Arun Kumar
The success of the institution of Lokpal will depend on limiting its scope to the very top of the hierarchy. That will make it manageable and lead to accountability down the line.
The drafting of the Lokpal bill is back in the news after the round of Assembly elections. The co-chairperson of the high-power committee involved in the drafting has said that progress is slow and that the June 30 deadline is likely to be missed. Some civil society groups made suggestions on what the Bill should contain. The chairperson of the drafting committee responded with alacrity, sensing an opportunity to let the government have its way by claiming divisions in civil society.
Apparently, important differences remain between the representatives of civil society and the government, especially with regard to bringing the Prime Minister and the members of the higher judiciary under the purview of the Lokpal. Two issues arise: how important is their inclusion; and will missing the June 30 deadline by a few months to get a good Bill in place make a big difference, given that the Bill has been pending for 42 years?
If it is indeed the magic wand that will eliminate corruption rightaway, then it is urgently needed. Those in favour of the Lokpal suggest that it will check the vested interests that are spreading corruption in society. But they are not able to convince the doubting Thomases who argue that it can neither be the panacea for all ills nor can it root out the endemic corruption in society in one go. The sceptics, who have often been in the forefront of the fight against corruption, need to be differentiated from the vested interests which have been stalling the Bill for their narrow ends. The sceptics are not for needless delay but want prioritisation of the steps to fight corruption.
The Lokpal is presented as a watchdog for the corrupt system. What has the experience been with the many watchdogs that are already in place? There is the Central Vigilance Commission to oversee the functioning of the investigative agencies, but we know that it has been largely ineffective. We have the Election Commission to see that elections are conducted in a fair manner, and it is seen to be successful. But the political system as a whole seems to be only getting more corrupt than before. There are the legislatures, which are meant to be accountable to the citizens and oversee the nation’s functioning. But the country is witness to the growing criminalisation and the penetration by money power among their members. The judiciary is supposed to see that justice is done — which is but another form of accountability. But increasingly, judges at different levels have been accused of corruption. There are the lesser watchdogs, like the intelligence agencies and the regulatory bodies, but they too have been accused of a growing degree of corruption. Given all this, can there be a perfect Bill that will somehow insulate the Lokpal against the corruption in society?
Today, illegality is widespread in society. It affects almost all social, political and economic aspects of life. Tackling illegality is the most urgent task. Thus, while the Lokpal may not be the one thing on which all attention needs to be focussed, it is perhaps the most important step in the drive against corruption.
It is not that the nation does not know what should be done to deal with the black economy and the associated illegality. Since the 1950s, there have been dozens of committees and commissions that have gone into aspects of it. They include the Kaldor Report (1956), the Santhanam Committee (1964), the Wanchoo Committee (1971), the Dagli Committee (1979), the NIPFP Report (1985), and the Kelkar Committee (2002). Then there are the reports of Estimates Committees, the Comptroller and Auditor General and the Public Accounts Committees.
The reports contain thousands of suggestions — and hundreds of them have been implemented. These include the reduction of income tax rates (from 97.5 per cent in the highest bracket in 1971 to the present 30 per cent), elimination of many controls (relating to monopolies and restrictive trade practices, foreign exchange regulation, licensing, trade controls, and so on), demonetisation of currency, voluntary disclosure of income, issue of bearer bonds, acquisition of undervalued property, introduction of value added tax, and so on. Yet, the size of the black economy has grown.
Various movements against corruption (such as the ‘Nav Nirman’ in 1972) or changes in laws (such as the introduction of the Right to Information) and the corresponding steps to fight corruption have been thwarted or diluted by the corrupt. People have often been disappointed by these failures and have become cynical. Yet, they have periodically reacted with positive outcomes. The subversion of steps to curb the black economy and the associated corruption is engineered by the ruling elite consisting of the triad of corrupt politicians, businessmen and the executive. Since they make huge incomes through the black economy, they have little incentive to curb their own illegality by checking that economy.
Can there be a perfect law that cannot be subverted? No such legislation has fully solved the problem it set out to resolve. The Indian Constitution is often praised, but it has had to be repeatedly amended and there have been problems. In practice, a law has seldom turned out to be as it was drafted on paper. Human ingenuity is such that it finds loopholes to subvert the law, for the spirit is not willing. Will the same fate meet the Lokpal Bill?
Take the law which is meant to prevent the crooked from deliberately letting their cheques bounce. Or the one that allows for the summary trial of cases where a signed lease exists and where the tenant does not vacate the property automatically when the lease ends. Today, lakhs of cases relating to these provisions are pending in courts because the courts allow delays. The crooked then cock a snook at the law while the honest go on the back foot. This happens because there is lack of accountability among judges — if a case drags on, who are they answerable to? The party that suffers due to delays cannot take a tough stance for fear of antagonising the judge.
How can accountability be built into the system? The judges can be accountable to either their conscience or to a higher authority. Today, greed and decline of morals have made the former a rare commodity. In the case of the latter, the chain ends with the Chief Justice. If he demands accountability, it would percolate down. Similarly, if the Prime Minister and the Chief Minister demand accountability, the entire administration will follow suit.
Conversely, even if the Prime Minister or the Chief Justice is honest but practises non-accountability and arbitrariness, that spreads downward and corruption grows. Information about wrongdoings in high places is collected by the intelligence agencies, but is not acted upon. Such inaction will no more be feasible if the Lokpal Bill brings the Prime Minister and the Chief Justice of India under its ambit.
But can it bring about accountability in the political process, something elections have failed to do? Some doubt it, since the appointment of other constitutional authorities has run into controversies and that could happen in the case of the Lokpal too. How can the honest get to the top when corruption is endemic, except by accident?
Be that as it may, the surest way to subvert the Lokpal is to make the institution widely applicable to all manner of corruption. It will get embroiled in all kinds of wrangling and become like the courts, choked with cases. India has enough laws that can curb corruption at various levels, provided there is implementation; only accountability can ensure that. Thus, it is critical that those higher up in the hierarchy demand accountability from those under them. The buck would only stop end at the top — with the Prime Minister and the Chief Justice of India at the Centre and the Chief Minister and the Chief Justices of High Courts in the States. That is what the focus of the Lokpal (and the Lokayukta) should be. Even then, without pressure exerted through public movements, the Lokpal can get subverted.
In brief, in the last six decades, many steps have been taken to curb the growing illegality but these have not delivered results due to lack of accountability in the system and the decline of self-regulation since greed has been placed on a new high pedestal. It is argued that the setting up of a Lokpal is not a magic wand to eliminate corruption but an important step towards that end. However, its success will depend on limiting its scope to the very top: that will make it manageable and lead to accountability down the line. Then only will laws be followed both in letter and spirit and become meaningful.
(The author is with the Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University. E-mail: [email protected])
The drafting of the Lokpal bill is back in the news after the round of Assembly elections. The co-chairperson of the high-power committee involved in the drafting has said that progress is slow and that the June 30 deadline is likely to be missed. Some civil society groups made suggestions on what the Bill should contain. The chairperson of the drafting committee responded with alacrity, sensing an opportunity to let the government have its way by claiming divisions in civil society.
Penniless in Saudi Arabia, Chutuk Bahadur Tamang of Sindhupalchowk is languishing in a jail in the foreign land since Mar 23 after his employer betrayed him, his family members have said.
Tamang, who had been working as a trailer driver for Abdullah AM Al-Khodari Sons Co for two years, reportedly caused damage to a car on Dec 1, 2010 accidentally while driving the company’s trailer.
As the company did not pay the compensation amount to the vehicle owner as agreed, Saudi police took Tamang into custody, who was eventually sent to the Saudi Arabian central jail.
A word that has been used so often that its meaning has been blunted – now it causes no reaction and creates little interest, let alone concern. And yet it is present in every part of the numerous systems and institutions through which society functions; in our municipal bodies and in practically all public agencies that issue permits or licences or no-objection certificates or, for that matter, any certificates of any kind.
It exists in hospitals, educational bodies and in the very systems meant to prevent it and apprehend those who are guilty of it. It exists, as we have sadly discovered, in our armed forces, even at very high levels.
On May 9, in a significant ruling, a two-judge Bench of the Supreme Court comprising Justices Markandey Katju and Gyan Sudha Mishra held that honour killings came within the rarest of rare cases deserving the death penalty. The Bench delivered the ruling while upholding the life sentence of a man for killing his daughter as she had “dishonoured” the family.
“It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilised behaviour. All persons who are planning to perpetrate honour killings should know that the gallows await them,” the court observed.
Gopal Krishna Siwakoti
The political transition process underway in Nepal presents a unique opportunity to put the principles of democracy and human rights at the heart of the constitution-making endeavour. The peoples’ representatives in the Constituent Assembly have uncompromising obligation to draft a new constitution without mortgaging off the principle of non-discrimination among Nepali people. The enjoyment of all human rights by all is an absolute right, and cannot be made relative in the pretext of so-called cultural, social, economic and geo-political relativism.
Nepal is a signatory to most major international conventions on human rights, yet serious weaknesses are found in state organisations with functions requiring respect for and adherence to international norms and national human rights laws. Both the police and military have by and large failed to penalise human rights violations within their ranks. This reflects a combination of many factors, including impunity and the non-adherence to the rule of law. Weak institutional capacity in state organisations to address rights abuses is the crux of the problem. Unfortunately, there still exists a thinly-resourced and structured internal investigation/human rights cell within security organisations resulting in poor investigation, documentation and enforcement capacity.
Impunity is deeply entrenched as an age-old bureaucratic and political culture with regards to human rights violations committed by the state. This has included misguided attempts by political masters to protect police and military officials as well as non-state actors accused of violations, perhaps out of fear that a thorough investigation of violators would weaken these institutions. Other motives for not meticulously addressing the problem of human rights violations, including corruption within the organisations, are linked to the political manoeuvring of cases due to nepotism, dealership, partisanship, appeasement and deception.
In the current transition, addressing the problem of impunity has proven particularly difficult, as human rights violators are protected due to powerful political interests in the public sector, as well as corrupt elements of political society and the private sector. Meanwhile, the atrocities of non-state actors during the decade-long conflict resulting in killings, maiming, torture, abduction, forced conscription and confiscation and destruction of public and private property have often gone unpunished. Moreover, many post-conflict splinter groups are complicit in the criminalisation of politics thus, making the transition painfully protracted. Much progress has been made since the early 1990s in putting in place a strong legal framework to advance democracy and protect human rights in Nepal. The country has also become a party to many of the international conventions that protect the rights of women, children, dalits, ethnic groups and other vulnerable groups. The Interim Constitution also has paved a progressive path towards the respect of human rights especially in the area of economic, social and cultural rights. However, implementation and enforcement of this generally strong legal framework remains uneven. State officials and major public figures are not generally held accountable nor are habituated to rule of law. Public respect for rule of law is significant, and so there is some degree of outrage at the impunity enjoyed by the political and economic elites.The respect for rule-of-law shown by the average citizen is not always shared by senior political leaders and powerful special interest groups.
Nepal has recently emerged from of a monarchical regime based on a particular age-old socio-political order and is in the process of moving towards a pluralistic and democratic era based on the ideals of social inclusion, egalitarianism, justice, human rights and progressive social transformation. The relatively peaceful popular movement of 2006, followed by the formation of the long-aspired to CA have been vital in changing a political and social culture unfriendly to human rights.
The constitution-writing process has proposed significant action with regard to human rights, but some of the contentious issues that characterised it—primarily the integration of the Maoist army, determining the model of state restructuring, transitional justice mechanisms, and the form of the government may continue to dog the next stages. Addressing the high magnitude of structural violence in the form of social injustice, discrimination, denial of justice, deprivation, absolute poverty and systematic marginalisation will be no mean feat. The Parliamentary Declaration concerning women’s quota-based reservation, proclamation of Nepal as an “untouchability-free and a secular nation” are some of the historical achievement towards ending discrimination at the political level. However, the political commitments are yet to be reflected in the constitution, laws, and policies and, more prominently, in practice.
While it is vital to make the state accountable for human rights violation, it is also important to develop human rights benchmarks in the new constitution. The constitution-making process is going to be a daunting challenge in terms of incorporating various rights-based demands being raised from different sections of society. The conventional understanding of human rights may fall short of aspirations of traditionally marginalised sections of society, particularly in the realm of self-determination and inclusion. A wider public discourse is vital to narrowing down the debate and reaching commonly accepted principles without compromising internationally accepted rights norms and values.
A human rights-friendly constitution should contain a doctrine of social values on which there is consensus. It should be short, unambiguous and universal. It should enshrine a political system that is fair, liberal and best suits the values, history, and aspirations of the people. There should be no room for flip-flopping on issues of secular principles and respect for the liberties, rights, pluralism, and dignity of the people, along with a guarantee of freedom of access to information and expression. Along with transitional
justice mechanisms, the establishment of a constitutional court would hold leaders accountable. The provision for public opinion polls will also be vital to gauge the mood of the people. The constitution is inevitably going to be a compromised document, but any kind of bartering on rights, freedom and dignity must be met with steadfast opposition.
Siwakoti is the President of INHURED International
The political transition process underway in Nepal presents a unique opportunity to put the principles of democracy and human rights at the heart of the constitution-making endeavour. The peoples’ representatives in the Constituent Assembly have uncompromising obligation to draft a new constitution without mortgaging off the principle of non-discrimination among Nepali people. The enjoyment of all human rights by all is an absolute right, and cannot be made relative in the pretext of so-called cultural, social, economic and geo-political relativism.
Nepal is a signatory to most major international conventions on human rights, yet serious weaknesses are found in state organisations with functions requiring respect for and adherence to international norms and national human rights laws. Both the police and military have by and large failed to penalise human rights violations within their ranks.
By Sudeshna Sarkar
KATHMANDU, May 26, 2011 (IPS) – With the May 28 target for a new constitution approaching and Nepal’s coalition government admitting it would not make the deadline, women are pushing for rights they want enshrined in the document.
The campaign made them bear the brunt of a government ban on demonstrations around parliament announced on Tuesday, ahead of a critical ballot battle between Prime Minister Jhala Nath Khanal and the opposition parties with the beleaguered premier seeking one more year to draft the new constitution.
The National Dalit Commission (NDC) and the United Nations Human Rights Office of the High Commissioner in Nepal (OHCHR-Nepal) have welcomed the passage of the Caste-based Discrimination and Untouchability (Crime and Punishment) bill from the Legislature Parliament.
Issuing a joint press statement Wednesday, NDC and OHCHR said, the passage of the bill is a positive step towards elimination of caste-based discrimination and urged to further strengthen it to improve some shortcomings including the potential misuse of the provision that penalises complainants in cases where the complaints are not substantiated.
Most schools in remote areas of Rukum district are closed due to the shortage of textbooks.
Schools in Hukam, Maikot, Kol, Taksera and Rangsi VDCs of the district are shut for months citing unavailability of textbooks.
As a result, students are deprived of their right to education and they are staying home helping their parents in household works.
Some students who can afford to go to schools in neighbouring VDCs and the district headquarters are doing so.
RAJENDRA PHUYAL
Four lawmakers, who were obstructing the Legislature-Parliament session for a long time, have withdrawn their protest on Sunday, after forging an agreement with top leaders of the major political parties and House speaker.
Lawmakers Bisendra Paswan of Dalit Janajati Party, Buddha Ratna Manandhar of Nepa: Party, Rukmini Chaudhary of Sanghiya Loktantrik Manch and independent lawmaker Sardul Miya Hak held talks with Speaker Subash Chandra Nembang and top leaders of the UCPN (Maoist), Nepali Congress and the CPN-UML on Sunday.
The agitating lawmakers decided to withdraw their protests after the big three top leaders agreed to address their issues within the next 15 days.
The lawmakers were demanding that the rights of marganilised communities such as Dalit and indigenous groups should be ensured in the new constitution.
Besides the parliament, the lawmakers were also obstructing the Constitutional Committee (CC) meetings from April 1 to press for the same.