“To Have A Federal Structure Or Redefine The State Boundaries Based Upon Janjatis Is A Dangerous Situation” - Sona Khan

Senior advocate of Supreme Court of India SONA KHAN is a well known lawyer of the region. As Nepal is in the process of constitution making, Khan addressed a gathering at CONCOI. Khan spoke to KESHAB POUDEL on various issues regarding federalism and constitution making process. Excerpts:

How did India come up with pluralistic constitution?

Without the presence of Dr. B. R. Ambedkar in the constitution committee of India, I don’t think the preservation of pluralism would have been as effective as it survives today. The role of Mahatma Gandhi and Nehru with vision cannot be ignored. But the master were not the people but were these two elite gentlemen who had the opportunity to be educated in the western system and they brought the concept of justice and equity along with them.

Why is the state so important?

One of the purposes of the existence of the state is to deliver equity and justice in an equitable fashion. There is the crux to preserve the dignity of the individual. How do you go about it is the frame work whether that is parliamentary form of government or presidential form of government is immaterial. The ultimate aim of the state is to deliver the dignity to individual in just and equitable manner.

How is it possible to have absolute pluralism in a country with so many castes, and so many people with different persuasion of culture?

That is the craft of the constitution. Various constitutions have been tried and western society has found just an easy way out. They conceptualized the secularism minus religion. They thought they have created a civil society and they have brought everything out of the religious sanctity. But, this is not so in south Asia. In South Asia religion and culture is the way of life. We cannot live without religion and culture. I am talking about the concept of pluralism in the South Asian constitution.

How would they like a society to consider and explore the possibilities of preserving the common heritage and common culture?

Here it is very important to understand that the ownership of the pluralism belongs to no political section of the society, religion, castes or creeds. It is a collective property of the nation and that collective ownership evolves upon all of us the possibility to preserve it with the state duty.

How important are pluralism and harmony?

I would humbly, with great respect to all of you, say that pluralism has to be recognised but at the same time the harmonious aspects should be respected to survive as a sovereign republic democratic notion. One would need to generate harmony. That harmony will come by bringing to preserve your individual rights by recognizing the pluralistic culture. In the case of India, for political appeasement purposes often pluralistic constitution is very handy. The supreme court of India has been playing very important role to sustain the constitution by interpreting.

How do you see the impact of globalization in all this?

The globalization which will determine the global forces determines their own equity, I don’t know what can happen in Nepal but in India very soon our politicians will be irrelevant. Why? Because the economic forces will generate another dharma and that dharma will be superior than the political agenda. Political agenda so far has been only catering to the narrow vision of the political parties. They have not gone above the party politics. They interrupt the country which is the paramount Dharma. In my opinion globalization and gender issue are undergoing a very definite change. Since the globalization will convert the burden of state into a social capital. The hunger and poverty which is the burden of the state will be harnessed into the social capital by the economic forces.

What about the effects of migration?

The migration of labour forces from one part to another would provide employment and access to economic resources. May be standard differs from one place to another. But at least, it takes care of hunger and poverty. The importance of that part is recognition of that pocket. Road, water, housing, health care and education are primary role of the country. Any regional and national party which is unable to provide this will not last for too long. Now the water cannot be pursued by the concept of Janjatis solidarity, religious solidarity or regional solidarity. The consumers set the condition for globalization. The availability of goods and comfort change the mindset. That is the phenomenon and no one can stop it.

How do you see the WTO in the context of globalization?\

The WTO norms which are part of international federalism are alluding to it. These elements are more important legal tool including the convention of international law and various other protocols which the governments of today have necessary to agree and enter. And the moment they agree and enter, the country is part of all these laws. Once the concerned government signs such protocols and conventions, they are the part of law of particular countries. But there are certain aspects which cannot be changed. For example, the fundamental rights cannot be amended, new rights may be added. Preservation of pluralism is important. The guarantee of pluralism is the guarantee of understanding and delivery to the constitution.

How do you see the concept of federalism?

Indian experiences are different. For example, the Sri Lanka and France have different federal structures. Indian federalism started with unitary federalism. The federalism has two forces - there is gravity towards the center or gravity towards the autonomous state. Both have their own merits and demerits. In my opinion, the interest of the country is paramount. The purpose of federalism is to deliver the mandate of the people and others. Functioning of the government should be proper.

How do you see federalism under the basis of caste and ethnicity?

To have a federal structure or redefine the state boundaries based upon Janjatis is a dangerous situation. You are abdicating your responsibilities or state to bring them to mainstream. It is easy for politicians but it is not conducive for the country. Because they will be happy for the moment for the autonomy but what are they going to do with that autonomy. The reason is not driven by patriotism or nationalism or regionalism but reasons are driven by economic forces. Each country has to craft and fascinate its own system. But however the ultimate key will be to make sure that you are able to be around the mainstream of development. Supposing Nepal wishes to exercise its national identity as Nepali. If you start to say, I am just Janjati and not Nepali, it may come down to people. It is not in the larger interest. What cab the Janjatis autonomy deliver in today’s context of globalization. It is only going to deliver psychological satisfaction.

What is important then?

The important thing is delivery of dignity. Janjatis are after all the citizens of Nepal. Do you think they are going to be happy with the identity without any education provision made for them or without any job provision made to them, surplus of land or reclamation of land, local sustainability, without fertilizer or without water for irrigation? Identity serves very limited purposes.

How do you satisfy all?

For example, schedule cast and schedule tribe banks have purpose to deliver the loan as micro credit banks did in Bangladesh. The purpose remains same whether you give name of schedule cast bank or micro credit bank. The description has to be differed. However, the identity base is a very dangerous thing.

If ethnic federalism will not work, what federalism is going to work?

You can list the Janjatis in constitution itself so that identity is preserved. Recognize them in constitution which was not recognized in earlier. Have a separate commission to look at them but not an ethnic commission. You have to clothe it and you have to find out your own wordings. For example, justice at door step. You have to make temple of justice. Like the case in Philippines and Indonesia, they have their own system. In South Asia, all the countries have various castes and ethnicity. Don’t encourage them to destabilize the government. You need to allocate fund to generate the goodwill. We have divided the states on various models. For instance, the Uttar Pradesh is a very big state and there is now Uttaranchal State. Jharkhand comes out from Bihar. I want to share with you the case of Punjab. For instance, Haryana was never a state as it is today when India became independent. There was referendum to see who is Punjabi or other speaker. Many people said they don’t speak Punjabi so they created Haryana. It is actually the economy which determines the state.

Source: Spotlight, VOL. 28, NO. 24, March 20, 2009

Nepal elects its first President

In a historic move, the Constituent Assembly (CA) in Nepal elected the first President of the country--Dr Ram Baran Yadav of the Nepal Congress, backed by the Communist Party of Nepal-UML and Madhesi Janaadhikar Forum (MJF).On July 21, Dr Yadav secured 308 votes defeating Ramraja Singh, a Maoist-backed candidate, who secured 282 votes.

The election result had in fact become apparent when at the last moment, a new alliance of NC, UML and MJF emerged to challenge the Maoist plans to get their candidate elected.

The newly-elected President, Dr Yadav hails from a small village of Safai in Dhanusha district in south-eastern Nepal. Most of his schooling and higher education was completed in Kathmandu. He later studied medicine in India, completing his MBBS from Calcutta Medical College and MD from Post Graduate Institute of Medical Research (PGIMR), Chandigarh.

Despite a successful medical practice, he chose the political life and entered the Nepalese politics in the 1960s as a student leader. He led the anti-Panchayat demonstrations against King Mahendra. Since then, for more than three decades, he participated and spearheaded every pro-democracy movement in the country.

During the first general elections in 1990s, he was elected from Dhanusha constituency as a Nepali Congress candidate. He served for two terms in the government as Health Minister. He was the general secretary of NC before being elected as the President.

The presidential election has set the country’s political discourse on a sharp turn. The defeat of the Maoists’ candidate has changed the political dynamics in the country. The failure of the Maoists to work up a consensus on the presidential candidate and the sudden emergence of a rival coalition indicate a confrontational politics in the days ahead. Maoists have accepted the results of the presidential election, they see a foreign conspiracy in the outcome. They believe that it was part of the conspiracy to keep them away from forming the government.

The Maoists, rolling high after the unprecedented victory in the elections, have suddenly turned reticent about their participation in the government. The Maoist leaders maintain that they have lost the moral ground to stake claim for leading the new government. The victory of the NC presidential candidate has given a major blow to the Maoists who won the largest number of seats in the April assembly elections. Presumably, their decision to stay away from heading the government was not an unexpected move.

It is obvious that the new alliance of the NC, UML and MJF enjoys a majority in the House as compare to the Maoists and its chances of forming the new government have certainly brightened after Prime Minister Girija Prasad Koirala’s resignation. The Maoists, however, can stake the claim being the single largest party in the Assembly. Senior leaders of the alliance are keen to work with the Maoists and have approached them. It is too early to figure out the alliance’s objectives in first defeating the Maoist candidate and then making efforts to persuade them to lead the government.

These developments have certainly undermined the consensual politics which was emerging after the April elections. The political parties should review their rigid stands and work towards creating a New Nepal as they had promised to the people during the campaign. The Maoists should take the lead in playing a constructive role and take the initiative in forming the new government. They should refrain from creating any obstacles in the peace process and avoid delaying the Constitution drafting process.

There is an urgent need for the political parties to stay on the path of consensual politics and avoid confrontation among themselves, to steer the country through the tough times ahead.

Source: Observer Research Foundation, July 26, 2008

Koirala lets Maoists form government

Ending the month-long political stalemate and uncertainty, Prime Minister Girija Prasad Koirala invited the Communist Party of Nepal-Maoist Chairman Prachanda, also the leader of the single largest party in the Constituent Assembly (CA), to form a new government. But Koirala urged the Maoist chief to form the new government in accordance with the Interim Constitution. The Maoists applauded Koirala’s step and welcomed his move for creating a favourable political atmosphere.

Apparently, the three main parties- Maoists, Nepali Congress (NC) and CPN-Unified Marxist Leninist (UML)—evolved political consensus and found a way out of a problem which has been dogging the formation of the new government. However, issues like amendment to the Interim Constitution, nomination of 26 CA members and appointment of ‘ceremonial President’ remain a matter of serious concern. Senior NC, UML and Madhesi Janaandhikar Forum (MJF) leaders had earlier agreed for a common stand on future power sharing but came out with pre-conditions at the negotiating table. The amendment proposal, which allows the removal of a government through a simple majority in the CA, is being strongly opposed by the Maoists. Eventually, even if they agree to the amendment, it is unlikely that they would give up both the posts of PM and President to other parties.

Source: ORF, May 27, 2008