Draft Editorial-Nov

FROM ISGA TO ETERNITY: The light at the end of the tunnel has been shut of until further notice

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[1]. 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 (from the ISGA structure on…) 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[2], 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 who 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.

[1] 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).