Dinesha Samararatne on Justice

Well, first of all, thank you for having me on this podcast. Sri Lanka went bankrupt last year, which is one aspect of the crisis, but really the constitution we have is part of the problem. And in fact, I've made the case that it's in fact a key source of the problem that we have and we've just been given bailout from IMF, and this is the 17th such bailout that Sri Lanka has had since 1960s. So, Sri Lanka is still going through this crisis and the statistical analysis of the crisis is very troubling. People are skipping meals, people are finding it difficult to meet their daily needs. So, there's a lot of uncertainty about how Sri Lanka will come out of the crisis. And then questions about distributive justice - justice in terms of accountability for abuse of authority, corruption, etc.

I think justice is intimately tied with the study of law and the teaching and practice of it. And if we look at constitutions and comparative constitutional law, the quest for justice is at the heart of the subject - and just on the subject itself, I want to highlight the fact that today, in some of the global conversations about constitutions, we are beginning to understand that different constitutions have different perceptions of justice and sometimes constitutions themselves carry out injustice and are the source of injustice. So there is always the challenging question of asking ourselves, what should justice look like through constitutions, and then engaging in either the study of your own constitution or in engaging in comparison, this is always a question that one has to grapple with. Now, thinking very broadly about my work in this field, there are at least four ideas that have helped me to keep my focus on this very difficult question of justice.

04:53Two of them are from the Bible, two of them are not directly from the Bible, but I want to include them also in my response. I'd [like to] start with the second category. One is Amartya Sen’s idea of justice. In his book on the idea of justice, he talks about how it's difficult to conceptualize justice, but he does point out that it is easier to recognize injustice and perhaps ask ourselves what can we do in response to that injustice. How can we address that question of injustice? Thinking about my field constitutionalism, what should constitutionalism mean? What kind of rights should people have [sic] are big questions, but taking Amartya Sen's idea, I've always found it easier to focus on the injustice and ask myself, what can I do, with the conceptual tools that I have, to deal with that injustice? A second idea that I have turned to quite often, and I actually encourage my students to think about as well, is Brian Stevenson's idea of being proximate to injustice.

06:01Now, I know Brian Stevenson is inspired by the Christian faith as well, and he says among the many wonderful ideas that he shares through his own work experience, that placing yourself close to injustice does something to you. It compels you to ask certain types of questions, challenge the status quo and think beyond what you see and dream of what could possibly be considered to be impossible. Now, if you look at the Bible and the story that God tells us, there are so many examples of how God has revealed to us that that is what he desires as well, that we turn our hearts and minds and our intellectual energies to the injustices, the marginalization, the discrimination around us and ask ourselves how can we respond? And two sections, and they both happen to be from the Old Testament that I often turn to, and these are well-known I think among Christians, Micah 6: 8, ‘what does the Lord require of you? to love justice and walk humbly with the Lord’, and also Isaiah 58 where the prophet talks about what it means to engage in true fasting. So, these are some of the ideas that inspire me to continue to ask myself, where is the injustice? How can I place myself proximate to that injustice, and what would justice look like in those very specific instances?

Thanks Bethan. This is an important question and I think it's very important that all of us who identify as academics ask this question of ourselves. Our - so just to say a little bit about the different academic spaces that I have been in - I have worked in Sri Lanka, but I have studied in the United States and also done post-doctoral work in Australia. So, in many ways I have been at different types of universities, extremely well-resourced universities and extremely under-resourced universities. Now, because Sri Lanka is going through a crisis, the universities are unable to provide us paper. So, I have been at both ends and I'm convinced - and of course I'm following a long line of scholars who pointed this out - I'm convinced that from a global perspective, the academic institution is an unequal space. The moment academics don't have access to books, they don't have the freedom to choose what to read, they don't have access to databases, immediately you are denied access to knowledge and then that can undermine your ability to join ongoing global conversations.

09:45So that is an extremely important area in which I think any scholar really needs to begin to think very seriously about what can be done. And in recognizing the problem and in dealing with the problem, there's the institutional response and there's also the response of the academic. So that's in terms of resources, but resources then or the lack of access to resources limits the opportunities that you have, not just in terms of being able to participate in discourses on your subject happening elsewhere, but also your ability to join the conversation. So I mentioned, in this brief that I wrote, that many of the references that were in Wolterstorff’s piece itself were pieces that I couldn't access. So, when I engage, I am engaging with a very limited set of evidence and knowledge, which then [means that] the playing field is not even. The third related problem [sic] is in this context of very practical obstacles, what then happens is that the knowledge that we are dealing with becomes a very limited knowledge and that then affects the whole enterprise of truth seeking that we engage in as academics.

11:16So, like I said, there are institutional responses and there are individual responses. There's much I can say, but I'll just share a few insights I've gained over the years on how this can be addressed. I think well-resourced academic institutions need to think very carefully and intentionally about how they can not only share their resources, but be accessible to scholars elsewhere who don't have access to the same kind of resources. And I mean subsequent to the pandemic, we've all become quite clever at doing things virtually. And I think that is one opportunity that we have in terms of being able to, particularly in my field, workshop, draft papers, give feedback, have regular reading groups, and we can easily travel this divide that we find between different kinds of universities. When we do that, and when institutions convene academic events, we have to acknowledge that scholars, particularly from the Global South, have to deal with much more than a scholar who may be attending that same conference from the Global North, from applying for your visa, to securing the incidental financial resources to actually get to the conference, and then finally be able to participate in the conference.

12:41And I have experienced both sides of this story - when I was part of the University of Melbourne, how I attended academic conferences is completely different to my experience now, traveling as a scholar from Sri Lanka to attend a conference, and it has come to a point where I would not travel unless I feel like I really must travel because the barriers are so many, and it's exhausting, and you really don't want to keep doing it.

So that's from an institutional perspective, I think individual scholars - I mean this is a challenge even for myself - we need to think about why we publish and how much we publish and how much of our energies we can use to work collaboratively. If we think that the pursuit of truth is not an individual exercise, [and if we think] it's a collaborative exercise that happens across multiple divides, and across time generationally as well, then I think we recognize that that [collaboration] is part of our obligation and also part of how we learn. So, are we then willing to make establish collaborations across divides, sustain those relationships, be willing to work with scholars who are dealing with very different challenges and work with them? And the last point I want to say in response, Bethan, is to say that there is a very human dimension as well. Here I have been at the receiving end of remarkably generous and thoughtful colleagues in different parts of the world, particularly last year. I've had colleagues offering to send me books that I needed, immediately sending me electronic resources that they could share with me if I needed it, reading my drafts very generously and thoughtfully and giving me encouragement and feedback. But not just that, I've even had a colleague who's been so concerned and keen to show her solidarity with me that for several months when we were in the worst of it, she went to the extent of ordering pizza every Friday for our family just to show her solidarity and to encourage us. She didn't have to do that, but she did it because she felt like that was part of that idea of being a scholar in a global community, which is unequal.

Yes. I'm currently involved as a co-editor in two projects and both involve contributions from jurisdictions that are what we call ‘beyond the usual suspects’ in competitive constitutional law. There's this whole critique and a very valid critique, I must say, that has emerged in the field about studying the usual suspects, certain jurisdictions and the need to go beyond them. So, in both these volumes, together with really fantastic co-editors, we've been trying to do that. And when we do that, you are facing a whole host of challenges. For instance, you may find that there is one scholar in a particular understudied jurisdiction who is happy to contribute but has not had the opportunity to develop [her research and writing]. We saw her academic writing in the same way that a scholar from a different jurisdiction may have been able to. So then as editors and as contributors, we all have an important role to play in thinking through how to support that scholar's contribution to the edited volume.

16:57And that would mean a different process of revising, giving feedback to that work, having a different approach to copy-editing the work, going back to the publisher and making the case for having different standards in terms of structure, language and content, and making the case for accepting that. It also means having to revise timelines as you go along because like I said, if that scholar is in a jurisdiction where there is a constitutional crisis, for example, you have to learn to go back to the drawing board and change your plan and be patient and be willing to work through it. And sometimes also be willing to work with the possibility that the contribution might actually not come through and then learn to work with that as well. So ultimately what I'm advocating for is an approach which is very sensitive to the fact that there are so many different realities in the world.

18:00And to understand that academic publishing must be meaningful, not just to the stereotypical academic community that we're thinking of, because the majority of the world really does not share that same stereotypical conditions. If you are in a well-resourced and well-supported academic environment, and if you're good in your work, you can keep publishing. But the question is how do you want to use your intellectual energies? Is it to continue to publish in a particular way or is it to build a community of scholars and thinkers? Is it to support the next generation? And another reality that we've been confronted with in dealing with the research on jurisdictions beyond the usual suspects is the need for translation. Now, we are guilty of this if we publish an analysis on a jurisdiction in English, it's not readable or accessible to most individuals who may be interested in reading that work because they work primarily in a different language. But what if we think of recognized responsibility for institutions, for publishing houses, for academics for translating, if not the whole book (ideally it should be the whole book) but at least parts of it, key aspects of it, into the language in which (at least one language in which) the people of that jurisdiction can read it and study.

I’ll try to give you a short answer because again, these are questions which we grapple with on a very regular basis. So thankfully, I think we live in a season in the world where we recognize that any academic plays multiple roles. And there is now the recognition that if you are a female academic almost in any part of the world, you are also having to navigate caregiving responsibilities, expectations of a particular stereotype of what it means to be a woman, etc. But over and above that, what I have learned for myself is that when you are working in a place like Sri Lanka in the field of law, an academic who chooses to recognize the questions of justice and injustice is also expected to play several other roles, and sometimes all at the same time. So, the question of actively being involved in an ongoing crisis, offering your perspective based on the knowledge that you've acquired, analyzing the problem, offering different options.

21:35It's basically like a doctor in an emergency for the period of that crisis. If you choose to get involved, then you are constantly on call and having to respond. And several of us went through this experience last year. Now while you do that, you have to also still remain faithful to your role as a teacher, and the individual commitments you have either as a mother or a friend, and then also the responsibilities you have towards yourself. And I can tell you, Bethan, that you can never really go through periods of crisis thinking about all of this and asking yourself, well, how am I balancing it? There is no such balance. You’re responding on the go. And of course, you make mistakes, and you make miscalculations, and in my case, I still have young children, almost always one of them will fall sick during that period. So, you have to switch constantly between significantly different functions.

22:40And when you're doing that, in addition to having that desire of wanting to respond and serve, you are also constantly feeling guilty about so many different things. You are feeling guilty about sometimes not doing enough, sometimes saying no, guilty about what you haven't done, and then feeling guilty about the other obligations that you have, which you neglected. And then at some point, exhaustion and fatigue sets in as well. And it can, if you are not careful, lead you to a very difficult place. In many ways, being a Christian has been a wonderful, liberating factor in all of this because if you trust that God is sovereign, and [that] ultimately he's in control, and you are only human, you can find freedom in that and not feel like you have to respond [to all the calls on your time]. Although there will be instances in which if you don't respond sometimes no one else will. So, living with the tension of feeling guilty about it, but also trusting that God in his sovereign wisdom understands and sees much more than I ever will.

24:03There is also a sense in which being an academic in a place like Sri Lanka has exposed me to a full range of life experiences. So because I'm in the field of constitutional law, I interact with constitutional electors institutions that come under the Constitution, and that could be at a high level, but because of the different choices I've made and the kind of spaces I've chosen to be in, I've also had the opportunity to engage with people at the community level. So, one of the sort of fascinating experiences I had last year was to go to the different protest sites that were in Colombo and talk about the Constitution with people - whoever turned up. And I have seen those experiences were very special because here you are having to talk about your field, not in the classroom, which is in many ways sterile, I would say, [but] where you're talking to people who've finished their work and come and sat in this talk on their way home.

25:18And people from different walks of life, some who've read the Constitution, some who've only heard about it, and we engage as citizens. It was a beautiful thing. Of course, we were doing it under very difficult circumstances, and we were all under a lot of anxiety and stress. But it was also challenging because you are not talking to students who've done the reading and come to class and who are sort of thinking in a particular way, but speaking to society at large, wonderful in one way, but also challenging in another. So, there are very serious costs involved in terms of what it does to you as a person. There are very high opportunity costs involved because when you respond to ongoing situations, you have to give up on the plan you have for your academic writing and other things that you like to do. But I think I'm beginning to make my peace with it and know that you have to have a long-term view of this way of living.

Sri Lanka is currently in a situation where the number of people who are leaving the country has gone up significantly. So, this is a very real question that we're dealing with right now again, but my thinking about this is the following. So, I was born in Sri Lanka and I feel like this is a place where God has called me to and I do feel a deep sense of belonging. This is very different from being loyal to the state of Sri Lanka. I feel a connection, a deep connection to the land and the people. And from a faith-based perspective, if my husband and I were to decide to leave as a family, the question for ourselves would be, so how do we rationalize this in terms of what we believe? And the answer? Every time I've asked this question, I think my husband is far more grounded in his commitment to place and doesn't question it as much as I do.

28:02Every time we've had that conversation, the answer has been quite clear. Jesus never called us to choose convenience. He has made it very clear that he has called us to live sacrificially, and we have to be faithful to him. So, if you look at it from that perspective, it becomes difficult for us to be able to explain why we would have to live, except of course, if we feel like perhaps our lives are at serious risk. There was a time in my life and I thought that was the only way to think about this question, but I think I have seen enough to know that there may be people who may choose to live, but wherever they choose to live in, live in such a way that they're not sort of being unfaithful to the place they were originally called to be in. In fact, some of the scholars that I mentioned who have been so supportive of me have made me realize that you could be in the safest and most privileged space in the world, but make choices and live in such a way that you'll be supporting your colleagues in other parts of the world.

29:19And in fact, it's in that collaborative way of living that we will be able to deal with these questions of justice. So, what I'm trying to say is that you definitely need some people who will choose to stay in places that seem to be difficult, but you also need people who are in other places to make different choices and live in a different way. And as a Christian, I must tell you, God has been faithful and he has shown us his faithfulness sometimes in very small ways and sometimes in extremely unexpected big ways. I still remember my husband had to stay in a petrol queue for two days. The second night he didn't stay in the queue, but he left the car [in the queue] and he came back and he failed twice [to obtain petrol]. And that evening he came back without petrol, and that was, I think he's generally very calm, but that day even he was feeling it. And we had been waiting the whole day monitoring him on the phone and wondering whether he's going to get petrol or not. And then he came home without petrol and within 15 minutes the pizza delivery came.

30:36And of course, it's just pizza, but it was a sign of encouragement and my husband went back to the queue, and then went back to the queue again. The next morning [sic] and finally got the petrol that we needed. Yeah, so these are small stories, but I know that these stories definitely carried me through very difficult times. And there's one other story from last year, which I think I should mention here in terms of what a Christian may have the opportunity to do when we live in places of difficulty. In the ongoing protest last year, on Maundy Thursday, our parish priest got a group of us together and asked us whether we would like to go and wash the feet of some protestors. And we did that and we ended up doing it in the afternoon. It was crowded, it was hot, and there were a lot of people moving around, and we went there and we did this. And without really knowing how this [sic]is fitting in with the ongoing protests, but looking back, I feel like it was transformative for us. They didn't know who I was. And depending on the circles I'm in, I'm described as professor or doctor, whatever. But to be able to kneel before another human being, connected by a common cause of justice, was very meaningful.

What do I see for Sri Lanka in the future? It's a hard question, but I see at least two different forces pulling in two different directions. One is the force which is desiring accountability, justice, constitutionalism, constitutional governance, and then you also see forces pulling in the other direction. And personally, for me, the commitment is to serve whenever I can, the course that is going to try to bring us closer to better governance, better accountability and justice. But I've also come to learn that in doing that, it's important for me to let go and not be hard on myself and expect that I will be able to deliver outcome A or outcome B, because frankly, it's not possible. It's definitely, in my view, not possible for a single individual. It's really a collective of individuals working towards the common cause who pass the baton to each other, who can maybe bring about positive change.

34:07But also as a Christian, I believe in a new heaven and a new earth in which one day there will be no more tears. And I have only one, minute, temporary part of that story. So, the calling really is to be faithful in whatever that you go through in your daily walk of life and learn to leave it there, and make your peace with it, and look to God. Easier said than done, let me tell you. But that's the goal I have for myself and the vision I have for the people of this land that we will one day see that new earth and new heaven.

Thank you, Bethan.