By Asanga Welikala
Sunday 29th July 2012 is the thirteenth death anniversary of Dr Neelan Tiruchelvam, which will be commemorated, as is now customary, with the annual Neelan Tiruchelvam Memorial Lecture.
An old friend, Professor Sujit Choudhry of the New York University School of Law, will deliver the lecture this year. I have been asked to write a few words of remembrance and reflection to mark the occasion, an invitation I take up here with both pleasure and sadness, as well as a measure of trepidation.
I share with countless others an immense respect and admiration for Neelan’s life and work, but for (liberal) constitutional lawyers, there is a special satisfaction in celebrating the contribution of Sri Lanka’s most illustrious proponent of the field. While Ceylon and Sri Lanka have produced many excellent public lawyers, no one crossed disciplinary boundaries within the social sciences and humanities so effortlessly, or straddled theory and practice, scholarship and activism, the concrete and the ideational, the spoken and written word, the civic and the political, the local and the international, nationalism and liberalism, and both the state as well as the sub-state national spaces, in the way that Neelan did. As an ethnic Tamil and a political liberal, no other Sri Lankan constitutional lawyer has also been required to contend with the daily threats of terrorism and authoritarianism in the service of constitutional law in quite the way that Neelan was compelled to do.
His attainments therefore have justly been eulogised by the great and the good in Sri Lanka and abroad, with the tragedy of his untimely demise adding a patina of nobility to all that he tried to do (which, while wholly deserved, is nonetheless paradoxical for one who extolled the values of life, liberty and the pursuit of happiness over the dubious virtues of blood, soil and martyrdom). Consequently, remembering Neelan can become an exercise in repetition and banality, but the passage of years has not diminished the loss that Neelan’s assassination represented for Sri Lanka’s legal, political, civic and intellectual communities, and for the Sri Lankan Tamil community in particular. Indeed, the post-war context has only served to heighten Neelan’s absence in the two societal spaces that he inhabited and enriched in life – Sri Lanka and Tamil nationalism – both of which face grave democratic and constitutional challenges that demand not only his intellectual creativity and moral integrity, but also his wise, moderate and moderating influence.
Having returned to Sri Lanka after undergraduate studies only a few weeks before he was killed in July 1999, I never met Neelan in life. But entering the world of Sri Lankan constitutional law shortly thereafter, initially through policy-oriented research and latterly through more academic work, I found that his posthumous presence was ubiquitous, his name invoked frequently by disciples and detractors alike. My engagement with his work has thus been entirely based on the substantial corpus of writing and speeches he left behind, and in a more abstract way, the ideas he espoused in addressing the enduring constitutional challenges of democracy and pluralism that we face in our country even today. Such an engagement has its limitations of course. One has to engage in considerable educated guesswork in assessing Neelan’s probable responses to radically altered historical and political circumstances after mid-1999, and on that basis, speculate further in deciding what combination of competing normative and structural principles he would have employed in his approach to particular constitutional problems. This is an exercise that is especially fraught with someone of Neelan’s intellectual fecundity and dexterity. While this might be an endlessly fascinating pastime for some, I suspect that it could seem quite pointless to most, and so I should like to broadly focus on two aspects of Neelan’s personality and work that have particular significance to the context that we find ourselves in 2012.
The first is a matter of personality. Many who knew, and more importantly, disagreed with him, have unfailingly described Neelan as genial, polite, generous and compassionate. However, as Professor K.M. de Silva has recalled, interlocutors “learned soon enough not to confuse his courteous demeanour for appeasement of unfriendly critics.” The lack of confrontational histrionics in his approach to dissensus demonstrates not merely intellectual and moral confidence, but also the profoundly liberal democratic nature of his disposition. It is a temperament that is fundamental to the ideal constitutional lawyer, and comes before all else, including ideological consistency, forensic skill and deep knowledge. Such a temperament usually signifies a predisposition to norms like choice, tolerance, diversity and value pluralism, which in turn enables the inclusiveness, nuance, compromise and accommodation so essential to constitutional law and politics, rather than the zero-sum reckoning associated with the criminal lawyer, or more broadly as we contemplate the post-war Sri Lankan politics of constitutional reform, the majoritarian populist, the ethnic nationalist and the military-bureaucrat.
Secondly, something that was particularly impressive about Neelan’s intellectual production was his interest in theory, and tendency to locate even the most informal analysis and proposal within an implicit theoretical framework. This is one of the reasons why much of his work has withstood the test of time. Because the specific and the concrete are usually nested within the general and the abstract, his arguments have a resonance beyond the politics of the temporal span of his life. In Sri Lanka since the inauguration of the republican constitutional order, we have had constitutional law, but no constitutional theory. Rohan Edrisinha was pointing in the same direction, albeit with a narrower ideological focus, when he observed that we have constitutions without constitutionalism. This disregard for theoretical coherence, indeed for theory per se, explains why it is so difficult to find internal consistency in our constitutional jurisprudence in such key areas as fundamental rights, devolution and executive power, which in turn has contributed, together with other more prosaic factors, to the failure of the judiciary to constitutionally discipline ordinary politics in our fruitless search for unity in diversity.
Neelan’s attentiveness to legal theory and interdisciplinarity, engendered at Harvard in the heyday of Critical Legal Studies, the Law and Society Movement and Ethnic Studies (interests reflected in the research institutions he helped found) also led him to take an interest in legal education. He rightly saw narrow positivism as the bane of legal education in Sri Lanka, exacerbated by traditions of rote learning which fetishised memorisation and speed-writing to the exclusion of independent research, critical analysis and self-expression. The dominance of narrow positivism is seen everywhere in our constitutional discourse, in which commentators discuss concepts like sovereignty, territory, nation and state as if jurisprudence stopped in Victorian England and Austin, Bagehot and Dicey have the last word.
The absence of Neelan’s theoretical competence is perhaps nowhere felt more acutely today than in relation to Tamil nationalism, the federalist tradition of which he represented in Parliament at the time of his death. With Neelan’s assassins themselves vanquished, post-war Tamil nationalism finds itself in a state of ideological disarray and strategic confusion. While this has not, so far, resulted in electoral depletion, post-LTTE Tamil nationalism’s erratic constitutional self-representations suggest the lack of a rigorous theoretical core which could form the solid foundation of a coherent set of politico-legal claims in appreciation of the new political reality. As a result, Tamil nationalism can be found fluctuating wildly (sometimes within the course of a single political speech) between conflicting constituencies and objectives, resorting to mechanical comparativism with institutional models ranging from Switzerland to Southern Sudan, or to hackneyed categories of orthodox international law, none of which have a clear or logical relation to Tamil nationalism’s interests, purposes and prospects in post-war Sri Lanka. This in a global context in which sub-state nationalisms elsewhere are at the forefront of the interrogation of traditional democracy and state forms, and the development of constitutional theory and law in new and exciting ways in the accommodation of all forms of pluralism. These developments of course do not have automatic application, but with intelligent contextualisation, of the sort that Neelan excelled in, there is no doubt that Tamil constitutional claims could be more consistently and better articulated than they are at present.
In this and other ways, constitutional theory itself is seeing an efflorescence in comparative legal scholarship today, in which Sujit Choudhry at NYU is playing a leading role. In next week’s lecture, entitled “Constitutional Design for Plural Societies: Integration or Accommodation?” Sujit will be elucidating some of the key recent comparative and theoretical developments in this area. The practical relevance of constitutional challenges like the appropriate balance between the integrative requirements of unity and the accommodative demands of pluralism needs no special emphasis for us in post-war Sri Lanka. As the central conundrum with which Neelan grappled all his life, I have no doubt the subject of Sujit’s lecture, and the substance of the broader developments to which it relates, would have both delighted and absorbed Neelan’s indefatigable and perennially curious mind.
Rabindranath Tagore once said that, “The geography of a country is not the whole truth. No one can give up his life for a map.” It was precisely this kind of enlightenment that cost Neelan Tiruchelvam his life, and deprived us all of a superlative intellect and wonderful human being. The violent contest of territorial claims to the whole and the part that constitutes the narrative of our entire postcolonial history remains constitutionally unresolved. Neelan’s work therefore remains incomplete, and it is yet to be seen if his efforts were not in vain.
The Thirteenth Neelan Tiruchelvam Memorial Lecture, “Constitutional Design for Plural Societies: Integration or Accommodation?” will be delivered by Sujit Choudhry, Cecelia Goetz Professor of Law, NYU School of Law, on 29th July 2012 at 6.00 p.m. at the Sri Lanka Foundation Institute Auditorium. This event is open to the public.