13 - Nepal’s Democratic Revolution by South Asian Media Net

S O U T H

A S I A N

Editor Imtiaz Alam

Contents Nepal’s Democratic Revolution

Senior Assistant Editor Maheen Pracha Consulting Editors Bangladesh Reazuddin Ahmed India K K Katyal

In this Issue Nation-Building in Nepal Prof Krishna Pokharel

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Nepal’s Unfinished Democratic Revolution Prateek Pradhan

WTO Membership and Nepalese Women Shiv Raj Bhatt and Ekta Bhattarai

Crisis of Minority Rights in South Asia Rita Manchanda

Publisher Free Media Foundation

Bangladesh: Amid Hope and Despair Dr Imtiaz Ahmed

Facilitator South Asian Free Media Association (SAFMA)

Sri Lanka: Peace Process under Threat Dr S I Keethaponcalan

OBC Reservation and Tamil Nadu Prof P Radhakrishnan

Printer Qaumi Press

Pakistan-Afghanistan Relations Prof Pervaiz Iqbal Cheema

Nepal Yubaraj Ghimire Pakistan I A Rehman Sri Lanka Sharmini Boyle

Editor’s Post E-mail: sajournal@gmail.com journal@southasianmedia.net

Pakistan’s Textile Sector and the EU Dr Karin Astrid Siegmann

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2006 Elections and India’s Ruling Coalition 124 Paranjoy Guha Thakurta

Address 09 Lower Ground Eden Heights, Jail Road Lahore, Pakistan. Tel: 92 42 587 9251, 587 9253 Fax: 92 42 587 9254 Email: journalsubscriber@southasianmedia.net Website : www.southasianmedia.net

Rights of Imprisoned Mothers in Pakistan Sikander Ahmed Shah and Moeen Cheema

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Document SAPANA Conference Declaration

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Nepal's Democratic Revolution After three weeks of popular agitation against King Gyanendra's authoritarian rule, the Nepalese people have won their fundamental rights that would be the envy of people in South Asia. Within weeks of the takeover by the Seven-Party Alliance (SPA), the restored House of Representatives has now declared itself sovereign and the king stands with his wings clipped. What Nepal could not achieve in the realm of politics in centuries has been achieved in days and weeks due to just one factor, i.e., the people's power. This is not, however, the first time that the people have made a difference. Previous mass upsurges have achieved partial goals, including the 1990 constitution. But Nepal fell short of becoming a republic. Will it now overcome all odds and become a republic? The struggle of the Nepalese people for a republic is spread over decades. After a brief period of multiparty democracy in 1959, King Mahendra seized power and imposed the “panchayat raj”, which alienated people from the monarchy. In 1990, the people again rose in rebellion and forced the king to agree to a new constitution. A whole decade passed with nothing but musical chairs played by politicians. They lost the people's confidence. Yet again the people rose after they saw a ray of hope in the twelve-point agreement reached between the SPA and the Maoists, which promised both a constituent assembly and a durable peace. The 238-year-old Shah Dynasty is on the verge of being consigned to the dustbin of history. It is not an impotent constitutional prerogative, but the people's mandate (Janadolan-II) that has empowered the restored House of Representatives (otherwise legally defunct under the 1990 constitution) to assert its sovereignty. The 18 May proclamation ends the world's only Hindu kingdom by declaring it secular, and strips King Gyanendra of all his powers. The king's Privy Council stands dissolved and with the dissolution of the military commission and the military secretariat, the king is no longer commander-in-chief of the now renamed Nepal Army. He is not even the ceremonial head of government, one that is no longer “His Majesty's Government” but the Nepal government. His income and assets have been made taxable and even the security of his palace is no longer in his hands. Such is the miracle of people's power-when unleashed, it can accomplish the seemingly impossible. No less interesting is the fact that the proclamation was read by a prime minister who is not a republican. But the Proclamation that Prime Minister G P Koirala read before the House of Representatives has even divested the king of his right to name an heir. The 1990 constitution is there but the proclamations being issued by the SPA government contravene it on many counts. The law of necessity now serves the people and not authoritarianism.

The king assumed absolute powers on 1 February 2005 on the pretext of fighting the Maoists who had come to control most of Nepal's rural areas. The king not only failed to quell the Maoist insurgency but also alienated almost all segments of civil society. This created a historic opportunity for the SPA and the Communist Party of NepalMaoist to join hands against the authoritarian rule of King Gyanendra. They agreed on a twelve-point charter that promised a constituent assembly to decide the fate of the monarchy. The Maoists and SPA agreed that arms and armies (both the Nepalese Army and the People's Liberation Army) would be placed under the tutelage of the UN or a credible international monitoring mechanism. Together, they created enough public pressure to force the king to retreat, even though he enjoyed the loyalty of the Royal Nepalese Army. The way is now being paved for the creation of an interim government to hold free and fair elections to the constituent assembly. But before this happens, the thorniest issue is that of the Maoists that are under arms. So far, the Maoists have welcomed the changes with caution and a ceasefire is being respected by both sides. They signed an eight-point agreement in June to create an interim government and replace the House of Representatives with an interim council representing various sections of society, besides agreeing to a 25-point ceasefire code of conduct. But the Maoists are complaining about certain regressive elements that are bent upon spoiling the situation. The most divisive issue is that of the arms under PLA, which the Maoist leadership refuses to relinquish unless the arms held by the Nepalese Army are also managed on similar terms by an international agency and both armies are merged into a national army under the prime minister. The fact of the matter is that the SPA and the Maoists deeply suspect each other, yet they have shown enough maturity in sidelining the king. Although the differences within the SPA, between republicans and royalists, and with the Maoists are becoming narrower, they still persist on most important issues. The two sides will soon start their second round of negotiations to iron out their differences on management of arms, an interim constitution and government, and election to the constituent assembly that is to decide the destiny of Nepal. The 24 April revolution showed not only the power of the people but also the bankruptcy of the authoritarian forces. It also showed how the fear of the Maoists' advance on the capital forced the king to partially abdicate and the SPA to call off the agitation. Most interestingly, before the Maoists could even think of moving into the capital, the people threw cold water on their ambitions by celebrating a half-way revolution on the streets of Kathmandu on 25 April. Had the people not displayed such a marvelous sense of history and timing, the history of Nepal would have been different. For the peoples of Pakistan, Sri Lanka, the Maldives, and Bhutan, there are great lessons to be learnt from the valiant struggle of the Nepalese people. They cannot be kept under authoritarian rule for long. A wind of change is blowing in the region, which nobody can stop. Hopefully, the Nepalese people will finally prevail and Nepal will become a republic.

Bangladesh: Amid Hope and Despair

Dr Imtiaz Ahmed, professor of international relations at Dhaka University in Bangladesh, reflects on the country's colonial and post-colonial legacy of polarised politics and the struggle for democracy. He examines issues of governance, empowerment, and the “governmentalisation” of the state sector and the corruption this invites. He juxtaposes this against the success of “non-governmentality” and its social and political implications. Dr Ahmed also analyses the relationship between globalisation, diaspora, and subalternity, and the impact it has had on the lives of Bangladesh's people.

Sri Lanka: Peace Process under Threat

Dr S I Keethaponcalan, a political scientist at the University of Colombo in Sri Lanka, analyses the deadlock between the LTTE and the new government of President Rajapaksa, after the latter's failure to implement the Ceasefire Agreement. He shows that a breakthrough between the LTTE and the Sinhala forces aligned with Rajapaksa seems impossible. The author predicts a final war in the near future for which the LTTE appears to have made full preparations, even if Colombo has not.

OBC Reservation and Tamil Nadu

P Radhakrishnan, professor of sociology at the Madras Institute of Development Studies in India, assesses whether India's judiciary can authoritatively settle the issue of educational reservation for Other Backward Classes (OBCs) and whether politicians will be able to translate these judicial decisions into reality. He concludes that the state has failed to address the issue of educating India's next generation in socially equitable and globally competitive ways. He recommends that existing institutions be nurtured by ensuring equity and fairness in intake, and strengthening education at all levels to address the problems of “backward students” more than “backward classes”, irrespective of their social background.

Pakistan-Afghanistan Relations

Prof Pervaiz Iqbal Cheema, a scholar of international relations, focuses on the initial problems of Pakistan's relations with Afghanistan, highlighting the Pakhtoonistan issue followed by the Soviet invasion and its impact on Pakistan. He analyses the developments that took place after the departure of the Soviets-including various accords among the Mujahideen--the rise of the Taliban, as well as the period after 9/11 and the war against terrorism.

Pakistan’s Textile Sector and the EU

Dr Karin Astrid Siegmann, a fellow at the Sustainable Development Policy Institute (SDPI) in Pakistan, looks at the anatomy of and prospects for trade relations between Pakistan and the EU, focusing on the textile and clothing (T&C) sector. She focuses on EU trade-related policies regarding Pakistan and the structure of its T&C industry, and provides an overview

In This Issue (The views expressed in this journal are solely those of the authors)

Nation-Building in Nepal

Krishna Pokharel, professor of political science at Tribhuvan University in Nepal, examines the theoretical concepts of nation and state, and the role that popular movements have played in the nation-building process. Assessing separately the causes of the 1990 movement, the Maoist-led insurgency, and the recent “April revolution”, he holds that the peaceful resolution of Nepal's ten-year conflict is finally possible.

Nepal’s Unfinished Democratic Revolution

Prateek Pradhan, editor of the Kathmandu Post, sheds light on the recent half-revolution brought about by Nepal's people against an authoritarian, monarchist regime. The author focuses on the interplay of forces, especially between the Seven Party Alliance and the Maoists, and its implications for the prospects of creating a republic by convening a constituent assembly. Both anti-monarchist blocs are now locked in protracted negotiations to settle the issues of Maoist arms, the nature of a transitional regime, and elections, as Nepal shows other South Asian countries a democratic path in a region still struggling to embrace democracy.

WTO Membership and Nepalese Women

Crisis of Minority Rights in South Asia

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Shiv Raj Bhatt and Ekta Bhattarai, both economists specialising in trade, look at the status of women in Nepal in the context of its membership of the WTO, which they predict could act as an instrument of trade liberalisation and significantly affect the lives of women. They find that trade liberalisation has had mixed results for gender outcomes, since socioeconomic conditions, institutional arrangements, and access to productive resources determine the extent to which a particular group of people benefits from trade. The authors suggest that Nepal needs active policy interventions to expand human choices and to contribute to increasing income and reducing gender inequalities, especially after WTO membership. Rita Manchanda, a journalist and human rights activist with SAFHR, provides an overview of South Asia's failure to protect minority rights. She asks why minorities rebel, and locates this in the context of a state design that predicates majoritarianism and exclusion. She examines the limits of strategies of multiculturalism, and different state regimes of protection, e.g., where state constitutions discriminate against minorities, and where ethnic polarisation and war have weakened the minority rights framework and any enduring perspective for rebuilding relations across these communities.

of resulting exports to the common market and likely consequences in terms of industrial and overall development. She also recommends measures to support a healthy trade partnership between Pakistan and the EU in this sector.

2006 Elections and Indiaâ&#x20AC;&#x2122;s Ruling Coalition

Rights of Imprisoned Mothers in Pakistan

SAPANA Conference Declaration

Paranjoy Guha Thakurta, a leading Indian journalist and director of the School of Convergence in India, looks into the state elections in West Bengal, Kerala, Assam, and Pondicherry, which have resulted in strengthening left-wing influence at the union level. While initially analysing the state elections, he argues that the incumbency factor has failed to extend to West Bengal--where the communists continue to rule--compared to other states such as Tamil Nadu, where incumbent governments have either lost elections or been forced to form coalitions. He concludes by saying that the Left, despite the duplicity of its approach in West Bengal and at the centre, has succeeded in increasing its influence over the Manmohan Singh government. Sikander Ahmed Shah and Moeen Cheema, professors of law at the Lahore University of Management Sciences in Pakistan, examine the Pakistani legal provisions that relate to imprisoned women and their children. They analyse the relevant laws and court judgments, including those rendered by the Federal Shariat Courts, to determine whether any special accommodations are mandated for affected women and their children. They also determine to what extent the law provides for the welfare of children in prison and whether this welfare is in any sense determinative for courts when adjudicating on cases relating to continued incarceration of women under Criminal and Hudood Laws. Leading academics and journalists from member countries of SAARC gathered at the South Asian Journal Conference, â&#x20AC;&#x153;Envisioning South Asiaâ&#x20AC;?, which was facilitated by SAFMA and held on 29-30 April 2006 in Islamabad, Pakistan. Delegates deliberated on issues put forward under 14 different areas: (i) trade and tariffs, (ii) custom laws, (iii) macroeconomic coordination, (iv) poverty alleviation, (v) regional economic investment, (vi) communications and infrastructure, (vii) energy, (viii) water, (ix) nuclear stabilisation and security, (x) conflict resolution, (xi) a South Asian Parliament, (xii) rewriting South Asian history, (xiii) religious revivalism, and (xiv) WTO and South Asia. This document presents their recommendations for a holistic and integrated South Asian vision by and for South Asians.

Nation-Building in Nepal Krishna Pokharel Until recently, nation-building in Nepal focused on the role and activities of kings and the political elite located at the centre of power. This paper examines the role of common people in the process of nation-building. The discussion spans the period from the establishment of modern Nepal in 1768 to the present day. Special focus is given to the 1990 people's movement, the impact of the Maoist-led insurgency, and the recent unprecedented people's uprising in April 2006. In common parlance, nation and state are used interchangeably, although the two are not the same. Strictly speaking, a nation is a group of people that shares a common identity, which may be built on a common language, history, race, culture, or occupation of the same territory (Almond et al. 2001). From the Marxist point of view, a nation is a stable, historical community of people that arises on the basis of a common economic life combined with the same language, territory, distinctive culture, consciousness, and psychology. The formation of nations and national liberation movements helps abolish the citadel of feudalism and establish either neodemocracy or capitalism. A state, on the other hand is a political community; there may or may not be a close correspondence between nation and state. Nations may or may not have their own state or independent governance. The national right to self-determination accepted by the Treaty of Versailles 1919 propagated the idea that every nation had the right to form its own state, following which, the concept of nation-state became a common phenomenon. Many new states, despite their political independence, still suffer the problem of national integration. People in such countries are reluctant to consider themselves part of a single nation or to pledge allegiance to a single centre of political power. These states represent a conglomeration of different tribal, ethnic, religious, and regional groups with little or no sense of identity or common interests. The integration of such communities into a nation-state and its subsequent development gives rise to the problem of nation-building. The Process of Nation-Building Nation-building involves developing a sense of community among people about the state they belong to. It provides a sense of identity, loyalty, social solidarity, and effective orientation to a system. This sense of community integrates diverse sectors of society and produces the consensus and cooperation so vital to domestic peace and political effectiveness (Kolb 1978). It implies developing a sense of national identity as a rallying point for people, cutting across their smaller group loyalties based on

language, religion, region, or ethnicity. The multi-communal character of developing countries creates a situation where the task of nation-building becomes even more challenging. The crisis of legitimacy impinges on the central authority, and regard for this authority and institutions of the political system become more difficult. The main political problem that developing countries face is the transference of loyalties from smaller primordial groups to an abstract all-encompassing unit--the nation-state. As long as the criteria for membership in this societal community are not recognised by the people, they cannot be expected to participate wholeheartedly in the democratic political process. This is why nation-building is so essential for developing countries. State-building, however, precedes nation-building and even paves the way for it. While the former is a political-legal concept, the latter is psycho-cultural one. Statebuilding occurs when the ruling elite create new structures and organisations designed to regulate behaviour and extract resources from society. Generally, the problem of state-building arises when the political system is threatened from either within or outside. To cope with this situation, the system works to develop of attitudes of obedience and compliance among its population, leading to the emergence of a bureaucracy. Unless both nation- and state-building are dealt with side by side, it is difficult to develop homogeneous loyalty and commitment to the central political authority, which ultimately jeopardises the very process of state-building. In the 1990s, when neo-liberalism was at its peak and emphasised deregulation and privatization, the essential functions of the state were neglected. However, there are important residual state functions such as providing a rule of law and other public goods that can be done by the state more or less better than by the private sector. When ruling elites in the form of nation-builders welcome international assistance in strengthening state, bypassing indigenous institutions, they infantilise local actors, impede ownership, and ultimately retard long-term capacity development (Fukuyama 2004). While defining nation-building, Deutsch (1963) draws a parallel with an architectural model. A nation can be built according to different sequences of steps, and in partial independence from its environment. This makes nation-building a slow and arduous process, and only through painstaking efforts can it be achieved. The process differs from country to country depending on socio-cultural environment, people's will, and the vision of the governing elite. There is no â&#x20AC;&#x153;one-size-fits-allâ&#x20AC;? model. Nepalese Context: Historical Perspective Modern Nepal emerged in the latter half of the 18th century when most of its neighbours were under colonial rule. Sandwiched between two giants--India and China--Nepal's unification effort was led by King Prithvinarayan Shah of the tiny principality of Gorkha. It was under his leadership that the Baisee and Chaubisee kingdoms of Kathmandu valley and the eastern principalities were united under one kingdom, Nepal. This process may have unified Nepal but it also hampered the plurality of culture, traditions, and tribal autonomy of the principalities. This

unification effort was continued by Prithvinarayan's successors, but it received a severe blow with the coming of the British to India. The unequal Treaty of Sugouli, signed in 1816 with the British imperial power, finally shaped Nepal's territory. Despite his irrational and repressive acts, the positive role of King Prithvinarayan should not be underrated. The irony of Nepalese history is that the crucial role of the people and fighters of Gorkha in this process has been completely overlooked. The history of Nepal has been a history of rulers and masters, and now needs to be rewritten from a social perspective. It was Bise Nagarchhi, the legendary cobbler, who advised the king to meet the cost of war by collecting physical and material resources from each and every household of Gorkha. It was this advice that Prithvinarayan followed and became successful. King Prithvinarayan's contribution to nation-building was only the political and geographical unification of Nepal. But why was the unfinished task of economic and socio-cultural unification not taken forward? The 238 years of the Shah Dynasty proved to be years of subjugation for most of Nepal's tribal people, the Madhesi people of Terai, and the Dalits--the so-called untouchables. The Hindu religion was imposed on tribals and non-Hindus under the leadership of kings. During the thirtyyear panchayat rule, when the country was directly led by the king, kingship was wrongly depicted as a symbol of national unity. Although it was will of the people, not the charisma or force of kings, that kept the country united, people had been led to believe that if the monarchy was abolished, the country would also disintegrate. After the people's movement of 1990, Nepalese politics entered a new era. The 1990 constitution was comparatively democratic and recognised the society as multilingual, multi-ethnic, and multicultural. Still, it could not offer justice. The policy of one language, one dress, and one country was tacitly adopted. But the creation of a liberal and open environment provided an opportunity to the previously suppressed people to organise and vent their grievances against the state. Tribals, indigenous people, and Dalits began to unite and, on the basis of their organised force, started to claim their due place in national politics. While the mainstream political parties were engaged in struggling for power, the Communist Party of Nepal (CPN)-Maoist raised arms and called for a protracted people's war. At the outset, no political force took this seriously, feeling that, with the fall of Eastern Europe and the Soviet Union, communism had lost its mass appeal. Even the mainstream communist party under the leadership of Madan Bhandari had already revised its political programme and adopted multi-party democracy. The Maoists played on the sentiments of the deprived and marginalised people of rural Nepal, and injected a sense of pride into the poor tribal, Dalit, female, and Madhesi, who, for centuries had lived under feudal oligarchic rule, and continued to tolerate their situation because of lack of political consciousness. Recruitment opportunities in the foreign army had partly acted as a shock absorber but when recruitment dried up and the message of the Maoists developed their consciousness, they took up arms for the first time to change their plight.

Nepal's Democratic Movement The fifty-five years of democratic struggle in Nepal is a history of empowering and depriving the people of their democratic rights. The democratic forces trusted the king and tried to accommodate constitutional monarchy, but every time they wanted to make monarchy an honourable institution, the king would breach his contract and impose autocratic rule. It was the revolution of 1951 that restored King Tribhuvan to his throne. He promised to constitute an elected constituent assembly and promulgate a democratic constitution, but slowly retracted from his promise and declared that the sovereignty of Nepal resided in him. His heir, King Mahendra, outrightly rejected the idea of a constituent assembly and declared a new constitution. Ironically, he could not even tolerate the government elected under this constitution. The over-ambitious monarch ousted the elected government of B P Koirala, dissolved the parliament, and established an autocratic rule under his own leadership. Koirala's first elected government could not even prove its worth. The thirty years of so-called democratic panchayati rule was an obscurantist experiment that dragged the country towards authoritarianism. At the end of the third wave of democracy, the democratic and left-wing political parties launched a peaceful people's movement which succeeded in re-establishing democracy in 1990. A triangular compromise was reached between the king, Nepali Congress, and the left front, which restored the derailed democracy to its right track. The Constitution of the Kingdom of Nepal 1990 not only established multi-party democracy and constitutional monarchy but also introduced a parliamentary system of governance and rule of law. For the first time, this constitution made the Nepalese people sovereign. Three consecutive general elections were held and even the peaceful transfer of power between political parties occurred as per the electoral outcome. It seemed as though the political game was settled. But the king was not content with the new settlement. Similarly, the left political group organised in the name of the People's Front, which was the third force in the first parliament, boycotted the second general election and declared an armed struggle in 1996, although initially, the mainstream political parties paid no heed to the impact of this insurgency. Two other factors helped ignite the situation. One was the lack of vision among the major political parties. Instead of understanding the gravity of situation and taking appropriate measures, they quarrelled over their own petty interests. The second was the mysterious palace massacre of June 2001. The entire family of King Birendra and even the probable contenders of the throne were massacred. After the ghastly incident, the miraculously escaped Prince Gyanendra succeeded to the throne. The new king was not like his brother and did not hide this. He openly expressed that his role model was King Mahendra, his father. Due to the Maoist insurgency, the country was in deep trouble, and the ruling Nepali Congress was divided into two hostile camps. The king exploited this situation for ulterior motives, and encouraged the prime minister to dissolve the House of Representatives and seek a fresh mandate. But the situation was not conducive for a general election. Ultimately, Prime Minister Sher Bahadur Deuba was compelled to recommend to the king that he postpone the election for at least a year. The king

misinterpreted the constitutional provision of Article 127, dissolved the Deuba government, and seized sovereign and executive power in October 2002. This step created a serious political and constitutional crisis. The democratic system established in 1990 had previously came under attack from the left; now it was under attack from the right. The mainstream political parties were kicked back into political abeyance and the old panchayati guards recruited. When his soft ploy did not work, the king declared an emergency on 1 February 2004, banned political activities, curbed the press, and started to rule directly, forming a cabinet under his own chairmanship. His whole effort was to convince the international community that he had been compelled to take this step and was committed to fighting the Maoist terrorists and restoring democracy within three years. But within months his grand design was exposed domestically as well as internationally. Even the so-called “China card” did not work. Meanwhile, seven mainstream political parties had formed an alliance and developed six-point common commitments. On the basis of these commitments, the Seven Party Alliance (SPA) forged a twelve-point understanding with the Maoists. This historic understanding raised hopes among the people and their confidence in the cadres of the SPA. Although the international community had harboured some misgivings regarding the intentions of the rebels, these were addressed by the SPA. The king's ploy to conduct local elections was foiled by the joint efforts of the SPA and the rebels. Finally, the SPA announced an indefinite strike and peaceful demonstration on 6 April 2006. Various professional groups and civil society joined in. This peaceful movement was actively supported by the Maoists. The 19-day people's movement was historic in every sense. Twenty-one people were killed, more than 5,000 demonstrators were injured, and more than six million people came out onto the streets to protest in a single day (Kantipur Daily). King Gyanendra's miscalculations brought him to the verge of collapse. He tried to patch things up by calling on the SPA to recommend the name of a prime minister on 21 April. But it was too late. Finally, he succumbed to the mass uprising. On 24 April 2006, he declared that he was ready to surrender all his political power before the SPA for them to implement their roadmap as they desired. In his declaration, he accepted the fact that the source of state power was the Nepalese people and that sovereignty resided in them. The popularly known “April revolution” took place. This time, not only the Maoists but also civil society and younger members of the mainstream SPA openly advocated a democratic republic. The entire population is now in favour of a republican state. Even a ceremonial monarchy is considered regressive. The 55 years of democratic struggle show that monarchy and democracy cannot go together in Nepal. Whenever monarchy is engulfed in trouble it compromises and when it gets breathing space it conspires. The greatest destabilising force for democracy is monarchy in this country. B P Koirala, the champion of constitutional monarchy, also wearied of the king's politics when, in a fiery encounter with King Mahendra, he found that the king wanted to go alone in Nepal's nation-building process. On 14 December 1960, two

days before the ill-fated December royal coup, a meeting was held between the king and the prime minister. The king tried to persuade Koirala to retreat and give way to him. He was of the opinion that their temperaments were not conducive to each other. Koirala put forward an interesting concept of nation-building before the king. He said that the king represented traditional state power while the prime minister represented popular people's power. The process of nation-building in Nepal is so arduous and difficult that without the cooperation of both, the goal could not be achieved. Although Koirala failed to convince the king and was incarcerated, Nepali Congress continued to follow this concept till 2005. Later on, Koirala developed and theorized his concept as the policy of 'national harmony'. It was only after the royal take over of 1 February, that Nepali Congress, through its national convention changed this policy and pursued monarchy-neutral democracy. Another mainstream left party, the CPN (UML), was republican by virtue of its political ideology. But after the popular movement of 1990, it slowly changed its stance and started to pursue the policy of constitutional monarchy. This implies that it too thought that the king had a distinct role to play in the process of nation-building. The royal takeover of February 1 2005 also disillusioned the party and it reversed its previous stance and made a democratic republic its tactical line. The Maoist Rebellion Ten years of Maoist rebellion has changed the political geography of Nepal. Although using violence to settle political agenda cannot be justified, the issues they have raised cannot be overlooked. Within years, they developed themselves as a national force to be reckoned with. Beginning with a few fire arms, cadres, and meager resources from remote rural areas of Rolpa and Rukum, the armed struggle of the CPN (M) has become a national phenomenon. The Maoists have very strong views on the question of nation-building. They are in the favour of national and regional autonomy for all oppressed nationalities, Madhesis, and oppressed regions with the right of self determination (negotiating agenda, 2003). This was their proposal during the second round of talks with the Suryabahadur Thapa government. The Maoists are of the view that issues like national security, foreign policy, international trade, fiscal and monetary matters, big industries and hydro-power should be tackled by the central authorities and the rest should be handed over to the regional authorities (Tamang: 2063). The interesting fact is that they have practiced this concept of regional autonomy in their so-called liberated areas. They are in the favour of restructuring Nepali society and inclusive democracy. For this, they propose to divide the country into nine regions. The Maoists want to build the nation from within, advocating the gender, linguistic and other rights of the people (ICG 2005). The April 2006 Revolution The epoch-making April revolution has turned the tables in the favour of the common people. The people's movement of 1990 had only pressurised the king to forge a compromise with the agitating political parties, but this revolution compelled the king to surrender. Now the fate of monarchy is at the mercy of people's vote. In the coming elections for a constituent assembly, if the people of Nepal vote for a republic, the monarchy will be wiped off the political map of Nepal.

Although some political forces on the domestic as well as international front are in favour of a ceremonial monarchy, the people's mood is against it. Political culture is not about events in the world of politics but what people feel about these events (Pokharel 2005). People were not reconciled to the findings of the Upadhyay Commission on the ghastly royal massacre. They were reluctant to accept the legitimacy of King Gyanendra's power. But mesmerised by the people's gathering during his tour and the ill advice of his court advisors, the king staged a coup. This made the people more suspicious, and thus, when the SPA and Maoists entered into their twelve-point understanding and called for a peaceful peopleâ&#x20AC;&#x2122;s movement, the people responded immediately. However, after the resolution of the conflict, the country will not be same again. If the SPA and the Maoists work sensibly, the present conflict can be resolved peacefully. The political consciousness of the people is so high that it will not allow the SPA to deviate from their goal. Even the position of the Maoists indicates that they are prepared to play a peaceful role in the national politics. The April revolution has given a golden opportunity to the political actors of Nepal. If things move along the right track, an all-party political conference will be held in the near future. It will draft an interim constitution and the Maoists will join the government and through their collective efforts, hold elections for a constituent assembly. The new constitution will declare a democratic republic. People of all marginalised nationalities and regions will enjoy autonomy and work for the prosperity of the country. Hence, the process of nation-building will start from below. Conclusion Although Nepal is a multinational state, a mono-national feeling prevails among the various ethnic groups. They are more likely to introduce themselves as Nepali rather than members of the Limbuan, Khambuan, Tamuan, Magarat, Tamang Saling or Mithila regions (Gurung 2063). Whatever injustices might have been perpetrated in the past, in the changed context of the present, the SPA and CPN (M) should not adopt a policy of forced assimilation and integration in the name of nation-building. Instead, they should pursue the policy of allowing 'a hundred flowers to bloom'. If the rural population feels that adverse policies are being imposed, they will react violently. They expect that the policy of unity in diversity will be pursued. In ten years of conflict, there was little or no commitment to peaceful negotiations and a determination to peacefully transform the conflict. But today, the April revolution has created a situation in which peaceful resolution of the ten-year conflict is quite possible. Through the concerted efforts of the SPA, the Maoists and civil society, conflict can be transformed, the barriers to nation-building can be overcome, and the country will march towards peace and prosperity. A new Nepal is looming large on the horizon.

References l Almond, Gabriel A. et al (2001) Comparative Politics Today. Pearson Education Asia, India. l Almond, Gabriel A. and Powell, Bingham G. (1966) Comparative Politics: A developmental

Approach, Little Brown series. United States. l Gauba, O.P (1999)An Introduction to Political Theory. Macmillan ,India. l Kolb, Eugene J.(1978) A Framework for Political Analysis. Prentice-Hall, India. l Kothari, Rajni (edi: 1976)State and Nation-building : A Third world Perspective. Allied

Publishers, India. l Neupane, Govind (2000),Nepalko Jatiya Prashna (Nepal's Question of Nationality).Centre

for Development Studies, Kathmandu, Nepal. l Pokharel, Krishna(2002) Modern Political Analysis and Political Research, M.K.

Publishers, Kathmandu. l Poudyal, M.P.(1984) Public Administration and Nation-building in Nepal. NBO Publishers, India. l Pye, Lucian W(1965), Aspects of Political Development. Little Brown and Company,Bostan,U.S.A. l Tamang, Sitaram(edi,2063). Nepal ko sandarbhama rajyako punha samrachana( Restructuring of State in the Context of Nepal), Saamana Prakashan, Nepal. l International Crisis Group (2005) Nepal's Maoists : Their Aims, Structure and Strategy. Asia Report No 104.

Nepal's Unfinished Democratic Revolution Prateek Pradhan Within a span of fifteen months, between King Bir Nikram Shahder Gyanendra's proclamations of 1 February 2005 and 24 April 2006, Nepal went through unfathomable political and social changes. No one, including the Seven Party Alliance (SPA), the Maoists, and the king visualised such transformation within such a short span of time. The revolutionary movement that reached its peak in the first three weeks of April tamed the king, catapulted the democratic political parties to the helm of the power, and helped bring Maoists to the negotiating table. The SPA and the Maoists have moved significantly forward in their talks as the rebel leader opted to make himself public inside the quarters of the prime minister of the country on 16 June 2006. The rebels even made the political parties commit to dissolution of the House of Representatives, which was recently restored after the successful people's movement. Moreover, the Maoists and SPA have agreed to draft an interim statute to rule the country, and form an interim government inducting the representatives of the Maoists and the civil society. However, despite the historic success of the initial rounds of the peace talks and the public appearance of Prachanda, the leader of the Communist Party of Nepal (Maoist), many political leaders are grumbling about the recent development. After two months of the change of guard in the government, the country is still hanging in a precarious balance. The king lost the war against his own people but has not lost his position as the head of state and still occupies the royal palace. The political parties have savoured the outcome of the revolution, and have also been successful in restoring the House that was dissolved three years ago, but they are not very comfortable among themselves and with the Maoists. Although the success of the peaceful movement has written off the justification of an armed movement, the Maoists are still at the centre of the political muddle. The Maoists have entered into the capital with huge, but peaceful rallies. They aspire to lay full claim to all the credit for the people's movement, they are demanding the dissolution of the restored House of Representatives, and a national conference (a sort of interim government) with their active participation. They have, more or less, become successful in attaining their goals after the 16 June 2006 agreement. At the time of writing, the king has reached a position where he would be happy to have saved his status as a ceremonial monarch and retained his son as the crown prince. However, it is not yet clear whether the people will grant him this wish through the elections of the Constituent Assembly. For political parties, the challenge is to manage the arms of the Maoists before laying red carpets for them into the government. The Maoists, on their part, have realised that their armed battle has served its purpose and helped the peaceful democratic movement emerge victorious,

so they are striving to enter into the peaceful political fray, and have so far made the SPA tow their line, with certain trimmings at places. However, they are still in a dilemma. If they give up arms, they are not likely to fare well in the elections, and if they do not, they are bound to fall out of the mainstream and will not be included in the interim setup. Moreover, there is also a heavy risk of the militia's disintegration. If they decide to give up arms immediately, a huge group or many smaller groups might disassociate themselves from the party and begin guerilla warfare and extortion in the name of continuation of the people's war. If they decide not to allow the management of their arms by a neutral agency, the democratic parties would not accept them in the government, and the Maoists will be left with no option but to go back to the jungle. This is the reason they are advocating an option where they would enter mainstream politics by keeping their arms within a disclosed area under supervision of the UN. Due to a traditional and feudal society, a lack of transparency and authoritarian culture even within the democratic parties, the dynamics of Nepali politics is too tedious to comprehend. In order to understand why the king is still there and is expecting to save his throne even if the Maoists are inducted in the government, and to understand why the Maoists would ultimately enter into the mainstream of multiparty political system giving up their radical Maoist revolutionary ideology, an analysis of Nepali politics is essential. The history of Nepal shows why people were so oblivious of the movement waged by the political parties since 4 October 2002 and how they suddenly risked their lives to restore democracy in Nepal during the final leg of the movement from 5 April to 24 May 2006. In order to explain why confusion reigns despite successful people's movement of 2006, this paper begins by going into the background of Nepali politics, then moving on to discuss the anti-autocracy movement, the last leg known as the April revolution, and an analysis of the causes behind the lingering confusion. Lastly, the paper summarises the immediate steps that have to be taken by both the Maoists and the government to establish peace in the country. Background Nepal has experienced numerous successful and unsuccessful movements, but none has achieved its goals. The first revolution in Nepal began when Mahatma Gandhi's independence movement shook India. Social reformer Krishna Prasad Koirala's exile from Nepal sowed the seed of political movement in Nepal. His sons Matrika, Biseshwore, Tarani and Girija (now prime minister) were all influenced by the Indian independence movement. All of them along with Manmohan Adhikari, Puspa Lal Shrestha, Krishna Prasad Bhattarai, Ganesh Man Singh, Dilli Raman Regmi and other educated and spirited youths formed different political parties to wage movement in Nepal. The movement became successful in 1950, and established democracy in the country, which turned out to be merely an agreement between the political parties, the king, and the Rana rulers. The main objective of the 1950 movement was not to establish a complete democratic state, with the King having the role of constitutional monarch. Bisheshwore Prasad Koirala himself admitted that they were fighting to establish a responsible government.1 However, he had an idea that the king should behave as per the rule of

the law. The people's movement dethroned Rana oligarchs, but instead of the people being empowered by the struggle, the monarchy became more powerful and influential. King Tribhuvan, who had returned to Nepal in 1950 with Indian and the Nepali Congress support, later on abandoned the political parties. He never held the elections to constituent assembly as promised. After the demise of King Tribhuvan in 1956, his son Mahendra chose to rule with an iron fist. The movement that had been termed successful in 1950 did not yield any result until 1958. The two generations of the kings used the period to weaken the parties by creating feud between parties and exposing them in the public. However, after the tremendous pressure from the parties, King Mahendra held elections to the House of Representatives in 1958, which were swept by B. P. Koirala's Nepali Congress Party. However, King Mahendra would not let the people's representative work freely for long. He sacked the government and dissolved the elected house by one proclamation on 16 December 1960. Subsequently, in 1962 the king announced the Panchayat Constitution. Though Mahendra died in 1971, the political system he instituted continued without much trouble until 1980. The first big challenge to the feudal Panchayat Raj came from the student movement that started after a minor event. The students who went to the Pakistan Embassy in Kathmandu to protest General Zia-ul-Haq's decision to execute Zulfikar Ali Bhutto were brutally repressed by the police. The event triggered huge protest all over the country, and the erstwhile King Birendra was forced to announce a referendum. The referendum was to choose between reformed Panchayati system and a multiparty democracy. It was because of B. P. Koirala's over-confidence in the people and his decision to remain out of the government during the elections that Surya Bahadur Thapa manipulated the elections in favour of the Panchayat. The communist parties' decision to boycott the elections indirectly helped sustain the Panchayat system. The â&#x20AC;&#x153;reformedâ&#x20AC;? Panchayat, in effect, turned out to be more autocratic and feudal. Corruption, nepotism and political discrimination reached new heights after 1980 for the next ten years. Due to new understanding between the democratic forces and communist alliance under the leadership of Nepali Congress leader Ganesh Man Singh, the movement of 1990 forced the King to give in to the political pressure. King Birendra scrapped the Panchayati constitution and invited Nepali Congress and the communist front to form the government. The interim government was led by Krishna Prasad Bhattarai, which drafted the Constitution of Nepal 1991 and held elections for the House of Representatives. The election brought Girija Prasad Koirala into power as the first democratically elected prime minister. However, even in 1990 the movement remained incomplete, because it was again a kind of agreement between the king and the political parties. All the high-level officials and royalists, who were corrupt and had grossly abused human rights during the Panchayati Raj were tacitly awarded general amnesty. The king was also given the status of a constitutional monarch with significant powers to remain above the law, made Supreme Commander-in-Chief of the Royal Nepalese Army, and given the right to the put royal seal on bills (and the right to send bills in question back to parliament), the right to nominate Upper House members, and the right to raise questions about the performance of the government, among other privileges.

As the king and his accomplices, who were involved in all sorts of corruption at the cost of a population, over 40 percent of which lived under the poverty line (income of less than US$1 a day), were given general amnesty, the regressive and reactionary forces were encouraged to start conspiring against democracy. Those who were disgruntled with King Birendra accused him of cowardice and said that he compromised too soon and gave too much. Those elements sought the shelter of the then businessman-prince Gyanendra. Inside the royal palace a group comprising the prince and Queen Mother Ratna were actively supporting the elements who wanted to restore absolute monarchy in the country. Perhaps due to heavy pressure from family and friends, King Birendra started interfering with the work of the executive. The king started nominating candidates for the Upper House on his own (which was not the case in the first government after the elections), which was supposed to be on the recommendation of the prime minister. Most of such nominated members were dead-supporters of absolute monarchy, like Ramesh Nath Pandey. The king also started seeking his share in the appointment of ambassadors. Within a few years, it became a trend for only king-appointed persons to become ambassadors to the UK and other countries. The constitutional monarch had already crossed the boundary when he sent a citizenship bill back to the parliament, and when it was returned without any amendment he sent it again to the Supreme Court. As per the constitution of the land he was supposed to give royal endorsement to the bill. While the political parties were confused about how to handle the situation, another issue emerged: a disgruntled group of the Communist Party announced yet another insurgency.

new history of Nepal. The steps taken by him to usurp power and become the absolute monarch pushed him to the brink of losing the throne within just 15 months, and empowered people to a level that was not anticipated. However, people are not satisfied with the achievements of the 2006 movement because they know that the monarchy has always found a way out to survive the rough weather, and retrieve power. Anti-Autocracy Movements Nepal is a typical example of a people willing to sacrifice lives for sovereignty, democracy and freedom. They have snatched their rights back from despotic, autocratic monarchs. Probably no other country in the world has lost democracy, and had it restored as frequently. However, when the king sacked the democratically elected prime minister in October 2002, it seemed as if no one opposed the king's move. In fact, the monarchists had rightly understood that the people were disillusioned by the political parties' lust for power and had advised the king accordingly. Taking the benefit of the political wrangling among the political parties, King Gyanendra grabbed the first chance that came his way in the form of dissolution of the House recommended by the then prime minister, Sher Bahadur Deuba, and he (the king) readily obliged Soon, the prime minister approached the king again to postpone the parliamentary elections. However, instead of granting the PM's second wish, the king unconstitutionally and unceremoniously sacked the prime minister on 4 October 2002.

Nepal has been in the global news regularly in the last decade, especially after the beginning of the Maoist-inspired peasant insurgency. In 1996 a small group of leftists went underground announcing armed insurgency against the state and the "bourgeois" parliamentary system. These people had become disillusioned with the parliamentary system (mainly due to its dismal performance) and wanted to establish a communist state as per the ideology of Chinese leader Mao Tse Tung. The insurgents started killing people, and news of policemen being slain by the Maoists became a regular phenomenon. The Maoists seized land from landowners and allocated it to the landless and poor peasants, and forcible evicted the upper strata and local administrators to establish their “people's” government and “people's courts”. Soon, they had captured most of Nepal's far-flung villages at gunpoint.

The king then tried three prime ministers in next 28 months, the last one being Sher Bahadur Deuba once again. However, no prime minister could hold elections without resolving the Maoist insurgency and reviving peace. The king then decided to take everything in his hand directly. Hence, the proclamation of 1 February 2005, where the king announced himself as the Chairman of the Council of Ministers, formed Royal Council for Corruption Control, imposed emergency, imposed pre-printing censorship on newspapers, etc. It was the monarchy's bad luck that Gyanendra failed miserably in attaining the goals of maintaining peace, ensuring good governance, corruption-free environment etc. Violence accelerated during his reign, and the local elections that he held forcefully to show that he had fulfilled his words, were simply rejected by the people. This was the last spell of the king which lasted only for 15 months, and alienated almost all of civil society.

As if the Maoist insurgency was not enough, the members of the royal family were gruesomely murdered during an attack on the royal palace, allegedly by the crown prince on June 1st 2001. The news of the murder of the whole of the royal family spread like a wildfire around the globe. In the "indiscriminate" shooting by the sniper rifles at almost point-blank range: ten royal family members lost their lives within ten minutes, but the family that would benefit the most from the incident escaped unscathed. The only living brother of the king became the successor of the throne. After taking over the throne, Gyanendra was in a great hurry to do many things within a short span of time. He even declared that he would not remain as a king who would only be seen but he would also be heard.2 The new king's proactive role wrote a whole

Yet, it was not easy for the parties to bring people onto the streets against the autocratic monarchy. They tried various methods to woo people. The political parties' mass meetings in Pokhara, Biratnagar, and Janakpur instilled a certain confidence in them. The Nepali Congress' Kathmandu gathering at Baneshwore was also impressive. Later, the Communist Party of Nepal (UML) organised an even bigger rally, which will be remembered in history as the day when Crown Prince Paras's car was stoned. Encouraged by the increasing people's support, the SPA announced a combined rally on 20 January 2006. The government clamped down on this by announcing a curfew. The government found a good excuse to clamp down on the parties' move as Maoists attacked police stations at Thankot and Dadhikot.3

Despite repeated efforts, initially the picture was not very encouraging for the political parties. Their only support had been civil society (mainly Civil Movement for Democracy and Peace), human rights organisations, a handful of media-persons and the Nepal Bar Association, which were incessantly fighting for democracy and fundamental rights. When professional groups like doctors and engineers also joined the movement and came onto the streets openly, the movement received another shot in the arm. However, major credit goes to the 12-point agreement between the Maoists and the SPA in November 2005 and their reaffirmed commitment to the agreement in March 2006.4 The April Revolution The last leg of the movement lasted only for 19 days--April 5-24. The parties announced the program to encircle Kathmandu from the ring road. The government announced a curfew within the ring road area of the capital. For the people outside the ring road, it became a routine to come up to the edge of ring road and chant slogans against the king and in support of a republican state. Inside the ring road also many pocket areas like Buddhanagar, Anamnagar, Aloknagar, Shantinagar, etc. broke the curfew almost every day, chanted slogans, organised rallies, and burnt tyres on the streets. The major areas that put up a strong fight against the government were Gongabu, Kalanki, Kirtipur, Kapan and Chabahil. The political parties were trying their level best to join these groups and move them into the city. In the meantime, on 11 April the first major clash broke out between the protestors and the security forces at Gongabu. The security forces used live bullets against the protestors. However, the use of arms and repressive measures only fuelled the movement. On 15 April, the people gathered at Kalanki moved towards Balkhu forming a mass of tens of thousands. Their attempt to enter into the city from Teku bridge was foiled by the use of excessive force. On 20 April, security forces used live bullets on the unarmed people at Kalanki, killing at least three. The Kalanki killing proved to be the last nail in the coffin of the royal regime. On 22 April, over half a million people went around the ring road. The 27-kilometer long ring road was almost half filled by the protestors. The king, who reportedly observed the rallies from his private helicopter, got nervous and decided to take a step back on the evening of 21 April. The misinformed king made another mistake by thinking that inviting the SPA to the government would resolve the entire problem. In his proclamation on 21 April, he boasted of the good deeds he had done for the country, praised the security forces that had already killed so many people, and called upon the Seven Party Alliance (SPA) to recommend a name for the post of prime minister. The king did not realise that it was too late for such amends. The 21 April proclamation was widely rejected by the parties and the people. On 22 April, people broke all the barriers and almost a million people entered into the city from all directions and tried to enter the royal palace. No military might could have saved the king on that day, but a heavy downpour with hail storm dispersed the crowd, and saved the royal palace. On 24 April at 11:30 p.m. the king finally bowed down. He accepted the demands of the political parties about the restoration of the House of

Representatives that was dissolved on 22 May 2002. He was even forced to extend heartfelt condolences to all those who lost their lives in the people's movement. The king's second proclamation within a span of three days was considered the victory of the people.5 The SPA formed the government under the leadership of 84-year old veteran leader Girija Prasad Koirala of Nepali Congress, while CPN (UML) was represented by the deputy prime minister. The House of Representatives declared itself sovereign and took many decisions to curtail the powers of the king and for empowerment of the people. His Majesty's Government became a thing of the past. Now it was only the Nepali Government and Nepali Military, no longer the Royal Nepalese Army. The king lost his position as Supreme Commander-in-Chief and the Privy Council has also been dismantled. The Parliament even took the right to decide the crown prince of the country. The House also made the people proud by announcing that a child could receive citizenship on the basis of his/her mother's citizenship as well. Similarly, the House also proclaimed that in all government organisations women would be inducted in larger numbers to increase their participation to at least 33 percent. The Girija government also formed a team, led by Home Minister Krishna Prasad Sitaula and comprising Pradeep Gyawali of CPN (UML) and Ganesh Dutta Lekhak of Nepali Congress (D), to pursue talks with the Maoists. Earlier, the Maoists had announced a three-member team including Krishna Bahadur Mahara (coordinator), Dev Gurung and Dina Nath Sharma. The first round of talks set the code of conduct to be observed during the ceasefire. It was interesting that the second round began with the public appearance of the rebel leader Prachanda who was underground for over 40 years. Not only that, they even took some phenomenal decisions regarding dissolution of the House, formation of interim statute and formation of an interim government. Despite such positive developments and optimism in the air, why is there still confusion? The Confusion Nepal is a peaceful country once again. The ultimate goal of the SPA and the Maoists is to hold the election for the Constituent Assembly and embark onto the multiparty democratic system with an aim to establish a democratic republic. The rebel militants and their arch enemy, the military, are exchanging pleasantries while providing security to their leaders. The front pages of the newspapers are no more splashed with the news of killings, murders and clashes. Business is slowly picking up, and there are no more strikes and closure of schools, transport, and business houses. The Kathmandu streets are once again relatively safe, barring the spate of looting and other incidents which also seem to be under control after a broad daylight clash between police and the looters following a foiled bank heist. People have started to move outside their houses and domestic as well as international tourism is looking good. The industrial mills are rolling once again, as the goods can be transported to any area without the fear of arson or being looted. Hence, there is a stroke of optimism in the political canvass, which however is still not colourful.

The confusion reigns because of the attitude of the political parties and the Maoists. There is a serious contradiction in their understanding about the people's verdict of the famous April movement. It is true that the movement was successful because of the active participation of both the SPA and the Maoists. However, the general public did not come onto the streets to support any one party in particular. The people supported the movement because they saw hope for sustainable peace after these two parties signed the 12-point agreement. The people had no faith in the political parties, and still do not believe them completely. If they had faith in the parties, the people would have taken to the streets long ago. The parties had been trying to woo the people since 4 October 2002 when the king dismissed the Deuba government. The people were really annoyed by the unbridled aspiration of the political leaders to earn money, make big houses and provide jobs to their sycophants and close relatives. The only benefit to the political parties is that the majority of the people want a multiparty competitive democracy, and that is the reason they rally behind the political parties despite all their flaws. On the other hand, the people are also not in support of the Maoists' objective of the establishment of one-party communist rule in the country. Most of the people are negatively influenced by the conflict, and they consider Maoists to be a group of savage people who kill others to achieve their political aspirations. However, the Maoists got the credit of the April revolution because the royal ministers were claiming that the general public was not convinced by the SPA, and the whole move was being organised by the Maoists, leading the Maoists to get this impression as well. They were proven right when the people rejected the king's proclamation on 21 April that asked the SPA to form a government. Over half a million people who swarmed the capital seemed to support the Maoist agenda. However, the Maoists and the royal government were proved grossly wrong within just three days. The Maoists had rejected the king's April 24th proclamation of restoration of the House, but to their utter surprise, people took part in the victory rally the next day, which was bigger than any other rallies in the past. It proved that the people had accepted the restoration of the House as the ultimate goal of the people's movement. The confused and awestricken Maoists came up with three statements within a week. On 25 April morning they claimed that accepting the king's call was a "historic blunder" on the part of the political parties.6 Prachanda stated that the blockade of the valley would continue and their struggle would not stop. After seeing the victory rally on the 25th, the Maoists had to change their stance and they came up with yet another statement announcing withdrawal of the blockade. In less than a week, they also announced unilateral ceasefire and showed commitment to accept peaceful settlement on all the issues. Now when a ceasefire is being observed from both the sides and negotiations are going on, both sides have started blaming each other. The Maoists are blaming the political parties of being content with the restoration of the House and forgetting the major issue of election of a Constituent Assembly. The Maoist team leader Krishna Bahadur Mahara has gone to the extent of denouncing the government and claiming that the attitude would disrupt the peace process. The government is blamed to have done things slowly, and being in favour of supporting the ceremonial monarchy in the

country. The Maoists have demanded immediate dissolution of the House and replacement by a National Conference that would incorporate the Maoists as well. On the other side, many political leader in SPA have shown skepticism about the Maoists' arms. Despite the fact that they have entered into an 8-point agreement with the Maoists on 16 June 2006, the political leaders have gone wild with the pace of the peace negotiations. They have failed to catch up with the development of peace talks. Even before the Maoists have laid their arms, there are talks about bringing them into the government and incorporating their participation in an all-party body that would work like a parliament until the elections of a Constituent Assembly are held. The senior leaders of Nepali Congress, Nepali Congress (D), and CPN (UML) have criticised their own government and asked it to get the mandate from the general assembly of the party. Confused Foreign Forces The recent political developments have confused the US the most. They have not yet revoked the terrorist tag from the Maoist party, already on the verge of joining the government. If it happens, the US would have the same situation as they had in Palestine where the party recognised as a terrorist party formed the government. In such a case, the US would be forced to remove all its programs from Nepal. Political analysts are looking at both Indian and American roles as quite crucial in this conflict. They believe that both India and the US are lobbying for the ceremonial status of monarchy in the country. These countries are worried that if the monarchy is abolished the Maoists would be major players in the politics and will establish their type of authoritarian system sooner or later. The red-carpet welcome to Prime Minister Koirala in India on 6 June, and the welcome by none other than Indian Prime Minister Man Mohan Singh at the airport is also being interpreted in this light. Maoist supreme leader Prachanda has openly warned the political parties not to follow imperialist American and expansionist Indian line.7 Prachanda has also asked the parties to refrain from taking the credit of successful people's movement by taking big decisions from the "dead House that has been brought to existence by artificial life". The Maoists are desperately seeking the support of middle and lower-middle class bourgeois, because this group would be the most influential at the time where ballot result only decides the power owners. The rally and mass meeting held by the Maoists in the capital on June 2nd was also intended to gain the confidence of the middle class city-ites. On this day the Maoists spent at least 20-30 million rupees from their "hard-earned" extortion money. The bone of contention at the moment is the credit of the people's movement. The Maoists are worried that the SPA has already emerged victorious, snatching the credit of the movement, whereas the SPA is irritated that the Maoists are demanding more than what they deserve. However, at the moment the Maoists are certainly in a better position, which is confusing the leaders of other political parties. Conclusion The state of confusion at the moment is because of lack of trust between the SPA and the Maoists. The SPA is confident that the people's support was for them, so they do

not need to compromise much. They are also suspicious of the Maoists' intention. On the other hand, the Maoists want to give an impression that the people's war made everything possible. Despite the confusion, one does not need to be pessimistic of Nepal's situation because the Maoists cannot afford to go back to jungle, and the SPA government cannot ignore the demand for a Constituent Assembly. For the SPA, the popular mandate of the revolution is to establish sustainable peace by brining the Maoists into the negotiations. If the political parties deny it, not only the Maoists but the republican line within the political parties will also create problems for the leadership. Similarly, the civil society that fought so strongly for democracy has already made it clear that they are going for a republican state. Hence, they will also be coming out strongly against the SPA. So, even if the parties (mainly a few top leaders in the Nepali Congress) want to do away with the Constituent Assembly, it will not be a practical or possible act. In the case of the Maoists, they have openly admitted that they were unable to win over the military because of the involvement of foreign forces.8 The Maoists have also understood the power of the peaceful movement, because the SPAled movement achieved in 19 days what the Maoists had been trying for over 10 years at the cost of 13,000 lives. However, it is unfortunate that both the parties, despite knowing their limitations, are trying to achieve as much as they can, leading to the confusion in the country.

References l The Kathmandu Post. Various issues. l Kantipur daily. Various issues. l Subedi, Surya P. Dynamics of Foreign Policy and Law: A Study of Indo-Nepal Relations. Oxford. l International Crisis Group. 2006. Report. l Hutt, Michael ed. Himalayan 'People's War'. London: Hurst & Company. l Nepal, Gyanmani, and Sajha Prakashan. Nepal Ko Mahabharat. l Thapa, Deepak. A Kingdom Under Siege. London and New York: Zed Books. l Press Releases by the Maoists. l Proclamation by the King on various occasions End Notes 1. Page 93, Aatma Britanta by BP Koirala 2. Time Magazine interview 3. The Kathmandu Post, 15 January, 2006. 4. Separate releases with the same content by SPA and Prachanda on 19th March, 2006 5. The Kathmandu Post May 23, 2006. 6. Prachanda Statement on 25th April 7. Nepal Samacharpatra, Nepali daily, front page, June 6, 2006. 8. Prachanda told to the writer in the first every face-to-face interview with Nepali press. The Kathmandu Post, 6 February, 2006.

WTO Membership and Nepalese Women Shiv Raj Bhatt and Ekta Bhattarai Background Nepal is a landlocked country situated between two emerging economic powers--the People's Republic of China and India. A least developed country (LDC), Nepal is home to nearly 24 million people, among which nearly 90 percent depend on rural-based activities for their livelihood. Women constitute half of Nepal's population and a visible majority of the poor. Despite significant socioeconomic achievements in the past decades under a planned development effort, women are still lagging behind their male counterparts. In fact, the development that took place in the country over five decades has not improved the lives of many disadvantaged groups, including ethnic minorities and women. Dissatisfaction and anger of the excluded resulted in political unrest. Today, Nepal faces problems generating economic growth because of political instability and the ongoing Maoist insurgency that began in 1996. Despite the critical situation, Nepal acceded to the World Trade Organization (WTO) on 23 April 2004. It is believed that global integration of the economy through WTO membership is essential for expanding trade opportunities, facilitating competition, absorbing knowledge and thereby creating opportunities for growth and pursuing overall development goals. However, it may benefit a few, leaving the majority worse off unless the government takes an active role in managing and shaping it. Therefore, trade liberalisation, in general, and Nepal's accession to the WTO, in particular, could also have mixed consequences. Trade liberalisation, particularly through WTO membership, might help to expand trade but does not necessarily guarantee immediate or even longer-term economic and human development (UNDP, 2003). Factors such as internal and external institutions and social and policy preconditions largely determine to what extent the country and the people benefit from trade.1 The mainstream trade theory holds the view that production specialisation according to each nation's comparative advantage typically leads to a more efficient allocation of resources in the world economy and consequently to higher levels of output and growth in all countries. Accelerated growth, in turn, will promote national development and reduce poverty. Therefore, expanding global trade is beneficial to all countries and their citizens. However, economists working on gender and trade, investigating the complex relationship between gender inequalities and trade liberalisation find that trade liberalisation has had mixed results for gender outcomes (Cagatay, 2001; SAWTEE, 2003 and UNDP, 2003). In this context, Nepal's membership to the WTO may also produce mixed outcomes, especially for women. Therefore, to overcome the challenges and reap the benefits of membership, Nepal needs to assess the implications of WTO membership in different

sectors of economy and society, which in turn help to formulate and implement appropriate policy measures to fulfill the development needs of the country. Trade-Gender Interlinks The interrelationship between trade and development is debatable, but there is no doubt about the positive relationship between trade and growth. Trade as a powerful source of economic growth can be instrumental in poverty reduction and gender equality. But the link between trade and growth is not automatic and expanding trade cannot guarantee poverty reduction or gender equality. Socioeconomic conditions, institutional arrangements, access over productive resources and many other factors largely determine whether and to what extent a country or a particular population groups benefits from trade. Trade liberalisation has had mixed results for gender outcome, especially in LDCs where widespread gender discriminations prevail in economic life. General trade theory tells us that in the process of opening up to trade, labour abundant countries will experience job creation and the relative wage of unskilled labour will rise over time. This job creation will largely benefit women, since women dominate the labour intensive industries.2 Similarly, it is argued that because of increased competition in the local market due to a more open trade regime, companies can no longer afford to discriminate against women by paying a premium to male workers just because they are men. Recent studies have also shown that export-orientation in developing countries increases female employment primarily in the manufacturing sector and in semi-industrialised economies.3 Though trade liberalisation may benefit women in terms of employment, their 'comparative advantage' as workers lies in their lower wages and inferior working conditions. Indeed, much of women's trade related gains in employment have occurred in state-promoted export processing zones, which are exempted from local labour laws, and in the informal sector, where work is characterised by long hours, insecure employment, unhealthy conditions, low wages and often, sexual harassment (SAWTEE, 2003). Even when traditional export crop production increases, the situation would further deteriorate because of the lack of women ownership of resources. Similarly, trade reform tends to benefit large and medium producers, since small farmers, especially women, often lack access to credit, new technologies, marketing know-how and the like needed to take advantage of new markets (Cagatay, 2001). In most countries, women work longer hours than men, yet are paid less because a bulk of their work consists of domestic duties, and they are more likely to live in poverty. Moreover, in predominately agricultural economies, lack of access to resources (i.e. land, credit and knowledge) "not only hinder the ability of women to take advantage of new opportunities created by trade liberalization, but also constrain the output response and the export capacity of the whole economy. Gender inequalities in education, health and access to farm inputs often dampen output, productivity and growth rates, and thus hinder export production" (Cagatay, 2001). Therefore, in order to combat these problems, women need to gain: knowledge of a

country's laws and regulations; access to resources, such as credit and education/vocational training; and access to agricultural technology. There is a possibility that the well being of women and children may not improve if steps are not taken to eradicate these problems. If the increase in family income is accompanied by a decrease in food crop production, the family nutritional intake might suffer while women's work burden increases. WTO membership may be instrumental in promoting human development and gender equity if it facilitates the process of equitable broad-based growth, creates employment opportunities especially for women and the poor, broadens production and export base, and facilitates transfer of technology and human resources development. Nonetheless, proper policy interventions are needed to materialise the benefits of membership; otherwise it may create unfavorable conditions for women, widen gender disparities, and negatively influence the process of gender empowerment. A study conducted by South Asia Watch on Trade, Economics and Environment (SAWTEE) on gender implications of Nepal's accession to the WTO reveals that trade liberalisation has both positive (basically though expanding self-employment opportunities, job creation and deregulation) and negative (mainly due to exploitation, lack of education and technical barriers to trade) implications for women.4 Against this background of socioeconomic differences between men and women in Nepal, it can be said that the outcome and impact of WTO membership on men and women would be different. Trade liberalization, accompanied by passive economic policy may fail to expand human choices and contribute to increasing income and gender inequalities. Governments can influence how trade liberalisation affects a woman's well being.5 Therefore, it is imperative to implement active policy interventions rather than passively wait for the markets to deliver automatic benefits if the opportunities of WTO membership are to be translated into tangible, widespread, long lasting and equitable benefits for the people of Nepal. Status of Women in Nepal In Nepal, the status of women has improved in the past few decades, especially in the areas of education, employment and health.6 In 1981, only 12 percent of the females in Nepal were literate. In 2003/04, the NPC estimated the rate to be 33.8 percent (Nepal Living Standard Survey, henceforth NLSS). In terms of employment, the female participation rate in Nepal's labour force is higher than South Asia's average41 percent of Nepali women, whereas only 33 percent of all South Asian women were employed as of the year 2000. The statistics for the health sector are promising as well; the fertility rate has decreased--in 1980, the average number of children per mother was 6.1; in 2003/04, that average was down to 3.6. The contraceptive prevalence rate for women ages 15 to 49 increased--in 1980 it was 7 percent and in 2000, the rate was at 39 percent. On a depressing note, the maternal mortality ratio in Nepal is the highest in the world53.9 for 10,000 live births.7 Even though Nepal has seen some positive trends in the above areas, there is plenty of room for

improvement and the country has a long way to go to eliminate poverty and gain gender equality. Although the country has graduated from low to medium human development status, the level of human development in Nepal is still quite low and it also has very low levels of attainment in individual indicators of human development, such as income, life expectancy, literacy and gender equity. The Gender-related Development Index (GDI) for Nepal has a score of 0.484 against the HDI score of 0.504. The ratio, GDI/HDI percentage is 96.03, which suggests that the depth of gender disparity in opportunity is not very high. However, the GDI for rural areas (0.452) is significantly lower than that of urban areas (0.581). The Gender Empowerment Measure (GEM) score for Nepal--0.39--1indicates that women are far less empowered than men in political, economic and professional domains. Women's share of earned income is about one-half of that of men while their participation in the political process is only one-fourth that of men. The gap is even wider in terms of participation in professional and administrative jobs. In addition, women in rural areas are much less empowered than those in the urban areas. Though the progress in GDI and GEM over the period 1996-2001 has been relatively satisfactory, it is still low and much effort is needed to uplift the status of women. Statistics The government acknowledges that gender equality is the most important source for combating poverty. Although women play a large role in Nepal's economic sphere, their domestic work, as well as the agricultural work they do is not considered in the national income estimation.8 Their input in agriculture is ignored because most women participate in subsistence farming. Table 1: Information Exhibiting Status of Females Indicators Population (%) Average age (in years) Literacy rate (above 15 years in %) Participation in Council of Ministers (%) Member of House of Representatives—Lower House (%) Member of Rastriya Shabha—Upper House (%) Participation in civil service (%) -Policy formulation level (%) Judges (%) Teachers (%) Participation in communications sector (%) Participation in foreign employment (%) Land ownership (%) -Agricultural land ownership (%) House ownership (%) Household heads (%) Contribution to agriculture production (%)

Male 49.96 61.8 62.2 94.45 94.15 86.67 91.45 96 97.96 74 88 89.15 89.16 95.6 94.49 85 39.5

Sources: National Population Census Report, Central Bureau of Statistics (2001); and Human Development Report (NHDR) 2004.

Female 50.03 62.2 34.6 5.5 5.85 13.33 8.55 4 2.04 26 12 10.85 10.83 4.4 5.51 15 60.5 UNDP Nepal

The table above shows that women fill only 5.85 percent of the House of Representative (Lower House) seats, 13.33 percent of the seats in the Rashtriya Sabha

(Upper House) and women take on only 5.5 percent of ministerial positions in the national government. Also, only 8.55 percent of women participate in civil service and only 4 percent of women are at the policy formulation level. According to UNDP's NHDR 2004, only 19.33 percent of women participate in local elections. This data proves that very few women take on decision-making roles in the government. Much of this is due to the cultural restraints they face. The facts and figures presented above show the low socioeconomic status of Nepalese women. Many factors determine this situation, including Nepal's highly patriarchal society, suppression, exploitation, illiteracy, ill health, poverty, orthodox traditions and a discriminatory legal system. The country has one of the highest indicators of son preference in the world.9 Boys not only pass on the family name, but also are thought to be the future caretakers of their parents. Thus, parents are far more likely to encourage their sons to study in the hope that they will obtain a respectable position in the workforce and be able to support their family. However, when it comes to educating their daughters, they are wary. Not only will educating them cost money and take time away from their household chores, whatever a girl gains through education is considered insignificant to her parents. It is felt that since the daughter ends up moving out of the house after marriage, she cannot be depended upon financially. So instead, mothers focus on training their unmarried daughters to take care of the household to prepare them for life after marriage. Women in the Labour Market In terms of work, women all over the world suffer from the effects of unemployment, job stereotyping, sexual harassment, wage disparity, reduced access to jobs and vocational training and have difficulties in moving up the ladder in the job force. The majority of women in Nepal have to endure a “double burden” and sometimes even a “triple burden”. Not only do they serve as (1) economic agents and work outside of the home to bring in money, but also once they return home, they have to (2) handle household duties, such as cleaning and cooking, and some even have (3) childcare duties to attend to. The first form of work--paid employment--leads to positive effects on a woman's bargaining position within the household. However, the latter two forms of work are usually not accounted for and are considered to be 'feminised work'. Women are looked at as being primarily responsible in the reproductive sector (Acharya, 2003). The NLFS categorises labour into three categories--paid, unpaid, and self-employed. According to the NLFS 1998 survey, of the total female labour force, 7.7 percent women are paid regularly, 28.9 percent are self-employed, and a staggering 63.4 percent are involved in unpaid work. Only 1.99 percent of the total female labour force participates in the non-agriculture formal sector. This is highly unfortunate, because in this sector, workers not only receive a regular wage, but other benefits as well. 12.80 percent women participate in the non-agriculture informal sector, where they receive a daily wage. There is very little gender-sensitive statistical data complied by the government, so it is difficult to properly measure women's contribution to the economy and the

economically active population in the labour force. Much of the work women partake in does not get converted into monetary value. WTO Membership: Opportunities for Women On the basis of literature on the gender-trade interlink and status of women in Nepal, it can be assumed that Nepal's WTO membership produces mixed outcomes for women. Furthermore, the low economic and social status of women, their low level of representation in the decision-making process and their lack of ownership of productive resources hinder their ability to reap the benefits of membership. On the other hand, negative implications are automatic. Many experts maintain that WTO is gender-neutral, while others claim it is gender-blind. The WTO does not directly incorporate a gendered perspective in its trade policies, but virtually all WTO Member states have endorsed CEDAW, as well as the UN Beijing Platform for Women (1995), which states, "The Final Act of the Uruguay Round of multilateral trade negotiations underscored the increasing interdependence of national economies, as well as the importance of trade liberalisation and access to open, dynamic markets…Therefore, only a new era of international cooperation among Governments and peoples based on an equitable international, social and economic environment and a radial transformation of the relationship between men and women to an equal partnership will enable the world to meet the challenges of the 21st century."10 It is understood that in order for WTO Agreements to be beneficial to all, each Member state has to strive to promote gender equality if it wants to improve both economically and socially. The following WTO Trade Agreements directly or indirectly affect women in Nepal the most. Agreement on Agriculture (AOA) The AOA requires WTO member states to work towards liberalising agriculture trade, thus promoting an export-driven economy. The AOA deals with three areas of commitment--increased market access; reduced domestic support for farmers; and export competition. The AOA specifies that member states must undertake specific binding commitments in these areas. The introduction to the AOA maintains that the long-term objective of the WTO is to “establish a fair and market-oriented agricultural trading system and that a reform process should be initiated through the negotiation of commitments on support and protection and through the establishment of strengthened and more operationally effective GATT rules and disciplines.” The goal is to prevent “restrictions and distortions” in the world agricultural markets by ensuring that developed countries do not control the market. The introduction also notes that “commitments under the reform programme should be made in an equitable way among all Members, having regard to non-trade concerns, including food security and the need to protect the environment…and taking into account the possible negative effects of the implementation of the reform programme on leastdeveloped and net food-importing developing countries.” According to Article 15 of the AOA, S&D treatment is accorded to developing country members--they have the flexibility to implement reduction commitments over a period of up to 10 years. LDC

members, on the other hand, are not required to carry out reduction commitments. The Agreement affects men and women differently due to existing gender inequalities concerning access to resources and decision-making power. There is a gender divide in terms of agricultural labour--the majority of women farmers in Nepal and other developing countries participate in subsistence agriculture and the work they do is considered to be 'reproductive'. Men are responsible for producing export crops; hence they have a 'productive' role in the agriculture sector. However, increasingly men are migrating to cities in search of more substantial jobs. As a result, the number of female-headed households is increasing on a global level. Women are forced to take on more responsibilities, including producing cash crops and becoming involved in food processing, to provide for the family. This affects the agriculture industry in many ways--traditional foods are becoming less economical to produce; the global market is vulnerable to the overall changes; there is a decline in rural incomes; there is more input-intensive commercial agriculture; and productive resources are increasingly being controlled by agribusiness.11 The high subsidies that developed countries grant to their farmers are harmful to developing countries--it weakens the market price of agricultural products. Therefore, the Agreement creates inequalities between the developed countries that are able to grant subsidies to their farmers and the developing countries and LDCs, who do not have the capital to provide such a benefit. Case Study In most African and South Asian countries, the agriculture sector is dominant and employs the majority of the population and the majority of workers in this sector are women. Only a small number of women farmers can independently engage in the production of export crops because of their limited resources. The promotion of export crops in Africa has negatively affected domestic food production--this primarily affects women, because they are the ones involved in subsistence agriculture. The people that benefit from agricultural liberalization are medium and large-scale farmers. In Ghana, women were traditionally involved with food processing. However, with the onset of market access, transnational corporations like Nestle are taking over. Women, because of their lack of credit, training, and low educational level, are not able to compete with them. As a result, Nestle was able to meet both local demand and export the products to other West African countries. Unfortunately, because of the competition, the products locally processed by women were displaced, so the opportunity for greater sales of more value-added products was lost.12 In India, small farmers, especially women, have not experienced the prosperity that was supposed to occur by liberalizing trade. Executive Director of the Pesticide Action Network for Asia Pacific, Sarojeni Rengam, maintains, "These were empty promises, and for millions of small farmers, the result has been the entrenchment of poverty, destruction of livelihoods, increased burdens, and for

many it has literally meant empty stomachs. Women farmers are the worst hit by the process of liberalisation; they face loss of livelihood as subsidised imported food products are dumped into the country. They work longer and harder and are increasingly exposed to hazardous pesticides. The cost of food production has increased due to costlier inputs."13 According to a study carried out in ten South Indian villages, there has been a focus on cash crops, taking time away from food crops (the crops which are also used for household consumption). The decreased food production has led to higher food prices, lower income and a decline in food intake and in nutritional status of women.14 However, some women (those who focused on small-farm commercialisation) have been able to benefit from the AOA. The benefits included an increased income and other financial capital gains. Partaking in small farm commercialisation also increased the social status of women and led to an increase in empowerment. There is a downside to this though, and that is a loss of human capital (i.e. less time for social activities, education, and childcare). Women are still responsible for 'reproductive' activities; so their workload is often double that of men.15 Agreement on Textiles and Clothing (ATC) The GATT's Multi-Fibre Agreement (MFA), and its successor, the WTO's ATC, included a quota system. This was beneficial to countries that could not compete with industrialised nations. The quota system led to the establishment of large garment and textile industries all over Asia, creating millions of jobs in the process. On January 1, 2005, the ATC expired, so the quota system was abolished. Today, regulations for textiles and clothing follow regular WTO protocol. The liberalisation of the textile and clothing sectors may pose problems for LDCs, in general, and women, in particular. The abolished quota system hit countries like Nepal the hardest, where factories are less efficient. The industries in Nepal are slowly dying due to products imported by more competitive countries, i.e. China, India, Thailand, and Mexico. Women workers in the garment and textile industry are often the main household income earners. Hafiz Pasha (2004), of the UN, declares that for countries like Bangladesh, Nepal and Sri Lanka, the end of the quota system will lead to: an increase in unemployment through factory shutdowns; an increase in competition, which leads to lower prices; an increased demand for shorter lead times and higher quality clothing; and a simultaneous decrease in wages and increase in working hours-meaning worse working conditions for those who are able to keep their jobs. The impact of quota eliminations for women is mixed. For example, the phasing out of MFA in India brought about a substantial rise in female employment. However, elsewhere, it is possible that when labor cuts are required, women will be the first to be let go.16 This is problematic, because the chances of women securing alternative employment are relatively low. These potential negative implications for women working in the textiles and clothing sector, need to be taken into account by the

government. Hafiz Pasha insists, "Competitiveness should not mean lowering wages or increasing working hours, but should instead translate into improved labour productivity. This requires upgrading skills to make them more compatible with the needs of buyers in international markets." Therefore, Nepal needs to implement training programs for women so they can upgrade their skillsthe low-skilled women (those who concentrate on sewing and putting together pieces) are usually the first to be fired. Nepali manufacturers need to modernise their factories and buy new technologies (and train both women and men how to use them). Their products will be upgraded and they will not lose out to other South Asian countries. Nepal is granted the Generalised System of Preferences (GSP), a form of positive discrimination which is a under the WTO, due to her status as an LDC. The GSP offers unilateral tariff concessions, including duty-free status. Canada, the European Union (EU), Australia, Japan and Russia are providing this. In order to increase its exports to these countries, Nepal needs to strengthen its capacity as a trading partner. Members can withdraw GSP without any justification, but the EU has promised grant GSP to Nepal until the end of 2006. The EU, through its Everything-But-Arms Initiative, also grants Nepal duty-free status for all products, including RMGs, under the GSP. This gives Nepal a transition period and allows for increasing exports of RMGs to EU countries. One unfortunate matter in relation to GSP given to Nepal by the United States is that RMGs are not included; the majority of RMG exports during the quota system went to the United States. Even though exports of RMGs to the United States have declined by 52 percent from the years 2000 to 2004, the US is still the largest buyer of RMGs from Nepal. However, the garment industry should also focus on exporting goods to EU countries, especially because Nepal is granted duty-free status. In 2004, only 18 percent of RMGs were exported to various EU countries. The garment industries need to make maximum use of the preferential benefit they're given by the EU due to Nepal's status as a LDC. Developing contacts in the EU countries is essential to gaining market access. In the long run, there may not be such a negative effect of quota eliminations. Many buyers have become comfortable buying from certain countries, and these countries have realized their forte. Building strong relationships with buyers is invaluable. For example, Sri Lanka is well known for its lingerie and Victoria's Secret's depends upon Sri Lanka for a bulk of their goods. A Goldman Sachs survey found that 86 percent of European buyers and all the American buyers were negotiating price cuts. Unfortunately, the same study also found that buyers expect to buy from fewer countries than before which is bad news for less competitive markets like Nepal.17 Case Study Bangladesh has been a member of the WTO since its inception. Bangladesh is also an LDC and is heavily involved in the garment industry. Of the 1.8 million people employed in the garment industry, 90% are women. The export sector grew from US$1 million in 1978 to a staggering US$4.5 billion in 2001.18 Trade

expansion has led to an increase in employment opportunities for women. According to The Economist (November 11, 2004), the garment industry in Bangladesh has grown from 400,000 people and 800 factories in 1990 to nearly 2 million people and 4,000 factories today. Zaidi Sattar, an economist at the World Bank in Dhaka, estimates that 10 to 12 million people depend on the industry, either directly or indirectly. Trade expansion has also had positive effects on women's income. Their daily wage rates in the garments sector are twice as high as those paid in the agriculture sector. This has given them economic independence and improved their position within the household. Still, women in Bangladesh are put in lowskill jobs and have little promotion prospects. Men are hired to fill the positions of skilled workers. Also, women are not trained to use new technologies. The quota elimination can lead to a loss of 25% in exports for Bangladesh.19 A problem that could fuel this loss is the fact that all the raw materials required for RMGs are imported--this puts a premium on labour costs, productivity and transport. A potential solution to this problem is the government, which can help by subsidising the production of man-made fabrics. Others counter that textiles are a capital-intensive industry and capital is hard to come by in Bangladesh, so taxpayer's money would be better spent on building infrastructures, for example. Some studies of the implications of quota elimination in Bangladesh confirm that female workers in the RMG industry will be affected the most. The Bangladesh Ministry of Commerce estimated that the elimination of quotas would lead to an immediate retrenchment of 180,000 female workers. Similar studies in Cambodia have shown that female workers send a large share of their income back home to their families. If they are laid off, it affects not only the female workers, but those who depend on them for remittances as well.20 In the RMG industry of Tiruppur, India, 96.3% of women were employed as casual laborers, receiving no benefits, but a daily wage instead. Trade liberalization in India has resulted in a decrease in a worker's bargaining power and an increase of casual work for women. It has created a wealth of jobs, but these jobs are located in the informal sector, so labour laws of India do not protect women, who constitute the majority of workers in the informal sector.21 At this time, one can only speculate how the quota elimination will affect women in the textile and clothing industries of less competitive countries. General Agreement on Trade in Services (GATS) WTO Member states, under GATS, are required to gradually liberalise their service sectors. However, each member state makes individual commitments in which it lists the sectors that it wishes to open up to international competition, as well as the percentage of openness it wishes to establish, keeping in mind their domestic interests. Industries that fall into this category include hotels, banks, institutions for education and health, insurance agencies, telecommunication companies, etc. Nepal

is committed to opening up 37 major sectors and sub sectors and allows up to 80 percent of foreign direct investment (FDI).22 According to the GATS (Article 1), there are four modes of trade in services: Mode 1 consists of cross-border trade; Mode 2 refers to consumption abroad; Mode 3 consists of the commercial presence; and Mode 4, which is thought to be most beneficial, refers to the movement of natural persons who supply services from one country to another. Among these Modes, Fourth Mode is the most gender sensitive; therefore focused in this paper. Women comprise a significant share of the international labour movement. This is due to the changing labour requirements in foreign countries. An increasing number of women are looking for better work opportunities and are willing to move abroad for a few years to make a living--working as either skilled or unskilled laborers. According to World Bank data, women's participation in international trade in services was 23 percent of a total of US$1.6 trillion of exports of services. In 2002, 1.3 million foreignnational temporary workers were admitted to the United States. The US has a quota of 65,000 specialty workers allowed in country per year, and that number is confirmed in US multilateral commitments under GATS. However, not taking into account the numerous undocumented workers, 370,000 specialty workers entered the country in 2002.23 Women are concentrated in mostly labour-intensive services. They are predominant in care and hospitality services and are also active as doctors, nurses, public health workers, teachers and social service workers. Agricultural and horticultural services have also become 'feminised'. In Sri Lanka, 12 percent of the total labour force works outside the country. In 2002, the total number of Sri Lankan overseas workers was 970,000, 70 percent of whom were women. In a number of LDCs (eg. Bangladesh), statistics show that a significant number of women emigrate in search of better job opportunities.24 However, these women tend to occupy low-skilled jobs. People from developing countries willing to move abroad to work are attracted to the high salaries provided in developed countries, so south to north movement is most popular. South-south movements are quite significant as well, but are often under-recorded (i.e. Nepal-India movements). Gender-specific benefits from women's participation in international trade in services include:25 (i) Women make a large contribution to remittances received by developing and least-developed countries. They are much more likely than men to save money and often send a larger proportion of their earnings back home to their families. In 2003 alone, US$93 billion in remittances were sent to developing countries, (ii) by providing women with employment opportunities abroad, the unemployment rate will decline, (iii) the knowledge and experience women receive abroad will assist them in gaining substantial work domestically. It will improve both their skill and educational levels, (iv) moving abroad does not require much capital--which is difficult for women to acquire, (v) women make their own money and become more highly valued both socially and economically and (vi) Mode 4 trade in services has contributed significantly to the reduction of gender-related wage disparities in home countries. For instance, when less skilled women leave their home country in search of

temporary work in another country where they are offered higher wages, there is a likelihood of a pay raise for low-skilled workers. In Nepal, there is a surplus of human resources. This forces women to emigrate in order to find employment and to be able to support their families. For example, nurses are in high demand in the United States, and the country imports nurses from India and the Philippines. The Philippines has been quite successful in providing overseas work for their nurses. Of the 26,500 foreign nurses who applied for US nurse licenses between 1997 and 2000, 36 percent were trained from the Philippines.26 Nursing has become a popular course of study in Nepal for women as well, so they should be provided opportunities to work abroad. Conclusion Trade liberalisation may have mixed results from a gender perspective. In terms of human development, liberalisation further affects women when export growth comes at the expense of exploiting female workers, neglecting care work and increasing gender inequalities in opportunities and benefits, (Cagatay, 2001). Although, especially in patriarchal societies, there is a notion of women being responsible for 'reproductive work' throughout the world, they should not become default providers of care for the elderly, sick and children. Nepal's membership in the rules-based trading regime can only be beneficial to the country if proper plans are implemented nationally to assist in the liberalisation process. The current national Five-Year Plan strives to integrate women into the national economy, and has proposed many strategies, which are meant to be compatible with WTO principles, to promote both economic growth and human development. The Tenth Plan is gender-sensitive promotes not only poverty alleviation, but also women's empowerment and gender mainstreaming. Nepal cannot properly develop until gender inequalities are destroyed. However, no matter how many strategies are proposed, unless they are fully implemented, they will be insignificant. Policy Recommendations There is need to eradicate the social and cultural values that disadvantage women. The participation of women in the labour sector is directly connected to the level of education, skills and opportunities they receive. The main goal for Nepal in relation to women's economic participation is to secure equal economic rights for women by increasing their employment opportunities, as well as their access, control and possession of resources. The government also needs to fill the gaps in labour laws to make them correlate with international labour standards (i.e. the International Labour Organisation). Female workers in the informal sector are being denied basic rights, such as minimum wage and safe working conditions. As Nepal's economy becomes more liberal, employment will rise, but it is likely that women will be placed in jobs in the informal sector. Women should be encouraged to participate in all forms of government--from the grassroots to the national level. They should be encouraged to participate actively in the decision-making process to ensure that they are not devastated by economic liberalisation. The government also needs to ensure that women's work is not

undervalued and under recorded. Nepal is lacking in terms of gender-sensitive data. The national accounting system needs to be improved so that a true assessment of women's contributions to the national economy can be formulated. Other Sector-Specific Recommendations Agriculture. To shield women from the negative effects of agriculture trade liberalization and to ensure that they benefit from its positive effects, it is imperative that they are given equal training opportunities. If women receive the same technical assistance their male counterparts get, they could switch to growing crops that yield higher returns, increase their productivity and create a better overall product, allowing them to compete fairly in the market. Women's participation in decisionmaking in agriculture needs to increase as well. Women should participate in community-based organisations/groups; by doing so, they can voice their opinions and ideas and advise each other on issues related to agriculture, credit, technology, etc. These gender issues have to be integrated into domestic agriculture policies. Similarly, it is essential that women be allowed easier access to resources, especially credit. Women in Nepal are forced to turn to greedy moneylenders because they have no collateral to hand over to banks. If informal savings and credit programs, which offer low cost loans, are created in rural areas, women will benefit very much. Moreover, Nepal needs to promote small farm commercialism. The Agriculture Prospective Plan, which aims to help landless women and disadvantage groups, stresses the production of high value crops (i.e., horticulture, bee-keeping) and livestock. Both these crops require very little land. The government can do so by assisting in the development of self-reliance skills in both male and female farmers and in promoting organic farming, production of high value crops, as well as sustainable agriculture. This way, they cultivate not only export-oriented products, but food for their family as well. This will combat food insecurity issues. For Nepal to receive any benefits of WTO membership in relation to women and agriculture, the country has to make use of the S&D treatment provision under the AOA and the 'green box' exemptions from "aggregate limits on domestic supports in such areas as extension services, stockholdings for food security, domestic food aid and disaster relief."27 In order for women farmers to compete in international markets and make revenue, a reduction or removal of agriculture subsidies by developed countries is the best solution. Garments. Nepal's garment industry is dependent on imported fabrics. The development of backward linkages would reduce costs and provide more opportunities for the domestic textile industry as well. Studies have shown that as much as 60 percent of the cost of production of garments in Nepal is composed of imported material. In the long run, by becoming less dependent on imported materials and encouraging the use of domestic raw materials, this industry is more likely to become competitive. The government should motivate Chinese and Indian companies to set up joint ventures in Nepal. The Chinese and Indians will bring in not only capital, but new technologies as well. Nepal, as an LDC, gets preferential market access from the EU and the US. In addition, investment in training programs for women so they can upgrade their skills and create a higher quality product is desirable. Promotion of the Nepali fashion industry, which would focus on unique

designer products, is necessary.

l UNDP, Nepal Human Development Report 2004: Empowerment and Poverty Reduction.

Services. Initiatives directed at attracting FDI do not control the market and negatively impact local service suppliers, especially the businesses owned by women. This would not only lead to a rise in unemployment, but force women to move abroad for work, where they, unless they are able to secure professional jobs, are placed in positions that require little or no skill and receive lower pay in comparison to men. Gender-sensitive employment and pay equity legislation is in place--applicable to both national and foreign service suppliers.

l UNDP, Making Global Trade Work for People, United Nations Development Programme,

UNDP/Nepal, Kathmandu, 2004.

References l Acharya, Meena, Efforts at Promotion of Women in Nepal. Tanka Prasad Acharya Foundation, 2003. l Cagatay, Nilufer. "Engendering Macroeconomics and Macroeconomic Policy", UNDP, 1998. l Cagaty, Nilufer. “Trade, Gender and Poverty.” UNDP: New York, Oct. 2001. l Central Bureau of Statistics (CBS)/HMG-N, National Population Census Report, 2001. l Central Bureau of Statistics (CBS)/HMG-N, Nepal Labour Force Survey, 1998/99. l Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) General Assembly Resolution 34/180 of 18 December 1979. l INC-Gender Profile: Nepal (2001) l Http://www.acdi -Cida.gc.ca/cida_ind.nsf/vall/85AE29CF66173B8285256B58005666E6?OpenDocument l Economist, The. "The Textile Industry: The Looming Revolution," November 11, 2004. l Ministry of Women Children and Social Welfare, HMG-N. National Plan of Action on CEDAW, 2004. l National Planning Commission, HMG-N. The Tenth Plan (2002--2007), Kathmandu, Nepal. l New Business Age. "WTO and Nepal," May 2004. l http://www.nepalnews.com/contents/englishmonthly/businessage/2004/may/cover.htm l New Business Age. "Garment Industry: Time to Stitch a Niche," February 2005 l http://www.nepalnews.com/contents/englishmonthly/businessage/2005/feb/cover.php l Nordas H.K., "Is Trade Liberalization a Window of Opportunity for Women?" WTO, Economic Research and Statistics Division, 2003. l Pasha, Hafiz, "Protect Asia's Women: When Textile Quotas Disappear," International Herald Tribune, December 30, 2004. l http://www.iht.com/articles/2004/12/29/opinion/edpasha.html l Pesticide Action North America (PANNA), "WTO Agreement on Agriculture Hurts Small Farmers," April 8, 2002. http://www.panna.org/resources/panups/panup_20020408.dv.html l Randriamaro, Zo. "The WTO Agreement on Agriculture and Food Security for Small Scale African Farmers from a Gender Perspective," 2002. l http://twnafrica.org/news_detail.asp?twnID=267 l SAWTEE, "Gender Implications of Nepal's Accession to the WTO, South Asia Watch on Trade Environment and Economics", Kathmandu, 2003. l Tran-Nguyen, Anh-Nga and Americo Beviglia Zambetti (eds.) "Trade and Gender: Opportunities and Challenges for Developing Countries." UNCTAD, New York and Geneva, 2004. l UN, "Fourth World Conference on WomenPlatform for Action", http://www.un.org/womenwatch/daw/beijing/platform/plat1.ht m l UNDP, Human Development Report 2004. United Nations Development Programme, New York, 2004.

Earthscan Publications Ltd, 2003. l United States Senate, “Senator Feinstein Introduces Bill to Aid Least Developed Nations,”

February 8, 2005. www.senate.gov l World Bank, Nepal. "Database for Gender Statistics" l www.worldbank.org.np l WTO Legal TextsThe WTO Agreements l http://www.wto.org/english/docs_e/legal_e/legal_e.htm

End Notes 1. Rodrik, Dani, "The Global Governance of Trade: As If Development Really Mattered", 2001, as quoted in UNDP, 2003. 2. Nordas H.K., Is Trade Liberalization a Window of Opportunity for Women? WTO, Economic Research and Statistics Division, 2003. 3. Cagatay, Nilufer, Trade, Gender and Poverty, p.23-24. 4. SAWTEE, "A Study on Gender Implications of Nepal's Accession to the WTO", March 2003. This study focuses on the tourism and carpet sectors of Nepal. 5. UNDP, Making Global Trade Work for People, Earthscan Publications Ltd., 2003. 6. Ministry of Women Children and Social Welfare, HMG-N, National Plan of Action on CEDAW, 2004. 7. Data taken from: National Planning Commission, HMG-N, The Tenth Plan; UNDP, Nepal Human Development Report 2004; and World Bank," Database for Gender Statistics", www.worldbank.org.np. 8. National Planning Commission, HMG-N, The Ninth Plan (1997-2002) and The Tenth Plan (2002-2007), Kathmandu, Nepal. 9. UNDP, Nepal Human Development Report 2004, p.51. 10. "Fourth World Conference on Women Platform for Action" http://www.un.org/womenwatch/daw/beijing/platform/plat1.htm 11. Ibid, p.82 12. Randriamaro, 2002. 13. Quoted from "PANNA: WTO Agreement on Agriculture Harms Small Farmers", April 8, 2002. 14. website: www.panna.org/resources/panups/panup_20020408.dv.html 15. Ibid. 16. Conclusions from an FAO study on small farm commercialization in 14 developing countries in Africa, Latin America and Asia. China, India, Pakistan, Cambodia and Myanmar were the Asian countries surveyed. Look at UNCTAD, "Trade and Gender," Chapter 3, p.109 for more information. 17. UNCTAD, 2004. 18. The Economist, November 11, 2004. 19. UNCTAD, 2004, p.150. 20. Estimated by the IMF; Quoted by The Economist, November 11, 2004. 21. UNCTAD, 2004. 22. Information on this UNIFEM study of 2003 can be found in UNCTAD, 2004, p.370. 23. For more detail see Nepal's Schedule of Specific Commitments in Services. 24. UNCTAD, 2004, Chapter 7. 25. Ibid. 26. Ibid. 27. The data comes from UNCTAD, 2004, Chapter 7. 28. UNCTAD, "Trade and Gender," Chapter 9, p.307

Crisis of Minority Rights in South Asia

Common citizenship delivers formal equal treatment, and lonely schemes of positive discrimination derogate against equal rights, but they have proved insufficient to solve the discrimination dilemma without an accompanying agenda for expanding democratic participation and realising equality and justice. As Samaddar (2004) emphasises, in his incisive analysis of the minority question in India, at its core is the “democracy deficit”. Indeed, if one follows the tracks of the minority rights question in South Asia as a whole, they lead us back to the “democracy deficit”.

Rita Manchanda Bangladesh, India, Pakistan, and Sri Lanka are home to multiple nationalities, ethnic, religious, linguistic and caste communities--identities that were politicised under colonial administrations, strengthened during the process of constitutional reforms and reinforced by the “nationalising” processes of state consolidation. The ethnogeographic mosaic of these post-colonial states and the kingdoms of Nepal and Bhutan as they transform themselves into modern states, challenges the concept of a homogenous, “one nation-one people” state as developed in Europe. Instead, here it is more the construction of a state preceding the emergence of nation. State consolidation has been predicated towards majoritarianism in state ideology and design, and its articulation in structures of governance that are centralising, coercive, hegemonic, and exclusionary. Taking an overview of the crisis of minority rights protection in South Asia, this paper addresses the question of why minorities rebel, locating it in the context of state design and orientation that predicates majoritarianism and exclusion. The paper looks at the limits of strategies of multiculturalism and autonomies for reworking the minority rights question in the region. It problematises different state regimes of protection--the limits of constitutionalism, where a state's constitution itself discriminates, and where ethnic polarisation and war have rendered inadequate a minority rights framework for any enduring perspective for rebuilding relations (e.g., Sri Lanka's Sinhalese-Tamil conflict). Finally, the paper provides snapshots of living modes of exclusion in the region. The challenge of pluralism in South Asia is enormous and so too is the gap between the fundamental rights promised in various state constitutions and the banality of discrimination, violence, and inequality that is the everyday experience of people belonging to minority or indigenous communities. The state of most minorities in South Asia is abjectmarked by low income, lack of assets, voiceless-ness, and vulnerability. While these are aspects common to the poor in South Asia, people belonging to a “minority” feel them more acutely and more systematically, since they occur as a direct result of the violation of their rights by virtue of being a “minority”. For instance, more than 800 languages are spoken in the region, but only 66 percent of the population have access to education in their mother tongue (United Nations Development Programme [UNDP] 2004), thus disadvantaging linguistic minorities in education, civil service, and public life. Minority groups and indigenous peoples make up a disproportionate majority of the voiceless and of peoples under the poverty line. It is members of minority groups who are predominantly targeted by “prevention of terrorism” and other “emergency” regulations.

Whether the relationship between the majority and minorities will be one of pain and tension is critically determined by the design and effect of the state's orientation. In Nepal, after the “triumph of people's power” in April 2006, the country is poised to draft a new, more representative constitution. How will it address the challenge of transforming the system of institutionalised exclusion that has produced a disproportionate dominance by 16 percent of Nepal's upper caste Hindu hill elite (Bhattachan 1999 and Lawoti 2005)? Will it provide for sharing power with the excluded janjatis (indigenous peoples), Dalits, and women through a policy of reservations? Will it make changes in the electoral law, making for community (identity)-based parties? How many of the 61 indigenous nationalities (janjatis) and 125 languages spoken in Nepal will be recognised? Will it continue the hierarchy of “official” and “national” languages that discriminates against non-Nepali Khas speakers in schools, civil service, and the administration, including local government bodies? Nepal's 1990 constitution refused to recognise that the Hindu kingdom was home to Muslims, Buddhists, Kirants, Christians, Bons, and others. Will the new constitution enshrine secularism as a principle that cannot be revoked by legislation? How will it deal with institutionalised gender-based discrimination that has resulted in 173 instances of discrimination in 83 laws in Nepal?1 The unitary structure of the polity, which had marginalised the regions, braided together inequalities and exclusions across different dimensions--regional, ethnic, linguistic, rural, and class. What kind of autonomies will be negotiated in a federal restructuring of the polity? Such choices will determine whether the new Nepali state will reproduce a majoritarianism that will end up pushing some minorities onto the warpath and some into sullen submission. Culture and cultural values are not by themselves a source of conflict, but exclusion, suppression of socioeconomic and cultural rights, and denial of voice and dignity will lead to political mobilisation that increasingly tends to focalise grievances along cultural-ethnic lines. Still, the Maoist insurgency in Nepal is a critical reminder of the relevance of class as a significant axis of conflict intersected by the variables of ethnicity, caste, language, and religion. Nepal illustrates how inequalities and exclusions across different dimensions-regional, ethnic, urban-rural, and class--can create conditions for violent conflict. At the start of the insurgency in 1996, the poverty rate was 72 percent in mid- and farwestern regions, but 4 percent in Kathmandu. Overlying these regional disparities were disparities in human development status, with the human development index (HDI) of upper-caste Nepalis being 50 percent higher than that of hill-ethnic, teraiethnic, and occupational caste groups. Whereas indigenous peoples constitute 36 percent of the population, and Dalits 15 percent, they hold 8.42 and 0.17 percent of

government posts, respectively. In the strongholds of the Maoist insurgency, poverty braids with inequality, and regional and ethnic discrimination (UNDP 2005). Moreover, this area has the smallest political voice in Nepal. The 1990 pro-democracy movement which mobilised ethnic communities also produced an elite compromise between the palace and the upper-middle classes, creating a widening chasm between democratic expectations and democratic practice (Goodhand 2001). The fault lines of poverty and inequality, urban-rural, indigenous-upper caste, metropolitan-periphery, and inequitable gender roles, all feed the conflict. No state in South Asia is free of internal strife. People belonging to different minorities, ethnic, religious, linguistic, and social groups, and indigenous tribes/communities are engaged in struggles against the state and other groups for the protection and preservation of their social, cultural, and economic rights. Their demands vary from equality and integration to regional/territorial autonomy, selfrule, self-government, and self-determination, including separation. The state has responded with violent suppression, resorting to what Sahadevan (1999) calls “ethnic militarism”, in his mapping of 18 conflicts over five decades: “Ten conflicts have been secessionist, with six groups demanding autonomy and two groups (Baloch and Pakhtun) having mixed goal preferences, articulated in terms of autonomy, secessionism, and irredentism. At least three secessionist movementsEast Pakistan, Khalistan, and Eelamoriginated from the mismanagement of autonomy demands, thereby indicating a trend towards conflict escalation.” According to Sahadevan (1999), one conflict in Misoram followed a “secessionist-autonomist-secessionist cycle”. The value of Sahadevan's (1999) analysis lies in his drawing attention to the state's militarist response to democratic aspirations. Gazdar (2006) emphasises Pakistan's use of a counter-insurgency mode against its own citizenry. In 20 of the last 35 years, since the “new” Pakistan, there have been military operations counter-insurgency style between security forces and Pakistan's citizenry to suppress what are projected as “insurgencies”. Balochistan (1973-77) was “dubbed a separatist movement”; Sindh (1983-89), “a fight against banditry” (ethnic Sindhis were at the forefront of the Movement for the Restoration of Democracy (MRD) against General Zia's dictatorship; and Karachi (1992-96), “ethnic terrorism and urban crime” (Mohajir assertion of ethnicity-based claims). Latter day military/counter-insurgency operations are directed against renewed resistance in Balochistan, disparaged as the cupidity of the sardars (tribal chiefs), and in Waziristan, to flush out the Taliban and Al Qaeda. The protagonists of these movements “share some project of ethnic subnationalism”; however, as Gazdar (2006) observes, while ethnicity is an important political variable in Pakistan politics, it has not been the determining demand except in Balochistan (Ahmed 1999 and Akhtar 2003). Contemporary conflict theory conceptualises multifaceted civil conflicts largely as “ethnic” conflicts, de-historicising and essential-ising them. In focalising histories of social injustice, political exclusion, and socioeconomic grievances into ethnonationalist conflicts, the questions that are sidestepped are these. To what extent are ethno-national and cultural differences a creation of elite-led politics, i.e., the

mobilisation of collectivities by political entrepreneurs (Manchanda 2006)? To what extent does “ethnic-isation” of conflicts displace and distract from other conflict fault lines rooted in the struggle to share resources, political participation, and respect and dignity for cultural identity? Ghai (2000) sums up ethnicity as the process “when these (cultural, religious, linguistic) markers cease to be mere means of social distinction and become the basis of political identity and claims to a specific role in the political process or power, ethnic distinction are transformed into ethnicity.” Ethnic movements often have as their crux, hardcore issues of social and economic justice and of public participation, but as in the case of the Tamil conflict in Sri Lanka, the protagonists on both sides articulate it in terms of ethnicity and identity (Uyangoda 2001). Indeed, the histories of the struggle of the Tamil, Naga, and Chittagong Hill Tracts (CHT) peoples map narratives of how and when a group refuses to accept at a historical moment the identity of a minority and claims instead the status of a people, a nation. In the constitution of majority-minority groups and majority-minority identities is the discourse of power. The redistribution of power lies at the vertex of the relation between state and “national” minorities. International discourses on human rights-minority rights promote strategies of multiculturalism and its variants: coexistence and diversity. The emphasis is on meeting the challenge of collective or cultural identities as reflected in UNDP's (2004) Human Development Report. It emerges from the same intellectual policy discourse as the 1997 report of the Carnegie Commission on Preventing Deadly Conflict. While warning that attempts at suppression of ethnic cultural or religious differences have “too often led to bloodshed”, the report exhorts that, “in case after case the accommodation of diversity within appropriate constitutional forms has led to diversity.” It is an argument for multiculturalism as a philosophical approach and prescriptive strategy for accommodating deep and defiant cultural diversity in postcolonial, multi-ethnic, and multi-religious societies or in societies with significant immigrant communities. Multiculturalism Multiculturalism refers to the value and prescriptive policy of cherishing cultural diversity as a public good and making different community identities central to the self-understanding of a nation-state's identity. However, as Parekh (2001) argues, in the dominant multi-culturalist discourse, the majority culture is accepted uncritically and used to judge the claims and define the rights of minorities. Multiculturalism is about “the proper terms of relationship” between communities and the “norms governing these claims including the principles of justice cannot be derived only from one culture alone but through an open dialogue between them” (Parekh 2001). Such a dialogue becomes extremely problematic when the international discourse demonises a culture, e.g., Islamic, or posits paradigms like the “clash of civilisations”. What does reworking the minority question on the basis of a politics of accommodation of cultural identity mean for South Asian minority communities?

Mahajan (1998), a critical supporter of multiculturalism, believes that it has assured the protection of cultural identity by “safeguarding cultural autonomy and promoting cultural diversity”; where “it has failed is in promoting equality, non-discrimination and vitally, equity”. The Indian constitution provides a framework for minority rights configured as a cultural category. Its consequence, as Mahajan (1998) concludes is that the “the concept of Minority Rights has become an instrument for enhancing cultural autonomy and diversity but not equality and equity”. More trenchant is Samaddar's (2004) assessment, where he argues that multiculturalism is “a weak answer to nationalising states determined to pursue overwhelmingly a politics of repression, assimilation, denial exclusion and marginality. Without locating minority rights as an agenda in democracy, multiculturalism may not be enough. The democracy deficit is at the heart of the minority rights question.” Equal Rights: Special Rights The guiding principle that human rights are universal, inalienable, and indivisible; and the enshrining of equality before law and non-discrimination in constitutional structures and institutional practices, is not sufficient to enable minorities to enjoy equal rights. Even without states invoking religion, ethnicity, or nationality to dominate and oppress, people belonging to minorities and majorities are subject to very different (unequal) conditions of enjoyment of equal rights and fundamental freedoms. For example, the majority group's language usually equalises as the national language of the public sphere, e.g., Sinhala in Sri Lanka; consequently, there is natural support for its development. Not so with the language of a minority that would require special support. Universal citizenship is an instrument of equality in democratic states, but this universality produces the paradox of formal equality of all and the everyday deficit in realisation of power by weaker groups, individuals, and communities. Positive discrimination is one pathway. The Indian constitution provides for preferential policies that derogate against the principle of equal rights.2 It has enabled affirmative action in favour of “backward groups” and, for the identified minority, the creation of a separate domain/private sphere reserved for minority group members to maintain group identity distinct from the “common domain”/public sphere of common regulatory authority. It is a system of special autonomies. However, this mix of a strategy of “negative guarantees” and positive discrimination has been a weak instrument in providing protection or promoting equal rights and democratic participation. It has produced minority-ism (Mahajan 1998), i.e., a clamour for identification of new minorities and backward caste groupings, and resentment and opposition by the majority to what is variously referred to as “appeasement” of minorities or (by upper castes) of perpetuating caste-ism. Autonomies Autonomy is increasingly being posited as a way for plural states to deal with the aspirations of minorities, especially national minorities (Chaudhury et al 2006). It is a strategy for resolving the basic contradiction between the principle of people's “right

to self-determination” and the principle of national sovereignty and territorial integrity of a state. Both norms are of great value and importance. The task is to find a balance between the two. The UN has sought to balance the right to selfdetermination and territorial integrity by recognising the rights of linguistic, ethnic, and religious minorities and developing universal norms and covenants for the protection of these rights. European institutions have gone a step further by encouraging states to grant “autonomy” and creating “federal” polities (Pan and Pfeil 2003). Under international law, the rights of “people” and minorities are different: people are a “nation” without sovereignty, while minorities do not have the right to selfdetermination. The confusion arises when a “people” are erroneously termed minorities, because (as a national minority) they live in a territory where they constitute a numerical minority in relation to other groups of people. People's right to self-determination is a political concept, and ethnic groups like the Tamils in Sri Lanka, the Jumma people of the CHT in Bangladesh, and the Mohajirs in Pakistan assert their status as “peoples” rather than “minorities” (Mahmud 1997). In the Sri Lankan Tamil context, the subordinate status associated with minority identity is rejected in favour of assertion of “Tamil nation, Tamil people”. Similarly, indigenous peoples can lay claim to an international rights discourse that recognises collective rights while minorities are entitled to individual rights. Minorities and indigenous peoples are separate concepts but interlinked by the shared context of discrimination and powerlessness. The rights of indigenous peoples to the traditional lands they inhabit are much stronger in international (and national) law. It explains why no country in South Asia formally recognises the presence of indigenous peoples. Nor is any country signatory to the International Labour Organization (ILO)'s Convention 169, the most comprehensive international legal instrument to address collective land rights and displacement of indigenous peoples. Even the 1997 CHT peace accord carefully makes no reference to indigenous peoples, but refers instead to “tribal inhabited areas”. Federal Polities South Asian states have been extremely wary of, if not hostile to, devolving power, and most have evolved into unitary states with, at best, administrative decentralisation. Even India, which has been the most far reaching in articulating an asymmetric federal polity with a complex structure of special autonomies, uses the nomenclature “centre-state relations”. The constitution has a unitary bias, e.g., after distributing legislative powers in three lists, not only are residual subjects left with the union, its will prevails on subjects in the concurrent list. The Indian parliament also reserves the right to change states' boundaries. India's constituent assembly discussions had envisaged a wide-ranging structure of self-rule and shared rule, but the shadow of Partition in 1947 diluted its federalising impulse. Post-partition federalism came to be viewed as carrying the seeds of secession and disintegration (Aurora and Verney 1995), with the ruling elite resisting the linguistic reorganisation of states and reinforcing central control. More than five

decades later, India has failed to develop a conceptual framework of federal principles guiding the devolution of power. For instance, what is the basis for the formation of three new states? In Chattisgarh, language was the cultural element; in Jharkhand, tribal identity; and in Uttaranchal, regional culture (Oomen 2003). The Naga people's fifty-year old struggle for self-rule in the north east; Jammu and Kashmir's erosion of constitutionally sanctioned special autonomy, and people's alienation and the Punjab insurgency that was rooted in issues of autonomy and power sharing, are but three of the most significant conflicts that testify to the Indian elite's centralising and majoritarian impulse. Over and above the majoritarian impulse inherent in the concept of nation-state, two historical legacies were to propel the ruling elite towards a certain kind of state consolidation. The first was the colonial encounter, which left a dual imprint: the colonial power's administrative habits of governance centralised territorial control and drew up arbitrary boundaries that cut through national, ethnic, religious, and linguistic communities. The British administrators also fixed and institutionalised these fluid identities and organised governance on the basis of communal entities manifest as divide-and-rule strategies. The colonial government's decision to introduce religion as the fundamental category for administrative and electoral classification infused a particular political meaning into concepts like “Hindu” and “Muslim”. The minority question in India is primarily a communal question. In Sri Lanka, the site of political representation was ethnic identity: Sinhalese, Tamil, and Burghers, i.e., belonging to a “racial” group. The Sinhala numerical majority was disadvantaged and Tamils privileged by colonial administrators. Tamil minority consciousness was to evolve in the process of constitutional reform. As a consequence, the defining characteristic of post-colonial state formation in Sri Lanka has been the ethnic bifurcation of the ruling class. Colonial administrations further reinforced the salience of communal entities by introducing legal pluralism as a structure of governance, i.e., uniform colonial laws for the public sphere and religion-based customary laws for the personal sphere. It afforded significant respect for customary legal regimes to do with collective land rights and protection against predatory “outsiders”, especially for indigenous peoples. However, then and now, such dual regimes tend to reinforce discriminatory politics not only against “outsiders” but also “insiders”, particularly disadvantaging vulnerable groups like women and depressed and backward castes. The second legacy to propel the elite towards state consolidation was the partition of the Subcontinent. In India, Partition diluted and reshaped constituent assembly discussions on self-rule and shared rule. Post-partition federalism came to be seen as carrying the seeds of disintegration. The move to recognise minorities' political rights was overturned. As the Indian leader Sardar Patel bluntly told constituent assembly members, “We are laying the foundation of One Nation and those who choose to divide again and sow the seeds of disruption, will have no place” (Ansari 1996). As a result, the issue of minority rights was relegated to the domain of protection, and not seen as integral to democratic nationhood. It made Indian rulers resist the demand

for ethno-territorial autonomies and the eventual reorganisation of the state along linguistic lines. In Pakistan, the overhang of Partition determined the decision of the new rulers to not recognise the category of “national” minorities, which would introduce a competing claim to the state ideology of a Muslim nation. Pakistani ruling elite's discriminatory and anti-democratic politics of treating East Pakistan as an internal colony and denying the Bengali cultural identity resulted in a second violent Partition-Bangladesh--and further fuelled secessionist paranoia against autonomy. Evolution of Minority Rights Protection Historically, the failure to protect the rights of minorities within states has resulted in major internal and international conflicts. Consequently, it has prompted international concern and responsibility that has had to confront the fundamental principle of non-interference in the internal affairs of sovereign states. Post-World War I political order produced a series of minorities' treaties involving the defeated territories with the League of Nations as guarantor. The treaties collapsed with the League. UN frameworks emphasised principles of universal protection in place of specific rights. Post-cold war, the return of the minority question of old Europe in new Europe in the violent break-up of Yugoslavia and the surge in identity-based conflicts prompted states to adopt the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992). The declaration was inspired by Article 27 of the International Covenant on Civil and Political Rights (ICCPR) 1966, the only global treaty with a provision specifically referring to minority rights: the right to enjoy in community with other group members, their culture, religion, and their own language. Fundamental to all human rights law is the principle of equality, and integral to that, the concept of non-discrimination. It ensures that no one is denied the protection of their human rights based on external factors like race, sex, language, colour, religion, national or social origin, birth, property, or political opinion. South Asian states are signatories to these conventions (albeit with significant reservations) that make up international human rights law and are expected to integrate these obligations with their national law. Politics of Recognition Recognition of a minority group is a crucial precondition for protecting minority rights. International conventions, declarations, and institutional mechanisms provide frameworks identifying minority rights and entitlements, but there is no consensual international definition of who or which group is the bearer of these rights. Consequently, states have interpreted what constitutes a minority to suit their own politics. Pakistan recognises only religious minorities and not its Sindhi, Balochi, or Pashto nationalities; it has created a new religious minority: the Ahmadis. Constitutionally, Bangladesh does not recognise that it has linguistic, religious, or ethnic minorities; it styles itself as mono-ethnic, mono-linguistic, and mono-religious, creating minorities of its Hindu, non-Bangla-speaking and Adivasi populations. Sri

Lanka's minority rights discourse does not include recognition of social (depressed caste) minorities. India does not list its Dalit population as a minority and state institutions (e.g., the judiciary) legitimise a homogenous Hindu identity excluding multiple sects from the religious minority category. Constitutionally, religious and linguistic minorities are constructed as a cultural category, sidestepping the issue of power and public participation. Nepal denies its multi-religious character and institutionalises exclusion of its linguistic and ethnic minorities. The most widely accepted theoretical definition of “minority” is probably the one given by Capotorti (1976),3 a Special Reporter of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. He established certain objective and subjective criteria for determining a minority; the objective criteria identify numerical inferiority, and the subjective criteria refer to a group that shows solidarity in preserving its culture, traditions, religion, and language. Capotorti's (1976) definition would leave out Dalits and other racially discriminated groups who do not wish to preserve the basis of their difference, whose identity was imposed by dominant castes or groups, and who were constituted as undesirable and debased. Consequently, at a wide-ranging minority rights consultation in Kathmandu in 1998, South Asians were more inclined towards the definition provided by Capotorti's colleague, Deschenes,4 which shifted the emphasis from preservation of identity to their collective will to survive and their desire to achieve equality with the majority in fact and in law (Banerjee 1999). This still left out minorities, especially national minorities, who did not wish to assimilate and integrate. It is these people's desire to preserve their identities that is looked on with suspicion by the majority. Moreover, “minority” as a numerical concept overlooks the situation of a discriminated majority, e.g., blacks in apartheid South Africa. Numerically smaller groups are not necessarily subordinate or backward or less likely to have access to opportunities, e.g., Newaris in Nepal or Mohajirs in the early phase of state formation in Pakistan. Also, Sri Lanka's politics of ethnic relations defy the majority-minority dichotomy in a profoundly phenomenological sense--the Sinhala majority with a minority complex, and the Tamil minority with majority ambitions (Uyangoda 2001). In the case of Kashmir, one has a Muslim-majority province in a minority situation in India. A key criterion is self-identification as a minority (and the group's right to determine who is a member of the minority). Several groups, e.g., the Tamil community, the Naga peoples of northeast India, or indigenous peoples of the CHT in Bangladesh, have repudiated identity as a (subordinate) minority and claimed for themselves identity (and rights) as a “nation” (the people of the “Jumma” nation in the CHT and the Mohajirs as an ethno-nationality) (Mahmud 1997). None of these peoples see themselves as “ethnic communities”each claims to be a nation. National Frameworks for Minority Rights South Asian states in the political organisation of their plural societies have experimented with different models: from federalism with special autonomies to

unitarian state structures; from multi-party democracy to party-less authoritarian and military governments; from secular to theocratic orientation; and from republic to monarchy. Some polities, e.g., India, have articulated an elaborate framework of constitutional guarantees for minority rights protection and asymmetric federal structures for devolving power. With others, like Pakistan and Bangladesh, the constitution itself has become a source of discrimination and victimisation. In Nepal too, exclusion is deeply institutionalised. Sri Lanka has sought to evolve a constitutional and legal regime of protection against the backdrop of an ethnicised conflict with little or no success. Ethnic polarisation has defeated experiments in federal devolution and reinforced the state's unitarian ideology and centralised structure, as well as Sinhala-Buddhist hegemony. Rather than politics, the fallback is administrative strategies, such as the abortive P-Toms mechanism (for integrating the LTTE-controlled north and east in post-tsunami reconstruction). The constitutions of all these states (including Bhutan's draft constitution) have a fundamental rights chapter that provides for fundamental human freedoms applicable to all citizens, irrespective of race, place of birth, religion, caste, creed, colour, or sex; subject to certain restrictions, these provisions are largely enforceable by the courts. Fundamental rights primarily protect individuals from arbitrary state policies. International discourses on human rights and minority rights have been braided together in the “nation-state” building process in these countries. However, historical circumstances, contextual specificity of ruling class ideology, and the overall exigencies of creating a coherent “nation-state” around an often fictive ethnic core in highly plural societies, has produced a region rife with minorities at risk. For the dominant (majority) groups, minority rights are seen as challenging the state. The region's minority communities, on the other hand, have in common the experience of majoritarianism and their discrimination and disempowerment resulting in submissive acquiescence to resistance or violent revolt. Some of the broad contours of the constitutional dynamics of protection and exclusion are discussed below with reference to Pakistan, Bangladesh, and India. Pakistan Pakistan's state ideology is anchored in the faith of the Muslim people as a nation, with consequences for non-Muslims and other nationalities in the territory (e.g., Baloch, Pakhtun, and Sindhi). In 1949, the Constituent Assembly adopted the Objectives Resolution despite objections raised by non-Muslims to its Islamic characterno law repugnant to Islam could be adopted. It became the preamble to Pakistan's 1956, 1962, and 1973 constitutions and paved the way for all subsequent Islamic provisions. Starting as a secular democracy, the country has moved closer to a theocratic state. Pakistan is an Islamic republic and the state religion is Islam. Religion-Based Exclusions Separate electorates. The controversy over separate electorates has raged from the first constitutional regime, which proposed separate electorates for West Pakistan and joint electorates for East Pakistan, to joint electorates in the 1973 constitution till President Zia-ul-Haq reintroduced separate electorates. In 2002, joint electorates

were reintroduced, ending a structure of political apartheid that had kept minorities out of the political mainstream and led to socioeconomic discrimination (Zia, forthcoming). Head of state. The constitution stipulates that the head of state be a Muslim, and the wording of the mandatory oath ensures that the prime minister too must be a Muslim. Ahmadis declared non-Muslim. The Second Amendment to the constitution (1974) declared Ahmadis (who believed themselves to be Muslims) non-Muslims. It was the first violation of the fundamental rights of a minority community at the constitutional level. Ten years later, they were denied the right to publicly practice their faith. In the 1980s, “offences relating to religion” amendments were made to the penal code that particularly victimised Ahmadis. Articles 298A, B, and C proscribed anyone from “directly or indirectly” posing as a Muslim or by “visible representation or by in any manner whatsoever outrages the religious feelings of Muslims”. More than 2,000 Ahmadis have been charged under the Blasphemy Law. Moreover, in 2002, when joint electorates were introduced, the status of Ahmadis remained unchanged--on the list of separate voters. With the community declining to take the oath on the finality of prophethood, they remain virtually disenfranchised. Council for Islamic Ideology. The council was given a constitutional basis under Article 228. Hudood Offences Ordinance (1979). This ordinance ousts the testimony of nonMuslims against a Muslim accused for awarding a hadd (Quranic penalty); and devalues the testimony of non-Muslims and women to half that of Muslim males. The presiding officer of a court trying a case under the Hudood Ordinance must be a Muslim unless the accused is a non-Muslim. The Hudood (Offence of Zina) Ordinance criminalises all extra-marital sex. For minorities, making adultery punishable creates serious problems in Christian divorces, for which adultery is the only valid ground for divorce. Federal Shariah Court. This supra-constitutional body was set up in 1980 with powers to examine and declare any law repugnant to the injunctions of Islam. The right of appeal was provided to the Supreme Court-Shariat Appellate Bench. NonMuslims can never be members of this bench and non-Muslim lawyers cannot appear before these courts unless the parties before the court are non-Muslims too. Blasphemy Law. In the 1980s, amendments were made to the penal code chapter on offences relating to religion that made certain acts criminal offences and introduced severe penalties. Ordinance XX (1984) introduced the death penalty, while Article 295C, in particular, has victimised non-Muslim minorities, its loose formulation making it an easy tool in the hands of extremist elements wanting to settle personal scores with religious minorities. Objectives Resolution. This was made a substantive part of the constitution (1985) through the insertion of Article 2A and modified by dropping the word “freely” from

“to profess and practise religions…” Although the right to judicial review of legislation exists, in cases of violation of the constitution, the Supreme Court has not emerged as a forum for defending minority rights and judges appear to reflect the prejudices of society at large. For example, in 1993, a spate of cases was filed by members of the Ahmadi community, holding that their religious freedoms as guaranteed under Article 20 were being violated. The Supreme Court ruled that granting Ahmadis equal rights would be against public order. The majority (Sunnis and Shias) consider “the movement ideologically offensive”. Moreover, with the establishment of the Federal Shariah Court, the hierarchy of jurisdiction has become ambiguous. The judicial process for religious offences tends to be dilatory as judges feel threatened by the presence of Islamists in the courts and tend to adjourn hearings. A judge who acquitted a young Christian accused under the Blasphemy Law was shot dead soon after. In addition, there are linguistic and nationality-based exclusions. Pakistan's constitution barely reflects the multilingual character of the country, with six major and over fifty-nine minor languages. Punjabi accounts for 44 percent, Pashto for 15 percent, Sindhi for 14 percent, Seraiki for 11 percent, Urdu for 8 percent, and Baloch for 4 percent. The only recognition of the country's multilingual character occurs in Article 251, which enables the provincial assembly to promote the use of the provincial language along with the national language. Demand for equality between the provinces and autonomy within has seen Pakistan's ethno-linguistic groups define themselves as “nationalities”. Pakistan's constitution does not recognise the multinational character of the state. In 1975, the government passed a law prescribing a seven-year imprisonment for individuals advocating the presence of more than one nationality. The state has responded in “counter-insurgency” mode to suppress ethnic, sectarian, and class conflicts. “Islamism” has been used to stifle the claims of the nationality question, but it remains a flashpoint and is intensifying (Human Rights Commission of Pakistan [HRCP] 2001 and 2003). Bangladesh: One Religion, One Language The new state of Bangladesh emerged as a secular polity with a constitutional embargo on religion in politics. The original 1972 constitution had four basic principles: secularity, nationalism, democracy, and socialism. However, later amendments replaced “secularity” with “absolute trust and faith in the Almighty Allah”. Tension between Bengali nationalism based on language and culture and Bangladeshi nationalism rooted in the primacy of religion, has resulted in a steady drift towards Islamic hegemony. Both have had exclusionary consequences for its religious, linguistic, and ethnic minorities (Samad 1999). Bangladesh declared itself a unitary and culturally homogenous nation, emphasising the hegemony of the Bengali nation, thus excluding non-Bengali Chakmas, Marmar Tripuras, and plains tribal ethnic communities that make up a little over 1 percent of the population. Subsequent amendments to the constitution (Article 6) declared that citizens of Bangladesh were to be known as Bengalis, turning the non-Bengali population into ethnic minorities. Article 3 adopted Bengali as the state language,

turning non-Bengali-speaking populations, including the Urdu-speaking Biharis, into linguistic minorities. Article 2 made Islam the state religion, thus excluding the Hindu, Buddhist, Christian, and animist communities. Mohsin (2003), mapping the constitutional processes by which the rights of Bangladesh's minorities and indigenous peoples have been derogated, states that constitutional provisions have by implication “become instruments of hegemony and domination” in the hands of successive governments. She focuses on the changes in the constitutional status of the CHT as an “excluded area”, thus eroding its autonomy and restricting the access of “outsiders”. On top of the massive displacement caused by the construction of the Kaptai Dam, land was further alienated through a policy of state-aided settlement of 400,000 Bengalis. Suppression of their cultural identity and the rights of the hill tribes culminated in twenty-five years of armed struggle till the 1997 peace accord. However, it is an executive accord and has no constitutional status. Moreover, let alone acknowledging their rights as indigenous peoples, it refers to the CHT as “tribal inhabited area”. Bangladesh is a striking instance of the use of law to alienate minority people's right to enjoy their property, through the Vested Property Act 1974, which supplanted the Enemy Property Act 1965 of undivided Pakistan. It was used against both Hindus and ethnic communities, and said that the properties of Indian nationals residing in Pakistan or of Pakistan citizens residing in India would be identified as “enemy” property. In particular, it made Hindu-held property insecure because ownership had to be proven at various levels. Local officials and law enforcement agencies were found to side with the majority against minorities in land cases. According to one estimate, 30 percent of all Hindu property was “legally” swallowed up under this act. It was withdrawn by Sheikh Hasina's government in 2001 (US State Department 2005). India: Limits of Constitutionalism India's post-independence ruling elite piloted a brave pathway of constitutionalism for protection of the rights of religious, linguistic, and social minorities, as well as indigenous peoples; provided affirmative action to overturn the histories of injustice and inequality of tribes and oppressed castes; devolved power through a structure of asymmetric federalism to meet demands for self-rule; and inscribed as non“derogable” the principles of secularism and democracy.

rights. It does refer to minorities but only those “based on religion or language”. The safeguards for minorities' economic and political rights provided in the draft constitution (1947-49) were dropped with the assurance that the majority would be fair and generous to the minorities (Sammadar 2004).5 There is no state religion; all were to be treated equally. The constitution describes the state as sovereign, socialist, secular, and democratic. The “secular” orientation was introduced by an amendment in 1976 (under Emergency rule). The discourse of secularism was constructed on the basis of equal rights, but has been translated as based on the majority. It has lulled some minorities, e.g., Christians, into turning their backs on minority status and calling themselves secular. Without the philosophic underpinnings of the value of tolerance in society, secularism becomes reduced to an administrative strategy used by cynics, without providing minorities protection. As Samaddar (2004) presciently notes, “The contentious history of democracy in India has shown that majoritarianism appears not by contravening these principles ('justice to all', 'dignity of the individual') but on their basis as a majoritarian power structure that can wield this to its advantage”. The directive principles of the constitution (non-justicible) urge the state to work towards establishing a uniform civil code. But this has become a euphemism for a majority-defined (upper-caste Hindu) code rather than the product of a dialogue between different systems. The constitution provides for legal pluralism for religious minorities in their personal sphere and also in certain areas of the public sphere-management of minority educational institutes and trusts (there is a differentiated legal regime for scheduled tribal areas). It has produced a tension between what Asbjorn Eide describes as the “common domain” that ensures equality and the “separate domain” designed to respect diversity and maintain group identity. As Oomen (2003) states more explicitly, “Citizenship is an instrument of equality in democratic states, ethnicity and nationality are often invoked to confer or deny equal rights”. This unresolved tension between separate and common rights produces majority accusations of appeasement without providing minorities protection. Autonomy, especially under siege, is most disadvantageous to women, who are constructed as bearers of community identity in a patriarchal discourse.

However, the living modes of discrimination and exclusion that still exist are testimony to the limits of a constitutionalism that enshrines diversity, cultural rights, and autonomy for protecting minority rights when there is little accompanying philosophic consciousness of the values of tolerance of difference, justice for righting historical wrongs, and autonomy enabling self-rule.

The majority-minority relationship becomes particularly problematic when the public sphere is accessible to takeover by a group (majority) determined to impose its values in large or total measure on state institutions, thereby almost equalising the public and group interest. This was evinced in the hegemony of Hindutva discourse. Gujarat is the most dramatic demonstration of this phenomenon, which has produced a virtual apartheid situation.

India's constitution guarantees the fundamental rights of equality and nondiscrimination to all citizens. However, where common citizenship is the fulcrum for accessing rights, it inevitably tilts towards the individual and thereby the majority in political rule. The constitution does not recognise group rights, only individual

For example, Articles 25 to 28 address the subject of freedom of religion. Under Article 25, citizens are “entitled to freedom of conscience and the right to freely profess, practice and propagate religion”. However, these rights are, as in most constitutions, subject to “public order, morality and health”. States are allowed to pass

laws “regulating” or “restricting” activities that may be associated with religious practices. This has been exploited by states to institute laws that violate fundamental rights enshrined in the constitution. The most controversial are the anti-conversion bills that were passed by the state legislatures of Orissa (1967), Madhya Pradesh (1968), Tamil Nadu (2002, now nullified by the DMK), Gujrat (2003), Chattisgargh (2005) and most recently, Rajasthan (2006), which has been rejected by the governor. The Rajasthan Dharma Swatantrik Vidhayak Bill illustrates the anti-minority bias of the state legislature and its loose formulation, the vulnerability of minorities. Under this act, “No person shall attempt to convert either directly or otherwise any person from one religion to the other by use of force or by allurement or by any other fraudulent means…” The state's communal agenda is exposed in the provision allowing “vapasi” (re-conversion). India's varied experiments in federalism and special autonomies have often been proposed as a model for accommodating democratic aspirations for self-rule that threaten to split apart countries like Sri Lanka. The dynamics of India's lived experience of federal power-sharing continues to reflect the overriding concerns for the unity and integrity of a culturally diverse nation that preoccupied the constituent assembly as it laid down the foundations of the constitution, resisting the linguistic organisation of states and emphasising “administrative convenience”, although postindependence agitations obliged Nehru to concede the former. Centralising and authoritarian impulses motivated by national security state pathology as well as the vision of centralised planning for development, have resulted in repeated assaults on the actuality of power sharing and special autonomies. The last five decades have seen the democratic transformation of the structure of power in India as manifest in coalition governments at the centre and powerful regional forces in the states, shifting the balance of centre-state relations. It has challenged the capacity of the federal power structure to provide protection to minorities within states. Attacks on religious and social minorities are increasing. The 2002 Gujarat communal carnage exposed the clash between the federal principles that protect state autonomy and the central government's responsibility to protect fundamental rights, which belong to all citizens (Academy of Third World Studies and South Asia Forum for Human Rights [SAFHR] 2004). The BJP-led government in Delhi failed to intervene on the grounds that the Gujarat (BJP) government was legally constituted and empowered. Four years later, when Gujarat threatened to explode into communal violence again, abetted by state institutions, the centre's Congress-led government intervened and stopped the violence. But this ad hocism is no substitute for constitutional clarity or a mechanism for dealing with a situation where a federating unit turns rogue. Living Modes of Exclusion The challenge of pluralism in South Asia is enormous and so too is the gap between the fundamental rights promised in each country's constitution and everyday forms of discrimination and inequality. In Nepal, the caste Hindu hill elite make up 16 percent of the population and

dominate political economic and sociocultural life, while 85 percent of the population, including women, is marginalised and excluded. Forty percent of Nepal's population is literate but only 10 percent of Dalits can read and write--they make up 15 percent of the population. Post-multi-party democracy, in successive elections from 1994-99, not a single Dalit has been elected to the National Assembly. Nepal's janjatis make up 36 percent of the population, but there are only four persons from the janjati community in the judiciary and a little over 1 percent in the civil service and security forces (Lawoti 1999). The traditional communal land tenure system of the Limbu janjati group in eastern and north-eastern Nepal was overridden by the 1960 land reforms, dispossessing the Limbus, but multi-party democracy did not prevent 71 percent of Limbus from being pushed below the poverty line. The Madhesi, who have constituted themselves as an indigenous nationalities of the tropical foresthigh caste, Dalit, and Muslimare discriminated against on the basis of region. Madhesia leaders claim that 3,00,000 people are deprived of citizenship. Nepal's 1990 constitution recognises the country's multilingual character but, in 1999, the Supreme Court prohibited the use of any language other than the “official” language Khas in elected local bodies. In India, a quarter of the population lives below the poverty line. Muslims, who make up 13 percent of the population, disproportionately account for India's poor. In urban India, 60 percent of Muslims have never gone to school as against the national average of 20 percent. In rural India, Muslim landlessness is 51 percent as compared to 40 percent for Hindus. In endemic communal violence, it is largely Muslims who are the victims--in the 1970 Bhiwandi riots, 59 of the 79 dead were Muslims. Political violence against minorities peaked with the consolidation of Hindutva forces leading to the communalisation of institutions such as the police, administration, and judiciary. In the Gujarat communal violence of 2002, when some 200 Hindus and 2,000 Muslims were killed, more than 300 persons were arrested of which only three were Hindu. Draconian laws like the TADA and POTA have been used extensively against rebellious members of the minority community. A study carried out in ten states by the NGO People's Tribunal in July 2004 found that 99.9 percent of those arrested under the POTA were Muslims. Adivasis make up 8 percent of India's population. From 1951 to1990, dams, mines, and industries have displaced 21.3 million people, of which 45 percent are tribal and 75 percent of which have not been resettled. In Andhra Pradesh, 50 percent of cultivable land in the scheduled areas is occupied by non-tribals (Reddy 2006). In Sri Lanka, Tamils fell from their privileged position of dominating 30 percent of public sector jobs with the promulgation of the Sinhala-Only Official Languages Act 1956. By 1970/71, although earlier accounting for 18 percent of the Sri Lankan population, Tamils had slumped to 11 percent, falling further to 5.7 percent in 197881. Less than 8 percent of Sri Lankan public servants are Tamil-speaking, while 26 percent of the country's population, including plantation Tamils and Muslims, are Tamil speaking. The government's preferential admissions system to higher education, known as the “policy of standardisation” has squeezed out Tamil students from medical and engineering colleges, and seen the number of student drop to 22 percent and 28 percent in medical and engineering schools, respectively. A

combination of restrictive citizenship law and electoral law disenfranchised 975,000 hill-country Tamils in 1956. It is estimated that 150,000 are still stateless in Sri Lanka (Sambandam 2003). Government-sponsored land settlement schemes planted 300,000 Sinhalese in areas considered by the Tamils to be part of the “homeland”. Discriminatory policies and war have produced a diaspora of 2 million displaced Tamils. The war has devastated the northeast, causing the country's impressive social indicators for the region to plummet. A GTZ study notes that, in Trincomalee, assessed birth weight shows malnutrition and high wastage among mothers (Senanayake 2004). Bangladesh's Hindu minority has dwindled from 28 percent in 1941 to 9 percent in 2002. On average 538 Hindus went “missing” each day between1964 and 1991. Minority out-migration was accelerated by the legal regime of the Enemy Property Act and its post-“Liberation war” form, the Vested Property Act 1974-2001. Nearly 30 percent of all Hindu property was alienated by this act, often accompanied by violence, forcible occupation, and the connivance of corrupt officials. In the country's 300-seat parliament, religious minorities hold seven seats. Political violence between the two main political parties often leads to the motivated targeting of Hindus as during the October 2001 elections, which were marked by 1,500 violent incidents against Hindus, including torture, rape, and forcible occupation of property and lands aimed at decimating a supposed vote bank. Minorities remain poorly represented in government institutions. The government-owned Bangladesh Bank employs 10 percent non-Muslims in its upper ranks. There are no known government-run Christian, Hindu, or Buddhist schools. In 1947, the indigenous population in the CHT was 97 percent; now one in two persons is a Bengali. The Kaptai Dam has submerged 40 percent of cultivable land area, and galloping encroachment by state-sponsored Bengali settlers has further increased pressure on land400,000 landless Bengalis were settled in the CHT between 1978 and 1984. Pakistan's women, and Christian, Hindu, and Ahmadi communities are victimised by a constitutionally sanctioned legal and juridical regime that promotes a culture of discrimination, intolerance, and extremism. As mentioned earlier, the Federal Shariah Court bars non-Muslims as members and non-Muslim lawyers from appearing before it. The Hudood Ordinance ousts the testimony of non-Muslims against a Muslim accused (and equates women's testimony to half that of men), while the Hudood (Offence of Zina) Ordinance, which makes adultery punishable, creates serious problems for Christian divorces on the ground of adultery. The Blasphemy Law, which discriminatingly protects the sanctity only of Muslim holy personages and their religious sentiments, has been used by religious extremists to target 2,000 Ahmadis and, more recently, 55 to 60 Christians. Denial of the nationality question, and marginalisation of national minorities in the distribution of power and resources, has produced ferment and violent revolt. Balochistan, which produces 36 percent of Pakistan's natural gas, receives barely 12 percent of the royalties. The presence of Balochis in the civil-military power structure of Pakistan is negligible: in the civil service, it is 3 percent, and in the army, practically non-existent. The literacy rate in province is the lowest in the country: one-third the national average.

Moreover, as these living modes of discrimination and exclusion of minorities demonstrate, the minority question in South Asia is a trans-border concern. As former Indian foreign secretary, S K Singh, said, “What happens in the states of UP and Bihar has implications in Nepal, of Tamil Nadu in Sri Lanka and similarly developments in Punjab, Rajasthan, UP and Jammu and Kashmir reverberate in Pakistan and Bangladesh”. Indeed, the network of co-ethnicities, languages, and religion makes for a complex dynamics of action-reaction. Soon after the 1965 Indo-Pakistan war, Pakistan promulgated the Enemy Property (Custody and Registration) Order, by which industries, trading centres, and landed properties belonging to the Hindu community (or belonging to Indian nationals residing in Pakistan, deemed “enemies”) were listed as abandoned and nationalised. The destruction of the Babri Mosque unleashed mob attacks on Hindus and their properties in Pakistan and Bangladesh. It was perhaps not incidental that, in 1993, the Bangladesh Home Ministry asked commercial banks to block substantial cash withdrawals and to withhold disbursement of business loans to the Hindu community in the districts adjoining the India-Bangladesh border. Conclusion In the midst of growing concern about the crisis in minority rights protection in South Asia, there are sites of resistance, agency, and transformation. Madrassahs (religious schools) in West Bengal, to which students of all communities flock, have become significant catalysts for fostering communal harmony. Independent fact-finding missions, people's commissions, and people's tribunals have emerged as important civil society mechanisms for revealing the facts and holding the state accountable for violation of minority rights. Minority groups have been slow to come together, divided by a seeming conflict of interests as they assert competing claims (minorityism) to equitable access. However, emerging cross-border solidarities and initiatives have drawn attention to the common problems of majoritarianism--which effectively blocks the legitimate participation of minorities in the public sphere--and the communalisation of politics and politicisation of religion. As the Regional Minority Rights Consultation in Kathmandu (1998) revealed, a major factor preventing minority communities from fighting for their rights is their lack of awareness about human rights and democracy (Banerjee 1999). This moment in history is being hailed as the age of democracy, human rights, and the rule of law. However, increasingly rights are being mauled by the so-called “war on terror” that has reinforced xenophobia and racism and seriously undermined the rule of law in the world. States have used the pretext of the “war on terror” to deny and repress the political assertion of minorities. At the international level, this has produced aggressive and ambivalent international doctrines of humanitarian intervention. The moral ambiguity of the US-led international system of intervention has put in question well-intentioned initiatives like the recently adopted UN declaration on the responsibility to protect populations against genocide, war crimes, ethnic cleansing, and crimes against humanity (2005). Important for minority rights protection are developments such as the General Assembly's decision to upgrade and

create the Human Rights Council in place of the Human Rights Commission, which was a subsidiary of ECOSOC; and the setting up of two new UN posts in 2005: a special advisor to the secretary general on the prevention of genocide, and an independent expert on minority issues, appointed by the UN high commissioner for human rights.

References l Academy of Third World Studies and SAFHR. 2004. Federalism and Protection of

Minorities in India. Workshop report. Jamia Milla University, New Delhi, 27-28 February. l Ahmed, Feroz. 1999. Ethnicity and Politics in Pakistan. Karachi: Oxford University Press. l Akhtar, Shaheen. 2003. Pakistan's Dimensions of Security. In Comprehensive Security in

South Asia: Ethnic Dimensions. Edited by V Raghavan. New Delhi: Delhi Policy Group. l Ansari, Iqbal. 1996. Introduction to Readings on Minorities. Vol. 2. New Delhi: Institute of

Objective Studies. l Aurora, Balveer, and Douglas Verney, eds. 1995. Multiple Identities in a Single State:

Indian Federalism in a Comparative Perspective. New Delhi: Konarak. l Banerjee, Sumanta, ed. 1999. Shrinking Space: Minority Rights in South Asia. Manohar:

SAFHR. l Capotorti, Francesco. 1976. The Protection of Minorities under Multilateral Agreements on

Polavaram Project' Economic and Political Weekly April15, pp. 1430-1434 Ethnic Conflict and Militarism in South Asia Kroc Institute Occasional paper 6 OP :4 University of Notre Dame. l Samad, Saleem. 1999. Bangladesh: State of Minorities in Sumanta Banerjee ed Shrinking Space. l Samaddar, Ranabir. 2004. 'The Juridical Political Claims of Minority Protection in India' Paper in a Reader for South Asian Workshop on Combatting Racism, Xenophobia and Discrimination against Ethnic Minorities and Indigenous Peoples, SAFHR Kathmandu, May 2004 l Sambandam, V S. 2003. 'A promise of Identity' Frontline 1 March. l Rajasingham-Senanayake, Draini. 2004. Data, Demography and the Conflict-Development Nexus. Paper presented at the ICDP +10 Conference organized by IPPF Kathmandu, August. l US State Department. 2005. International Religious Freedom Bangladesh: Country Report 2005 . l UNDP. 2004. Human Development Report “Cultural Liberty in Today's Diverse World'. l UNDP. 2005. Human Development Report 2005 p 163. Available (http://undp.org/reports/global/2005 ) l Uyangoda, Jayadeva. 2001. 'Questions of Sri lanka's Minority Rights', ICES, Colombo. l Zia, Shahla. 'Discrimination Against Religious Minorities : Constitutional Aspects' in Rita Manchanda edited Shrinking Space vol II, forthcoming. l Sahadevan, P. 1999.

Human Rights. Italian Yearbook of International Law 2 (14). l . Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities.

UN Document E/CN.4/Sub.2/384/Add.1-7. Geneva: UN Centre for Human Rights. l Carnegie Commission's Report on Preventing Deadly Conflict. 1997. l Chaudhury, Sabyasachi Basu Ray, et al, eds. 2006. Indian Autonomies: Keywords and Key Texts. Calcutta: CRG-SAMPARK. l Gazdar, Haris. 2006. Counter-insurgencies in Pakistan. Economic and Political Weekly. 20 May, 1952-1953. l Ghai, Yash. 2000. Ethnicity and Autonomy: A Framework of Analysis. In Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States. Cambridge University Press. l Goodhand, Jonathan. 2001. Conflict Assessments: A Synthesis Report, Krygyzstan, Modova, Nepal and Sri Lanka. London: Centre for Defence Studies, King's College London. l HRCP. 2003. Minority Rights in Pakistan. HRCP, Karachi, 12 April. l HRCP. 2001. Ethnic and Language Rights: National Consultation on Status of Minorities' Rights. HRCP, Karachi, 27-28 July. l Lawoti, Mahendra. 2005. Towards a Democratic Nepal. New Delhi: Sage Publications. l Bhattachan, Krishna. 1999. Minority Rights in Predatory Nepalese State. In Shrinking Space: Minority Rights in South Asia. Edited by Sumanta Banerjee. Manohar: SAFHR. l Mahajan, Gurpreet. 1998. Identities and Rights. Delhi: Oxford University Press. l Tayyub Mahmud 'Migration, Identity and the Colonial Encounter 'Oregon Law Review Fall 1997, University of Oregon l Manchanda, Rita. 2006. ' Conflicts and the Politics of Peace in South Asia' in R.N. Kumar and Sonia Muller-Rappard edited Critical Readings in Human Rights and Peace, SAFHRSHIPRA Publications. l Mohsin, Amena. 2003. Ethnicity and Conflict: The Bangladesh Case in V Raghavan ed Comprehensive Security. l Oomen, T K. 2003. Ethnic Dimensions of Security: Situating India in the Context of South Asia in V Raghavan edited Comprehensive Security in South Asia. l Pan, Christoph, and Beate Sibylle Pfeil. 2003. Ethnos: National Minorities in Europe Braumuller. l Parekh, Bhigu. 2001. Rethinking Mulitculturalism Palgrave New York. l Reddy, N Subba. 2006. 'Development through Dismemberment of the Weak: Threat of

End Notes 1. Forum for Women in Law and Development, Kathmandu 2004. 2. Other constitutions, such as those of Bangladesh and Nepal, also indicate a “negative” possibility, i.e., “nothing shall prevent the state from acting to offset the disadvantages of backward groups…” 3. Capotorti (1976) defined a minority as “a group which is numerically inferior to the rest of the population of a State and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions, religion or language.” 4. “A group of citizens of the state, constituting a numerical minority and in a non-dominant position in that state, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, if only implicitly by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law.” 5. B R Ambedkar in the Constituent Assembly Debates, quoted by Sammadar (2004).

Bangladesh: Amid Hope and Despair Dr Imtiaz Ahmed Introduction Since its creation, Bangladesh has suffered a poor reputation, for which the credit goes to Henry Kissinger, the former US secretary of state, who described Bangladesh as an 'international basket case'1 in the early years of its independence. Against the backdrop of a country with an unchecked population growth, poverty, and periodic floods and famines, Kissinger believed that Bangladesh could survive only with a continuous flow of food aid from international donors. Some took the statement as an outcome of Kissinger's personal anger at the birth of Bangladesh (1971), which had greatly upset the grand strategy of the US vis-à-vis its engagement with China and the Soviet Union pursued under his somewhat Machiavellian diplomatic novelty,2 while others thought that there were elements of truth in what Kissinger had to say about Bangladesh. Whatever may have been the reasons for Kissinger's statement, after 34 years there is now consensus both at home and abroad that Bangladesh has proved Kissinger wrong on many fronts. How valid is this consensus? True, the process of nation-building has emboldened the people and the majority are ready to sacrifice their lives for their country, but why is there so much division when it comes to defining the country's national identity? What about the legacies of violence and bloodshed? How much do they contribute to the making or unmaking of the citizen? True, NGOs have succeeded beyond expectation in their efforts to alleviate poverty, but what about the misgovernance of the government? What about the rampant corruption in various sectors of the economy? It is true that democratic institutions now prevail in the country, but then what about the prolonged boycott of the parliament by members of the opposition parties? What about the violence that is now being carried out in the name of Islam? Who is to be blamed for all this? Why is there so much intolerance in the society? There is a viable women’s workforce, particularly in the garments sector, but then why do women still suffer from insecurity? It is true that the issue of language and religion has cemented bonds between the majority sections of the population, but why is there a creeping majoritarianism, one that is increasingly resentful of the life and living of the minorities? Is it people's obsession with politics that is ruining all the economic achievements? Or is it the state of the economy that is creating all the restlessness in the society? Are the frequent natural disasters to be blamed for the periodic setbacks, or has the imagination of the Bengali mind come to an end? Queries of this nature are endless, although one can easily see that both hope and despair are blended together, in an intricate manner, making Bangladesh an interesting case for reflection and discourse. The purpose of this paper is precisely that, dealing with the colonial and post-colonial legacy of polarised politics and the

struggle for democracy. The paper also looks at the overly empowered status of government in Bangladesh and the nature of governance arising out of it. Apart from critiquing the burden of yesteryears, it focuses on the governmentalisation of the state sector and the corruption it invites. The formidable power of non-governmentality is discussed as are some of the success stories of the non-governmental sector, including the social and political implications of non-governmentality. The relationship between globalisation, diaspora and subalternity and the impact it has on the lives of the people is also examined. Finally, in the concluding section an attempt is made to understand the resilience of the people in the midst of all the political, economic, social and environmental hardships. Polarised Politics and the Struggle for Democracy Bangladesh had the misfortune of experiencing colonialism twice, first under the British (1757-1947), followed by the so-called “internal colonialism” under Pakistan (1947-1971). Two things emerged from Bangladesh's prolonged encounter with colonialism. First, it gave birth to a polarised political milieu on a national scale. This is best reflected in the struggle between the colonial government and the colonised subalterns. At a particular moment of history, this took the form of a struggle between the colonial and the nationalist forces. Second, in the face of polarisation, the colonised subalterns could do little other than resort to violence in the campaign to redress the wrongs done by the colonial power. And it is indeed in the midst of violence and polarised politics that the colonised subalterns finally got rid of the colonial power. However, something else was also transformed. In the wake of the struggle against colonialism, the relatively autonomous 'civil society' also became polarised and violent. Put differently, civil society in colonial Bengal, unlike that of the West, could not develop freely and boast of its civilising and consenting roles. Colonialism reconstructed civil society to such an extent that the latter soon got into the business of organising and reproducing violence and intolerance in the manner of the political society. Political parties, voluntary associations, intellectuals, media, schools, sports clubs--all that the civil society represented--were tainted by this reconstruction. In the 25 years of Pakistan rule, polarisation and violence were further intensified, culminating in the bloody birth of Bangladesh. In this connection, it is noteworthy that in 1971, approximately 26,000-3 million people were killed by the Pakistani military and its Bengali collaborators.3 Independence, therefore, came as a result of great sacrifice by the people, with polarisation and violence becoming the bedrock of Bangladesh politics. Immediately after Sheikh Mujib-ur-Rehman's return from Pakistan (where he had been interned since the night of 25th March, 1971) on 10th January 1972, he busied himself in the task of rebuilding the war-torn nation. Amongst his many activities, Mujib succeeded in bringing about a quick withdrawal of the Indian army, which played a critical role in the surrender of the Pakistan army in December, 1971. During the early months of 1972 Mujib also signed a 25-year Treaty of Friendship with India, which many in the opposition--consisting of both leftist and rightist elements--openly opposed. For Mujib and the Awami League (AL), however, things began to move from bad to worse with the unprecedented floods in 1974. Partly due to the seemingly

purposeful maladministration on the part of the bureaucracy and partly due to the lack of political motivation on the part of the ruling party, the 1974 floods soon transformed into a demonic man-made famine. The famine brought untold miseries to millions. Somewhat panicked by events, particularly domestic resentment and social unrest, Mujib felt the need to overhaul the political system of the country. In January, 1975 Mujib imposed a one-party system under the banner of Bangladesh Krishak Sramik Awami League (BAKSAL). The formation of BAKSAL, however, did little to contain the declining state of the economy. As a result, public dissension, far from being arrested, grew further. In the midst of such a dismal situation, a group of young military officers, mostly holding the rank of army Major, staged a coup d'etat on 15 August, 1975. During the coup Mujib and most of his family members were killed, martial law was declared and Khondoker Mushtaque, a rightist and proAmerican member of the Awami League, took over as the new Head of State. The Mushtaque regime, however, was beset with two major problems from the beginning. One, about the state of relations between and amongst Mushtaque's colleagues within the Awami League, and two, with respect to the state of relations between the young (i.e., the coup members) and senior officers of the military. Unable to do anything effective on both these matters, Mushtaque had to step down in November, 1975 amidst the killing of four prominent Awami League leaders inside the Dhaka Central Jail by 'unknown elements' and counter-coups staged by the senior officers, first by Khaled Musharaf (3rd November) and then four days later by forces loyal to Ziaur Rahman (7th November). As a 'freedom fighter', Ziaur Rahman was respected by many in and outside the military. Making full use of his popularity, Zia engaged himself in the task of building a unique rapprochement between the liberation and anti-liberation forces, on the one hand, and between the military and civilian forces, on the other. To fulfill this task Zia advocated an Islamic brand of nationalism under the label of 'Bangladeshi nationalism,' replacing the pre-1975 'Bengali nationalism' of Mujib and the Awami League. Zia also dropped 'secularism' from the constitution through a proclamation order in 1977. It was replaced by the wording â&#x20AC;&#x153;absolute trust and faith in the Almighty Allah.â&#x20AC;? If anything, this catered well to the newly constructed aspirations of the Muslim majority of the country to the detriment of the minorities. But if Zia was brought to power by coups and mutinies, there was no respite from such incidents throughout his tenure. In fact, failing to satisfy various factions of the military, Zia faced more than 20 attempted coups before finally falling victim to the one that was carried out on 30th May, 1981. The coup failed but those involved succeeded in killing Zia. Following Zia's death, the top brass of the military continued to support the BNP-led government. The latter arranged a presidential election in November 1981, which the Bangladesh Nationalist Party (BNP) nominee, Justice Abdus Sattar, easily won. However, shortly after this, the Chief of Staff, H.M. Ershad, seized power in a coup and sacked Sattar and his government (24 March 1982). Ever since Ershad seized power in 1982 political parties of different shades, particularly Bangladesh Nationalist Party (BNP) and Awami League (AL), along with

their student fronts, began demanding free and fair elections, including the transfer of power to the civilian authority. With each month of Ershad's tenure the opposition movement against him gained momentum. In his desperate bid to remain in power Ershad began using religion in his favour, by declaring Bangladesh as 'Islamic state,' including instigating communal riots against the Hindu minorities. But nothing could save him. In the face of combined opposition, which saw thousands of people marching in the streets, coupled with the inaction of the military to rescue him from his predicaments, Ershad resigned on 6th December 1990. He was replaced by a caretaker government led by Justice Shahabuddin Ahmed, whose primary task was to hold free and fair elections and hand over power to the winning party. The election in 1991 held by a civilian caretaker government was the first of its kind in Bangladesh. In the parliamentary elections, which observers declared as 'free and fair,' the Bangladesh Nationalist Party (BNP), under Khaleda Zia, emerged victorious. But it did not take long for the latter to come under violent protests from the opposition, for an issue which created by BNP. Much like the old times, when elections under incumbent governments were rigged, BNP won the Magura seat by rigging the by-election in March, 1994. The opposition political parties immediately protested against the result and demanded that future general elections be held under a caretaker government. Khaleda resisted the demand and sought fresh mandate in February, 1996. All the opposition parties boycotted the election. Immediately after the February election and in the face of massive protest Khaleda declared that a fresh election would be held following the approval of the 'Caretaker Government Bill' by the newly constituted parliament. Upon its approval the parliament was dissolved in April, 1996. Khaleda's government also resigned and, according to provisions stipulated in the Bill, handed over power to a constitutionally mandated caretaker government. Election under the latter was held in June 1996, and this time the Awami League, under Sheikh Hasina, came out victorious, incidentally by way of entering into a tactical alliance with the Jamaat-e-Islami (one of the right-wing parties that supported the Pakistani military in 1971) against BNP. Hasina, after forming the government, got down to the business of consolidating her power by attracting the secular and pro-liberation forces, including eulogising the pre1975 regime of her father and establishing friendly relations with India. This alienated the Jamaat-e-Islami which returned to the fold of the BNP, after which they quickly cemented an anti-Awami League alliance and started a campaign to oust the government. In the 2001 elections, again held under the constitutionally mandated caretaker government, the BNP-Jamaat alliance defeated the Awami League (AL) and captured more than two-thirds of the seats in the parliament. The Awami League (AL), somewhat surprised and panicked by the defeat, first raised the issue of rigging and then went on to pressurise the BNP government to resign, often by enforcing hartals (work stoppage) and periodically boycotting the parliament. Indeed, even after 34 years of independence, Bangladesh could not overcome its legacy of violence and polarised politics. Currently, the polarisation is so intense that almost the entire population, including government officials, private entrepreneurs, civil groups, educational institutions, cultural fronts, student bodies, media and many more, seems to be divided into Bangladesh Nationalist Party (BNP) and Awami League (AL)

camps. 'If you are not with me then you are with them' has become the central doctrine of Bangladesh politics, with the neutrals, albeit only a handful of them now, being frowned upon by members of both the camps as abnormal or engaged in sheer opportunism. However, this is only one side of the legacy. Government, Governmentality and Misgovernance 'Government' was never an all-encompassing entity in this part of the world. During the 500-years of the Mughal rule and even before, the government, as it was understood then, busied itself in collecting revenues and all the 'good things' in society, mainly for the consumption and enrichment of the sovereign and his/her close associates. The relationship between the sovereign and the people was mostly linear, with the latter providing all the 'wealth' and, at times, also 'wisdom' to the sovereign. The sovereign, for its part, did not bother much with the life and lifestyle of the people. Things began to change, however, with the coming of the British and the colonisation of South Asia. Colonialism in South Asia went through two phases. In the first phase (running from 1757 to the end of the 18th century), the colonial power settled for a conciliatory gesture towards the traditional elite. During this phase, the colonial power even promoted indigenous education, establishing the Calcutta Alia Madrasha and the Banares Sanskrit College in 1781 and 1792, respectively. While there was an element of genuine interests among some British officials in propagating India's culture and languages, the policy itself was no less related to the colonialist need for a class of officials (both foreign and native) well versed in Persian, Arabic or Sanskrit so that they could assist in the governance of the country.4 With the maturity of British domination, however, such a need gave way to a newer dimension in the organisation of governance. Thus, the second phase of colonialism, understood more as 'colonialism proper'--a synonym for intellectual dependency of the South Asians on the West--began (to be precise) in 1835, with the introduction of English as a medium of instruction. Consequently, in less than a hundred years, the task of government, including the nature of governance, was radically transformed, with critical long-term consequences. Indeed, in the wake of 'colonialism proper,' with the government controlling the task of knowledge production and diffusion, the relationship between the government and the people transformed from one of a linear state of resignation to something that can best be referred to as governmental. The Pakistani phase of semi-colonialism further governmentalised ideas in Bangladesh, indeed, to a point where guarding the national flag, building a highway, making curriculum for the school, even collecting household garbage, all became the responsibilities of the government. Indeed, governmental policy, whatever may have been its target and field of operation, increasingly came to be viewed as the means to police the people. Resistance at that time was built on the belief that if the semicolonial (Pakistani) government were removed, the government of a free Bangladesh would be able to deliver goods. In the process, however, neither the practice of rendering governmental policy (the cause of the contention) nor the culture of policing the people (the cause of the action) got removed, and Bangladesh remained

highly governmentalised after its birth in 1971. Governmentality, for instance, had a far reaching influence in organising the sphere of 'economics' in Bangladesh, which, by the time of independence, had settled for a politics of development centered on the all-pervasive role of the government. It is important to make a distinction here between what the word 'economy' meant in the West and what it had come to mean in Bangladesh. Suffice to point out here that in the West the word “economy” originally meant the art of managing a household or “the government of the family,” which only in the 16th century had been elevated to the state level, suggesting that 'the meticulous attention of the father towards his family be introduced into the management of the state.'5 The sense of voluntarism in managing or governing things is still there in the West, one which is well expressed by the term 'economic government.'6 In Bangladesh, the case was quite different. By the time of independence, government intervention in the sphere of 'economics' had already reached a stage where it could be best summed up, in contrast to the 'economic government' of the West, as governmental economy, referring to the all-pervasive role of the government in organizing and reproducing the sphere of 'economics,' indeed, to the point of constructing a politics of development for the state. The state sector in the economy came into being not as a result of an economic marvel but because of governmental policy. The government took up the task of not only policing and keeping intact all governmental structures built during the Pakistan rule, but also owning all non-Bengali (and some Bengali) private industries. The later policy of denationalising state-owned enterprises was based not on positive economic performance but, rather, the lack of it; and that again, by a governmental policy, albeit this time under donor pressure. In fact, there is no substantial difference insofar as running these enterprises (both nationalised and denationalised) are concerned. If, in the nationalised phase, the bureaucrats were given the power to run the business, in the denationalised phase the power is mostly given to the nouveau riche or those having dubious connections with government and banking authorities. Put differently, the governmentalisation of privatisation creates space for bribe giving as well as bribe taking. So rampant is corruption that the annual Corruption Perception Index (CPI) published by Transparency International has ranked Bangladesh at the bottom of the list for the fifth consecutive year. There is, however, a socioeconomic or class dimension to corruption, as Iftekharuzzaman, the Executive Director of Transparency International Bangladesh, somewhat uncritically mentions: “Corruption's inherent bias against the poor is easily discernible in Bangladesh. While corruption affects everyone, the poor are more vulnerable especially because they are easy victims of bribery, extortion and intimidation. The poor in Bangladesh are directly affected by the increasing cost of key public services by way of unauthorised payments, low quality of such services and limiting or even preventing the poor's access to essential services as education, health and justice”.7 If that is the case then why is the whole country, which includes over 80 percent of the

population living below the poverty line and actually having nothing to do with corruption, labeled as the most corrupt in the world? Put differently, if the government or the elite running the government or those associated with policymaking or lucrative business or the banking sector are to be blamed then why is the burden of corruption, as is the case with the CPI labeling, shifted to the whole nation, including the poor folk of the country? One can point out here that while we are passionate about the 'horizontal' side of corruption (that is, corruption in different sectors) we are less inclined to raise the issue of 'vertical' corruption (that is, the actual volume in monetary terms). This has both national and global dimensions. Nationally, the corruption of a 'big fry' (one who is misappropriating funds to the tune of millions of takka) is made at par with the corruption of a 'small fry' (one who is probably taking a bribe to literally survive in the metropolitan city of Dhaka). Similarly, at the global level, the corruption in actual monetary terms is much higher in some of the developed countries (the most likely figure is in millions of dollars!) than in some of the developing countries, including Bangladesh. However, the honorific title of being the most corrupt still goes to the country engaged in horizontal corruption rather than the one engaged in vertical corruption. Emphasising the former, without taking into account the latter, only allows the 'big fry,' both at the national and global levels, to continue misappropriating funds to the detriment of the poor and the marginalised. Power of Non-governmentality Misgovernance has tainted the government more than the non-governmental sector. In fact, if misgovernance has paralysed the government, particularly its developmental sector, it seems less evident in the non-governmental developmental sector. Indeed, for reasons of sheer extra efforts (which includes even making for the lost time caused by political disturbances), a better salary and, above all, ingenuity of certain individuals, non-governmental organisations have fared better in developmental activities. In fact, their success has been so astounding that one often hears of non-governmentality as the key to Bangladesh development. There is some merit in this observation. In fact, one way of getting a sense of the rising power of non-governmentality is to see the growing frustration of the donors with the governmental sector and the corresponding rise in their interests in the activities of the non-governmental sector. Approximately 25 percent of donors' funds currently go to the non-governmental sector. This percentage has come about very rapidly; in 1988, it was 18 percent.8 If this trend continues, the non-governmental sector is bound to overtake the governmental share of donors' funds, including the volume of developmental activities, in coming decades. But there are other good historical reasons for the formidable power of the non-governmental sector. Unlike many other countries in the world, the non-governmental sector in Bangladesh developed simultaneously with the government from the time of the country's independence. In the wake of massive displacement of people, including the birth of 10 million refugees during the liberation war of Bangladesh, the non-governmental sector, more as a supporting hand of the government, engaged itself in the task of

relief and rehabilitation. One or two NGOs even had a pre-independence existence, although they were at their rudimentary stages then. BRAC, currently the largest NGO in the world, actually started working formally in 1972, although some of its key members were active as early as 1970 when the country was struck with a massive cyclone and thousands of people were in dire need of food and shelter. After independence, BRAC began with a short-term relief and rehabilitation project, but quickly moved towards long-term issues of poverty alleviation and empowerment of the poor. A closer exposition of two of its achievements would suffice here. In the field of education, BRAC came up with the novel idea of establishing NonFormal Primary Schools, which are designed to include poor, rural drop-outs and children, particularly girls deprived of formal schooling. BRAC started this program way back in 1985 with 22 one-room schools, which by 2004 had grown to 49,000 primary and pre-primary schools, with an enrollment of over a million children, the majority of whom are girls (65 percent).9 Moreover, 2.8 million students have already graduated from these schools and over 90 percent of them have gone for further education with formal, public schools.10 BRAC, along with other NGOs as well as the education program of the government, has certainly helped in raising the literate rate of the country, from 37.5 percent in 1995 to 43 percent in 2003, which also earned Bangladesh the International Literacy Prize 1998 from UNESCO. In the field of health also BRAC's success is noteworthy. Bangladesh was known for a high infant mortality rate and one of the reasons for this was diarrhea. BRAC in collaboration with the ICDDR, B undertook a countrywide program where 2,000 BRAC workers (90 percent women) went door-to-door and taught 13 million mothers the simple technique of preparing home-made oral rehydration saline (ORS) and also communicated the knowledge of ORS to 100 percent of the population. The program was so effective that it brought down the infant mortality rate from 258 per thousand to 75 per thousand.11 But these are only two of BRAC's manifold activities. Although BRAC is an NGO, it is a parent organisation of several companies and institutions involved in activities ranging from providing internet service, hospitality, land and housing, tea plantation to software development, finance and banking, and many others. There is also a BRAC University now. The total workforce of BRAC has surpassed the 300,000 mark,12 and is still growing. In the non-governmental sector the innovation of micro-credit had the most spectacular success in Bangladesh. It started with the simple idea of providing micro loans to rural women without any collateral. In 1976 Professor Muhammad Yunus, as part of an action research project of Chittagong University, lent US$27 to 42 women in Jobra, a village adjacent to the University, so that they could use the loan for some micro business ventures. All the women not only repaid the loans but also made small profit from it. Out of this experience emerged the Grameen Bank, a specialised bank registered not as an NGO but as a trustee, which has so far cumulatively disbursed more than US$5.1 billion to 5.5 million borrowers, 96 percent of whom are women, in nearly 58,000 villages across Bangladesh. It may be mentioned that out of this

disbursed amount, US$4.6 billion has been paid back and the recovery rate is 99 percent. Furthermore, the borrowers of Grameen Bank currently own 93 percent of the total equity of the bank, while the remaining seven percent is owned by the government. But the Grameen Bank did not limit itself to just micro-financing. It has tried to support its members in various activities, including housing, education, village mobile phone service and pension funding. According to Grameen Bank's internal survey, based on 10 objective indicators, 55 percent of its members have already crossed the poverty line, and this is no small claim. No wonder the Grameen experience to date has been replicated in 36 countries, including the United States. There are two things, however, that need to be pointed out with respect to the power of non-governmentality. First, in its present phase, the success of non-governmental organisations is largely measured in terms of the failure of the governmental sector. This point is pertinent because non-governmental organisations have not succeeded in getting rid of the 'mentality' of the government. Indeed, so long certain 'noble' individuals are at the top and remain the 'mental,' things probably would go well for these organisations. But then, in the absence of a proper structure of nongovernmentality, there is no guarantee that such an efficient working of things will continue after the retirement or demise of the 'noble' individuals. Secondly, non-governmentality could thrive only when there is space for practicing alternative development. In this context, 'Yunusonomics' (i.e. the economics and developmental practices of Muhammad Yunus) need to be further explored and brought to the mainstream discussions, including building an alternative economics curriculum on the basis of its paradigmatic vision and experience. The very fact that the neo-classical economists have begun attacking Yunusonomics at this early stage shows that there is some merit in the latter. Globalisation, Diaspora and Subalternity Globalisation, mainly because of its birth from a complex combination of multiple interactions, has given rise to a multiversity or multiple universes of knowledge and practices. As a result we are faced with several versions of globalisation. There is, first, economic globalisation or globalisation from top.13 What this means is that, in addition to the internationalisation of trade, finance and investment, there is now the internationalisation of production. That is, multi-national or rather transnational companies now collect resources in several countries, process them in another several countries and finally, export the finished products to the rest of the world. A fully finished product, therefore, no longer has one single birthmark; it has multiple birthmarks since several countries have gone to produce it. In Bangladesh the ready-made garments (RMG) industry is a good example of this. The industry is based primarily on sub-contracting, under which Bangladeshi entrepreneurs work as sub-contractors of foreign buyers.14 Moreover, about 90 percent of woven fabrics and 60 percent of knit fabrics are imported to make garments for export. In the process, however, the RMG sector has not only become the major export earner but has also helped empower women as the bulk of the workforce is female. It may be mentioned that in 1982 there were only 47 garment manufacturing unit, but by 1999 it increased

to around 2,900, employing directly more than 1.4 million workers, out of which 80 percent are female. The RMG industry, with total export earnings of over US$5.5 billion (1998-1999), now contributes to more than 75 percent of the total export earnings of Bangladesh. Few can deny the impact of economic globalisation in all this. The second version can be referred to as reverse globalisation. One good example would be the so-called Indian restaurants found throughout the world. Curry, masala tikka, biryani, even dosa and idli are now household names and certainly gastronomic delights across cultures, nationalities and continents. Michael Dummett, the English philosopher, went on to say, â&#x20AC;&#x153;British eating habits have been considerably affected by the Bangladeshi, and to a lesser extent Chinese, presence.â&#x20AC;?15 In fact, in many of the socalled Indian restaurants the chef is a Bangladeshi, adding credence to the fact that the term 'Indian' is more conglomerate when it comes to cuisine and somewhat defies the post-colonial nationality of the Indian state. Bangladeshi diaspora has certainly played a significant role in this regard. There is, however, a third version of globalisation. Critics have already referred to the mushrooming of global networks resisting economic globalisation as 'globalisation from below.'16 The latter includes a diverse group of people environmentalists, NGOs, religious groups, small farmers, labour unions (incidentally of both the developed and developing countries), women's movement, consumerists, African debt relief campaigners, anti-sweatshop activists, and the like, all one way or other either critical of or directly suffering from and struggling against the impact of economic globalisation. Here the forces of the seemingly disempowered non-state have creatively joined hands to overcome the exploitation of the empowered non-state, i.e. the forces of economic globalisation. The subaltern nature of the resistance movements, particularly the networking, can hardly be minimised. But then, there is a further subaltern variant to the whole notion of globalisation from below. This refers to the deepening of relationship between and amongst the 'dubious groups' and 'shadowy activities' ranging from smuggling of goods and people, illicit production and trading of small arms and explosives, money laundering, narcoproduction and trading, terrorism, and the like, and that again, across and beyond national, ethnic, racial, and even religious affiliations. The subalterns, particularly the poverty-ridden and marginalised population, become easy targets of such groups and activities, but more importantly the state of being itself becomes a factor for certain relatively well off individuals to rally support and even clandestinely work for their cause. A protracted nature of poverty and marginality and a lack of substantive global concern also push them to seek informal or even criminal means to reproduce their lives and if possible to redress the situation. The complex networking at this level and in combination with the resistance movements against economic globalisation could be best referred to as subaltern globalisation.17 The relationship between globalisation, diaspora and subalternity is formidable. The post-independence Bangladeshi diaspora is somewhat of a pride for Bangladesh. In 2004 Bangladesh received US$3.4 billion in remittances compared to India's US$21.7 billion. In terms of per capita remittance Bangladesh has done far better than

India. In fact, remittance now constituted one-third of the total foreign exchange earning of the country. But then this is only one side of the story. The Bangladeshi diaspora, particularly in the Middle East, could not help but be attracted to a puritan version of Islam and in turn help promote the Wahhabisation of Bangladesh. Indeed, if any group that has come to aid religious education in Bangladesh in a substantial way beyond what is given by the government it is the diaspora that had once left the country in search of 'modernist' goals. The figures are revealing. In 1999 the number of primary schools stood at 65,610. This is down from 78,595 in 1996. The number of Alia Madrashahs, however, increased from 14,414 in 1989 to 25,201 in 2004.18 Support from the state as well as from the members of the diaspora, indeed for quite different reasons, is what is making religious education and the organisation around it turn into a formidable power in the country, including making many of them turn militant, which in the age of subaltern globalisation can turn demonic.

differently at least in certain areas. There was less deterioration of the law and order situation, for instance. In fact, a nationwide field survey in 15,467 villages carried out by Nagarik Durjog Mokabila Udyog (a civil response body formed during the 1998 flood) found that the law and order situation deteriorated only in 13 to 17 percent of the villages whereas in over 80 percent of the villages there was no such deterioration. More interestingly, it was found that there was less corruption or irregularities in food/relief distribution.21 One requires tapping the immense possibilities arising from what seemed to be deviations from the norm or what may be defined as resilience through collective sufferings. But then, can a nation be built on the basis of collective sufferings? Or, can the basis of collective despair bring about collective hope? If the past is any lesson for Bangladesh then there are reasons to be equally apprehensive and thrilled about its future.

According to well-informed sources, there are about 250,000 illegal fire arms in Bangladesh.19 Some unconfirmed reports indicate that a substantial amount of illegal fire arms enter the country everyday through its borders, indicating the existence of an informal arms bazaar in the region. During 2001-2002 the use of illegal weapons became so rampant that the Government of Bangladesh had to launch a military operation named, “Operation Clean Heart” to bring the perpetrators to book. Indeed, one of the major tasks of the joint forces in this operation was to recover illegal fire arms. In this operation a total of 2016 fire arms of different categories were recovered, amongst these were six AK-47, two M- 16 rifles and few sub-machine guns (SMG), indicating the efficiency of subaltern globalisation in making these weapons available in Bangladesh. Indeed, the wealth in the hands of the diaspora, the parcellised understanding of Islam, the reason of the state, the global bashing of the Muslims and not to mention the opportunities provided by the shadowy and dubious networks of subaltern globalisation, particularly in getting access to funds and weapons, has allowed many in the Madrasahs join the so-called Islamic militant groups. The latter is blamed for much of the recent violence, including the death of more than 150 people and injury of over 1000 in bomb explosions in last five years.

End Notes 1. In some reports we find that Kissinger called Bangladesh a 'bottomless basket.' The idea however is the same. 2. For a closer exposition, see, Imtiaz Ahmed, “The 1971 South Asian Crisis: US Policy Revisited,” Social Science Review, The Dhaka University Studies, Part D, Volume 22, Number 2, December 2005. 3. Three million is the official casualty figure provided by the Bangladesh government and supported by the governments of India and the erstwhile Soviet Union, while the lower casualty figure is provided by the Hamoodur Rahman Report of Pakistan. See, “Hamoodur Rahman Commission Report, 1974,” Information Times, America's online international daily newspaper, Washington, DC, 12 August 2000. 4. See, SK Agrawala, "The Universities of India," in The Universities of Commonwealth Countries (London, 1994), p. 799. 5. For a closer exposition of the transformation of the word 'economy,' see Michel Foucault, “Governmentality,” in Graham Burchell, Colin Gordon and Peter Miller (ed.), The Foucault Effect: Studies In Governmentality (Chicago: The University of Chicago Press, 1991), p.92. 6. Ibid., pp.92-93. 7. Iftekharuzzaman, “Corruption and Human Insecurity in Bangladesh.” Paper presented at a workshop in BRAC Centre organized by Transparency International Bangladesh in December 2005. 8. In 1988 the non-governmental share was 18 percent. See, Binayak Sen, “NGOs in Bangladesh Agriculture: An Exploratory Study,” in Agriculture Sector Review, Vol.5, UNDP, 1988. 9. BRAC Annual Report 2004 (Dhaka: BRAC Printers, 2005), pp.54-55. 10. Ibid. 11. Khadija Rehma, “The Biggest NGO on Earth,” 15th Anniversary Special, The Daily Star, 4 February 2006. 12. BRAC Annual Report 2004, p.6. 13. Jeremy Brecher, Tim Costello and Brendan Smith, Globalization From Below: The Power of Solidarity (Cambridge, Mass: South End Press, 2000). 14. See, Banglapedia: National Encyclopedia of Bangladesh (Dhaka: Asiatic Society of Bangladesh, 2003), pp.327-331. 15. Michael Dummett, On Immigration and Refugees (London: Routledge, 2001), p.15. 16. Brecher, Costello and Smith, op.cit., p.10. 17. Imtiaz Ahmed, “Contemporary Terrorism and the State, Non-State and the Interstate: Newer Drinks, Newer Bottles,” in Sridhar K. Khatri & Gert W. Kueck, eds., Terrorism in South Asia: Impact on Development and Democratic Process (Colombo: Regional Centre

Conclusion What makes the Bangladeshis so resilient? How are they able to cope with all the traumas resulting from the bloody birth of the country to the natural calamities of floods, droughts and cyclones and now the brutality of contemporary terrorism? How did Bangladesh reduce infant mortality by half in the past decade, indeed, at a rate faster than any other developing country? How did Bangladesh accomplish an outstanding result in the reduction of child labour--only seven percent compared to India's 13 percent and Niger's 66 percent? How did female labour force participation rate, particularly in rural area, increase dramatically--from seven percent in 1983 to 22 percent in 1999? What allowed Bangladesh to perform so well in terms of the human development indicators (incidentally it came out in number three position in the developing world, after China and Cape Verde)? What makes Bangladesh the 'happiest nation in the world'?20 Interestingly during the recent floods the civil and political societies have responded

for Strategic Studies, 2003). 18. Abdalla, Amr, ANM Raisuddin and Suleiman Hussein, Bangladesh Educational Assessment: Pre-primary and Primary Madrasah Education in Bangladesh (Washington DC: United States Agency for International Development, 2004), pp.2, 16. 19. This was disclosed by the former Chief Advisor Latifur Rahman in an interview with The Daily Star. See, “Prevalence of illegal arms now greater than that in '91 & '96,” The Daily Star, 6 August 2001. 20. This is according to a study report of the World Happiness Survey 2005. See, New Age, 17 January 2006, p.3. 21. This is based on the author's discussion with a cross-section of people in the flood-affected areas.

Sri Lanka: Peace Process under Threat Dr S I Keethaponcalan Ever since war broke out between Sri Lanka's armed forces and the Liberation Tigers of Tamil Eelam (LTTE) in the mid-1980s, there have been attempts to resolve the conflict through political negotiations. The last such endeavor was launched with the signing of a ceasefire agreement (CFA) between the two parties in February 2002, followed by six rounds of talks in Asia and Europe. Although the process was suspended because of internal political melees between the two major political parties in the south, the CFA held despite escalating violence and the process did not collapse completely. Observers felt that the country was slowly sliding back into war. It was against this backdrop that Mahinda Rajapaksa was elected the fifth executive president of the country on 17 November 2005. Peace Process 20051 The 2001 war plunged Sri Lanka into deep crisis. The economy seemed extremely vulnerable and the government found it impossible to fight the LTTE effectively. The LTTE also faced financial and manpower issues, despite its success on the battlefield: it could not continue its violent campaign for a separate state since the international community had mobilised against terrorism under the leadership of the US. Since the LTTE had already been banned in certain states as a terrorist organisation, it was also brought under the grand umbrella of terrorism without much hesitation. By the end of 2001, the international as well as domestic milieu was causing mutual damage to both parties, forcing them into a new peace process to find a solution to the ethno-political conflict. However, a radical change in the political system was needed for a fresh initiative, which was brought about by the United National Party (UNP)'s ascendancy to power in December 2001. Sensing general public dissatisfaction with the policy adopted by the ruling People's Alliance in relation to the ethnic conflict, the UNP advocated a fresh peace process during its election campaign. The LTTE, on the other hand, signaled to the southern electorate that it was willing to deal with a new government headed by the UNP. Hence, the electoral victory of the UNP in 2001 was considered a mandate for peace talks with the LTTE, leading to CFA of 2002. The successful conclusion of the CFA led to six rounds of direct talks between the two parties at various international venues. Although the talks were initially fruitful, both parties later found it difficult to move forward. As the process failed to transfer what is popularly called the “peace dividend” to conflict-affected areas, the LTTE demanded an interim administration for the northern and eastern provinces. The LTTE also suspended participation in the peace process due to non-implementation of the agreed provisions put forward by the government in mid-2003.

Since direct talks had ceased, the two parties had to communicate through the official facilitators of the peace process, the Norwegians. More often than not, interaction took place in the public arena, enabling the people and other stakeholders to bear witness to the nature and substance of the proposals exchanged between the parties. In response to the LTTE's demand for an interim administration, the government presented three proposals, all of which were rejected because they did not meet the expectations of the rebels. When the third proposal was dismissed as inadequate, the LTTE agreed to present its own proposal, which was completed with the assistance of international consultation in late 2003. The LTTE espoused an extreme form of devolution, where the proposed interim administration was to function as an autonomous body with loose links with the central government in Colombo. This implied a radical shift from the accepted federal principles, igniting a political crisis in the south. Meanwhile, a political struggle between the president and the government ensued in the south almost immediately after the UNP was elected to office. The Sri Lankan constitution provides for a president and a government, both elected independently by the people in separate elections. When both entities are from the same party, the system operates without problems because, as chief executive, the president wields control over all other state organs. Now, for the first time, two different parties occupied the presidency and government, and the UNP wanted total control over state affairs on the premise that it had been given a new mandate to rule. Since then, a tug of war has continued between President Chandrika Kumaratunga and the government headed by Prime Minister Ranil Wickremesinghe. Kumaratunga, who opposed the way in which the peace process was being carried out and the proposal to set up an interim administration, exploited the LTTE's proposal to undermine the government. Claiming that the LTTE proposal violated the sovereignty and territorial integrity of the state, she removed three vital ministries from the government in November 2003. With the takeover of the ministries of defence, internal affairs, and mass communication, the peace process was suspended. The president's alliance with the radical Janatha Vimukthi Peramuna (JVP), an anti-devolution party, led to fresh elections in April 2004. A new alliance, the United People's Freedom Alliance (UPFA), won the snap election, which effectively closed the door on the peace process. Although, the new government re-invited the Norwegian peace facilitators, no meaningful steps were taken to commence dialogue with the LTTE largely due the attitude of the JVP; the peace process remained deadlocked. It was against this backdrop that the 2005 presidential election took place, in which Mahinda Rajapaksa was elected the fifth executive president of the country. Presidential Elections, 2005 Although a large number of candidates contested the election, the real race was between UNP candidate Wickremesinghe and Rajapaksa of the Sri Lanka Freedom Party. In Sri Lanka, the presidential election is about alliances and pre-poll deals, as small parties, especially minority parties, wield the power to determine the outcome of the election. Since the UNP, under the leadership of Wickremesignhe, had established a pro-minority outlook, his alliance comprised some of the major minority parties, e.g., the Sri Lanka Muslim Congress (SLMC) and the Ceylon Workers

Congress (CWC); Wickremesinghe was also expected to gain the endorsement of the Sri Lankan Tamils. Rajapaksa, on the other hand, built the largest possible coalition with more than twenty small parties and splinter groups. His alliance included two crucial partners: the JVP and the Jathika Hela Urumaya (JHU). Both parties have been built on incompatible political philosophies. The JVP was a Marxist socialist entity that tried capturing power by violence, first in the early 1970s and then in the late 1980s. Since both rebellions failed miserably, the group transformed itself into a political party albeit with its original socialist objectives and contested elections.2 The JHU was formed in 2004 by a group of politically motivated Buddhist monks with the aim of establishing a darmarajya (righteous state) in Sri Lanka. It is evident that, while the former is a socialist Marxist political entity, the latter is founded on religious philosophies. Despite their electoral rivalries and contest for the same block of votes, both parties share the conviction that what plagues Sri Lanka is terrorism rather than ethno-political conflict. Hence, both parties are apt to reject proposals to devolve powers seriously to the disputed regions, and prefer a military solution, if feasible. In order to gain the endorsement of these two Sinhala-Buddhist nationalist parties, Rajapaksa, as the SLFP's presidential candidate, had to accept many of the conditions they put forward. Characteristically, most of these conditions related to the ethnic question and to peace talks with the LTTE. Rajapaksa agreed, for instance, to preserve the unitary structure of the state when it was evident that devolving powers beyond the existing unitary constitution was essential to resolving the ethnic conflict peacefully. Inspired by the JVP and JHU, Rajapaksa, in his election manifesto Mahinda Chinthanaya (Mahinda Vision,) rejected some of the basic concepts of the Tamil struggle for self-determination in what they call their historical homeland. In his election manifesto, Rajapaksa declared that â&#x20AC;&#x153;my primary aim would be to arrive at a peaceful political settlement where the power of each and every citizen is strengthened to the maximum, without being trapped within concepts such as traditional homelands and right to self determination.â&#x20AC;?3 During his campaign, he and his followers reiterated their belief in a unitary structure for the state, projecting the impression that he would adopt a hard-line approach to resolving the ethnic conflict. Wickremesinghe contested the election on the slogan of federalism as an answer to the ethnic issue. This generated the impression that the Tamil minorities preferred Wickremesinghe over Rajapaksa's hard-line position. It is also imperative to note that presidential elections in Sri Lanka are generally won by candidates who manage to gain the confidence of minority ethnic communities. This reality enforced the belief that Wickremesinghe could easily overpower Rajapaksa since he had secured the formal endorsement of principal political parties representing the minorities. However, the LTTE had other plans. At the eleventh hour, it announced that the Tamil people would boycott the presidential election on the premise that it was an affair of the Sinhala nation and the Tamil nation had nothing to do with southern politics. It was suggested that the LTTE was disappointed by the UNP's general attitude towards the peace talks, where it failed to deliver on some of the major

demands of the LTTE, e.g., its demand for removal of the High Security Zones in the Jaffna peninsula, or the demand for an interim administration. Instead, the UNP focused on building what was termed an international safety net against the rebels. Regarding Wickremesinghe's approach, LTTE leader Pirabakaran had this to say in his Heroes Day speech in 2005: “It is suffice to say that Mr. Wickremesinghe's administration was unable to resolve even the basic existential hardships and urgent humanitarian needs of our people. Adopting delaying tactics, Ranil's governemnt was primarily focusing on setting up an international safety net aiming at decommissioning our weapons [sic].”4 The LTTE's decision to boycott the polls was a major setback for Wickremesinghe's campaign, and indeed played a major role in the electoral defeat of the UNP in November 2005. Rajapaksa won the election by a margin of about 200,000 votes. His hard-line slogans were popular within the Sinhala-majority areas and accepted by the majority of people. The vote for Rajapaksa reinforced the Sinhala conviction of and desire to preserve the unitary structure of the state. Hence, the likes of the JVP and JHU painted the outcome of the presidential election in 2005 as a mandate given to preserve the unitary state, which was also acknowledged by some independent observers. It was against this backdrop that Rajapaksa, as president of the country, had to deal with the peace process in general and the LTTE in particular. The LTTE's Reaction Within ten days of the election of the new president, LTTE leader Velupillai Pirabakaran delivered his annual speech commemorating the dead cadres. The speech attracted a great deal of domestic and international attention, as the LTTE leader was expected to spell out his assessment of the new president and prospects for future engagement. On 27 November 2005, Pirabakaran proclaimed that he had no faith in the peace process or the ability of the Sinhala leadership to offer a reasonable solution to the problems of the Tamil people. With regard to President Rajapaksa's stance on the ethnic question, Pirabakaran contended that “having carefully examined his (Rajapaksa's) policy statement in depth, we have come to a conclusion that President Rajapkse has not grasped the fundamentals, the basic concepts underlying the Tamil national question. In terms of policy, the distance between him and us is vast. However, President Rajapakse is considered a realist committed to pragmatic politics, we wish to find out, first of all, how he is going to handle the peace process and whether he will offer justice to our people. We have, therefore, decided to wait and observe, for sometime, his political maneuvers and actions.”5 What was evident from this statement was that, although the LTTE hierarchy was not optimistic about Rajapaksa, it wanted to give the new administration some space to prove its will and capacity to deliver. There were two major reasons for this seemingly flexible approach. First, despite the fact that President Rajapaksa was elected on the strength of a hard-line policy, he had reiterated his willingness to engage the LTTE in finding a peaceful solution to the conflict. Although some of his policy positions, such as transforming the bilateral mode of negotiation into a multi-party framework, had been detrimental to the peace process, he had constantly insisted on his desire to terminate the conflict by peaceful means.6 Second, the LTTE could not recommence

its violent struggle for self-determination without giving the new administration an opportunity because this would have ignited international backlash against the rebels. The LTTE leader maintained that the movement would intensify the struggle for selfdetermination, giving the Rajapaksa administration about a year to deliver.7 These statements of the two leaders opened up a window of opportunity to recommence the stalled peace talks. Nonetheless, international pressure on the LTTE and domestic economic compulsions on the government played a major role in pushing the parties to the negotiating table. The Geneva Talks Taking advantage of the changing domestic scenario, the third-party facilitator proposed holding talks in Geneva. This required both the government and LTTE to alter their positions, as they had originally wished to have the meeting in Oslo and at an Asian destination, respectively. Once they had agreed to meet in Geneva, the LTTE proposed discussing only the implementation of the CFA as a first step. Proper implementation of the CFA also assumed significance as the level of violence had reached a dangerous proportion, with killings taking place in the government as well as in LTTE-held territories. Discussing the CFA as a first step was considered fitting by many observes. However, the government was annoyed by the LTTE's attitude and its refusal to discuss other relevant issues. One of the reasons why the LTTE was adamant about discussing the proper implementation of the CFA was that it wanted to halt the activities of the Tamil paramilitary groups, which, in collusion with state-armed forces, continued to attack the LTTE interests. Article 1.8 of the CFA provided that “Tamil paramilitary groups shall be disarmed by the GOSL by D-day + 30 days at the latest. The GOSL shall offer to integrate individuals in these units under the command and disciplinary structure of the GOSL armed forces for service away from the Northern and Eastern Province.”8 Although, a number of Tamil paramilitary groups have been operating against the LTTE in the northern and eastern provinces, the LTTE was distressed most by the activities of what is popularly called the “Karuna group”, which was originally part of the LTTE but broke away along regional lines in early 2004. Group leader Muralitharan, also known as “Karuna”, was number two in the LTTE and had participated in the first phase of talks between the LTTE and UNP government. Following allegations of financial irregularities by the LTTE leadership, Karuna declared his intension to operate independently from the mainstream group; at the time of the split, he commanded about 5,000 cadres. The mainstream group staged a military assault on the Karuna cadres within a few months and overran its bases in the eastern province. Karuna disbanded his units and escaped to an undisclosed destination, presumably with the assistance of the Sri Lankan government. Since then, his followers had been collaborating with the Sri Lankan armed forces against the LTTE. Hence, the LTTE now wanted to persuade the Sri Lankan government to disarm all paramilitary groups according to the provisions of the CFA. In Geneva, the delegations of the government and LTTE engaged in a contest of accusations instead of meaningful dialogue because the Sri Lankan government in particular was playing to its hard-line constituency. The focus was more on projecting

an unbending image to domestic political partners. At one stage, the Geneva talks were on the verge of collapse, which would not have benefited the government since it was not prepared to wage war immediately. The parties renewed their commitment to the peace process. A press release issues by the Norwegian government at the end of the talks declared that “the GOSL (Government of Sri Lanka) and the LTTE are committed to respecting and upholding the Ceasefire Agreement, and reconfirmed their commitment to fully cooperate with and respect the rulings of the Sri Lanka Monitoring Mission (SLMM).”9 Moreover, the parties also agreed to meet again in Geneva in April 2006. The LTTE interpreted the agreement to uphold the CFA as an undertaking to disarm the Karuna group. The government delegation, however, came under severe criticism, especially from nationalistic elements in the south, for agreeing to the LTTE's demand. This forced the government to maintain in Colombo that it had not agreed to disarm the paramilitaries. The government held an ambiguous position with regard to the Karuna group and put forward different arguments to protect it. Initially, Rajapaksa's administration maintained that the armed forces had no links with the group. Rajapaksa himself claimed that “my government knows nothing about such paramilitaries or even Karuna.”10 The general secretary of the Sri Lanka Peace Secretariat on the other hand maintained that “there may be low level contacts with cadres of Karuna group. There has been a ceasefire and may be security personnel could have had personal contacts with other groups.”11 Some members of the government were of the opinion that the government was not obliged to disarm Karuna since it was not a paramilitary group but part of the LTTE when the CFA was signed. Disarming the group was not an easy issue to handle. First and foremost, Karuna could be of immense value in conditions of war. As a person who had been part of the LTTE leadership, Karuna might possess invaluable knowledge about the organization that would prove useful if and when war resumed. Hence, the government was not eager to renounce a military asset that easily. In addition, there was immense pressure on the Rajapaksa administration from coalition partners, namely the JVP and JHU, not to concede to the demands of the LTTE. These parties preferred a military solution to the ethnic conflict and expected a situation of war sooner rather than later. It was also possible that a segment of the armed forces might also resist such a move in view of the prevailing violent environment. Evidently, the government could not disarm the Karuna group as demanded by the LTTE. The rebels, on the other hand, refused to participate in the second round of talks that were to be held in Geneva on the premise that the government had not fulfilled its promises made in Geneva. Since, then the process that was initiated in Geneva remains deadlocked, contributing to insecurity and more violence. Immediate Issues The deadlock has been caused by many factors, but two major elements can be pointed out as immediate causes. First, the prevailing political realities in the south do not allow a flexible approach by the Rajapaksa administration. Its political alliance with the JVP and JHU hinders meaningful measures to promote conflict resolution.

The ruling UPFA commands 105 seats in a 225-seat legislature, including the members of the JVP. However, since 39 members of the JVP function as a separate entity in parliament, President Rajapaksa is left with only 66 seats of his own. This forces him to depend heavily on the JVP and JHU for the survival of his own administration. These parties have threatened to withdraw their support if Rajapaksa adopts a flexible approach vis-à-vis the LTTE. Second, the mistrust between the government and LTTE has remained extremely high since Rajapaksa assumed office. The LTTE does not believe that this administration will do justice to the problems of the Tamil people. This is why Pirabakaran pointed out that “Over the last three decades of our national liberation struggle we have observed ceasefires and participated in peace talks at different periods of time in different historical circumstances. We knew that our enemy was dishonest and devious. We knew that these peace talks would not produce any positive results.”12 The LTTE has turned increasingly to violent methods to achieve its political objectives despite the CFA. It is also evident from international sources that the LTTE has been preparing for a final war. The LTTE may very well resume its struggle for selfdetermination by the end of the year. Partly because of the assumption that the LTTE will opt for full-scale war and partly because of its own conviction that the rebels can be defeated by military means, the government is also preparing for another war. Initially, it had approached India for military assistance, but since India withdrew from Sri Lanka following a bitter war with the LTTE and on the Sri Lankan government's request to end its involvement, it is not eager to become directly involved in Sri Lanka's affairs. Now, the government has turned to China and Pakistan for weapons procurements, intensifying the scheme to increase its military preparedness. The government has been waging war more actively in the international arena. During the last four years, the state has spent little or no energy in rebuilding its machinery of war due to monetary constrains. The LTTE, however, was preparing for war while talking peace, because it never believed that the talks would lead to a permanent solution. Therefore, the government is not certain about taking on the LTTE immediately. Currently, it is buying time to strengthen the capacity of the armed forces, while waging active war internationally. The LTTE has been funded heavily by the Tamil diaspora scattered in various Western countries. The government is convinced that it is this financial support that makes it difficult to beat the LTTE. By exhausting its source of funding, some policymakers believe that the LTTE could be forced to compromise or even be defeated if and when war resumes. The government is therefore engaged in an active campaign to have the LTTE banned in the West. This process was initiated by former foreign minister Lakshman Kadirgamar and pursued vigorously by the Rajapaksa administration. Consequently, the LTTE was proscribed as a terrorist organization by the US, UK, and India. Finally, in mid-2006, the European Union (EU) also banned the LTTE. The EU ban was a major setback for the rebels internationally and could affect the organisation in terms of financial resources in the long run. However, it is extremely unlikely that the organisation will be affected by the ban in the short term.

What is however imperative is the impact of the ban on the peace process. Although international opinion does not determine the decisions of the LTTE, it obviously has some influence. Many LTTE projects may have been suppressed due to fear of international backlash. This is truer in a post-9/11 world. Despite serious violations of the CFA, the factor that has sustained the peace process so far has been the involvement of the international community. Against this backdrop, the EU ban could be a setback in view of the peace process, as the LTTE has no need to worry about international opinion any longer. If the LTTE is warming up for another war, the decision will not be too difficult to make since the international community has now lost its influence over the LTTE. Conclusion When Rajapaksa assumed office as the fifth executive president of Sri Lanka in November 2005, the peace process was deadlocked. Although Rajapaksa advocated a hard-line approach towards the peace process, he expressed his desire to talk to the LTTE, leading to Geneva talks in February 2006. Although both parties agreed to uphold the CFA, violations continued on both sides. The government could not or did not want to disarm the Tamil paramilitary groups working with state-armed forces. The LTTE refused to participate in any further negotiations with the government until and unless the paramilitary groups were disarmed, contributing to another deadlock. Currently, the parties are unable to introduce meaningful measures to break the deadlock due to the political realities prevailing in the south and the high level of mistrust. The situation is deteriorating rapidly, intensifying the fear that another round of war may start sooner rather than later.

End Notes 1. For a detailed analysis of the peace process between 2002 and 2004 see, S.I.Keethaponcalan, “Sri Lanka Peace Process, 2002-2004: Another Opportunity Lost,” in Regional Studies, 2006, Vol-XXIV, No-2, pp. 81 104. 2. Jayadeva Uyangoda (2003) “Social Conflict, Radical Resistance and Projects of State Power in Southern Sri Lanka: The case of JVP,” in Markus Mayer, Darini Rajasingham Senanayake, & Yuvi Thangarajah (eds) Building Local Capacities for Peace, Rethinking Conflict and Development in Sri Lanka (New Delhi: MacMillan). 3. For the election manifesto see Mahinda Chinthana 2005, p.32. Available http://www.mahindarajapaksa.com/PENews/oct1805_01.php 4. “LTTE to Intensify Struggle for Self Determination if Reasonable Political Solution is not offered Soon,” Tamilnet.com, November 27, 2005. 5. Ibid. 6. V.S.Sambandan, “ A Narrow Victory,” Frontline, Vol-22, Issue-25. 7. “LTTE to Intensify Struggle for Self Determination if Reasonable Political Solution is not offered Soon,” Tamilnet.com, November 27, 2005. 8. See the cease-fire agreement. Available Http://www.peaceinsrilanka.com/peace2005/Insidepage/Agreements/agceasefire.asp 9. To see the press release, check “Statement Sri Lanka Talks,” available http://odin.dep.no/ud/english/news/news/032171-990305/dok-bn.html 10. For an interview with the Sri Lankan President see, “I Want Lasting Peace,” <http:service.spiegel.de/cache/international/0,1518,402078,00.html> 11. “President Faces Crisis of Credibility,” The Sunday Times (Sri Lanka), May 28, 2006, p.10. 12. Heroes day speech, 2005. See “LTTE to Intensify Struggle for Self Determination if Reasonable Political Solution is not offered Soon,” Tamilnet.com, November 27, 2005.

OBC Reservation and Tamil Nadu1 P Radhakrishnan The six separate judgments delivered by the nine-judge Bench of the Supreme Court on November 16, 1992 in Indra Sawhney and Others vs. Union of India are an erudite exposition of, to borrow a phrase from one of these judgments, judicial creativity in tune with Constitutional objectivity, on who should be treated as belonging to the backward classes for job reservation, how, and what should be the scope of job reservation for them. The judiciary may show similar creativity in concluding the cases before it on educational reservation for Other Backward Classes (OBCs). But, there is a world of difference between judicial pragmatism and political opportunism, and politicians as a class are concerned more with power and pelf than with the advancement of the socially deprived. So, whether the judiciary can finally and authoritatively settle the issue of educational reservation will depend upon which triumphs over which. And, so long as judicial pronouncements are not honoured and effectively translated into reality, the deliverance of the victims of entrenched social backwardness from rhetoric to reality will continue to remain a much-hackneyed political issue for electoral gains of the politicians. All the same, there is reason for hope that the Supreme Court's notice to the Central Government on May 29, to explain the basis on which it had fixed the norms for determining who belonged to the OBCs, the modalities it is going to adopt if it is going to implement reservation for the OBCs and the rationale for the same; the court's related observation that it will consider the contention that the adoption of this policy will divide the country on caste basis which will have ramifications for the social and political fabric of the country; and the withdrawal of the prolonged strike by the students at the court's instance, all may contribute to the well-being of the student community, the nation, and India's long ailing education system. The 93rd Amendment and After The court's notice was in response to writ petitions by educator and business consultant Shiv Khera and Supreme Court senior counsel Ashoka Kumar Thakur, challenging the constitutionality of the 93rd amendment Act - the basis of the Centre's plans to extend 27 percent reservation for OBCs in institutions of higher learning - saying it was discriminatory and violated the fundamental right to equality, and seeking the Court's intervention to ensure that the Centre submitted all relevant reports and data on which it had based its decision. The 93rd amendment Act, which came into force in January 2006, was passed by Parliament in December 2005 to overcome the Supreme Court judgment of August

12, 2005 in the Inamdar case. In that judgment the Court struck down the existing reservation by state governments in private unaided medical and engineering institutions, on ground that such institutions have a fundamental right to occupation guaranteed by Article 19(1) (g) of the Constitution and the State did not have the power to impose such reservations on them.

of Article 15(4) has been interpreted as educational reservation for the SCs, STs, and the OBCs; so much so, and when this Article has not at all been implemented by the Central Government in the context of the OBCs, announcement to implement it through a new Act is nothing short of indulging in prevarication an institution, which Arjun Singh would have others believe “supreme”.

The Inamdar Judgment The judgment in the PA Inamdar and Others vs. State of Maharashtra and Others was by a seven-judge Bench, headed by Chief Justice Lahoti. The Bench was dealing with over 100 petitions filed by the All-India Medical and Engineering Colleges Association, individual colleges, the Government of India, and the Governments of Andhra Pradesh, Karnataka, Kerala, Madhya Pradesh, Maharashtra and Tamil Nadu. The unanimous judgment delivered by the Chief Justice ruled that imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. At the same time the judiciary subjected such institutions to reasonable state control to check capitation fee and profiteering, to regulate method of admission and academic standards, to insist on the adoption of 'a rational fee structure' and so on.

Having said this, with the media blitzkrieg on the reservation controversy confounding the confusion of many, in particular the students; with politicians indulging in their usual vote-bank chicanery, projecting Tamil Nadu as a model; and with the continuing sharp and highly explosive division of opinion in society for and against reservation, all of which have left hardly any scope for the return of reason and fairness in the public realm, placing at least the following ten issues constitutional, social, political, administrative - in perspective is very important .

State Failure Though the judiciary thus helped encourage private initiative in a vital social sector in which the State's track record has been dismal, the political class saw the intervention as inimical to its interests. The resultant uproar against the judgment in Parliament and outside, adding grist to the much-hackneyed reservation mill, the assurance by Human Resource Development Minister, Arjun Singh to get around the court order, as demanded by various political parties, the Bill passed by Parliament on December 22, 2005 culminating in Article 15(5) on January 20, 2006, are all now part of India's sordid parliamentary practices. Article 15(5) Article 15(5) incorporated by the 93rd amendment Act is to enable the state to make any special provision by law for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Article 30(1). Seen against this, Arjun Singh's announcement on April 5, 2006 providing 27 percent quota for the OBCs in Central Government funded educational institutions like IIMs, IITs and Central Universities, is disingenuous. For, the announcement does not directly address the issue of reservation in private educational institutions as explicitly conveyed by Article 15(5), the constitutional validity of which is now before the Supreme Court. The announcement is also disingenuous in the context of the OBC quotas in Central Government funded educational institutions for the obvious reason that right from the time of the first amendment of the Constitution in 1951 the scope

Article 16(4) vs. Article 15(4) One, the Centre's decision on reservation is in the context of Central Government funded institutions. But, as of now there is no Central list of OBCs for educational reservation. The list prepared following the Supreme Court ruling of November 16, 1992 was in the context of job reservation under Article 16(4). Departing from the earlier rulings that the expression “backward classes” in Article 16(4) is the same as the expression “socially and educationally backward classes” in Article 15(4), with the exception of Justice Thommen , all the judges in the Indra Sawhney case held the former expression as wider than the latter. Their reasoning was Article 16(4) speaks only of “any backward class of citizens” and does not contain the qualifying phrase “socially and educationally”. As the accent of Article 16(4) is on social backwardness, whereas that of Article 15(4) is on social and educational backwardness, the list of socially backward classes prepared for job reservation may need drastic changes for ensuring that only those socially backward classes which are also educationally backward are retained as OBCs for educational reservation. This may entail constitution of a new backward classes' commission. Two, job reservation was directly incorporated into the Constitution for enabling certain communities (backward classes), as Dr. B. R. Ambedkar said in the Constituent Assembly on November 30, 1948, to have a “proper look-in” into the administration, which they did not have till then. There was, therefore, no ambiguity about the scope of Article 16(4), though it was intended for only ten years.2 In contrast to this, educational reservation was not directly incorporated into the Constitution, but has only been interpreted so, ever since the first amendment as part of which Article 15(4) was added to the Constitution. As the mandate of Article 15(4) is to make “any special provision for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes”, the judiciary may as well re-examine the scope of this Article. The following issues have direct bearing on such an exercise. (i) Assuming that reference to special provisions in Article 15(4) is to different

instruments of affirmative action by the state, what has been the nature and impact of the use of these instruments for the past 55 years, and what is the justification for the abrupt and arbitrary introduction of reservation now. (ii) Though right from the time of its enforcement in 1950 the Constitution has provided for free compulsory education of all children up to the age of 14 within a period of ten years a sine qua non for further education including and especially higher education , why the state did not implement this provision for the past 55 years. (iii) As education is a sine qua non for individual and social development, ensuring education for all is one of the most important tasks of any humane society. Therefore, job reservation which has only limited objective, any Constitutional provision for educational reservation would have militated against this broad objective of universal access. That probably explains the absence of educational reservation in the Constitution. (iv) Though a desideratum, ensuring universal education has assumed great significance in recent years. Two quotes should drive this home. (v) The world we leave to our children depends in large measure on the children we leave to our world. The world's hopes for the future rest with today's young people and their readiness to take up the challenges of the coming century. On the threshold of the twenty-first century, the education of the young has never been more in need of our commitment and resources.3 (vi) Because good quality education promises an escape from poverty, powerlessness, and despair, creating aspirations, opportunities, and choices otherwise unimaginable, it has emerged more clearly than ever as the last best, yet often seemingly forlorn hope that humankind may use its Promethean resources to build a safe, peaceful, prosperous world. As H.G. Wells put it in a famous aphorism exactly 100 years ago, 'Human history becomes more and more a race between education and catastrophe.4 Ensuring universal access to education is all the more important now in the context of the fast unfolding globalisation and the related knowledge-based society. It is important to note in this connection that without more and better higher education, developing countries home to over 80 percent of the world's population - will find it increasingly difficult to benefit from the global knowledge-based economy.5 Impact of the Rulings in Indra Sawhney on Article 15(4) When quizzed by Karan Thapar in “Devil's Advocate” on May 21, 2006 on the CNNIBN TV Channel, that “The CPM says that if the reservations for the OBCs are to happen, then what is called the 'creamy layer' should be excluded; how do you react to that?” Arjun Singh's reaction was the 'creamy layer' issue has already been taken care of by the Supreme Court. Singh's reference was to the ruling of November 16, 1992 that the 27 percent reservation in the Central services and public sector undertakings for the OBCs is enforceable subject to the exclusion of the “creamy layer” from the notified OBCs. Assuming that the judiciary continues to uphold the interpretation of Article 15(4) as educational reservation, exclusion of the creamy layer from educational reservation is bound to be an important, albeit vexatious issue, for consideration and action.

Four, while observing that the rule of reservation cannot be called anti-meritarian, in the Indra Sawnhey rulings Chief Justice Kania, and Justices Venkatachaliah, Ahmadi, Jeevan Reddy and Pandian preferred, for various reasons, the exclusion of certain services and posts from the rule of reservation. Examples cited were defence services including all technical posts but excluding civil posts, all technical posts in research and development establishments, teaching posts of professors and above, medicine, engineering and other scientific and technical super-specialties, posts of pilots and copilots in Indian Airlines and Air India, and so on.6 As these services are directly linked to educational specialities whether educational reservation should have similar exclusion is another important issue for debate. Five, though the Central Government has not implemented educational reservation for the OBCs till now, since the 1950s it has been implementing such reservation for the SCs and STs, and the state governments have been implementing it for the SCs, STs, and the OBCs. As the constitutional provision has thus been under implementation in one form or another for more than half a century, Justice Thommen's observation in the Indra Sawhney rulings that reservation must necessarily be limited in direction and contain within itself the seeds of its termination assumes significance. The Tamil Nadu Experience Six, the Tamil Nadu experience, touted as a model during the recent reservation controversy, has been in the context of a single state, mainly through common entrance tests for professional courses with separate cut-off marks for SCs, STs, MBCs, OBCs, and Open Category, conducted by one university. Since Central institutions of higher learning are of different types - universities, AIIMS, IITs, IIMs, and so on - which have to address the educational needs of students of different streams from different parts of the country, whether the Tamil Nadu experience can be replicated in Central institutions is a moot issue. No doubt, in the reservation politics of the country Tamil Nadu's role has been unique. It was the non-Brahmin movement in Madras Presidency during the 1910s and 1920s, and the movement launched by the backward classes from the 1930s to the 1950s, which introduced a distinctive caste/communal idiom into south Indian politics and the policies on the backward classes. It was mainly against the background and knowledge of these movements, and pressures for reservation for the backward classes by members closely associated or familiar with them that the Constituent Assembly adopted Article 10(3) (now 16(4)) providing for job reservation. It was under political pressures from the Madras government when its Communal Quotas of 1927 were quashed by the Madras High Court and the Supreme Court that the Centre added Article 15(4). However, the implementation of educational (and employment) reservation in Tamil Nadu from 1951 (from 1927 to 1950 through the Communal GO) has not made the state a land of milk and honey as made out by politicians. If anything, other states, and the Centre have a lot to learn from its quota conundrum.

The 1970 report of the Tamil Nadu First Backward Classes (Sattanathan) Commission made several critical observations on the state of reservation in Tamil Nadu. The following are particularly relevant to the present write-up: (i) There is a progressive section among the BCs in very many castes; in some castes it is so substantial by all yardsticks that it may as well be regarded as having crossed the borderline. (ii) Some castes have taken full advantage of the state's protective measures and made rapid strides, while many others continue to trail behind and are still in the lower stages of stagnancy. (iii) A group of nine castes,7 accounting for about 11 percent of the BCs' population in the state, have cornered much of the benefits available to the entire BCs population, namely, 37 percent of the non-gazetted and 48 percent of the gazetted posts, 44 percent of the engineering and 47 percent of the medical college seats. (iv) Such layers of developed segments can very well merge with the advanced sections of society, the so-called Forward Classes, and compete openly for careers and opportunities without taking cover under reservations. (v) If the upper crust in each caste is not removed from competing with the less privileged the object of social justice, especially distributive justice, will not be achieved. (vi) As a result of the clubbing together of comparatively progressive castes with the most backward classes (MBCs) under one general category, representation of the latter as a group in government services and professional colleges is disproportionately low; without treating them as a separate entity for purposes of reservation there can be no chance of their reaching adequate representation in the foreseeable future, and they will continue to remain depressed. In keeping with these observations the Commission recommended 16 percent separate reservation for the MBCs and 17 percent reservation for the BCs, taking into consideration its estimate of these categories in the state population as 22 percent and 29 percent respectively; and exclusion from reservation benefits families of salaried persons whose annual income exceeded Rs. 9,000, land owners owning more than ten standard acres, and business people with taxable income exceeding Rs. 9,000.8 The DMK ministry which appointed the Commission in 1969, enhanced in 1971 reservation for the BCs from 25 percent to 31 percent, and for the SCs and STs from 16 percent to 18 percent. However, it did not offer separate reservation for the MBCs; nor did it attempt to eliminate the creamy layer. It was ostensibly as a belated attempt to eliminate this layer that the M.G. Ramachandran-led AIADMK ministry issued a G.O. in July 1979 prescribing an annual income limit of Rs. 9,000 on OBC families for eligibility to the reservation benefits. Shortly after the announcement of the income criterion, both MGR and his education minister, C. Aranganayagam, defended it publicly: Social justice and fairness demand it, asserted MGR. His argument was that even among the BCs there are affluent people who could afford spending on their children's education, whereas it is those with very meagre income, say, the rickshaw pullers, who ought to be given support

and encouragement. The purpose of the income limit is render justice to a larger number of the economically backward, and to cut the vicious circle of the growth of â&#x20AC;&#x153;neoBrahminical cultâ&#x20AC;? among the affluent BCs, argued Aranganayagam. His reasoning was that although the state has reserved 31 percent of seats in engineering and medical colleges, only about 25 percent of the beneficiaries belonged to the really backward, whereas the rest were from the affluent sections of the BCs, children of income tax assessees, and so on, who took advantage of the reservation policy, merely because they belonged to the groups listed as the BCs. When the G.O. was issued there were protests against its enforcement, and agitations demanding its immediate withdrawal. In the wake of these, and his party's defeat in the January 1980 Lok Sabha elections; MGR announced, on the eve of the dismissal of his ministry, the withdrawal of the G.O., and outwitting his adversaries, also an increase in the reservation for the BCs from 31 percent to 50 percent. These measures amply rewarded the AIADMK in terms of its return to power. They also brought cheer to the vested interests among the BCs and the political parties representing them. Among others, Karunanidhi hailed the announcement as a great success of the agitations launched by his party and the Dravida Kazhagam. While disposing of a batch of writ petitions challenging the Constitutional validity of the two GOs of February 1, 1980 giving effect to the two MGR announcements of January 24, 1980, the Supreme Court on October 15, 1982 directed the state to appoint a Commission within two months, for reviewing the existing list of BCs after enumeration and a factual and scientific investigation of their conditions. In pursuance of this directive M.G. Ramachandran constituted, on December 13, 1982, the Tamil Nadu Second Backward Classes Commission, with J.A. Ambasankar as Chairman, associating with it as many shades of politicians as he could find within the state through 13 members at the time of its constitution and 21 members a little later. The data collected by the Commission revealed the following: Of the total BC students admitted to professional courses, more than three-fourths were from a small number of the BCs (34 out of 222) accounting for only about two-fifths of the BC population in the state; of the total number of BC scholarships, the total amount of these scholarships, and candidates of all grades selected by the Public Service Commission (PSC), about two-thirds again went to this relatively small number of BCs; even within this small number, just about one-third, accounting for about one-third of the total BC population, had cornered as much as two-thirds of the BC admissions to the professional courses and more than half of the scholarships, scholarship amounts, and BC candidates selected by the Public Service Commission.9 (Table 1) The Ambasankar Commission recommended compartmental reservation by grouping the BCs according to the degree of their backwardness, but did not make any suggestion for preventing the "creaming effect" of reservation by income limit or any other measure.

from the existing BCs' list. Their demands were, therefore, for retaining the existing list of BCs, with 67 percent reservation, against the much-reduced 32 percent recommended by the Chairman.10 In the heat of the controversy, the MGR ministry did not make the report public, and despite repeated requests, did not table it in the Assembly. However, through a series of GOs issued on July 30, 1985, it made selective use of the report. These GOs contain the ministry's orders to continue the existing 50 percent reservation for the BCs (besides 18 percent for the SCs and Sts) in both educational institutions and public services, considering the Commission's estimate of the BCs population at 67 percent and the "majority members' recommendations" for 67 percent reservation; to add 29 communities to the BCs list, without deleting any recommended for deletion; and the continuation of the existing list of MBCs within the BCs' list. Such increasing politicisation of reservation and the related politics of accommodation resulted in the exacerbation of the condition of the very backward castes because of the concentration of the reservation benefits in certain advanced castes. This was clearly brought out by the violent agitations of the Vanniyars during 1986-88 as outbursts of their deep-rooted frustration and bitterness over the way successive governments cheated them and included in the BCs many undeserving communities, allowing them to grab all the benefits, leaving practically nothing to the really backward. As a result of these agitations, the DMK, which assumed office after the January 1989 elections, ordered compartmental reservation in March 1989. Out of 50 percent reservation for 201 communities, it set apart 20 percent for 39 MBCs and 68 Denotified Tribes, together accounting for about 31.14 percent of the BCs, and 30 percent for rest of the BCs accounting for about 68.86 percent of the total BC population in the state.11

The dissenting views of 14 of the 21 members of the Commission made its report controversial right from the time of its submission in February 1985. Among other things, the dissenters questioned the rationale for inclusion in the Chairman's recommendations of 17 forward communities as BCs and deletion of 34 communities

A couple of years after this new arrangement came the Supreme Court ruling in Indra Sawhney case, restricting overall reservation (SCs, STs, and OBCs combined) to 50 percent and eliminating the creamy layer from the notified OBCs. The vociferous campaign that followed the ruling by Chief Minister, J. Jayalalitha to protect the state's 69 percent quota (including retention of creamy layer) was crass opportunism when seen against her earlier social justice pedantry and the related political postures. Thus, stating that the major reason for the violent antagonism to reservation in the north is that it has not been made clear that it is the really poor who will benefit, in an interview published in Indian Express on October 5, 1990, she asserted: Even among the so-called backward castes, there are many people who are well off, well placed in life, society. It makes a mockery of reservation if they are going to be cornering the benefits. So, it should be made clear that it is the economically weaker sections in the backward castes that will be given these concessions. Only then can one call it social justice. Defending the introduction of the income ceiling by her mentor, she added: "What MGR actually meant was the benefit of reservation should be availed of by economically weaker sections among the BCs. We stand by thatâ&#x20AC;?. Jayalalitha's relentless campaign since the Supreme Court verdict of November 16,

1992 proclaimed that courts should not hamstrung states in their efforts to render social justice, and in the process portrayed the judiciary as an interloper. In keeping with the views of the AIADMK cabinet, in April 1993 the state filed a petition in the Supreme Court, seeking a review of its verdict in the Mandal case. The cabinet views were the state's reservation scheme took into account the real backwardness among various castes and communities; its reservation scheme followed for a long time could not be disturbed without affecting the social fabric, particularly the rights and interests of the BCs; implementation of the Supreme Court's directive that reservation shall not exceed 50 percent would lead to social tension and agitations; and exclusion of the creamy layer would not be judicious as the adoption of any criteria would itself lead to unequal treatment. Meanwhile, in response to a batch of writ petitions against the procedures followed in admissions to professional colleges, while upholding the reservation of 69 percent for 1993-94, the Madras High Court on July 27, 1993 ruled that the state had to take steps to implement the Supreme Court's orders in the right perspective and see that reservation was brought down to 50 percent at least before the next academic year. However, in response to a writ petition from the Voice (Consumer Care) Council, the Supreme Court on August 24, 1993 restrained the state from exceeding 50 percent even for 1993-94. Reacting to the Court order Jayalalitha iterated her government's resolve to continue the existing level of reservation to endure the social progress of the BCs. When the state made 69 percent reservation based on the High Court order, following a contempt petition from the Voice (Consumer Care) Council, the Supreme Court extracted on November 11, 1993 an unconditional apology from it for violating the Court order, and on November 22 an affidavit of compliance. This compliance forced the state to reduce the reservation in admissions from 50 percent to 31 percent (30 percent to 18.6 percent for the BCs, and 20 percent to 12.4 percent for the MBCs). The Court also directed the state on December 14 to admit forthwith to the MBBS course the 11 remaining candidates in the open merit list who were unlawfully deprived of admission by its failure to follow the 50 percent rule despite the Court order of August Offsetting this setback were, however, the efforts stepped up by Jayalalitha to circumvent the judiciary politically. An official resolution unanimously adopted by the Assembly at a special session convened on November 9, 1993, urged the Centre to amend the Constitution to protect the Tamil Nadu reservation policy. Moving the resolution Jayalalitha called for a state-wide bandh on November 16, "to voice the concern of the people over the threat to the existing 69 percent reservation being followed in the state". Following an all-party meeting on November 26, Jayalalitha introduced in the Assembly on December 30 a Bill under Article 31(c) keyed to Articles 39(b) and (c) of the Constitution "to give effect to the aspirations of the vast majority of the people of Tamil Nadu so as to achieve the goal of social justice". The Bill with retrospective effect from November 16, 1992, reiterating the continuance of the existing 69 percent reservation, was unanimously passed on December 31, and despatched to the Centre

on January 19, 1994. Meanwhile, at a conference in Delhi on December 4, 1993, with characteristic candour Jayalalitha gave a new twist to the Supreme Court rulings, and a new interpretation to the role of judiciary and to the rule of law: The Supreme Court verdict in the Mandal case has overruled the settled position and created uncertainty in the law, and a situation had been reached where the benefits given by a state government to the weaker sections under Article 46 had to be taken away to their detriment; the courts can only declare the laws and not assume the power of the legislatures which is purely in the domain of the legislatures or Parliament; to maintain the credibility of judicial forums and to create absolute confidence in the minds of the general public, justice acceptable to the majority of the public should be rendered by courts; and between the court's verdict and verdict of the people only the latter would have to prevail because that is final in a democracy, she asserted. Thwarting the DMK's call for picketing government offices on June 17, 1994 protesting against Jayalalitha's failure to secure President's assent to the Tamil Nadu Reservation Bill, at the eleventh hour Jayalalitha abruptly called for a state-wide state-sponsored bandh on the same day, demanding President's assent to the Bill. When the Bill did not get the assent for nearly six months despite reminders to the Centre including Jayalalitha's letter to the Prime Minister on June 3, reiterating that the state's reservation percentage cannot be anything less than the existing, Jayalalitha sent letters to leaders of various political parties, led a 28 member multiparty delegation to Delhi and presented a memorandum to the Prime Minister on June 25. The memorandum pressed for President's assent to the Bill, inclusion of the Act in the Ninth Schedule, powers to the states to vary the reservation percentage with regard to population and other related factors; and reiterated the state's opposition to the elimination of the creamy layer. Though the AIADMK was in the vanguard of the political campaign for protecting the state's 69 percent reservation, it was not alone. Political parties of all shades, besides extending support to the AIADMK within the Assembly, vied with one another in supporting the status quo, thus showing a certain unity of purpose though not of ideas and action. Each party had its own political compulsion to vocally support the existing 69 percent reservation. But as a net result of all these efforts the Tamil Nadu Reservation Bill obtained President's assent on July 19, and under further pressures, by the Constitution (85th) Amendment Bill passed unanimously by the Rajya Sabha on August 24 and Lok Sabha the next day, was included in the Ninth Schedule under Article 31B. Though the constitutional validity of this inclusion, challenged before the Supreme Court, has been before it for more than a decade, the judicial delay in settling the matter has helped the state persist with its 69 percent reservation. Seven, as the Tamil Nadu experience has been one of arbitrary increase of quotas,

arbitrary inclusion of communities, and affirmative action through usurpation with about 87 percent of the total population covered by the quotas, it cannot be a model to the rest of the country. Eight, though data after 1981-82 on caste-wise access to the state's resources are not available, from the persistence of the earlier castes in the OBCs list and the state's refusal to eliminate the creamy layer, it is only to be expected that the groups which cornered the reservation benefits in the 1970s and 1980s continue to do so even now. This raises two issues: (i) If the argument is that reservation is to bring about equality at group level, for at least the last three decades Tamil Nadu has been having a strong case for excluding a number of groups from the OBCs list whose benefit from the state's resources has been disproportionately high. But the state has not done this. (ii) If the argument is that excluding the groups as a whole may be unfair to the really backward within each group, the state should have introduced creamy layer elimination mechanisms as recommended by the judiciary. It has not done this either. Nine, if the litmus test of the success of the reservation policy is really tangible advancement of the most backward - the SCs, STs and MBCs -, Tamil Nadu does not pass it. Data on state government employees for 1999 reveal that representation of the SCs (eligible for 18 percent reservation), was only 13 percent and 18 percent in groups A+B and C+D respectively; of the STs (eligible for 1 percent reservation) was only 0.4 percent and 1 percent; and of the MBCs and Denotified Tribes (eligible for 20 percent reservation) was only 16 percent and 15 percent. The only redeeming feature is that the representation of these categories in C+D groups combined was close to the quota fixed for them. The corresponding figures for the BCs (upper layer of the OBCs) were 55 percent and 46 percent in groups A+B and C+D respectively well above the 30 percent reservation fixed for them. Ten, if the over-representation of the BCs indicates, in an overall sense, that they as a category have already crossed the Rubicon, especially when seen in the light of the fact that of late they have been neck and neck with the forward communities (Others, or Open Category) in the marks obtained for admission to professional courses, the state is confronted with two choices: (i) Peg the reservation for the OBCs at a reasonable and realistic level, say, 20 percent, so as to provide more scope for open competition, especially in the context of globalization. (ii) Exclude the creamy layer even from this reduced quota, so that only the really needy and really backward will depend on the state. Though educational status is the most crucial factor for social advancement, in the 7+ population of Tamil Nadu 37 percent of the SCs and 59 percent of the STs are still illiterate, whereas the figure is only 24 percent for the rest of the population; and only 2.2 percent of the SCs and 1 percent of the STs in the 15+ population are Graduates,

whereas the percentage is 5.4 for the rest of the population. If the SCs and STs are so backward in education and employment, whatever has happened to the implementation of the constitutional provisions for their social and educational advancement during the past 55 years, and in what sense Tamil Nadu is a model to the rest of the country? Answer to this could be found in the state's education system and the SC-ST welfare schemes in disarray, the overall neglect of education from the primary to the tertiary level, and the lack of support systems necessary to ensure delivery of quality education at all levels. Conclusion With as many as 265 universities, 13,150 colleges, 8.821 million students, and 0.427 million teachers during 2001-02 as against 32 universities, 695 colleges, and 0.174 million students during 1950-51, India has developed one of the largest higher education systems in the world. Despite this, going by the UGC and the UNESCO data, India has only about 9 percent to 11 percent of its relevant age group enrolled for higher education, as against 50-85 percent in developed countries. If the dropout and survival rates and the literacy and illiteracy rates of the broad social categories are any indication, India has not done much for democratisation of access even at the primary level. Going by the Census 2001, India's illiterates in different age groups are about 41 million in 7-13, 16 million in 14-17, and 33 million in 18-24. The illiterates account for about 27 percent, 25 percent, and 35 percent respectively of the total population of the relevant age groups. Of those enrolled at the primary level, about 40 percent drop out by the time they reach the fourth year of schooling. In each age cohort the illiteracy rate is much higher among the SCs, STs, and Muslims (accounting for about 47 percent of India's population), and among women in each social group. Thus, if India has a long way to go to achieve basic education for all, its distance to achieve universal higher education may be infinity. India's gross expenditure on education now, by the state and central governments combined, is nearly Rupees one lakh crore or 3.52 percent of the GDP. The Government of India's spending on education is expected to double by next year and go up to three times by 2009-10, from the current level to Rupees 1.82 lakh crore first and Rupees 238,835 crore subsequently. Though the increase in spending will fulfil the promise of the Congress-led United Progressive Alliance ruling at the Centre to allocate six percent of the GDP to education, it will still be a case of the little done and the vast undone [not done]. The spending on education by developed countries is much higher than both these figures (3.52 percent and 6 percent). The problems of Indian education center round financing, equity and excellence in access and outturn. As these problems have been confounded by the rapid speed of globalization under which society needs only educated manpower, the deprived in India are now victims of double whammy. Their traditional deprivation keeps them away from education; and the demands of a knowledge-driven society under globalization leave them out of the mainstream as social misfits as the disposable

people of society - because of their lack of education. Instead of seeing the problems in perspective, governance in India seems to be choosing cheap populist options. Though satisfying to the politicians, these options can do no good, and in the long run can do a lot of harm to the rising generation, in particular, the historically deprived social groups, which are still victims of entrenched backwardness. The provision of reservation cannot benefit students from the deprived groups in a big way, though it may help vote-banks and cause a lot of bad blood. If reservation for more than fifty years in State-run institutions has not benefited the students much, it is naïve to expect that the State's mandate for reservation in private and central institutions will benefit them. One indication of the inadequacy of reservation to meet the educational needs of the deprived sections is the share of degree holders from them. Going by the Census 2001, the overall share of Graduates in the 20-24 age-group population is about 8 percent. Of the six categories into which the Census 2001 has classified the population, the degree holders in the 20-24 age group account for only 2.3 percent of the total population in this age group among the STs, 3.6 percent among the SCs, 4 percent among the Muslims, 7.4 percent among the Buddhists, 7.6 percent among the Sikhs, 9.8 percent among the caste-Hindus (including the OBCs but excluding the SCs and STs), and 11 percent among the Christians. Given this dismal scenario, it is only too obvious that the State has so far failed to grapple with the reality of the enormous task of educating India's rising generation in socially equitable and globally competitive ways, and failed to grapple with the problem that many parents are too poor that they would like their children to be wage-earners, and even if they try to seek admission for their children the prohibitive cost of education and failure of their children to get admission discourage them from doing so. To place higher education on a fast track, the most important need is to foster existing institutions by ensuring equity and fairness in intake, by expanding and strengthening education at all levels, from primary to tertiary, strengthening basic and infrastructure facilities including, and especially of qualified teachers, and grounding institutions in disciplinary diversity and excellence in quality. While on this it is also important to note that much of the debate about merit on the basis of marks, which has of late been turned into a bogey, is misplaced. What should concern students, teachers, and educationists alike is quality education. In ensuring this students provide only part of the inputs. The other inputs are quality of the teachers, quality of infrastructure, social ambience of class rooms and institutions, and the ability of the institutions to address the special needs of the backward students (not backward classes) irrespective of their social background. If Prime Minister, Dr. Manmohan Singh has to honour his assurance to the students of a fair, just, and inclusive education system he has to address the different needs of

the heterogeneous ensemble that make up the student community in the melting-pot of the education system from the primary to the tertiary levels, which will be a lot more rewarding and a real investment on the youth than the sops of quotas to a few. For doing this, a comprehensive White Paper on India's higher education policy for a pragmatic programmatic for at least the next 20 years is urgently needed. Such a Paper should take stock of the present and required availability of access taking into consideration the size of the age-cohort population in the relevant age-groups, and cover all issues relating to higher education such as ensuring social justice through education for all, relevance of public-private partnership, admission policy, quotas, fee-structure, quality-control and other matters. Without this, higher education in India will continue to be in a mess with the state and the judiciary tossing issues around without moving towards a resolution on genuine concerns, and politicians and the fast emerging education industry continuing to fish in troubled waters.

End Notes 1. Part of the material used in this write-up is drawn from my earlier publications: Radhakrishnan P. 1989. “Ambasankar Commission and Backward Classes” (Report). Economic and Political Weekly. XXIV (23). June 10. Radhakrishnan P. 1993. “Judicial Pragmatism, Political Opportunism” (On the Supreme Court Judgments on the notifications relating to the Mandal Commission recommendations). The Hindu (Sunday Magazine). March 14. Radhakrishnan P. 1995. “The Quota Conundrum” (On the reservation politics in Tamil Nadu). The Hindu (Sunday Magazine). February 19. Radhakrishnan P. 1996. “Backward Class Movements in Tamil Nadu”. In M.N. Srinivas (Ed.) Caste, Its Twentieth Century Avatar. Penguin India. Radhakrishnan P. 1998. “Caste, Politics, and the Reservation Issue”. In B. Harriss-White (Ed.) Illfare in India. Sage Publications. Radhakrishnan P. 2000. “White or Grey?” (On Tamil Nadu Government's White Paper on Reservations tabled in the Assembly on May 11, 2000). The Hindu (Leader Page). July 26. Radhakrishnan P. 2002. “The Vanniyar Vampire”. The New Sunday Express, Sunday Magazine, Cover Story. July 28. Radhakrishnan P. 2003. “Vanniyars and Social Mobility”. The New Sunday Express (Sunday Magazine). February 2. 2. Article 16(4) permits the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State. While Article 16(4) only permits, Article 335 mandates the State that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in the making of appointments to the services and posts in connection with the affairs of the Union and of a State. Thus, while the reference to backward classes in Article 16(4) is too generic and the reservation provision is only enabling, the reference in Article 335 is specific and mandatory. The Constitution also mandates reservation of seats for the SCs and STs in proportion to their numbers in the Lok Sabha (Article 330) and Vidhan Sabhas (State Assemblies; Article 332). Article 46 directs the State to promote with special care the educational and economic interests of the “weaker sections of the people” and in particular of the Scheduled Castes and the Scheduled Tribes and “to protect them from social injustice and all forms of exploitation”. As the repeated references in the provisions are to the SCs and STs, recognition of these categories as the most backward in need of the most effective affirmative action provisions is only too obvious. Though the much less backward OBCs is a residual category in the

Constitutional scheme, over the years the vote-bank politics of the country has virtually obliterated the differences between the two, and if anything brought the OBCs to the forefront of affirmative action much to the neglect of the SCs and the STs. 3. Frederico Mayor. In Foreword to UNESCO's World Education Report 1998: Teachers and Teaching in a Changing World. 4. Alan Gilbert. In a speech Education or Catastrophe, General Conference of the Association of Commonwealth Universities, Queen's University, Belfast, Media Release, September 1, 2003; Web: www.acu.ac.uk/belfast2003. 5. In the report Perils and Promise: Higher Education in Developing Countries, published in 2000. Prepared by the Task Force on Higher Education in Developing Countries, convened by the World Bank and UNESCO. 6. See, The Supreme Court of India (1992), Judgments on Indra Sawhney and Others vs. Union of India and Others. Delhi. LIPS Publications Pvt. Ltd. 7. These castes were Agamudayan/Thuluva Vellalars; Devanga/Sedan; Gavara; Illuvan/Ezhuvan/Illathar; Kaikolan/Sengunthar; Sadhu Chetty; Saurashtra; Vadugan; and Virakodi Vellala. 8. Government of Tamil Nadu. 1974. Report of the Tamil Nadu First Backward Classes Commission. Madras. Government Press. 9. It is important to note that top in this list of 34 major beneficiaries in the 1980s were seven of the nine major beneficiaries mentioned in the Sattanathan Commission report of 1970, which reconfirmed the continuing monopoly of certain BCs in cornering the BC benefits offered by the state. 10. Government of Tamil Nadu. 1985. Report of the Tamil Nadu Second Backward Classes Commission. Madras. Government Press. 11. According to Demand No. 9, Policy Note for the year 2005-06 of the Backward Classes, Most Backward Classes, and Minorities Welfare Department, Government of Tamil Nadu, Tamil Nadu's population break-up is as follows: Backward Classes 46.14 percent; Most Backward Classes 17.43 percent; Denotified Tribes 3.44 percent; Scheduled Castes 19 percent; Scheduled Tribes 1.04 percent; Others 12.95 percent. Tamil Nadu's reservation quotas are 30 percent for BCs, 20 percent for MBCs and DNTs, 18 percent for SCs, and 1 percent for STs. The overall reservation is thus 69 percent, and the population covered by it is 87 percent.

Pakistan-Afghanistan Relations Pervaiz Iqbal Cheema The foreign policy of a country is a reflection of its desire to attain economic prosperity. In pursuit of these objectives, decisions are taken at a given point in time. Explaining reasons for a particular foreign policy decision is not an easy task as a combination of many factors contributes towards the final calculation. Depending on assumptions, motives and objectives, one can develop a whole range of plausible explanations for a certain act of foreign policy. Foreign policy is a product of a varied set of determinants which tend to make their contributions and influence the foreign policy making process. Among the determinants which no state can afford to ignore include the geo-strategic setting and geo-physical location of a country, ideology and historical traditions, national interest, societal and economic determinants. In addition, the operative external and systemic determinants influence the process considerably. A major global change tends to radically influence the states and force them to adjust to new realities. The last two decades have witnessed two radical developments on the global scene. First, the death of the cold war which gave birth to many new trends. Among these trends the ascendancy of economic factor was perhaps the most important. During the cold war relations among nations were conducted more on the basis of political considerations whereas the post cold war era saw the emergence of ascendancy of economic factors and relations began to be influenced more by economic than political considerations. The second pronounced trend that was identified was the simultaneous emergence of integrative and disintegrative forces. Many old empires and states were disintegrated into small units of the system. The disintegration of the Soviet Union and Yugoslavia are perhaps good examples of this trend. While some states disintegrated into smaller units, many smaller units began to work towards a larger grouping of states. The gradual emergence of European Union as a well knit group of states as well as the evolution of ASEAN is reflective of integrative trends. The second major development which has radically influenced the existing system is the 11 September attack on the World Trade Centres in New York (â&#x20AC;&#x153;9/11â&#x20AC;?). The tragic events of 9/11 not only focused the spotlight on terrorism and the consequent formation of international coalition against terrorism but also caused US-led wars against Afghanistan and Iraq. Since 9/11, debates over what exactly we mean by terrorism, its various categories (individual, group and state terrorism), the differences between terrorist activities and freedom struggles, and mechanism to combat terrorism, have started all over the world. Well-meaning and concerned

individuals, groups, regional and universal organizations, almost regularly advance various interpretations. The debate has so far remained inconclusive but the countries interested to initiate some forms of action to counter what they perceived as terrorist activities have not waited for a consensus to develop and have already undertaken punitive pursuits. While the debate rages on, developments of far reaching consequences have impacted different regions and individual countries. Pakistan's relations with Afghanistan can best be described as problematic and difficult. Many of the above mentioned determinants and some of the developments influenced the evolution of Pak-Afghan relations. This paper focuses on the initial problems and highlights the Pakhtoonistan issue followed by the Soviet invasion and its impact on Pakistan. It also deals with developments after the departure of the Soviets, including various accords among the Mujahideen and the rise of Talibans. The final section briefly covers the period after the events of September 11th 2001 and the war against terrorism. The Pakhtoonistan Issue One of the predominant factors that have substantively influenced Pakistan's Afghan policy is Pakistan's ideology and its quest to forge closer ties with all the Muslim countries. Being an Islamic State, Pakistan has always endeavored to employ extra considerations for cultivating all the Muslim countries. Afghanistan was viewed right from the beginning as a special case for three major considerations. Not only is it a Muslim state and physically located as an immediate neighbour, it also has a large Pakhtoon population in its own provinces of NWFP and Balochistan. When it became clear that the British would soon leave India, the Afghan government approached the British government in 1944 and tried to seek assurances that in the event of British departure from India, the frontier areas would be given a choice between independence and rejoining their motherland. Simultaneously the Afghan government also made a demand that Afghanistan be given a corridor to the sea through Balochistan.1 As the partition date came nearer, the Afghan campaign intensified At the time of partition of the Indian subcontinent a strange situation existed in NWFP with the Congress in power. The Congress government in NWFP wanted the province to join India but composition of the population and the geographic location of the NWFP made it extremely difficult to include the province into the territories that formed India. A compromise was worked out which entailed the holding of referendum in the area in order to ascertain the wishes of the people. Cognizant of erosion of its popularity among the people under the changed circumstances as the emergence of a Muslim homeland was gradually becoming a reality, the Congress also tried to have another clause inserted in the referendum by suggesting that referendum should not be confined to choosing India or Pakistan but the people should also be given the option of independence.2 The British did not agree to the suggestion. At the time the Congress leaders in NWFP also complained that the then Governor of NWFP, Sir Olaf Caroe, was sympathetic to the Muslim League. Mountbatten not only arranged to send the Governor on leave but also decided to show to the leader of Congress government in NWFP the list of 15 army officers who were selected to

conduct the referendum.3 The referendum was duly held from 6-17 July 1947 in which an overwhelming majority voted for Pakistan. “Out of the total electorate of 572,798, just over 50% took part; Pakistan received 289,244 votes and India 2,874”.4 The absolute majority of the pro-Pakistan votes left no room for the British except to include the province into the territories that formed Pakistan. Despite the clear verdict of the NWFP referendum, the Afghan government continued to express its dissatisfaction as it did not include the choices the Afghan government had been pressing for. The continuous Afghan pressure on Pakistan often resulted in a state of high tensions between the two countries. Following the establishment of Pakistan as an independent state, Pakistan applied for membership of the UN. When Pakistan's application came before the General Assembly on 30th September, the Afghanistan government decided to cast the only negative vote against Pakistan's membership. In November 1947 a special envoy of the Afghan King came to Pakistan and reportedly made three demands; tribal areas be constituted into a 'free, sovereign province', Pakistan must give Afghanistan access to the sea either by creating a free Afghan zone in Karachi or providing an Afghan corridor in West Balochistan, and finally that the two countries “should enter into a treaty which should permit one party to remain neutral if the other was attacked”.5 Being fully aware of the rights of a landlocked state, Pakistan agreed to provide facilities for Afghan goods to pass through Pakistani territory and allocated a number of railways carriages to transport Afghan goods. The year 1948 saw another crisis which was engineered by the Afghan defense minister Sardar Dauod Khan who sent Afghan troops in traditional Pathan attire to infiltrate Pakistan's tribal areas which forced Pakistan to close the border.6 While normalcy was quickly restored, the main issue that impacted seriously upon PakAfghan relations was the issue of Pakhtoonistan which dominated during the period when Dauod became the Prime Minister of Afghanistan. Pakhtoonistan Issue: Pakistan's relations with Afghanistan from the start straight to the Soviet invasions remained troubled primarily because of the Pakhtoonistan issue. The Afghan propaganda in favour of the establishment of an independent Pakhtoonistan remained a constant source of tension. During the 1950s, relations between the two countries deteriorated. Unable to convince the British to allow NWFP to join Afghanistan, the government of Afghanistan embarked upon a campaign for an independent Pakhtoonistan consisting of the Pakhtoon inhabited areas of Pakistan. The pro-Pakhtoonistan campaign was said to be actively supported by the Faqir of Ipi who caused many tribal uprisings during the days of British rule in India.7 Despite the Afghan government's persistent propaganda campaign against Pakistan and to win the support of the Pakhtoons living in Pakistan, the government of Pakistan opted for a correct attitude and continued to extend facilities for Afghan transit trade. The Prime Minister of Pakistan even declared that 'relations between Pakistan and Afghanistan could be very friendly if the Afghan government gave up senseless anti-Pakistan propaganda'.8 Throughout the 1950s the relations between the

two countries did not register an upward surge. In 1955 not only did the Afghan government lodge a strong protest against Pakistan's one unit proposal to incorporate the NWFP in the province of West Pakistan, large scale demonstrations were also organised against Pakistan in Kabul, where Pakistan's Embassy got attacked. Pakistan alleged that during the attack the demonstrators tore down the Pakistani flag, ransacked the embassy and the ambassador's residence, injured embassy staff, wrecked office furniture and equipment and looted property. It was further alleged that during the attack the Afghan police did not take any preventive measures. On the contrary, the police encouraged the rioters.9 Similarly Pakistan's Consulates at Kandhar and Jalalabad were also attacked. These attacks not only incensed the officials of Pakistan government but also led to widespread demonstrations in Pakistan resulting in an attack on the Afghan Consulate at Peshawar. In a broadcast on April 1st 1955, the Pakistani Prime Minister declared that the “ruling junta in Afghanistan talks of [the] Pakhtoonistan stunt in order to divert the Afghan people's attention from the autocratic nature of their own regime and emphasized that Pakistan would tolerate no interference by any country in her domestic affairs”.10 He further added, “We shall not rest content until an amende honorable is made for the sacrilege committed against our national flag and proper restitution made for the insult and damage caused to our honor and prestige”.11 Not only were protest notes exchanged between the governments of Afghanistan and Pakistan but many embassies in Kabul also handed protest notes to the Afghan government as they viewed the attack on any embassy as a serious violation of the diplomatic privilege. As a consequence of these developments, diplomatic relations were broken off and the Afghan-Pakistan border remained closed for almost five months. Due to the efforts of some Muslim countries diplomatic relations were later resumed.

of how the Durand Line came into existence clearly indicates that there were no pressures applied by the British. In fact it was Amir Abdur Rehman who initiated the process of border finalisation. Second it was Amir who suggested the name of Sir Mortimer Durand to lead the British Indian Boundary commission.14 It was Amir who expressed his complete satisfaction after the Durand Line Agreement was signed in 1893. Amir had already accepted that the status of NWFP as was decided by the Treaty of Gandamak.15 The validity of the Durand agreement was reaffirmed by successive rulers of Afghanistan including Amir Abdur Rehman's son and grandson Amir Habib Ullah and Amir Aman Ullah, respectively. The second strand of the Afghan argument was that the Durand Treaty was signed between the British Indian government and the ruler of Afghanistan and since the British had left the subcontinent, the treaty lapsed. International law clearly states that treaties of extinct states concerning boundary lines remain valid and all rights and duties arising from such treaties of the extinct state devolve on the successor nation which inherits treaty rights.16 Pakistan is the successor nation on the north western part of the Indian subcontinent. The third argument of the Afghans is that even after the signing of the Durand treaty the tribal territories remained separate and independent. If this was the case why should the Afghans promote an independent Pakhtoonistan which was supposed to include tribal areas as well as NWFP? For administrative reasons, the NWFP was made a province whereas tribal areas were ruled through the administrative control of the political agents who were appointed by the British Indian government. A similar pattern continued even after the partition of India.

It is pertinent to mention that the Soviet Union, angry over Pakistan's participation in the Western sponsored defense pacts, began to extend a patronising hand to Afghan policy on Pakhtoonistan. The involvement of super powers in this regional dispute further embittered Afghan-Pakistan relations.12 Encouraged by the outsiders, the Afghan government did not control its vilification campaign against Pakistan. During Ayub Khan's initial period the Soviet premier Khrushchev, while passing through Kabul, asserted “that the solution of [omitted] Pakhtoonistan should be reached by implementing the United Nations Charter's 'principle of self-determination”.13 Constant harassment of Pakistani staff attached to consulates both at Jalalabad and Kandhar led Pakistan to inform the Afghan government that it would close down its consulates and demanded the closure of Afghan Consulates and trade agencies in Quetta and Peshawar. The Afghan government retaliated by severing diplomatic relations with Pakistan and also closed the border. This phase of hostile relationship ended with the departure of Sardar Dauod in 1963, whose regime had made the Pakhtoonistan issue as the main plank of Afghanistan's Pakistan policy.

The fourth argument employed by the Afghans was that the inhabitants of Pakhtoonistan are one nation and the Durand line arbitrarily splits the nation into two. To begin with, the line was never arbitrarily drawn. 'It generally follows tribal boundaries, separating those tribes which go to markets in Peshawar, Kohat, Bannu, Tank and Quetta from those with economic links with Khorasan,, having Kabul, Ghazni, Kandhar as their market towns'.17 The only tribes which were partly divided were the Mohmand and Waziri. Secondly, if Kabul was sincere in its efforts for the unity of the Pakhtoons, it would have agreed to include those Pakhtoons who live in Afghanistan. The Afghan concept of Pakhtoonistan consisted of only those Pakhtoons who live in Pakistan. Undoubtedly the Pakhtoons live on both sides of the Durand Line. When ever the idea of holding a plebiscite for a united Pakhtoon land was put forward the Afghan government always reacted angrily and rejected the idea. The Afghan concept of Pakhtoonistan only included Pakhtoons living on the Pakistani side of the Durand line. Perhaps that is why even the neutral observer viewed the case of Pakhtoonistan as no more than a 'veiled irredentism'.18 Most Pakistanis viewed it as a figment of Afghan imagination and some saw it as a device to divert attentions from internal troubles.19

A brief examination of the Pakhtoonistan issue shows that the Afghan government advanced four sets of arguments. First and the most important argument advanced by the Afghanis says that the Durand Line was established under duress. An examination

In 1973 Dauod staged a coup d'etat and made Afghanistan a republic and with his arrival the issue of Pakhtoonistan was once again revived temporarily. However, the issue did not acquire the prominence it had experienced in 1950s. In 1975 Pakistani

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Prime Minister Zulfiqar Ali Bhutto paid an official visit to Kabul and in 1976 Sardar Dauod paid a similar visit to Pakistan. A year later Bhutto was over thrown by General Zia ul Haq and Dauod and his family were killed in 1978 by the incoming communist regime. The Soviet-Afghan War: Impact on Pakistan The communist takeover in April 1978 lasted up to the end of 1979. The main problem confronting the communist regime was the infighting between the two main factions; the Percham and the Khalq. While it is not very clear why the rift developed when unity was most required, there is no doubt that an intense power struggle ensued right from the day the communists took over Afghanistan. The outcome of the power struggle was the gradual elimination of all Parchamites from high level government posts, including Babrak Karmal who was removed from the post of deputy prime minister. It was also alleged that some of the posts were filled by Persian speaking Soviet citizens from Central Asia.20 Throughout 1978 the Parchamites were purged continues which eventually resulted in great shortage of trained manpower and the increasing regime's dependency upon the Soviets and also caused considerable reduction in party sympathisers. On the eve of revolution the Afghan society was not only in a state of appalling poverty and backwardness but had also inherited a very weak economy. The hurried attempts of Tarakai regime to push the socio-economic reforms further alienated both the rich and the poor. The poor were alienated by the new government's policies regarding the abolition of dowry and forced marriages, compulsory educationespecially women's educationand the replacement of Islamic green color with that of red in the national flag of Afghanistan. The rich were annoyed over the introduction of land reforms and increased official control of commercial activities'.21 Given the rapidly accumulated alienation, it was not surprising that that hasty implementation of Communist reform program backfired and the people who were supposed to benefit from the reforms decided to oppose the communisation of their society. The result was that within a year a series of localised outbursts of resistance began to manifest in one form or the other. The unrest soon saw the overthrow of the Tarakai regime by Hafizullah Amin who was, in turn, overthrown by the Soviet invasion which took place in late December 1979. Apart from the above mentioned developments, many other factors influenced the Soviets to invade Afghanistan. First, the apprehension about the then prevalent wave of Islamic fundamentalism since the belief was that if the Soviets did not strengthen the communist control they would be replaced by the fundamentalist Islamic regime which could be dangerous for Muslim states of Soviet Union. Second, a firm foothold in Afghanistan provided a pressurising lever over both Pakistan and Iran. Third, the border sensitivity of the Soviets in terms of having buffer states around the Soviet Union also contributed substantively. Fourth, since Soviet behavior over SinoVietnam war generated the impression that the Soviet supports only major ally, the Afghanistan situation provided an opportunity to inject a corrective injection. Fifth, Afghanistan takeover could provide an opportunity to realise their age old quest for warm waters. Finally, cognizance of the American difficulties with both Iran and

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Pakistan must have convinced them that time was right and the Americans would have difficulties in reaching Afghanistan.22 The Americans, however, managed to influence Pakistan to support their efforts to counter the Soviets inroads into Afghanistan. Not only did the Americans encourage the existing resistance movements inside Afghanistan, they also invited guest warriors from all over the world to fight against the Soviets in Afghanistan. Having been bled by the Soviet in the Vietnam War, the Americans did not want to miss this opportunity to do the same to the Soviets. The war lasted for ten years and eventually ended with the signing of the Geneva Accords on 14th April 1988.23 By February 1989 the Soviet forces pulled out of Afghanistan leaving Najib Ullah as their man in Afghanistan. Undoubtedly the country that was most affected by the war was Pakistan. Not only did it become a base for the execution of American policy against Soviet-controlled Afghanistan, it also received around four million refugees. Most of the Afghan refugees are still living in Pakistan as the situation in Afghanistan is still far from satisfactory. The Afghanistan crisis, in general, and the large concentration of the refugees on Pakistani soil, in particular, had given birth to many complex problems which were perhaps less obvious but quite disturbing. These problems can be divided into five categories; economic, social, political, strategic and foreign policy. Economic policy. In the early 1980s the cost of maintaining refugees was calculated around a million dollar a day but at that stage neither the flow of the refugees had stopped nor had the unregistered refugees been taken into consideration.24 Later the figures increased considerably. Most of the sources agree that half of the financial cost was met by the government of Pakistan and the other half was contributed by donor states, agencies and international organisations.25 While it is true that the cost was equally shared between the donors and Pakistan somewhat equally, when the invisible cost is added it becomes clear that Pakistan was paying much more than the donors' share. Among the invisible costs that Pakistan had to incur included deforestation, unauthorised use of grazing grounds, non payment of tolls tax by the Afghan truckers, unjustified increase of rent ceilings by the influx of affluent Afghan refugees, edging out and replacement of Pakistani labourers by the Afghans, taking a substantive chunk of transport business etc. Social policy. Many economic issues were linked with social problems which, in turn, contributed enormously towards the existing level of tensions between the locals and the refugees. For example transport, grazing land, property purchase, rent ceilings, deforestation and unemployment all contributed towards increasing tensions. Among the new social problems that were the direct products of massive influx of Afghan refugees included the problem of drugs and the development of gun culture.26 Until the advent of the 1980s drug addiction was relatively unknown to most Pakistanis. Since arms were regularly supplied to the resistance groups by the American intelligence agency, some of these arms found their way into the Pakistani markets. The easy availability of arms in Pakistan contributed enormously towards an increase in the crime rate within the country.27

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Political policy. The presence of a large number of Afghan refugees also created many political problems. The Pakhtoon tradition of panah (sanctuary) and the country's hospitable nature further complicated the situations. Until the advent of the 1980s, organised terrorism was virtually never experienced by the Pakistanis. Since the Afghan war against the Soviets, acts of terrorism have frequently occurred on Pakistan soil. During the initial period NWFP was particularly targeted. The Kabul regime had managed to penetrate the great reservoirs of resistance, namely the Afghan refugee camps in Pakistan. Most acts of terrorism were undertaken by Khad agents under the supervision of KGB but the internal feuds of various resistance groups also contributed.28 Perhaps a more serious problem was the impact on domestic politics. Ordinarily most external crises tend to have a unifying effect on domestic politics but the Afghan crisis had sharply divided political opinions about the refugees. The access to these camps granted to some political parties further exacerbated the situation. Another aspect of the political problem was ethnic imbalance and increased sectarianism caused by the influx of refugees in many areas leading to period clashes. The Afghan refugees also injected corruption especially in their efforts to procure Pakistani identity cards. In addition it was also alleged that the refugees were being used to create dissension and disorder in academic institutions.29 Strategic policy. Strategically threats emanating from the Afghanistan crisis did not pose any major risk until the arrival of the Soviet troops in Afghanistan. The Soviet invasion drastically complicated the security situation on Pakistan's western border. For Pakistan the dangers were manifold. First, the invasion had generated the apprehension that Pakistan would be the next target. Second, because of the presence of a large number of refugees on Pakistan's soil, Pakistan could be dragged into the Afghan cauldron willingly or unwillingly. Third, the Soviets may be tempted to exploit the internal situation of Pakistan, especially in NWFP and Balochistan. Besides, the special relationships between the Soviets and India could not be brushed aside. Foreign policy. Sandwiched between hostile India and Soviet-controlled Afghanistan, Pakistan's security dilemma became rather acute and required changes in its policies in the emerging geopolitical environment. The major impact of the evolving situation was to move even closer to both US and China and make extra efforts to defuse threats on its eastern borders. In this connection two developments deserve mention here: the announcement of a verbal agreement not to attack on each other's nuclear installations and the birth of SAARC. By and large, Pakistan suffered a lot and it still continues to suffer as most of the refugees are still living in Pakistan, despite the passage of 17 years after the Soviet left Afghanistan. The refugees are also confronted with a genuine problem. Most of them would like to return to their homes but the conditions inside Afghanistan are still far from the desired level of stability which, in turn, deters them from leaving Pakistan. Pakistan continues to play host and has agreed with the incumbent Afghan government to move them out of Pakistan gradually. No country has hosted such a large number of refugees for such a long time.

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Civil War and the Rise of the Taliban The third phase of Pakistan-Afghanistan relations covers the period from the departure of the Soviets troops to the end of the Taliban regime in Afghanistan. In May 1986 Major General Najibullah replaced Babrak Karmal as the President of Afghanistan. As the Soviet casualties increased, Mikhail Garbachev called Afghanistan 'a bleeding wound' but continued for a military solution.30 In accordance with the requirements of the Geneva Accords (signed on April 14th 1988), the last Soviet soldier pulled out of Afghanistan by February 1989 leaving Najibullah in charge of Afghanistan. Almost at the same time the Mujahideen groups also formed a seven party alliance in Peshawar and announced an Afghan Interim Government (AIG). Najibullah made unsuccessful efforts with UN to transfer power but the Mujahideen, sensing victory, pressed for a military solution. Najibullah then tried to move out of Afghanistan with the aim to seek asylum in India but was unable to flee the country. As the Mujahideen forces marched to Kabul in April 1992, he took shelter in the UN compound where he spent few years until he was executed. The period between the removal of Najibullah and the emergence of Taliban saw various Mujahideen efforts to rule the country. On April 24, 1992 the Mujahideen signed the Peshawar Accord. According to this accord it was decided that â&#x20AC;&#x153;Mujaddedi would be the acting president for two months and he would be replaced by Rabbani for the next four monthsâ&#x20AC;?. After the six initial months a Shoora would be held to choose the government for the next eighteen months, after which elections would be held. The President would be answerable to the Council consisting of Mujahideen party leaders.31 After two months Mujaddedi stepped down and handed over to Rabbani who convened the Shoora and had himself declared as the president for next two years. Many prominent Mujahideen leaders did not approve this election and thus began another round of infightings. Aware of the importance of a stable Afghanistan, the Pakistani Prime Minister Nawaz Sharif initiated new mediation efforts in order to resolve the differences between the warring Afghan leaders. An Islamabad accord, a compromise formula, was signed on March 1993 in the presence of Pakistani Prime Minister, Saudi prince Tarki al Faisal and a deputy Foreign Minster of Iran.32 Unfortunately the accord met the same fate as that of the Peshawar accord and Afghanistan once again slipped into the throws of a civil war. According to the accord Rabbani was to stay as the president but the post of the prime minister went to Hekmat Yar who quickly dismissed Ahmad Shah Masood as the defence minister but Rabbani refused to accept this change. Fighting continued for some time, with Hekmat launching an attack on Kabul but being unable to capture it. Since no clear winner emerged, civil war continued. In 1994 the UN appointed a new representative, Mahmood Mestiri who tried to restart the peace process. He tabled proposals for cease fire, the creation of neutral security force, and the summoning of a loya jirgaa representative councilto oversee the formation of a transitional government.33 In the October of 1994, Taliban, an unknown group, emerged on the scene by capturing Kandhar. During the next two years the Taliban gradually brought more and more areas of Afghanistan under their control and in September they captured Kabul. Soon after their take over of Kabul, the

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Taliban executed Najibullah. In October 1996, Rabbani formed an anti Taliban alliance called the Council for the Defence of Afghanistan with Karim Khalili, the leader of Hizb-i-Wahdat and General Dostum.34 Following the fall Najibuulah government the struggle for power among various Mujahideen groups of Afghanistan especially during 1992-96 had not only created a acute vacuum of leadership but also caused the death of more than 50,000 Afghans. Frustrated and fed up with the ongoing anarchy and civil war, the Afghans appeared to be willing to support any group that could inject stability. Undoubtedly the Talibans are products of political chaos and increased frustration with the civil war. Perhaps that is why the somewhat untrained Taliban with the sympathies of ordinary Afghans were soon able to capture more than 90 percent of Afghanistan's territory by 1997. The Taliban emerged on the Afghan scene as a force in 1994. The Taliban is primarily a product of the unpopularity of the Afghan interim government along with the ongoing civil war. More Afghans died during the civil war than in the war against the Soviets. Since the incumbent regime of President Rabbani had turned against Pakistan, the Pakistanis not only welcomed the rise of Taliban to power but also assisted them in their process of consolidation. During the initial phase the Taliban ruler turned to Pakistan for assistance but once they were firmly installed themselves, they began to assert themselves and frequently undertook courses of action that ran contrary to Pakistan's advice. Soon Pakistan became somewhat disillusioned with themmore specifically over the lack of cooperation towards both the Pakistani authorities as well as the UN special representative, extreme religious views and their perceived involvement in international terrorism. Once having taken over most of Afghanistan, the Taliban regime began to introduce reforms in accordance with their Islamic beliefs and what they deemed suitable for Afghanistan. The Taliban's harsh steps such as banning working women prompted strong reactions against their policies.35 However, it needs to be mentioned here that Talibans were successful in restoring the law and order situation in Afghanistan, deweaponisation of the Afghan society, eliminating the warlords, filling the leadership vacuum, providing the people a sense of security, curtailing poppy cultivation and establishing a central government machinery.36 However, the human rights violationsmore specifically the deprivation of certain rights of the Afghan womenreceived attention within the international community. Since 1996 the UN has been deeply involved in securing peace in Afghanistan. Many efforts were undertaken by the UN representatives. Due to UN efforts and concern by regional actors, the representatives of Taliban and the Northern Alliance, which was operating from a small territory in the north, began peace talks in Islamabad. In the last week of April 1998 the Northern Alliance and the Taliban began peace talks in Islamabad in which the head of UN Mission in Afghanistan, OIC's Assistant Secretary General, and the Pakistani Foreign Minister also participated but the talks did not yield any positive outcome and the two sides were unable to patch up their differences. In August 1998 the Taliban captured Mazar-e-Sharif, one of the

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strongholds of the Northern Alliance and due to this the attitude of the Taliban hardened, making them commit the blunder of killing the Iranian diplomats who were in Mazar-e-Sharif. The killing of the Iranian diplomats invoked a strong reaction among the international community. Despite Pakistan's efforts to prevent the killing of diplomats, the Iranians blamed Taliban and Pakistan. 'On September 22 1998, under the aegis of the UN, six neighbours of AfghanistanPakistan, Iran, Uzbekistan, China, Turkmenistan and Tajikistanalong with the US and Russia, decided to send a fact-finding mission to investigate the killings in Mazar-e-Sharif'.37 They passed a resolution calling for negotiations between Talibans and other parties for a political settlement including an assertion that Afghanistan should stop providing refuge to international terrorist implying a clear reference to the presence of Osama Bin Laden. In addition the special envoy of the UN Secretary General Lakhdar Brahimi visited Iran, Afghanistan and Pakistan in order to secure a consensus for restoration of peace and resumption of dialogue process but his mission ended in a failure.38 Afghanistan's refusal to cooperate with the UN and implement the Security Council's resolutions facilitated a tougher attitude of the UN authorities. In fact mandatory sanctions were passed when Taliban refused to extradite Osama putting Pakistan in a very difficult situation, as it had to comply with the UN resolutions. Pakistan's disillusionment further intensified when Mullah Omar refused to handover Pakistani criminals who had taken refuge in Afghanistan. The attack on the twin towers had angered the Americans who put the blame entirely on Osama bin Laden and to give vent to their angered emotion decided to launch an attack upon Afghanistan. Just before the actual launch of the attack, the US President sought Pakistan's help in terms of airspace, intelligence and logistics. Cognizant of the ground realities, including the determination of the great military power to undertake tough action along with extremely non-cooperative attitudes of the Afghan rulers, Pakistan opted to provide the requisite support to the US-led coalition against the Taliban regime. Thus, Pakistan once again became a front line state. A combination of the above mentioned factors influenced the Pakistan's ruler's to opt for what was deemed best in Pakistan's national interest. Many writers have already passed a sweeping judgment that Pakistan's Afghan policy has undertaken a dramatic U-turn. It seems that there are two categories of critics; those who look at Pakistan-Afghanistan relations in simpler terms and are unfamiliar with Pakistan's policy initiatives during the 12 months prior to 9/11 and those who understand the operative internal as well as external compulsions of Pakistan but prefer to be critical to cater to their own agenda. The first category looks at Afghanistan as a next-door Muslim neighbour with whom the Pakistan has strong ethnic and religious bonds. Since Pakistan was deeply involved right at the outset in helping the friendly Taliban regime to consolidate its position in Afghanistan, it was expected that it would not abandon the Taliban regime. This group either refuses to acknowledge the ongoing disagreements with Taliban regime or is not convinced the kind of complex problem the government in Pakistan was confronted with because of its association with the Taliban regime. No Afghan

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government has been as friendly as was the Taliban's. They also argue that we left the Taliban to support the Americans who have never missed an opportunity to let Pakistan down. Pakistan's association with Taliban was the product of its continuous efforts to have a secure border and a desire to have a friendly regime in Afghanistan. Following the establishment of Pakistan, relations with Afghanistan did not take off on the right footing. Despite its efforts to provide facilities to Afghanistan with regard to transit trade and help Afghanistan as much as it could, including hosting almost four million Afghan refugees for more than 15 years, the relationship somehow continued to remain problematic. A friendly Taliban regime provided an opportunity to safeguard it western border. During the initial stages of Taliban rise, the Taliban used to heed Pakistani advice but once they had consolidated their position and had also captured Mazar-e-Sharif, their attitude hardened and they began to disregard Pakistan's advice. Pakistan's initiatives were not able to influence the Talibans during the year prior to 9/11 but this fact did not cut any ground with this group. The Talibans simply ignored almost all good advice extended by Pakistan including not to massacre the Iranian diplomats or destroy the Buddhist statues in Bamiyan and not to force the Hindus to wear a distinguishing sign etc. During the year 2001 the Taliban simply refused to entertain Pakistani requests including the one dealing with the return of Pakistanis criminals who had taken refuge in Afghanistan. Taliban curtly refused to hand them over. The argument that many of the Jihadi groups that were being trained in Afghanistan and later began to create problems for Pakistan was not entertained by them. Being associated with some religious parties in Pakistan, the trained cadres were indulging in acts that were severely damaging the law and order situation in Pakistan. The argument that drugs and terror were being exported to Pakistan inadvertently did not cut much ice with this group either. The detail of compulsions that caused the initiation of Pakistan's de-weaponisation policy was also unable to satisfy these critics. The second group consists of critics who have a full comprehension of Pakistan's problems and operative compulsions. They recognise the nature of pressures to which Pakistan was subjected to but for some reasons would refrain from highlighting them. They even recognise that Pakistan was in a very difficult situation and was, more or less, compelled to undertake the course of action it opted for. However, they paint Pakistan's reversal of the Afghan policy as a dramatic U-turn and accuse Pakistan for abandoning the Afghans. Pakistan's efforts to secure recognition of the Taliban regime and its help for so many years are simply underplayed to avoid damage to their set agendas. 9/11 and the War against Terrorism The tragic events of 11th September 2001 not only focused the spotlight on terrorism and the consequent formation of international coalition against terrorism but also caused a US-led war against Afghanistan. Since 9/11 debates over what exactly we mean by terrorism, its various categories (individual, group and state terrorism), the differences between terrorist activities and freedom struggles, and mechanism to combat terrorism have started all over the world. Well-meaning and concerned

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individuals, groups, regional and universal organizations, almost regularly advance various interpretations. The debate has so far remained inconclusive in many ways but the countries interested to initiate some forms of action to counter what they perceived as terrorist activities have not waited for consensus to develop and have already undertaken the selected punitive pursuits. While the debate rages on, developments of far reaching consequences have impacted upon different regions and the individual countries. The terrorist attacks on September 11th 2001 brought the attention of the international community to Afghanistan. When the Taliban regime refused to hand over Osama Bin Laden and his Al-Qaeda associates, the US-led coalition launched an attack on Afghanistan. While the coalition was soon able to oust Taliban from power in late 2001, the Taliban were never completely routed primarily because of the half hearted policies of the coalition. The Bonn Conference of December 2001 worked out a blue print for the political processes and reconstruction of Afghanistan. An international Security Force (ISAF) was established by the UN Security Council Resolution 1386' in the same month in order to assist the interim Afghan regime in order to maintain security in Kabul and surrounding areas.39 Since then the force has been trying to secure the desired level of stability but has not been all that successful. Three main reasons account for their inability to attain the stated objectives. First, the Taliban have been able to regroup and have increased their activities. In order to effectively deal with the situation much greater force than is available is needed. Second, the drug trade is not only flourishing but has become an integral part of commercial and political life in Afghanistan. 'The drug economy is now equal to 50-60 percent of Afghanistan's GDP, and around 87 percent of the world's heroin currently comes from Afghanistan'.40 Third, the local war lords, who have a track record of switching allegiance, have not only been indulging in human rights violation and criminal activities including the drug trade but have associations with both the government in Kabul and the Taliban insurgents. As a consequence of Pakistan's participation in the international coalition against terrorism Pakistan has suffered a lot both internally as well as externally. Internally it has experienced severe damage to its economy while also having the society divided into two over this. Acts of terrorism have considerably increased. Within a span of a few weeks terrorist acts were experienced by many major cities of Pakistan. The terrorists have committed many heinous acts against the people of Pakistan. They have killed innocent civilians, violated the sanctity of places of worship by committing murder insides mosques and churches, murdered foreigners helping Pakistansuch as the French engineers on submarine projectmade repeated attempts to assassinate the heads of state and government, generated fear among the ordinary citizens etc. Periodic efforts to bomb were also made against foreign consulate. All such acts not only tarnished Pakistan's image but also took a heavy economic toll and deterred investment. Contrary to the belief that Pakistan joined the international coalition to combat terrorism under pressure, the Pakistani authorities maintained that Pakistan joined

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the coalition for its own reasons as it had been a victim of frequent terrorist attacks within its own borders. Both President Musharraf and Prime Minister Shaukat Aziz have been subjected to terrorist attacks. In order to deal with the situation the government adopted a threefold policy; to launch a direct action against terrorist elements, to acquire more information about their networks and sponsors, and to focus on the root causes of the terrorism.41 Pakistan has been facing the charge that it has become a haven for terrorists. Undoubtedly over the years, especially after the end of Afghan war against the Soviets, many extremists groups in Pakistan have emerged. During the Afghan war against the Soviets many jihadis were invited by the Americans and were even welcomed as the 'Great Islamic warriors' by the Americans. Later when the war was over many of them were compelled to take refuge in the tribal areas of Pakistan and Afghanistan as their own governments were unwilling to take them back. The allegation that Pakistan is encouraging the insurgents is absurd. Ever since Pakistan de-linked itself from the Taliban, it has done everything possible to erode their power and influence among their sympathisers. However, one should not ignore the semi-autonomous nature of the tribal areas along with their ethnic and tribal linkages. One also needs to take full cognizance of the porous nature of the PakAfghan border belt which enables the tribes to move around with relative ease. Despite the complex nature of the situation in the tribal belt, the Pakistani authorities decided to take firm action against the insurgents and sent Pakistan army into the hitherto 'hands off' zone and established a number of posts. The army has suffered a number of casualties though the number is less than 100. In addition the government of Pakistan embarked upon a massive development program which would indeed facilitate the life in these tribal areas. Without giving due recognition to the substantive efforts the government of Pakistan has already undertaken, the Afghan officials frequently assert that Pakistan can bring them (miscreants/insurgents) under its total control and, therefore, Pakistan should do more. Such assertions clearly reflect not only the ignorance of history, traditions, social conditions and geographical terrain but also non-recognition of Pakistan's concerted efforts. It is not too far fetched to assume that such an advice could be the product of those who do not wish to see improved Pak-Afghan relations. Equally important is the question why the Afghan officials feel compelled to undertake such disinformation pursuits. Is it meant to cover their own incompetence? Are they being tutored by someone else or interested outsiders? Available evidence clearly points towards the existence of a combination of both these elements. If a comparative analysis of Pakistani efforts and the Afghan efforts to plug the PakAfghan border is made, one would indeed be surprised to learn how great efforts are undertaken by the Pakistani side. In fact some observers stress that there is no comparison. Compared to Pakistani efforts, the Afghan efforts are not only negligible but extremely limited.

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The Pak-Afghan border has indeed become a source of constant accusations especially by the Afghan government officials who stress that Pakistan needs to do more because, according to them, many of the militants infiltrate from the Pakistani side of the border. On the other hand, the Pakistanis argue that not only have they developed an intelligence network with Afghanistan and regularly exchange information about terrorist activities, they have also sent more than 70,000 soldiers of Pakistan Army into the tribal areas in order to prevent infiltration and preserve the much desired stability of the region. A counter accusation from the Pakistani side is that the many Indian consulates in Afghanistan appear to be indulging in undesirable activities against Pakistan. The opening of many Indian consulates in Afghanistan has indeed intensified Pakistani concerns. According to some Pakistani analysts believe that the Indians are using these consulates to foment troubles for Pakistan. A consulate is supposed to protect mutual trading interactions as well as ensure the interests of its nationals who are settled in that area. Admittedly the Indian are involved in the reconstruction of Afghanistan in a rather impressive way but their trading interactions within the areas where the consulates are opened are extremely limited and even the settlements of the Indians are hardly visible. The deployment of Indian Special Forces at these consulates, especially in Kandahar, further raised the concern of the Pakistanis. For obvious reasons it is also the duty of the Kabul regime to ensure that these consulates do not indulge in undesirable activities against a third country. Conclusion Pakistan has always been deeply interested in the Afghans' welfare and has consistently extended its full cooperation. A shared and difficult border stretching over 1400 km, close ethnic linkages, shared historical experiences and trading interaction make Pakistan and Afghanistan work hard towards closer ties and increased cooperation in almost all fields. In recent times the Pakistani forces have started an army action against the foreign militants who use the borders areas of both Pakistan and Afghanistan for their corrupt designs. Pakistan's actions against the foreign militants in the tribal areas are not only meant to curtail their illegal activities but also to ensure peace and security in the area. It is not too far fetched to assume that some foreign militants may try to enter Afghanistan, fleeing from Pakistan. However, the Pakistani forces are engaged in ensuring that both sides of the border are safe and the terrorists are not allowed to enter Afghanistan. This does not mean that the entire border is effectively plugged and sealed. The activities of Taliban and warlords are also irritating the Kabul regime. Pakistan has undertaken effective measures to check the Taliban's activities alleged to have been taking place from Pakistani hideouts. Undoubtedly there is a realisation that the two neighbours need to live in peace and harmony. Frequent contacts and visits of senior officials have been able to improve ties between the two countries considerably though some senior non-Pakhtoon officials of President Karazai's government along with American officials in Afghanistan did manage to sour relations between the two countries. However

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Pakistan's rational approach and sincere efforts to improve relations with Afghanistan have eventually resulted in a reasonable level of cordiality. Most Pakistanis never doubted President Karazai's sincerity; it was the elements within his cabinet and the American diplomatic representative in Kabul who often threw a spanner in the rapidly improving Pak-Afghan relations. The pledge to remove irritants and help each other in various fields certainly generates optimistic vibes which, in turn, invariably enable the two countries to cement existing ties. The contribution of Pakistan in facilitating the recent presidential election in Afghanistan especially the voting of Afghan refugees in Pakistan along with tough vigilance of borders is well appreciated by President Karazai. Pakistan's relations with Afghanistan have always been somewhat problematic, despite the existence of a realization that both need to have very cordial relations. While Pakistan's major objective is to have a friendly and stable Afghanistan on its western borders, the developments in Afghanistan have invariably influenced the Afghan decision makers to employ a strategy of shifting responsibilities in one form or the other. In addition Afghanistan has always remained a playground of outsiders which made it rather difficult for Afghanistan to pursue an independent policy of its own. A stable Afghanistan is certainly in the interests of its immediate neighbours as disturbing political developments inside Afghanistan will certainly have spill-over effects.42 The Afghan decision makers also need to learn a balancing act both in terms of their own heterogeneous nature and outsiders' varied interests.

End Notes 1. See S.M. Burke Pakistan's Foreign Policy: An Historical Analysis, Oxford University Press, Karachi, 1973, pp.68-73. 2. ibid. 3. See Pervaiz Iqbal Cheema, Pakistan's Defence Policy, Sang-e-Meel Publications, Lahore, 1998, pp.48-52. 4. Burke, op.cit., pp.68-73 5. ibid, pp. 73-74. 6. See Frederic Grare Pakistan and the Afghan conflict, 1979-1985, Oxford University Press, UK., 2003, p.4. 7. See Kessing's Contemporary Archives, Nov.11-18, 1950, p.11077, 8. ibid. 9. Kissing's Contemporary Archives, May 21-28, 1955, p.14217 10. ibid. 11. ibid. 12. Grare, op. cit., p.5. 13. Dawn, March 6, 1960 14. For a detailed analysis see Amir Abdur Rahman, The Life of Amir Abdur Rahman: Amir of Afghanistan: An Autobiography that was edited by Mir Munshi Sultan Mohamed Khan, Jon Murrey, London, UK, 1900, vol.II, pp.154-64, 93-237. Also see Sir Percy Sykes, 'Sir Mortimer Durand; A Biography', Al-Biruni, Lahore 1977 (Reprint)pp.205-23. 15. Burke, op. cit., p. 85 16. ibid., pp.85-90. Also see Syed Abdul Quddus, Afghanistan and Pakistan: a geopolitical study, Ferozsons, Lahore, 1982, pp.141-57. 17. ibid. 18. See Olaf Caroe, The Pathans 550 B.C.- A.D. 1957, Oxford University Press, Karachi, (11th

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Edition) 2001, pp.435-38. 19. Quddus, op. cit., Pp.136-57. 20. For details see 'The Afghan coup of April 1978: Revolution and International Security' by Hannah Negaran in Orbis, Vol 23 No.1, Spring 1979, USA, p.102. 21. see 'The Afghanistan Crsis' by Pervaiz Iqbal Cheema in Islamic Defence Review,ol.5, N0.2, Oct. 1980, UK, pp.11-19. 22. For a detailed analysis of various factors see 'The Afghanistan Crisis and Pakistan's Security Dilemma' by Pervaiz Iqbal Cheema in Asian Survey, Vol. xxiii, No.3, March 1983, pp.227243. 23. For a detailed discussion of negotiations leading to the Geneva Accords see Riaz M. Khan Untying the Afghan Knot; Negotiating the Afghan Withdrawal, Progressive publishers, Lahore,1993. 24. The administrative cost of maintaining refugees was put around a million dollars a day in first half of the 80s. later the cost substantively increased. See' Along Afghanistan's War Torn Frontier' by Debra Danker in National Geographic, June 1985, p.788. Also see 'The Afghanistan Crisis and its Impact on Pakistan' by Hafeez Malik in Journal of Middle Eastern Studies, Vol.3, Spring 1982, pp.40-51. 25. Among the foreign donors were WFP, UNICEF, WHO, FAO, UNHCR along with most industrial rich states such as Japan etc. For a detailed analysis see 'Humanitarian Assistance and Implications' by Hasan-Askari Rizvi in Pakistan Horizon, Vol. xxxvii N0.1, 1st Quarter 1984, pp.40-61. An official summary of financial outlay for upkeep of 3 million refugees during the year 1984-85 was as follows: Sources Amount Percentage Government of Pakistan $ 205 million 49% External sources $ 209 million 51% See Humanitarian Assistance Programme for Afghan refugees in Pakistan. A publication of the Chief Election Commissionerate, Government of Pakistan July 1984, p.17. 26. For details see 'Impact of the Afghan War' by Pervaiz Iqbal Cheema in Pakistan Horizon, Vol.XLI, Jan. 1988, pp.23-45. 27. ibid. 28. See Hazards of Afghan crisis' by Khalid Akhtar in The Muslim, July 20, 1986. Also see Danker, op.cit. p.785. The War in Afghanistan; by Craig M. Karp in Foreign Affairs, Summer1996, pp.1026-47. 29. See 'The Impact of Afghanistan Crisis on Pakistan' in Afghanistan Today edited by Dr. Mohammad Shamsuddin Siddiqi, Area Study Centre(central Asia), University of Peshawar, 1987, pp.61-84. 30. See Michael Griffin 'Reaping the Whirlwind: The Taliban Movement in Afghanistan, Pluto Press, London, UK, 2001, pp. 1-16. 31. 'Pakistan's Afghanistan Policy: An Evaluation' by Dr. Babur Shah in The Foreign Policy Of Afghanistan by Musa Khan Jalalzai, Sang-E-Meel Publication, Lahore, 2003, PP.271-321. 32. ibid. 33. Griffin, op. cit, p.xiii 34. ibid, p.xv 35. See 'Pakistan-Afghan Relations, 1994-2000' by Mutahir Ahmed in The Afghanistan Crisis: Issues and Perspectives edited by K. Warikoo, Bhavana Books & Prints, New Delhi, India, 2002, pp.392-405. 36. Shah, op. cit., pp.293-94. 37. Mutihar Ahmed, op. cit., pp. 398-99. 38. ibid. 39. See 'Precarious State: Afghanistan and the international and Australian response' by Elsina Wainwright in Strategic Insight, Australian Strategic Policy Institute, March 2006, p.2. 40. ibid., pp. 5-6. 41. See the interview of Minister of State for Interior on 'Pakistan's Intensified War on

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terrorism Got World Acclaim', in Solidarity International, Vol.1, Issue 7-8, July-August, 2005, pp.31-34. 42. In a recent statement the Pakistan Prime Minister categorically asserted that adverse developments in Afghanistan would have direct and immediate effect on Pakistan, therefore it would always be the endeavor of Pakistan to help and facilitate Afghanistan in securing desired levels of stability, unity, development and prosperity. See Dawn, June 10, 2006

Pakistan's Textile Sector and the EU Dr Karin Astrid Siegmann EU-Pakistan Trade (Textiles and Clothing) A large number of the European community use bed-linen supplied by Pakistan. In 2005, the South Asian economy was the largest supplier of bed-linen to the union (Aziz, 2006). The European Union (EU) is Pakistan's largest trading partner, with textiles and clothing (T&C) accounting for almost two thirds of its sales to the union (EC's Delegation to Pakistan, 2004). As in many close relationships, however, the EU also is the cause of a lot of worry to its partner. One example was the imposition of a punitive import duty on Pakistani bed-linen in 2004, accusing exporters of dumping bed-linen below cost prices at the European market. It is believed by some that this move was actually in reaction to Pakistan's upgrading its commercial airfleet with USAmerican Boeings rather than with European Airbuses. This paper takes a closer look is taken at the anatomy of and prospects for trade relations between Pakistan and the EU, focusing on the Textile and Clothing (T&C) sector.1 Features of both partners that have the potential to promote or constrain T&C exports from Pakistan to the EU are sketched. The focus is on EU's trade-related policies policy regarding Pakistan and the structure of Pakistan's T&C industry. An overview over the resulting exports to the common market is provided and possible scenarios for the future of the contested relationship and their likely consequences in terms of industrial and overall development are outlined. Finally, measures that support a healthy trade partnership between Pakistan and the EU in T&C are described. Structural Features of Textile and Clothing (T&C) Trade Relationships depend on the partners' characters. Applied to T&C trade between Pakistan and the EU, these key attributes are the EU's trade policy and the structure and competitiveness of Pakistan's T&C industry. An influential step to bring Pakistan closer to the EU was the decision to provide dutyfree access for Pakistani clothing products to its market under the Generalised System of Preferences (GSP) in 2001. The stated reason for this measure was to reward Pakistan's efforts to combat drug production and trafficking (EC's Delegation to Pakistan, 2001). However, in 2004, the European Commission (EC) announced the simplification of its GSP scheme, waving goodbye to the special scheme to combat drug production and trafficking. It expired on 31 December 2005 (EC, 2004). Import duties of 12 percent were to be paid since January 2005. However, Pakistan's Ministry of Commerce courted heavily and as a result Pakistan receives 9.6 percent GSP rates of import duty for a number of product categories, including T&C sales, since January 2006. Yet, the reduction is not substantial and the situation of the Pakistani industry

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compares unfavourably with other countries in the region. Bangladesh, for example, obtains zero duty access to the European market due to its least developed country status. Sri Lanka equally does not pay import duties due to specific incentives for countries having ratified certain conventions on sustainable development and good governance. The EU's development policy is intended to flank its trade policy vis-Ă -vis developing countries. Support for trade-development linkages is one of the six core areas of the EU's development policy. This involves improved market access, removal of competitive constraints, enhanced cooperation in trade-linked areas, technology transfers, private sector development (European Council, no date). The EU intends to support reforms in developing countries' trade policies of that also serve gender equality (EC, 2001). This is an important point for the T&C industry which is Pakistan's largest formal employer of women in an environment with strong cultural constraints to women's participation in the paid labour market. As a practical consequence, the EU and Pakistan signed an agreement in February 2004 for traderelated technical assistance for Pakistan (EU, 2004). It involves measures to enhance the competitiveness of key sectors of the Pakistani economy, including T&C. While the GSP inclusion drew Pakistan closer to the EU, haggling over the alleged dumping of bed-linen on the community's market has greatly disturbed the trade relationship. The EU imposed an anti-dumping duty of 13.1 percent on bed-linen exports from Pakistan effective from March 2004, arguing that cheap imports from Pakistan were damaging the European textile industry.1 While review investigations about the basis of this claim are ongoing since January 2005, to the detriment of Pakistan's industry, no conclusions have been drawn so far. Apart from these bilateral issues, the global trade environment for T&C goods has a considerable impact on the trade relation between Pakistan and the EU. Globally, competition in T&C trade made a quantum leap in 2005. In January 2005, the Agreement on Textiles and Clothing (ATC) expired. An agreement under the World Trade Organisation (WTO), it was aimed at gradually phasing out the quota system that had governed trade in T&C for more than 30 years. Since January 2005, buyers and sellers of T&C products no longer rely on quotas in the main markets. Established trade relations can be abandoned for newcomers who offer the same or better quality at equal or lower price. This means that both price and quality competition amongst T&C producers increases. China's entry, especially, into the WTO in 2001 signalled that from then on a great number of T&C manufacturers across Asia, Latin America, and Africa would have to compete with one huge, cost-efficient producer. The rise in Chinese T&Cand other imports was anticipated in China's accession protocol to the WTO. The Textile Specific Safeguard Clause stipulated that other WTO members could implement protective measures in case of a sudden surge in Chinese imports crossing 7.5 percent annual import growth (WTO, 2001). That is what the EU resorted to after Chinese imports of nine product categories, including T-shirts, pullovers, blouses, stockings and socks, rose between 51 percent-534 percent between January and May 2005 (EC's delegation to China, 2005). The agreement the EU

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signed with China in June and amended in September 2005 constrains the rise in Chinese imports in sensitive product categories until the end of 2007 and provides breathing space to other trading partners like Pakistan (EC, 2005). An issue so far largely independent of official policies is the increased demand for social and environmental compliance in T&C production. Its labour-intensiveness of and its toll on the environment in terms of heavy use of water and energy as well as hazardous substances, such as dyes and bleaches, has catalysed consumer demand for â&#x20AC;&#x153;cleaner clothesâ&#x20AC;?2 in terms of the social and environmental conditions of their production (Banuri, 1998). It is passed on to retailers and buyers who increasingly demand social and environmental certification of T&C producers according to international or their own standards. Both the Government of Pakistan and industry have mostly rejected these demands as a new form of protectionism that is a burden for the industry's competitiveness. Research has shown, though, that it cannot only be expedient, but also profitable for exporters to comply with the increasingly complex demands of international clients (Khan and Haider, 2004). Turning to key features of the other trading partner, Pakistan's T&C industry is the country's most important industrial sector. It caters for 9 percent of gross domestic product (GDP), about 60 percent of the country's exports and employs 35 percent of industrial sector workers (Ministry of Finance, 2005b), about 30 percent of whom are female (Siegmann, forthcoming). Broadly, the Pakistani T&C sector has two very dissimilar faces. Historically, the focus of Pakistan's T&C sector has been on the early stages of processing, i.e. ginning, spinning, and weaving, due to the domestic availability of cotton. One in eight bales of the global cotton production is harvested in Pakistan. It is becoming the third largest cotton consumer world-wide (ICAC, 2006). For many years, Pakistani cotton and yarn exporters remained competitive due to the availability of subsidised cotton prices and very low labour costs for the hand-picked cotton. Their economic importance is paralleled by the political influence they exert. Pakistan's share of world trade in cotton yarn and cloth is about 30 and 8 percent, respectively (Ministry of Finance, 2004). However, during the past ten years the production and export of higher valueadded items such as made-ups and knitwear has picked up. In fiscal year (FY) 2004-5, bed-linen and hosiery alone accounted for 22 percent and 21 percent of Pakistan's exports to EU, respectively (EPB, 2006). During the past years, a major effort has been undertaken to modernise the textile sub-sector in particular. An impressive amount of US$5 billion has been invested in the T&C industry from 1999 to 2004. Almost half of the investment went into spinning, a fourth in weaving and a meagre 8 percent in made-up textiles (Ministry of Finance, 2005b). The woven and knit garment sectors represent the darker side of the industry. Whereas the textile sector is characterised by large units and high capital-intensity, clothing production takes places in smaller establishments, roughly 80 percent of them in the informal sector (USITC, 2004). Labour-intensity and the employment of women workers are high, standards regarding working conditions poorer than in the textile sector. Of the investment volume quoted above, it obtained less than 5 percent

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of the total (Ministry of Finance, 2005), i.e. about one-third of the investment targeted in the “Textile Vision 2005” (Ministry of Finance, 2003). The “Textile Vision 2005”, a strategy paper for the Pakistani T&C sector, developed as early as in 2000 by the Small & Medium Enterprise Development Authority (SMEDA), identified amongst other things the following weaknesses of the sector (SMEDA, 2000): a narrow export product base, with a focus on low value added yarns and fabrics rather than made-ups and garments, and a lack of focus on a trained workforce in high-value added industries, such as clothing. Increased attention for garments and made-up articles as well as improved quality throughout the textile chain was advocated as a response to these challenges. This implied technology upgrading at all stages of textile processing, human resources development, and improved marketing. These sound ideas have not been implemented so far. On the contrary, a lack of qualified workforce becomes apparent in both sub-sectors. Pak-EU T&C Trade As can be gauged from Figure 1, during the past ten years, Pakistani made-up and knitwear exports play an increasingly important role in T&C sales to the EU, whereas less processed cotton products, such as yarn and fabrics, fetch less and a declining share of export income from the EU. As indicated above, bed-linen is the most important component of made-up exports. Figure 1: Main Pakistani T&C exports to the EU by product category, 1995 -2004 (mio. EURO)

800 700 Cotton 600

Cotton yarn Cotton fabric

500

Man-made filaments

400

Man-made staple fibres

300

Knit apparel&clothing Woven apparel&clothing

200

Other made-ups 100 0 1995

1996

1997

1998

1999 2000

2001

2002

2003

2004

Source: Eurostat (no date), see Table A1 in the Annex

Pakistan's exports of bed-linen to the world market came a close second to China's (USITC, 2004). The EU's decision to grant Pakistani T&C products duty free access to its market under the GSP in 2001 triggered this surge in exports as visible in the steep increase in made-ups sales after 2001. The imposition of 12 percent import duties on Pakistani bed-linen together with the anti-dumping imposed in March 2004 led to reduction in its sales' growth, though, and catalysed the increase in China and Turkey's market share in the EU (Aziz, 2006).

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Figure 2: Main Pakistani T&C exports to the EU by product category, January -October 2005 (mio. EURO)

70 60 Cotton 50

Cotton yarn Cotton fabric

Man-made filaments Man-made staple fibres

Knit apparel&clothing Woven apparel&clothing

Other made-ups 10 0 Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Source: Eurostat (no date), see Table A2 in the Annex

According to Figure 2, the rise in international T&C trade after the expiry of the quota system in January 2005 has not provided a push to Pakistani exports to the EU. Official statistics show that, overall, exports have increased slightly after the quota expiry. T&C exports July to March 2004/5 were 2.1 percent higher than in the previous FY (Ministry of Finance, 2005b). Made up textiles sustained their strong growth performance despite the significantly higher costs the industry incurred in terms of anti-dumping duties in addition to the lapse of the previous GSP scheme. In the second half of the year, however, both woven and knit apparel sales display a downward trend. This trend is mirrored in a study recently conducted by the Sustainable Development Policy Institute (SDPI). It casts doubts on the sustainability of export growth. A majority of cotton, yarn, fabric, made-up, and woven as well as knit apparel exporters faced lower product prices after the quota expiry. Most companies exporting fabric and garments realised reduced profits.3 Several respondents explained that increasing sales are a strategy to deal with these reduced margins. The majority of Pakistani fabric, knitwear, and made-up textiles exports went to the EU both in FY2003/4 and 2004/5. The question thus remains for how long companies can survive these harsher business terms. More than one-third of the surveyed exporters (38.5 percent), especially those of garments and made-ups, are aware of manufacturers who have gone out of business. Contested Trade Relationship 'Carrots' from the EU in the form of trade preferences granted, catalysed export growth, which was slowed down by the 'stick' of anti-dumping duties. Given the strengthened position of competitors in the post-quota era combined with structural weaknesses in the Pakistani T&C sector, i.e. mainly the lack of investment in high value-added sub-sectors and in skill development, it is questionable how sustainable this development is. Depending on the industry, the government, and buyers' strategies, Pakistan's T&C industry will either specialise in yarn and cloth production and lose significant market

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shares in garments due to lack of competitiveness or it will climb up the value-added chain and further shift its export composition towards made-ups and, especially, garments (Siegmann, forthcoming). What would be the consequences of these scenarios? If Pakistan puts up with its role as a major yarn and cloth producer, and accepts that others do better and cheaper in garments manufacturing, this would imply high costs in terms of industrial and social development of the country. The garment sub-sector fetches higher value-added as compared to the textiles sub-sector. As clothing items have almost become 'perishable' goods in terms of their demand structure (Altaf, 2006), it also is the part of the global T&C market that grows more rapidly and thus provides prospects for expansion. As mentioned above, it also is labour- and female-intensive, and, thus, guarantees trickle down effects to a larger share of the population as well as a contribution to women's economic empowerment. A future trade scenario that accepts a shrinking role of this aspect of the trade relationship with the EU weakens the link between trade and Pakistan's industrial and overall development--a highly undesirable future industrial pathway. Alternatively, a setting that ensures that Pakistan does not lose its market shares in garment exports to the EU strengthens the trade-development bond. However, it requires a joint effort by the Government of Pakistan, the industry and its trading partner EU. Pakistan is far from its main market, which has increasingly become a factor determining the geography of global T&C production. The chunk of global clothing demand that is less dependant on proximity, namely high end clothing items, needs a talented workforce (Altaf, 2006). The main challenge, therefore, is to promote skill development at all levels of the industry. In the garment sector, this not only involves managerial and technical staff, but operators as well. Measures for a Healthy Trade Partnership3 For Pakistan, a paradigm shift is needed. So far, policies have implicitly and explicitly supported the marketing of Pakistan as a cheap rather than a skilled trade partner. Legislation has provided disincentives to unionisation, made the implementation of minimum wages flexible and supported labour market institutions in cotton cultivation that accepted cotton contamination by keeping cotton pickers wages low. Overall spending on schooling has been pathetically low in Pakistan. In the 2005/6 budget, this area accounted for a meagre 1.5 percent of public expenditures (Ministry of Finance, 2005a). The result is that less than a third of women and girls and not even half of all males have access to formal education (Federal Bureau of Statistics, 2004). Although the Government of Pakistan has set up training institutes to support its industrial engine, with few exceptions, they are dysfunctional due to lack of skilled faculty and adequate curricula. For an important sub-sector such as knit garment production, no training institute exists (Khan, 2005). Increased quality demands in an environment of harsher competition for market shares in the EU have to be translated into a more skilled and motivated workforce. As stated above, if the government faces these challenges it would not only increase the prospects for sustained exports from the garments sub-sector but also crucially

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contribute to Pakistan's overall industrial and human development. Apart from the direct provision of and support for skill development in technical, managerial skills, marketing and design, improvement of working conditions is therefore necessary. The government and employers need to implement existing labour laws, extend them to contract and informal sector workers, and to workers in export-processing zones, as well as sanction their violation. Apart from contributing to skill development, Pakistan should also join hands with the its industry in implementing measures that help mitigating structural change in the T&C sector. Job losses in unskilled categories are likely in either scenario. In particular, targeted social safety nets for workers who are dismissed should be set up. They may include counselling, skill upgrading, entrepreneurship programmes, access to loans etc. A special effort should be made to reach vulnerable female workers due to the significantly lower chances for alternative employment they face. While the Government of Pakistan, in particular, needs to do its homework, the EU can flank its efforts to sustain a healthy trade relationship for mutual benefit. The inclusion of Pakistan in the new GSP is a helpful step for guaranteeing Pakistan's access to the common market. However, more investment in the relationship is possible. The anti-dumping duty on bed-sheets is a major obstacle for Pakistan's most successful export item. It is time to withdraw the duty since, in two years, the claims of dumping could not be substantiated. Support for skill development can be part of development assistance for Pakistan, in terms of financial support but also through training of faculty, and help in curriculum development. As the implementation of labour standards will support investment in the skills of the workforce as well as labour productivity, the EU's assistance will be useful in this area as well. The EU can support the transition toward social and environmental compliance, a short-term investment, that brings long term benefit for industrial and overall; development. At the international level, the stance the EU, as one of its most influential members, takes in the WTO regarding a social clause, linking trade flows with minimum labour standards is important. Globally, sanctioning the ILO core conventions at the level of the WTO provides a more level playing field for competition, supports skill-based industrial development, and benefits millions of workers.

References l Altaf, Anjum (2006): The Textile and Clothing Industry in a Changing World. In: The News on Sunday, January 15, 2006. l Aziz, Sajid (2006): Pak bedwear rivals' exports soar in EU market. In: The News, January 28, 2006. Available at: http://www.jang.com.pk/thenews/jan2006-daily/28-012006/business/b3.htm (accessed February 14, 2006). l Banuri, Tariq (1998): Pakistan: Environmental Impact of Cotton Production and Trade. Paper prepared for UNEP project on Trade and Environment. Islamabad. l European Council (no date): The European Community's Development Policy Statement by the Council and the Commission. Brussels. Available at: http://europa.eu.int/comm/development/body/legislation/docs/council_statement.pdf (accessed February 14, 2006).

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l European Commission (2005): EU - China textile agreement 10 June 2005. Brussels.

Available at: http://europa.eu.int/comm/trade/issues/sectoral/industry/textile/memo100605_en.htm (accessed February 17, 2006). l EC (2004): Generalised System of Preferences. Press release July 7, 2004. Brussels. Available at: http://europa.eu.int/comm/trade/issues/global/gsp/pr070704_en.htm (accessed February 15, 2006). l EC (2001): Mitteilung der Kommission an den Rat und das Europäische Parlament Gleichstellung der Geschlechter als Querschnittsaufgabe für die Entwicklungszusammenarbeit der Gemeinschaft. Ein Aktionsprogramm. Dokument KOM (2001) 295 endg. Brussels. Available at: http://europa.eu.int/eurlex/de/com/cnc/2001/com2001_0295de01.pdf. l EC and Ministry of Commerce (MoC), The People's Republic of China (2005): Minutes of the consultations regarding the establishment of transitory flexibility measures on the Memorandum of Understanding between the European Commission and the Ministry of Commerce of the People's Republic of China on the export of certain textile and clothing products to the EU. Beijing. Available at: http://tradeinfo.cec.eu.int/doclib/html/124580.htm (accessed February 17, 2006). l European Commission's (EC's) delegation to China (2005): European Commission launches investigations into sharp surge in Chinese textiles imports. EU Press Release April 24, 2005. Brussels. Available at: http://www.delchn.cec.eu.int/en/whatsnew/pren240405.htm (accessed February 17, 2006). l EC's Delegation to Pakistan (2004): European Union-Pakistan trade relations. Available at: http://www.delpak.cec.eu.int/eupaktrade/New-EU-Pak-Trade-May-04.htm (accessed February 17, 2006). l EC's Delegation to Pakistan (2001): European Commission proposes comprehensive preferential trade package for Pakistan. Available at: http://www.delpak.cec.eu.int/WHATSNEW/press8.htm (accessed February 15, 2006). l European Union (EU) (2004): EU - Pakistan sign agreement for a EURO 6.5 million Traderelated Technical Assistance Programme. EU Press Release February 18, 2004. Brussels. Available at: http://www.delpak.cec.eu.int/eupakcoop/PR-ec0-coop-May-04.doc (accessed February 17, 2006). l Eurostat (no date): DS-016894 - EU Trade since 1995 by HS2-HS4. Brussels. Available at: http://fd.comext.eurostat.cec.eu.int/xtweb/ (accessed February 14, 2006). l Export Promotion Bureau (EPB) (2006): Export of textile items from Pakistan to EU countries. Karachi. l Federal Bureau of Statistics of the Government of Pakistan (2004): Labour Force Survey 2003-2004. Islamabad. Available at: http://www.statpak.gov.pk/depts/fbs/publications/lfs2003_04/lfs2003_2004.html (accessed February 17, 2006). l International Cotton Advisory Committee (ICAC) (2006): Cotton Prices Higher in January 2006. Available at: http://r0.unctad.org/infocomm/anglais/cotton/Doc/ICAC0206.pdf (accessed February 14, 2006). l Khan, Foqia Sadiq (2005): Human resource issues in textiles and clothing sector of Pakistan. Presentation at the 8th Sustainable Development Conference, Islamabad, December 7-9, 2005. l Khan, Shaheen Rafi and Haider, Sadia (2004): Regional initiatives (institutional, human, organizational) required to implement the Agreements on Technical Barriers to Trade (TBT), and on the application of Sanitary and Phytosanitary Measures (SPS) and their provisions. SDPI Working Paper. Islamabad. l Ministry of Finance of the Government of Pakistan (2005b): Economic Survey 2004-05. Islamabad. Available at: http://www.finance.gov.pk/survey/home.htm (accessed February

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15, 2006). l Ministry of Finance of the Government of Pakistan (2005a): Budget in Brief 2005-06.

Islamabad. Available at: http://www.finance.gov.pk/budget/budgetInBrief.pdf (accessed February 15, 2006). l Ministry of Finance of the Government of Pakistan (2004): Economic Survey 2003-04. Islamabad. l Ministry of Finance of the Government of Pakistan (2003): Economic Survey 2002-03. Islamabad. l Siegmann, Karin Astrid (forthcoming): The Agreement on Textiles and Clothing: Potential effects on gendered employment in Pakistan. Forthcoming in: International Labour Review. l Small & Medium Enterprise Development Authority (SMEDA) (2000): Textile Vision 2005. Summary Report. Lahore. l SDPI and United Nations Trade Initiatives from Human Development Perspective (UNTIHP (UN-TIHP) (2005): Report from the SDPI-UN-TIHP panel “South Asian textile trade in the post-quota era: Human development implications of the Agreement on Textiles and Clothing” at the 8th Sustainable Development Conference, December 7-9, 2005, Islamabad. Available at: http://www.sdpi.org/whats_new/sdpi_tihp/atc_workshop_report.htm (accessed February 17, 2006). l United States International Trade Commission (USITC) (2004): Textiles and Apparel: Assessment of the Competitiveness of Certain Foreign Suppliers to the U.S. Market. Available at: http://hotdocs.usitc.gov/pub3671/pub3671.pdf (accessed February 15, 2006). l World Trade Organisation (WTO) (2001): WTO successfully concludes negotiations on China's entry. WTO Press Release September 17, 2001. Available at: http://www.wto.org/english/news_e/pres01_e/pr243_e.htm (accessed February 17, 2006). End Notes 1. Previously, dumping-related duties were imposed by the EU on Pakistani bed-linen from 1997-2002. 2. The largest European consumer organisation lobbying for better working conditions in the global T&C industry is the “Clean Clothes Campaign”. 3. Given the respondents' hesitance to report profit data (29 percent missing answers), it is likely that the survey data carry a positive bias with valid profit averages being overly optimistic. 4. The suggestions are partially based on the proceedings of a regional workshop “What comes after the quota went? Human development effects of the ATC expiry?” organised by SDPI and the UN Trade Initiatives from a Human Development Perspective (UN-TIHP) that took place in Islamabad from November 21-22, 2005. Representatives from the T&C industry, government, trade unions, donors, and academia participated (SDPI-UN-TIHP, 2005).

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Appendix Tables Table A1: Main Pakistani T&C exports to the EU by product category, 1995 -2004 (mio. EURO) 1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

Cotton

31.78 52.51 35.79 37.73 25.99 62.86 50.10 37.68 24.75 27.85

Cotton yarn

44.07 52.13 48.74 46.10 27.59 44.47 37.01 49.64 55.54 53.66

2006 Elections and India's Ruling Coalition

Cotton fabric

113.09 127.76 135.79 136.89 121.74 128.15 152.65 144.42 156.41 185.05

Paranjoy Guha Thakurta

Man-made filaments 67.73 49.64 66.84 73.24 45.43 42.97 44.03 36.81 31.00 30.04 Man-made staple fibres

190.91 237.09 266.92 268.43 213.65 263.45 269.57 230.10 215.32 237.78

Knit apparel&clothing

208.19 210.12 228.30 227.90 246.14 253.48 253.31 288.50 341.26 439.80

Woven apparel&clothing

226.23 229.88 251.52 264.49 276.41 341.16 392.20 449.04 459.65 465.98

Other made-ups

257.52 288.76 344.93 370.96 454.74 476.05 500.74 622.72 663.59 734.35

Source: Eurostat (no date)

Table A2: Main Pakistani T&C exports to the EU by product category, January -October 2005 (mio. EURO) Jan

Feb

Mar

Apr

May

Jun

Jul

Aug

Sep

Oct

Cotton

2.76

2.50

2.89

2.97

3.12

2.45

2.62

1.33

2.58

1.45

Cotton yarn

5.02

5.24

6.30

4.75

5.05

4.81

4.33

3.49

5.18

4.33

Cotton fabric

10.97 18.71 20.04 16.08 18.01 16.01 17.78 12.27 20.27 16.79

Man-made filaments

1.83

Man-made staple fibres

20.85 14.74 19.42 18.63 18.06 13.73 14.85 11.61 16.97 14.08

Knit apparel&clothing

21.44 23.26 28.48 21.99 23.81 23.62 35.19 31.85 33.34 25.25

Woven apparel&cloth.

41.84 35.04 38.17 36.85 34.19 35.13 41.69 39.94 44.76 33.95

Other made-ups

38.36 38.77 50.35 48.51 50.02 48.52 53.27 51.57 58.01 53.02

Source: Eurostat (no date)

1.74

1.90

1.77

3.03

2.55

1.83

1.61

2.26

2.46

In the current era of coalition politics in India, the influence of political developments in states or provinces on the central or federal government is not just inevitable but more often than not, quite significant. The elections to four state assemblies Assam, West Bengal, Tamil Nadu and Kerala and the Union territory of Pondicherry, that took place in April and May 2006, the results of which were announced on May 11, too has had an important bearing on politics in New Delhi. The Congress, which leads the United Progressive Alliance (UPA) coalition government, has certainly not become stronger in fact, it has become weaker. This is despite the fact that the party has managed to remain in power in the north-eastern state of Assam, albeit with the support of coalition partners. The Dravida Munnetra Kazhagam (DMK) has been able to come to power in Tamil Nadu in south India but, for the first time in the history of the state, the ruling party is in a minority and has been able to form the government only with the support of its coalition partners, including the Congress. The fact that the Left has become more powerful by getting re-elected in the eastern Indian state of West Bengal and by forming the government in Kerala in the south means that the four Left parties led by the Communist Party of India-Marxist (CPI-M), that are providing crucial “outside” support to the UPA government with its 61 members of Parliament, would now be able to exert greater pressure on the Manmohan Singh government, especially on economic policy issues. The principal opposition party in India at present, the Bharatiya Janata Party (BJP) has been and remains politically insignificant in these states. Assam Assam is by far the most populous of the seven states, or “seven sisters” of the northeastern part of India which is separated from the rest of the country by a narrow “chicken's neck” in West Bengal. But more than the geographical separation, the people of north-east India have for long felt alienated from the country's mainstream. Questions relating to sub-nationalism and regional identity, illegal immigration and violent separatist movements have dominated the political discourse surrounding Assam for more than half a century. Till December 1985, nine out of the ten individuals who served as Chief Ministers of Assam belonged to the Congress party; the exception was Golap Chandra Borbora of the Janata Party who was Chief Minister between March 1978 and September 1979. From the late 1970s, a series of agitations against the state government as well as the Union government spearheaded by the All Assam Students' Union (AASU) paralysed

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the working of Assam for long periods. President's rule was imposed in the state on no less than three occasions in December 1979, June 1981 and March 1982. In the 1980 general elections, polls were not conducted in 12 out of the 14 Lok Sabha constituencies in the state the Lok Sabha is India's lower house of Parliament. In December 1985, nearly one year after the 1984 general elections had taken place, the voters of Assam exercised their franchise. Again in 1989, the Lok Sabha elections did not take place in Assam. Until recently, many political observers believed that national parties like the Congress and BJP had lost most of their influence in Assam. The 13th general elections (September-October 1999) and the 14th general elections (April-May 2004), however, proved such a perception wrong. Not only did the electoral fortunes of the Congress revive, the BJP too performed better than it ever had in the state. The outcome of the 12th and the 13th general elections had delivered rude shocks to the former student leaders of AASU who had gone on to form the Asom Gana Parishad (AGP) after the 1985 accord with the Rajiv Gandhi government in New Delhi and had come to power in the state. During both the 1998 and 1999 elections, the AGP could not win a single Lok Sabha seat in Assam. The Congress, as already mentioned, had played a dominant role in the state. It was only in the 1985 Lok Sabha elections in Assam that the vote share of the Congress dipped below the 45 percent mark. Between 1985 and 1991, the share of the Congress in the total votes polled in the state went up from below 24 percent to over 28 percent in both the Lok Sabha and assembly elections. Thus, the improved performance of the Congress in the next three general elections was not entirely surprising. In the 2006 assembly elections, however, the political calculations of the Congress went quite awry. The number of seats held by the Congress in the assembly came down from 71 to 53 and its vote share shrunk by nearly 8.5 percent. The party was able to form the government by cobbling up a majority with the support of 12 members belonging to the Bodoland People's Progressive Front (Hargrama faction) or the BPPF(H) and independent members of the legislative assembly (MLAs), including Congress rebels. In a sense, the Congress was saved from an embarrassing exit from power only because of the internal conflict within the AGP. The official AGP, now led by Brindaban Goswami went along with the Left, and won 24 seats, while the AGP (Progressive) headed by former Chief Minister Prafulla Kumar Mahanta was all but wiped out with Mahanta only managing to win one out of the two seats he contested. By the time the Assam accord was thrashed out in 1985, large sections of people in the state had become completely disillusioned with the Congress. Two years earlier, in 1983, following an all-party meeting convened when Rajiv Gandhi was Prime Minister, Parliament had passed the Illegal Migrants (Determination by Tribunal) Act or the IMDT Act. The accord was aimed at disenfranchising illegal immigrants who had settled in Assam in the period between 1965 and1971, the year in which Bangladesh became an independent nation-state. After the erstwhile AASU leaders formed the AGP, which came to power in 1985, many in Assam believed the accord would be fully implemented. The AGP was also expected to try and resolve the problems of unemployment and lack of industrial

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development in the state, issues which the party's leaders had themselves raised as student leaders. It did not take very long for the realisation to sink in that the process of detecting and deporting illegal immigrants was easier said than done. The biggest “constraint” of the IMDT Act was that the onus of proving that a person was a foreigner rested with those who made the complaint. Much to the dissatisfaction of the AGP, the party's leaders realised that the state government as well as its supporters would at best be able to identify a few hundred thousand “illegal immigrants” and that it would be next to impossible to deport even these individuals to Bangladesh. Not only was the AGP government unable to tackle the issue of “foreigners” effectively, the party's leaders proved to be as inefficient, corrupt and fractious as those belonging to the Congress. Far from setting up employment generation schemes, the erstwhile students' leaders fell out with one another, the most significant being the parting of ways between Mahanta and his one-time associate-turned-bitter-rival, the late Bhrigu Kumar Phukan. As the AGP weakened, the Congress was able to return to power in the May-June 1991 elections winning 66 out of the 126 seats in the state assembly. In the same election, the AGP's vote share nearly halved from 35 percent in 1985 to under 18 percent in 1991; the number of the party's MLAs shrank from 65 to 19. Unhappy with the AGP's poor track record in power, sections within the party started breaking off and one radical group formed the United Liberation Front of Asom (ULFA), which proclaimed the need for a violent secessionist movement. The ULFA, which claims that the only way the problems of Assam could be resolved was if the state ceded from the Indian Union, remains active in large tracts in the state and some of its leaders are reportedly operating out of Bangaldesh. With the Supreme Court of India repealing the controversial IMDT Act in September 2005 (which now under appeal before a larger bench of the court), the Manmohan Singh government moved quickly to amend the Foreigners Act to ensure that the Muslim community in Assam would not be completely alienated. The move evidently worked, although the Muslims in the state did vote tactically in certain areas. A new political outfit called the Assam United Democratic Front (AUDF), comprising Muslim organizations and led by the wealthy businessman Badruddin Ajmal, made its presence felt for the first time by winning 10 seats in the assembly. At one stage it had appeared as if Ajmal and the AUDF would play king-maker in Assam, but incumbent Chief Minister Tarun Gogoi did not need their support and instead went along with the BPPF(H). Nevertheless, the significance of the AUDF making its presence felt in Assam's political scenario may be gauged from the fact that it won 10 seats out of the 69 it had content whereas the BJP won the same number of seats in the state assembly after contesting no less than 125 seats or all but one. West Bengal Many individuals who are not familiar with West Bengal have wondered what makes this state in eastern India unique among the 28 states in the country. Why has the electorate here voted a Communist government to power seven times in a row since

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1977 some sort of a world record? The political opponents of the Left Front, a coalition of seven political parties led by the Communist Party of India-Marxist (or CPI-M), used to claim that the supporters of the ruling regime in the state would “rig” elections through strong-arm tactics and intimidation of voters. It was further argued that over the years, the Left had won elections because its sympathizers control the local administration as well as the police force. This time round, however, such claims are not being made with the usual vociferousness because the Election Commission of India had pulled out all stops to ensure that elections were conducted in a free and fair manner. In fact, for the first time, elections in the state were conducted over five days. The Communists and their supporters had always claimed that they could not have manipulated the outcome of the polls simply because the votes that have been cast against the Left during seven successive assembly elections have accounted for close to half of the total valid votes polled. In the current round of elections, the vote share of the Left Front went up only marginally from 49.4 percent in 2001 to 50.2 percent. However, given the way the first-past-the-post, winner-takes-all electoral system works, the number of seats held by the Left in the 294-member West Bengal assembly went up impressively by 36 from 199 to 235. More importantly, the anti-Left vote was splintered. Five years ago, the Trinamool Congress led by Mamata Banerjee had ditched the BJP and the National Democratic Alliance (NDA) on the flimsy excuse that former Defence Minister George Fernandes had not quit the government after the Tehelka episode. The Trinamool cobbled up an alliance with its parent, the Congress, and the combine obtained 39.3 percent of the total votes cast in West Bengal. The Trinamool ended up with 60 seats in the assembly and the Congress with 26 (plus three independent candidates supported by it). This year, the Trinamool stuck with the BJP -- which does not have much of a support base in the state ending up with 28.9 percent of the vote and 29 assembly seats; the Congress won 21 seats with two independent legislators supporting it. Interestingly, the Trinamool managed to retain much of the its support base in Kolkata the Left hardly increased its vote share in the city (from 42.3 percent to 42.5 percent) but won nine instead of eight seats. It, therefore, became clear that although sections of the urban upper and middle classes have apparently moved towards the CPI-M remember that during the 2004 Lok Sabha elections, for the first time, only one anti-Left candidate won and she was Mamata herself from south Kolkata residents of urban areas in the state, especially Kolkata, by and large remain opposed to the Communists. To return to the substantive question: Why have the strong anti-incumbency sentiments that have prevailed in all states in India been conspicuous by their absence in West Bengal? Those who support the Left Front argue that this is largely on account of the quality of governance of the state government, its land reforms programme and “Operation Barga” a scheme to provide more rights to tillers of land that were initiated through the 1980s. The weakness of the Opposition had made life that much simpler for the Left far from matching its organizational strength, both the

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Trinamool and the Congress cannot even find enough supporters to act as election agents in all the polling booths in the state. What has undoubtedly helped the Left is the image of Buddhadeb Bhattacharjee (who became chief minister of the state in November 2000), who is often compared to Deng Xiaoping. Bhattacharjee, 63, who took over the reins of the state from former chief minister Jyoti Basu, now nearly 93, is not afraid of welcoming foreign and multinational inverstors to the state and has stated time and again that it is not possible to establish socialism in one province in a capitalist country. Basu too had an image of being a “pragmatic” Communist who has the distinction of having been India's longest serving chief minister for nearly 25 years. This election, in order to counter anti-incumbency sentiments, the Left inducted over 100 relatively young candidates into the electoral fray and dropped older representatives, including over a dozen ministers in the state government. Whereas the base of the Communists in West Bengal had been largely rural and among those who benefited the most from the Left Front government's rural development schemes, the chain-smoking Bhattacharjee has focused much of his government's attention on the renewal of Kolkata, the state's capital that used to also serve as India's capital till the first decade of the 20th century. The city that had become notoriously decrepit has recently been improved with a second bridge over the River Hooghly, an underground railway, besides new flyovers and multi-storied buildings. Opponents of the Communists contend that the Left too has been opportunistic in its political strategy. In New Delhi, the ruling Manmohan Singh government is dependent on the support of 61 MPs belonging to four Left parties for its survival in power. In West Bengal, on the other hand, the Communists and the Congress are arch political opponents. The CPI-M claims there is no contradiction in its position because it is supporting the Congress-led UPA coalition for the specific purpose of keeping communal forces represented by the BJP out of power. At the same time, the Left remains staunchly opposed to many of the economic policies of the Congress which it believes are no different from those followed by the BJP. The West Bengal government has realized that it cannot continue to accuse the Union government of having neglected the state for decades by, among other things, initiating a policy of “freight equalization” of coal and steel prices that robbed the eastern region of many of its locational advantages. Once a centre of steel making and heavy industry, many large factories in the state have shut down throwing hundreds of thousands of workers out of their jobs. Now the state wants to jump on to the information technology bandwagon. During his media conference on May 11 after the outcome of the elections became known, Bhattacharjee was beaming when he announced that the Tata group would be setting a car manufacturing plant in the state. What cannot be denied is that West Bengal has a long way to go before it can alleviate the acute problems of poverty and unemployment that persist in certain pockets in the state, in districts like Purulia, Bankura and Medinipur. The proportion of the state's

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population living below the poverty line is said to have come down from over half three decades to just over a quarter at present or close to the national average. The state also faces problems of separatism in its northern district of Cooch Behar and infiltration from Bangladesh is a major political issue in districts like Malda, Murshidabad, Nadia and North 24-Parganas bordering Bangladesh. The undivided province of Bengal was partitioned twice, first by the British colonial government in 1905 and then in 1947 when India became politically independent and East Pakistan was created. On the second occasion, the state witnessed the influx of large numbers of refugees. In 1971, after East Pakistan ceased to exist and instead became the independent nation of Bangladesh, there was another round of influx of refugees into West Bengal. That the ravaged economy of the state has witnessed a revival in recent years has certain helped the Left Front retain power. The splintered opposition was the icing on the cake. Kerala A key difference between Kerala and the other two states in which the Left is a major political force in India (namely, West Bengal and Tripura) is the fact that the Left Front in Kerala includes parties that do not subscribe to a leftist ideology, which is why it is called the Left Democratic Front (LDF), rather than merely the Left Front. It is also a fact worth noting that neither West Bengal nor Kerala or Tripura has ever had a single-party government since the Left first came to power in each of these three states. In Kerala, this has meant that the state has not had a single-party government since 1957, when the E M S Namboodiripad government became the first elected communist government in the world.

most prosperous Indian states. The fact that the Left has repeatedly lost and regained power in Kerala has not undone the radical measures it has taken while in office. Land reforms, which ensured the abolishing of landlordism and the distribution of small land holdings to millions of agricultural labourers who were till that stage landless are arguably major factors in Kerala having significantly better social indicators than any other Indian state. The land reforms and the universal nature of the PDS also go some distance towards explaining the fact that Kerala has significantly lower poverty ratios than many other states with much higher per capita incomes, despite the fact that industry is relatively underdeveloped in the state. In recent years, the Left in Kerala has also been at the forefront of initiating genuine decentralisation of the planning process down to the level of the village panchayatn or local body. Again, as with earlier radical measures taken by the Left in the state, decentralisation has proved irreversible even after the Left lost power in the state assembly elections in 2001. Unlike in many parts of India, the political battle in Kerala between the LDF and the Congress-led United Democratic Front (UDF) has been very closely fought. A difference in vote share of two percentage points has made the difference between victory and defeat for one or the other of the two political formations. Many state assembly constituencies in Kerala have been often won or lost by a few hundred votes. Since anti-incumbency sentiments have always been rather strong in Kerala politics, few were surprised by the victory of the LDF in the 2006 assembly elections. All the opinion polls and exit polls had unanimously predicted defeat for the incumbent UDF government that had been headed first by A K Antony and then by Oomen Chandy. The Congress was weakened by the decision of the former Chief Minister K Karunakaran to break away from the parent party and form his own political outfit. In the case of the Congress and the UDF, their chief ministerial candidate was clearly Chandy. The Left, however, dilly-dallied on this issue by first stating that CPI-M veteran V S Achyutanandan, or 'VS' as he is popularly known, would not be standing for elections and then announcing that he would in fact be contesting the polls.

The Namboodiripad governments of 1957 and 1967 initiated radical land reforms of the sort never seen anywhere in India before, except in Jammu & Kashmir under the National Conference. These governments were also responsible for setting up what remains, to date, the only universal Public Distribution System (PDS) in the country. It is important to explain the significance of this move. The responsibility for running the PDS in India is shared jointly by the Union and state governments. While New Delhi is responsible for centralised procurement for the PDS and for passing on the grain, sugar, etc. procured or obtained through levies to the states, the states bear the responsibility of actually distributing material under the PDS to the populace. As a result, the actual coverage of the PDS varies widely across states. Kerala has the distinction of being the only state with a PDS that reaches every resident of the state. Also, Kerala's PDS distributes through its chain of fair price shops several itemslike soap, detergent, etc.that are not part of the centrally determined list of items to be made available under the PDS.

The media in the state emphasized the divisions in the ranks of the CPI-M. Before it was known that that VS would be in the electoral fray, it seemed evident that the chief ministerial candidate of the LDF would be Pinaryi Vijayan, state secretary of the CPIM. As a matter of fact, the two were supposed to be leading two distinct factions within the party: Vijayan was described as a leader of the “moderate” group in the CPI-M (in the mould of West Bengal Chief Minister Buddhadeb Bhattacharjee) whereas Achyutanandan was perceived as a “hardliner” who was firmly rooted in the trade union movement in the state.

Kerala's record in health care too is remarkable in comparison to other states in India. The Human Development Report 2003 of the United Nations Development Programme (UNDP) had written: “The state of Kerala, India, has health indicators similar to those of the United Statesdespite a per capita income 99 percent lower and annual spending on health of just $28 a person.” By any yardstick, this is a considerable achievement, particularly considering that Kerala is not even among the

Whatever be the differences within the CPI-M in Kerala, real or perceived, these did not clearly prevent the LDF from defeating the UDF in the state. In fact, the Left won by what was certainly a huge margin by Kerala standards. The LDF increased its vote share by 5.65 percent, winning 98 seats or 59 more than in 2001 when it won just 39 seats. On the other hand, the UDF suffered major setbacks with seven of the cabinet ministers in the Oomen Chandy government losing. A key ally of the Congress in the

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UDF, the Indian Muslim League, too suffered major political losses with two-thirds of its candidates losing the elections, including candidates who stood from constituencies in the Malabar area that was considered the party's stronghold. The strength of the Indian Muslim League in the assembly came down from 16 to seven. As for the Congress, the main constituent of the UDF, it contested 77 seats but won only 24 against 62 in 2001. Tamil Nadu Tamil Nadu can lay claim to at least one unique feature in Indian politics -- it is the only state in which no national party has ever been in power for nearly four decades, to be precise, since 1967. Nothing can illustrate the lasting impact of the 'Dravidian' movement in the state better than this simple fact. Yet, ironically, each of the several pillars on which that movement was built has been dismantled by parties that are offshoots of that very same Dravidian movement. The pillars of the movement were anti-Brahminism, an antipathy to the north of India and its predominant language, Hindi, atheism, rationalismnone of these is in evidence today in the inheritors of the Dravidian movement, so much so that J Jayalalithaa, former Chief Minister and head of the All India Anna Dravida Munnetra Kazhagam (AIADMK) is herself an uppercase Brahmin. Also, her government had been one jump ahead of even the BJP in pushing through a law ostensibly aimed at checking forcible religious conversions. As for the hostility to the north, both the DMK and the AIADMK have, since 1998, had alliances with the BJP, a party that was till a few years back almost entirely confined to north India and was seen as the most ardent champion of a unitary nation in which the hegemony of Hindus and Hindi was taken as an evident truth. Tamil Nadu today has more political parties represented in the Lok Sabha than any other Indian state. The 39 MPs that the state sends to the Lok Sabha belong to as many as eight political parties. (West Bengal had at one stage representatives of seven parties in the Lok Sabha.) In the 1998 elections, there were nine parties representing these 39 Lok Sabha constituencies in Tamil Nadu. Despite this proliferation of parties, the state has not had a coalition government since its inception, that is, until 2006. Even when alliances have won assembly elections, it has invariably been the case that the leading party in the winning alliance has secured a majority of the assembly seats on its own, enabling it to form a government without having to accommodate the junior partners. Till as late as 1998, the only national parties with any presence in Tamil Nadu were the Congress, the Communist Party of India (CPI) and the CPI(M). The BJP had not won even a state assembly seat, let alone a Lok Sabha constituency in the state. Even the three national parties that did have a presence in the state were in no position to contest on their own and had to align themselves to one of the two main Dravidian parties -- the DMK or the AIADMK -- to be able to make any headway in terms of winning seats in either the assembly or the Lok Sabha. In 1998, Jayalalithaa surprised everybody by tying up with the BJP for the Lok Sabha elections. Political pundits, opinion polls and exit polls all suggested that the experiment would be a failure. The results proved all of them completely wrong, with the AIADMK-led alliance winning 36 of the 39 seats in the state.

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Besides the AIADMK and the BJP, the coalition included a clutch of smaller partiesmany of which had come into being only in the 1990slike the Marumalarchi Dravida Munnetra Kazhagam (MDMK), the Pattali Makkal Katchi (PMK), the Tamizhaga Rajiv Congress (TRC) and the Janata Party. Though the BJP managed to register its presence in India's southern-most state after the 1998 general elections, it was hard put hard put to win a single seat on its own strength in the state in the 2006 assembly elections against four seats five years earlier. The reasons for the dominance of the AIADMK and the DMK in Tamil Nadu politics since 1967 lie in a socio-political movement whose origins can be traced back to the Justice Party formed in 1916 in what was then the Madras Presidency of the British Raj. The Justice Party was formed by P Thyagarayar as a platform for the area's nonBrahmin social elite. In the first general elections in British India held in 1920, the Justice Party won a landslide victory in the Madras Presidency, bagging 63 of the 98 seats. It remained in power in the provincial government for the next 17 years, advocating â&#x20AC;&#x153;social justice and equalityâ&#x20AC;? for all segments of society. E V Ramaswamy Naicker (EVR), who was a member of the Indian National Congress, found himself agreeing with the ideology of the Justice Party. He joined the party and started the Non-Brahmin Self-Respect Movement in 1925. In 1944, by which time Naicker was the leader of the party, he renamed the party the Dravida Kazhagam (the Dravidian Federation) and demanded the establishment of an independent state called Dravidasthan. The Dravidian movement had thus begun. Tamil Nadu has 234 Assembly seats. In 2001, the Congress won seven of the 14 it contested but benefited when the Tamil Maanila Congress (TMC) merged with it. The TMC had won 23 of the 32 seats it contested. The AIADMK swept to power winning 132 of the 141 seats it contested, while the DMK led by Muthuvel Karunanidhi won only 31 of the 183 seats it contested. The Marumalarchi Dravida Munnetra Kazhagam (MDMK), led by rebel DMK leader V Gopalasami, also called Vaiko, failed to win a single seat though the party contested in 211 seats. In the May 2004 Lok Sabha elections, the DMK-Congress alliance had thrashed the AIADMK alliance by winning all the 40 Lok Sabha seats in the state as well as in the Pondicherry. Unlike the Left that those to support the UPA government in New Delhi from outside, the DMK became a significant partner of the Congress in the UPA. This shock woke Jayalalithaa up. In the months that followed, the former Tamil Nadu Chief Minister unleashed a series of programmes aimed at wooing the poor and very poor. She offered free books to any student, girl or boy, up to Class 12. She also offered Rs 500 to every woman who reported pregnant at the local government hospital. If the woman delivered a child, she got an additional Rs 5,000. This was aimed at trying to end the practice of female feoticide in Tamil Nadu. With a slew of other schemes, Jayalalithaa ensured that every poor family got at least one monetary offering a month. And in the first week of March, she managed to break the DMK-led alliance when she got Vaiko to her side. This was the same Vaiko whom Jayalalithaa had kept in prison under the Terrorist and Disruptive Activities Act (TADA) for 29 months because Vaiko

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was said to have spoken to Tamil activists from Sri Lanka who belong to the Liberation Tigers of Tamil Eelam (LTTE). The state government had also been complimented for its efforts during the relief and rehabilitation the victims of the tsunami. Despite the AIADMK's attempts to match the DMK in announcing populist schemes, such as providing rice at Rs 2 a kilogramme and free television sets, Jayalalitha and her party lost the polls. She had tried very hard to change her image she was seen as a haughty and arrogant leader. After dismissing many striking state government employees, she agreed to reinstate them. None of these moves eventually helped her in the April-May 2006 assembly elections. The DMK emerged as the single largest party in Tamil Nadu after polling 26.45 percent of the votes and winning 96 seats. Its biggest ally Congress won 34 seats, a huge improvement from 2001 when the party won only 7. The alliance obtained 44.73 percent of the votes, around 4.7 percent more than its opposing coalition. Tamil Nadu politics has been influenced greatly by its film personalities. Jayalalithaa and her political mentor, M G Ramachandran, were both actors while current Chief Minister Karunanidhi used to be a prolific scriptwriter. In 2006 too, a recently formed political outfit headed by a film personality, Vijayakant, who leads the Desiya Murpokku Dravida Kazhagam (DMDK), played the role of spoiler by fielding candidates in as many as 206 out of the 234 seats in the assembly; the party's candidates were placed in the third position in many constituencies and indirectly worked towards the defeat of AIADMK candidates. In fact, the DMDK polled 8.38 percent of the total votes polled in the state, which was almost equal to the vote share of the Congress and four times more than the vote share of the BJP (2.02 percent). Another newly floated party that entered the electoral fray for the first time was the Lok Paritrana party that was led by former and current students of the Indian Institute of Technology at Chennai (formerly Madras, the capital of Tamil Nadu). This party sought to make a point that educated individuals should enter politics. However, the best a candidate of the party could do was to be placed in the third position in the posh Anna Nagar constituency in Chennai. An interesting fallout of the 2006 assembly elections in Tamil Nadu has been that the Congress and the DMK have more dependent on each other. As already mentioned, the DMK is for the first time heading a coalition government in the state with the Congress as one of its partners, while the DMK would continue as an important constituent of the UPA government in New Delhi this is some consolation for India's grand old party that has become weaker in the three other state where assembly elections took place, namely, Kerala, West Bengal and Assam. Pondicherry In this former French colony which is a small Union territory in south India with an elected assembly, the Congress has been plagued by infighting and factionalism. In 2006, the party high command decided to take a tough stand against dissidents, some of whom had broken away from the Congress and entered into an alliance with

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AIADMK to take on the N Rangaswamy led the Democratic Progressive Alliance (DPA) coalition led by the Congress and comprising the DMK, the PMK and the CPI. In 2001, the Congress had won 13 seats and the DMK, twelve; the two formed the ruling coalition. In 2006, the DPA coalition won 20 out of the 30 seats it contested (against 25 in 2001) with the Congress winning 10 out of the 16 seats where it fielded its candidates. The DMK won seven seats, the PMK two and the CPI one. The AIADMK front won only seven seats, including three by the AIADMK. Four rebel Congressmen won, including one who stood as an independent candidate. If the Congress had remained united, it would have won 14 seats instead of ten; the party may then have been able to form a government on its own with the support of two extra members of the assembly instead of leading a coalition government. The Fallout in New Delhi The results of the 2006 assembly elections clearly indicate that with the Left parties having become more powerful, this group would attempt to exert greater influence on the Congress party as well as the UPA government headed by Manmohan Singh, especially on issues concerning India's economic policies and foreign policies. After the government announced on June 5 that it had decided to increase the price of petrol by Rs 4 a litre and diesel by Rs 2 a litre, the Left parties were up in arms. Communist leaders announced that they would participate in street demonstrations protesting the decision that would fuel inflationary fires thereby curtailing the real incomes of ordinary citizens. Union Minister for Petroleum and Natural Gas Murli Deora justified the price hike by pointing out how international prices of crude oil had doubled over the two years the UPA government had been in power in New Delhi. India currently imports three-fourths of its requirements of crude oil. Deora emphasized that most of the burden of more expensive oil imports had not been passed on to the consumer. If prices had not been increased, the finances of India's publicly owned oil refining and marketing companies would have gone deep into the red. He added that the government had not hiked the prices of subsidized kerosene and cooking gas. The Communists were not impressed by these arguments. They argued that the government should have cut taxes instead of increasing prices. The prices of motor spirit and diesel in India are relatively high because roughly half the consumer price is accounted for various kinds of taxes and levies including taxes on imports (customs duties), manufacturing (excise duties) and retailing (sales tax). In neighbouring Pakistan, for instance, petrol sells at around one-third the price it does in India. Although a section of the ruling Congress party is in agreement with the Left on the impact of the hike in the prices of petroleum products, this group has no option but to the support the government's unpopular move. At the same time, this section realizes that the government's allies in the Left are appropriating the space of the political opposition. India's leading opposition party, the right-wing, Hindu nationalist BJP is currently in the throes of an internal power struggle and is preoccupied with the fallout of the murder of one of its important political leaders, Pramod Mahajan, by his younger brother. Though the BJP too has opposed the decision to increase petrol and

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diesel prices, it has not been able to attract the kind of attention the protests of the Left has. The ability of the Communist parties to influence the thrust and tenor of the government's economic policies has increased of late after the Left became more powerful by winning provincial elections in West Bengal and Kerala. Without the support of 61 members of Parliament belonging to the four Left parties, the UPA government would fail to muster a majority in the Lok Sabha. The Left is supporting the UPA government from “outside” on the basis of a common minimum programme (CMP) that was thrashed out in May 2004. Whereas the Communists support many of the government's economic policies, the Left also argues that the UPA has not been sincere about implementing particular programmes outlined in the CMP. The Communists claim there is little to distinguish between the economic policies of the Congress-led UPA regime and those followed by the previous NDA government that was headed by the BJP. They contend that the two largest political parties in India both believe in the virtues of market-friendly policies of economic liberalization, privatization and globalization. Many of these policies are bitterly opposed by the Left. The Communists say these policies have not alleviated the economic conditions of the underprivileged, but sharpened inequalities and exacerbated regional imbalances. (The Left has extended support to the UPA government as it considers the BJP to be “communal” and against the minority Muslim community.) Spokespersons of the Congress say the party believes in the ideals of socialism that are enshrined in India's Constitution although it simultaneously believes that private enterprises have to play a bigger role in the economy. Many in the Congress believe that India, like China, should be attracting more foreign investment than it has in the past. Whereas the Communists has often been publicly critical of foreign investors in New Delhi, in West Bengal, that has been ruled by the Left Front for nearly three decades, the state government has been laying out the red carpet for multinational corporations. One of the important areas of agreement between the Congress and the Left relates to the implementation of the ambitious National Rural Employment Guarantee Programme that has been described as the world's largest social security programme. The scheme legally guarantees employment to one able-bodied member of a poor family living in a rural area at the official minimum wage for 100 days in a year. Unlike this programme which has been wholeheartedly supported by the Left, the Communists have in the past successfully stonewalled a government proposal to offload a minority stake in Bharat Heavy Electricals Limited, a profit-making government-owned company and one of India's better-performing public sector corporations. Veteran CPI-M leader and former Chief Minister of West Bengal Jyoti Basu recently accused the Manmohan Singh government of wanting to sell the shares of BHEL to foreigners. “…they (meaning the Congress-led government) are becoming more and more pro-American and depending on the IMF (International Monetary Fund) and the World Bank. We don't like that,” Basu added.

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Because of pressure from the Left, the government has had to postpone plans of divesting government-held shares in more than a dozen leading industrial public sector companies. Moreover, proposals to sell equity shares in publicly owned banks have also had to be suspended. In the run-up to the assembly elections held in April and May, the CPI-M had used strong language to hit out at the UPA government. Party general secretary Prakash Karat told an election rally in Kerala: “The UPA government is anti-people. The central government is not following the common minimum programme. The government does not care for farmers across the country. The Left would strongly oppose the move to privatize public sector banks in the country. The government is opening India's retail sector to Western multinationals. We will not allow it. The youth in the country are not getting any new jobs. I want to know from (Congress president) Sonia Gandhi why the government is reducing job opportunities for the youth.” Other points of difference between the Congress and the CPI-M relate to reintroduction of quantitative restrictions on imports of commodities backed by domestic and export subsidies in developed countries, increase in import duties to protect agriculture, protection of biodiversity and seed rights of farmers and the establishment of an institutional state framework to fight bio-piracy. The CPI-M has also called for a review of amendments to the Indian Patents Act which, it is argued, weighs heavily in favour of multinational pharmaceutical companies. The CPI-M wants to revert to a universal public distribution system (PDS) of foodgrain and other essential commodities. The Congress, however, argues that the focus of the PDS should be only on families living below the poverty line. The CPI-M stresses on higher government subsidies on agricultural inputs while the government wants to drastically reduce power subsidies. On farm policy, the CPI-M insists on strict implementation of land holding regulations while the Congress merely suggests that it would redouble its efforts to distribute surplus land. The CPI-M wants prohibition on sale of agricultural land to foreign companies or their subsidiaries for agri-business operations while the Congress invites foreign capital in agriculture. The Congress accused the Left of double standards since the West Bengal state government has been welcoming multinationals like Pepsi in food processing and contract farming. The Left and the Congress have also been at loggerheads on the provisions of a bill to change the pattern of utilization of proceeds of pension funds, on the issue of allowing foreign direct investment in retail outlets, on increasing the rate of interest on deposits parked with the Employees' Provident Fund Organization and on increasing the foreign investment limit applicable on telecommunications and insurance companies.Within the Left, there is a section that is more “liberal” in its attitude towards foreign investment. The CPI-M itself has changed its attitude towards foreign investment over the years and has welcomed it in specific areas such as information technology and agro-processing, provided new jobs are created and the country's knowledge base is enhanced. Though it opposes sale of government stake in profitmaking government-owned sector corporations, the CPI-M is in favour of a more efficient public sector.

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In the words of the CPI-M: the Union government has addressed its concerns only when it needs its support of the 61 Left MPs on legislative matters while on policy issues, the government has taken a number policy decisions despite protests from the Left . These decisions include the decision to partly-privatize the two largest airports in the country at Delhi and Mumbai, lifting the cap on foreign direct investment in telecommunications companies, allowing foreign investment in single-brand retail outlets and the sale of the government's residual equity stake in Bharat Aluminium. The Left has also opposed the government's proposal to make the Indian currency fully convertible on the capital account. Till the middle of June, the Left had sent over 19 notes to the government on its views, mainly on economic policy and foreign policy issues. The Communists are still fuming about American President George Bush's visit to India, the India-US nuclear deal and the government's decision to vote against Iran in the International Atomic Energy Agency. West Bengal Chief Minister Buddhadeb Bhattacharjee has displayed considerable enthusiasm for capitalist-style reform. Under him, the West Bengal government has privatized loss-making state-owned companies and his critics have accused him of seeking to curb the influence of unions. In public, however, Bhattacharjee says he does not believe in economic liberalization if it means a â&#x20AC;&#x153;hire and fireâ&#x20AC;? policy for workers. There is a long history of differences between the Congress and the Left on economic policy issues. These differences have not narrowed and may widen in the coming months. At the same time, what cannot be denied is that there is a section within the Congress that supports the Left overtly and covertly on economic policy issues. What keeps the Left and the Congress together is, of course, their common enemy, the BJP. This factor alone may ensure that the Manmohan Singh government continues to remain in power in the foreseeable future, even if the going will certainly not be smooth.

WEST BENGAL Voter Turnout ( percent) 2006: 81.96 2001: 75.29 LEFT FRONT WON PARTIES 2006 CPI (M) 176 CPI 8 AIFB 23 RSP 20 WBSP 4 RJD 1 DSP 1 IND (LF) 2 CONGRESS 21 TC 30 GNLF 3 JKP (N) 1 INDEPENDENT 4 545 TOTAL SEATS - 294

Appendix:: Election Results

2001 143 7 25 17 4 0 26 60 3 0 9

VOTE SHARE ( percent) 2006 36.97 2.09 5.67 3.72 0.72 0.08 0.36 0.43 14.91 26.34 0.50 0.26 3.79

2001 36.59 1.79 5.65 3.43 0.67 0.07 0.36 0.43 7.98 30.66 0.52 0.02 5.05

KERALA Voter Turnout ( percent) 2006: 72.34 2001: 72.47 PARTIES LDF CPI (M) CPI JD (S) KC RSP INL NCP CONG (S) KC (S) INDEPENDENT

WON 2006 98 61 17 5 4 3 1 1 1 1 4

2001 39 23 7 3 2 2 0 2 NA NA -

WON PARTIES UDF CONGRESS (I) ML KC (MANI) JSS CMP KC (B) DIC (K) RSP (B) INDEPENDENT

2006 42 24 7 7 1 0 1 1 NA 1

2001 99 62 17 9 4 1 2 NA 2 -

VOTE SHARE ( percent) 2006 30.45 8.09 2.44 1.75 1.44 0.9 0.64 0.47 0.31 2.14 VOTE SHARE ( percent) 2006 24.09 7.3 3.26 1.51 0.81 0.62 4.27 NA -

2001 21.36 7.25 2.94 2.9 1.07 0.29 2.59 NA NA 2.14

2001 31.39 7.58 3.05 1.78 0.61 0.72 NA 1.37 -

TOTAL SEATS - 140

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TAMIL NADU Voter Turnout ( percent) 2006: 70.79 2001: 59.07 PARTIES DMK+ DMK CONGRESS PMK CPI (M) CPI

WON 2006 163 96 34 18 9 6

PARTIES AIADMK+ AIADMK MDMK DPI/VCK

WON 2006 69 61 6 2

PARTIES OTHERS DMDK BJP MGRADMK AIFB INDEPENDENT

WON 2006 0 NA 1

2001 31 7 20 6 5

VOTE SHARE ( percent) 2006 44.73 26.45 8.38 5.65 2.64 1.61

VOTE SHARE ( percent) 2006 40.46 132 32.64 0 5.98 NA 1.29

2001

2001 NA 4 2 1 3

2001 30.92 2.48 5.56 1.68 1.59

2001 31.44 4.65 NA

VOTE SHARE ( percent) 2006 8.38 2.02 NA 4.29

2001 NA 3.19 0.46 0.14 6.16

VOTE SHARE ( percent) 2006 31.28 20.68 12.03 1.42 0.98 2.22 2.48 8.83 0.88 18.43 -

2001 39.75 20.02 9.35 1.78 1.10 2.51 NA NA 1.11 19.51 -

TOTAL SEATS - 234 ASSAM Voter Turnout ( percent) 2006: 75.72 2001: 74.63 PARTIES CONGRESS AGP BJP CPI (M) CPI NCP AGP (P) AUDF ASDC IND & OTHERS * TRINAMUL SAMAJWADI SAMATA

WON 2006 53 24 10 2 1 1 1 10 1 23 NA NA NA

2001 71 20 8 NA NA 3 NA NA 2 19 1 1 1

Independents include 12 seats won by BPPF (Hargrama Faction) TOTAL SEATS - 126

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Rights of Imprisoned Mothers in Pakistan Sikander Ahmed Shah and Moeen Cheema Introduction A large number of women and their children are incarcerated in prisons around the world--this phenomenon is not restricted to developing nations. Developed nations such as the US and countries in Europe confront the same problem. A large number of women prisoners throughout the world are also mothers: in the US, an estimated 80 percent of women incarcerated in prisons are mothers;1 in the UK, over 60 percent of women prisoners have young children, and 3 percent have a child living in prison with them.2 The phenomenon that is causing worldwide concern is the number of children who are living in prison with their mothers. It is claimed that, even in developed nations, imprisoned women and their children are subjected to humiliation, abuse, and torture, both mental and physical. In Marseilles, France, a woman prisoner gave birth in jail, doubly immobilised by shackles and an intravenous drip, while in the US, women in labour are often chained until given an epidural.3 However, there are various institutions in developed countries, both at the government and non-government levels, which document cases of abuse, provide checks and balances, and assist and counsel vulnerable women and children in order to procure a better quality of life for them. In the US, the Federal Bureau of Prisons operates the Mothers and Infants Together (MINT) programme for pregnant inmates, through which some women are able to spend three months prior to delivery and two months after giving birth in a halfway house facility.4 In contrast, the tabulation of relevant raw data and information relating to abuse/discrimination, material assistance, and the determination of social welfare needs of women in prison with their children, are negligible in a developing country like Pakistan. Yet public outcry over reported cases of abuse of women and their children could result in positive steps being taken to address the situation. Such awareness could, in the long run, lead to the creation of much needed organisations to address these problems; these organisations could also monitor the working of the government branch related to prison functioning. In India, where a child can stay up to five years with his or her mother in prison, the status of these groups is dismal. With a population of over a billion people, the officially reported number of mothers in jail with their infants is very high. In 2001, the federal home ministry reported that there were an estimated 1,392 children living with their mothers in jails across India. The harsh, regimented life and administrative rules are as applicable to these children as they are to their mothers. In addition, many prison officials â&#x20AC;&#x153;admit in private that the children are viewed as a liability and a drain on their already meagre jail budgets.â&#x20AC;?

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The social, physical, and mental impact of imprisonment on such children is acute, and this has been openly acknowledged by India's intelligentsia. The Hindu, India's leading English newspaper, stated that the “effects of incarceration can be particularly catastrophic on the children and costly to the state--both immediately, in terms of providing for their care, and long-term, because of the social problems arising from early separation.” It was further mentioned that a “shocking survey on children of women prisoners--conducted by the National Institute of Criminology and Forensic Sciences, Ministry of Home Affairs in India, between 1997-2000--documents the conditions of deprivation and criminality in which they are forced to grow up, lack of proper nutrition, inadequate medical care and little opportunity for education.” Jeet Kaur, in charge of Tihar's crèche stated: “[T]he children are unnaturally docile, lack self-confidence and don't like being cuddled or touched. They are reserved because they don't receive regular love and care like normal children.”5 Even though the situation of imprisoned women and children in India is bleak, there is at least some data available, and initiatives are being taken both by government and non-government organisations (NGOs) to collect more information and provide assistance to the affected. In addition, specific organisations, such as the India Vision Foundation, have been set up to assuage the hardships of women and children prisoners. The foundation's projects began outside prison to provide education and rehabilitation to the children of prisoners in its “Crime Home Children” project. The foundation now has resource centres in Atlanta and San Francisco in the US, Melbourne and Tasmania in Australia, and in Port Louis, Mauritius.6 State of Incarcerated Women and their Children in Pakistani Jails Compared to India, data and initiatives on women prisoners are very limited in Pakistan. The following abstract on women and children in Pakistan in 2004 was provided to the Senate by the Interior Ministry in response to a question by Senator Enver Baig:7 “As many as 85 children, including 45 newborns, are languishing in different jails of the country just because their mothers are undergoing various prison terms. The official record shows that 45 children were born to women prisoners during [the] first six months of the current year. A copy of the record obtained by Dawn showed that the number of children born to women in captivity was the highest in Punjab, followed by the NWFP and Sindh, while no births had been recorded in official prison records of Balochistan. According to the record, 11 children were born to women in captivity in the NWFP, 10 in Sindh and 24 in Punjab. As many as nine women prisoners, including seven under-trial ones and two convicts, gave birth in Rawalpindi Central Jail during 2004. All these women fell in the age group of 19 to 28 years. In New Central Jail Bahawalpur, four women were living with children, while no birth was recorded in the prison. Similarly, in Central Jail Gujranwala, one woman gave birth this year, while eight women were shown with sucklings and one was admitted with three children. In District Jail Sheikhupura, the record provided to the Senate showed that one woman gave birth this year. In District Jail Gujrat, the record shows that two children were born, while another two were living with their mothers. In District Jail Jhang, five children were born, while another 11 were living with their

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mothers. The record of District Jail Sargodha showed that two children born in the prison were living with their mothers. Three children were born in District Jail Shahpur, while one child was born in District Jail Faisalabad. Likewise, one child was born in District Jail Attock. In the women's jail in Multan, ten women, five under-trial ones, four convicted and one condemned, are imprisoned with their children. The only condemned prisoner with a child in Multan women's jail is a 22-year-old woman undergoing imprisonment with her three-year-old boy, Shakeel Ahmed, for committing an offence under section 302 of PPC. Four convicted women in Multan Jail undergoing imprisonment on account of 302, 302/34 or 308 PPC have children as young as 10 months old. The five under-trial women prisoners in Multan have sucklings with the eldest being a three-year-old baby girl.” In addition, the capacity of prisons, such as the Karachi Women's Prison, has been surpassed manifold and medical facilities are scarce. Since children, mothers, and pregnant women are the most vulnerable, the negative impact on them is greatest. For example, in 2004, the Karachi Women's Prison, a separate barracks, had over 265 women prisoners and 40 child inmates, although its total capacity was 105. However, the prison had only two female doctors and one nurse. It is pertinent to add that the psychological stigma attached to children imprisoned with their mothers has been recognised by related community professionals. According to Dr Abbas, a psychiatrist, “Remaining with mothers in a prison could lead to mental disorders in the children.” Some isolated initiatives have been undertaken for the welfare of imprisoned women and children. The Human Welfare Society organized an eid milan party for children inside the Karachi Prison, at which Dr Hameeda Khuhro, the Sindh minister for education and literacy, announced that a vocational training school was to be established at the women's prison in Larkana. She also said: “Education is the need of the hour, which should be imparted to the female inmates. The children, living with their mothers in women jails, have equal right to get education in jail.” The minister directed the executive district officer for education in Larkana to post a teacher there to help school jail inmates. However, actions like these are not sustainable in impact and promises such as the one made by the minister are often poorly implemented. In fact, such initiatives can even be counter-productive, because they create the perception that constructive steps are being taken with regard to the problem. In turn, this dissuades individuals who want to work towards the welfare of women and children in prisons, because they are misled into thinking that enough is already being done. Constitutional Provisions for Imprisoned Women Very few provisions of the 1973 constitution of Pakistan have been directly implicated or specifically mentioned in Pakistani case law with regard to the plight of imprisoned women and their children. Where such provisions are mentioned, courts have nebulously stated that the fundamental rights provisions of the constitution are implicated, without providing any sort of analysis or mention of a specific provision.8 However, from a textual point of view, coupled with the fact that similar

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constitutional provisions have been interpreted in other states, various provisions of the constitution can be interpreted to apply to imprisoned women and their children in Pakistan. A possible reason why such cases are not brought within the realm of constitutional law is that the judiciary has avoided deciding issues of civil liberties and fundamental non-economic individual rights, such as equal protection and due process under the constitution, as is practiced in countries such as the US. It could be argued that one reason for the apathy of the courts towards civil/political rights is that, in a thirdworld country like Pakistan, such rights are not perceived to be as important as other socioeconomic rights. Another reason might be that very few cases involving women and children are brought to court, since many women are unaware that they can challenge their imprisonment in court on the grounds that they are either pregnant or are mothers. Finally, the most likely reason for why constitutional provisions are not implicated and constitutional petitions not filed is that, under the Criminal (Statute) Procedure Code, the courts can decide such cases by granting or denying bail to the affected. The relevant constitutional provisions are given in the preamble to the constitution, in Chapter 1 (“Fundamental Rights”), and Chapter 2 (“Principles of Policy”). The preamble to the 1970 constitution, known as the Objectives Resolution, was used as a guiding document and later became part of the constitution via an amendment made in 1985 under Article 2A. Theoretically, two parts of the Objectives Resolution are contravened with regard to the situation of imprisoned women and their children. The two relevant provisions state: “Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed”, and “[t]herein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality”. It is relevant to mention here that the Federal Shariat Court has held in cases that the state of women and their children in prisons indicates violation of their rights under the injunctions of Islam. Subsequent to the Objectives Resolution, the foremost provision of the constitution relevant to this topic is Article 4, which is equivalent to the Fifth and Fourteenth Amendments of the US constitution and deals with the provision of substantive and procedural due process to its citizens. Article 4 is termed “Right of Individuals to be Dealt with in Accordance with Law” and states: “(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular: (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”

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In this context, imprisoned women and children are not accorded the protection of the law and are deprived of their life, liberty, and body interests. Chapter 1 of the constitution deals with the fundamental rights of citizens (Articles 8 to 22), and numerous “fundamental rights” provisions are invoked and violated in the case of imprisoned women and children. Under Article 9, “[n]o person shall be deprived of life or liberty save in accordance with law”. Article 10(1) deals with the necessary safeguards with regard to arrest and detention: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.” Article 10(2) states: “Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” Under Article 22(3)(b), “[Subject to law: No citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.” Yet children living with their mothers in prison are deprived of proper educational institutions on the grounds of their place of birth. These children cannot attend schools located outside the prisons and the prisons themselves do not offer proper educational facilities. Under Article 25, which is the equivalent of the Equal Protection Clause of the US constitution, “(1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.” This article is extremely relevant to the discussion, because imprisoned children are denied the equal protection of the law and are surely not equal before the law compared to children living with their mothers outside prison. Discrimination based on gender is also apparent when one compares the disadvantages experienced by pregnant women and mothers to male prisoners. Equal treatment under the law and absence of discrimination in such instances would mean according preferential treatment to the disadvantaged (i.e., additional medical facilities and amenities), which in practice is not the norm in Pakistani jails. In fact, the last provision of this article explicitly emphasises the need for affirmative action to improve the state of women and children in the community. No tangible action has been taken by the government in this regard. That there is no separate legislative act dealing specifically with the state of imprisoned women and children is testimony to this conclusion. Chapter 2 of the constitution, “Principles of Policy”, contains relevant articles that provide constitutional rights and safeguards to affected women and children. Under Article 35, “[t]he State shall protect the marriage, the family, the mother and the child.” Article 37, (“Promotion of Social Justice and Eradication of Social Evils”) is

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also generally relevant and states, “The State shall: (a) promote, with special care, the educational and economic interests of backward classes or areas; (b) remove illiteracy and provide free and compulsory secondary education within minimum possible period; (c) ensure inexpensive and expeditious justice; (d) make provision for securing just and humane conditions of work, ensuring that children and women are not employed in vocations unsuited to their age or sex, and for maternity benefits for women in employment…”. Article 38, also of general relevance, promotes the social and economic well being of people, and states: “[T]he State shall: (a) secure the wellbeing of the people, irrespective of sex, caste, creed or race, by raising their standard of living… (b) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment.” Legal Protection of Imprisoned Women As mentioned earlier, Parliament can enact laws under the constitution for the protection of women and children. However, no such laws have been enacted that deal with the state of pregnant women, mothers, and their children in jails. In addition, no constitutional challenges or constitutional writ petitions that deal with unlawful detention under Article 199 have been filed by parties concerned. However, there is protection available for imprisoned women under the Criminal Procedure Code (CrPC), which affected women almost always avail under the relevant code sections described in more detail below. Section 426 of the CrPC 1898 This code section is titled “Suspension of Sentence Pending Appeal: Release of Appellant on Bail”. In 426 (1), it states: “Pending any appeal by a convicted person, the Appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement that he be released on bail or on his own bond.” This is the focal legislative provision used by courts to grant bail to imprisoned women when they are pregnant or have children living with them in jail. Under Section 426, the court has discretion to grant bail where it deems fit, after considering the facts and circumstances of the case. The court has to provide reasons for its bail decision, which should be based on sound “judicial principles” Section 497 of the CrPC 1898 Under Section 497(1), even in cases involving non-bailable offences, inclusive of commission of murder, courts have the power to grant bail to the accused if compelling circumstances are present. The second proviso of 497(1) goes further and clarifies that special circumstances are present when women, children and the aged are involved, as they are entitled to special treatment for bail. In fact, men have been granted bail on humanitarian grounds when the welfare of their children so requires, because the mother of the children is dead. Section 497(1) of the CrPC states: [W]hen any person accused of a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a

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Court, he may be released on bail, but he shall not be released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. Provided further that a person accused of an offense as aforementioned shall not be released on bail unless the prosecution has been given notice to show cause why he should not be released. However, it is still within the discretion of the court to grant bail under 497(1). The word “may” for grant of bail does not mean “shall”.9 Women are not entitled to grant of bail as a right in every case.10 However, in principle the courts give the impression that they are more conducive towards granting bail to women. In a case in Karachi the court ruled, “The grant of bail to a woman should be a rule and the discretion must be exercised in her favour in the absence of some compelling circumstances disentitling her to the grant of bail…. The applicant who is a young educated lady is thus entitled to the grant of bail on this score alone.”11 In one case, the court held that it was not in the interest of justice to give the custody of the woman to the police.12 Section 497(1) allows bail in non-bailable offenses to the infirm. Therefore, when a woman is infirm there is an even stronger case for granting her bail. Infirmity includes pregnancy. Courts generally do grant bail to the affected women and children, because the Courts take into account the nature of the illness and the lack of medical facilities in prisons. Local human rights monitors have determined that the preferential treatment regarding bail under section 497 has not provided any meaningful relief for women. In addition, though the procurement of bail seems to be much easier under the law for women, in practice women are denied bail more frequently than men.13 Grant of bail has two components. Firstly, the accused has to post a bond in a certain amount, which is determined by the court. Secondly, there must be one or two sureties on whose assurances the accused is released. Only when these two conditions are met does the grant of bail take effect. Both these conditions are major impediments for women even when bail has been granted. In Pakistani society the overwhelming majority of women are dependent on their family or their in-laws for monetary support. Therefore, the bond requirement is much harder for women to fulfill than it is for men. Even though under section 497, courts have to take into account the financial status of the accused, they seldom do so when the accused is a woman. The surety requirement is much more problematic for women than for men because, in the predominantly paternalistic Pakistani society, it is possible for men only to be in a position to act as sureties. However, most men refrain from acting as sureties for

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their female relatives and wives. In some cases the concerned women refuse to accept some male family members as sureties. This is because these men had initially filed complaints against the women because of some family feud, domestic disturbance or under the Hudood laws. In a case in Lahore, Nasim who was granted bail refused to go with the surety who was her father, as the father had registered a case against her for zina (adultery). However, when she provided a new surety, the court refused to accept such surety by stating “Keeping in view the concept of the Hudood laws it is in the fitness of things that her surety should not be a person who may later coerce her to lead an immoral life.14” In addition, if males do provide surety for women they can revoke it at any time. Invariably a greater number of women prisoners even after grant of bail stay in jail, while men go free. Although a court itself has the power to move for bail without that initiative being taken by the accused, in practice it is only when the accused through her attorney moves the court that bail is considered. The overwhelming majority of women prisoners inclusive of pregnant women and mothers are unaware of their basic rights including the right to move for bail.15 Relevant Rules for the Superintendence and Management of Prisons in Pakistan 1978 These administrative rules were enacted in 1978 under Section 59 of the Prison Act, 1894. Chapter 13 of these Prison Rules is titled “Women Prisoners and Children” and specifically deals with the special treatment warranted to such prisoners. Rule 322 to Rule 328 directly address the topic of women and children in jail. The case of every imprisoned woman in an advanced state of pregnancy has to be reported to the Inspector General for reference to the Government with a view to the suspension and remission of her sentence or otherwise (Rule 322). According to Rule 323 a child birth in prison should be avoided, but if this is not possible, the services of a lady Medical Officer or a qualified midwife must be requisitioned. In the event of a child being born in prison, notice of the birth shall be sent to the municipal authorities under Rule 325. Under Rule 326 women prisoners were allowed to keep their children with them in prison till they attained the age of three years, but this rule was amended and women are now allowed to keep their children with them in prison till they attain the age of six years. When a child becomes disqualified for further retention in jail on account of age, or when a woman prisoner dies leaving her child behind, the Superintendent must inform the District Magistrate of the place where the prisoner resided and the latter must arrange for the proper care of the child. If the relatives or friends of the prisoner are unable to support the child, the District Magistrate will arrange for care of the child in a nursery through special societies managing such institutes. The child will be returned to the mother on her release if she is capable of looking after it (Rule 327). According to Rule 328 children in prison will be provided clothing as prescribed by the Superintendent. The scale of the diet for children is also prescribed in the rules.

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On paper such rules with some exceptions are in general compliance with the UN Standard Minimum Rules for the Treatment of Prisoners. However, in application the utility and efficiency of these rules is highly suspect. In a report of the Human Rights Commission of Pakistan in 1990, it was stated with regard to the conditions in prison that “overcrowding, unhygienic accommodations, unsatisfactory diets, degrading punishments, unlawful solitary confinement, tyrannical behavior of warders, molestation of women prisoners, confinement of babies with convicted mothers, and the spread of drug abuse were the major complaints.”16 The prison rules are highly simplistic, abstract and brief. They do not elaborate on details and the prison authorities have a lot of discretion to deal with situations on which the rules are silent. In addition, no circulars interpreting the rules have been generated by the prison authorities. In some cases even when prison rules are applicable to a situation they are violated, for example, the prison rule requiring immediate medical examination of in-coming female detainees is rarely followed.17 Pregnant women are not provided medical attention or special food in prison.18 The violation of prison rules is not limited to those rules that govern the daily life of prisoners but also to other kinds of substantive rights violations, such as those related to counseling women on their right of bail. Under the prison rules the Superintendent of the prison is required to inform all prisoners of the period for an appeal of sentence and to provide all assistance and facilities in filing it.19 Under the Hudood laws, convictions can be appealed as a matter of right.20 Statistical evidence historically tends to prove that such assistance is not provided. “Studies of women prisoners reveal that nearly a third never appealed their convictions to the higher court. Approximately 13 percent of 90 women prisoners interviewed in 1988 had no idea whether or not an appeal had ever been filed on their behalf.”21 Under the prison rules, all pregnancies in prison have to be reported to the district magistrate if bail is to be secured.22 Though the grant of bail in such instances is discretionary, bail is generally granted in the higher courts. However, evidence suggests that in practice, lower courts are not as conducive towards granting bail to the affected. “In one case investigated by the Human Rights Commission of Pakistan, the Lahore High Court ordered a woman who had been in jail for nearly a year to be released on personal surety. The woman had given birth to a child in prison and the baby was confined with its mother. She complained to the Lahore High Court that she had requested bail from the lower court several times and was repeatedly rejected.” In addition, as previously discussed, many bail cases that are ripe for favorable adjudication by the courts never come before the court, as the concerned women are unaware of their legal right to apply for bail. Case Law Regarding Bail for Pregnant Women, Mothers and their Children in Prison The rights of the unborn, the newborn and minor children are reiterated in several cases involving imprisoned women. Judgments have been based upon the principle “No one shall suffer for the misdeeds of others” (Aayat No: 15, Surah Bani Israel of the Quran), and on the fundamental right of liberty conferred upon every individual by the Constitution of the Islamic Republic of Pakistan. The welfare of the child has been

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a supreme consideration whereby pregnant women and women with suckling babies have been granted bail. There have even been cases where women have been granted bail because there was no one to look after their minor children outside the jail. Federal Shariat Court Cases The Federal Shariat Courts have jurisdiction over cases which come under the realm of Islamic Law and include Hudood Offences, where women are imprisoned and/or awarded other penal awards. In fact, many a time the conventional courts have themselves refused to grant bail to the imprisoned, citing their lack of subject matter jurisdiction over the matter. Such a course of action has not affected the general favorable outcome in cases where the concerned women have demanded bail (see Appendix 1 for Case Law showing preferential treatment of women for grant of bail). If there is any difference between these two courts when dealing with bail concerning pregnant women and mothers, it is in the nature of focusing differently on stare decisis,23 legislation and procedural laws/rules. The Federal Shariat Court accords more credence in arriving at its holding to Quran, Sunnah, the principles of Islamic law and the life of the prophet, Shariat Rules and Procedure than common law based principles (see Appendix 2 for some pertinent rulings of the Shariat Court regarding bail). Criminal Court Cases In several cases the criminal court not only gave favorable bail decisions to women with children, but they also directed prison staff to undertake fact finding to determine the number of the affected prisoners languishing in various jails. Such an exercise was highly beneficial for purposes of improving the condition of the concerned, because notification would be provided to the Court with regard to all those women who were unaccounted for various reasons and who were eligible for bail (see Appendix 3 for some relevant cases of the criminal courts). In the Ghulam Sakina v The State case the court held that “they (session courts) shall protect/watch the welfare of the suckling babies and minor children detained in jails just like real mother. Needless to add that the Court enjoyed unlimited power in this behalf (see Appendix 3 for details).”24 In another case Hameedan Bibi and her newborn baby were removed from jail and interned in Darul Aman at state expense until her case was disposed by the trial court or for a the suckling period of two years stipulated by Islam (see Appendix 3 for more details). The Court pointed out that Pakistan's obligation as a responsible member state to the international community demanded a certain course of action with regard to the social welfare of imprisoned mothers and children and added: We are signatory to the United Nations Charter of 1945. Article 25(2) of the Charter reads as follows: “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” “Reference may also be made to the Convention on the Rights of the Child adopted by the United Nations General Assembly on November 20 of 1989. A reference may also be made to Article 20 of the Convention which reads as follows: “A child temporarily or permanently deprived of his or her family environment, or in

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whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. (2) State parties shall in accordance with their national laws ensure alternative care for such a child. (3) Such care could include, inter alia, foster placement, Kafala of Islamic Law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regards shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural, and linguistic background. Reference may also be made to the Cairo Declaration on Human Rights in Islam, dated 5 August, 1990. Its Article 7 (a) reads as follows: “As of the moment of birth, every child had rights due from the parents, society and the State to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be protected and accorded special care.” The court finally concluded that Chapter 13 of the prison rules was deficient with regards to Pakistan's obligations under international law. The Court stated, “We are supposed to amend the rules for catering for the needs of the newly born children in jail by amending Chapter 13 and particularly rule 327 in this connection.” This High Court's opinion is exceptionally favorable towards the amelioration of the plight of imprisoned pregnant women, mothers and their children in jail. In fact, the Court directs the State to send the concerned to community centers for care, without any legal formalities and requirements such as posting of bond and provision of sureties. The Court also demanded an amendment to administrative and legislative rules and regulations in order to bring such rules in line with norms of justice, international and Islamic laws. Though critics would argue that such a move by the Court is an infringement on the executive and legislative branch, the counter argument would be that the Court is only indulging in the clarification of the law, which has been ordained under Islamic Law and the Constitution. Conclusion Pakistan ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on 12 March 1996 and the Convention on the Rights of the Child (CRC) on 12 November 1990. However, if one is to critique the status of pregnant imprisoned women, and children in prisons, Pakistan is in violation of multiple provisions of both these conventions.25 The High Courts and the Federal Shariat Courts are generally conducive towards granting bail to the concerned women. However, many cases involving such women do not reach the higher courts because the women are ignorant of their right to contest their imprisonment and never challenge the decisions. Where a decision is challenged, the lower courts having the jurisdiction to hear bail applications frequently deny such applications summarily. Even in cases where women are granted bail, they still have to post a bond and provide sureties. Both these requirements are cumbersome for the women to provide because of lack of monetary/financial ability

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and socio-cultural status. Very often women are unable to avail the bail because of the condition that bail be posted by a mehram. When it is the father, brother or husband who has implicated the woman in a zina case there is no mehram to post bail.

discretion in their favour in suitable cases in the light of the first proviso to section 497, Cr.P.C. However, this discretion is to be exercised keeping in view the circumstances and facts of the case.

In addition, information about many pregnant women, mothers and children is hidden from the judicial system, because the Courts are not provided notice of the woman's status and the child's existence. This is because the superintendent of the jails and the district magistrates do not perform their duties vigilantly. Inside the jails the women and children are not informed of their legal right to apply for bail and continue to remain in prison. Children are subjected to the same appalling conditions as their mothers; jails are filthy and overcrowded and no effective procedures have been developed for the education and upbringing of children in these jails. Moreover, they are not being accorded adequate medical facilities, and their problems are compounded by lack of adequate psychological counseling.

In Mst Baboo Jana vs. The State, 1990 P Cr. L.J 326 (Karachi), the petitioner subsequent to her arrest at Karachi airport for possession of heroin was charged under clause 8 of section 156(1) of the Customs Act, 1969. The court granted the petitioner bail and stated that:

Appendix 1:

Imprisoned Mothers and their Children in Pakistan

Preferential Treatment of Women for Grant of Bail Women are accorded special status under bail legislation as enumerated in the Code of Criminal Procedure. In Boota and another vs. The State, 1970 SCMR 762 the Supreme Court of Pakistan held that the accused Mst Sardaran could move the court for bail when charged for commission of murder, which is a non-bailable offense solely on the grounds of her sex. In Rahim Khatoon vs. The State, 1989 P Cr. L.J 1861 (Lahore), the High Court rendered a judgment that reinforced the special status enjoyed by women in prison. The petitioner, Ms Rahim Khatoon was granted bail without the imposition of any condition as to the surety to be a mehram (family male guardian generally a father or a brother). Ms Khatoon was imprisoned under section 10/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for committing zina with consent. The Court determined that her case clearly fell under the proviso to section 497 of the Cr. P.C and stated that: The grant of bail in her case is a right and refusal is an exception. I do not see any special reason to deprive her of the concession of bailâ&#x20AC;ŚIt is a matter of common experience that in such like cases, the female accused invariably refuses to be released on bail furnished by a person not of her choice. In some cases the mehram do not come forward to stand surety for the accused with the result that in spite of bail in her favour, the female accused remains in jail. In a number of cases, the similar condition imposed by the court has virtually frustrated the bail order. However, in Mst Asia vs. The State, PLD 1996 Lahore 45, where the petitioner assisted her husband in the rape of an 11 year old kidnapped girl, bail was denied. The petitioner moved the court under 497 of the Cr.P.C, arguing that grant of bail was her right. The Court rejected this argument by stating:

Admittedly the applicant is a women and her case falls within the first proviso to subsection (1) of section 497, CrPC. The grant of bail to a woman although discretionary, the Courts have leaned towards granting of bail even when the accused was found involved in a murder case inviting capital punishment. I am fortified in my view from the cases reported as Mst Allah Jiwai vs. The State 1984 P Cr. L. J. 129, Mst Elvinia alias Guddi vs. The State 1984 P Cr. L. J. 2911 and Nasir Mahmood Khan vs. The State 1985 P .Cr. L. J. 159. In the last citation it was observed that mere heinousness of the offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as punishment and there is no legal or moral compulsion to keep a person in jail. The court opinions in the case of Mst Asia and Mst Baboo Jana seem to be contradictory to one another. This is because, in the first case, a woman was denied bail and the gravity of the crime played a vital role in that decision, whereas in the second case, bail was granted despite the gravity of the crime, coupled with the court's statement that the heinousness of the offence is not per se sufficient to disallow bail. In reality, there is no contradiction between these two cases. Though the conclusions are different, the reasoning and the holding of the courts is the same, which is that courts have discretion to grant bail, and circumstances involved are factors which courts take into account when exercising this discretion. The fact that the courts have the power and discretion to grant bail to the accused even when the accused does not move the court is highlighted by the case of Sajjad and 3 others vs. The State, 1991 P Cr. L J 1 (Lahore). The petitioners, four men, were charged under the Zina Ordinance, 1979 for commission of adultery. The petitioners were eventually granted bail. The court subsequently determined that the four imprisoned women alleged to have been involved in the adultery must also be granted bail even when these women had not applied for bail, after the provision of a surety acceptable to the Duty Magistrate. The court stated: The allegations are identical and the ocular evidence is common, so the women should be released on bail and the concessions of bail should not be withheld similarly because they are not in a position to pursue their cases or they have not filed any application for bail. Nothing in the Code of Criminal Procedure shall be deemed to limit, or affect the inherent powers of this court to make such order as may be necessary to secure the ends of justice or to do complete justice.

A woman is not entitled to the grant of bail as a right in every case. Generally the Courts take lenient view while dealing with the bail application of women and exercise

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Appendix 2:

Imprisoned Mothers and their Children in Pakistan

Federal Shariat Court Cases Liaquat and another v. The State, 1999 P.Cr. L J 1004. This case involved an application for bail under section 426 Cr P.C read with Rule 27 of the Federal Shariat Court (Procedure) Rules, 1981.26 The application was moved by convicted Mst Shahdia, as she had recently given birth to a child in jail (Nazia) and had argued that the conditions in jail throughout the country were detrimental to the health of a newborn child. The court granted bail subject to the posting of a bond and one surety and stated: These jails do not contain necessary facilities for upbringing of the newly-born children in conformity with the established standards of health and child psychology in the civilized world. Aayat No. 15 of Surat Bani Israel of the Holy Quran reads, 'No one shall suffer for the misdeeds of others'. The newly born baby child is not a convicted person. She remaining in jail shall be negation of the fundamental rights of liberty conferred upon her from the very date of birth of the Constitution of Islamic Republic of Pakistan. She is a suckling child. Her separation from the lap of her convicted mother might prove detrimental to her physical as well as psychic health.27

Bibi vs. The State on arriving at its verdict. In addition, the court outlined the famous case of Ghamiddiyah involving the Holy Prophet where “the Holy Prophet (p.b.u.h.) was pleased to suspend the sentence passed on a pregnant woman not only till delivery of child but for the period of Riza'at (breastfeeding) as well, basically for welfare of the child.”29 Appendix 3:

Imprisoned Mothers and their Children in Pakistan

Criminal Court Cases Ghulam Sakina vs. The State, 1991 P Cr. L J 1316 (Lahore). In this case, the Court not only rendered favourable bail decisions, but also directed prison staff to undertake fact finding to determine the number of the affected prisoners languishing in various jails in Punjab. The Court noted that the Superintendent Women Jail, Multan revealed that 30 women having minor children were detained in Multan Jail, out of which 12 were convicts and 18 were under trail prisoners. Out of these, 14 had children under the age of 2, who under the second proviso of section 497 were to be released immediately, after posting of bond and the fulfillment of the surety requirement.

Mst Sitara Bibi v. The State, 2003 P Cr. L J 402. The applicant was convicted under section 10, 11, and 19 of the Offense of Zina (Enforcement of Hudood) Ordinance 1970. The court released the woman on bail because she had a suckling baby in jail. The court stated:

The Court held that they would not pass a judgment on the convicted at that time as they wanted to give time to the Additional Advocate General to examine their cases. Moreover, the Additional Advocate was ordered to make a list with the assistance of the provincial police, of all the women in all the jails of Punjab and then appear before the Court so that it could make grant of bail determinations.

Since the child, along with his mother, has been kept in jail where he is suffering from want of proper care and medical facilities as the jails in Pakistan do not cater to the needs of infants, therefore, pending decisions of the appeal, the applicant may be released on bail.

Such an exercise was highly beneficial for purpose of improving the condition of the concerned, because notification would be provided to the Court with regard to all those women, who were unaccounted for various reasons and who were eligible for bail.

The court added that the learned council for the state had conceded the fact that facilities for child rearing were inadequate in the jails and the court held that:

The Court further added that with regards to the women detained within the local jurisdiction of the Multan bench, the session judge of the concerned district was to inspect the respective jails in accordance with the High Court rules and orders, and thereafter pass the necessary orders in related cases. The Court held that “they (session courts) shall protect/watch the welfare of the suckling babies and minor children detained in jails just like real mother. Needless to add that the Court enjoyed unlimited power in this behalf.”30

The [w]elfare of the baby, therefore demands that his mother may be kept in better living conditions/environment where she may not only be able to take care of herself but look after and bring her child up according to the modern living standards besides, providing suitable medical facilities to him in the hour of need; which obviously is not possible in jail. I therefore, while humbly following the decision made by the Holy Prophet (p.b.u.h.) in the famous case of “Ghamidiyyah” as well as the dictums of the afore-quoted judgments, am inclined to allow the application.28 Mst Parveen Iqbal vs. The State, 2004 P. Cr. L. J. 20. The Court granted bail when the accused had a suckling baby of 9 months living with her in jail as the court determined that the child was suffering from want of proper care and medical facilities in jail. The court took note of the fact that the Assistant Advocate general of Sindh did not oppose the bail as he was aware that jails in the country did not cater for the needs of infants. The court quoted verbatim the reasoning of the Mst Sitara

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Importantly, the Court noted that the women convicted under the Hudood Ordinance could not be granted bail, because it had no jurisdiction to suspend the execution of their sentences and the Federal Shariat Court could be approached on that front.31 Mst Zarina vs. The State, 1991 MLD 518. Mst Zarina had moved an application for grant of bail, when she had been imprisoned under section 10 of the Hudood Ordinance for over one year. When she arrived in jail she was pregnant and subsequently gave birth within six months. The child, which the prosecution had argued was illegitimate and a product of the offense of Zina, had also been living in

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the prison for four months. The petitioner had argued that she being poor and helpless could not move an application for bail before the trial court or before this court. The court granted bail under the second proviso of section 497, but still required a personal bond to be posted in the amount of Rs 10,000 and the surety of the petitioner's mother. The Court stated: I feel constrained to observe that in the course of hearing bail application of the female accused arrested and detained in different cases, it has come to my notice that the children including suckling babies have suffered/are suffering the agony of detention in jail and some of them were not only born in jail but were also brought up therein for the alleged sin/crime committed by their mothers. The Court noted that under Section 344 of the Cr.P.C. the Additional Session Judge of the area had callously remanded the petitioner and her child to judicial custody, which was within his power, but the judge was under no moral or legal compulsion to keep them in jail merely on the charge of the commission of a non-bailable offence. The court noted that in both bailable and non-bailable offenses the magistrate could release the accused on bail on his own volition, even when the accused had not moved an application for bail. The Court stated: [F]urthermore, on the enforcement of Qisas and Diyat Ordinance, it is no more possible to send or keep a pregnant or female accused carrying suckling babies till the expiry of the period of Riazat. In Islam punishment cannot be executed on mother (in a family way) till the expiry of the period of Riazat of the child… I feel that it is better to err in releasing female accused carrying sucking baby on bail than in remanding her child along with her to jail during trial. Muhammed Yaqoob vs. The State 1992 P Cr. L J 2294 (Supreme Appellate Court). Mst Majidan wife of Muhammed Yaqoob was convicted under Section 11 and 10 (3) of the Hudood Ordinance, 1979 and 109 and 342 of the Pakistan Penal Code for two years when she assisted her husband to commit rape (Zina-bil Jabr) on Zahida Paveen, a 13 year old girl. Mst Majidan had lured Zahida to visit her house and thereafter had locked Zahida in the same room with her husband. The Court granted Mst Majida her request for bail on the grounds that she had two minor children aged 4 and 2 respectively living with her in jail, and because her husband was also in jail. The Court held, “[t]his being so, keeping in view the welfare of the minors we take a lenient view and sentence her to the period already undergone by her.”32 Mst Neelam Mawaz vs. The State 1994 P. Cr. L J 1922 (Lahore). Neelam Mawaz was tried along with her husband Javed Mawaz and nine others by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 under section 65 A of the PPC. She was convicted and sentenced to seven years in jail. The court granted her bail and stated:

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The petitioner is a woman, and is stated to be mother of three school and college going daughters. Her husband is in jail for having been convicted and sentenced. In such circumstances, we are inclined to extend her the concession of grant of bail, provided she furnishes bail bonds… with two sureties.33 It is pertinent to note that the Court was lenient in granting the petitioner bail even when the petitioner had children who were not living with her in jail. Mst Nusrat vs. The State, NLR 1995 Criminal 8 (Supreme Court of Pakistan). This is a leading case involving the status of imprisoned women prisoners and suckling children in jails. Mst Nusrat, the petitioner was convicted for the murder of Mst Surrayya, a relative, over domestic differences. Nusrat was imprisoned and her suckling child was admitted to jail with her. Nusrat's request for bail was rejected by the Lahore High Court. However, the Supreme Court granted her bail subject to the posting of a bond and the provision of one surety. The Court held: [T]he suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of “welfare of minor” is incompatible with jail life. So, instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from jail. In famous case of Ghamidiyyah, our Holy Prophet Muhammad (p.b.u.h.) had suspended the sentence on pregnant woman, not only till delivery of child but also postponed it till suckling period i.e., two years, obviously for the welfare of the child. This shows the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of, and the protection given to a child born or expected to be born, by our Holy Prophet Muhammad (pbuh). Mst Nasreen vs. The State, 1989 MLD 1350 (Lahore). The Court granted bail to Mst Nasreen, an accused in a murder case, subject to the postage of a bond and the provision of two sureties. The Court took notice of the fact that the State counsel conceded the fact that the accused had a suckling child around the age of one year. The Court granted bail “merely on the ground that the welfare of the suckling child so demands that the child should not be made to suffer in jail for the murder allegedly committed by his mother” and the release of such woman “would be in furtherance of principles of justice expounded under Islamic Criminal Law.” Mst Ansar Jan vs. The State, 2000 P. Cr. L. J. 585 (Peshawar). Mst Ansar Jan was charged under PPC 302 for the murder of Mst Naseem. The murder was a final consequence of a domestic dispute. Naseem was set on fire and finally succumbed to her injuries. The factual contention was whether the deceased committed suicide or was murdered by the petitioner. The court granted bail to the petitioner. The court cited prominent case law34 including the Ghamidiyyah incident. The Court noted that the petitioner had one child who was hardly 1 1/2 years of age and in addition the petitioner was also eight months pregnant. The Court granted bail subject to the

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surety and bond requirements “keeping in view the advance pregnancy and welfare of the child who is expected to be born in a couple of days.”35 Hameedan Bibi vs. The State 2001 P Cr. L. J 1296. The accused was caught with two kilograms of Charas and was subsequently arrested under Section 9-C of the Control of Narcotic Substance Act. She was pregnant at the time of her arrest and applied for bail from the Courts. Hameedan's application for bail was rejected by the Trial Court, with orders to the jail authority to make proper arrangements for the birth of her baby in prison. Once Hameedan had given birth to her baby in prison she reapplied for bail. The High Court came out with an unprecedented judgment in favor of the accused. This judgment was thorough and extensively analytical in nature.36 In addition, the Court made a concerted effort to conform to the principles of international law. The Court dismissed the bail application and directed the District Magistrate: …to arrange for the removal of the accused and her child to be interned in the Darul Aman immediately and to keep her there at state expense until her case was disposed of by the Trial Court or for the suckling period of two years allowed by Islam… state expenses were to be arranged under the Zakat fund or other funds meant for social welfare. According to the learned counsel for the prosecution's side, the present trend is that pregnant women are being used for smuggling of narcotics because it is easier for them to obtain bail on this ground. [B]ut the question is, should the new born child who has committed no wrong, also suffer in jail because of the necessitated company? The answer is in the negative. The Court subsequently discussed the relevant provisions of the Prisons Rules, Chapter 13 and the fact that under such rules when the child attains the age of six in prison in the province of Punjab, the child is to be released from the prison. In this regard, the District Magistrate has to make arrangements for his care by arranging the removal of the child to “a health nursery surrounding through the special societies managing such institutions,” in case the relatives or friends of prisoners are unwilling to support the child. The court then discussed the case of Ghamidiyyah and the related Sunnah of the Holy Prophet (pbuh). The Court pointed out that Pakistan's obligation as a responsible member state to the international community demanded a certain course of action with regard to the social welfare of imprisoned mothers and children. The Court added: We are signatory to the United Nations Charter of 1945. Article 25(2) of the Charter reads as follows: “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” “Reference may also be made to the Convention on the Rights of the Child adopted by the United Nations General Assembly on November 20 of 1989. A reference may also be made to Article 20 of the Convention which reads as follows: “A child temporarily or permanently deprived of his or her family environment, or in

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whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. (2) State parties shall in accordance with their national laws ensure alternative care for such a child. (3) Such care could include, inter alia, foster placement, Kafala of Islamic Law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regards shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural, and linguistic background. Reference may also be made to the Cairo Declaration on Human Rights in Islam, dated 5 August, 1990. Its Article 7 (a) reads as follows: “As of the moment of birth, every child had rights due from the parents, society and the State to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be protected and accorded special care.” The court finally concluded that Chapter 13 of the prison rules was deficient with regards to Pakistan's obligations under international law. The Court stated, “We are supposed to amend the rules for catering for the needs of the newly born children in jail by amending Chapter 13 and particularly rule 327 in this connection.”37 This High Court's opinion is exceptionally favorable towards the amelioration of the plight of imprisoned pregnant women, mothers and their children in jail. In fact, the Court directs the State to send the concerned to community centers for care, without any legal formalities and requirements such as posting of bond and provision of sureties. The Court also demanded an amendment to administrative and legislative rules and regulations in order to bring such rules in line with norms of justice, international and Islamic laws. Though critics would argue that such a move by the Court is an infringement on the executive and legislative branch, the counter argument would be that the Court is only indulging in the clarification of the law, which has been ordained under Islamic Law and the Constitution. End Notes 1. < http://www.thefab.net/topics/social_general/sg01_prison.htm> Posted on 23 Nov 2005 2. <http://www.sheilakitzinger.com/Prisons.htm> Posted on 23 Nov 2005 3. <http://www.sheilakitzinger.com/ArticlesBySheila/BIRTH_Sept1997.htm> Posted on 23 Nov 2005 4. <http://november.org/stayinfo/breaking/Geographic.html> Posted on 23 Nov 2005 5. <http://www.dawn.com/2004/03/12/int7.htm> Posted on 24 Nov 2005 6. <http://www.indiavisionfoundation.org/about.htm> Posted on 24 Nov 2005 7. <http://www.dawn.com/2004/08/25/nat22.htm> Posted on 24 Nov 2005 8. See Liaquat and another v. The State, 1999 P. Cr. LT 1004 at 1005 (Article 10 of the Constitution highlighted without any discussion of how such Article was relevant). Article 10 relates to “Safeguards as to Arrest and Detention.” 9. Noor Khan v. The State, 1992 P.Cr. L.J. 2459 10. Asia v. The State, PLD 1996 Lahore 45 11. See Shahla Raza v. The State, 1991 MLD 1814 (Karachi) at 1816; See also Maqsood Ahmad

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12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25.

26.

27. 28. 29. 30. 31.

32. 33. 34. 35. 36.

37.

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v. The State, 1994 P Cr. L.J 514 at 515 (Lahore) “petitioner being a woman is entitled to special treatment.” M. Ashraf v. Nusrat Sultana, 1995 MLD 1217 Double Jeopardy, Police Abuse of Women In Pakistan at 43, Human Rights Watch <http://www.hrw.org/reports/1992/pakistan/> See 1983, P. Cr.L.J. 199 (Lahore) Asma Jahangir and Hina Jilani, The Hudood Ordinance: A Divine Sanction ? (Lahore: Rhotac Books, 1990), pg 136 Ibid at 42 Ibid Ibid Prisons Rules, 1978, Chapter 5, Rule 90 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, section 20 (1) Double Jeopardy, Police Abuse of Women in Pakistan at 45, Human Rights Watch. <http://www.hrw.org/reports/1992/pakistan/> Prisons Rules, 1978, Chapter 13, Rule 324: “The case of the under trial women prisoners expecting confinement shall be referred to the District Magistrate with a view to the release of such prisoners, but if release on bail is not possible provisions laid down in the preceding rule shall be followed.” The doctrine under which courts adhere to precedent on questions of law Ghulam Sakina v. The State, 1991 P Cr. L. J. 1316 at 1317 (Lahore) See Preamble, Article 5(b), Article 11 and Article 12 of CEDAW; see Article 2 (2), Article 3 (1), Article 6, Article 9, Article 18 (2), Article 19, Article 20 (3), Article 24, Article 27, Article 28, Article 29 and Article 37 of the Convention on the Rights of the Child “Application for bail (1) every application for bail shall be supported by an affidavit. (2) An application for bail shall be treated as urgent and shall ordinarily be placed before a Bench on the following day after its presentation.” Liaquat and another v. The State, 1999 P.Cr. L. J. 1004 at 1005 Mst Sitara Bibi v. The State, 2003 P Cr. L. J. 402 at 405 Mst Parveen Iqbal v. The State 2004, P.Cr. L. J. 20 at 22 Ghulam Sakina v. The State, 1991 P Cr. L. J. 1316 at 1317 (Lahore) In Sughran Bibi v. The State, 1991 P. Cr. L. J. Note 238. The Court allowed bail under S. 497 (second proviso) to the concerned females under-trial for different offences except for those being tried under the Hudood laws But see Mst Asia v. The State, PLD 1996 Lahore 45 Mst Neelam Mawaz v. The State, 1994 P. Cr. L. J. 1922 at 1931(Lahore) Mst Nusrat v. The State, NLR 1995 Criminal 8 (Supreme Court of Pakistan); Mst Nasreen v. The State, 1989 MLD 1350 (Lahore) Mst Anwar Jan v. The State, 2000 P. Cr. L.J. 585 at 589 (Peshawar) This judgment was rendered by Justice M. Javed Buttur and Justice Ali Nawaz Chohan. Justice Chohan is an extremely learned and unique judge. His judgments are extensively analytical and he substantiates his reasoning by critically analyzing not only Pakistani judgments and Islamic law, but also International Customary and Treaty based laws Ibid at 1299. With regards to the procedure for bringing about such amendments the Court stated that “[w]hile the Provincial government is directed to amend the Rules reflected in Chapter 13 of the Prison Rules, [a] copy of the order may, therefore, be immediately sent to the Home Secretary, Government of the Punjab for compliance. While a copy of this order also be sent to the Secretary of the Pakistan Law Commission for necessary action in this connection. The District Magistrate shall be submitting a compliance report to this Court ensuring that it reaches this Court by the 1st of June, 2001. Obviously, the Jail Superintendent has to facilitate the District Magistrate for fulfillment of the requirements aforementioned.”

South Asian Policy Analysis Network (SAPANA) Envisioning A New South Asia Islamabad: April 30, 2006 Leading experts, academics, and scholars from the member countries of SAARC, representing different disciplines and sectors, met at the South Asian Journal Conference "Envisioning South Asia", facilitated by SAFMA on April 29-30, 2006, in Islamabad, Pakistan. They deliberated upon and initiated a process of evolving a holistic and integrated South Asian Vision by and for South Asians and a strategic understanding on meeting the challenges of the 21st century and globalisation and ushering in a new era of South Asian fraternal, equitable and collective partnership: 1.

South Asia is at a historic moment of unprecedented potential for transforming its economic and social conditions and, together with China, emerging as two large economies in the next two decades, playing a key role not only in the global economy, but also in the development of human civilisation in the 21st century. Yet the world cannot be sustained by economic growth alone. Human life is threatened with environmental crises, conflicts, endemic poverty, natural calamities and an arms race.

2. Our societies have a rich cultural tradition of unity in diversity, creative growth through human solidarity and harmony with nature. In bringing these aspects of their culture in facing contemporary challenges, the people of this region could bring new consciousness and institutions to the global market mechanism that can take the world on to a new trajectory of cooperative, sustainable development and human security. Global cooperation in environmental protection, poverty reduction and defusing the flash points of social conflict and an end to violence, terrorism and repression will become the essential underpinning of sustainable development and human security in this century. Thus it is not the military muscle of a state/region that will be the emblem of status, but its contribution to meeting the challenge of peace, overcoming global poverty, protecting the planet from environmental disaster and contributing to humanizing the world and advancement of its people. 3. The global environment provides a historically unprecedented scale of capital flows, trade opportunities, information and technologies, which, if utilized, can dramatically transform the material and social conditions of life of the peoples of South Asia. A vision is efficacious to the extent that it can be concretized. This requires bringing to bear the new consciousness of South Asian Cooperative and Equitable Partnership to undertake specific policy actions. Apart from

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implementing the decision at the Islamabad SAARC Summit to establish a South Asian Free Trade Area, SAARC Social Charter, ISACPA Report on Poverty Alleviation, three broad areas for deepening economic cooperation can be identified for the purposes of specific policy action: (1) Energy Cooperation and Water Management and Conservation within South Asia; (2) Increased investment for accelerating economic growth, especially in physical and social infrastructures; (3) Restructuring growth for faster poverty eradication and human resource development. 4. With the most contiguous region of the world, a common history to share and similarities of cultures, South Asia has fewer baggage(s) to shed than Europe or the Far East. It is now booming with the ideas of regional cooperation that take a wholist approach towards the collective good of the region as they increasingly find state-centric and security-centred approaches inconsistent with the interests of our 1.4 billion people and the imperatives of our times. 5. India and Pakistan are at a crucial moment in history when economic cooperation between the two is necessary for sustaining their respective economic growth rates. a) India will require rapidly rising imports of oil and gas from the Middle East and Central Asia to fuel its economic growth. Pakistan is the natural conduit through which these oil and gas supplies can be transported into India and the rest of South Asia. b) India's growth in the past has been based essentially on the home market. In the future, sustaining growth will requite export markets in Pakistan and other South Asian countries. c) Similarly, the sustainability of Pakistan's GDP growth requires a large increase in investment, particularly in infrastructure, and the Indian private sector, along with direct foreign investment, can fill this gap for Pakistan. d) The oil and gas pipeline from Iran through Pakistan to India alone can generate over $700 million a year and with similar lines from Central Asia, Afghanistan through Pakistan another $500 million. This could add 1.5 percentage points to Pakistan's GDP growth. e) The gains from trade between India and Pakistan will be greater for Pakistan than India, and can accelerate GDP growth in both countries. Thus opening up trade and investment is vital for growth sustainability in South Asia. 6. Energy and Water are two vital resource inputs into economic growth. South Asia requires integrated gas and electricity grids for the welfare of each South Asian country. Similarly, South Asian regional agreements among upper and lower riparian states on the model of the Indus Basin Treaty need to be made between Nepal, India, Bangladesh. Similar protocols need to be developed for upper and lower riparian districts/ provinces within each country. These are necessary to avid inter and intrastate tensions in the future. 7. Governments in South Asia need to realize that in the next two decades, South Asia will become the second largest economy in the world after China. This means that the centre of gravity will shift for the first time in 300 years, to this part of the world from the West. This presents a new challenge to South Asian citizens to develop new paradigms of economic policy, governance and international

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relations. a) At the level of economic policy we need to restructure our GDP growth so as to achieve growth with equity which requires making the poor not into victims but the subjects of the growth process, from being marginal to becoming the mainstream of economic growth. b) At the level of governance we need to give up the 18th century notion that economic gains must be translated into increased military power. In an inter-dependent world the emblem of the status of a country will be based not on its ability to destruct but its ability to save the planet from ecological disaster and to build a more humane world. c) At the level of international relations we need to replace the competitive and hegemonic model of interstate relations with a cooperative model. We can start with South Asian cooperation to demonstrate to the world that the maximization of national welfare lies not in conflict but cooperation, not through aggression but through human solidarity. 8. The remarkable concurrence of views expressed by the experts at South Asian Journal's conference reflect the immense urge of our peoples to outgrow the past and take a leap into a future that is free from want and conflict. Certain stages of history can be skipped, so can various evolutionary stages through which, for example, the European Union had to pass in the 20th century. The intrastate conflicts and interstate disputes must move from management to resolution in a result-oriented process that must at the same time allow, rather than hinder, regional cooperation to address the demands of our peoples. The lines of conflicts must change into the bridges of friendship and the fenced-borders must gradually soften before the urge of South Asians to become a fraternal and indivisible community of people with nation states, while keeping their sovereign equality, joining hands in submitting before the will of their real sovereigns-- The People. 9. With a step-by-step approach, and simultaneously, all sided measures can be taken through an integrated and well calibrated sequencing and realistic stages, towards South Asian Free Trade Area, South Asian Union, (Tourism/Environment/ Water/Energy/ Communication /Information/ Economic), South Asian Tariffs and Customs Union, South Asian Monetary Union, South Asian Bank and Development Fund, South Asian Cooperative Security and South Asian Parliament. However, to take a leap forward, there will have to be no hegemony, or ganging up by the small against the big. A new paradigm of equitable, if not equal, partnership must evolve to reshape our allsided relations. 10. Welcoming the current peace process between India and Pakistan with its twofold objectives: the exploration of all options for a final settlement of the J&K question in an atmosphere free of violence, terrorism and normalization of bilateral relations while implementing their joint statements of January 6, 2004, September 24, 2004 and April 18, 2005 in their letter and spirit. Appreciating the efforts by India and Pakistan to undertake nuclear and conventional military confidence-building measures, we urge them to put in place a comprehensive regime of CBMs that will ensure a nuclear-tension free subcontinent. We endorse the demands of India and Pakistan for negotiations with the other nuclear

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weapons powers to promote global non-proliferation and effective nuclear disarmament. Appeal to all countries in the region to put in place comprehensive sustainable dialogue mechanisms for resolving all bilateral disputes. While India and Pakistan today have a composite dialogue in place which needs to be given further impetus and momentum, similar exercises are needed, for example between India and Bangladesh. 11. Concerned about various intrastate conflicts, such as in Sri Lanka, Nepal and elsewhere, we call upon the concerned parties to hold fire, take necessary confidence building measures and allow peace process to address their relevant genuine concerns and propose alternative solutions on which the parties could mutually agree to resolve their disputes. 12. Welcoming the victory of democratic struggle in Nepal, a broader consensus on convening a Constituent Assembly, without any conditions, the urge of all segments of civil society to find an amicable peaceful solution to the causes that gave birth to the Maoist upsurge and to set a democratic path of free and fair elections, we hope that the people of Nepal will realize the dream of a Republic and set a laudable example for those other peoples who are still struggling to achieve their democratic aspirations against the remnants of authoritarianism and extremism. 13. Facing the challenges of globalization and taking a collective stand in the ongoing trade negotiations on WTO, South Asia should set its own house in order to pursue its collective goal of creating an even playing filed both within the region and in the world. While keeping the demands of an integrated and a wholist approach, the SAPANA Research Groups have agreed on the identification of problems in various areas and have made initial recommendations: 1. South Asian Free Trade Area The agreement on South Asian Free Trade Area (SAFTA) requires effective implementation, expanding the space for trade and, more importantly, economic collaboration, investment and development. If South Asia's economies are to be integrated, it presupposes development of trans-national communication networks and physical infrastructure and monetary cooperation involving greater coordination among the governments and the central banks. Despite limited complementarities in trade-able items, due to similar comparative advantages, expansion of trade warrants vertical and horizontal integration of industries and investment in joint ventures by public and private sectors. However, trade and investment will not move ahead unless tariffs are lowered, the negative-list kept to the minimum, para and non-tariff barriers removed and standards harmonized. Streamlining borders transactions through trade facilitation at sub-regional junctions, special attention needs to be focused on promoting border trade. Increase in efficiency

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within the sub-region often spills over into trade outside the region as well, because improving customs or improving efficiency of ports helps both intraregional trade and international trade. The Group on Tariff and Macro-economic Harmonisation Recommends: l The average rate of tariffs has gone down in all the South Asian countries but

some of them impose para tariffs, including regulatory duties, anti-dumping duties, and specific duties and non-tariff barriers. Transparency in the tariffs structure needs to be ensured. While the average duties are not all that high there is a need to remove tariff peaks. Further reduction in duties should ensure that the industries where the country has dynamic comparative advantage are not closed down. The group also recommends trade facilitation because various procedural requirements discourages growth of trade; l Containing fiscal deficit policy should be pursued by making judicious choices between growth and stability; l The prudential regulations for the banks should be effectively implemented and it needs to be ensured that the efficiency gains result in higher deposit rates and/or lower rates on the advances. The pursuit of prudential regulations should not be applied on the small and micro enterprises who cannot meet the collateral requirements; l South Asian countries may continue to have floating exchange rates and the central banks may only intervene to keep the currency near the equilibrium value; l The South Asian countries may further deregulate the economy and may continue privatization policies as long as the private sector monopolies are properly regulated; l Whereas South Asian countries are struggling to promote trade within the region, the ultimate objective should be the economic union and common currency. Whereas political agreement would be necessary to make SAFTA effective, formulate the custom union and economic union, various steps will have to be taken before economic union is formed. The countries will have to coordinate the exchange rate, fiscal and monetary policies; l The coordination of policies would imply that the countries are willing to increase interdependencies and the commitment of the union to help the country suffering from any problem and a South Asian Fund may be created for this purpose. Various studies need to be conducted to examine the problems by way of policy coordination and the lack of economic policy options when the economic union is formed; and l The group also feels that the South Asian countries have achieved growth rates exceeding 8 per cent in recent years and they expect the growth rate to continue. However, the investment rates and other prerequisite to the high growth rates are missing and they must try to overcome the stumbling blocs to growth. Investments 1. Intra-regional investment plays an important role in transferring surplus capital from capital endowed countries of a region to capital deficit ones and along with it technical, managerial and marketing skills. It also plays a vital role in industrial restructuring within the region and helps in moderating trade imbalances among

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the member countries. In view of the crucial role of investments, it is desirable that member countries of SAARC evolve a common investment policy so that instead of competing with each other in terms of offering fiscal incentives, they facilitate freer flow of capital among them that extend beyond their respective countries. The elements of such an investment policy include capital flows to mitigate the trade deficit and capital scarcity, avoidance of double taxation, protection of investment and conditions governing the management of foreign exchange, differentiating between the requirement s of least and non-least developing countries.

The 13th SAARC Summit held in December 2005 adopted three treaties for promoting investment facilitation. These are related to customs cooperation, limited double tax agreement and setting up of an Arbitration Council. The scope of these agreements needs to be extended so that the goal of a SAARC investment area is realized.

e. f.

Common formats need to be developed for declaration forms; These forms be made available in electronic form, and available in all major languages in the region; g. Information and data be exchanged freely; h. Countries to do away with secretive sensitive lists; i. A common software be used that would simplify declaration and valuation; j. Mutual recognition of certification; k. Common standards and testing procedures to be followed; l. Capacity building and technology transfer be speeded up; m. Pakistan to take a lead in trade facilitation efforts, Sri Lanka to lead the efforts towards breaking down non tariff barriers; n. Allow and encourage trade in services by recognizing University and college degrees across the region.

2. South Asian Customs, Tariffs and Monetary Union Intra-regional trade and Investment will, subsequently and gradually, translate into a South Asian Customs and Tariffs Union which may lead to a common exchange rate policy that will, eventually, necessitate the creation of a South Asian Monetary Union underwritten by macro-economic management and harmonization of trade, fiscal and monetary policies at the regional level.

3. Water Sharing and Management Increasingly, the governments and concerned institutions are realizing the need to address acute shortage of energy and water, incidence of drought and floods that often bring miseries to the people and, at times, states into conflict. The distribution and management of water resources, though quite a divisive issue among the upper and lower riparian regions across states, needs to be undertaken amicably without depriving the lower and upper riparian regions of their due to avoid a conflict over water issues which must not be politicized.

No less important is the cooperation in the transport and communication sectors envisaging an integrated transport infrastructure that allows uninterrupted travel across and beyond our region and communication highways, facilitating free movement of people, goods and unhindered flow of information across the region and beyond, connecting South Asia with Central, South Western and South East Asia. Not only do rail and road links between Pakistan, India, Nepal and Bangladesh need to be rehabilitated, a system of connectivity will have to be constructed especially for the railways and the truckers will have to be issued special permits.

Bilateral treaties, such as Indus Water Treaty between India and Pakistan and the Treaty over Ganges between Bangladesh and India must be respected and upheld in letter and spirit. The Mahakali Treaty between Nepal and India may be implemented by removing reservations of either side. The quadrangle of Bangladesh, Bhutan, India and Nepal may take up an integrated approach to manage water resources while keeping the interests of upper and lower riparian, on the one hand, and India and Pakistan must overcome their differences over Tulbul, Baglihar and Kishanganga projects within the framework of the IWT, on the other.

Nevertheless, the Indian and Pakistani governments must agree to transit of trade between Pakistan, Bangladesh, Nepal, India and Central Asia. For promotion of trade the countries will have to facilitate cross border movement of people and goods. Visa and custom facilities will have to be simplified, and for special categories of people and goods waived, across the board.

There are other major water related problems that need to be addressed on a priority basis with water cooperation among the member countries of SAARC to enhance water and food security. There is a great hydro-power potential in Bhutan and Nepal that can be utilized by other countries of the region. However, that would involve the need for a common or bilateral grid, on which all concerned countries would have to agree.

The Group on Custom Laws and Issues Recommends: Trade is growing in the region the mindset of protectionism is changing. Trade barriers still exist, with high tariff barriers and a large number of non tariff barriers. The economies are booming and clearly need to be integrated. Recommendations: a. Customs laws need simplification and harmonization; b. Dry ports need to be set up and transit rights be given freely; c. Valuation procedures need to be harmonized; d. Warehousing infrastructure, charges and fees needs improvement;

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Recommendations of the Water Group The regional water scenario of South Asia is predominated by increasing gap between increasing water demand and insufficient supply, high allocation to agriculture and growing new commercial demands, trans-boundary and regional conflicts generated from upper versus lower riparian water needs/interests, increasing interest in hydropower and new management experiences. Policy challenges are linked to the socio-economic approaches, selection of technical solutions and institutional capacity. The following general and specific recommendations could be made, based on the group discussion:

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a. The trans-boundary conflicts are based on concerns of the lower riparian countries to secure river flows (Pakistan and Bangladesh versus India) on one hand and development interests of the upper riparian especially for the hydropower (Nepal versus India, India vs. Pakistan). The multi-purpose and multi-country planning for the Himalayan water resources and the South Asian water basins is the proposed future option. (proposed NIBB-C Water Ways is an example) b. All South Asian countries are going through the experiences of decentralization and local management. Different models have been tried the success so far indicates involvement of local civil society, political acceptance and local institutional implementation capacity as the key elements. The national experiences needs to be impartially evaluated and put in the proper context. c.

The efficiency and productivity of water use in agriculture must be enhanced along with sustainable use of water in agriculture. The physical water stress and growing urban needs of Pakistan and India suggest a slow transfer of water from the sector.

d. All infrastructure developments should consider long term conservation of the natural water resources (all water bodies, including lakes, river sections and groundwater) and regenerative use of water. The central and top-bottom engineering approaches are not able to move forward due to political as well as hydrological reasons, hence, the technical options must be formulated across the appropriate local hydrological and political boundaries. e.

The human access to water resources, on the one hand, and increased commercial value of water, on the other, are the growing challenges for the planning and development. The secure allocations for the domestic and drinking water, equitable distribution and fair water pricing in different sectors and regions are the essential regulatory measures. The public sector as a service provider has the responsibility to define guidelines.

The water related sectors have the great opportunity for the knowledge sharing in the technical and managerial fields.

4. South Asian Energy Grid Similarly, the energy cooperation should evolve into a South Asian Energy Grid with integrated electricity and gas systems. As India and Pakistan now agree, and they must move forward, the gas and oil pipelines can run from Central Asia, Gulf, Iran and Myanmar through Pakistan, Afghanistan and Bangladesh to whole of South Asia and beyond. In this context of developing energy markets, power trading in the region calls for establishment of high voltage interconnections between the national grids of the countries. India, Pakistan, Nepal and Bangladesh should cooperate in transportation of gas and jointly developing, trading and sharing of energy.

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The Energy Group Recommends: South Asia is home to 22 percent of the world's population and occupies only 4 percent of the world land mass. All the countries in the region are developing economies and heavily dependent on energy imports despite being bestowed by nature with large energy resources including hydro, solar, wind and, to some extent, natural gas resources. However, they have not been able to exploit their energy resources to meet the demand. Energy imports constitute 27 percent to 87 percent of their commercial energy needs. Price fluctuations in the international oil market have been adversely impacting the economies of the region. Projected energy consumption to sustain the current economic growth levels would call for a more than 300 percent increase in their energy consumption by 2020. Energy security, therefore, assumes greater significance for the socio-economic development of South Asia. The major causes of concern from the regional energy security perspective are: a) Short-term supply risks due to threat of war and military action that may impact Middle East or Iran, the primary source of commercial energy supply to South Asia; b) Difficulty to pay for oil imports, when the prices shoot up sharply; c) Prospect of obtaining to long term gas and oil supply contracts at affordable prices, which can also ensure greater price stability; d) Availability of electricity to all households within a reasonable time span to enhance the socio-economics development and improve quality of life. The following steps to be taken urgently to address the above concern: a) Expedite development of indigenous energy resources including hydropower while taking into account issues of resettlement and socio economic crisis. Nonconventional energy resources, such as, the wind and solar energy resources, such as, the wind and solar energy to meet the long term energy demand; b) Establishment of a South Asian regional power grid to facilitate exchanges and trading of power to meet the electricity demand in the region; c) Development of a South Asia Gas Grid with pipelines from Iran. Turkmenistan, to facilitate natural gas surplus countries in the neighborhood of South Asia to facilitate natural gas imports into the region and its distribution among the countries of South Asia; d) Establish South Asia Energy Research Programs for development of new technologies that would facilitate harnessing the benefits of solar and other energy resources on a more sustainable basis; e) Establish regional energy cooperation on a long-term basis; f) Undertake evaluation to examine the appropriateness and impact of power sector reform initiatives undertaken by the countries in South Asia to identify the need for any course correction or policy change. 5. South Asian Development Bank Given a low rate of investment to GDP ratio, South Asia must create attractive environment for investment in high value-added manufacturing lines and transregional projects. Enhanced investment flows, both from within and outside the region, would culminate in production facilities located across the region through

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integrated production systems. Shares of both national and regional companies would be quoted on our stock exchanges as capital moves without hindrance across national boundaries to underwrite investment in joint ventures and projects in any part of our region through a South Asian Development Bank. 6. Addressing LDCs' Concerns However, economic cooperation and trade would not produce tangible results unless the concerns of Least Developed Countries (LDCs) are genuinely addressed, the negative-list is minimized, tariffs are substantially brought down and non-tariff and para-tariff barriers lifted, the economies are gradually opened up with a recourse to investment-trade linkage that takes care of trade deficits between partners through investment flows and capital account, vertical and horizontal integration of industries that benefits from relative advantages and economies of scale. The time frame envisaged in the agreement on SAFTA must be strictly adhered to. 7. South Asian Cooperative Security We resolve to get out of the straitjacket of enmity, overcome obsession with overdemanding militaristic security paradigms and look beyond the traditional notions of security and focus on an integrated South Asian Cooperative Security that recognizes interdependence and mutuality of interests. The states ought to act in their enlightened self-interest to resolve their conflicts and differences through peaceful means and to the mutual benefit of our peoples. The choice is often, erroneously, posed between regional cooperation and conflict resolution. We urge all our states to simultaneously move forward to address long-standing political disputes through peaceful means. The main obstacle to regional cooperation and economic integration remains political and strategic. Therefore, we vow to be courageous, flexible and consistent to help resolve interstate and intrastate conflicts and dismantle political barriers to regional economic takeoff. Countering the widespread threat of terrorism, the SAARC countries must implement the current protocol for cooperation against terrorism and bring it in line with the international norms. The regional efforts against terrorism must also include measures to combat the spread of small arms and light weapons, narcotics trafficking, smuggling, organized crimes and criminal mafias. This will require exchanges and interaction between the national intelligence and security agencies with their counterparts across the border and greater interaction between the armed forces and military establishments in the region. The conference strongly emphasizes the principle that there can be no intervention in the internal affairs of any nation in the subcontinent. Yet, given the implications of internal conflicts for regional security as a whole, the SAARC must pay greater attention to the relationship between internal and regional security. It calls on both parties to the ethnic conflict in Sri Lanka to take immediate steps towards a revival of the stalled peace process and creation of an interim administration in the Tamildominated regions while securing integrity of the country and the rights of minorities there.

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Without prejudice to the current positions of the SAARC governments on amending the SAARC charter, the conference calls upon the SAARC to initiate a study on mechanisms for cooperative security in the region. Advancing the SAARC charter, the conference welcomes the decision, in principle, of the Islamabad SAARC summit to establish procedures for cooperation with other countries and organizations. Given the increasing interdependence among regions, cooperation with neighboring countries, such as China, Afghanistan and Myanmar and Central Asia, and other regional organizations, it is an essential future activity for SAARC. The Group on Nuclear Stabilization Reommends The existence of nuclear weapons in South Asia remains an issue of major concern for the peoples and region's security analysts. Given Indo-Pak history of constant tensions and intermittent crises, we are concerned about the likelihood of a crisis spiralling out of control and eventually leading to a nuclear conflict. While we find the South Asian nuclear regime to be relatively stable in peace time, there is indeed nuclear instability induced into the nuclear equation in time of crises. This is borne out of an analysis of the 1999 and 2002 crises between India and Pakistan. Moreover, since one of the adversaries, Pakistan, inherently links nuclear escalation to conventional asymmetry, the growing asymmetry in conventional arms between Pakistan and India could also lead to a lowering of the nuclear thresholds in terms of South Asian crises. Finally, while the mutual ambiguity of the nuclear regime in South Asia contributes to stability on some counts, it does not allow the adversaries to make informed decisions in times of crises and can thus lead to instability. Given the above, the recommendations of the group include: Recognizing that much of the tensions are a result of outstanding disputes, we recommend that Pakistan and India must continue dialogue on these issues and continue on the overall drive towards CBMs through the existing normalization process. With regard to nuclear weapons, Pakistan and India should mutually initiate a global drive towards disarmament. The starting point should be a declaration that transforms South Asia into a nuclear weapons free zone. More specifically, the two sides could focus on the following: a) Declaring a bilateral ban on nuclear testing through an agreement; b) Ceasing the production of all fissile material (agreement); c) Signing a non-deployment agreement, agreeing that weapon systems will not be mated or deployed (agreement); d) Signing an agreement no to pre-empt nuclear installations of the adversary; e) Establishing of NRRCs but with a legally binding agreement that such channels will remain open during crises; f) Enhancing command and control structures to eliminate the likelihood of an accidental or unauthorized nuclear conflict. The Group on Conflict Resolution Mechanism Proposes: Conflicts in South Asia are passing through a critical phase of transformation which requires a proper understanding, interpretation and information about issues which

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cause conflicts. For a long period of time, South Asia has perceived conflicts through a zero-sum perspective but the process of gradual conflict transformation is taking place in the region which may help the formulation of conflict resolution mechanism. Recommendations: a) Need for proper conceptualization and understanding of conflicts and their interpretations in a rational manner. Therefore, it is recommended to establish conflict resolution centers and institutes at the governmental and nongovernmental levels so as to unleash the process of meaningful research in the field of conflict resolution. It is also recommended to design academic curricula on conflict resolution so as to create a better awareness among the people of South Asia about the need for a conflict resolution process. Both print and electronic media of South Asia can play a plausible role for creating proper conditions for conflict resolution process; b) Involvement of stake holders and allow them the space to craft out alternative conflict resolution mechanism. Stakeholders must have political will for conflict resolution and women should be made an integral part of this mechanism. The composite dialogue going on between India and Pakistan should also focus on the practicable conflict resolution strategy as far as contentious issues are concerned; c) State structures and their proponents should also be influenced because states are often the creators, promoters and sustainers of conflict; d) There should be SAARC conventions on minority and water rights' charters and the existing human rights' charter of SAARC needs to be strengthened and properly implemented.

8. South Asian Human Security Beyond cooperative security, South Asian nations must ultimately move towards South Asian Human Security by placing people -- their wellbeing and rights to peaceful life and development -- at the centre of security concerns, rather than intensifying the arms race. To include the excluded, governments of South Asia should take concrete steps to implement the SAARC Social Charter and give priority to poverty eradication by implementing ISACPA Report on Poverty Alleviation and meeting the Millennium Development Goals. This can be done by increased investment, enhanced economic growth and development, which do not necessarily translate into poverty alleviation unless structured to address the root-causes of poverty and give priority to human resource development, employment generation and empowerment of the dispossessed, women and the poor, in particular. 9. South Asian Parliament The South Asian region emerged out of decolonization as a result of the drawing of political boundaries with sovereignty attributes forming new states. The political boundaries have further been reinforced through divergent strategies of state and nation building, reinterpretations of history and religion, and due to the Cold-War strategic divides. In the context of these reinforced boundaries and divisions, it may sound imprudent and even unrealistic to talk of political integration in the region. However, over the past decades, the imperatives of globalization, end of the cold war and rising popular aspirations in each of the South Asian states have brought about

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qualitative changes in the regional perceptions. Processes like SAARC have created institutions and generated impulses under which people are visualizing the prospects of establishing a South Asian community. Regional integration should and will take place within the framework of community building, not by conceiving or attempting erosion of state sovereignties or identities. The examples of SAFMA's initiative towards South Asian parliament and the collective and individual attempts in India and Pakistan to re-write history text books are indicative of growing popular pressure in favour of community building. The SAPANA Group decided to mobilise country-based but comparative studies, that address the question of state building strategies, nationalism, status of minorities within and otherwise in the context of human rights and democratic polices. Studies will also take note of the professional engagements like that of Chamber of Commerce and industries, media, lawyers, academics, doctors and human rights activists across the board initiated and institutionalised within or outside the SAARC framework. The basic strategy to be adopted towards community building through integration will be to encourage institution building and engagements. Patterns of sub-regional cooperation amongst the parts of the states and societies in South Asian, linkages among parliamentarian, political parties, scholars and analysts, as well as transport and communication networks across the borders driven by popular pressures present concrete examples of such strategy. The conclusions of the studies will then be put in a perspective to map out the properties of community building through integration. The Group on South Asian Political Integration Recommends: The participants overwhelmingly endorsed the view to initiate a process of moving towards the creation of an institutional interactive mechanism for parliamentarians of South Asia keeping in mind the concept of a South Asian Parliament. A full fledged SAP may take a decade or two, but it is time to initiate moves in that direction. To begin with, the conference proposes: a) Creation of an Intra-Parliamentary Union in South Asia; b) SAARC may in principle agree to create a South Asian Parliament and appoint a group of experts, responsible before the SAARC Speakers Forum, to prepare a comprehensive report and a timeframe to establish it in stages and through an evolutionary process; c) The SAARC Speakers Forum should be activated and; d) To begin with, SAP may be set up as a deliberative and consultative body, not as a legislative body, so as to create regional opinion on and build regional pressures on the issues pending for implementation at the SAARC level. This deliberative body may work within the SAARC agenda. By ultimately creating a South Asian Parliament, the evolution of a regional South Asian identity, without in any sense compromising on or conflicting with respective national identities and sovereignty of nation-states of the region. The Group on Re-writing History Recommends: There is very little shared knowledge of how history is researched, written and taught in each of the countries of South Asia. Furthermore, there is inadequate recognition or appreciation of the shared past of this region. Despite this lack of knowledge about the past, references to and the use of history as a resource in a variety of political debates has only increased, particularly for the promotion of communalism,

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fundamentalism, casteism, regional and linguistic chauvinism. This makes it more difficult to produce trans-national historical perspectives. The close link between the state and historical research and textbook production has had ambiguous and conflicting consequences for developing a sense of the past. Historical research and analysis is still dependent on Western categories and tools of analysis. There is need to develop more indigenous categories. Recommendations The efforts at working out a common history of South Asia are viable. Even though there may be fundamental differences in perspective, it is possible to identify and work on common themes. Rather than focusing on national histories, themes that are shared by all the countries of South Asian countries should be identified and worked upon. Furthermore, a perspective on history that emphasizes the people, and neither fights shy of acknowledging historical injustices of caste, region, religion, gender, (to take some examples) nor glorifies them is an urgent imperative. We believe that such histories can help evolve a broader framework through stronger institutional linkages between groups of professional historians in South Asia. Such an engagement with the past will make a richer, fuller sense of the past possible, and have a great impact on society and the polity today and in the future. The Group on Religious Extremism and Minorities Recommends: Both minority persecution and ghettoisation have to be countered. There is still a major deficit in terms of information and understanding about events across the region even among those actively engaged with various human rights causes. Recommendations: 1. A standing body charged with responsibility to study and compose the institutional frameworks that seek to empower minorities across the region. Where institutional support is absent it should be highlighted. 2. The political position, strategies and rhetoric employed by the participants in the political process be monitored in order to identify issues that may impact minorities. 3. Intellectual tendencies and debates within discourses generated by the minorities about their situation those that promote minority empowerment be highlighted. 10. South Asian Human Rights Code It is imperative for the South Asian countries to agree to and set up institutions under the Paris Principles and purposefully set about creating the required mechanisms to implement all internationally recognized fundamental human, civil and democratic rights. The Proposed Draft on Human Rights Code for South Asia presented before the South Asian Parliament's Conference, convened by SAFMA, will be circulated among the human rights bodies of the region and Human Rights Commission of Pakistan and other human rights bodies in the region will be requested to develop broader understanding among the major stakeholders to develop a regional

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framework at the level of SAARC and its member countries. 11. People to People Contact The prevailing barriers to cross-border movements make neither commercial nor logistical sense and originate in the pathologies of interstate, as well as domestic, politics. There is an urgent need to allow greater interaction among the policy-makers, parliamentarians, businessmen, media practitioners, professionals, youth and the leaders of civil society. To enable it to happen, it is necessary that India, Pakistan and Bangladesh, who have the most restrictive visa regimes, drastically revise their visa policy and remove impediments to free movement of people. All-country visas may be granted at separate South Asian counters on arrival at the airports and on all bordercrossings. 12. South Asian Information Society To overcome information deficit in the region, it is essential that all restrictions on access to and free flow of information are removed forthwith and media persons and products are allowed free movement across frontiers. In this regard, SAFMA's Protocols on 'Free Movement of Media Persons and Media Products' and 'Freedom of Information' must be adopted by the national legislatures/governments and the SAARC. To ensure the citizens' right to know, we support SAFMA's Protocol on Freedom of Information. The media, on their part, should rise above national divides, avoid demonization and give special attention to the coverage of the countries of South Asia that remain under-reported. Given the rising numbers of South Asian Cyber citizenry, there is an urgent need to upgrade, integrate and facilitate cyber connectivity and accessibility. 13. Culture and Tourism The scope of collaboration in the sphere of culture, tourism, sports, education, health, research, human resource development and environment is infinite. At the level of SAARC, measures should be taken to promote cultural exchanges, tourism, health and education services and research in all fields. 14. Promotion of humanities. Private initiatives and those of universities should be encouraged by the authorities to introduce country studies, invite faculties from the neighbourhood, exchange students, promote humanities and physical sciences through South Asian congresses and undertake a non-discriminatory portrayal of history. Visa restrictions and tedious process for academics, experts and scholars must be dispensed with. 15. Women's Concerns Acknowledging the inadequate attention to and focus on redressing the marginalization and invisibility of women at all levels of national and regional policymaking; and the disproportionately high burden of poverty that women face in South Asia; SAPANA resolves to work towards gender equality and gender justice in all aspects of our work in the process as well as the substance; and exhort all the South Asian governments to acknowledge and rectify the glaring gender inequalities especially the feminization of poverty.

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16. South Asian Policy Analysis (SAPANA) Network: The participants of South Asian Journal conference have agreed to form South Asian Policy Analysis (SAPANA) Network that will pursue virtual research and develop networking among various independent research groups and scholars across the region to promote free and pro-people thinking and a course of development that addresses the concerns of the people, in a wholist and sustainable framework. The objective and purpose of SAPANA will be to redress the shortcomings found in existing Think Tanks and research organisations. Firstly, it is proposed that the main purpose and objective of SAPANA will be to liaise with policy makers and with governments in separate countries and in South Asia as a whole. The research undertaken by SAPANA, while following all the principles of objectivity and rigour, will serve as a platform for policy dialogue and intervention. SAPANA has a great advantage over all existing Think Tanks and similar institutions, in that it is part of the Free Media Foundation and will work closely with the South Asian Free Media Association (SAFMA). This proximity will allow SAPANA's research output to be available in the public arena through the media. This ability to disseminate extensively will be one of the major advantages SAPANA will have over other institutions. SAPANA will focus on multidimensional and multi-thematic interventions rather than specialise in one particular area. Because of the already existing network of the Free Media Foundation and SAFMA, SAPANA is being perceived as a sort of a 'virtual' institution. Unlike most research organisations and Think Tanks, for the first few years, it will not employ scholars and academics, but will out-source research. Because of its 'virtual' nature, not constrained by the abilities of an in-house research staff, SAPANA will have access to the best scholars working on South Asia who will be hired on short term contracts for specific purposes. Moreover, SAPANA will also be able to design research themes of a more topical and immediate nature requesting scholars to respond quickly. Its flexibility will be one of its many strengths. The participants appreciated South Asian Journal and SAFMA for taking this timely initiative. The participants of First SAPANA Conference agreed to meet again within two years to pursue their objectives and shared goals.

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