A SOMBRE REFLECTION OF WRITING ON RIGHTS

| by Kishali Pinto-Jayawardena

( June 05, 2012, Colombo, Sri Lanka Guardian) In this marking of the twenty fifth anniversary of the Sunday Times, it is a reflective task to write about the ‘Focus on Rights’ column, carried for the first time in the Times edition of 26th March 2000 and continued up to date, with brief pauses in between. 

Looking back, I discovered that, (though now faded almost completely from memory), the very first Focus column appropriately titled ‘the dilemma of disappearances’ called for enforced disappearances to be criminalized and the right to life to be constitutionally protected.

It says much for our intensely troubled society that these demands remain very much alive today, albeit in respect of a different political regime.

As was enjoyably unearthed in that veritable trip down memory lane, another Focus column some months later that same year honed in on ‘the man who made a difference.’ Here, the Supreme Court classically reiterated the core of the public trust doctrine which had, by then, been judicially developed as a safeguard against political abuse of state resources.

Those were heady times and heady precedents. And those initial columns were a fitting harbinger of what was to come. Indeed, the change in the logo of the Focus column, effected in the mysterious depths of the Times’ sub editorial, from a stylized scroll and a pen when the column was in its infancy to embodying the scales of justice, perhaps unwittingly symbolized the changing tenor of the writing itself. Before long, a wholehearted commitment to the conceptual notion of Rights and the Law gave way to a much more complex weighing of what the law actually means to people when naked authoritarianism overtakes democracy, as flawed as that democracy may have been. Assessing the deeds and misdeeds of successive governments as well as the role played by judges, lawyers, civil society and the media itself became an essential part of this process.

But at the start and in principle, writing on human rights and the law in Sri Lanka was an easy, almost instinctive choice. It did not come as a politically charged decision by any means. Instead, it combined the two great passions of life; on the one hand, an emotional commitment to the idea of justice and on the other hand, a profound respect for the cold logic of the law. It was fortuitous therefore that, on a personal level, the professional choices that were made quite early on, combined the examination and exploration of the law with an idealistic belief in the ability of journalism to, put simply, right terrible wrongs done by the most powerful. Needless to say, such idealism was short lived.

Even so, in those years when the law stood for something and the media had the power to bring down governments, there was an exhilarating duality about this combination. Across the Palk Straits, for many years, public interest litigation in India had been made possible by the framers of a constitutional document who were infinitely wiser and far less mean spirited than on our side of the divide. Sri Lanka’s constitutional framers, both in 1972 and 1978 were obsessed by the desire to keep power in the grasp of the political and legal elite and release it only grudgingly, under tremendous pressure.

I recall querying this contradiction in heated bewilderment from one of the country’s most liberal judges then in retirement. His response that, ‘it is far better to have tightly drafted provisions which may be liberally interpreted by judges when the occasion so warrants it’ is engraved most disconcertingly in memory. This unquestioning faith in the ability of a select few to decide on what was best for the country rather than to have the Constitution hold the scales equably marked Sri Lanka’s path to destruction long before constitutional aberrations like the 18th Amendment came into being. This was merely a logical culmination of what had gone on before.

So the jurisprudential burst of energy evidenced by Sri Lanka’s Supreme Court during the time that this column commenced was inevitably short lived. By the end of that decade, these judicial standard setters had been ruinously discarded. It is amusing to witness those who remained quiet when those seeds of inequity were sown, now bewailing the politicization of Sri Lanka’s judiciary in most charged terms.

The question may be reasonably posed; what else can be expected when members of the Bar, legal intellectuals, civil society and the media allowed (nay, even encouraged) the conscienceless dismantling of Sri Lanka’s judicial institution at a time when a critical mass may have easily made a difference unlike now when it is far more difficult?

It is commonly said that adversity makes for a hardening of resolve. In writing critically on the judicial role when a virtual judicial dictatorship predominated, contempt of court was frequently a threat, made all the more ominous by its fundamentally imprecise nature and the vast judicial discretion that it confers on a judge, as politically or financially corrupt as he or she may be. There were also minor irritants in the form of maliciously personalized attacks by media propagandists eager to ingratiate themselves with ruling politicians. All these were however, merely a spur to greater resolve. Though the Focus column never looked for accolades and never applied for such, the expressions of support that it received verbally and in writing through the years was all the encouragement it needed.

Twelve years down the line and in these most conflicted times for the law, for the media and for justice, this celebration of writing on rights is a sombre one indeed.

Note: Pinto-Jayawardena is a senior columnist and editorial consultant (legal) to The Sunday Times/Courtesy The Sunday Times 25th year souvenir, June 3rd 2012