Federal bogey

This appeared in Republica on August 24, 2015.

http://myrepublica.com/opinion/story/26937/federal-bogey.html


Just when people were expecting a statute of their own promulgated after a long and wrenching transition, the bogey of federalism once again threatens its existence. The unresolved issue of state restructuring had curated the first Constituent Assembly before it was able to give birth to a constitution. The same fate seems to be awaiting the CA-II. Federalism is turning out to be the ride of the tiger for major political parties, without any logical solution in the offing. It has generated a million mutinies with divergent and often mutually exclusive demands that cannot be met to the satisfaction of all.
Much of the blame for the present imbroglio lies with the major parties. Rather than taking expert advice on the sensitive issue of state restructuring, the Big Four syndicate randomly drew boundaries and haphazardly cut and pasted existing districts to new provinces. People at the grassroots, with attachment to their lands, were understandably angry by this and demanded united development regions and districts.They want their provinces to prosper and for that they need transportation routes, something the current delineation fails to address. The important components of identity and capability of federal states too have not been satisfactorily incorporated.

Influential leaders carved provinces and drew boundaries not with any pious motive but for their short-term electoral gains. This gerrymandering has let loose petty regionalism and communalism that will dictate our future political course. More offensive is the top leaders' stance in the face of violence across the country. Rather than genuinely try to bring the disgruntled forces to talks table, they have been issuing empty statements for calm. There are hints that the leaders themselves have been inciting "Akhanda" and "Tharuhat" movements and using their cadres to ignite emotions, thereby inviting police crackdown.

Leaders' indifference to commoners' death only goes to show that they want a statute at any cost, whether or not that is acceptable to a large section of the population. After all, the 16-point deal and the super-fast drafting of the problematic statute based on it had no other motive than facilitating change of power.

In this context, questions regarding federalism should be raised. Why is federalism necessary for the country? How would it ensure equal representation of all communities? How is it any better than effective decentralization? Are the provinces being carved with Nepal's geo-strategic location in mind?

Federalism, although not the magic bullet as some claim, is also not a pure evil as certain sections of intelligentsia believe. The underlying idea is to eliminate backwardness, underdevelopment and povertyof the regions outside the national capital. The centralized state has always been apathetic to the genuine worries of mofussil. People outside Kathmandu valley have to come here even for minor administrative works. Federalism would facilitate self-rule and local empowerment.

But the federal idea in the country focused more on identity than economic viability with prosperity of provinces as its cornerstone. Deliberately ignoring the co-existence of multiple ethnicities in a single region, certain forces aggressively pitched for provinces with single identity with priority rights. In the charged atmosphere, the divisive voices of "us" against "them" reached a crescendo that sought to completely exclude "them" . There was no substantial effort to cool things down and bring communal harmony. This is the reason some people consider federalism as a design of the foreign elements to rupture national harmony.

As if to prove that federalism will indeed sound death knell of communal harmony, influential Madheshi leaders have been poisoning the environment. Quitting the sovereign CA to raise their voices in the streets and issuing inflammatory statements have made things worse. Rajendra Mahato says the Madhesh will impose blockade of goods to hills. Upendra Yadav keeps telling the Madheshis that hill folks are the sole source of their misery. Amaresh Kumar Singh threatens to break Madhesh away from Nepal if every single Madheshi demand is not met and challenges the home minister to put him behind bars for his barefaced remarks.

More brazenly, disgruntled Madheshi leaders announced compensation of Rs 5 million to potential martyrs in Madhesh movement. This open call for martyrdom like some terrorist outfit shows that Madheshi leaders take the people as stepping stone to their political ambitions rather than look to genuinely solve problems in Madhesh. Moreover, it shows that they want the conflict to snowball to unmanageable proportions, rather than seek compromise solutions. General Madheshis might not share their leaders' antagonism against hill folks but some excitable youths can be puppets in the hands of these exclusionary leaders and help prolong the conflict.

Despite the conflicts it has generated, the reality is that federalism has charted a certain course from which the country cannot back down. It would have been better if this sensitive issue had been taken to a referendum. But in light of what has transpired so far, the leaders have their task cut out. They should take expert advice in state delineation. Unfortunately, they have never given serious thought to it. This process will take some time and the promulgation of constitution will be deferred. But that is the risk the leaders should take.They should not fix a date for the constitution that they cannot honor. There is no point in making a constitution that will have to be changed after a short period. There is also a need to make people aware that federalism rather than the unitary state structure will institute inclusivity.

Flawed document: Draft constitution

This article appeared in Republica on August 4, 2015.

http://myrepublica.com/opinion/story/25777/flawed-document.html


The proposed constitution of Nepal will take the country to an uncertain future given its provisions that contain seeds of authoritarianism. Many apparently progressive clauses have been qualified by certain restrictions that can be exploited by a ruler with authoritarian bent.
Take Article 24: Rights regarding mass media. The first clause ensures that there shall be no prior censorship of publications but the very next paragraph lists several conditions to be met to enjoy freedom. The long list functions as the Damocles' Sword that the journalist should be aware of before filing a story or providing an opinion that might be unpleasant to the establishment. This is a direct attack on democratic ideals. Freedom of expression is the cornerstone of democracy and it cannot be subjected to restrictive conditions. In extenuating circumstances like war, press freedom is generally restricted but at a small sign of unrest against an unpopular leader, it can be curbed with misinterpretation of this Clause. With these many restrictions on press, can democracy prosper in future?

The thought behind the incorporation of this offensive Clause in the constitution is that the state knows what is in the best interest of the people. It holds individuals as forces of anarchy, malleable to be swayed by the pernicious influence of a news piece or an opinion. Thus the state has to act as the strict disciplinarian. Yes, some media outlets have misused press freedom to indulge in character assassination and libel at certain times but these incidents are exceptions rather than the norm. Muzzling the press cannot be justified based on some stray incidents.

Another provision that can be exploited to assert the power of a dictator is forcing the citizen to perform mandatory labor. Ironically it falls under the provision of right against exploitation. Article 34 (4) reads, "No person shall be subjected to forced labor." But, the Clause puts a condition, "Provided that nothing in this clause shall prevent the state from enacting a law requiring a citizen to participate in compulsory service for the public purpose." This Clause demanding compulsory service is in direct violation of individual privacy. Some countries have this provision as part of penal law. The courts award mandatory public service for some crimes in these countries. Is this the case here?

A democratic constitution ought not to impose upon the individual. It should not provide leeway for arbitrary interpretation of law. But clearer is the requirement to give up privacy in Article 52 (c). It is the duty of the citizen to "compulsorily enlist when the nation needs the service." This is forceful conscription, pure and simple. Collate this with the incorporation of the term "enemy state" in right to justice provision. Does it mean that the constitution envisions war with another state requiring all citizens to contribute their labor in war effort? What about Nepal being a zone of peace?

Continuing with the constraints on individual liberty, Article 28 defines that "no person shall be put to preventive detention without sufficient grounds for the existence of immediate threat to the sovereignty and integrity or law and order of Nepal." This means that a person can be put in preventive detention when the state furnishes sufficient grounds. Rallies and mass demonstrations, parts of democratic practices, against an unpopular ruler can be taken as threat to sovereignty and law and order by the ruler to put demonstrators in preventive custody and curtail minimum rights. It happened during Indira Gandhi's rule of emergency in India and the constitution was misinterpreted by legal eagles close to the regime to justify authoritarian rule. The same can happen here.

These concerns are relevant in the sense that there are demands of directly elected executive. This demand stems from the desire to see the country ruled by executive fiat. Sick and tired of ill practices of parliamentary democracy where horse-trading, floor crossing and illegal inducements to parliamentarians to form or topple the government were a norm, people during the constitution feedback campaign might have demanded directly elected executive (although the demanders may have been brainwashed by party apparatchiks). People might be thinking that a charismatic and strong-willed leader can come down hard on anarchy and steer the country in the path of prosperity and development.

But there is no guarantee that there will be stability in the country after a directly elected executive assumes power. The executive has to be accountable to the parliament and in the situation when the executive's party fails to win comfortable majority in the parliament, his/her moves can be blocked. Frustrated with this, demands to declare parliament null and void could emerge. Without check and balance against executive overreach, there is every chance of an authoritarian rule. Given the country's geo-strategic position, sovereignty can be put in peril by an authoritarian ruler. Rather than this elitist demand, fostering inclusivity and strengthening state institutions will ensure Nepal's development.

The chattering class loves to give the example of Singapore's charismatic leader Lee Kuan Yew who transformed a backward country to become a developed one and dream of a similar leader here. But they seem to forget that Lee alone couldn't have done anything and he had capable assistants and, more than that, strong institutions to bring about change. Given the sorry state of our institutions, an authoritarian leader is likely to foster bad practices rather than change them for the better.

Matt Andrews, Associate Professor of Public Policy at Harvard University busts the myth of hero-worship in underdeveloped country like ours by saying, "It is disempowering to see leadership as something that demands waiting for special individuals to do special things. It is empowering to see leadership more empirically; as something that emerges in certain contexts and manifests in multiagent groups."

The proposed constitution cannot be given the benefit of doubt that it is a document of compromise. None of the stakeholders is happy with the statute. Cosmetic changes after the incorporation of public feedback might be made but that would not ensure its longevity. It would be unfortunate if the constitution has to be scrapped after another 10 years. After all, it has been hastily prepared to facilitate change in power. That is why it lacks any vision. Therefore, rather than promulgating this ill-conceived constitution that can give birth to authoritarianism, it would be better if the country waited for a better document prepared with great care.