The aim of both human rights and federalism is to end inequality and ensure equitable access to resources and representation

by Dipendra Jha

Human rights and federalism are often used synonymously. Both seek to end inequality in society and the domination of one group over others in matters of access to state resources, representation in state organs and the protection of rights to nationality. However, the projection of human rights in Nepal seems to be anti-federal and thus, is contradictory.

Johannes Althusius, who is recognised as the ‘father of federalism’ in Europe, introduced the idea of federalism as against domination and injustice. Anti-federal elements all over the world argue that federalism will weaken human rights. However, Justice Stephen Breyer of the United States Supreme Court has argued that adopting a dynamic federalist model can help realise the implementation of human rights treaties.

The first articles of the basic international instruments of human rights—the International Covenant on Civil and Political Rights 1966 and the Economic, Social and Cultural Rights—ensure the right to self-determination. Both these human rights instruments stipulate that every citizen has the right to be ruled in an autonomous way through their own socio-economic and political doctrines.

The permanent establishment of Nepal (PEON), who adopt a partial meaning of human rights, seems skeptical of an autonomous federal structure in Nepal but whenever the Gorkhalis of West Bengal in India agitate for a Gorkhaland state, the PEON links that movement with human rights. They might have a soft corner for Indian Gorkhalis because their demand for a separate state is based on the hill identity. The Gorkhaland movement gets greater space in the Nepali media but when it comes to the issues of carving out federal units in Nepal on the basis of identity, the Nepali media first attempts to downplay it and when it fails do so, gives prominent space to the arguments of anti-federal leaders and scholars.

The major thrust of human rights is to maintain equity or substantive equality. Rule from the centre, a power structure that promotes the hegemony of certain groups over others and the unequal distribution of resources, is against the principle of human rights. Thus, federalism is the only way to promote and protect human rights in the Nepali context.

The National Human Rights Commission is seemingly ineffective in covering human rights violations in remote areas such as the southern Madhes and the Karnali region. Take the recent example of the August 9 incident in Sarswar, Siraha where a large number of Hindus attacked local Muslims over the alleged teasing of some female Hindu pilgrims by local Muslim youth.

Hindu fundamentalists and criminal elements infiltrated the mob, which was the reason a minor incident was blown out of proportion to take revenge on minority Muslims for political interests. Similarly, two dozen locals were injured in Manpakadi, Rupandehi on August 18 when police beat up locals, alleging the illegal extraction of river resources. In both cases, state agencies failed to protect the rights of the minority.

Federalism can assure a quick and practical response to these types of communal tensions and the excessive use of force by police. The state human rights commissions, state women commissions, state Muslim commissions and state police service commissions can easily check these types of power abuses. The state police commission, with the mandate to monitor the professionalism of police personnel from the time of recruitment to retirement, can conduct behaviour checks on personnel and thus be more effective in a federal set up where the protection of human rights can be realised at the VDCs level in a practical manner.

The Nepali judiciary, with a centralised power structure, is almost failing to deliver justice on time. Gulav Devi from Dhanusa, Ghodghas, who was abused on allegations of practicing witchcraft on October 5, 2008, is still awaiting justice. The Janakpur Appeals Court endorsed on April 6, 2010 the Chief District Officer’s decision to provide Rs 65,000 compensation to her from the perpetrators. Now the case is in the Supreme Court and she is unable to receive updates on her case as Kathmandu is very far for her. Gulav Devi has been waiting for five years to get Rs 65,000. She is just one example; there are many others in similar circumstances. And justice delayed is justice denied. A state level judicial structure can deliver justice on time without requiring that poor victims travel long distances from home. All power of jurisdiction over civil and criminal cases can be given to the State High Court, except for the power of review, which can be given to the national Supreme Court.

Similarly, how can one believe that Madhesis can pass the Public Service Commission (PSC) exam by travelling three times to Dhankuta, Dipayal, Doti, Pokhara, Surkhet and Kathmandu. The headquarters of all the five regional offices of the PSC are in these hill districts. Similarly, many zonal PSC offices are in the hills like the Sagarmatha Zonal Office in Khotang, Dhaulagiri in Baglung, Karnali in Jumla, Rapti in Dang and Narayani in Hetauda. This structure can easily be called communal as it serves the interests of the hill people and ignores those of Madhesis. It is a tool of domination and a violation of the rights of Madhesis as it hinders their participation in the state. This can also be remedied in a federal structure. Similarly, Madhesi women hardly travel to far flung areas without being accompanied by family members and as all PSC offices are located in hill districts, many women are discouraged from filling up forms for government jobs.

Can human rights justify these hurdles to the PSC? If not, how can one say that federalism will weaken human rights. The full-fledged protection of human rights cannot be possible in the absence of a federal structure. The Universal Declaration of Human Rights guarantees the right to nationality, language, culture and political participation in governance. Marginalised communities cannot avail of these rights in the absence of a federal structure.

Similarly, cases of citizenship fraud can be easily checked through state level mechanisms of a state citizenship commission. Such commissions can discern between genuine and fraud cases.

If the existing police, human rights and justice systems are kept intact in federal set-up, there will be no difference in the current centralised power structure and the federal set-up. So federal political parties should include these justice mechanisms in their election manifestos. A discussion on the Terms of References of state level mechanisms is important to enforce rights while balancing popular sovereignty.

It is hard to address impunity in Nepal if it is not linked to the devolution of governmental power to sub-national constitutional entities. Human rights can be stronger in a federal structure, like in the US where federalism made possible the end to slavery.

Jha is an advocate at the Supreme Court

Source: EKantipur – 02.09.2013