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.

Continued from yesterday

I have elsewhere addressed the politics, or the ethics, naming the wars of and on ‘terror. I may not revisit this here save saying that some recent histories of state and civil society war machines complicate understanding the prospects of political reconstruction in South Asia. Almost across South Asia, As Jayadeva Uyangoda notes, the ways of insurgent peoples’ politics fully translate ethnic conflicts into some tragic trajectories of ethnic war.

The participation of women as active agents of massacre on all sites in ways that further silences and sequesters the powers of women’s civic lamentation poses a difficult narrative landscape. All I may here is just this: the tasks of feminizing memory towards any re-orientation of the pursuit of the values of ‘justice’ remains thus infinitely aggravated even as regards the finite futures of human rights and just peace in South Asia. Necessarily, I must say today that neither the taming of the state war machine by tinkering with constitutional forms, nor the periodic conquest of civil society war machine, may ever fully address the material conditions that constitute the mass experience of human rightlesness and social misery and the changing profiles of women’s matam.

Recalling aspects of your practices of the virtue of complex rectitude

You remained steadfast in you belief that re-establishing connections between the tasks of memory and justice may best be accomplished by rectitude, in itself a form of political responsibility. Not dramatisation of memory but rectitude in recall was your way of constructing responsibility for memory. No sincere reader of your public and Parliamentary speeches may fail to note your complex rectitude. I name this as such because you never lost sight of the volatile and violent contexts of your contributions to deliberative discourse. Allow me to offer a bouquet of examples.

In your condolence motion for Dr. M.C.M Kaleel [June7, 1995] you rather fully acknowledge that acts of historic memory always remained acts of consociation, no matter what you otherwise and often wrote about consociation as a constitutional form. In movingly speaking about Dr. Kaleel, you also addressed his extended family and the distinguished contributions that each one of them made to the troubled times of the life of Sri Lanka. For you thus dear Neelan, acts of memory remained collective affirmations or not at all.

In your memorial lecture for Paramanthan Navaratnarajah, your mentor into the profession of law, you describe him as great professional litigator; not as a great jurist—incidentally, a term woefully debased in the Indian genre of recall! Rectitude did not forbid from you recalling warmly his liquid integrity, his fondness for Scotch! This is what you had to say:

Since he had to often struggle against an asthmatic condition, he would breathe heavily into a glass of whisky and inhale its fumes, which he convinced others had a medicinal quality. After the fourth glass of whisky, his mind was perfectly clear and was at its best.

Incidentally, and in a lighter vein, if I may say so, Neelan, your pupilage with him, remained woefully inadequate on this register! Our good friend Clarence Dias and I always marvelled at your capacity to remain ‘perfectly clear’ without that first, let alone, the fourth glass!

Neelan-san, your parliamentary speeches exemplify your complex rectitude. To take just one example, even in the face of the ’terror’ of the anti-‘terror’ laws during the constantly refurbished states of emergency, the farthest you would go as late as the Emergency Debate (April l7, 1998) is to say that there is ‘a lack of sensitivity in the interrogation of persons’ and that security forces had yet to inform themselves of the judicial decision in Wimalendran Case! A noble pursuit of the finest Leninist traditions of polemics was not for you the best way to ameliorate matters!

Only once, as far as I can tell, you were poetically outspoken. I refer here to your extraordinary Parliamentary speech on the annual Budget [November 16, 1998.] I have yet to come across, worldwide, any Budget speech that had the courage of conviction to recite the Russian poet Anna Akhmatova who, as early a 1919, movingly spoke to us thus:

Why is this age worse than earlier ages

In a stupor of grief and dread

Have we not fingered the foulest wounds

And left them unhealed by our hands?

All has been taken away: Strength and love

My body, cast into an unloved city

And only conscience, more terribly each day,

Rages, demanding vast tribute

For answer, I hide my face in my hands…

But I have run out of tears and excuses

Neelan-san, I read this singular retreat from your unusual rectitude as exemplifying the politics of a wounded constitutional passion. At this singular moment, you emerge as an exemplary custodian and guardian of memory as a work of mourning, demanding a tribute’ for the suffering humanity of the impoverished and embattled masses of Sri Lanka.

Constitutionalism and emancipation

This agonising thematic of your writings and speeches remains hauntingly relevant today in the context of a post-war Sri Lanka; for you linking constitutions to the tasks of emancipation was not a metaphysical endeavour but a distinctive form of political action. Yet, at the same moment, you demonstrated that in negotiating constitutionalism in a violently fractal political economy peace treaties remain also as often consensually negotiated as unilaterally imposed.

‘Emancipation’ is a notion held hostage by the changing ‘fortunes’ of political contexts. Your invocation of it remains located in the politics of liberal passion (as Roberto Unger names this) not in any ‘universal excitement’ with which the authors of The Communist Manifesto engaged with it. With the Gandhian Peace Prize winner A.T. Ariyaratne, you too believe in the sovereign tasks of establishing just peace; unlike him, however, just peace for you signifies primarily an affair of impassioned human rights, desires for justice; not for you remain as pertinent as with Ariyaratne the harmony ideology inspired by Buddhism as a ’moment of universal awakening. Nor for you was pertinent the transformative Buddhism that Babasaheb Ambedkar—the Aristotle of Dalits— invented for India’s Atisudras, the social and economic proletariat. I hope that this summary provocation may suffice here for our conversational purposes on this occasion.

Your approach to the emancipative potential of Sri Lankan constitutionalism questioned both the lethal practices of ‘ethnic cleansing’ and the limitless ‘ethical violence’ ushered in by the articulators of political justice always questing ungrudging respect for cultural difference. The question now posed is just this: How then may some new constitutional arrangements still emerge Phoenix-like from the ruins of memory?

Never ignoring, Neelan-san, our esteemed friend Roberto Unger’s imagery of the ‘politics’ of ‘passion,’ you also set your feet firmly on the ground, fully recognizing, as well with Donald Horowitz, the callous and cruel constructions of violently troubled enactments of ‘ethnicity’ in’ severely divided societies. In a remarkable text entitled Constitutionalism and Diversity, you wisely and well insisted that constitutionalism remains a dialogical, not any monological endeavour. Constitutionalisms remain ethical only in so far as these construct pluriverses (or many universes) not the prowess of any historically singular voice or what (adapting here Vandana Shiva’s gifted phrase) the ‘monocultures of the mind.’ It is for this reason that you so often reiterated providing scope for the profiles of constitutional ‘management’ of ‘ethnic’ conflict.

The trouble with mere instrumentalist forms of constitutionalisms is that these translated the very idea of constitution in terms that ‘effectively correspond[s] to the political style of the regime in power.’ In contrast, forms of consensual constitutionalism envisage the ‘fundamental law enshrining for all times the basic values, aspirations and ideals of the different components of the body politic.’ If the instrumentalist form ‘recognizes a somewhat authoritarian process of Constitution-making’ which disregardthe ‘aspirations of groups in opposition to the regime in power,’ the consensual from ‘views the Constitution as a legal and political compact capturing the compromises that have been worked out between different communities and political groups… (and) defines the framework within which the different groups may compete for power and gain access to the resources of a society.’ The instrumental form remains, at the end of the day, just the plaything of power, ’whereas the ‘consensual’ form near- ‘eternal.’ The time-dimension contrasting the historically abbreviated shelf-lives of instrumental constitutionalisms with those that endure historically indeed matters. The question now is just this: ‘Is then this historic moment for the Sri Lankan peoples to after all arrive at a ‘consensual’ constitutional form?

Diversity

If indeed so, dear Neelan-san, how may diversity be addressed, outside the violent constructions of plurality? ‘Diversity’ signified for you not any given and primordial but always a socially constructed category. How may we further proceed to grasp your insight, especially in the South Asian contexts, that essentializing and totalizing constructions of identity and difference often remain repressive rather than emancipatory?

You accentuated is process, a gentler name you chose to give to what many of us would more directly name, with Antonio Negri, as constitutional insurgency and thus capaciously affirmed in so doing many a contrast between what stands now furnished as ‘blueprint’ as opposed to ‘iconoclastic’ ways of critical Utopian thoughtways.’ For you, Sri Lankan constitutionalism may remain emancipative only so far as providing a new architecture of a future society, marking pathways towards a peaceful coexistence between otherwise antagonistic notions of the ‘imagined communities’ of Sinhalese and Tamil nation-peoples. Not for you ever were welcome the violently constituted forms of what Martin Heidegger named as ‘being-towards-Death.’

‘Process,’ Neelan-san, was your way then of what the eminent philosopher Charles Taylor named, in the context of Canadian crises of identity, as the problematic of ‘reconciling [violent] solitudes’ in which ‘both sides [the English and the French Canadians] have a way of playing on each other’s fears, resembling nothing so much as a marriage of neurotics.’

You quested heroically for a different imagery order of constitutional togetherness for Sri Lankan peoples, with their singular histories, cultures, and aspirations. Put differently, and in a favorite imagery with (and since) Jacques Derrida, you dedicated your lifetime towards a constant reimagining the process of a ‘democracy-to-come31.’ Put still differently, and simply, you educated us all that this may not come to pass via the measures of ‘de-concentration’ (reliving administrative congestion of despotic power) and ‘decentralization,’ almost always entailing centralization of supreme executive power, but rather by some politically responsible and socially responsive performances of devolution’ as radically opposed to its meager cousins.

Neelan, your understanding marks a desolate tension between the Sri Lanka as a ‘multi-ethnic and a plural society’ and (following Jayadeva Uyangoda) ‘the presence in Sinhalese society of a very specific political culture, along with an ideology and the idiom of a centralized state.’ How may non-neurotic constructions of autonomy and ethnicity thus be articulated and shaped?

Acts of reading with Neelan the President’s speech

This was the question that also confronted His Excellency President Mahida Rajapaksa, especially in his Address to the Sri Lankan Parliament on the ‘defeat of the LTTE.’ This text remains compelling, in its complexity and contradiction and warrants a most anxious concern with that which gets said and that which remains unsaid on the eve of a new national reconciliation.

In my present conversation with you, I dare not speak today with you as any Neelan-‘surrogate’ (an impossible task indeed); nor may I lay any claim to a full understanding of what Jayadeva Uyangoda (and other distinguished Sri Lankan scholars he cites) say to us in complex languages of ‘competing state projects’ and the ‘dynamic of internationalization’ that often ‘plays into the agenda of ethnic purists who seek to create monoethnic mini-states out of ethically plural societies.’ Further, because I know how parlous remain the otherwise precious sites of the Law and Society Trust and the ICES, I owe an absolute obligation to assist constructive communication concerning the tasks necessarily ahead.

Continued tomorrow