FROM
ISGA TO ETERNITY: The light at the end of the tunnel has been
shut of until further notice
-- Vasuki Nesiah and S. Nanthikesan
The LTTE's proposal for an interim administration are to be welcomed
as providing an opportunity to steer peace talks towards the realm
of the 'political' in the deeper sense of the word. As is now
legendary, the seemingly never ending first phase of the Paris
peace talks between the US and Vietnam foundered around the shape
of the table - often petty politics can be precisely the route
to avoid conversations about Politics in the deeper sense, i.e.,
conversations about how we structure our collective lives, how
we shape the terrain for struggles around accountability and democratic
voice, pluralism and distributive justice. In the Sri Lankan context
too many observers of the peace process feared that the peace
process of the last two years, even when not in a state of official
suspension, was running while standing still, i.e., that these
talks about talks licensed the indefinite extension of the ostensible
'no war-no peace' status quo without delivering on the most meaningful
peace dividend, namely the space to deepen democratic engagement
in our collective lives . Against that backdrop, we feel that
public debate over the interim arrangement proposal may present
a critical opportunity for civil society to shape that space for
engagement. In that context, rather than dismiss the proposal
as merely a maximalist negotiating position, we want to take it
seriously, and engage in a conversation about the vision of democracy
and pluralism that inheres in the proposal.
Plunging into that conversation then, we would argue that the
proposal reflects the deeply regressive character of the debate
about interim administration, and even of prospective constitutional
arrangements. The discussion about such arrangements between the
major political parties in the South are dominated by a see-saw
between moribund conceptions of national security and territorial
integrity on the one hand, and an opportunist advocacy of 'peace
on any terms' on the other. Concomitantly, in the LTTE camp, the
vision is informed by a conception of self-determination that
is fundamentally divorced from accountability and pluralism. As
the debate between the PA and UNP has crescendo-ed in the last
month, the conversation in the South has come under much scrutiny,
even overshadowing the response to the LTTE's proposal. The paragraphs
that follow seek to engage with the LTTE's proposal by examining
the grammar that underlies its political vision. We want to highlight
two aspects of this grammar - the democracy deficit and the anti-pluralist
ethos.
The democracy deficit that characterizes the LTTE's politico-military
authority in the North and East, as well of any default dispensation
of the Sri Lankan state pushes Lanka towards interim arrangements
that will be scarred by that deficit; while that may be the lay
of the land at present, we in turn need to push to ensure that
rather than consolidating that deficit and giving it a veneer
of legality, interim arrangements are structured to at least incrementally
strengthen efforts to contest and overcome that deficit over time.
The legal structure of political struggles during the life of
the interim administration do not over determine the course of
those struggles; however, they are obviously a significant factor
in enabling vs. hindering struggles to orient such arrangements
toward greater democratization and a deeper conception of pluralism.
The LTTE's vision appears to be oriented towards creating a hostile
legal environment for such struggles, and instead, consolidating
its current military authority with the legal stamp of the interim
arrangements. We would like to highlight four symptoms of this
vision in the proposal: issues of democratic participation, issues
regarding institutional pluralism, issues regarding ethnicity
and community, and issues regarding the role of civil society.
First, let us begin by looking at some of the more familiar
arenas of democratic participation and accountability - namely,
the relationship between electoral mechanisms for voice, accountability
and structures of governance. The LTTE proposes that there be
an Interim Self-Governing Authority (ISGA) with governance responsibilities
for eight districts in the North and East. The proposal is that
the ISGA be composed of members appointed by the LTTE, GOSL and
the Muslim community of the region. Elections shall not be held
in the course of the interim-agreement; the earliest we will see
elections for ISGA seats is after five years of the interim administration
when the immediate mandate of this proposal runs out and/or negotiations
are reached for a final settlement.
Election, are, of course, neither the sole nor sufficient condition
for democratization; nevertheless, they can be a fundamental avenue
for voice and accountability. An interim administration that is
so insulated from electoral processes as suggested by the proposal
risks creating an environment that is antithetical to free and
fair elections even five years hence. In the past, governments
have suspended basic democratic rights ostensibly for 'interim'
periods alone, only to leave a legacy that has fundamentally dismembered
the possibility of democratic mechanisms for the long term - For
instance, JR's suspension of general elections for an executive
presidency and a rigged referendum continues to have this pernicious
and pervasive reach far beyond the duration of his own term in
office. With this concern in mind then, rather than having all
the seats on the ISGA be based purely on appointments (as the
LTTE's proposal call for), the ISGA could, from the beginning,
be composed by a balance between seats filled by internationally
monitored elections, and seats filled by appointment. The interim-administration
mandate itself could be structured to gradually change this balance
in favor of elections where every couple of years more of the
ISGA seats previously filled by appointment become open to electoral
contestation. This will also provide a potential window for parties
outside the LTTE and the GOSL to participate in the ISGA. To some
extent one can situate Lanka's historical movement toward independence
in the first half of the last century as emerging from a gradualist
approach along these lines - as with that colonial experience,
this is hardly the ideal process; however, to the extent that
some sort of interim administration that falls short of a more
robust democratic structure is in the cards, then we should at
least aim for this incremental, if hopefully decisive, orientation
towards that more robust structure. It is a way in which democratic
forces can get a step in the door in ways that will strengthen
efforts to wedge it open wider and wider; enabling us to mobilize
against having it shut in our face.
Secondly, lets us look at the lines of centralization
and decentralization implicit in the formal lines of governance
and accountability that structure the proposal. The ISGA is to
have authority over the entire North and East; district committees
are to be created by the ISGA, their functions are to be delegated
by the ISGA, and they can be suspended or terminated at the will
of the ISGA (Article 14). In fact, the ISGA is to have plenary
powers for the governance of the Northeast in a wide range of
issues - from taxes to law and order, resettlement of IDPs/refugees
to land policy (Article 9). The independence of the judiciary
shall depend on the ISGA taking "appropriate measures"
to ensure that independence (Article 10). Finances for the region
will be controlled by a Financial Commission appointed by the
ISGA; The NorthEast General Fund "shall be under the control
of the ISGA"; Control over the NorthEast Reconstruction Fund
(NERF) shall be "transferred to the ISGA"; and all monies
not controlled by NERF shall be received into a special fund and
the "ISGA shall control the Special Fund." (Article
11). The auditing of all these funds under the control of the
ISGA shall be done by an Auditor General and an auditing firm
appointed by the ISGA (Article 13).
This structure is such an embarrassingly conspicuous consumption
of decision making authority that it may make even J.R. Jayawaradane
blush. If one of the rationales behind an interim administration
is that it is intended to quell insecurity and create a constructive,
confidence building environment for the peace process to move
forward, then this structure is clearly directed making the LTTE
secure and confident and all others insecure and crushed. Moreover,
the GOSL's own anti-democratic legacy and brutally destructive
role in the region means that relying on the GOSL to counterbalance
the LTTE will not make the people feel any more secure or confident.
As noted before, interim arrangements are born of compromise with
legacies of authoritarianism. To this extent, circumstances may
force an interim structure that can induce the buy-in of the powerful
with some reserved seats on the ISGA for both the LTTE and the
GOSL as the proposal envisions; however, if the interim administration
is indeed intended as 'interim', then these compromises should
be tailored and limited to the particular problems we confront
rather than an unconditional surrender of any democratic input.
If the long term goal is in fact the demilitarization and democratization
of the region, the interim-structure has to build in checks and
balances that disaggregate and re-aggregate decision making lines
in ways that deter sealing-in power in all pores of the society's
institutional arrangements. There should be at least some elements
that carry the promise of an internal dynamism that pushes against
the ISGA's monopoly of authority. For instance, even if the LTTE
and the GOSL will have some reserved seats that ensure that they
have a dominant presence on the ISGA, other institutions could
carry a more pluralistic structure - internally, as well as in
terms of how they work as a whole. Rather than having ISGA appointed
district committees, district level committees could be elected
by internationally monitored electoral processes - monitored on
all fronts, from the registering of political parties, through
campaign periods to counting ballot boxes - and then financed
in ways that retain independence and resist manipulation by the
ISGA, rather than going the route of the clientage based hoax
district bodies that we have had in the past (once agina, the
shadow of J.R.!). Similarly, rather than have the ISGA control
all economic decision making bodies, there could be a step towards
more genuine economic democracy with provisions for those most
impacted by particular policy areas to have a seat at the table;
such actors could range from the relevant district committees
to organizations such as unions and consumer co-operatives. Rather
than an ISGA appointed human rights commission, there could be
a human rights agreement with jurisdiction over all parties, and
an international human rights body with monitoring and adjudicatory
authority over all human rights related issues. Rather than an
ISGA appointed judiciary, for all non-human rights issues the
region could strengthen the current range of institutions operating
in the region to create a legal pluralism framework where citizens
have genuine freedom to choose between alternative fora, the GOSL
system, the LTTE system, or, if relevant to the matter at hand,
the personal laws system.
Third, let us examine the assumptions regarding ethnicity
and community suggested in the proposal. Not only does the LTTE
garner itself sole representative status for all Tamils, it also
implicitly and explicitly suggests that other communities in the
region could also be framed through parallel models of homogenized
representation. It also priviledges ethnicity as the overarching
axes of social solidarity and political community. If the interim
administration was intended to pave the way for a new model of
pluralism for Lanka, the interim administration proposal's disregard
for the rights of entrenched minorities suggests a model of ethnic
majoritarianism within the North and East, but equally, for the
rest of the country. The proposal implicitly suggests a hermetically
sealed administrative structure whose approach to pluralism is
in the erection of ethnically majoritarian shields between the
regional and the national. Yet the dynamics of the lives of the
majority of lankans are defined through social relations that
refuse rigid boundaries. The opening of the A9 became such an
iconic marker of the potential for peace precisely because it
allowed the free movement of people and the re-establishing of
ties of community and citizenship, commerce and popular culture.
Against this backdrop, the interim proposal reflects an almost
myopic aspiration to homogenous communities. Yet, as we noted
in an editorial one year ago , it is precisely the structuring
of institutional arrangements in ways that privilege homogenous
political communities that renders hybrid territorial spaces a
dangerous place for minorities and marginalized communities. If
location in different territories has problematic distributive
consequences, we should seek to further loosen rather than entrench
links between political 'community' and the rights and privileges
that attach to particular territories. Thus we may want to encourage
inter-communal territorial migration by making proactive efforts
to ensure that Tamils feel they can live in safety and dignity
in Singhalese dominated areas, or that Muslims can do the same
in Tamil dominated areas and so on. Any interim structure has
to not only look inward within regional administrative structures,
but it also has to look horizontally at inter-regional and sub
regional linkages - and ensure security and cultivate openness
to that fluid, ongoing recasting of the demography and demands
of pluralism.
It is important to note that while we have spoken primarily of
ethnicity, the analysis extends to all 'minorities', whether they
are rendered political 'minorities' by hierarchies, distinctions
and distributive relations constituted around axes such as 'political
affiliation', 'caste', 'gender', 'language', 'religion' or other
terrain of marginalization. As noted earlier, privileging territorial
walls that enhance power attaching to regional administrative
authorities makes those communities that cannot control regional
power even more vulnerable to majority chauvinism and political
dominance within particular administrative units; the walls seal
in unjust social relations. In such a context, vesting all political
authority on territorially constituted administrative boundaries
equates these administrative walls with self-determination of
the community within that unit. The implict assumptions about
homogenous community that defines this understanding of self-determination,
advances the pretence that the only concerns about hierarchy and
injustice that we should worry about are those outside those walls;
that this understanding of self-determiantion builds walls that
protect us from those concerns, i.e., that, in effect, there are
no fundamental social conflicts that call into question the legitimacy
of the ISGA's authority. The LTTE's proposal that the administrative
unit will be based on secularism is a case in point - as the Indian
experience of the use of the uniform civil code in anti-Muslim
mobilization has demonstrated, secularism can often be precisely
the tool for an anti-minority position. As Marx showed with such
biting wit in his essay engaging with legal frameworks in On the
Jewish Question, the ostensible promise of liberal rights guarantees,
such as state secularism, can be precisely the masking (and even
entrenching) of deep social differences and substantive inequalities
in the name of formal neutrality. In the North and East, we need
to be ever vigilant about the fact that the more we define self-determination
and pluralism in terms of rigid (ostensibly neutral) walls around
that administrative unit, the deeper we entrench minority vulnerability
- both within that unit, but also, by extension, in the rest of
Lanka.
Fourth, and most significantly, let us look at the role
the proposal envisions for civil society. If one of the principle
casualties of the past two decades of war has been an assault
on civil society, then one of the precise functions of an interim
period prior to the adoption of a new constitution is to provide
the enabling conditions for the emergence of a vibrant critical
civil society. This should be a period of demobilization and demilitarization
with more and more areas of public life reverting to civilian
control; a ceasefire is more than the silencing of guns - this
hiatus represented by interim arrangements is also a period for
the military authorities to recede, and for institutions of civil
society to come forward. Yet the LTTE proposal seems directed
precisely at the reverse. One of the most telling indicators of
the disregard for popular participation is that the only references
to robust engagement by civil society institutions that the LTTE
calls on to legitimize its position is in the preamble. Namely,
an invocation of the 1976 Vaddukkodai Resolution- a 25 year old
edict, and one that gave a mandate to the TULF rather than the
LTTE. It is deeply ironic that the preamble also deligitimizes
the 1972 and 1978 constitution on the grounds that in those instances
the Tamil community was not actively involved in those efforts
with an apparent unself-conscious disregard for the fact that
the LTTE is continuing the tradition of the SLFP in '72 and the
UNP in '78 because there is no active involvement of the Tamil
community in the LTTE effort in 2003. Instead an effort to use
interim administrations to demilitarize and democratize in meaningful
ways would create provision for intellectual freedom and independent
student organizations in regional universities; it would make
explicit commitments to a free press and media pluralism; it would
commit to not interfere with freedom of association so that institutions
that range from the regions' long tradition of peace committees,
to more recently constituted NGOs, to the potential introduction
of new regional political parties could thrive without political
interference. The preamble to the proposal could also convey the
propriety it places on this with the LTTE, GOSL and other players
in the region admitting past abuses, and agreeing to hold themselves
accountable to institutions such as international human rights
monitoring bodies, as well as local accountability avenues such
as a free media to guard against future abuses. Civil society
has been brutally crushed by all players in the region, from the
GOSL and the LTTE - in this beleaguered environment, these suggestions
just noted are but a few gestures to help create the possibility
for a robust and independent civil society to emerge. Civil Society
is perhaps the paradigmatic arena where a sole focus on legal
arrangements is patantly insufficient, For instance, it will take
many years before the region has built a sufficient sense of security
for civil society to reclaim the public sphere. However the interim
administration structure is a window of opportunity to begin that
process and it is incumbent that we push the legal framework as
much as possible to increase the chances that the interim period
shows us the light at the end of the tunnel, rather than shutting
it off forever.
The four broad points noted above do not constitute a comprehensive
clause by clause analysis of the LTTE proposal for an interim
administration; we merely highlight some key issues that we consider
symptomatic of the proposal's vision of democracy and pluralism.
Not only can more be said about these issues, there are also other
elements of the proposal that need to be engaged with and discussed
in more detail but that more extended analysis is beyond the scope
of this editorial.
In closing it is important to situate the preceding analysis
in a note about the role of law and legal rights more broadly.
We cannot, as the old left sometimes did, dismiss the legal as
mere reflection of the economic superstructure, or as the new
left sometimes does, dismiss the legal as merely a fetishism with
abstract rules rather than struggles over the politics of culture.
In fact, law, such as the framework of the interim administration,
can be so important to engage with because, in part, it can be
a terrain for battles with and about what constitutes economic
value and cultural meanings, and the distributional stakes in
alternative institutional arrangements. Our engagement with the
interim legal structure is an effort to push towards institutional
arrangements whose gravitational pull will be in favor of efforts
that deepen democracy. That said, however, it should also be noted
that all the formal rights and progressive legal arrangements
cannot in themselves deliver democracy or pluralism - i.e., rather
than fetshize law, we should see the structure of interim arrangements
as but one terrain for struggles over democracy and pluralism;
broader social movements need to mobilize and engage in legal
terrains, but we should not allow the quest for improved legal
arrangements to monopolize the terrain of struggle, and not allow
the ostensible promise of legal guarantees cloud our analysis
of social relations. Nonetheless, it is in that context that the
distribution of the proposal is to be welcomed by anyone concerned
about democracy in Sri Lanka - the proposal is not merely a set
of abstract rules; rather, it sets forth a vision for the future,
and to that extent we can try (as we have attempted to here) to
draw the proposal into a discussion about alternative visions
of the future, a conversation unpacking the conception of self-determination
implicit in the proposal and its underlying assumptions regarding
community and pluralism.
As noted earlier, in the South the discussion of the interim
proposal has been truncated by dominant political voices that
argue that sovereignty and security are at stake vs. those who
argue that peace and prosperity are at stake. We would like to
steer the debate back to argue that it is the shape and possibilities
of democracy and pluralism that is at stake, and unfortunately,
rather than being a step towards deepening democracy and pluralism,
the interim proposal suggests a rather impoverished vision of
pluralism, and an actively hostile approach to democracy. We ground
our interpretation of the proposal in our reading of what's between
the lines, as much as what is in the lines of the text; Looking
then at both text and (con)text, we would argue that there is
a certain grammar to how democracy and pluralism are both fundamentally
truncated in this vision. Ideally, interim arrangements should
be conceived as a contribution towards building a path that has
a built in slide towards an irrevocable, if incremental, movement
towards a more democratic and pluralistic destination. Unfortunately,
the proposal currently on the table digs trenches around entrenched
authority and only makes it even more difficult to build alternative
paths.
[ ]The peace process itself was controlled by a few powerful but
non-representative actors on the Sri Lankan political stage; Political
parties like the PA and the SLMC were not given a seat at the
table - but more important input from critical civil society elements,
minorities within minorities, political dissidents and others
were actively excluded; legitimates dissenting voices calling
for human rights characterized as spoilers. In fact, in the name
of a fragile peace, the process appeared to legitimize and even
celebrate a process characterized by impunity and the abuse of
power on many fronts - ranging from the GOSL's economic policies
deepening inequality and attacking the most vulnerable sectors,
to the LTTE's military policies of child recruitment and political
assassinations. While it is clear that no right thinking person
in Sri Lanka can want a return to war, many also found that the
peace process was, in sadly significant ways, "a war by another
name" in the amount of brutality it condoned in the name
of peace. See Running Away From Peace by Arjuna Parakrama, lines,
Vol. I, No. 4 (November 2003).
[2 ] lines, November 2002.
HOME
