“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

Maoists to adopt liberal economic policy

The CPN-Maoists are clear about their economic agenda: they want an economic miracle in Nepal within 10 years. To achieve this objective, they have promised to adopt a liberal economic policy to boost the country’s economic development and revive the dormant industrial sector. Adopting a pragmatic approach, they have invited private and foreign investment in the country's economic development. They called upon the business community to join hands with the new government in creating a new Nepal and make investments in the country without any fear. They would be focusing on strengthening domestic industries and adopt policies aimed to boost production by promoting domestic resources available in the country.

This approach might lessen the fears of the Nepali business community which had been wary of the Maoists victory in the elections. The general fear was that a Maoist-led government might try to nationalise the private sector. The Maoist leaders were quick to dispel such notions in a series of meetings they had with the business community. The Maoists denied any such move. The Maoists, for the time being, are more concerned about fulfilling the people’s mandate and work towards creating a new Nepal which they had promised to the people during the elections. They are acutely aware of the immense challenges meeting such expectations would require. They are actively seeking the support of the private sector and foreign investors. At this critical juncture, their objective is to promote investments by attracting private investors and achieve an inclusive economic progress.

Source: South Asia Weekly, May 18, 2008

Prachanda on Indo-Nepal relations

Chairman of Nepal's Maoist party Prachanda speaks on the changes that will be brought about in Nepal after his party’s historical victory and its implication on Nepal’s relations with India. In an exclusive interview with Karan Thapar in Devil's Advocate programme in CNN-IBN, Prachanda speaks about the impact of Maoist victory on Maoists in India.

Karan Thapar: Mr Prachanda, because the Maoists are a relatively unknown entity, there are many people in India who are apprehensive about your coming to power. Can you understand their concern?
Prachanda: Yes, I think so because during the emergency, the kind of image and the propaganda that was there in the country was different. But we were always committed to multi-party competition and peace at that time. However, people did not know about our new political developments then.
Karan Thapar: So you are a prisoner of an image?
Prachanda: No not exactly.
Karan Thapar: But a little. People have a misunderstanding about your attitude.
Prachanda: That could be called a communication gap or something like that. Slowly and gradually, people understand our commitment to multi-party, peace and other things.
Karan Thapar: What sort of relations will you be looking at with India?
Prachanda: A new relation on a new basis. The new base has been laid down with the understanding from Delhi. A new unity with Delhi is already in process.
Karan Thapar: When you say a new relationship, do you mean a better relationship?
Prachanda: Exactly, a new relation means better relations, understanding and cooperation.
Karan Thapar: And closer to New Delhi?
Prachanda: Exactly. Yes, we want to come closer to New Delhi on the basis of new relations.
Karan Thapar: How does this equate to what you keep saying that you want equidistance from Delhi and from Beijing? To people in India this sounds as if you are demoting the relationship with India to the level of relationship with China.
Prachanda: But I always said that there is a special relationship with India, geographical and cultural, and therefore we should have a special relationship with New Delhi. No one can ignore this historical, geographical and cultural fact. What I am saying is that we will not side up with one country against the other. We will maintain equidistance in political sense and not in terms of cooperation and other things.
Karan Thapar: The culture, history, and geographical relationship that Nepal has with India, will remain intact?
Prachanda: Yes, it will remain. It is a historical fact and we will have to strengthen this relationship.
Karan Thapar: Let me discuss some problems that may arise. You said that you want to abrogate the 1950 Indo-Nepal treaty and you want to renegotiate it. What are the aspects of the treaty that you don’t like?
Prachanda: Our people have put forward this concern that they feel that the treaty lacks inequality and that it is not beneficial for Nepal. We thus want to review all the points of the 1950 treaty. And we want to revise it according to new necessity.
Karan Thapar: The 1950 treaty guarantees the open border with Nepal and it also says that people of Nepal have national citizen status in India. Do you want to revise it and rework that?
Prachanda: Not exactly right now. There are other provisions that we want to discuss in detail.
Karan Thapar: So you want to retain the open border and you want to retain national citizen status of people, but there are other provisions?
Prachanda: There are others which I don’t want to discuss right now in detail.
Karan Thapar: Is one of them the defence purchase provision which requires Nepal to consult Delhi and only then acquire arms. Is that one?
Prachanda: That also should be reviewed and should be made according to the necessity of the 21st century.
Karan Thapar: Let me tell you what your colleague, Babu Ram Bhattarai told Nepal Telegraph on May 10. He said it was only because of the open border that Nepal could not achieve economic prosperity. Do you agree with him?
Prachanda: In the transitional phase, right now with the processes going on, it is not correct.
Karan Thapar: So this view is not correct?
Prachanda: Right now it is not correct.
Karan Thapar: He expressed this roughly just a week ago.
Prachanda: I will have to discuss with him. I do not know in what context he said it.
Karan Thapar: One of the problems in renegotiating the treaty is that India may use the opportunity to look for better terms. Does that work for you? You want better terms for Nepal. India may want better terms for itself.
Prachanda: It is beneficial for both sides to review the treaty and upgrade it according to the new necessity. When Rana resigned, a lot of changes have come in Nepal and there has been a lot of change in India. Thus the 1950 treaty should be upgraded according to the new necessity.
Karan Thapar: You also said that you want to review all the other treaties to see what revisions or further enhancements can be made. Is that a decision to revoke the other treaties and renegotiate them or simply the desire to review them?
Prachanda: Yes, I want to have a general review on all the treaties. But specifically I want to review the 1950 treaty.
Karan Thapar: The 1950 treaty, you want to change, but others you want to just review generally?
Prachanda: Yes, we want changes in the 1950 treaty, others may be okay, or may be revised, but we want to generally review them.
Karan Thapar: People in India after they hear you, will say that Mr Prachanda on one hand wants a new and a better, closer and a stronger relationship, on the other hand, he wants to revoke the 1950 treaty, review all other treaties and he wants equidistance from China and India. Aren’t these two things contradictory?
Prachanda: It is not contradictory. According to me it will help in better relations, will strengthen relations, and have close cooperation with each other. By review, we mean, both sides will be there, and we will review the historical treaty to upgrade it and revise it according to the new necessity.
Karan Thapar: You also say that India can also look for new advantages and gain?
Prachanda: Yes exactly.
Karan Thapar: However, the problem is that when both countries start reviewing things, and when you start revoking treaties and you start changing relations that have been there for 50 years, you can end up creating problems and damaging Indo-Nepal relations. Does that not worry you?
Prachanda: No, that will not happen. When your intention is to strengthen relations for betterment, how can it then sabotage relations or even destroy them.
Previously, India vouched for a two-pillar theory and that monarchy should be there in Nepal. However, now that there will be no monarchy and many political changes will take place, then there has to be a change.
Karan Thapar: So you want to re-negotiate the relationship.
Prachanda: Yes.
Karan Thapar: So you are saying to the Indian people and government that I don’t want to renegotiate the relationship to destroy it.
Prachanda: Yes, and we want to strengthen relations by re-negotiating.
Karan Thapar: And you are saying that India should be looking to renegotiate also to look at advantages for itself.
Prachanda: Yes.
Karan Thapar: You are happy with that?
Karan Thapar: The fact that nearly 30,000 Nepali Gorkha soldiers are employed by the Indian Army. The Army has seven Gorkha regiments comprising 43 battalions. This is seen in India as an unbreakable link that binds Nepal with India. You want to stop this, why?
Prachanda: Yes, we want to discuss this issue. We don’t want to stop it right now. We want to review the whole history of the development and the implication on both countries. What kind of relation is created through this institution is what we want to review. We want to review and discuss it.
Karan Thapar: You said a very important thing. At this stage you don’t want to stop the Gorkha recruitment by the Indian Army. You want to review it and discuss it. At the moment you are not seeking to stop recruitment?
Prachanda: Yes.
Karan Thapar: Why do you want to review it? What is there to discuss?
Prachanda: I think this will be debated in our constituent Assembly. It is an important topic. Now we are about to draft a new constitution and that will guide us for Nepal’s vital interest.
Karan Thapar: In your eyes, do you see Nepali Gorkhas who get employed by Indian Army or the British army as mercenaries. Is that why you don’t like it because it is mercenary behaviour?
Prachanda: These are historical questions. We will have to review it in that perspective.
Karan Thapar: Today, tens of thousands of jobs are guaranteed by Indian Army and another 5,000 by the British army and other than that there are almost lakh of people who get pensions. You want to eradicate poverty and unemployment. Then why touch this. This is a source of employment. Why affect it?
Prachanda: Here in Nepal there was feudal autocracy as a political system. Now that we are changing that into a democratic system, and we are looking at rapid economic development so that our youth don’t have to look for employment in other countries. We want to change the political and economic scenario.
Karan Thapar: There is no danger that within a month or two you would stop recruitment?
Prachanda: No. It is also because we are right now in a transitional phase.
Karan Thapar: So what ever happens will happen gradually and slowly after debate and discussion.
Prachanda: Yes.
Karan Thapar: In 1996, when you drew your 40-point programme, you called for a ban on Hindi films. Is that also a part of your agenda still?
Prachanda: Right now the situation has changed as we participated in elections and we will lead the peace process and we will draft a new constitution. We are not going to put this question forward in that way.
Karan Thapar: So right now, there is no likelihood of ban on Hindi films?
Prachanda: Yes, you are right. Right now it is not possible because we have so many other compromises and consensus with so many political parties. We have to go forward in a particular way.
Karan Thapar: So you have no problem if Shah Rukh Khan’s film or Amitabh Bachchan’s films come to Nepal?
Prachanda: They are coming to Nepal and we have no ban right now.
Karan Thapar: And you have no problem with Manisha Koirala acting in Hindi films?
Prachanda: No, not at all.
Karan Thapar: Will you be looking to India for support and help in removing you from the terror list that the US maintains.
Prachanda: After the elections, I had a direct contact with USA, and I had a serious discussion with the Ambassador of US and I think that India has already helped us with the elections and constituent assembly. So, this way they have already helped us.
Karan Thapar: Can they help further. Can India speak to US President George Bush and ask him to stop treating the Maoists in Nepal as terrorists?
Prachanda: We may expect this, but we can't request India to do so.
Karan Thapar: Why can’t you request them?
Prachanda: I think we have direct access with the US.
Karan Thapar: But you would like India to do it?
Prachanda: We expect it and hope that India can create conducive atmosphere.
Karan Thapar: So you expect it and hope India listens to this interview and takes a hint.
Prachanda: Yes, exactly.
Karan Thapar: What will you think will be the impact on Indian Maoists by your coming to power in Nepal?
Prachanda: I think a strong message has already gone. After the elections, there was a wave in favour of our policy. After the elections, a Maoist has sent a letter to me congratulating me for this historical victory in elections. I think there will be a serious discussion and debate within the Maoist circles in India and we have already given a message to not only Maoists in India, but to all over the world.
Karan Thapar: Looking at your own experience in Nepal during the last two years and six months in particular, would you advice the Indian Maoists to give up the peoples war, to join mainstream, to use the ballot rather than the bullet as a way of acquiring power?
Prachanda: I think that I cannot directly address them, but our behaviour and our policy and our practices give out the message of the power of ballot.
Karan Thapar: One of the top Maoist leaders in India, Azad in an interview to The Hindu has said that the Nepali Maoists are unlikely to succeed and that the Nepali Maoists will soon realise that they have made a mistake.
Prachanda: Right now, the same person Azad has sent a letter congratulating me and that he thinks it is a very serious victory for the Maoists. I think it is before and after the elections, that he has evaluated it in a different way.
Karan Thapar: Many people think, Comrade Azad, as you call him, is saying two things. He says one thing to you in the letter and praises you and on the other hand, says another thing to the press and sounds sceptical and cynical. Is he double-faced?
Prachanda: Is there a written statement somewhere?
Karan Thapar: Yes, it is in The Hindu on Friday.
Prachanda: I see. I have not gone through that interview and statement.
Karan Thapar: So right now you are not aware that Mr Azad speaks with two voices. He says something to you and something else to the others. Does that worry you or disillusion you?
Prachanda: No, I have to go through that statement in detail. I cannot blame anything on anyone.
Karan Thapar: At the moment you will reserve your judgement.
Prachanda: Yes.
Karan Thapar: The party in India that is most worried about the Maoist victory is the BJP, which says that you will be anti-Hindu in your behaviour and actions. How can you reassure them that this is not going to be the case?
Prachanda: This is an illusion. We are not anti-Hindu or anti-Buddhist or anything like that. We are committed to a secular political system and state. We are also continuously upholding the religious freedom and we understand the phenomenon of Hinduism in Nepal.
Karan Thapar: If the BJP is to win the elections in 2009, is there a possibility that the relations between India and Nepal can suffer?
Prachanda: I do not think so. Even BJP is a very serious party of India. They will understand the dynamism and change in Nepal and will come forward according to the changed situation.

Source: CNN-IBN, May 18, 2008