1 October, 2020

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A Sombre Reflection Of Writing On Rights

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

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

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Latest comments

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    This is an almost despairing lament on the state of affairs today.

    We hope that despite the hopelessness, the few brave writers and opinion makers that we have would not give up!

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    K.Pinto-Jayawaradana of Most liberail Journilist in Times Groupe of Sri Lanka wrote very excellent text of Freedom of Writing or Right of Writing.
    Sri Lankan state like all legitimate state,is obliged to manitain LAW AND ORDER and PROVIDE SECURITY to its citizens by taking apporoprite action,inculding arrest and trial of persons engage in politicial and criminial violances regaredsless of ethanicity, race, cast and certain extent to classes.
    But when terrorism-anarichism is fought ourside establishment and constituation,violates INTERNATIONL ACCPECT HUMAN RIGHTS NORMS;and is wage under news blackouts,as was done frequently in since late 1970s,widespread abuses occur in Sri Lanka.
    In south JVP and in north LTTE of terrorist need to combact by state some powers to maimtain law and order protected RIGHTS OF citiziens of Island.
    In above situation of Right of Writing come into being dilmemma of deprive of human-right between write of freedom in principally in Sri lanka.it is basic conflicts of fundamantal & vital interest public and state.
    Applay of RIGHT OF WRITING and freedom exprees in very controversy position as journilism in our island.Result it will comes to writing of CONSCIOUSNESS.
    No journalism cannot allowed under the name of HUMAN RIGHTS or WAR crimes termendous destrucation and human suffering ,the violinece in island has recives little attention,bescause it did not fall withing the majority public life.

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    yes, yes Dingiri Banda, we have heard all that terrorism drivel before – from the members of our royal family and their disgusting hangers on. We have heard it for three years after the war to justify money grabbing, land grabbing and the settig up of a King in Sri Lanka. We are all glad that the LTTE was defeated but did we want this Rajapaksa terror to replace it? No!Talk to ordinary people genuinely and you will see that.

    My advice to you to you is first, use the automatic spell check before you write. CT – WHY do you permit such unintelligible comments?

    Second, have you heard of a basic concept of the Rule of Law which cannot be tossed into dustbin (however much illiterate tree climbing monkeys in this country want it)even when there are terrorists?

    Obviously you have’nt or else you will not be writing such bullshit.

    But at least have you heard of the Constitution? Is it possible to call our rulers to abide by that document? Or will that also be helping terrorists?

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    Dr Panduykaba De Silve; Rule of Law is polemic issued need to be more delebrataion in associated with essence of democracy.
    Humna Rights versus War is very delicate problem of CONSCIOUNESS of WRITING in Journalism.
    Since end of second world war, WAR CRIME BEING lime light of internal and Global politics of WORLD DEMOCRATIC ORDER.
    Time to time UNO and its agencies invegistaion and report matter to the world body,but fail to taken positive action.
    Moden democracy has never permitted to express FREEDOM of writing give accurated cause and effect behind War.
    The war of liberation against colonial rulers and war on liberation of PEOPLE are differnt types of WARS.In between such WARS used the form of terrorism to achive gole of both have some just and unjust action.
    If you permitted to read books of Hendry Kissinger ” DIPLOMACY” and Joseph Stigitz & Linda Bilmes “The Three Trillion Dollar WAR” defenitly youcould relize CONSCIOUNESS OF WRITING OF JOURANALISM.
    And enrich the of RIGHT of journalism.

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    Thank you for your unwavering commitment to justice and rights through the years Ms Pinto-Jayawardena. More power to your pen!

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    @ Dingiri Banda or DB (or Deaf and Blnd??)Good god! before you read all these books, learn to write properly and correctly… please, I implore you!

    On another note, how in the world of all that is marvellous man, can you say that there is no freedom of expression in writing about the cause and effect of the war? All we see in newspapers now are government writers telling us how the war started and how it ended! What there is NO space for are those voices expressing the need for liberal democracy! If you are saying that these voices should need greater strength, I am all for it. But I can’t understand exactly WHAT you are saying!

    Oh and for good measure, I am not a ‘Dr’. At least, not yet!

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