Wednesday, September 3, 2008

Columns - FOCUS On Rights

The best of times and the worst of times
By Kishali Pinto Jayawardene

Certainly it is now, (to borrow a dearly immortalized phrase), the best of times and the worst of times. It is the worst of times for never before have the assaults on basic freedoms of life, liberty and democratic space been so prolonged and so pervasive or accompanied by such comprehensive subversion of constitutional institutions. And in response to those who would argue that the excesses of the then government, (in fighting the Liberation Tigers of Tamil Eelam and the Janatha Vimukthi Peramuna), during the nineteen eighties and the early nineteen nineties, surpassed the current agonies that we are living through, I would beg to disagree. That period was irrevocably marked by the extraordinary twin threats that the State was faced with, though this is not to excuse at all, the extreme repression resulting in thousands of killings of Sinhalese, Tamils and Muslims, the family members of whom are yet to obtain justice.
Abandoning the proverbial figleaf of democracy
And at that time, there was adherence to at least the figleaf of a democratic process while political corruption of the constitutional and economic process was nowhere near the current astronomic heights. The 17th Amendment to the Constitution is yet being bypassed on the ludicrous pretext of a pending Parliamentary Select Committee Report which is fated never to see the light of day. If, for example, this constitutional amendment was properly implemented, we would have a constitutionally appointed National Police Commission, an Elections Commission and a Human Rights Commission that would have been crucial in ensuring the minimum of a free and fair poll in the North-Central province, including enforcing policemen to act according to law. But this was not to be.
The degeneration of constitutional institutions
Again, at that time, though we had political goons, they were not elevated to ministerial rank. Nor did they engage openly in the flouting of the law under the highest political patronage. At that time too, even though the Constitution was challenged to its fullest extent, we had courageous judges of the appellate courts who, minus their own personal or political ambitions, (and that rider is crucially important to this discussion), and despite extreme political pressure, laid down the parameters of the exercise of political power. While this is not to say that all was ideal, certainly the degeneration of constitutional institutions was not of such a nature that it compelled us to wonder whether the system would ever right itself at any point of time.
Now, the extraordinary has become the ordinary. And the ease with which we accept this transformation - along with despicable justifications put forward by government apologists - is what should most concern us.
Action taken in the name of national security
Last week's column focused on Maheswari's story, just one of many such traumas. Later on in the week, indictment was issued by the Attorney General against journalist J.S. Tissainayagam citing purported offences committed in terms of Emergency Regulations and the Prevention of Terrorism Act (read together with the Penal Code). However, the contents of the indictment in the public domain appear to centre purely on journalistic contributions to the "North Eastern Monthly" magazine during 2006 and 2007. Tissainayagam's observations that the state security forces have been the main perpetrators of killings in the conflict areas and that, at one time, citizens in Vahari were subjected to intense shelling and aerial bombardment with attempts to 'starve the population by refusing them food as well as medicines and fuel with the hope of driving out the people of Vaharai and depopulating it,' form the core of the indicted offences on the basis that they amount to, inter alia, causing or intending to cause acts of violence and/or communal disharmony and/or bringing the State into disrepute.
An additional charge that the magazine was published with funds from a non governmental organization is inextricably linked with establishing that the magazine indeed, published matter that can legitimately be prohibited.
Yet, if these writings form the alleged offences in question, journalists who are equally guilty of the same would be legion across Sri Lanka. Indeed, the jurisprudence of Sri Lanka's Supreme Court is studded with instances where it has been held that even exaggerated criticism of government policy or actions are encompassed within the legitimate scope of freedoms of speech, expression and publication and arrests made solely on that basis under emergency regulations are unconstitutional. Discussion of these cases however must be engaged in elsewhere than this column given the space constraints.
These are also the best of times
However, despite these many individual ordeals, this is also the best of times for it is precisely now that ordinary decent people will be tested to the utmost in regard to their determination to speak out against injustice and to rally against the most profound wrongs being committed in the name of patriotism and national security. The extent to which such determination is manifested will undoubtedly direct Sri Lanka's future trajectory as a democratic nation and shape our futures as citizens of this country

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