On Monday I’ll be in Nepal attending the Institute for Rights and Development hosted by CREA. I’m looking forward to this though it will take a lot of traveling to get there. (I leave on Saturday morning to go to Albany to snoop on Spitzer, just kidding. Gotta do a speaking gig come back to the city and head out to Kathmandu via JFK, Dubai and Delhi).
In 2005, I met Sunila Abeysekara in Sri Lanka and she took me under her wing for a couple of days and exposed me to her undeniably rich knowledge, sad stories of conflict and perserverance of the human spirit to fight for justice. In preparation for the IRAD in Nepal, I was sent this article that I found so very, very interesting. Commie indeed.
Issues of Governance, Democratisation and Human Rights: Reflections on South Asia in 2003[1]
The south Asian sub-continent is vast and diverse in terms of its peoples as well as in terms of the structures and institutions of the modern nation states in the region. Nevertheless, centuries of shared history and culture as well as the common impact of the British colonial regime make it possible to consider the region as a whole, especially in attempting to discern primary trends in terms of political, economic and social developments. The political, economic, social and cultural connections between the different nation states of the south Asian region have existed through history, in both the formal and informal arenas. In more recent years, the formation of the South Asian Association for Regional Cooperation (SAARC) has led to a number of regional initiatives on trade and travel, as well as on the creation of SAARC Conventions on a number of cross-border issues such as trafficking in persons. However, the weakness of the SAARC formation is clear both in terms of its own inability to proceed with business as usual in the face of political turmoil in one country or the other, as well as in terms of any comparison with ASEAN (Association of South East Asian Nations) which has emerged as a powerful economic and political bloc at the international level. In this context, this note attempts to raise a few general questions within a framework of concerns that have emerged in the region as a whole in relation to issues of governance, processes of democratisation and protection of human rights, while understanding the specificities of each country and society that defy any such attempt at generalization.
The global rhetoric on ‘good governance’ and ‘democracy’ has been disseminated throughout south Asia as in most other parts of the southern hemisphere using a range of governmental, inter-governmental and non-governmental agencies at the national, regional and international level. The stated objective of the exercise has been to encourage the creation of systems of government and governance which would ensure a process of sustainable development within a stable political, economic and social environment. This would be achieved through the use of mechanisms such as participatory and consultative processes of decision-making in which issues of equality, dignity and representation would be addressed. It was also expected that corruption and criminality within structures of government would be drastically reduced, if not eliminated, through the process, which placed great emphasis on the twin factors of accountability and transparency in decision-making.
Aid-giving governments and donors have put pressure on governments throughout the southern hemisphere to prove their commitment to ‘good governance’ and ‘democracy’ through the implementation of a number of measures in which the conduct of ‘free and fair elections’ has been given primacy, sometimes to the detriment of much-needed focus on the independence of the judiciary and of law enforcement mechanisms, the freedom of expression and association and respect for principles of non-discrimination and human rights. Using trade and aid embargoes and conditionalities as well as applying pressure in many multi-lateral fora such as the UN and the World Trade Organization, aid-giving governments as well as inter-governmental and international agencies and institutions have manipulated all the means at their disposal including forms of subtle and not so subtle coercion to compel southern governments to confront and deal with issues of governance and democratization as framed by those wielding power and control over finances and resources worldwide. In the course of this exercise, unfortunately, the nuances of power politics in the southern countries themselves have been ignored, often resulting in situations of social and political instability, and sometimes even in chaos and anarchy.
In the early 1990s, most of the south Asian states supported the position advanced by Malaysian Prime Minister Mahathir Mohamed, on a specifically ‘Asian’ set of values with regard to human rights in which economic prosperity could be ‘traded off’ against the enjoyment of certain civil and political rights. This formulation responded to the need of states to take action with regard to growing poverty while not losing their own hold on power. Thus, there was an era in which ‘poverty alleviation’ and ‘poverty reduction’ were to be achieved at the cost of increasing authoritarianism and reductions in freedoms such as the freedom of expression and association. The false dichotomy of individual rights (largely contained within the rubric of civil and political rights) and collective rights (such as the right to employment with protection and the right to basic social services) provided the basis for this formulation. However, this division of rights into separate categories was soundly contested by academics and activists throughout the world, for example, at the World Conference on Human Rights in Vienna in 1993.
During this period, aid-giving governments, donor agencies and the UN system including the UN Development Programme all shifted from a single focus on economic growth to a focus on multiple issues of human development. The proposition of ‘development with a human face’ expanded to an understanding of the significance of using a rights-based approach to development, of working for the empowerment of marginalized communities and of understanding poverty as a violation of human rights. Some of this rhetoric filtered through to the south Asian states and one finds language regarding human rights and a rights-based approach in many documents and programmes on sustainable development designed and implemented by the state and by non-state agencies.
The situation on the ground in most south Asian states, however, reveals a lack of emphasis on a human rights framework by the state and its various agencies in terms of decision-making and implementation of many economic and social rights, and an absence of understanding of the concept of entitlements when it comes to issues of housing, food and access to potable water and sanitation. When confronted with issues such as the justiciability of economic and social rights, or the definition of the minimum core content of the right to housing or food, it seems that both state and non-state agencies are as yet not confident with using a rights-based framework and opening themselves up to a range of claims on the basis of entitlement.
There also seems to be some doubt as to whether democratization is an essential pre-requisite for sustainable development, and as to whether allowing people to make choices about their lives is the best way to move forward to ensuring empowerment and development for the society as a whole. Old arguments about needing to provide basic needs to people as a priority, lead on to justification of authoritarianism in the new context. The economic and political imperatives framed by the international financial institutions are also a part of the present debate on democratization and ‘good’; governance. Although terms such as human rights and the feminization of poverty have entered their vocabulary, their primary focus remains on economic growth and political stability at the global level, achieved at whatever cost to the citizens of any one country.
Civil society organizations actively working for the promotion and protection of human rights and for social justice in their own communities and nations in south Asia have themselves been active in incorporating some of the conceptual framing of issues of governance and democratization in order to advance their own agendas of popular education and the promotion of people’s participation in decision-making processes. Through their work for peace, social justice and democracy on a wide range of platforms, and across communities and social sectors, many of the new social movements that have emerged in the sub-continent over the past three decades have incorporated human rights concepts and frameworks into their analysis as well as their practice. Using election monitoring as a stepping stone to raise civic awareness among communities of marginalized people, training rural groups to monitor the expenditure of their local government authority and to analyse budgets, supporting legal aid and awareness programmes that help victims of violence and injustice to seek redress through legal means, many social movements and activist groups have raised issues of accountability and transparency at all levels of government and strengthened citizens to ask questions and demand answers from those who wield power and control over authority and resources. The focus on the right to information which has been a critical demand in all the south Asian societies over the past decade bears testimony to this new and heightened sense of the people’s right to know and to question their rulers.
As the year 2003 begins, south Asian states face, separately and together, a series of challenges to democratic institutions and to the principles of sustainable democracy in general. On the one hand, in each of the countries except Bhutan and the Maldivian Republic, there are internal and inter-state conflicts. Issues of ethnicity, religion, language and caste all play a pivotal role in defining the nature and form of these conflicts within each of the countries. On the other hand, the conflicts are all also, in one way or the other, manifestations of the failure of democratic institutions to guarantee human rights and freedoms to all communities on the basis of equality. Responses to these conflict situations by south Asian states have also been almost uniform in their anti-democratic approach, creating special laws that undermine already existing human rights standards and norms and creating conditions of impunity that strengthen the hand of law enforcement agencies including the security forces as well as political actors.
In India, the victory of the BJP in state elections in Gujarat in the aftermath of barbaric acts of anti-Muslim violence raises a series of questions about whether the conduct of a free and fair election alone is sufficient to guarantee the existence of democratic institutions and respect for human rights and fundamental freedoms for the entire population. In addition, a series of struggles for autonomy and independence in the north-eastern states of India continue to pose a threat to the power of the central state. Continuing violence in Kashmir keep tensions between the neighbouring nations of India and Pakistan on the boil. Pakistan is caught between the conflict in Kashmir, and the ‘war against terrorism’ being waged in Afghanistan and in parts of Pakistan. In Nepal, political tensions and violence in the face of the so-called ‘Maoist’ insurgency has confronted the government, state institutions and Nepali society as a whole with an unprecedented crisis. In Bangladesh, political tensions between mainstream political parties as well as interventions by extremist religious groups are destablising democratic practice and institutions. In Sri Lanka, tentative attempts to bring about a negotiated solution to the ethnic conflict that has destroyed the island for over twenty years is challenging the nature of the post-colonial Sri Lankan state and the structure of its democratic institutions in a manner that calls into questions many of the principles enshrined in its Constitution and legal systems. It is only in the Maldivian Republic and in the kingdom of Bhutan that some degree of normalcy seems to prevail. Yet, even in those two countries, there are serious issues of representation, participation in decision-making and respect for human rights that deserve attention.
The barbaric nature of the conflicts that have riven the sub-continent is evident in any examination of the modern history of south Asia, even if one merely looks at the history of the post-1947 period, at the Partition of India and Pakistan, the war of Liberation of Bangladesh, the ethnic conflict in Sri Lanka, the struggles of the peoples of the Chittagong Hill Tracts of Bangladesh and of the Nagas in the north-east of India. The context of the conflicts enable, and ‘normalize’, the gross abuse of human rights and inhumane brutality on all sides of the conflict. The erosion of democratic structures and institutions is an inevitable consequence of such a situation. Examining the situation as it exists, one sees clearly how many elements of violence, brutality and authoritarianism have become inevitably a part of ‘normal’ life in south Asia. Even as we try to move away from conflicts and seek lasting and sustainable responses to the root causes of the conflicts, the anti-democratic nature of the conflict plays a critical role in shaping the nature of what is to follow in terms of the structures and institutions that are created in the aftermath of the conflict. Thus, reworking the contours of the ‘resolution’ so that processes of participation as well as of reconciliation and healing become embedded in the new structures and institutions remains a critical challenge in the region.
In the south Asian region, we have in the past years observed a number of attempts to resolve conflicts through processes of negotiation. A variety of forms of power-sharing have evolved as a result, as have commitments to pluralism and consideration of issues of diversity within a framework of non-discrimination. In the Chittagong Hill Tracts, for example, the conflict was formally resolved through a series of negotiations that gave some power to the tribal communities; however, the implementation of the terms of the resolution in a manner that guarantees the equal rights of the tribal communities of the CHT area as full citizens of Bangladesh remains an issue. In Sri Lanka, the process of negotiating a settlement to the ethnic conflict is under way at the moment. Both the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) are considering new forms of the nation-state, including a federal system of government and a high degree of autonomy to the regions. In Nagaland, some leaders of the autonomy movement are about to enter into discussions with the government of India. Once again, the degree of autonomy to be granted to the Naga people will be the main item on the agenda of discussions. The contiguity of the northern states with Burma and Bangladesh also lead to a series of regional issues.
In addition to the increase in social instability and violence and economic devastation that has been wrought by the continuing conflicts in the south Asian region, we can also observe the impact of the undermining of democratic principles such as the freedom of expression and dissent and democratic institutions such as the free press and the independent judiciary. Censorship and a wide range of restrictions on publishing and broadcasting, a high level of tolerance regarding violence against media personnel including murder and a general surveillance of citizens have all been a part of the package of confronting dissent as designed and implemented by state authorities. Threats and intimidation of judges and lawyers as well as authoritarian and centralized procedures for appointments to the judiciary have laid bare the myth of an independent judiciary in many situations. Politicisation of the security forces and the law enforcement agencies including the police, and the creation of special units within the security forces - such as Special Task Forces - that have the authority to operate outside of existing frameworks of control and discipline have eroded confidence in the safeguards against arbitrary arrest and detention, torture and extrajudicial killings. In this context, public confidence in the human rights guarantees set out in the Constitution and in law has been severely undermined. While the establishment of special agencies such as national Human Rights Commission, Ombudspersons, Committees on Women, on Indigenous Communities, on Minorities has created a certain space within which the injustice suffered by civilians and citizens could be addressed, issues of autonomy and independence of such institutions continue to emerge in this connection.
However, the issue that has emerged as being at the root of conflict in south Asia and that poses the most salient threat to ‘democracy’ in the south Asian sub-continent is the very nature of the democratic system that was inherited from the British colonial regime. Inherent in the Westminister model of Parliamentary democracy was the principle of majoritarianism: the power of numbers. Being more in number became in itself a virtue in this system, and issues of non-discrimination and equal representation of minorities were disregarded in spite of rhetorical commitments to pluralism and multiculturalism. Constitutional guarantees of equality were supplemented by various systems of affirmative action such as the imposition of quotas for women, backward caste groups and tribal communities in public service and in public office. However, the writing in of these categories of disadvantaged persons into the legal structures and institutions in itself constituted a basis for further enhancing their marginalization from mainstream public and social life. While some level of ‘token’ representation and participation was visible, and reflected in the data, in fact the social and political marginalization of these groups has not been deeply affected by these state actions and interventions. Addressing issues of discrimination and equal treatment, equal access and equal opportunities for all peoples living within each of the south Asian nation states remains, therefore, an area in which much remains to be done in the sub-continent.
At the same time, due to the numbers of persons who are rendered homeless because of conflicts and development-related displacement, as well as fairly easy cross-border migration and trafficking processes, fairly large numbers of south Asians presently live in each others’ countries. Sri Lankan Tamils living as refugees in southern India and Bhutanese living as refugees in Nepal are among the few groups formally recognized and therefore protected by international law and cared for under the auspices of the United Nations High Commissioner for Refugees (UNHCR). Most migrants within south Asia are without such protection or legal rights. Negotiations between the south Asian states regarding ways and means of guaranteeing the rights of one’s own citizens living in neighbouring countries while also pledging those same guarantees to non-citizens living in one’s own country are critical to long-term democratization in the region.
The deep-rooted structures of hierarchy and subordination that are supported by religion, custom, tradition and culture in the south Asian region will sadly continue to pose a major obstacle to modernity and to all attempts to move into a more egalitarian and just social order. Caste, which ordains one’s position in the social hierarchy according to your birth, remains the most unacceptable and reprehensible forms of social stratification in the world and is still very prevalent in most parts of south Asia, in some to a greater degree than in others.
The inter-sectionality of discrimination and exploitation based on caste, tribal or ethnic origin, religion, language and class has evolved in a very specific manner in the south Asian region, buttressed by traditions and customs that call for the acceptance of these forms of discrimination and oppression as being pre-ordained, unchangeable and intrinsic to one’s way of life. Many people living in south Asia accept these structures of subordination and hierarchy, and flinch at the thought of opposing them and eliminating them. The fact that these pre-modern social formations have coalesced well with the modern structures of majoritarian democracy give them more power and sustainability in contemporary south Asia. Those who do demand their equal place in society are punished most brutally; stripping and parading of women, killing and burning alive, hounding out of villages are all a part of the extreme forms of violence and punishment meted out to those who transgress the boundaries of social stratification and hierarchy.
New areas of identity-based demands for representation and participation continue to emerge within the region. Single women, female heads of household, indigenous people, people living with HIV and AIDS, commercial sex workers, gays, lesbians, bisexuals and transgendered persons all come forward to claim their own place within the political and social arena, challenging social mores and norms and moving the debates on human rights and non-discrimination forward.
The historical tolerance of the use of violence and coercion as a means of keeping people within the boundaries ascribed to them by virtue of their birth and pre-ordained social status in turn leads to a high level of tolerance of human rights abuse and violations of the most fundamental of rights and freedoms in the modern world. One’s ability to challenge these vestiges of pre-modern social formations thus becomes a significant factor in whether or not democratic human rights praxis in terms of equality, representation and people’s participation in decision-making is going to be a reality in the south Asia of the 21st century.
[1] Based on a discussion paper prepared for a South Asia Civil Society Consultation organized by the UN Office of the High Commissioner for Human Rights in Katmandu, January, 2003
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