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

The Indictment

1. This complaint states that in Colombo, which is within the jurisdiction of this
court during the period between 1st June 2006 and 1st June 2007, the accused
together with unknown persons committed an offence or abetted the commission
of an offence or entered into a common intention with a prior understanding to
abet the commission of an offence whether planned or unplanned, by words either
spoken or intended to be read or by signs or by visible representations or
otherwise, which intends to cause the commission of acts of violence or racial or
communal disharmony and brings the Government into disrepute, through the
printing or distribution of the publication North Eastern Monthly magazine or by
agreeing to commit or abet the commission of the offence of acting to promote
that organization, and that since the aforesaid offence has been committed as a
result of the said conspiracy, an offence which is a punishable under section
2(2)(ii) read with section 2(1)(h) of the Prevention of Terrorism (Temporary
Provisions) Act no. 48 of 1979 as amended by Act No. 10 of 1982 and Act No. 22
of 1988 which is to be read with section 113 (a) and section 102 the penal code
has been committed.

2. In the above time, place and circumstances, an offence has been committed by
words either spoken or intended to be read or by signs or by visible
representations or otherwise, which intends to cause the commission of acts of
violence or racial or communal disharmony and brings the Government into
disrepute, through the printing or distribution of the publication North Eastern
Monthly Magazine or by acting to promote that organization, through the
publishing of its contents seen in the document extract marked “X” and annexed
hereto, which is a punishable offence under section 2(2)(ii) read with section
2(1)(h) of the of the Prevention of Terrorism (Temporary Provisions) Act no. 48
of 1979 as amended by Act No. 10 of 1982 and Act No. 22 of 1988 which is to be
read with section 113 (a) and section 102 the penal code.

3. In the above time, place and circumstances, an offence has been committed by
contributing or collecting or obtaining information relating to or donating funds
for the purpose of terrorism through the collection of funds from Non
Governmental Organisations for the North Eastern Monthly magazine, which is
an offence punishable under Regulation 6 (c) of the Emergency (Prevention and
Prohibition of Terrorism and Specified Terrorist Activities) Regulations No. 07 of
2003 published on 6th December 2006 in Gazette Extraordinary No. 1474/3 of the
Democratic Socialist Republic of Sri Lanka.

Annexure X
01. By stating in the July 2006 the editorial of the North Eastern Monthly
Magazine under the heading “Providing security to Tamils now will define
northeastern politics of the future” stating, “it is fairly obvious that the
government is not going to offer them any protection. In fact it is the state
security forces that are the main perpetrator of the killings.”

02. By stating that in the November 2006 North East Monthly, under the
heading “With no military options Govt. buys time by offering watereddown
devolution” he states, “Such offensives against the civilians are
accompanied by 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. As this story is being written Vaharai is being
subject to intense shelling and aerial bombardment.”