5
Governance
Literate Southasians never tire of complaining about the lack of ‘good governance’ in the region. In their assessment, there is little point in debating about the form of government, what really counts is the function. But the form and the function of government are not independent of each other. What the government does is a result of how it has come into being, for what purpose and who controls its operations.
The easiest definition of governance is something that a government does: the conduct of public affairs. Governance of any kind—good or bad—requires some convictions, a few conventions, a constitution, various institutions and many actors. That’s quite a lot of factors to account for in trying to understand governance.
Faith in mandate—divine, popular or altruistic—is the fundamental conviction that makes governance possible. Whenever force is used to impose ‘governance’, good or otherwise, it doesn’t take long for jealousy, resentment or dissatisfaction to boil over. Equally important is the role of social dynamics that produces certain conventions which create grounds for the making of a constitution. Constitutions create institutions and structures that guide actors in governance.
Governance takes place through administration, the process captured so well in an acronym coined by Luther Gulick in 1935—POSDCORB—where each letter stands for separate functions of administration, namely planning, organizing, staffing, directing, coordinating, reporting and budgeting, in that order. The central figure of this process is the agency, also called the permanent government of any country. Agencies that run according to laws are bureaucracies, but non-bureaucratic agencies running the administration on an ad-hoc basis aren’t uncommon. Under dictatorial regimes, an aristocracy of administration often functions equally effectively. Centrality of subject—the actor who makes things happen—is the defining feature of administration. No wonder, the Southasian elite are so fixated with the challenges of administering.
Management has been defined as the optimum use of human, material, knowledge and technological resources (stylishly represented with 4m—men, money, material and machinery) to achieve specified objectives within the given time frame. The primary concern of management is result. It is the object that guides and controls every activity in all management exercises. Agents of modernity—donors, lenders, managers and consultants active in Southasian societies—offer or prefer management solutions for deep-rooted social and economic problems of the region.
Both administration and management are important components of governance. Central1 to all concerns of governance has to be politics—the activity—rather than the subject or object. Dealing with hopes, fears, relationships and exigencies fall in the arena of politics. Politics also has to grapple with governance issues of accountability versus responsibility, rule of law—what are the laws and how it has been formulated, roles and responsibilities of decision-makers and decision-takers, transparency, procedural clarity and public participation. However, leaving aside all these questions, the politics of governance continues to be stuck in a post-colonial debate over relative merits and demerits of ‘republic of laws’ versus ‘democracy of parliamentary supremacy’.
The politics of governance in the United States of America, supposedly a country that has a mix of both republican laws and democratic vibrancy, is conducted through a mechanism that consists of its constitution, social dynamics, interplay of interest groups, political parties, regular elections, the President as the chief executive, the Congress as the main legislature, the federal bureaucracy and the judiciary. More or less similar institutions and structures exist in all Southasian countries. Countries following the Westminster model of parliamentary supremacy have taken a slightly different route. But that too isn’t very much different from the American model except some important distinctions in emphasis—the British value conventions while Americans respect the constitution. However, a curious anomaly exists throughout Southasia—in this region, republics tend to become legalistic rather than constitutional while democracies often degenerate into a tyranny of the majority that de-legitimizes the process itself.
The republican model has its advantages. But the risks of constitutionalism turning into legalism are real. Drawing from his experiences in Pakistan, I. A. Rehman quotes Burke’s famous dictum that bad laws are the worst sort of tyranny and opines: ‘Quite a few political crises in Pakistan have been caused by its rulers’ use of legal instruments to defy the demands of propriety in a society that professes to be democratic.’2 The latter part of his argument is important: republicans profess to be democratic, often without being one.
Degeneration of democracy into mob rule has been the primary fear of all elitists, but Fareed Zakaria wrote a whole book to lament what he calls ‘illiberal democracy at home and abroad’. In a paranoid paragraph, Zakaria writes,
Greek democracy often meant, in Constant’s phrase, “the subjection of the individual to the authority of the community”. Recall that in the fourth century BC in Athens, where Greek democracy is said to have found its truest expression, the popular assembly—by democratic vote—put to death the greatest philosopher of the age because of his teachings. The execution of Socrates was democratic, but not liberal.3
Democratic, but not liberal? That may be stretching the dichotomy a little too far. It’s necessary to understand the false assumptions inherent in that logic.
The way the present age understands democracy traces its origin to the late 16th century term in French démocratie, which is said to have evolved from Greek dēmokratia, the expression that combines the will of the dēmos (the people) to kratia (power, rule). Its denial on any pretext will invite catastrophe. In any case, twentieth century republics, such as that of USA and USSR, have killed far more potential Socrates’ than all the democracies of the world combined. The ‘republic’ too traces its origin to the late 16th century French république, an evolved form of Latin respublica. It combines patronizing res (concern) for affairs of the publicus (of the public). The Southasian elite too would prefer to have self-selected rulers show ‘concern’ for the ‘public’ and make trains run on time (Emergency, India, mid-seventies), ensure security (Royal-military coup in Nepal, 2004), eradicate corruption (The Chief Advisor experiment in Bangladesh, 2007) and maintain stability (Burma, 2007). Maoists in Nepal have shown a preference for a ‘Democratic Republic’, but its details seem to have been intentionally left vague. However, it seems there is no alternative to bearing with deficits of democracy in the short-term to establish a republic that doesn’t appropriate power in the name of ‘public good’. Any attempt, however, to make democracies function under the supremacy of laws rather than that of traditions or a majority should be encouraged.
Other than its form, levels of government also affect its functioning. There is an overwhelming desire among powerful leaders to institute centralized governance. In a centralization process preferred by ambitious rulers, authority and control remain in the hands of the government at the centre which then mobilizes people to acquire legitimacy. Movements for autonomy are derided as fissiparous and fought ferociously. Perhaps, this is the reason that a centralized structure can never be fully democratic even though it is possible to have a centralized republic.
When pushed into a corner, leaders try to accommodate voices for devolution with decentralization. In decentralization, control of the centre persists with dispersal of some authority in smaller units of the government. The centre still seeks submission of all people, though in decentralized structures; the term preferred for total compliance is cooperation.
Devolution is a state where local control and local authority of different federating units is merely coordinated by the centre. It gives rise to competition between units. Perhaps that’s the reason politicians are in dread of the word devolution. A system of joint control between the centre and local units, with complete local authority that ensures popular participation—an arrangement based on the principle of subsidiarity—is perhaps the best model of federalism. But its practicalities need to be studied in the Southasian context. The so-called federal ‘success story’ in India is perhaps a refined form of decentralization rather than devolution. Some form of federalism, however, is sine qua non of supranational solidarity. Centralized states are too enmeshed with ‘national’ issues to pay attention to regionalism or universalism.
Democratic republics that enjoy popular legitimacy have succeeded in institutionalizing the supremacy of laws and independent judiciary, with clearly defined limits of power of the federal government, and federating units will perhaps be more confident to face the challenges of an unified Southasia that values its unity and celebrates diversity.
Governments in Action
The slogan of ‘good governance’—which gained currency in the post-1990 era of liberalization, privatization and globalization in Southasia—is contentious. While the intent of ‘good governance’ design may be good, it has been used often to de-legitimize democratic regimes. Components of ‘good governance’, such as rule of law, accountability, decentralization, honesty and probity in public affairs, independence of judiciary, human rights, people’s participation, equality of treatment, absence of discrimination, administrative responsiveness, social sensitivity, ethical approach, willingness to learn, etcetera, are all worthy goals in the conduct of public affairs. But there can be no ‘good governance’ without popular legitimacy—consent of the governed—and supremacy of laws. Perhaps that’s the reason the DFID Good Governance Assessment instrument identifies areas such as the foundation of state power, electoral arrangements, rights and representation, rule of law, transparency and information, levels of government, financial accountability, government income and expenditure, authority and competence and public service.4 Politics is definitely central to all these concerns, but equally important components of the ‘good governance’ design are what have been called instruments of the state.
The most visible instrument of a state is the bureaucracy—for most people, the bureaucracy is the state. Unfortunately, a lot remains to be done in Southasia to make bureaucracy responsive towards the people. It was once said of the Indian Civil Service that it was neither Indian, nor civil but provided excellent service to its colonial masters. Names have changed, but the administrative ethos remains the same, at least in all former colonies in the region. Administrative services—from the village level to the federal secretariat—require revamping to make it more representative of the people it’s required to serve. While corruption in administration gets justified attention, often bribery, nepotism, favouritism and misuse of authority are symptoms of a deeper malaise—continuation of the so-called Iron Frame of colonial era that didn’t have to be accountable to anyone other than their immediate superiors.
Weaknesses of the colonial system are even more manifest in the police service. In most parts of Southasia, distrust of the police runs deep. Due to lack of public trust in policing, protection rackets, extortions and crime thrive. It’s a sad anomaly that even though Southasia has two nuclear-powered defence forces, none of the police organizations in the region are good enough to be a model for everyone. The Nepal police was in the process of emerging as a dependable community police, but the rise of Maoist insurgency, counter-insurgency and its use by the army as a secondary unit in their ‘war’ against insurgents put paid to those experiments. The Nepal police, however, hasn’t lost its verve; sometime ago, it proposed the formation of SAARCPOL (South Asian Association for Regional Cooperation Police) patterned after Interpol and Europol.
The court system too will require a thorough overhauling. Perhaps a regeneration of traditional methods of conflict resolution at the village level can reduce the load on formal courts that have backlogs running into years and sometimes decades. Courts are important components of the system of governance; and people’s faith in the justice system is necessary for the proper functioning of democracy. Quasi-judicial bodies need even closer attention. Perhaps it’s possible to deliver speedy justice without impinging upon the authority of the court by creating more organs of the state with quasi-judicial powers. This is an area that doesn’t seem to have got enough attention in the governance discourse.
The role of the media in monitoring governance is well known, but what is often less appreciated is the way mass media can shape the behaviour of the people to influence the way they are governed. Through a sequential impact of awareness, information, attitude and behaviour, the media empowers people to act as citizens. Unfortunately, the media in Southasia has succumbed to the market mechanism. Mission journalism had its pitfalls, but created national unity in post-colonial societies. The next logical step would be to rise up to the challenges of forming a Southasian identity. But that will require a concerted effort which seems to be lacking at present. An accompanying article by Nurul Kabir depicts the media scene in Bangladesh. On many issues, the challenges are similar elsewhere in Southasia.
The state has its institutions and instruments, market forces work through their own channels, but the civil society has very little at its disposal other than the cooperation of the media to take its initiatives to the larger public. This may be the reason civil society is at the forefront to protect media freedom. But as the media moves into a high-profit area of what has been called ‘Page 3’ journalism—celebrity fixation, high life and low intellect doses of candy for the mind—civil society is getting weaker.
Media Regime in Bangladesh: Rule of Obtrusive Law
by
Nurul Kabir
Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.
– John Milton
I would like to begin the discussion on the proposed topic by drawing attention of the august audience to certain disturbing observations made recently on the issue by two of the country’s reputed as well as influential editors. The observations are disturbing, because both the editors have separately told the nation and the world at large that Bangladesh is enjoying democracy and press freedom since the ouster of General H. M. Ershad in 1991.
‘… 16 years of military rule … ended when the government (of H. M. Ershad) was toppled by civil unrest in December 1991. It is at this time, when democracy was restored and the media was at last given freedom to operate, that Bangladesh’s journey towards development began’, Mr Mahfuz Anam, editor of The Daily Star, one of the most liberal newspapers of the country, has recently observed. (‘The Media and Development in Bangladesh’ in The Right to Tell: The Role of Mass Media in Economic Development, WBI Development Studies, The World Bank, Washington, DC, 2002, p. 267)
Mr Reaz Uddin Ahmed, editor of the daily News Today, who has also led the country’s journalist community for a long time, now believes,
A representative Parliament was established through a free and fair general election conducted by a non-party caretaker government in 1991. The newspapers earned, for the first time, the unrestrained freedom to operate in an environment free from repressive media laws … There is no longer any hindrance in publishing newspapers, as the media laws standing in the ways of publishing newspapers were scrapped. Besides, the laws seeking to ban newspapers have been done away with. Subsequently … the free flow of information has been ensured.
Satyer Sandhane Pratidin (Everyday in Quest of Truth)
Ananya, Dhaka, 2002, pp. 8–9
I would like to humbly assert here that the observations are totally baseless, and thus misleading, from various points of views—legal and political inclusive. Such observations flow from either a poor understanding of democracy and press freedom as a whole, or an idea to deliberately trivialize such vital issues in the interest of the undemocratic political elite.
Before we go for interpreting in detail the issues in question, it is imperative to note that during the movement against General H. M. Ershad’s autocratic regime in the 1980s, the mainstream political parties—Bangladesh Nationalist Party and Awami League (AL)—assured the people that they would bring in a democratic system of governance after the ouster of the General. People ousted Ershad from power in December, 1990. The BNP was victorious in the parliamentary elections, while the AL secured the position of the main opposition party in Parliament. Then they jointly told people that the switchover to the parliamentary system of governance from the presidential system would usher in a ‘real representative democracy’.
But it did not really happen, especially because the political parties concerned, while implementing the ‘switchover’ in 1991, simply replaced the word ‘President’ with ‘Prime Minister’ in the Constitution, keeping intact the entire or unrestrained executive power of the President (of the presidential system) in the hands of the Prime Minister (of the parliamentary system). Contrary to the spirit of parliamentary democracy in the West, the BNP and the AL did not bother to provide the system of checks and balances of power between the head of the government (Prime Minister in the present case) and the head of the state (President). Subsequently, the nation got, in the place of an ‘all-powerful’ President, an ‘all-powerful’ Prime Minister with the entire executive power of state concentrated in his/ her hands. The political parties thus provided the people with a dictatorial type of Prime Ministerial system and that, too, in the name of parliamentary democracy. On top of that all, they retained all the repressive constitutional provisions controlling the citizens’ freedom of expression, which is essentially the basis of the freedom of the media.
This is, however, not the end of the sad story. The BNP and the AL unanimously inserted into the Constitution, or rather revived, a provision from the original Constitution adopted in 1972 that makes it a punishable offence for the elected representatives of Parliament to vote in the House at the dictate of conscience—political or moral. How can one, under such a constitutional regime, claim that democracy was established on the rubbles of the Ershad regime?
Legal and Constitutional Provisions Impeding Freedom of Expression and Media Freedom
The struggle for media-freedom and/or free flow of information is directly related to the struggle for establishing the citizens’ democratic right to the unhindered freedom of thought and expression. And the concept of such rights were initially formulated by the classical bourgeoisie of the West, who secured their political victory over the feudal monarchies, e.g., the French monarchy, or imperial colonial powers, e.g., the British colonial power in the United States, in the second half of the eighteenth century.
‘No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law,’ pronounced Article 10 of the Declaration of the Rights of Man and of the Citizen. Approved by the National Assembly of France in August 1789, the provision was later incorporated into the French Constitution.
Article 11 of the Declaration says:
The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.
Again, the political elite of the US bourgeoisie proposed in Article 1 of its Bill of Rights in September 1789, ‘Congress shall make no law … abridging the freedom of speech, or of the press …’. The article was eventually incorporated into the US Constitution in December, 1791.
But the bourgeoisie that we, the media, operate under in Bangladesh does not have the revolutionary vigour of their classical predecessors, thanks to various historical reasons — political and economic. The lesser bourgeoisie that it is, the Bangladeshi political elite, like their prototypes across the world, can neither afford to grant citizens the unrestrained freedom of expression, nor can it ensure free flow of information. They cannot guarantee unrestrained freedom of expression, because the political ideologies they preach do not have adequate inherent strength to fight back the counter ideologies; and they cannot ensure free flow of information, because they have things to hide from the public.
The state machinery that the local bourgeoisie has built up here to rule the nation is, therefore, insensitive towards the classical democratic rights in general and the right to the freedom of thought and expression in particular. The Constitution, upon which the State is ‘legally’ based, adequately reflects the undemocratic psyche of the ruling class in question. Article 39(1) of the Constitution of Bangladesh guarantees the ‘freedom of thought and conscience’. But Article 39(2) of the constitution subjects the ‘freedom of speech and expression’ and the ‘freedom of the press’ ‘to any reasonable restrictions imposed by law …’. Now the question arises as to what is the use of the ‘freedom of thought and conscience’, if one is not allowed to express his/her conscientious thoughts freely? Besides, the pre-condition for the freedom of expression descended to the Constitution of Bangladesh directly from that of the Islamic Republic of Pakistan—the state the Bangalees broke away from due to its continued undemocratic actions.
There are, however, people who tend to argue that there is nothing wrong in imposing ‘reasonable restrictions’ on the freedom of speech and expression, or freedom of the press for that matter. This category of people fails to understand that ‘reasonable’ is a vague term which, being open to interpretations, can always be used in a very selective manner to get particular interests served by particular quarters—not to mention that what is reasonable to some people could well be unreasonable to others.
The empirical evidences show that the successive governments of Bangladesh have invoked this provision on several occasions to get their particular political interests served. The most recent unreasonable imposition of the so-called ‘reasonable restriction’ was the one made by the Awami League government of Sheikh Hasina in 2001.
Hasina’s government got a legislation (The Preservation and Display of the Father of the Nation’s Portrait Act, 2001) enacted on 18 January 2001, making it mandatory for various government, semi-government and autonomous organizations to ‘preserve and display’ the portrait of Sheikh Mujibur Rahman and awarding jail terms to those criticizing the Sheikh, the first president of the country and father of Sheikh Hasina. ‘None will make any offensive remark or derogatory statement, in either oral or written form, against the Father of the Nation (Sheikh Mujibur Rahman)’, said Clause 4 of the law. ‘If anyone violates this provision,’ says clause 5(3) of the legislation, ‘s/he will be deemed to have committed a cognizable offence and will be awarded maximum three months of imprisonment, or Taka ten thousand financial penalty or both’.
What do the clauses of the legislation sound like?—The proclamation of a military junta that threatens citizens with severe punishments for criticizing an extraconstitutional takeover of power? —A decree by a thirteenth century Inquisition against heretics? —It could be anything but a piece of democratic legislation.
The Sheikh had cultivated the image of a great protagonist of political pluralism and parliamentary democracy in the last days of Pakistan. But when his government in independent Bangladesh failed to deliver, and was subjected to public criticism for nepotism and other vices, he banned all opposition parties to introduce one-party rule, switched over to the presidential form of governance to become an all-powerful President, banned all the newspapers criticizing his administration—let alone resorting to severe oppression of the political opponents. Mujib visibly turned out to be a despotic leader, himself shattering the image he had cultivated over the years. Now, why should it be reasonable for the democratic minds to be legally obliged not to ‘criticize’ a politician who has both positive and negative contributions to the nation’s struggle for democracy? But the government of Sheikh Hasina found the restriction reasonable!
The government of the BNP, the arch political rival of the Awami League, eventually got the law scrapped on 21 March 2002. But the ground the BNP showed for repealing the law clearly demonstrates that it has no problem with the concept of snatching away the people’s democratic right to criticize a politician—dead or alive. The ‘objective clause’ of the repeal Bill, introduced in the House on 7 March 2002, kept complete silence over the infringement of the democratic rights the controversial law did. It only said, ‘the law requires to be scrapped, as it created an imposed compulsion to preserve and display the portrait of Sheikh Mujibur Rahman, denying the great contributions made (in the history of the country’s struggle for independence) by other national leaders including Ziaur Rahman’. Clearly, the BNP did not have any problem with the law, had it also barred people to criticize Ziaur Rahman.
However, the ruling elite’s sustained idea of granting people conditional freedom of expression is also violative of the Universal Declaration of Human Rights, to which Bangladesh is a signatory. Article 19 of the Declaration says, ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers, says the Declaration. Contrary to our constitutional provision in question, the UN declaration refuses to endorse abridging of the freedom of expression and information in the name of so-called ‘reasonable restrictions’.
However, the legal regime that governs the Bangladeshi media remained as undemocratic as it was in the colonial and neo-colonial days of the British and Pakistani. rule.
To begin with, the Printing Presses and Publications (Declaration and Registration) Act, 1973, the prime law regulating the press is a crude imitation of an ordinance promulgated in 1960 by the head of the erstwhile military junta of Pakistan, General Ayub Khan. The government of Sheikh Mujibur Rahman scrapped Ayub’s law, but retained the old licensing system for the printers, publishers and editors of any book, newspaper or irregular sheets as stipulated in Ayub’s ordinance, against which the freedom-loving Bengalis fought for about a decade.
The 1973 law has vested the authority of issuing licences, and cancelling licences as well, with the District Magistrates. Under the law, publication of any ‘news-sheet’, meaning ‘any document other than a newspaper containing public news or comments on public news’, will also require prior written approval of the DM, or Deputy Commissioner for that matter. Publication of newspaper or news-sheet without a licence is a cognizable offence to be punished with a fine and/or imprisonment. Besides, ‘any police officer or any other person empowered in this behalf by the Government may seize any unauthorized news-sheet or unauthorized newspaper wherever found’. [Section 22 of the Printing Presses and Publications (Declaration and Registration) Act, 1973] Moreover, the police may seize the printing press believed to have produced the ‘unauthorized’ newspaper or the news-sheet (Section 23, ibid.).
The introduction of the licensing system for the newspapers in the subcontinent dates back to the British colonial rule. It was John Adam, the acting Governor General of India, who introduced the system in March, 1823.
Henceforth, no one should publish a newspaper or a periodical without having obtained a licence from the Governor-General-in-Council, signed by the Chief Secretary. The application for a licence should give the names of the printer and publishers, of the proprietors, their place of residence, the location of the press and the title of the newspaper, magazine, register, pamphlet or other printed book or paper,
said a regulation made by Adams (Mohit Moitra, A History of Indian Journalism, National Book Agency, Second Reprint, 1993, Calcutta, India, p. 72). Six Indians, including Dwarka Nath Thakur and Rammohan Roy, filed a petition in the Supreme Court so that Adam’s regulations could not become a law. But the court rejected the appeal in April the same year, saying: ‘India was not an independent country, so the laws and rules consistent with an independent state cannot be applicable in India.’ (Quoted in Debesh Roy, Upanibesher Samaj O Bangla Sangbadik Gadya, Papirus, Kolkata, 1990, p. 22) As a result, Adam’s regulation, known in the history of subcontinental journalism as Adam’s Gag, became law.
In protest against the law, Raja Rammohan Roy immediately closed down his paper, Mirat-ul-Akhbar. In the editorial of the last issue of the Persian language paper, the Raja quoted a Persian couplet: ‘The honour that has been purchased at the cost of a hundred drops of blood of the heart, O Sire, do not sell that honour to the door-keeper for hoping to get favour.’
But the independence of Bangladesh, which was achieved at the cost of an ocean of blood of three million people, could not protect that ‘honour’ for those believing in the democratic principle of unrestrained freedom of expression. The government of the Awami League, like the British administration of John Adam and the Pakistani military regime of General Ayub Khan, did not consider the citizens of Bangladesh fit for ‘laws and rules consistent with an independent state’. It re-introduced the Adam’s Gag under a different nomenclature—the Printing Presses and Publications (Declaration and Registration) Act. With the passage of time, the regulations have rather become more stringent, more undemocratic and more insulting for the members of an independent nation.
The 1973 Act bars any publisher and printer to print and publish ‘anything that affects the interest/s of the State and the government of Bangladesh’. Under the Act, the printers and the publishers require to give separate declarations, ‘before the District Magistrate within whose local jurisdiction such newspapers shall be printed or published’, that they ‘will not publish in the proposed newspaper anything which is objectionable for, or offensive against, the interests of the Peoples Republic of Bangladesh or its government’.
Until the mid-1990s, the publisher and the printer were only legally obliged not to publish anything detrimental to the interest/s of the State. But later, during the government of Sheikh Hasina (1996–2001), the text of the ‘oath of affirmation’ was changed secretly—without public knowledge. This is absolutely undemocratic to commit a publisher and/or a printer to an undertaking that s/he will not publish/print anything against the interests of a government.
The people give a political party the mandate to govern the country for a particular period of time on the basis of certain social, political, economic and cultural programmes it presents before them ahead of elections. If the government of that party deviates from its mandate, it is the responsibility of the media to highlight its failures or deviation from its electoral pledges. But provision demands that the publishers and the printers of newspapers do not come out with those governmental failures, lest the disclosures affect the interests of the government! This is absolute nonsense.
It is the responsibility of a democratic media to disclose certain actions, and at times certain inactions, of a government that could be detrimental to the public interests. But such objective disclosures could genuinely excite people against, or rightly induce hatred for, the government. But the media in Bangladesh have little legal protection while performing this democratic responsibility. It is, rather, subjected to several legal constraints.
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law will be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine,
says a piece of law (Section 124A of Bangladesh Penal Code).
A note of ‘explanation’ of the law says that ‘the expression ‘disaffection’ includes ‘disloyalty and all feelings of enmity’.
This is absolutely undemocratic for any authority to claim that a citizen cannot have the right to cause ‘disaffection’ against a government, even if it fails to take steps to meet, say, the electoral pledges of a governing political party.
This law, or the Sedition Act as it is called, was inserted into the Indian Penal Code in 1870, while the ‘explanation’ was drafted by Lord Macaulay, the infamous mastermind of the Filtration theory of education that aimed at creating ‘brown sahibs’ in the Indian subcontinent. The law was re-written in the present form, with the ‘explanation’ remaining in the original form, in 1898.
Then, there is another piece of law in the statute book, a part of which forbids making, publishing or circulating ‘any statement … or report’ ‘with the intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State …’ [505(b) of the Penal Code]. In case of violation of the law, the person concerned ‘shall be punished with imprisonment which may extend to seven years or with fine or with both’. The original law, made by the British colonial authorities, found the offences under the provision punishable with two years of imprisonment, or with fine or both. But the government instituted following the ouster of General Ershad in 1990 increased the jail term to seven years. This is the period, which two of our editors ironically identified as the beginning of democracy and press freedom.
However, the next section of the Penal Code institutes a more direct and a constant threat to the freedom of thought, opinion and expression in general and the freedom of the press in particular. It stipulates that ‘whoever—(a) by words, either spoken or written, or by signs or by visible representation or otherwise does anything, or (b) makes, publishes or circulates any statement … or report, which is, or which is likely to be prejudicial to the interests of the security of Bangladesh or public order, or to the maintenance of friendly relations of Bangladesh with foreign states … shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both’ (505A of the Penal Code).
This piece of law, incorporated into the Penal Code in 1991 by the first BNP government of Khaleda Zia, is a clear betrayal particularly with the journalist community. The Non-party Caretaker Government headed by Justice Shahabuddin Ahmed, which was formed after the fall of the Ershad regime to conduct a general election, repealed certain sections of the SPA (Sections 17, 18 and 19) controlling the freedom of speech and expression of the citizens in general and the freedom of the press in particular. But as soon as the BNP was voted to power in 1991, it incorporated the more stringent provision into the Penal Code. The couple of our editors in question seem absolutely unaware of the situation.
Section 505A appears innocent, even patriotic at times, as it seeks to protect the ‘security of the country’ and maintain ‘public order’. But it is a well-known fact that most of the ‘national security laws’ have long been providing the rulers, especially of the Third World countries, with one of the major ‘legal’ instruments for silencing the freedom of speech and expression of the political opponents—the Special Powers Act being a glaring example in Bangladesh.
The idea of controlling the freedom of thought and expression on grounds of the ‘maintenance of friendly relations with foreign states’, as the section 505A of the Penal Code stipulates, hardly has any pro-people rationale. Why should a citizen be punished, if s/he finds, and subsequently says, that maintenance of friendly relations with certain foreign state/s, which is, say, hostile to Bangladesh, is counter-productive? Under the new world order, it is at times a patriotic job to inform the democratic citizens of an undemocratic foreign state, or the hostile state, about the ill-intentioned steps imposed on the people of Bangladesh, or any other country for that matter. But section 505A of the Penal Code forbids the citizens of Bangladesh to take a nationalist course vis-à-vis the hostilities of the foreign states.
However, when ‘offering unfettered controversy and fearless scrutiny of the intentions of the powerful is the primary function of the media’, the government of Bangladesh reserves legal authority to forfeit ‘every copy’ of a particular issue of a newspaper, or a book, or a document if the publication ‘appears to the government to contain ... any matter which is defamatory of the President ..., Prime Minister of the Government, the Speaker of Parliament ..., or any words or visible representations which incite, or which is likely to incite, any person or class of persons to commit any cognizable offence (Section 99A of the Code of Criminal Procedure).
In a democracy, it is only natural that their actions and inactions of the executive authorities of the State would, and should, be under continuous public scrutiny; and the media will examine and re-examine their performances on behalf of the people. It is, therefore, the moral responsibility of the press to report on them, if, and when, a President, Prime Minister or Speaker of Parliament indulges in things unbecoming of him/her, or involves himself/herself in things that are not permitted by the law of the land. But section 99A of the CrPC is an impediment to such reporting.
As regards free flow of information, which is rightly considered a very important ingredient of democracy and press freedom, Bangladesh suffers from certain legal and constitutional constraints. As we all know, public offices, especially government ministries, are major sources of important information that influences public life in every country. But the prime minister, ministers, ministers of state and the deputy ministers of Bangladesh are constitutionally obliged, under an oath of secrecy, not to disclose any information they come across while discharging the duties.
I … do solemnly swear (or affirm) that I will not directly or indirectly communicate or reveal to any person any matter which shall be brought under my consideration or shall become known to me ..., except as may be required for the due discharge of my duty…
reads the constitutional text of the ‘Oath (or affirmation) of secrecy’ [(Article 148(2)(b), Third Schedule, Bangladesh Constitution].
Many believe that it is rather ‘required for the due discharge of duty’ of a minister that she ‘reveals’ all matters brought under hisher consideration’ to the media—the professional intermediary between the people and the people’s representatives. There are, however, others who believe that a degree of confidentiality is required for the due discharge of duty of the ministers. But the fact remains that the ministers usually find it convenient not to divulge public information to the media in the name of upholding the oath of secrecy.
A legal regime permitting free flow of information, as all concerned know, is an important component of all modern democracies of the world. Besides, the issue of the free flow of information is related directly to the issue of transparency—which is, again, an important component of good governance advocated by all national and international democratic bodies these days.
But the legal regime that governs the Bangladeshi media remained as undemocratic as it was in the colonial and neo-colonial days of the British and Pakistani rule, with the perpetual existence the Official Secrets Act in independent Bangladesh being a glaring example.
The Official Secrets Act, made by the English colonial rulers in 1923, actually applies to matters relating to national security. It bars public servants to hand over to anyone any secret government plan, document, note, sketch, model, signal, information etc., which are related to ‘restricted places’, and which, if made public, could pose a threat to the security of the State by its enemies. But in practice, the government offices classify almost every decision, even including the order of transfer of a small officer from one desk to another, as a ‘top secret’ document and thus conceal even trivial information in the name of upholding the law. The law is thus frequently used, rather abused, by the government officials as a pretext to turn down journalistic requests for ‘documents’.
Besides, the officials of the public-sector business enterprises, such as Bangladesh Jute Mills Corporation, are legally obliged by a ‘declaration of fidelity and secrecy’ to ‘not’ to ‘communicate or allow to be communicated to any person not legally entitled thereto any information relating to the affairs of the Corporation.’ They are also to be oath-bound ‘nor’ to ‘allow any such person to inspect or have access to any book or document belonging to or in the possession of the Corporation and relating to the business of the Corporation’ (Bangladesh Gazette, Extraordinary issue, the Government of the People’s Republic of Bangladesh, 13 April 1977). Then, there is a provision in the conduct rule for the public servants, which directly stands in the ways of dissemination of public information to the media.
A Government servant shall not unless generally or specially empowered by the Government in this behalf, disclose directly or indirectly to Government servants belonging to other Ministries, Divisions or Departments, or to non-official persons or to Press, the contents of any official document or communicate any information which has come into his possession in the course of his official duties, or has been prepared or collected by him in the course of those duties, whether from official sources or otherwise,
says the rule (Section 19 of the Government Servants [Conduct] Rules, 1979). And the government/s hardly show/s any flexibility in enforcing the conduct rule, especially when it poses a slightest threat to their political image. A recent example might help understand the situation. In the wake of the deterioration of law and order in the capital city in February 2002, the newsmen started making frequent queries to police officers concerned about the reasons behind their failure to nab listed criminals and the plans to improve the situation. As some police officers responded to the journalistic queries, the Ministry of Home Affairs issued a circular, reminding the police officers of their obligation under the rule not to talk to the press [The (daily) Bangladesh Observer, Dhaka, 13 March 2002)].
Under such a circumstance, the country’s newsmen depend largely upon the ‘favour’ of the ministers and the officials concerned for gathering information emanating in the public offices. But whenever a journalist receives a ‘favour’, or a perceived favour for that matter, s/he has to pay the price—someway or the other. The consequence is obvious: professional journalism is the prime casualty.
But the executive authority of the state is still not satisfied with the legal instruments barring dissemination of information. It has also reserved the ‘legal’ authority to restrict the free flow of information, within the country and outside, by way of even intercepting postal articles and telegraphic messages.
There is a law that permits ‘any officer of the post office authorized by the Post Master General’ to ‘detain any postal article in course of transmission by post which he suspects to contain … any newspaper or book’ published in or non-conformity with the Printing Presses and Publications (Declaration and Registration) Act, 1973. [Section 27B(1) (a) (i) of the Post Office Act, 1869 as amended in 1973]. The officer also enjoys the legal authority to detain ‘any document, containing any treasonable or seditious matters …’ (Section 27B (1) (a) (ii), ibid.).
However, the owner of the postal article has the scope to apply for release of the detained article ‘within two months of such detention’, on the ground that the seized article does not contain any treasonable or seditious matters. Subsequently, ‘the Government may consider such an application and pass such orders thereon as it may deem to be proper’ (Section 27B, ibid.).
The law does not give any specific time frame for consideration of the application/s. Besides, ‘no order passed by the government’ ‘shall be called in question in any court’, other than the High Court (Section 27B (2), ibid.). In case of rejection of the application by the government, the victim ‘may, within two months from the date of order rejecting the application, apply to the High Court Division for release of the article and its contents ….’ (Section 27D, ibid.).
The legal authority vested in the government to detain any postal article containing any newspaper or book or document that ‘includes any printing, drawing, photograph or other visible representation’ on the one hand, and the complicated, time-consuming and expansive way of releasing the seized postal article on the other, clearly demonstrate the State’s undemocratic attitude towards the concept of the free flow of information.
Under another law—The Telegraph Act, 1885—the government enjoys the authority to intercept and/or stop transmission of any telegraphic message in the name of ‘public emergency’ ‘or public safety’.
On the occurrence of any public emergency, or in the interest of public safety, the Government or any officer specially authorized in this behalf by the government may … order that any message or class of message to or from any person or relating to any particular subject brought for transmission by or transmitted or received by any telegraph, shall not be transmitted or shall be intercepted, or detained, or shall be disclosed to the government making the order or an officer thereof mentioned in the order,
says the law [Section 5(1)(b) of the Telegraph Act, 1885].
The Income Tax Ordinance, 1984, stands in the way of disclosing certain types of specialized information, which is specially related to the social prestige of the unscrupulous rich. Section 163(1) of the ordinance says that ‘all information’ contained in ‘any statement made, return furnished or accounts/documents produced’ before the taxmen ‘shall be confidential and shall not be disclosed’. Section 168 of the ordinance provides punishment to the officials and others violating the secrecy provision. It says,
A public servant, or any person assisting, or engaged, by any person acting in the execution of this Ordinance is guilty of an offence punishable with imprisonment for a term which may extend to six months, or with fine, if he discloses any particulars or information in contravention of the provisions of 163.
The provisions of the Income Tax Ordinance are, in the first place, directly inconsistent with the concept of transparency of the government functions that various national and international civil society bodies preach these days. Besides, the provisions only provide for the unscrupulous section of the tax officials and that of the rich with the scope to strike unholy deals behind the scenes, depriving the public exchequer of a huge amount of revenue every year. The unscrupulous rich often use the provision as a Damocles’ sword against the tax officials to keep the former’s financial crimes out of the public eye. To give an example, five NGO officials in September, 2002, threatened one of the tax officials with punishment, under the two sections of the Ordinance, for presumably divulging information about the allegations of their financial irregularities to the press. Their move reportedly worked well in terms of gagging the mouths of the tax officials concerned. After the ‘legal notice’ issued to the tax official concerned, the rest of the officials became ‘absolutely uncooperative with the press, making the job of journalists, as regards collecting information and cross-checking them, very, very difficult’ ([Weekly) Holiday, Dhaka, 27 September 2002). Clearly, the provision concerned is totally inconsistent with the democratic concept of the ‘free flow of information’, or in other words, the ‘people’s right to know’.
Not that the all the constitutional and legal strictures discussed above are regularly applied against the media. But they are always there, as a Damocles’ sword, ready to decapitate anyone, including media practitioners, trying to take critical looks at the establishment. Under such a circumstance, it is absolutely ridiculous to claim that Bangladesh is a democratic state, especially as far as media freedom is concerned.
Rocky Road to Freedom
Freedom of the media, as said earlier, is directly related to the development of democracy, which needs to be understood something beyond mere transfer of state power through peaceful means. For a better understanding of democracy and freedom, we can take refuge in the ideas of a world-famous physicist, rather than those who already find Bangladesh democratic and its media free.
By freedom I understand social conditions of such a kind that the expression of opinions and assertions about general and particular matters of knowledge will not involve dangers or serious disadvantages for him who express them. This freedom of communication is indispensable for the development and extension of scientific knowledge, a consideration of much practical import. In the first instance it must be guaranteed by law. But laws alone cannot secure freedom of expression; in order that every man may present his views without penalty, there must be a spirit of tolerance in the entire population. Such an ideal of external liberty can never be fully attained but must be sought unremittingly if scientific thought, and philosophical and creative thinking in general, are to be advanced as far as possible.
If the second goal, that is, the possibility of the spiritual development of all individuals, is to be secured, a second kind of outward freedom is necessary. Man should not have to work for the achievement of the necessities of life to such an extent that he has neither the time nor the strength for personal activities. Without the second kind of outward liberty, freedom of expression is useless for him. Advances in technology would provide the possibility of this kind of freedom if the problem of reasonable division of labour were solved.
(Albert Einstein, ‘On Freedom’, Ideas and Opinions,
tr. Sonja Bargmann, Rupa & Co, 1999, Calcutta, pp. 31–32)
Understandably, the road is rocky. Meanwhile, the journalist community should realize that it is time they start fighting for scrapping of the whole gamut of undemocratic laws the Bangladeshi media is vulnerable to. For the freedom of the media, we are free to demand, in the words of Jefferson, ‘Printers shall be liable to legal prosecution for printing and publishing false facts, injurious to the party prosecuting, but they shall be under no other restraint.’
(This essay was presented at a week-long national workshop on Media, Democracy and Human Rights in June 2003. The Dhaka-based human rights coalition Odihkar organized a workshop in collaboration with the Asian Forum for Human Rights and Development [FORUM –ASIA]).
Recognition of the role of civil society initiatives in ensuring justice for all has given rise to the concept of tri-sector partnership in governance involving the state, the market and the organized efforts of citizens. The matrix can also work for Southasian integration for the benefit of the poor of the region. Integration initiatives by the state end up in accommodation between ruling elites. The market functions by exploiting whatever opportunity is available—once supplies from Amritsar to Lahore across the international border in Punjab were routed through South Africa to get around the consequences of a strained relationship between India and Pakistan. But civil society alliances need a free flow of ideas and people. For obvious reasons—visa regime in the region refuses to go away—a beginning has to be made with the free flow of ideas.
Militarized Polities
A normative hint is implicit in all discussions about civil-military relation, the assumption being that civilian supremacy should prevail over all military matters. However, this has never been so in Southasia. Every ruler prior to the arrival of the British in the subcontinent was invariably a military chief, the role that the king of Nepal held until quite recently and other heads of state continue to perform at least in a ceremonial capacity. The concept of civilian supremacy came with the East India Company.
The ‘army’ of the East India Company was essentially a mercenary force that functioned for and under the merchants of the colonial enterprise. Unfettered from the political struggles, sepoys of the Company did wonders under their careerist expatriate officers. It is estimated that the Company ‘annexed 27 square miles (70 square kilometres) of Indian territory per day over the century since 1757’.5 Had the Mutiny—or the First War of Independence—been successful, it is doubtful that there would have been so much anxiety over the primacy of the military in polity. This is one of the reasons that military in Burma claims legitimacy is its role during the freedom struggle. Had the Indian National Army under Subhash Chandra Bose not been disgraced due to its close association with the Imperial Army of Japan— notorious for its excesses in South-East Asia—the place of the defence forces in the Indian psyche could have been different. But those are matters of speculation. The hard reality is that the role of the defence forces in civilian affairs is not frowned upon anywhere in Southasia. Even in India, the most stable democracy in the region, defence forces practically run several states in the north-east and Kashmir.
Civilian leaders in India have succeeded in keeping their formidable defence forces under control for five main reasons. First, the multi-ethnic composition of the Indian Army makes it impossible for ‘nationalist’—in an ‘us’ versus ‘them’ sense of the term—appeals to gain currency. Second, the federal structure of the state, even though limited in substance, ensures that no military takeover can hope to acquire popular legitimacy. It’s much more advantageous for the defence forces to accept civilian supremacy mediating contradictory aspirations of various linguistic states. Third, political parties donning the mantle of freedom fighters, though much discredited, still exist and continue to be symbols of national unity. Fourth, the dreaded ‘military– industrial complex’ is much weaker compared to the market–politics nexus, mainly because defence production continues to be monopolized by the state and controlled by civilian bureaucrats who fear military dominance even more than politicians. Last, but not the least, unlike the elite background of military officers in most Southasian countries, the leadership of the Indian defence forces comes from the middle class, a group that prefers to play it safe and continue with the status quo.
Various hypotheses have been forwarded to explain the divergent route taken by defence forces of India on the one hand and those of Bangladesh and Pakistan on the other, even though all three originated from the same root of the British Indian Army. Pakistan as a praetorian state hypothesis is based on the assumption that the military since the time of independence has been the sole force that had kept the diverse country together. This hypothesis collapsed with the independence of Bangladesh. Another proposition, popular among intellectuals in India, revolves around geo-strategic designs of the Cold War era when the military was identified as a primary force of modernization by US academics. Armies,
are among the most modern elements in the underdeveloped countries, and are imbued with “the spirit of rapid technological change”. At the same time, they are an important modernizing influence upon the society at large, for they train members in modern techniques and inculcate new attitudes to work,6
wrote a leading British sociologist supporting the views of an influential American academic.
The fourth explanation centres around the importance of means in influencing outcomes—states created through violence have higher propensity of being dependent on coercive force than those that gain their independence through peaceful struggle or collective bargaining. That would make USA a security state, but that’s what its critics believe it to be in any case. An innovative explanation for the difference of democratic resilience was traced to the ‘political economy of defence in Pakistan and Bangladesh’ which nailed spiralling military budgets in these countries as the propellant behind the rise of authoritarianism.7 All of these arguments have some merit. They all point to the same thing: the self-perpetuating might of the Southasian military. Not that it makes Southasian countries any safer, but the size of the security apparatus and their expenditure keep rising regardless.
According to an International Institute for Strategic Studies (IISS) report, Afghanistan has 50,000 troops besides the International Security Assistance Force (ISAF) personnel, Bangladesh 126,500, India 1,316,000, Nepal 69,000, Pakistan 619,000 and Sri Lanka 150,900. Bangladesh spends $840 million, India $21.7 billion, Nepal $139 million, Pakistan $4.14 billion and Sri Lanka $686 million per year8 directly under the defence head in their annual budgets. Actual figures may be much higher considering that security expenses are often hidden under various accounts. Clearly, this is an elephant in the room that can no longer be ignored. The governance discourse in Southasia must include democratic—and not just civilian control—over the military as an important and urgent issue to be resolved. That’s easier said than done, but there is no escape. The ‘deal politics’ that has evolved in Pakistan, or the populism that civilian–military collaboration in Colombo keeps resorting to, have lost steam. Defence forces will have to accept democratic control for their own good. International engagements of Southasian security forces are substantial; and that will entail closer scrutiny of how they function at home.
Some common strategies that can be adopted across Southasia include:
- Gradual withdrawal of defence forces from police duties within the country. More attention to police reforms is implicit in this agenda.
- Reduction of direct foreign aid for defence forces is a necessary step to bring them under executive control and parliamentary oversight. One of the reasons defence forces in Indonesia, Philippines and Thailand have lost public esteem is that they are perceived to be too enmeshed with foreigners. A similar fate awaits Pakistan and Nepal if they do not begin to exercise restrain.
- Engagement of civil society in military matters is a tricky issue, but it’s necessary to establish forums of cooperative consultation where each one can voice her concerns—be it of human rights violations or interference in professional affairs—without fear of being ridiculed or called a traitor.
- An adequate presence of marginalized, oppressed and minorities in defence forces ensures their acceptability in society. The question of gender balance is of equal, if not more, importance. As focus shifts from physical to human security—though the two are inseparable, only the approach and emphases are different—the question of inclusion will become even more important.
There is a temptation to give some form of political role to the military as has been witnessed in Turkey. In Southasian societies, it’s hard to see how such a blatant interference in politics will work. This is something that must be resisted. A technique to counter political ambitions of influential military officers is to make space for them after retirement in political parties. This should help ease the strained relationship between ‘demagogues’ and holders of the ‘Damocles Sword’, the way soldiers and politicos derisively refer to each other in private conversations. Think-tanks are not popular in Southasia, but they have an important role to play in bringing academics and practitioners of strategic affairs together.
Then, there is the paramountcy of the rule of law that must be respected by all. Once defence forces are convinced that the ruse of civilian control isn’t being used to make them serve interests of the regime but to be for the people under the constitution, they will be much more open to suggestions for greater transparency, accountability and openness.
India too will have to justify its huge military budgets, now that it has a much lesser conquest or deterrence value—two principles that protect the primacy of defence forces. Perhaps this may be one of the reasons that India keeps waving the China Card9—the perceived threat from across the Himalayas which appears real to many due to the debacle of the 1960s—as it modernizes its security apparatus. But modernization of the defence forces beyond what the rest of the society can afford is a recipe for disaster.
Data Power
Clichés are often dismissed as ‘trite, overused words or phrases’; but some scholars hold that they have at least three legitimate uses: ‘basic communication, developing the unknown in terms of the known, and mnemonic devices.’10 Perhaps the legend that ‘information is power’ belongs to the last category. It helps the reader, viewer or receiver, recognize the importance of what is being said, and remember it for some future use.
The origin of the cryptic expression about information being power may be traced to Sir Francis Bacon’s famous dictum: ‘knowledge is power’. Perhaps similar importance was given to understanding prior to Bacon, and wisdom held sway earlier than that. With four levels of DIKUW hierarchy—a popular acronym in the knowledge management field where the capitalized alphabets stand respectively for data, information, knowledge, understanding and wisdom—thus associated with power, perhaps now its the turn of data to declare its sovereignty. Datum—facts—are indeed the most sacred of all, everything else is interpretation. There is some merit in the philosophical arguments that all facts aren’t truths, but truths have to be facts to be accepted as such. A humble clerk sweating it out in the decrepit cubicle of Southasian offices may not be aware of the philosophical nuances between facts and truth, but he knows—masculine gender is suggestive of the hold it has over much of the bureaucracy in the region—that any datum or data has some extractive value.
Slightly higher on the baksheesh chain, a set of data becomes useful ‘information’ that answers ‘who’, ‘what’, ‘where’ and ‘when’ questions related to something important to someone willing to pay for it. Now it is guarded even more fiercely, bargained for at a higher price and denied to anyone perceived to be a challenger. A slew of Official Secrets Acts—the British original was said to have passed by the Commons in less than an hour on a quiet Friday afternoon in 1911—forbids government officials from divulging any information deemed to be of strategic importance. It means either nothing can be divulged or everything is up for grabs for people with the right connections or capability to pay for what is being sought.
Things become slightly more complicated at the level of knowledge when skills and methods have to be identified, answers to the crucial question: ‘how’. Here again, those with the monopoly of knowledge in professions guard their territory fiercely. Understanding, more often than not, is closely tied to the ‘production of knowledge’; so the receiver understands what the sender wants her to. With the denial or release of biased data, intentional information, controlled knowledge, manufactured understanding and sanctified wisdom, the contemporary citizen suffers from a surfeit of information rather than the lack of it. It’s impossible to extricate useful figures from a web of lies that guard facts. The citizens’ right to information—its a fundamental right and the absurdity of the situation can be gauged from the fact that Acts have to be made to ensure what is an inviolable freedom—seeks to institutionalize procedures that will make it easy for everyone to get the information about what affects them directly or indirectly. If democracy is a method to seek the consent of the governed, the right to information is a tool to make the government accountable.
After a long struggle,11 Indians succeeded in getting a Right to Information Act in May 2005, which went into operation from 12 October of the same year. Now, Central Information Commissioner, Wajahat Habibullah, promises that a grading system will be employed to improve efficiency of the ministries.12 However, in the quasi-federal system of governance in India, most provincial governments have yet to imbibe values that the Right to Information Act seeks to establish. In Pakistan, an ordinance was promulgated in June 2002 ensuring people’s access to information. But it doesn’t override the archaic Official Secrets Act that makes almost everything that the government does opaque by definition. In Bangladesh, such a law has yet to materialize but Nepal seems to be doing quite fine where rights activists and journalists have made the right to information the touchstone of all other rights. The governance aspect of this right, however, remains weak.
More than the intent, it seems instruments and institutions that can ensure right to information are necessary. A pan-Southasian sample of the right to information— with prototype acts, methods of implementation and models of institution to monitor its compliance—needs to be developed. Aruna Roy, a former IAS officer turned social activist, has been at the forefront of the struggle for the right to information in India. She thinks it’s replicable elsewhere in Southasia too. But the Indian example also shows that the movement for right to information has to be initiated by civil society activists. Other actors in governance have too much at stake to let such acts materialize easily.
One indicator of why the bureaucrat-middleman-military-politician nexus fears the right to information can be seen in the Corruption Perception Index. With CPI scores of 2.0 in Bangladesh, 3.5 in India, 2.5 in Nepal, 2.4 in Pakistan and 3.2 in Sri Lanka, Southasian countries make up for the bottom part of the list. The only Southasian country to reach the half-way mark with CPI 5.0 is Bhutan. With so much to hide, the establishment is unlikely to learn to be transparent anytime soon. Only a concerted effort throughout Southasia can make rulers see reason.
Positive Discrimination
Caste in Indian society has long been understood in terms of ‘purity’ and ‘pollution’, an interpretation made fashionable by Louis Dumont’s Homo Hierchicus. But as Irfan Habib has convincingly argued,13 the economic origin of caste discrimination cannot be ignored. Since the origins of this practice lie in economics and sociology, remedies too have to be found in social engineering and political economy.
Experiments in social engineering through political mobilization have been an ongoing process in India with mixed results. In regions south of the Vindhyas, empowerment of excluded caste groups has permanently altered power relations in the society. In the northern region, however, the fluctuating fortunes of Lalu Prasad Yadav, Nitish Kumar, Mulayam Singh Yadav and Mayawati have yet to bring about fundamental changes in the situation on the ground.
Democracy, federalism and social restructuring are preconditions of political stability. Since these elements of stability are interconnected, actions need to be taken on all fronts at the same time. Democracy without meaningful federalism gives rise to centrifugal forces that can tear a state apart. Federalism in the absence of democracy too will probably lead to disintegration. But both democracy and federalism functioning properly are not sufficient to ensure political stability if processes to restructure state and society to remove inequalities and discriminations aren’t simultaneously initiated. Social restructuring is essential for the sustainability of democracy and proper functioning of federalism.
There is a considerable difference over the correct way of social restructuring. The modernist view that equal access to health, education and job opportunities creates equality in society and offers enough avenues for social advancement is still very popular in Southasia. Left-wing extremism, on the other hand, will have nothing less than a new beginning with a clean slate—the proverbial ‘year zero’. Between these two extremes, various reformist solutions have been implemented with mixed results in USA, South Africa and India. It’s too early to asses the full impact of these measures. It has been just sixty years since the experiment began in India; compared to the 5000 years history of untouchability in Hindu society; any hasty conclusion drawn from the short experience can be faulty. However, some generalization for understanding can perhaps be made.
For Southasia, a three-pronged social restructuring process can accelerate the process of change.
- Redistribution: Affirmative Action has been tried, with mixed results at best, in the USA to ensure equal opportunity. Lyndon Johnson, the architect of Affirmative Action policy said:
You do not take a person who, for years, has been hobbled by chains, bring him to the starting line in a race and then say, “You are free to compete with all others”. It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.
The race, unfortunately, continues to be between unequal citizens. However, Affirmative Action can be a useful tool14 to reduce horizontal inequalities between social, religious or cultural groups.
- Representation: It takes time for affirmative action to take effect. In the interim, at the risk of stereotyping or tokenism, steps have to be taken to ensure balanced representation. Positive discrimination can be used to remove vertical inequalities based upon gender, caste, regional disparity, religious discrimination, minority prosecution and class biases. Experiences from South Africa15 in ensuring representation— again, with mixed results—can be drawn upon to design the restructuring of society and polity in Southasia.
- Restitution: For the stigmatized sections of society, such as Scheduled Castes and Tribes in India, religious minorities in Pakistan, linguistic minorities in Bangladesh and Madhesi Dalits in Nepal, nothing less than quotas and reservations have any chance of success. Quotas and reservations have fallen prey to politicking in India where games are played with constitutional provisions for creation of vote-banks.16 But there should be no illusion that quotas and reservations can be wished away anytime soon if Dalits in Hindu society have to be brought at par with all others. Reservation isn’t charity; it is restitution and has to be seen as such.
Buzz-words such as ‘salad bowl’, ‘rainbow formation’ or ‘garden of diversity’ are bandied about in intellectual circles as if sagacious tokenism is the panacea. In the plurality of Southasia, nothing less than full and equal participation of all in the process of governance is going to work.
Most of all, Southasian governments have to shift emphasis from oppressive security-centred rule to responsive-welfare oriented governance. That alone will do a lot to create conditions for the plural unity of Southasia.