that authorised violence for the sake of national security have not been withdrawn, despite local and international disgust.’

One of those who interviewed mothers and other family members to get their stories notes that in analysing the main reasons for the disappearances, he was shocked to realise that in most cases it was a matter of sheer jealousy, although some cases involved links with the JVP. People were obviously driven to take advantage of the reign of terror and take the lives of their ‘enemies’.

Those events happened over twenty years ago. Predictably, another interviewer notes that many families believe that the same widespread disappearances could recur in Sri Lanka. The same politicians, army and police officers thought to be responsible still remain in positions of power, except that they now hold even more powerful positions. Impunity has not been erased from the national landscape because the necessary changes to the legal system have not been made.

Emergency Regulations and PTA

The legal system under which these are the Emergency Regulations first promulgated in 1971 and the Prevention of Terrorism Act enacted in 1979. These have continued to be used and misused for nearly forty years, when, for most of those years, they were clearly unnecessary. It is now over ten months since the LTTE was defeated and buried, yet the emergency regulations have been extended recently by a specially reconvened Parliament.

Jayathilleke de Silva, presently an Editor at the Daily News, tasted in his own words the venom of the Emergency Regulations and the PTA, when he was detained for nearly three years on charges of "unlawful activity". Writing of his period of detention and the unlimited powers enjoyed by the law enforcement authorities under the PTA and ER, de Silva states: ‘During my detention at the New Magazine Prison, I came across detainees who were there for no fault of theirs. One was the brother of a suspect. He was detained for eleven months before being released sans any charges. Similarly, an elderly person was arrested since his neighbour who was a suspect was absconding. The reason for his arrest was that he had employed the suspect some time earlier as a driver...One person was arrested by mistake because the police had misspelled his name. It took nine months for the police to rectify the mistake and release him. There was also the case of two youth who were arrested simply because they were around when the police vehicle that was pursuing a suspect approached them menacingly. While the suspect fled to safety, the two youth had no cause to flee as they had done no wrong.’

Rohan Edrisinha, the academic and expert on constitutional law, has said that the manner in which the PTA was enacted was an excellent case study to highlight the serious deficiencies in the law and policy making processes in Sri Lanka. It also highlights the steady deterioration of democratic institutions in the country which is particularly unfortunate given the healthy traditions of parliamentary democracy and independence of the judiciary that existed in the country from pre-colonial times. After analysing the respective roles of the Parliament and the Judiciary in the enactment and operation of the PTA, Edrisinha concludes: ‘In the past thirty years many commentators have highlighted the concentration of power in the executive branch of government as one of the major flaws in the second republican constitution. The dangers of such a strong executive are made even greater by the decline in the powers of the other two branches of government, the legislature and the judiciary. It seems clear however that the situation has been compounded even further by the unwillingness of these two branches of government to assert to the maximum even the limited powers that they enjoy.’

From the experience of Jayathilleke de Silva and thousands of others, it also seems clear that the provisions of the emergency regulations and the Prevention of Terrorism Act will continue to be misused for partisan political purposes and to suppress dissent. Public conciousness must be aroused to prevent the further erosion of our democratic institutions. The Seventeenth Amendment, for instance, is being flagrantly violated for political purposes. What is breath-taking is that there are ‘liberal’ politicians who have turned apologists for this violation because they see "flaws" in that amendment. When there are people in positions of authority who think that constitutions can be disregarded and violated because they see flaws in them, is it any wonder that there is a collapse of the rule of law in many areas of governance. This is where we need both civil society and judicial activism to preserve our democratic institutions.