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Response to Kumar David: What is left of the left?           

--Vasuki Nesiah

 

The current discussion of constitutional reform in Sri Lanka is dominated at one level by party politics and the short term imperatives of peace negotiations, and on another by liberal political scientists and constitutional lawyers.  In this context, Kumar David is one of those who has sought to advance a left approach to federalism by integrating the left’s commitment to the Tamil peoples’ right to self-determination and minority rights over the last few decades, with the left’s commitments to issues of socio-economic justice.  The document reproduced above (see http://www.lines-magazine.org/Art_Feb04/Kumar_david.htm)  is one step towards that end.  In his own words, Kumar David does not advance this as a “finished document” articulating a fully detailed constitutional proposal, but a draft attempting to “kick-off a discussion”.  In that spirit, rather than simply reproducing the manuscript, lines also consulted with David and got his prior consent to enable us to simultaneously publish a response to his article (authored by lines co-editor Vasuki Nesiah) we hope that this dialogue will now become a broader discussion with even more people jumping-in; lines will publish interventions contributing to this ongoing discussion.

                                                 

This response does not offer a clause by clause response to Kumar David’s draft; rather, it discusses some key commitments (the right to self determination, minority rights etc.) that are central to his vision and seeks to engage with those issues by foregrounding a left approach to constitutionalism.  I would argue that the left’s approach to constitutionalism and federalism should be both ambitious in relation to the current order, and subversive in relation to the future hegemony of liberal constitutionalism.  In that sense it should aim at not only the written constitution, but also at what some have termed the unwritten constitution – namely, the broader contexts and processes of social change that both situate and impact the space for constitutional change.  The nub of my argument is that we need to develop a left approach to constitutionalism by paying attention to this gap between the written and unwritten constitution.  On the one hand, we need to push liberal constitutionalism to grant as much space as it can to create enabling conditions for struggles seeking to deepen democracy and social justice; these struggles remain uphill efforts in the country as a whole, and of course exceptionally so in the North and East.  At the same time we need to be ever vigilant about the fact that in many respects the continued hegemony of liberal constitutionalism may in fact be in fundamental tension with such struggles – the history of left efforts to appropriate state power in Sri lanka have demobilized left political movements [i] and centralized state power; aspirations (be they naïve or opportunistic) for social engineering social justice through legal instrumentalism have crashed into embarrassingly rudimentary lessons about the politics of law and social power.

 

Some may argue that these two efforts are sequential, that we need to first consolidate liberal rights, and only then will we have the luxury of thinking of more radical paths.  Clearly we are in a context where minorities remain endangered species on many counts; in a context where we don’t have fundamental legal protections for freedom of speech; in a context where police torture and political killings by the LTTE can take place with impunity; in a context where most women do not have equal opportunity at work; many don’t have protection from domestic violence at home; in a context where basic freedom of association, and in particular the rights of unionization and other fundamental labor laws are under threat; in a context where the vast majority of human rights violations over the last two decades have not been prosecuted and so on.  Many argue that the quintessentially liberal formulation of these rights notwithstanding, we need to focus energies on ensuring that these liberal rights are embedded and protected in our constitutional fabric – once that is done we will be better positioned, the argument goes, to explore more counter-hegemonic projects that may rethink and challenge the trappings of liberal democracy.

 

However, invariably the project of consolidating liberal rights also has costs - it can sap energy and vision from more counter-hegemonic struggles, it can offer the mirage of rights when the vast majority are not in conditions that will allow them to exercise those rights; it can demobilize social movements and domesticate resistance; it can mask normalized injustices and sugar coat power in a velvet glove of legal rules and social stability; it can empower the state as the arbiter of political claims; in fact, its state directed focus can mask the power wielded by non-state actors, from multi-national cooperations to men in the ‘private’ sphere;  it can disembowel and deligitimize political vocabularies that expose and fight injustices without speaking in the language of liberal rights; it can induce compromise and concessions to the status quo; in fact it can blind us to how the very categories through which we seek state protection (‘women’, minorities’ etc.) can also regulate us.  This list can go on.

 

All that said, however, I don’t think we can abandon liberal legalism as well for the reasons mentioned in the preceding paragraph.  Thus we are in a context where, paradoxically, we cannot do without liberal rights, while at the same time we cannot be blind to the false promises of the liberal state and the injustices liberalism enables and masks i.e., where we cannot fail to expose and undermine liberalism’s underbelly; how the liberal state can fundamentally corrode the space of those who seek its protection.

 

In sum, I am arguing that a left approach to constitutionalism needs to simultaneously walk two paths – one inside the terrain of liberal legalism, using the space of liberal constitutionalism to advance struggles for deepening democracy and social justice, and another path whose terms are not limited by how the written constitution defines the field of the political - a path that fundamentally challenges the constraints of merely legal terrains.  I am concerned that KD’s principles regarding constitutionalism are resigned to the inside path, resigned to limited excursions in liberal legalism, resigned to deferring more far reaching social transformation to some elusive future terrain.  Instead, I would argue that we need to can fight for more far reaching social transformation today traversing dual paths, confronting and negotiating their tensions.  I agree with KD that socialism, or another utopia, is not going to arrive at our door step anytime soon.  In that context however, it may well be that we need to change out vision of social change – rather than reeling our visions back to stage theory, making our peace with bourgeois democracy and waiting for that elusive next stage, we should ensure that our interventions are aimed at simultaneously realistic and ambitious visions – what Roberto Unger has called incremental but radical change.  I would argue that it is this kind of vision that inspires the most progressive and committed elements of the anti-globalization movement, the feminist movement, the resistance to US imperialism through the international anti-war effort and so on.  If we focus solely, on what I call the inside path, we succumb to the terrain of liberal constitutionalism in the name of the left – i.e., we will have a shopping list of constitutional provisions rather than strategies for social change.

 

Minority Rights

The rest of this discussion will focus on two central concepts in the hope that it will offer a symptomatic entry point to DK’s broader framework.  One of those concepts is minority rights - and I use this to examine David’s approach to the ‘inside path’ as it were – namely, his proposals of how a leftist constitution should conceive of pluralism.  The other concept I examine is self-determination - and I use this to urge that we should also be traveling the outside path.  Both of these principles, minority rights and self-determination, are critical to David’s analysis of democracy and pluralism in a ‘left’ constitution. 

 

Let us begin with how the KD manuscript speaks of minority rights.  For instance, Principle I. of the KD manuscript speaks of the rights that different ethnic communities must enjoy to ensure that Sri Lankan sovereignty is responsive to the national aspirations of all communities – from the Sinhala communities concern for national unity to the Tamil communities aspiration for regional autonomy to the protection of Muslim and Up-country Tamil’s rights as minorities within regional majorities.  At one level these are of course admirable principles, particularly given the chauvinism that persists in Sinhala and Tamil extremist quarters.  On the other hand, there is nothing in this approach that suggests that these communities are themselves internally fragmented by hierarchies of class, caste and other registers of socio-political power.  One may draw attention here to the classically left insight [ii] that identity does not stand out side history; in fact, the very categorization of ‘ethnicity’  is a matter of social struggle over the distribution of resources and meanings; the very classification of the political community that is said to have minority rights interpolates subjectivity and citizenship.

 

The KD manuscript sums up Principle I by arguing that the constitution should give primacy to people as members of ethnic entities, rather than identities, interests or solidarities that may be grounded in other economic or political registers.  Principle 2 is largely an application of this same approach to federal units such that there are two primary units, and with some provision for the protection of Muslims.  In an unfortunate echo of the winner takes all ethos of mainstream southern politics, and the sole-representative claims of the TNA and the LTTE, the institutional arrangements advocated by KD overwhelmingly privileges homogenous understandings of ethnic community, and concomitantly, discourages attention to distribution and difference, to hierarchies and privileges that renders politically and economically marginalized Tamils, Sinhalese and Muslims vulnerable to politically and economically powerful members of their own ethnic communities.  Thus it is a conception of self-determination that simplistically, and in the current context, one may even say perniciously, advances an essentialized and singular notion of the self that has a right to self-determination.  This bias also privileges regional ethnic segregation for maximum political clout, penalizes communities that live integrated, interdependent lives.  Where regional location tracks distributive inequities, this approach entrenches rather than loosens those regionally grounded claims on social power.  In general, it is an approach that discourages “inter-communal territorial migration” rather than “making proactive efforts to ensure that Tamils feel they can live in safety and dignity in Sinhalese dominated areas, or that Muslims can do the same in Tamil dominated areas and so on” [iii] .

 

That may be a rather truncated discussion of minority rights but for now we will leave it there and simply refer the reader to other interventions that problematize the KD style approach to settling minority rights onto territorial units [iv] .

 

Self-determination

The conception of self-determination is of course an out growth of minority rights.  It is a rich concept tied primarily to Lenin’s discussions of the rights of nations to self-determination.  As a concept tied quite critically to anti-colonial struggles, the core insight of self-determination is grounded in democratization.  In the anti-colonial context this may have meant statehood; but I would argue that today the left should be equally concerned with how statism denies the right to self-determination.  Unfortunately, an approach to constitutionalism driven by a shopping list of constitutional provisions will be directed at the state and the rule of law, on issues that range from language rights to poverty.  For instance, it aims to move to more equitable socio-economic principles through guiding principles for state responsibilities rather than mobilizing social movements that will challenge social relations and ideologies that normalize, reproduce and legitimate received political and economic arrangements.  Moreover, the privileging of those relations and communities that come appear on the radar screen of the state skews the priorities of the left to neglect other arenas that shape the meaning of law while not recognized in constitutions and law books.  Such arenas may include sex and pushing the classification of ‘deviance’ v. normalization, the informal labor sector, the naturalized family structure, the alternative (non-legalistic) political vocabularies that advance claims that are not captured by the language of rights, or of political struggles that take more seriously engagement with and through popular culture, the commitment to solidarity with subaltern subversion.  Some may respond that this is a discussion of a lefty approach to constitutionalism not a lefty approach to social change and hence a focus on the state is quite appropriate – I would argue that this suggests that law can attaint this formal ’end’, abstracted from social relations and concrete struggles over resources and meanings.  It is in this sense that a left approach to constitutionalism must walk both paths – inside the terrain of liberal legalism as well as on terrain that challenges liberalisms myths regarding the promise of law. 

 

This point gets particular emphasis in relation to DK’s discussion of anti-imperialism.  Today one of the hall marks of imperialism is precisely this commitment to a depoliticized model of the rule of law.   Neo-liberal programs all over the world are not only speaking the gospel of free trade, but they are also pressing for the value of law and legal rules.  From Max Weber to Hernandez de Soto advocates of capitalist expansion have in their different ways suggested that the key difference between the global north and the global south is the rule of law – a key ingredient in forging the social trust that will enable economic growth.  Thus if want to press a left approach to constitutionalism that reflect san anti-imperialist ethos, then we should go beyond constitutional provisions to also pay attention to the social change needed to challenge the hegemony of particular understandings of law, and constantly situate law and legal change in social struggle, i.e. the gap between the written and unwritten constitution.  That discussion is not just for other aspects of a left platform dealing with economic policy or foreign relations, rather, if we really take seriously the ways in which social relations are integral to law and legal meaning these other arenas should be integrated into a left platform on constitutionalism. [v]   After all, a left understanding of social change will resist the dominant liberal conception of constitutionalism as a once-off settlement of social conflict – rather, to the extent that we on the left see history as constituted by ongoing social struggle, our energies should not be focused solely on pressing for the best  constitution we can get (which is itself is historically contingent); rather, we should also focus on building the social base and developing ideological critiques that will expose constitutionalism’s exclusions and biases, challenge its injustices, and constantly locate our engagement with law in relation to the broader imperatives of social struggle.

 

What is left of the left?

This response has used the occasion of David’s discussion, to reflect on what would constitute a left approach to constitutionalism.  David’s open invitation to debate is a refreshing catalysts for the left to collectively interrogate its political priorities and its relationship to liberal legalism.  What is distinctively left about how we engage with these questions?  Most pointedly, we may ask what is left of the left – are we left to a mere shopping list of policy prescriptions (pro-diversity, anti-imperialism, pro-social justice, anti-ethnic chauvinism and so on…), or do we move left of that left and reinvigorate a critical stance that takes positions on current constitutional questions, while also seeking to subvert the dominant constitutional framework.

 

A left approach to federalism in Sri Lanka is not merely a project of constitutional tinkering regarding division of powers between center and state, clarifying the number of administrative units, or even establishing directive principles regarding state responsibilities.  We on the left need to press for self-determination in the deepest sense of the term – an ever vigilant engagement with constitutions and constitutionalism not for a once off constitutional settlement but for an ongoing political engagement radical redirecting, institutional experimentation and imaginative exploration to advance distributive justice, ‘alternative pluralisms’ and democratic participation. 


[i] For an account of this history with specific reference to the left’s participation in the MEP government in 1956 and then the United Front government in 1970, see the Q and A with Lionel Bopage in the May 2002 issue of lines: Vol. 2 No. 1; available online at http://www.lines-magazine.org/Art_May03/bopage.htm

 

[ii] A few interventions that may press this understanding from different entry points, all in the family of the left, include Marx’s discussion of the universal rights of man and the mirage promises of the liberal state,  Louis Althusser’s discussion of the interpolation of citizenship to Michel Foucault’s discussion of how ‘identity’ rights produces and regulate political subjectivity.

[iii] For a more sustained discussion of territory and minority rights see Vasuki Nesiah’s Electing ‘Alternative Pluralisms’ in http://www.lines-magazine.org/Art_Nov02/Editorial_Vasuki.htm

[iv] In addition to the previous footnote that speaks also of alternative approaches to territory, we want to draw the reader’s attention to Minor Matters, Quadri Ismail’s discussion of minority rights in our inaugural issues, http://www.lines-magazine.org/Art_May02/MinorMatters.htm; several interventions emphasizing the challenges faced by the Muslim community that any left approach should be committed to addressing, including Shahul Hasbullah’s discussion of Northern Tamils in “We may now go home”: Muslim Refugees from Northern Sri Lanka in http://www.lines-magazine.org/Art_Nov02/Hasbulla.htm and S. Nanthikesan’s discussion Long term Peace and Muslims in the East in http://www.lines-magazine.org/Art_Nov02/Editorial_Nanthi.htm

[v] Clarify that legal vs. non-legal arenas is itself a problematic classification of our social lives; we need to be able to pay attention to the distinctive arenas and political vocabularies of legal struggle, while also paying attention to how deeply these arenas are imbricated with other arenas of struggle.  Thus its not an inside path and an outside path so much as a legal path that is itself situated in a maze of other intersecting and parallel paths.

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February 2004
Volume 2; Issue 4