Constitutional utopias
A conversation with Neelan Tiruchelvam

by Upendra Baxi, Professor of Law, University of Warwick

http://www.island.lk/2009/07/29/midweek1.html

Text of the tenth Neelan Tiruchelvam Memorial Lecture delivered by Prof. Upendra Baxi, Professor of Law, University of Warwick at the BMICH on Sunday July 26th.

Prefatory remarks

Beloved Neelan-san, poignantly I may not converse with you any longer in ways we used to; yet, I insist on doing so today in the spirit of a great metaphysical poet, John Donne. Addressing the ‘mighty death’ not to be ‘proud,’ Donne reminds Death: ‘One Short sleepe past ‘wee wake eternally/And death shall be no more; death, thou shalt die.’

In this conversation, I address you as a living presence, because you remain so for me as well as for others bearing the gift of your love and friendship. And while acknowledging and sharing all that that my distinguished predecessors in this Memorial Lecture Series have said about you, I will not quite follow these rituals of future memory.

I have to present to you, Neelan, two sorts of questions. The general question is: ‘How may one affirm the power of memory in struggle against injustice, if only because the perpetrators of injustice always thrive as the assassins of memory?’ The specific question is: ‘How may we bring alive your everyday energetic commitment, active compassion and holistic vision of justice, rights, peace, and development, and not just in the troubled contexts of the post-war Sri Lanka, and South Asia, but also beyond? ‘

Attending to the specific question is best done Neelan-san, by a fuller acknowledgement of Sithie’s contribution to the making of your public presence. As all your good friends know full well, her deep affection for you has contributed profoundly to your own development of the sense of empathy and solidarity. I do not fully know how far she accomplished the mission of ‘feminizing’ you, not exactly an impossible project! But this must remain a story for another day!

It does not matter, Neelan, that you did not feel the need to acknowledge Sithie’s contributions in a full public view because I believe this rectitude on your part signified no patriarchal vice relegating women to a familiar background effect in the lives of public men.

Like many of your close friends, I was privileged to know you both as an indissoluble singular presence. Do you recall our first meeting in Chicago in 1971, where in daytime we discussed seriously that monstrous something called ‘unobtrusive social science research methods’ yet in the evenings remained on fully display for all those who promenaded the Riverside Drive the magic moments of your politics of intimacy: your enchanting Harvard honeymoon phase remained there memorably on display!

It is impossible to overstate your doting parentage of Nirgunan and Mitran, born, like many others, as the Sri Lankan ‘midnight’s children’ and brought up in the vortex of violence. They now both live their own resplendent lives with their partners and I am sure you know about the replenishment of the Tiruchelvam-clan adored fully now by a proud Sithie-san grandma. As your grandchildren grow young in this aging world, they will remain proud of their legendary grandfather. I sense and share your joy and pride at the fact that for now over ten years, Sithie has in her own ways replenished as well as you institutional children - the Law and Society Trust, the International Council for Ethnic Studies and other sisterly siblings, amidst the recent histories of this deeply troubled nurturance.

Revisiting our difficult friendship

To descend to the realm of the ‘trivial sublime’ of personal reminisce, I need to fully say that our friendship remained always a difficult one: some differences concerned our varying understanding of the role of law in social transformation, others touched upon economic reforms, and still others remained just a matter of style. This recall remains important because I believe that the time of true friendship remains always a testing time.

One thing that united us above all was the love of reading, although you never appreciated my quip dividing the human species into two kinds of ‘worms’: ‘bookworms’ and ‘ordinary’ones! I always envied your vast personal library; and astonishingly well-read as you were, you did not wear your learning on the sleeves! Our writing styles differed and mine on the most part amused you. You read high legal theory but looked askance at metaphysics; I read this not so much as an aversion to theory but rather as ‘resistance to theory.’

I think you disfavored ideological critique of law, especially of what now passes under the rubric of ‘Left Legalism.’ In the best sense of that term, you preferred the thoughways of the ‘old’ and the ‘new’ pragmatism. While understanding fully the limits of effective legal action always strove to trespass these; law for you was best viewed as a program of social change; in particular, you tested the received Euroamerican wisdom, or doxa, on the terrain of conflicted South Asian society, polity, and economy.

Legislation and regulation remained for you far more crucial than adjudication. You thought that I had a more enchanted notion of judicial activism and in this indictment you are scarcely alone; yet perhaps the indictment is overbroad! In all my writing and work, I have maintained that adjudicatory power is an aspect of the sovereign power of the state and therefore we may not expect much from our Justices when the ‘Reason of the State ‘is at stake especially in states of emergency, and now the near-permanent war on ‘terror.’

It is universally true that everywhere that when apex Justices as holders of state power go wrong, they can go terribly wrong as well. We know this even as regards even a bicentennial grammar of experience of American constitutional interpretation. Only recently critical constitutional scholars have been pointing out that it was an egregious error to start the classroom and literary discussion with the Marbury Case; even more decisive was the Dred Scott decision. Critical race theory movement reminds us also that judicial self-restraint for long justified the unjustifiable: racial segregation in all its forms, including electoral gerrymandering (depriving Afro-American citizens of their right to political participation.) The practices of McCarthyism during the Cold War, and now also the war on terror, based denials of elementary human rights and freedoms offer further examples. More may be said but here desist save saying that judicial action can often support the most atrocious results!

And yet we also know the adjudicatory power can also be converted or deployed in support of human rights and social justice movements. Having been privileged to contribute to the emergence of social action litigation in India (different from public interest litigation), I at least know that at certain historic moments it remained possible to imagine the Supreme Court of India into the Supreme Court for disadvantaged dispossessed, and deprived citizens. I thought then, and continue do so even now, that courts and justices may, compared with representative institutions, learn more sincerely to take people’s suffering seriously in order to take human rights seriously. And Justices may often perform the labours of re-democratising the practices of political power. This has been a part of contemporary experience in the Global South, including most parts of South Asia, as well.

I of course agree with you that adjudicatory power remains Janus-faced and that is why we all, each on our location, continue to struggle with visions of an independent yet socially responsive, judiciary. This does not always happen and often the venality of citizen-justices intervenes. Justice M. Hidyatuallah memorably addressed this in a critique of the advocacy of the ‘committed judiciary’ in India by his rather acerbic remark: His Lordship contrasted Justices that are forward-looking and those who merely look forward!

This venality has not escaped the Sri Lankan judiciary, if I may say so with greatest respect for her eminent Justices, especially the great dissentient Justices and those who preferred to resign their august positions rather than sanction grave miscarriages of judicially administered constitutional justice. Even, so , Beloved Neelan, I wonder how you may have received, as well as critiqued, some nascent forms of contemporary adjudicatory activism in Sri Lanka?

Unlike some (including myself) who pursue ‘non-representational’ form of politics, you felt yourself propelled into the realm of electoral politics because rightly, you believed that the tasks of social peace and national reconciliation are best pursued in representational, rather than adjudicatory theatres. Yet, you also believed in the push and prod of the external critique of the ways of representational politics. It is amazing indeed but true that you were able, consistent with representational role and demands of the legal profession, to innovate institutions and forums for multi-disciplinary dialogues within Sri Lanka and across South Asia, concerning justice, rights, and development You provided a catalytic space for young and not so young South Asian scholars and activists. Veena Das spoke for many of us in highlighting your magnificent contribution in this realm in her moving tribute to you in the pages of the Hindustan Times. Indeed, you carried this sense of adventure further onwards to the newly industrialised ASEAN societies.

Turning now to some other differences between us in this retrospect, I may first mention the fact that the State socialist project in both our countries led to changing models of the ‘control and command’ economy, which also often degenerated into a ‘cash-and-carry’ developmental economy, not much different from what students of African development often name as ‘ethno-clientism.’ You preferred on the whole to articulate concerns about high levels of governance corruption by remarkably engaging us all in the discourse of public regulation of statutory corporations, often fully blessed with the loquacious presence of a great Indian Justice S. Rangarajan, whose enthusiasm for the cause then infected us all in a co-equal measure!

Even so, then and now, the question remains: How may judicial activism, or ‘juristorcacy,’ given the potential of the emergent regulatory cultures of governance arrest the carcinogenic growth of a corrupt sovereign? I am not quite sure how far we differed here; yet, I fully recognise a compelling question that one your acolytes now raises for me. She asks ‘considering that civil society in Sri Lanka is fighting hard for regulatory mechanisms such as the Constitutional Council…why may not we imagine and ‘dream… of a participatory democracy based on regulatory mechanism?’ Only such powerful interlocution, I believe, may best preserve the memory of your constitutional struggles.

Neelan-san, may I now mention with fear and trembling the fact that as an eminent attorney some pathways (with my eminent teacher and friend Professor Phiroze Irani) your fostered some legal itineraries of ‘privatisation’ of Sri Lankan economy well ahead of these halcyon days of headless and headless hyperglobalization? My recall of this may be somewhat unfair to you but I was deeply perplexed by your professional role, especially in relation the order of Special Economic Zones in Sri Lanka. Understandably, in turn, you looked askance at my critical questioning of globalization processes on the occasion of the Annual ICES address entitled Globalization: A World without Alternatives?

Likewise, you found some of my comments on a new draft constitution of Sri Lanka not just unpersuasive, but also distracting (especially concerning the right to property but also on other related matters.) You did not think that understanding ‘Uncle’ Marx was relevant to any pertinent task at hand. Yet, as a critical liberal thinker, you also strove towards forms of a new constitutionalism that promoted both the liberalisation of the Sri Lankan economy which also provided a more secure future of human rights and accompanying freedoms. I think we differed here and fancy also to a good purpose, after all!

I know that far too many times you found me wanting in a sense of occasion. I disrupted many a time your quiet diplomacy in New Delhi adventures with Radhika Coomaraswamy (the UN Under-Secretary General). It is clear to all friends of Sri Lanka, as well as human rights, peace, and social movement activists worldwide, that just peace initiatives may never fully fructify outside a truth-finding endeavour in a post-‘war’ Sri Lanka ,as elsewhere. I remain sure that you continue to today in supporting this noble mission.

Nothing so far said diminishes the warmth of our friendship! Beloved Neelan, and to say further that our relationship was also literally explosive, in the sense of being accompanied by a few explosions! Do you recall, Neelan, how on the occasion of my ICES Annual Lecture you came harassed towards the middle of my speech, barely recovered form the bombs exploding near 8 Kinsey Terrace? Do you recall how on our way to Penang (via Ipoh) when we (Masaji Chiba, Clarence Dias, yourself and me) were caught in sniper fire on both sides? Explosions also marked the last evening of our constitutional consultations: the wing of the hotel where Justice P.N. Bhagwati, Justice Pius Langa (now the President of the South African Constitutional Court) and I stayed was blown apart on the eve of my return to Delhi. Had Justice Langa not persuaded me to travel with him to the Colombo airport, in early morning hours much before my flight, I simply would not have been around to mark my presence with you today!

Some remarks concerning the tasks of feminizing collective memory

Thanks to women’s movements, the practices of critical feminist and critical race theory, as well particularly the development of cultural feminist studies, we know about the ways of construction of the ‘politics’ of memory. I think one way of grasping that politics was offered by Milan Kundera who begins his Book of Laughter and Forgetting with the saying that ‘the struggle of men [and I add women] is a struggle of memory over forgetfulness.’ To this, we must all add a supplement: contrary to the common adage, public memory is not short but is shortened by the state and civil society forces of domination. Thus remain always severed acts of memory and event, causing as well some catastrophic narratives of human rightlesness and injustice.

By the difficult phrase ‘feminizing memory,’ I wish on this occasion to refer to the work of mourning that often sediments historically some new imageries of peace, justice, and human rights futures. Much has been written, deconstructing Sigmund Freud’s pioneering distinction between ‘mourning’ and ‘melancholia.’ And in the specific contexts of Sri Lanka, but also others, Pradeep Jeganathan’s gifted work remains especially instructive. Even as ‘contemporary mourning theory’ suggests the politics of unfinished grief’ I still feel drawn to a notion of the politics of grief articulated as an ‘in between’ affair of ‘mourning and melancholia,’ a notion that ‘sustains the pain of loss rather than seeking to overcome it, but in which this pain ignites (instead of dampening) creative [and I may add collective] self-transformation.’

How this unfinished work may play out in traumatic contexts of Sri Lanka remains a central question; it remained so for India as well, whose constitution was being composed among the massacre on both the sides of the Partition. I wish to suggest to you, dear Neelan that a new constitutionalism for a postwar Sri Lanka will be the more enduring when informed by the tasks of the addressal of ‘unfinished grief.’

To your eternal distress, of course, may I still evoke an old Bollywood lyric: ‘Jahen Bajati Hey Sahani /Wahen Matam be Hota Hey Hai! /Mera Jeevan Sathi Bichaad Gaya/Lo Khatam Kahani Ho Gai.’ Translated this says: ‘Where trumpets blow, lamentations always also follow/My life-companions have been taken away from me, thus cruelly ending all narrative spaces of hope.’

However, matam (the power of women’s lamentation) also emerges as a narrative of women’s solidarity against the celebration of the triumphant call of the trumpet. Women’s matam, especially in the context of genocidal massacre on both the sides, fully protests the pathological disorders of the state and insurgent desires. Their matam signifies more than a ‘melancholy of gender.’ As the Ukrainian woman author Olha Kobylians’ka reminds us, matam also critiques ‘modern types of either feminized or androgynous cultural utopias.’

Women’s matam, as some recent studies by Partia Mukta and Veena Das differently suggest, remain simultaneously the sites of appropriation by state and civil society forces as well as the markers of resistance articulating powers of an insurgent memory. Insurgent, if only because, as Mukta observes, ‘the social and ritually structured grief of women following a death,’ is ‘one of the most politically threatening of social emotions.’ Writing about Sinhalese Mother’s movement and women’s peace movements, Malathi de Alwis also suggests ways in which matam often ‘forced’ the Sri Lankan state towards ‘a re-fashioning’ of its ‘own counter-rhetoric and practices.’ Matam and memory perform some roles of social regeneration in deeply traumatised societies.

Neelan-san, why is it that the constitutional utopic in South Asia almost always leaves no time for the power of matam? Why it is that the making constitutions, and putting these to work or sleep (as the case may be) leave their ‘women unmourned? For example, how may we ever fully gasp the fact that it has taken more than five decades in India via the performatives of critical feminist theory to revisit the discourse of Partition, rupturing fully the otherwise ‘heroic’ prose of the making of the Indian Constitution?

It would be trite to say, Neelan, that the subsequent narratives of nation-‘building’ and ‘development’ continue to push the power of women’s civic lamentation to the realms of interior grief, realms of sentimental reason that may not after all speak to the ‘reason of the State’ (or as the feminist philosopher Wendy Brown put this, the ‘male-in-the- state, and also add ‘civil society.’) Yet alternate histories of matam also suggest spaces of resistance as well. Why, I ask you, that in both our societies the tasks of feminizing memory and history must thus remain thus always emplaced on the nostalgic margins of matam, amidst the otherwise worthwhile, though not always worthy, constitutional endeavour?

The State and civil society ‘war machines’

The contexts of ethic wars in Sri Lanka, and the many war–torn zones of India, not to mention the rest of South Asia, suggest a naming that refers to some new formations of civil society war machines, which too tend to co-opt the power of matam to their own predatory ends. Such naming transgresses what George Deleuze and Felix Guttari named in the difficult languages of ‘the nomadic war machine’ and of course risks a fully justified reproach by Deleuze-Guttari ‘purists.’

The growing post 9/11 discussion concerning South Asia as a dangerous place is suffused with various databases on organised political violence16 Such quantitative profiles fully render irrelevant, and even impertinent, the histories of women’s matam at acts of war-like violence. At another level, these demonstrate not just the styles of escalating militarised governance but also testify abundantly to the rise, growth, and consolidation of state-like formats, and forms of ingenuous rebel subjectivities, at times enhanced by diasporic peoples, movements, and forces.

The standard narratives suggest that such state-like groups often have access to sophisticated military hardware; a chain of command; ways of conscripting unwilling civilians into all sorts of people’s armies; capabilities for training and effectively deploying armed cadres; versatile access to fairly sophisticated information and communication technology; and an ability to sustain insurgent ideologies justifying recourse to ‘terror’ for a ‘better’ social human and social future. They also remain capable of declaring ‘cease-fire’ agreements and to further also to renege from these. To these state-like formations and agents, we must also add further some horrendous state or regime sponsored militias who too justify killing as acts of ‘ethical violence.’