EAI launched the Asia Democracy Research Network (ADRN) in November 2013 to conduct research related to democratic governance and human rights promotion in Asia. EAI serves as a representative of domestic think tanks and leads the organization of regional think tanks in Asia. It is responsible for supporting and managing research related to democracy at associated research institutes. ADRN was established to analyze threats to democracy in Asia and to promote discussions and practical research projects that could contribute to the consolidation of democracy in the region. Aimed at presenting policies based on research, ADRN examines threats and challenges to democracy by identifying and studying practical agendas for developing regional democracy in Asia. The network includes 22 major think tanks from 14 Asian countries including Taiwan, Malaysia, Mongolia, Myanmar, Bangladesh, Sri Lanka, India, Indonesia, Japan, Thailand, Pakistan and the Philippines, as well as South Korea’s EAI. 

Working paper
[ADRN Working Paper] The Majoritarian Challenge to Minority Rights in India: The Case of Muslims

  Background     India is a deeply diverse and plural country. Although more than two-thirds of India’s population (80.7%) is from the Hindu community, it still has large minority populations. According to the statistics published by the Ministry of Minority Affairs, Muslims, Christians, Sikhs, Buddhists, Jains, and Zoroastrians or Parsis are considered minority communities. [1] As per the last census (2011), the percentage of minorities in the country is about 19.3% of the total population. The population of Muslims is 14.2%, Christians 2.3%, Sikhs 1.7%, Buddhists 0.7%, Jains 0.4%, and Parsis 0.006% of the total population. [2] In other words, every fifth person in India belongs to a minority community. With 142 persons in every 1,000, Muslims remain the biggest minority community in India.   Given India’s bloody partition experience (the country was split into India and Pakistan based on religion in 1947), the word “minority” and any special privileges granted to minorities have been subject to intense contestations and interpretations. The clearest proof of this is the contentious debates that took place in the Constituent Assembly (1946-49) over who should be considered minorities and what special rights they should enjoy. For example, a major demand among the representatives from minority groups during the making of the constitution was political representation for these communities. Qazi Karimuddin, a prominent Muslim voice in the Constituent Assembly (CA), advocated for proportional representation to escape what he called the “pervading evil of democracy (that) is the tyranny of the majority.” [3] Another member of a minority group, Z.H. Lari, also supported the idea of proportional representation so that the parliament can become “the mirror of the national mind” and “minorities will not have grievances about their representation.” [4] Although several members of the CA were sympathetic to the arguments for political representation for minorities, in the end the Assembly decided to scrap all suggestions on political presentation for minorities, particularly Muslims, while it retained the provision of reserved seats for the Scheduled Castes belonging to the Hindu community. The CA offered minorities, including Muslims, a package of “rights” [5] as part of the bargain.   The Constitution and Minority Rights   While the Constituent Assembly denied minorities representational power in legislatures and services, it formulated various provisions and laws in 1948 under the name “Special Provisions Relating to Minorities” in part XIV of the Constitution. No special rights except cultural and educational rights were offered to minorities. [6] The fundamental rights of the constitution under various sections guaranteed and protected the educational and cultural rights of minorities. Article 29 protects the interests of minorities by making a provision that any citizen/section of citizens having a distinct language, script, or culture have the right to conserve the same. Article 29 also mandates that no discrimination may be performed on the ground of religion, race, caste, or language. [7] Whereas, Article 30 provides a host of rights to protect the interests of minorities. [8] Article 30(2) states that the government should not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language, while giving aid. There are additional provisions that safeguard and protect the religious freedom of minorities. For example, Article 25(1) ensures freedom of conscience and the right to freely profess, practice, and propagate religion—subject to public order, morality, and other fundamental rights. Significantly, Article 350(A) makes a provision for a special officer for linguistic minorities to be appointed by the president. [9]   Minority Commissions   To ensure better protection of minority rights, the National Congress government in 1992 enacted the National Commission for Minorities Act. Accordingly, a National Commission for Minorities was established in 1993. As per Section 9(1) of the Act, the Commission is mandated to safeguard the rights enshrined in the Constitution for minorities and laws enacted by Parliament and the State Legislatures. [10] This apart, it looks after any specific complaints regarding discrimination and denial of rights and entitlements of minority groups. Apart from the center, state governments have set up their own minority commissions, too.   State Policies and Institutions for the Minorities   Beyond constitutional and legal provisions, the central and state governments run a number of schemes and initiatives for the betterment of these communities. Several schemes including scholarships, free coaching, concessional loans, and grant-in-aid for minority educational institutions among others are available for minorities. These apart, there are half a dozen schemes addressing the skills and infrastructural challenges facing minority communities. A noteworthy scheme under the current government is Pradhan Mantri Jan Vikas Karyakram, a multi-sectoral program which covers minority-concentrated blocks and districts and minority-concentrated towns and villages for infrastructural development. [11] A major skill development scheme “Garib Nawaz Skill Development” training for minorities has been created to provide short-term job-oriented training to youths belonging to the six minority communities mentioned above. In short, there are scores of schemes and policy initiatives have been adopted by governments to address the needs of minorities. [12] However, these initiatives in reality have grossly failed to fulfill the demands/needs of vulnerable minorities, particularly the largest minority (Muslims) who continue to remain at the bottom of India’s socio-economic pyramid. Weak enforcement, poor state capacity, and structural barriers have gone on to erode the potentials of these schemes, which will be discussed in further detail in the next section. What is more concerning is the fact that minorities routinely face the growing majoritarian onslaught[13] on every aspect of their lives including food, dress, profession, and place of worship.   A Case Study of Muslims in India   With more than 14% of India’s population, Muslims are only slightly lower in number than the seventh-most populous country (Nigeria). [14] According to a recent Pew report on population growth and religious composition, India has the world’s second largest Muslim population (more than 200 million), surpassed only by Indonesia. Pakistan’s Muslim population is roughly the same size as India’s. [15] Yet, they are a minority in a predominantly Hindu country. Muslims, however, are not a monolithic community. They are deeply diverse, with differences in ethnicity and language, and surprisingly with caste identities similar to Hindus as well as differences in access to political and economic power. [16]   Once part of the ruling class for several hundred years including the Mughals, Muslims today remain the most marginalized among all minority communities. One of the most authoritative studies on the socio-economic conditions of Muslims in recent years was the report prepared by the Sachar Committee in 2006. [17] The government-tasked committee placed Muslims lower than historically oppressed Scheduled Castes and Scheduled Tribes in backwardness. In terms of socio-economic parameters such as education, employment, and literacy, Muslims were nowhere near other designated minorities. Among some of the more startling findings, the report revealed that as many as 31% of Muslims were living below the poverty line, that their representation in the elite civil services, particularly the Indian Administrative Service (IAS) and Indian Police Service (IPS), was a mere 3% and 4%, respectively. Further, the literacy rate for Muslims was far below the national average, and as many as 25% of Muslim children were found to not have access to school education. Acting on the findings and recommendations of the Sachar Committee, the Congress-led United Progressive Alliance (UPA) government in 2007 adopted a series of measures to address the social, economic, and educational backwardness of Muslims. [18] The UPA government set up an Expert Group to propose a diversity index and modalities to address issues of discrimination and backwardness among minority social and religious groups, particularly Muslims.   However, the conditions of Muslims with regard to key indicators have barely improved even though more than more than 16 years have passed since this report was first issued. On the contrary, some key indicators have deteriorated. For instance, while the share of Muslims in India’s police forces was 7.63%, it fell to 6.27% in 2013. After this became a media issue, the government decided to forego the releasing of data on police personnel by religion. [19] The most striking figures are with regards to the IAS and IPS. While the Sachar Committee had noted 3% and 4% of Muslims in the IAS and IPS respectively in 2005, these numbers were 3.32% and 3.19% respectively on January 1, 2016. [20] In short, Muslims are precariously positioned on most key socio-economic and educational indicators compared to other religious groups. Even the historically oppressed Scheduled Castes (belonging to the Hindu religion) have moved up on several crucial indicators compared to India’s Muslims. Much worse is Muslim political representation, which has seen a sharp decline in recent years, particularly with the rise of the pro-Hindu Bharatiya Janata Party. Since the 2014 general elections, Muslim representation in the Lower House of India’s Parliament (Lok Sabha) and several state assemblies has gone down dramatically. [21]   Although Muslims represent more than 14% of India’s population, in 2018 they held just 4% of the seats in the Lok Sabha, the lowest since 1957. [22] In the 2019 national elections, the number of MPs from the community improved marginally. Only 27 MPs are present in the current Lok Sabha, and the ruling party does not have a single member from the largest minority community. [23] While the BJP fielded just six Muslim candidates from different states, none of them were victorious in the election. [24] While poor socio-economic indicators and under-representation remain issues of serious concern for India’s largest minority community, the acceleration of majoritarian politics and resultant “othering” [25] of Muslims poses the gravest threat to their identity.   The Rise of Hindu Majoritarianism and Muslim Marginalization   Despite facing neglect and discrimination on various counts as vividly documented by the Sachar Committee in 2006, Muslims still enjoyed a certain degree of autonomy and state protection until the Hindu right came to prominence. Successive Congress governments since the 1950s have tried to moderate the majoritarian tendencies of the Hindu right. [26] While the Congress indulged in the symbolic appointment of a handful of Muslims to higher positions, the party by and large failed to address the core aspects of Muslim backwardness. However, its tendency to appoint token Muslims into certain higher positions (president, cabinet ministers, etc.) created the rare opportunity for the BJP to accuse the party of “minority appeasement” and anti-Hinduism. [27] In fact, the well-meaning Sachar Committee report to alleviate the conditions of Muslims was fiercely opposed and politicized by the BJP, which accused the Congress government of simply trying to appease minorities. [28]   However, the tables turned against Muslims and other minorities, including Christians, when the pro-Hindu BJP won by a massive electoral landslide in 2014. The BJP’s unprecedented electoral victory in the 2014 national elections, where it secured a majority of seats in the lower house on its own, gave a new lease on life to its Hindu majoritarianism agenda.   After the 2014 electoral landslide, the BJP under Prime Minister Narendra Modi emerged as an unapologetic advocate of Hindutva and the majority community’s primacy in social, political, and economic life. The real game changer was the spectacular rise of Modi, who skillfully combined promises of economic development with Hindu nationalist appeals. [29] Not only has Modi reversed the gradual slide of the Hindu right from its back-to-back electoral defeats in 2004 and 2009, the BJP under his leadership has witnessed an unprecedented surge across many regions of the country. [30] The pro-Hindu party under Modi won another spectacular mandate in 2019, cementing the base of majoritarianism.   Implications of Rising Majoritarianism   The rise of divisive political rhetoric and increasing deployment of polarization tactics by the Hindu right have brought sharp changes in the national conversation. However, the most troubling outcome is rising incidences of religious violence and gradual marginalization of minority groups, particularly Muslims. For instance, as the portal IndiaSpend indicates, as many as 97% cow-related violence reported between 2010 and 2017 has occurred since the BJP government assumed power in May 2014. In 2017 alone, 11 Muslims were killed in incidents of cow vigilantism across the country, the highest toll on record in recent years. [31] While the number of cow-related lynchings have declined over the recent years, violence in other spheres (hate crimes) have gone up since 2019. [32]   However, intolerance is not restricted to mere discord over the status of cows. Even personal lives and individual liberty are under attack. This is most vividly seen in the spate of legislation brought by the BJP that ruled states must regulate inter-religious marriages in the name of Love jihad[33]. Love jihad is used to discourage inter-faith relationships and marriages by claiming that Muslim men are deliberately wooing Hindu women in order to force them to convert to Islam upon marriage. Similarly, the extreme Hindu groups in recent months have raked up the hijab issue by demanding a uniform dress code for Muslim girls in state-run educational institutions. [34] In an effort to appease these extremist Hindu groups, Karnataka state recently banned the hijab in educational institutions, thereby depriving thousands of Muslim students of the ability to access education. Ironically, the state High Court ruled in favor of the ban, creating anxiety among minority communities and people fighting to restore their constitutional rights.   The exclusionary tactics adopted by the Hindu right have also recently been deployed in the economic sphere. In response to legitimate protests by Karnataka Muslim traders against the hijab ban, many Hindu groups from the state called for a boycott of Muslim vendors near temple areas. [35] This has been echoed by Hindu groups in multiple states ruled by the BJP. [36] Given the fact that Muslims overwhelmingly work in informal sectors in small business, street vending, and random low-paid jobs, the economic boycott can become a death blow to their livelihoods. While the vast majority of the Hindu community has not signed on to the boycott, the fringe groups in the community continue to weaponize these tools against the Muslim minority. The latest act targeting Muslims is over disputed religious sites. The Indian Parliament created a law called the Places of Worship Act in 1991 disallowing conversion of a place of worship and mandating that its religious character as it existed on August 15, 1947 be maintained. However, groups of Hindu activists have filed petitions in the courts demanding the restoration of religious places (currently Gyanvapi mosque[37] in Beneras, Uttar Pradesh) in their favor. While these cases are being heard by the Supreme Court and lower courts, these acts have revived the memory of Babri mosque and its demolition by a Hindu mob in 1992. [38] In short, while India’s Muslims were socially and economically marginalized in the past, the recent rise of majoritarianism has translated to exclusion and violence over their right to eat, worship, dress, and engage in business, to name a few.   Towards a Majoritarian State through Constitutional Routes   Beyond exclusionary policies and actions, the Hindu right has been systematically altering the nature and character (secularism) of the state in India. Since the party won a second mandate in 2019, it has taken a slew of legislative measures that attack the diversity and pluralism of the country. The first major legislative move was the passage of the Triple Talaq Bill (The Muslim Women Protection of Rights on Marriage Bill) in 2019. The bill, which criminalized instant divorce by Muslim men, was one of the core agenda items of the BJP and its sister organizations, Sangh Parivar, for many decades. [39]   However, the most radical step towards a true majoritarian state came in August when the Hindu right government repealed Article 370 of the constitution, which had granted the only-Muslim majority state Jammu and Kashmir semi-autonomy and certain specific constitutional guarantees. [40] The state was dismantled into three Union Territories, and the key leaders of the state were put under detention for more than a year. In the same month (August), the BJP-led central government implemented a National Register of Citizens (NRC) in Assam, which required all the residents of the state to furnish physical proof of citizenship. Many analysts suspect the NRC is a tool to deprive Muslim migrants from Bangladesh of citizenship and render them stateless. [41] However, the much bigger constitutional changes towards the majoritarian project came in December 2019 when the central government passed the Citizenship Amendment Act (CAA) which allowed the fast-tracking of citizenship to all Hindus, Buddhists, Sikhs, Parsis, Jains, and Christians facing religious persecution in neighboring countries. Analysts claim that by dividing alleged migrants into Muslims and non-Muslims, the new law openly discriminates against citizens based on their religion. [42] In short, the CAA and NRC combo have the potential to turn India into a majoritarian state.   The Way Forward   India’s democracy, which once evoked praise and worldwide admiration for its preservation of diversity and pluralism, is on the cusp of becoming a majoritarian state. The BJP has become the central pole of Indian politics with a hegemonic presence in every aspect of the republic, particularly the religious and cultural spheres. The politics of religious polarization successfully deployed by the BJP and its affiliates against minorities is keeping India in a permanent state of tension and chaos. India’s civic sphere resembles a war zone in which opposing groups, particularly religious minorities, are seen as enemies. This divide is taking a heavy toll on the fragile social relations in the country, which had weathered riots, ethnic skirmishes, and inter-religious conflicts in previous decades. The worse sufferer of this polarization is vulnerable Muslims. Even at the height of the polarization resulting from the Ram Janmabhoomi movement, which caused many deaths and rioting, the divide was never as deep as it is now. While India’s strong culture of interfaith dialogue and plural and tolerant Hindu faith may offer some resistance to majoritarianism, these may not endure in the longer run. This is because the Hindu nationalist government and a slew of institutional and legislative changes that it has mounted are steadily altering the secular character of the Indian state. What is aiding the Hindu right’s majoritarian project is the divided opposition. Rather than putting up a united front against divisive politics and the daily targeting of minorities by right-wing forces, the opposition parties are now aping the “soft Hindutva” tactics of the BJP.    References   Adak, Srijita. “Minority rights in the Constitution of India.” IPleaders. January 25, 2021. https://blog.ipleaders.in/minority-rights-constitution-india/. Ahmad, Irfan. “Are India’s Muslims a minority?” Aljazeera. June 5, 2014.https://www.aljazeera.com/opinions/2014/6/5/are-indias-muslims-a-minority. Ananthakrishnan, G. “Explained: Who is a ‘minority’ in India? What the Constitution says, how Supreme Court has ruled.” The Indian Express. 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November 30, 2020. https://time.com/5915872/love-jihad-india-democracy/. “Citizenship Amendment Bill: India’s New anti-Muslim law explained,” BBC December 11, 2019. https://www.bbc.com/news/world-asia-india-50670393 Daniyal, Shoaib. “Congress appeasement has never helped minorities.” Scroll. July 4, 2014. https://scroll.in/article/668775/congress-appeasement-has-never-helped-minorities. Dutta, Prabhash K. “Triple Talaq Bill in Rajya Sabha: Do you know why it is controversial?” India Today. July 30, 2019. https://www.indiatoday.in/news-analysis/story/triple-talaq-bill-in-rajya-sabha-do-you-know-why-it-is-controversial-1575100-2019-07-30 Dutta, Prabhash K. “Who is a minority citizen in India?” India Today. March 30, 2022. https://www.indiatoday.in/india/story/minority-citizen-in-india-supreme-court-minorities-1931455-2022-03-30. “Economic boycott of Muslims from Karnataka temple fairs unconstitutional: Lawyers Forum.” The News Minute. March 25, 2022. https://www.thenewsminute.com/article/economic-boycott-muslims-karnataka-temple-fairs-unconstitutional-lawyers-forum-162272. Government of India, Ministry of Minority Affairs. “Frequently Asked Questions (FAQs) in respect of Multi-sectoral Development Programme (MsDP) for Minority Concentration Areas.” https://www.minorityaffairs.gov.in/sites/default/files/MsDP%20%28FAQs%29.pdf. Jaffrelot, Christophe and Gilles Varniers. “The Dwindling Minority.” The Indian Express. July 30, 2018. https://indianexpress.com/article/opinion/columns/muslims-politicians-in-india-bjp-narendra-modi-government-5282128/. Jha, Shefali. “Defending Minority Interest in the Constituent Assembly: Rights vs Representation.” Economic and Political Weekly 38, no. 1 (April 2003). https://www.epw.in/journal/2003/16/special-articles/rights-versus-representation.html. “Karnataka hijab row: Explained.” The Times of India. March 15, 2022. https://timesofindia.indiatimes.com/india/karnataka-hijab-row-explained/articleshow/90214058.cms. Khan, Sameer. “Lok Sabha Election Results 2019: Here’s the list of newly-elected Muslim MPs.” The Siasat Daily. May 24, 2019. https://www.siasat.com/lok-sabha-election-results-2019-heres-list-newly-elected-muslim-mps-1499820/. Kidwai, Rasheed. “Need for CVE Program to Engage with Muslim Community.” Observer Research Foundation. June 20, 2018. www.orfonline.org/expert-speak/need-for-major-cve-programme-to-engage-with-muslim-community/. Kramer, Stephanie. “Population growth and religious composition,” in Religious Composition of India. Pew Research Center, September 21, 2021. https://www.pewresearch.org/religion/2021/09/21/population-growth-and-religious-composition/. Lalwani, Vijayta. “In A Riot-Torn MP Town, Hindus Organise an Economic Boycott of Muslims.” Article14. April 29, 2022. https://article-14.com/post/in-a-riot-torn-mp-town-hindus-organise-an-economic-boycott-of-muslims-626b0b188f64b. Lobo, Kieran and Gulal Salil. “The Exclusion Explainer: How the Hindu Right ‘Others’ Muslims.” Economic and Political Weekly. https://www.epw.in/engage/article/exclusion-explainer-how-hindu-right-others-muslims Mahmudabad, Ali Khan. “Indian Muslims and the Anti-CAA Protests: From Marginalization Towards Exclusion.” South Asia Multidisciplinary Journal [Online] 24/25 (2020). https://doi.org/10.4000/samaj.6701. Maizland, Lindsay. “India’s Muslims: An Increasingly Marginalized Population.” Council on Foreign Relations. August 20, 2020. https://www.cfr.org/backgrounder/india-muslims-marginalized-population-bjp-modi. Ministry of Minority Affairs. “Socio-Economic Facilities to Minorities.” Government of India Press Information Bureau. July 25, 2018. https://pib.gov.in/newsite/PrintRelease.aspx?relid=181032. “Most Sachar Committee recommendations implemented by Centre.” The Economic Times. June 2, 2013. https://economictimes.indiatimes.com/news/politics-and-nation/most-sachar-committee-recommendations-implemented-by-centre/articleshow/20394362.cms?from=mdr. Palshikar, Suhas. “Towards Hegemony: BJP beyond Electoral Dominance.” Economic & Political Weekly 53, no. 33 (2018). https://www.epw.in/journal/2018/33/indias-democracy-today/towards-hegemony.html. Sachar, Rajindar et al. Social, Economic and Educational Status of the Muslim Community of India. Government of India. November 17, 2006. https://www.minorityaffairs.gov.in/sites/default/files/sachar_comm.pdf. Sahoo, Niranjan. “Mounting Majoritarianism and Political Polarisation in India,” in Political Polarization in South and Southeast Asia, edited by Thomas Carothers and Andrew O’ Donohue. Carnegie Endowment for International Peace, August 18, 2020. https://carnegieendowment.org/2020/08/18/mounting-majoritarianism-and-political-polarization-in-india-pub-82434. Saldanha, Alison. “2017 Deadliest Year for Cow-Related Hate Crime Since 2010, 86% of Those Killed Muslim.” IndiaSpend. December 8, 2017. www.indiaspend.com/2017-deadliest-year-for-cow-related-hate-crime-since-2010-86-of-those-killed-muslim-12662/. Shaikh, Zeeshan. “Ten years after Sachar Report.” The Indian Express. December 26, 2016. https://indianexpress.com/article/explained/ten-years-after-sachar-report-no-major-change-in-the-condition-of-indias-muslims-4444809/. “US government report flags attacks on minorities in India took place throughout 2021.” Scroll. June 3, 2022. https://scroll.in/latest/1025373/us-government-report-says-attack-on-minorities-in-india-took-place-throughout-2021. Milan Vaishnav, “The BJP in Power: Indian Democracy and Religious Nationalism”, Report, Carnegie Endowment for International Peace, 2019. https://carnegieendowment.org/files/BJP_In_Power_final.pdf Varshney, Ashutosh. “2014, like 1952.” The Indian Express. May 19, 2014. https://indianexpress.com/article/opinion/columns/2014-like-1952/. “What is Article 30 of the Indian Constitution.” Business Standard. https://www.business-standard.com/about/what-is-article-30-of-the-indian-constitution#:~:text=What%20is%20Article%2029%20of,right%20to%20conserve%20the%20same. “2019 Lok Sabha election results: Only 27 Muslim MPs elected to Parliament, none from the BJP.” Scroll. May 24, 2019. https://scroll.in/latest/924627/2019-lok-sabha-election-results-only-24-muslim-mps-elected-to-parliament-none-from-the-bjp.     [1] Although the Constitution does not define what “minority” means, they are conventionally categorized into two [2] For more, see Government of India, Ministry of Minority Affairs, https://www.minorityaffairs.gov.in/sites/default/files/MsDP%20%28FAQs%29.pdf   [3] Shefali Jha, “Defending Minority Interest in the Constituent Assembly: Rights vs Representation,” Economic and Political Weekly 38, no.1 (April 2003).   [4] Ibid.   [5] Irfan Ahmad, “Are India’s Muslims a minority?”, Aljazeera, 2014.   [6] Srijita Adak. “Minority rights in the Constitution of India,” IPleaders, 2021.   [7] “What is Article 30 of the Indian Constitution,” Business Standard.   [8] Ibid.   [9] G. Ananthakrishnan, “Explained: Who is a ‘minority’ in India? What the Constitution says, how Supreme Court has ruled,” The Indian Express, 2022.   [10] Arpit Chaturvedi, “The Need for Institutional Reform at the National Minorities Commission, India,” Cornell Policy Review, 2017.   [11] Under this scheme, 340 multi-purpose community centers, 67 gurukul-type residential schools, 436 market sheds for farmers and artisans, 11 degree colleges, 163 girls’ hostels, 53 it is, and 925 school buildings have been built by the government of India in minority-concentrated localities. In the financial year 2019-20, INR 14.70 billion was allocated for this scheme. For more, see Government of India, Ministry of Minority Affairs, Ibid op.cit   [12] Ministry of Minority Affairs, “Socio-Economic Facilities to Minorities,” Government of India Press Information Bureau, 2018.   [13] Ali Khan Mahmudabad, “Indian Muslims and the Anti-CAA Protests: From Marginalization Towards Exclusion,” South Asia Multidisciplinary Journal 24/45 (2020).   [14] Prabhash K. Dutta, “Who is a minority citizen in India?”, India Today, 2022.   [15] Stephanie Kramer, “Population growth and religious composition,” in Religious Composition of India (Pew Research Center, 2021).   [16] Lindsay Maizland, “India’s Muslims: An Increasingly Marginalized Population,” Council on Foreign Relations, 2020.   [17] Rajindar Sachar et al., Social, Economic and Educational Status of the Muslim Community of India, Government of India, 2006.   [18] “Most Sachar Committee recommendations implemented by Centre,” The Economic Times, 2013.   [19] Zeeshan Shaikh, “Ten years after Sachar Report,” The Indian Express, 2016.   [20] Ibid.   [21] Christophe Jaffrelot and Gilles Varniers, “The Dwindling Minority,” The Indian Express, 2018.   [22] Rasheed Kidwai, “Need for CVE Program to Engage with Muslim Community,” Observer Research Foundation, 2018.   [23] “2019 Lok Sabha election results: Only 27 Muslim MPs elected to Parliament, none from the BJP,” Scroll, 2019.   [24] Sameer Khan, “Lok Sabha Election Results 2019: Here’s the list of newly-elected Muslim MPs,” The Siasat Daily, 2019.   [25] Kieran Lobo and Gulal Salil, “The Exclusion Explainer: How the Hindu Right ‘Others’ Muslims,” Economic and Political Weekly.   [26] For more, see Niranjan Sahoo, “Mounting Majoritarianism and Political Polarisation in India,” in Political Polarization in South and Southeast Asia, eds. Thomas Carothers and Andrew O’Donohue (Carnegie Endowment for International Peace, 2020).   [27] Shoaib Daniyal, “Congress appeasement has never helped minorities,” Scroll, 2014.   [28] Ibid   [29] Ashutosh Varshney, “2014, like 1952,” The Indian Express, 2014.   [30] However, the Saffron Party received a major jolt in 2018 when it lost three key Hindi heartland states to the Congress. The BJP’s tally now comes down to sixteen states. See also Suhas Palshikar, “Towards Hegemony: BJP beyond Electoral Dominance,” Economic & Political Weekly 53, no. 33 (2018).   [31] Data have been collected since 2010. See Alison Saldanha, “2017 Deadliest Year for Cow-Related Hate Crime Since 2010, 86% of Those Killed Muslim,” IndiaSpend, 2017.   [32] “US government report flags attacks on minorities in India took place throughout 2021,” Scroll, 2022.   [33] Debashis Roy Chowdhury, “Laws against ‘Love Jihad’ are yet another serious attack on India’s once secular Democracy,” Time, 2020.   [34] “Karnataka hijab row: Explained,” The Times of India, 2022.   [35] “Economic boycott of Muslims from Karnataka temple fairs unconstitutional: Lawyers Forum,” The News Minute, 2022.   [36] Vijayta Lalwani, “In A Riot-Torn MP Town, Hindus Organise an Economic Boycott of Muslims,” Article14, 2022.   [37] The Gyanvapi mosque was built on the ruins of the Vishwanath temple, a grand 16th century Hindu temple. The shrine was partially destroyed in 1669 by the sixth Mughal emperor Aurangzeb. Now Hindu groups want to restore the temple, similar to what they did in the Babri Masjid row in the 1990s. See Soutik Biswas, “Gyanvapi masjid: India dispute could become a religious flashpoint,” BBC.   [38] “Babri Masjid: The Timeline of a Demolition,” The Wire, 2021.   [39] Prabhash K. Dutta, “Triple Talaq Bill in Rajya Sabha: Do you know why it is controversial?”, India Today, 2019.   [40] Milan Vaishnav, “The BJP in Power: Indian Democracy and Religious Nationalism”, Report, Carnegie Endowment for International Peace, 2019. https://carnegieendowment.org/files/BJP_In_Power_final.pdf   [41] Pooja Changoiwala, “India’s Muslims are terrified of being deported,” Foreign Policy, 2020.   [42] “Citizenship Amendment Bill: India’s New anti-Muslim law explained,” BBC, 2019.       ■ Niranjan Sahoo is a Senior Fellow at the Observer Research Foundation, New Delhi.     ■ Typeset by Jinkyung Baek Director of the Research Department∙Senior Researcher     For inquiries: 02 2277 1683 (ext. 209) | [email protected]  

Niranjan Sahoo 2022-07-14Views : 31837
Working paper
[ADRN Working Paper] Direct Democracy’s History and Trends in Mongolia

Although hailed as a democratic outlier in Central Asia, if we consider the essence of direct democracy to be ‘direct voting,’ Mongolia remains a country with limited space for direct democracy.[1] Since Mongolia’s democratic transition in the 1990s, no referendums have been held, citizens’ initiatives are rarely considered, and demands for recalls are disregarded. Institutional mechanisms of direct voting are lacking. Therefore, this working paper examines the institutional mechanisms of direct democracy defined more broadly as public participation, rather than solely direct voting.   Institutional Mechanisms of Direct Democracy   Mongolia has been making progress in institutionalizing mechanisms of direct democracy since its democratic transition in 1990. The first democratic Constitution of 1992 includes three articles that have bearing on direct democracy. Since then, legal reforms have been undertaken to establish and strengthen democracy in Mongolia. During the early stages of reform in the 1990s, foundational laws such as the Law on People’s Referendums of Mongolia (1995) and the Law on Non-Governmental Organizations (1997) were ratified. The 2010s saw another surge in direct democracy initiatives through the ratification of laws promoting government transparency, citizen participation, and participatory budgeting. Notable legislation includes the Law on Information Transparency and Right to Information (2011); the Integrated Budget Law, which allows direct citizen participation in local development funds (2013); the Glass Account Law (2014), which requires transparency of the state budget; the Law on Citizens Halls; and the Law on Deliberative Democracy (2017), which allows Mongolia to exercise various direct democracy mechanisms. This section elaborates on the current implementation of these mechanisms, challenges faced, and changes and reforms needed.   Right to Information   The 2011 Law on Information Transparency and Right to Information (Law on RTI) requires all government organizations (judiciary, parliamentary, executive, and sub-national) to maintain transparency in operations, human resources, budgets, and procurement. The law specifies methods, timelines, and standards of information transparency to facilitate citizens’ access to information and ability to provide feedback and comments to the government. The Independent Research Institute of Mongolia (IRIM) has engaged in regular monitoring of the implementation of the law and documented the gradual improvement of transparency across organizations. Yet, the lack of timeliness, availability and relevance, and user-friendly information persist[2] (IRIM 2021). The 2016 Law on State and Official Secrets has constrained the progress that can be made through the RTI Law and, according to a CIVICUS analysis, “allows virtually all information to be classified as a state or official secret, leading in some cases to the prosecution of journalists exposing corruption” (CIVICUS 2020).   In 2021, laws on public information transparency and the protection of personal information were approved by the Parliament. The laws allow for establishing and using open data and improved mechanisms of information transparency and access to information, but only for information that is not classified as secret. However, as mentioned in the 2022 BTI index, “the new law allows the government to define the scope of state secrets.” Per The Globe International, the number of documents or portions of documents classified as a ‘state secrets’ in Mongolia increased from 60 in 2017 to 565 in 2019, indicating a serious setback for the right to access information (Bertelsmann Stiftung 2022).   Petitions, Comments, and Complaint Mechanisms   The 1995 Law on Resolving Petitions and Complaints of Citizens to State Organizations and Public Officials was a significant step forward in formalizing the political participation of citizens. The law aimed to ensure the right of every citizen to receive a response and proposed solution to their problems, offering four mechanisms for participation: petitions, proposals, notices, and complaints. The law has been revised several times. In 2003, improvements in registering and tracking the status of citizen complaints were introduced, and in 2009, articles were added to guarantee that those who lodged a petition or complaint would receive a final response and resolution. In 2016, additional clarifications were issued regarding how to handle cases of disagreement with the government response and how to address higher-level organizations and officials.   Despite these updates to the law, several further changes and reforms are needed. First, the period to respond to a petition or complaint should be shortened to meet the needs of the public in the digital information era. The current law specifies that “a petition or a complaint shall be resolved within 30 days of its receipt,” “this period may be extended for up to 30 days,” and “a response to a petition with the nature of a proposal shall be provided within 90 days.” Second, there should be clarity and criteria about the meaning of “resolve.” Current practice considers a problem “resolved” when a written response has been provided (Myagmartsooj 2013). Third, the distinction between the four types of feedback–petitions, proposals, notices, and complaints—should be revised to meet international standards, and the process for resolving them should be clearly mapped out. The lack of clarity surrounding the definition of these main concepts has resulted in a poor registration and reporting system nationwide, which in turn has affected the ability to engage in adequate planning.   In 2012, the Parliament[3] established a Standing Committee on Resolving Petitions and Complaints for the first time. In 2016, the Committee received upwards of 3,000 petitions and complaints. In 2018, 1,233 complaints/petitions were received from 7,231 citizens, of which 9.2% reflected issues pertaining to the public interest (State Great Khural Committee on Petition 2018).   The Standing Committee is an important mechanism of direct democracy and accountability, as it can form working groups, initiate public hearings, appoint analysts to conduct further investigation, or submit an inquiry from government officials and organizations. However, the current Parliament does not have a dedicated Standing Committee on Petitions and Complaints (State Great Khural 2020).   Referendums   Article 24 of the Constitution of Mongolia (1992) specifies regulations surrounding people’s referendums, and the Law on People’s Referendums of Mongolia (1995) specifies that only the president, government, or parliament (with at least one third of members voting in favor) have the right to initiate national referendums. This law has several drawbacks. First, it restricts the right of citizens to initiate a referendum. Second, it lacks clarity on what preconditions must be met to initiate a referendum. Third, there are strict limitations on repeating referendums if needed, making it difficult to use the national referendums due to their irreversible nature. For example, a resolution of a referendum can only be amended if at least three quarters of the Parliament vote in favor, and within to five years for a referendum that had a clear majority and two years for a referendum that did not have a clear majority. Fourth, the cost of organizing a referendum is equivalent to that of a general election (Chultemsuren 2007). As a result, following its adoption, the law was amended just once (in 2016), and not a single referendum has been held thus far.[4]. Although no substantial changes were introduced in 2016, the Law on People’s Referendums was amended to make it consistent with the Law on General Elections, which uses automated election systems. The Constitutional Amendment in 2019 introduced a clause relating to referendums, stating, “Mongolia shall not allow any attempt to negate its independence and territorial integrity and prohibits a referendum for this purpose.”   Deliberative Polling   The Mongolian Law on Deliberative Polling was ratified in 2017 based on Professor James Fishkin’s (Stanford University) theory of deliberative polling. The law stipulates that executive and legislative organizations at all levels can hold a deliberative poll to identify issues and consult with citizens on policy priorities. A deliberative poll should select a random and representative sample of the population to engage in dialogue with competing experts using carefully balanced briefing materials and questionnaires. This deliberative polling process is required for projects to be funded by the local development fund, for planning of cities and green facilities in public space, and prior to a constitutional amendment (Naran 2019). The organizational cost is covered by the state budget.   Using this law, the first deliberative poll was conducted in Mongolia in April 2017 as part of an effort to amend the Constitution. The quantitative results were used as the basis for recommendations to the Parliament about which proposals had sufficient support to merit consideration (Naran 2019). In total, 1,570 citizens were polled on six topics related to constitutional amendments and received a written explana¬tion and oral consultation with experts (Lundeejantsan 2017). As constitutional researcher Odonkhuu observed, “It was an innovative experiment not only in Mongolia but also around the world” (Odonkhuu 2021). In 2018, deliberative polling was organized on various topics including illegal coal extraction, and in 2020 on rangeland protection.   Public Hearings   The Law on Public Hearing (2015) provides that public hearings shall be held before the approval of administrative legal acts and the approval of administrative decisions concerning the public interest. The law provides mechanisms for direct democracy by allowing government organizations and officials to consult, monitor, evaluate, and obtain expert views on nine types of issues.[5] The initiative to hold a public hearing can be initiated by a citizen, a local government, or a legal entity.   Citizens Halls were established in 2009 under President Elbegdorj Tsakhia as a permanent venue for public hearings on draft laws, the first of which would be the draft Press Law (Benequista and H 2011). In 2012, the Parliament’s Sub-Committee on Human Rights organized the first public hearing on the protest event of July 1, 2008[6]. Since then, dozens of public hearings have been organized concerning both national and local level issues.[7]   Public hearings are regularly employed by a wide range of stakeholders at different levels regarding a variety of topics. The law has been amended and improved in a timely manner. However, efforts should be made to increase public knowledge about the public hearing mechanism and its potential for use, and monitoring of the implementation of the results of hearings should be increased..   Digital and E-governance   E-governance has become a major focus of the Mongolian government. The e-Mongolia national program was first approved in 2005 with the aim of increasing the number of internet users and improving digital infrastructure in the country.[8] Between 2008 and 2012, the National Data Center was established,[9] and between 2012 and 2016, the e-governance program introduced 25 types of e-services.[10] Since 2013, the call center ”11-11” has provided a platform for citizens to give direct feedback. This was expanded in 2019 to the Government Public Communication Center, which accepts feedback, transfers callers to the relevant government organization, and monitors the implementation of the program. According to the 2018 Index on E-Participation, Mongolia ranked 65th with a rating of 0.736. However, the country slid to 87th place with a rating of 0.607 in 2020 (UN 2020).   Although digital transformation is making services easily accessible to citizens and providing more opportunities to participate in governance, as some studies note, Mongolia’s preparedness remains insufficient, with one in five citizens living with limited access to electricity (L.Galbaatar 2020). The digital divide is real, especially among older people and people with disabilities (IRIM and UNDP 2021). Capacity building to improve the digital skills of marginalized groups, increased support for e-participation, actual implementation of initiatives, and monitoring of and accountability for said implementation, are needed. Furthermore, digital platforms are primarily used to regulate the state-to-citizen relationship rather than to support citizen-to-state relationships and other feedback relationships. The enabling environment within which citizens can use digital methods to directly participate in governance and vote on issues pertaining to their needs remains inadequate.   Other mechanisms of public participation have been created as part of the State Decentralization Policy, such as citizen participation in setting local budget priorities and voting for Local Development Fund investments. However, the scale of these local budgets is relatively small and such participation is not a standard element of general state budget processes.   Prevailing Claims about Democracy and Direct Democracy   Popular Claims in Support of Implementing Direct Democracy Mechanisms   Major claims in support of implementing direct democratic mechanisms relate to Mongolia’s independence and identity as a free and democratic country, the small population (which facilitates participation in decision-making), opportunities for budget efficiency, and the need to ensure accountability. Groups supporting or advancing these views include civil society organizations, media representatives, pro-democracy activists, and politicians.   Table 1: Claims Supporting Democracy and Direct Democracy   Popular Claims Supporting Direct Democracy Which Groups Reasons/Rationale Mongolia is a democratic country, and the principle of citizen participation is enshrined in the Constitution Opposition parties (e.g. Democratic Party), journalists, activists, and CSOs Depending on which party wins elections, the leadership of presidents, prime ministers and the parliament is critical to support efforts to advance direct democracy The opportunity to directly influence decision making should be made available to marginalized and vulnerable groups Marginalized and vulnerable groups (youth, older persons, people with disabilities), CSOs Limited access to other lengthy participatory processes (e.g. writing official petitions and complaints), limited ability to use digital tools, etc. The process of facilitating direct democracy mechanisms has been simplified and the cost has decreased thanks to digitalization. Therefore, direct democracy mechanisms should be used more often. Media, IT, Ministry of Communications Tools, including e-tools, are expanding direct democracy.Digital development/progress is improving access to tools and refining regulations. COVID-19 lockdowns emphasized the need for enhanced direct democracy There is a need for direct participation - Parliamentarians and local representative councils have been ineffective in reflecting and acting on the voices of the public. General public Expressed through demonstrations and social media movements demanding direct participation. Provides opportunities and signals for the population to participate in politics. Reinforced by media and social media. Citizens and businesses should not/cannot afford to wait for the bureaucracy and government to solve social problems. Hence, direct action and implementation are needed CSOs, communities, activists Citizen cooperation and support – citizen groups and NGOs taking initiative to solve social problems There is a need for direct oversight of budget, contracting, and procurement. Accountability should be demanded from politicians Micro, small and medium-sized business owners MSMEs bore the economic costs of the pandemic and suffered from the embezzlement of public funds. This pushed MSME owners and employees to support democracy Popular Claims against Implementing Direct Democracy Mechanisms   Table 2 Claims against (Direct) Democracy   Popular Claims Against Direct Democracy Which Groups Reasons/Rationale Nationalist claims – anti-democratic claims and attacking so-called Pro-American “liberals” Nationalist groups Extremist and discriminatory/far-right views have spread via social media National security concerns should limit opportunities for the intervention of foreign agents and interference in government operations[11] National security, justice and defense sector members Mongolia’s independence from and fear of external actors. For example, over-dependence on Russia and China could hinder Mongolia’s development. A friendly relationship with the two neighbors is needed Unity and need to support each other. There is no need for debate or arguments during emergencies/crisis situations Government, politicians, opposition Prioritizing unity takes precedence over the notion of plurality and democracy CSOs should be restricted and controlled in terms of registration, funding, and operations to avoid money laundering and misuse by political powers[12] Leaders and members of national defense, security, and justice systems Increased risk of money laundering, terrorism, and disobedience Inequality - democracy only enriches the rich and their large-scale businesses. Ordinary citizens are not able to benefit from democracy. Media, journalists, and politicians Declining trust in representative democracy, increased corruption, and unethical behavior of politicians. Increasing poverty and inequality—disappointment with democracy over the last 30 years and unfulfilled expectations. Mongolia should prioritize friendly relationships above all and avoid adopting values that are too “Western” and “liberal” Nationalist movements Unfavorable international environment and disinformation/propaganda from Russia and China Lingering emergency situations justify quick, direct decisions making rather than a lengthy consultative process Government, parliament and some academics Increasing restrictions on demonstrations and protests in public spaces to defend the ruling party’s interests Rather than direct and regular criticisms that risk stalling progress, direct support is needed for the country’s achievement of its long-term vision and prosperity Government/cabinet, politicians Due to several changes in government and instability of civil services, calls for government stability have been increasing.[13] Stagnating economic growth and uncertain times The “masses” are inherently uneducated and incapable of making informed and rational decisions, and therefore should not be included in governance[14] Journalists, influencers, and politicians Elitist arguments A technical, legislative, and cultural environment—as well as leadership of politicians and non-state actors—favorable to direct democracy exists in Mongolia. Nonetheless, recent years have seen accelerating regression, with increasing censorship and limitations on freedom of expression and speech, as well as the outbreak of demonstrations and protests during COVID-19 lockdowns. This has been exacerbated by an unfavorable external environment and series of events, including the mass protests/events in Kazakhstan, Mongolia’s economic dependence on China (felt strongly during border closures during the COVID-19 crisis), and Russia’s invasion of Ukraine. Furthermore, the declining support of Western bilateral and multi-lateral organizations in promoting democratic values has been strongly felt. ■    References   Benequista, Nick , and Andy H. 2011. “Mongolia's Citizens' Hall.” Participedia. Accessed March 26, 2022. https://participedia.net/case/1150. Bertelsmann Stiftung. 2022. Mongolia Country Report 2022. Accessed March 9, 2022. https://bti-project.org/en/reports/country-report/MNG#pos4. Castagna, Craig. 2022. “Despite Civil Society’s Contributions to Democracy, Mongolia’s NGOs Are Now at Risk.” International Republican Institute. 2 March. Accessed March 19, 2022. https://www.iri.org/news/despite-civil-societys-contributions-to-democracy-mongolias-ngos-are-now-at-risk/?fbclid=IwAR0YwhbhixIkXeJaivQRfNHSrjesdYclhCQJjwktPCw7FHwkh9t9n3-SFzg. Chultemsuren, Tamir. 2007. Ард нийтийн санал асуулгын хуулийг өөрчлөх тухайд. 27 09. Accessed 03 15, 2022. http://www.forum.mn/index.php?sel=article&menu_id=107&obj_id=4342. CIVICUS. 2020. PROGRESS ON HUMAN RIGHTS DEFENDER’S BILL IN MONGOLIA BUT DEFAMATION LAWS PUT MEDIA AT RISK. 17 June. Accessed March 18, 2022. https://monitor.civicus.org/updates/2020/06/17/progress-human-rights-defenders-bill-mongolia-defamation-laws-put-media-risk/. IRIM and UNDP. 2021. Digital Skills Assessment: The first building block of the “Digital Nation.” Ulaanbaatar: UNDP Accelerator Lab Mongolia. https://www.mn.undp.org/content/mongolia/en/home/blog/2021/ALabDigitalSkillsAssessment.html. IRIM. 2021. Digital Transperency Index: Monitoring of Transparency in Government Operations. https://www.irim.mn/news/1479. L.Galbaatar. 2020. “Засаглалын цахим шилжилт: төрийн үйл хэрэг дэх иргэдийн цахим оролцоо.” In //Монгол дахь ардчилал, иргэний нийгмийн өнөөгийн байдлын нийгэм-улс төрийн судалгаа. Судалгааны үр дүн, бодлогын зөвлөмж. Ulaanbaatar: Сэлэнгэ пресс.   Lundeejantsan, D. 2017. Зөвлөлдөх санал асуулгыг зургаан сэдвийн хүрээнд явуулна. 12 April. http://itoim.mn/article Naran, Amarzaya. 2019. Insights for design of direct public participation: Mongolia as a case study. IDEA, Melbourne Forum on Constituion-Building and Constitution Transformation Network. https://law.unimelb.edu.au/__data/assets/pdf_file/0006/3224463/MF19-Mongoliaa-paper.pdf. Odonkhuu, Munkhsaikhan. 2021. “The 2017 Deliberative Polling on Draft Amendments to the Mongolian Constitution.” In Democratic Struggles in Challenging Times: Insights from Mongolia and Around the World, edited by Christian Suter, Stephen Brown, Dolgion Aldar and Tamir Chultemsuren, 47-74. Ulaanbaatar: IRIM and WSF. State Great Khural Committee on Petition . 2018. 2018 оны хаврын ээлжит чуулганы хугацаанд Өргөдлийн байнгын хорооны хийж гүйцэтгэсэн ажлын тайлан нэвтрүүлэг - Өргөдлийн байнгын хороо (parliament.mn). 16 August. Accessed March 21, 2022. http://urgudul.parliament.mn/index.php/content?id=289&fbclid=IwAR08LXg8DWxAiD6vF3h0qUQ0WDnsiwpW9bYaf86e4ba4d9NC0VbTuap_N1c#.YkFidYVBxD8. State Great Khural. 1995. LAW ON RESOLVING PETITIONS AND COMPLAINTS OF CITIZENS TO STATE ORGANIZATIONS AND PUBLIC OFFICIALS. https://old.legalinfo.mn/law/details/16594. —. 2016. LAW ON STATE AND OFFICIAL SECRETS. Ulaanbaatar. https://legalinfo.mn/mn/detail/15787. —. 1992. The Constitution of Mongolia. https://www.conscourt.gov.mn/?page_id=842&lang=en. State Great Khural. 13 January 1992 Amended on 14 November 2019. “THE CONSTITUTION OF MONGOLIA.” https://www.legislationline.org/download/id/9694/file/MONG_constitution.pdf. State Great Khural. 2019. “ЗӨВЛӨЛДӨХ САНАЛ АСУУЛГЫН ТУХАЙ.” https://legalinfo.mn/mn/detail/12492. —. 2020. МОНГОЛ УЛСЫН ИХ ХУРЛЫН ГИШҮҮД - БАЙНГЫН ХОРООДООР. Accessed March 11, 2022. http://parliament.mn/cv?tid=2&did=4. UN. 2020. UN E-Government Knowledgebase. Accessed March 26, 2022. https://publicadministration.un.org/egovkb/en-us/Data/Country-Information/id/113-Mongolia/dataYear/2020. Н.Мягмарцоож. 2013. Иргэдийн оролцооны эрх зүйн орчны ерөнхий шинжилгээ//Иргэдийн оролцоо ба эрх зүйн орчин ба үнэлгээ. World Movement for Democracy. 2021. Цахим хөгжлийн багц хуулийн төслүүдийг эцэслэн баталлаа. 17 December. Accessed March 14, 2022. https://mojha.gov.mn/newmojha/?p=6881.     [1] Article 3 stipulates “the people of Mongolia shall directly participate in State affairs and shall exercise such right through the representative organ of the State power established by their election.” Clause 12 of Article 16 stipulates “the right to submit petitions or complaints to the State organs and public officials, and get it resolved by those State organs.” Clause 16 of Article 16 stipulates “freedom of thought, opinion and expression, speech, press, and peaceful assembly.” Clause 16 of Article 25 on referendums stipulates that the State Great Khural must “hold national referendums, verify the validity of a referendum in which the majority of citizens who are qualified for elections have participated, and consider the question which obtained a majority vote as decided.” [2] As of 2021, the government digital transparency index was 0.602 out of 1.0 according to the IRIM monitoring. [3] Parliament of Mongolia [4] The Parliament of Mongolia did not hold a referendum when it introduced amendments to the Constitution of Mongolia in 2000. When the second set of amendments to the Constitution were introduced in 2019, deliberative polling (explained later in this paper) was used. [5] Namely: legislation, general oversight, budget oversight, appointments, administrative matters, local planning, hearings on consultations, oversight of human rights and freedom. [6] A mass protest where about 220 civilians and 108 servicemen were injured, 700 protesters were detained, and 5 were shot dead. https://www.reuters.com/article/us-mongolia-idUSSP3149220080702 [7] Examples include appointment of head of the Anti-Corruption Agency, local budgeting of Bayanzurh District of Ulaanbaatar city, land use planning, the access and right to education of children with disabilities, socio-economic development planning in Bayanzurkh District, and consultation on amendment of the Law on General Elections. Various international organizations including IRI and Open Society Forum were providing training and technical support in these processes. [8] Resolution #216 of the Government of Mongolia, 2005 [9] Resolution #78, Annex 1 of the Government of Mongolia, 2008 [10] Resolution #101, Annex 1 of the Government of Mongolia 2012 [11] https://monitor.civicus.org/updates/2020/06/17/progress-human-rights-defenders-bill-mongolia-defamation-laws-put-media-risk/ [12] https://monitor.civicus.org/updates/2020/06/17/progress-human-rights-defenders-bill-mongolia-defamation-laws-put-media-risk/ [13] https://ikon.mn/n/2egn [14] Prominent politicians decried the participation of “ordinary citizens” in a discussion of legal affairs, arguing that only a panel of experts should be allowed to comment on draft laws https://participedia.net/case/1150     ■ Tamir Chultemsuren is the Vice Dean of the National University of Mongolia’s School of Arts, Sciences and Social Sciences, and holds a degree in Sociology from the National University of Mongolia. Chultemsuren is one of the co-founders of the Independent Research Institute of Mongolia (IRIM) and has been Chairman of the Board of IRIM since 2011. Having worked in both the consultative and academic sectors since 1999, Chultemsuren is intimately familiar with democratic studies and Mongolian politics. Having attended various academic seminars and functions across the U.S., Ireland, Hungary, Portugal, Turkey, Finland, Kazakhstan, Austria, the United Kingdom, and South Korea, Chultemsuren has diverse and in-depth experience in engaging partners in cross-cultural settings. His areas of expertise are social research—civic participation, mass protest, and public perception; policy research—education policy and institution strengthening, monitoring, and evaluation; project management; and consultation.     ■ Typeset by Jinkyung Baek Director of the Research Department∙Senior Researcher     For inquiries: 02 2277 1683 (ext. 209) | [email protected]  

Tamir Chultemsuren 2022-07-13Views : 19578
Working paper
[ADRN Working Paper] Direct Democracy in the Philippines

Introduction   In the past two decades, Philippine civil society organizations (CSOs) have become critical players in ensuring the integrity of public service delivery. Formal and informal spaces for citizen participation are now available in the areas of public financial management (PFM). CSOs, both at the national and local levels, have developed and implemented tools and technologies aimed at fostering transparency, accountability, and citizen empowerment in various stages of public financial management: planning, budgeting, implementation, and monitoring. While there are documented best practices of citizen engagement in governance in various sectors aimed at addressing development issues, the comprehensive stocktaking, knowledge generation, and analysis on how citizen technologies and tools have contributed towards fostering transparency, accountability, and integrity of the overall PFM process remain scant and under-publicized. Distilling the lessons from existing CSO practices can serve as inputs in developing key recommendations in improving citizen participation in PFM processes.   History of Direct Democracy   The Philippines experienced the renewal and broadening of civil society during the 1980s as mass mobilizations helped bring down the Marcos dictatorship. As a product of democratic transition, the 1987 Constitution recognizes the importance of civil society and its participation in governance and development. The Charter declares that the State shall encourage non-governmental, sector-specific, and community-based organizations that promote the welfare of the nation. It emphasizes that the right of the people and their organizations for effective and meaningful participation at all levels of social, political, and economic decision-making shall not be abridged. To pursue this aim, adequate consultation mechanisms will be set up by the government.   The Philippines is a unitary state with a presidential system of government. It is characterized by the formal separation of powers between the executive, legislative and judicial branches of government. Historically, the executive agencies under the direction of the President enjoyed wide latitude for development planning, spending decisions, and appointments of key people to steer the bureaucracy. Nevertheless, these actions were subject to the oversight authority exercised in the budget and confirmation hearings of Congress as well as the audit procedures of independent Constitutional bodies, including the Commission on Audit and the Civil Service Commission.   Since 1946, free elections were held on a regular basis to choose the leaders from the President to legislators and local government officials except for the fourteen-year interregnum from 1972 to 1986 when the country was placed under martial law. As a platform for voice and accountability, elections leave much to be desired. The combination of a weak political party system, poor election administration, and inadequate voters education led to the low quality of democracy and the failure to convert campaign platforms into effective governance programs. In this landscape, rent-seeking opportunities abound to use campaign finance contributions as a window to get state-conferred business contracts and other concessions. On the other hand, the politicized recruitment of executives for bureaucratic positions from the top down to the level of middle managers distorted efforts to professionalize the government career executive service.   The weakness of democratic institutions like political parties fostered a state that became vulnerable to capture by politicians and their business allies while being unable to provide ordinary citizens with the voice mechanisms to express their demands and gain access to public services. A two-party system shaped the contours of electoral politics from 1946 until it was destroyed by martial law in 1972. The return of formal democracy in the aftermath of the people power revolution in 1986 gave rise to a multi-party system. Nevertheless, the shift from a two-party towards a multi-party system did nothing to alter the general lack of clear programmatic differences among the major parties.   The downfall of authoritarianism led to the establishment of a Constitutional Commission by President Corazon Aquino. In 1987, a new Philippine Constitution was ratified. Reacting to the twenty-year rule of Ferdinand Marcos as president, the new Charter limited the term of office of the President to a single six-year term. Other elected leaders like legislators and local government officials are also governed by term limits but can seek re-election under restricted successive term provisions. Another feature is the introduction of proportional representation in Congress for party-list groups that promote the interests of marginalized sectors. Twenty percent of the seats in the House of Representatives are allocated for proportional representation. A party-list group gains a seat when it reaches the threshold of two percent of the national vote and can occupy as many as three seats in Congress.   As a product of the democratic transition, the 1987 Constitution recognizes the importance of civil society and its participation in governance and development. The Charter declares that the State shall encourage non-governmental, sector-specific, and community-based organizations that promote the welfare of the nation. It emphasizes that the right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. To pursue this aim, adequate consultation mechanisms will be set up by the government.   Direct Democracy: Institutional and Non-institutional Mechanisms   Community-Driven Development   Community-driven development is pursued through the provision of grants for community-based social preparation, planning, and implementation of sub-projects such as water systems, access roads, schools, health stations, and daycare centers. The goal is to enable communities in target municipalities to enhance their access to social services and to engage in more inclusive local planning, budgeting, implementation, and disaster risk reduction and management.   The Kapit-Bisig Laban sa Kahirapan-Comprehensive and Integrated Delivery of Social Services-National Community-Driven Development (KALAHI-CIDSS-NCDD) Program encouraged marginalized communities to engage with their barangay officials in identifying their needs and accessing resources from other government agencies. The program enabled communities to participate in decision-making, exact accountability from local officials, and foil efforts to divert funds.   The Barangay Assembly became a venue for not just for reporting but also for accountability. It introduces the residents to the objectives and processes of the KALAHI-CIDSS-NCDD Program and validates the priority problems and proposed subprojects identified during the participatory situation analysis. The Barangay Assembly approves the various aspects of the chosen subprojects. During subproject construction, the Barangay Assembly instructs the village subproject management committees to report on the progress of implementation.   The Municipal Inter-Barangay Forum is the mechanism for subproject selection within the KALAHI-CIDSS-NCDD Program. Each village presents its proposal to the Forum, followed by an open forum where representatives of other villages are given an opportunity to raise questions about the proposal. After the subproject presentations are completed, proposals are graded using the criteria agreed upon earlier. The scores of the proposals are consolidated to arrive at the overall ranking of the sub-projects. The ranking of the sub-projects is then used for the allocation of the KALAHI-CIDSS-NCDD Program municipal grant.   The Forum is a collaborative activity between the DSWD and the LGU. It aims to elevate people’s understanding of the status of local development, especially in the areas of local governance, poverty reduction, and people empowerment. It provides a platform for face-to-face dialogue between project implementers and beneficiaries. It promotes the use of information by municipal and barangay officials to support better planning, implementation, and reporting.   Participatory Audit   The transition to democracy in 1986 opened windows for civil society participation in monitoring development programs of the government. In 1987, the National Economic and Development Authority (NEDA), the central planning agency of the government, signed a Memorandum of Agreement with the Concerned Citizens of Abra for Good Government (CCAGG) to monitor the projects under the Community Employment and Development Program in the province of Abra.   To prepare for the task, the CCAGG volunteers underwent rigorous training on project monitoring. Capacity building was provided by the NEDA – Region I office. The CCAGG conducted community meetings and used local radio and newspapers, to inform residents about the status of public infrastructure projects. In the past, it was common for government agencies to declare the completion of projects and programs that have not been validated especially in remote areas where there are no local monitoring teams.   In a celebrated case, the CCAGG decided to conduct a social accountability check on the then Ministry Public Works and Highways report on the completion of 27 road projects in Abra. Mobilizing its band of citizen volunteers, the CCAGG produced detailed documentation of the actual state of the finished projects. The civil society audit contradicted the government report while many of the projects were only just beginning or were mid-way through the construction stage. The CCAGG report was submitted to the national government. An official audit on the road projects was launched. The COA report concurred with the findings of the CCAGG. As a result of public participation in infrastructure monitoring, 11 public works officials were suspended for dishonesty and misconduct. The Chief Engineer and Deputy Chief Engineer of MPWH in Abra were suspended without pay and debarred from serving in the province. Recognizing the critical role of the CCAGG in corruption prevention, the COA decided to partner with the CCAGG in conducting participatory auditing with the support of the United Nations Development Programme. The lessons from the audit exercises were later incorporated into a Manual on the Conduct of Participatory Audit. Given its pioneering and extensive experience in infrastructure monitoring, the CCAGG was chosen to serve as Chair of the Bantay Lansangan (Road Watch) civil society network that monitored DPWH procurement processes under the Benigno S. Aquino III administration.   The Citizens Participatory Audit was launched in 2012 by the Commission on Audit (COA) and the Affiliated Network for Social Accountability in East Asia and the Pacific (ANSA-EAP). This mechanism makes it possible for CSOs and private professional organizations to participate in audit teams headed by COA. The CPA is based on the notion that the people have the “primordial right to a clean government and the prudent utilization of public resources”, and that “public accountability can prosper only with a vigilant and involved citizenry” (Department of Budget and Management, 2016). The following lists just some of the projects audited by CSOs under the CPA (Commission on Audit, n. d.):   (a) Barangay health centers in Marikina City   (b) Farm-to-Market Road (FMR) project   (c) KAMANAVA flood control project   (d) Solid waste management (SWM) program of Quezon City   (e) Water, Sanitation, and Hygiene (WASH) project   Textbook Count, a collaborative initiative between G-Watch and the Department of Education (DepEd), is intended to ensure that the right quantity and quality of textbooks are delivered to the right recipients at the right time. This effort is meant to:   (a) Put an end to corruption in the procurement of textbooks;   (b) Systematize the delivery of textbooks across the country.   (c) Pressure suppliers to become more responsive to the needs of the citizens.   (d) Establish standards regarding the performance of DepEd; and   (e) Organizing citizens for monitoring and inspection efforts to attain greater transparency (Government Watch, 2012).   The CSOs involved in the Textbook Count program monitored DepEd’s delivery of textbooks and teachers’ manuals, the procurement process, counted and checked the materials, among others. Errors or discrepancies discovered by the volunteers during the monitoring process were reported to the G-Watch, which then reports them to DepEd (La Salle Institute of Governance, 2012).   With the assistance provided by citizen volunteers, this initiative succeeded in ensuring the integrity of the bidding process, guaranteeing good textbook quality, assisting high schools and districts in checking that the textbooks were correctly delivered and distributing textbooks to different elementary schools (Government Watch, 2012).   People’s Council   The Philippines developed a decentralized system of government with the passage of the Local Government Code of 1991. Specifically, the Code included the concepts of devolution, funding of local government units, and citizen participation. Local development councils in every province, city, municipality, and barangay determine the use of the local development fund which represents 20 percent of the Internal Revenue Allotment from the national government. Under the law, a quarter of the seats in these councils should be occupied by CSO representatives.   In 1995, a landmark legislation called the Empowerment Ordinance mandated the city government to recognize the importance of public participation, through non-government organizations (NGOs) and people’s organizations (POs) that are federated in the Naga City People’s Council (NCPC), in fostering good local governance. The NCPC was empowered to appoint CSO representatives to local special bodies of the city government. It can observe, vote, and participate in the deliberation, conceptualization, implementation, and evaluation of projects, activities, and programs of the city government. It can propose legislation, participate, and vote at the committee level of the elected city legislative council, and act as the people`s representatives in the exercise of their right to information on matters of public concern and access to official records and documents.   There shall be one representative in the city council from each of the non-agricultural labor, women, and urban poor sectors of the city who shall be elected from among the members of the accredited NGOs and POs in each sector. The term of office of the elected sector representatives shall be co-terminus with the term of office of the regular members of the city council. They shall not be entitled to any salary. They may receive allowances as may be granted by the city council to defray the expenses for attending and participating in official functions, including city council sessions, committee hearings, and other activities in aid of legislation. The sector representatives shall enjoy the same rights and privileges, and exercise the same powers and responsibilities, as the regular members of the city council.   Through the efforts of the Naga City People’s Council and with the support of the United Nations Democracy Fund, capacity-building activities leading to the formation of local CSO networks were undertaken in the peripheral-urban municipalities that form part of the Metro Naga Development Council. The NCPC model is now being replicated in many parts of the province of Camarines Sur. The Naga City People’s Council (NCPC), which was mandated by the Empowerment Ordinance of 1995, is a network of approximately 100 non-government and people’s organizations in Naga. The NCPC functions not only as a watchdog of government actions but also as an active collaborator in making decisions and in the policy-making process. It is also a part of the Sangguniang Panglungsod committees, special local government bodies, and other groups (Naga City People’s Council, 2015).   The Naga City People Empowerment Ordinance, which solidified the role of CSOs in Naga, has also empowered the NCPC to appoint NGO representatives to local special bodies of the city government. Under the ordinance, CSOs can observe, vote and participate in the deliberation, conceptualization, implementation, and evaluation of projects, activities, and programs of the city government.. They can designate representatives to all city council committees, as well as suggest legislative measure and participate in deliberation and vote on a proposed legislation at the committee level of Sangguniang Panglungsod of Naga. They can act as the people’s representatives in the exercise of their constitutional rights to information on matters of public concern and access to official records and documents (Naga City People’s Council, 2015).   Bottom-Up Budgeting   Being the constituents of a democratic state, Filipinos have the right to participate in the decision-making processes regarding public affairs and are encouraged to do so. This is to improve accountability and transparency, which are closely associated with good governance (La Salle Institute of Governance, 2012). In fact, the 1987 Constitution states that: “The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation (Art. 2, Sec. 23).” Another important provision in the 1987 Constitution states that: “The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The state shall, by law, facilitate the establishment of adequate consultation mechanisms (Art. 13, Sec. 16).”   In addition to this, the 1991 Local Government Code set down the structures of local government units (LGUs) as well as their powers and responsibilities. Aside from requiring LGUs to deliver the necessary basic goods and services to their constituents, the Code also promotes the participation of citizens in all aspects of governance. Some participatory mechanisms that serve as an avenue for the people to participate include mandatory consultations and public hearings. The Code also encouraged the formation of Local Special Council Bodies which are semi-autonomous components linked to local governments that allow for the representation of CSOs as well as the private sector. Furthermore, one of the bodies mandated by the Code, the Local Development Councils, functions as “the mother local planning structure (La Salle Institute of Governance, 2012).” These legal frameworks, supported by an increasing desire of the public for greater accountability, have helped cultivate an environment that is conducive for CSOs inclined with monitoring and evaluation to flourish. Such organizations include the following: Citizen Score Cards, Procurement Watch, G-Watch, Social Watch, Local Government Watch, as well as the Social Housing Watch (La Salle Institute of Governance, 2012).   Over the last few decades since the post-Martial law period, CSOs have greatly improved in terms of effectiveness through “networking and coalition building, campaigning for policy reform, adopting good practice standards, and advancing ‘sustainable development’ as a uniting vision for all organizations” (Asian Development Bank, 2007). The PFM reforms over the last few years were pursued to address the persistent problems of corruption and poverty (Magno, 2015). According to the Caucus of Development NGO Networks (CODE-NGO) (2005), the Office of the Ombudsman determined that around U.S. $48 billion was lost to government corruption between 1977 and 1997. This led to “the emergence of a set of core civil society beliefs about combating corruption and promoting good governance” (Dressel, 2012).   Citizen participation in the budget process is necessary for “better decision making, better planning, better budgeting, better expenditure and better accountability.” (Department of Budget and Management, 2016). Some of the most notable efforts include the Budget Partnership Agreement (BPA), Bottom-up Budgeting (BuB), and the Citizen’s Participatory Audit (CPA), all of which boosted the partnership between CSOs and the government (Department of Budget and Management, 2016). Today, opportunities for citizens and CSOs to participate in the budget process have widened. They can now take part in budget formulation, decision-making, monitoring the budget execution (Affiliated Network for Social Accountability in East Asia and the Pacific, 2010), budget analysis, as well as in public expenditure or input tracking (La Salle Institute of Governance, 2012). Interestingly, the Philippines ranked first among some selected Asian countries in the 2016 CSO Sustainability Index for Asia (United States Agency for International Development, 2016).   The Bottom-Up Budgeting (BUB) Process was introduced in 2012 for the preparation of the 2013 budget. Also known as Grassroots Participatory Budgeting (GPB), the BUB provides a mechanism for locally identified projects to be supported under the General Appropriations Act. It provides for the convening of a general assembly of CSOs who elect their representatives to the local poverty reduction action team (LPRAT) to determine local priority projects. The CSO assemblies are convened by city and municipal level officers of the DILG, with the support of the provincial representatives of the basic sectors in the National Anti-Poverty Commission (NAPC). These projects are submitted for incorporation into the budget of national agencies. Half of the membership in the LPRAT is from the government while the other half is from the CSO sector. The team is co-chaired by the Local Chief Executive and the CSO representative.   The first round of the BUB Process started with 5,898 projects in 609 cities and municipalities with a budget allocation of PHP 8.39 billion. The second round began in December 2012 for the 2014 budget. It expanded to 1,226 cities and municipalities involving 20,047 projects and funding support amounting to PHP 20.04 billion. Joint Memorandum Circular No. 4 was issued by the DBM, DILG, DSWD, and National Anti-Poverty Commission (NAPC) in November 2013 for the 2015 budget preparation. All 1,534 cities and municipalities were covered. A total of 20,899 projects were identified with a budget of PHP 20.8 billion. Two modalities were applied, including the Regular BUB Process for the areas not covered by the Kapit-Bisig Laban sa Kahirapan-Comprehensive and Integrated Delivery of Social Services (KALAHI-CIDSS) Program, and the Enhanced BUB Process for LGUs that have graduated from or are currently under the KALAHI-CIDSS Program.   Under the Regular BUB Process, the government representatives include the Chair of the City or Municipal Committee on Appropriation, as well as the City or Municipal Department Heads such as the Planning Officer, Budget Officer, Fishery and Agriculture Officer, Social Welfare and Development Officer, Health Officer, Community, Environment and Natural Resource Management Officer (CENRO) and Public Employment Service Office (PESO) Manager. The representatives of national government agencies that sit in the LPRAT include the DSWD Municipal Links, the DILG Local Government Operations Officer, the School District Supervisor, and the Agrarian Reform Officer.   The CSOs with seats in the LPRAT would come from the following groups: (1) Pantawid Pamilya Parent-Leaders recognized by the DSWD, (2) Leaders from DOH-organized Community Health Teams, (3) Leaders of the Parent-Teacher Associations, (4) Leaders of CSOs accredited by LGUs, (4) Leaders of CSOs accredited by any National Government Agency, (5) Leaders of a women`s group, (6) Leaders of a basic sector organization recognized by NAPC, (6) Leaders of other community or grassroots organizations. In cities and municipalities where indigenous peoples (IP) constitute over 20 percent of the population, one of the elected CSO representatives must come from the IP sector. A representative from a local business association also joins the LPRAT.   Municipalities that have graduated from or are currently implementing the KALAHI-CIDSS Program shall follow the Enhanced BUB Process. The LPRAT shall serve as the technical working group of the Enhanced Local Development Council (LDC). The LPRAT would consist of 10 representatives from the government, 5 Barangay (Village) Development Council Vice-Chairpersons selected through the KALAHI-ClDSS Program, and 5 CSO representatives in the Enhanced LDC who got elected during the CSO assembly.   To encourage the meaningful participation of CSOs in the CSO assembly and LPRAP workshop, it has been suggested that CSOs should be given ample time to consult with their members and prepare for the BUB activities. LGUs should inform CSOs and send invitations ahead of time. The need for a thorough mapping of CSOs is also recommended (Pastrana and Lagarto 2014).   Benefits and Challenges of Direct Democracy   Open Government and Fiscal Transparency   Supply-side governance reforms have led to the institution of open data mechanisms that provide financial and budget information to citizens. The Transparency Seal pushes for the mandatory disclosure of key budgets and major programs and plans on their websites. The Full Disclosure Policy of the DILG has resulted in the mandatory disclosure of key financial documents of local government units including budget, procurement, and special purpose fund reports such as the utilization of the Gender and Development (GAD) Fund, Internal Revenue Allotment (IRA), and Disaster Risk Reduction and Management (DRRM) Fund.   The launching of the Philippines-Extractive Industries Transparency Initiative (EITI) has created a tripartite working group involving government, civil society, and business to ensure greater transparency in revenues from extractive industries. The aim is the publication of a report that compares government and industry figures on government revenues in mining, oil and gas. The key challenge is how to make revenue reporting a mandatory, rather than voluntary, effort.   Public Participation in Budget Policy   Over the past five years, various efforts were made to enhance public participation in the budget cycle, from budget formulation to budget oversight. The Budget Partnership Agreement creates a means for CSO engagement with national government agencies in crafting budget proposals. Aside from providing local CSOs with a formal mechanism to engage in national and local budgeting, the Bottom-Up Budgeting Process also sought to make national government more responsive to local needs, as well as to improve the quality of governance and service delivery at the local government level.   The pilot implementation of the BUB Process in 2012 involved 595 cities and municipalities, resulting in PHP 8 Billion worth of locally-determined poverty reduction programs and projects integrated into the 2013 budget. Since then, the Aquino government has gradually expanded the BUB Process. In crafting the 2015 budget, the participation of grassroots organizations in 1,590 cities and municipalities resulted in a larger allocation of PHP 20.9 billion.   Through the KALAHI-CIDSS-NCDD Program, the barangays of target municipalities have been empowered to improve their access to social services and to participate in inclusive local planning, budgeting, and implementation of budgets. On the other hand, the Citizens Participatory Audit has led to the conduct of performance audits with CSOs to help find out whether public funds are efficiently allocated and properly spent.   Public Participation in Performance Monitoring   The key performance monitoring system for local government units is the Seal of Good Housekeeping (SGH) which has been succeeded by the Seal of Good Local Governance (SGLG). The implementation of the SGH has enabled citizens to gain better access to information on local government finances and development projects. Through this performance system, local governments started sharing financial documents with the citizens online through the FDP Portal. About 7 of every 10 LGUs have regularly uploaded their financial documents. Due to good financial housekeeping encouraged by the SGH, there is now a decline in the number of local governments obtaining a negative COA Opinion Report.   The implementation of the SGH and SGLG assessment has resulted in more CSOs` engagement in program development and performance monitoring nationwide. Thousands of development projects have been and continue to be implemented with the support of the Performance Challenge Fund (PCF). More communities are able to enjoy public services, including water systems, health centers, public markets, and farm-to-market roads that were created through PCF projects.   In monitoring the compliance of government agencies with the Anti-Red Tape Act of 2007, CSOs join surprise visits to government agencies through the ARTA Watch of the Civil Service Commission. This social accountability mechanism is used by the Commission to promote awareness and compliance with the service standards identified in the Citizen Charters of national agencies and LGUs.   Reforms toward Full Democracy   The divide between government and CSOs has become more blurred today than ever before. However, both actors have begun to work closely together to address societal issues and to achieve greater transparency and accountability. This is known as co-production, which is defined by Elinor Ostrom (1996) as “a process through which inputs from individuals who are not ‘in’ the same organization are transformed into goods and services”. This implies that consumers of public goods and services may also serve as producers, which makes them consumer producers (Alford, 2014).   However, for citizens to better participate in co-production mechanisms, they must be empowered and competent, especially since these individuals serve as the backbone of any organization. Human capital development is essential for any group to function. In his book Development as Freedom, Amartya Sen (1999) asserted that freedom is both the end and the means of development. He specified five freedoms: (1) political freedom, (2) economic facilities, (3) social opportunities, (4) transparency guarantee, and (5) protective security. These individual freedoms are needed to achieve development, which he defined as the “process of expanding the real freedoms that people enjoy”. Hence, to build their capacity, it is necessary for individual citizens to have the freedom to make use of opportunities in exercising their rights such as the right to participate in the decision-making process in public affairs; this is what Sen’s (1999) capability approach is all about.   Based on the experiences of the CSOs concerned, it is apparent that the ties between the government, CSOs, the academe, and other stakeholders have become more intertwined. It has become more practical and convenient for them to work together in carrying out tasks, especially since a single actor does not possess all the necessary resources, funds, manpower, and assets to achieve certain functions. From the examples provided above, it is that both the national and local governments working with CSOs are actively engaged in the budget preparation process. The Senate and Congress are the main actors in the budget legislation phase, while CSOs participate in the procurement and accountability phases through monitoring. In short, CSOs play a vital role in planning for projects and programs and in monitoring these initiatives that are then implemented by the government.   In addition, the participation of non-governmental actors, especially in monitoring, has been proven effective in improving transparency and accountability as well as in reducing the incidences of corruption in government. The direct involvement of stakeholders and local CSOs in the budget cycle is necessary because these are the very people who have experienced and therefore understand the issues within their respective localities. After all, most of these concerns are better addressed at the micro-level. Thus, enabling CSOs to assume an active role in the budget process empowers them since they get to somewhat decide for themselves and their community. It is also worth noting that it is clearly important that the citizen volunteers who are involved in conducting projects must be knowledgeable and competent with what they are doing. This is the reason why some CSOs conduct training or capacity-building mechanisms to train and empower their volunteers.   It is also interesting that the media and the Internet are considered important tools in strengthening ties and harmonizing relationships between the government and the citizens. With the massive exposure of people to social media, they can easily post and disseminate societal concerns that can be addressed by the government. This kind of action alone shows that by simply posting and sharing something on social media, a citizen can have the power to influence government actions. In this kind of modem, the Filipinos’ basic right to free speech as guaranteed in the constitution, is better used not simply as a venue for creative expression but, more importantly, as an effective mechanism for positive empowerment in strengthening the democratic process for nation-building in the grassroots level.   Although some issues have been raised regarding the long-term sustainability of CSOs, these can be properly addressed. Such issues include the lack of time of those in urban areas to engage in social causes, convincing local government officials to consider certain plan changes, encouraging citizens to get more readily involved in local engagements (Lacson, de la Rosa and de Guia, 2018), and not gaining the support of LGUs (Naga City People’s Council, 2015). Issues on funding may also exist considering that many CSO initiatives rely heavily on funds provided by international organizations like the United Nations or other foreign governments.   References   Affiliated Network for Social Accountability in East Asia and the Pacific (2010). Social accountability in the Philippines: A scoping study. Philippines: Affiliated Network for Social Accountability in East Asia and the Pacific. Affiliated Network for Social Accountability in East Asia and the Pacific (n. d.). Social action center of the diocese of Ilagan (SAC-Ilagan); http://www.ansa-eap.net/networking/geographic-focus/northern-luzon-coalition-for-good-governance-philippines/northern-luzon-sub-country-partners/social-action-center-of-the-diocese-of-ilagan-sac-ilagan/ Alford, J. (2014). “The multiple facets of co-production: Building on the work on Elinor Ostrom.” Public Management Review, 16(3), 299-316. Asian Development Bank (2007). Overview of NGOs and civil society: Philippines. Civil Society Briefs; https://www.adb.org/sites/default/files/publication/28972/csb-phi.pdf Caucus of Development NGO Networks (2007). Looking into the pork barrel: PDAF Watch report 2005-2007. Philippines: Caucus of Development NGO Networks. Collective Action (n. d.). Coalition against Corruption (CAC). Retrieved from https://www.collective-action.com/initiatives-detail/198 Commission on Audit (n. d.). Citizen participatory audit reports. Retrieved from https://www.coa.gov.ph/index.php/reports/citizen-participatory-audit-reports Concerned Citizens of Abra for Good Government. (2018). Fostering effective partnership for good governance. Retrieved from https://ccagg.org/fostering-effective-partnership-for-good-governance/ Department of Budget and Management (2016). Kuwento sa Bawat Kuwenta: A Story of Budget and Management Reforms 2010-2016. Philippines: Department of Budget and Management. DLSU Jesse M. Robredo Institute of Governance (2016). Institutionalizing civil society participation in local planning, budgeting, and monitoring. DLSU Jesse M. Robredo Institute of Governance (2014). Fostering Knowledge Coalitions for Open Governance through Engaged Universities, Final Report submitted to the Department of Foreign Affairs and Trade (DFAT) of Australia, January. Dressel, B. (2012). Targeting the public purse: Advocacy coalitions and public finance in the Philippines. Administration & Society, 44(6S), 65-84. Government Watch (2010). Bayanihang eskwela manual: A guide to citizen monitoring of school building construction projects. Philippines: Ateneo School of Government. Government Watch (2012). G-Watch in local governance: A manual on the application of G-Watch in monitoring local service delivery. Retrieved from http://www.ateneo.edu/sites/default/files/Generic%20Manual%20Nov28_1.pdf La Salle Institute of Governance (2012). Monitoring social accountability: Stocktaking report. Philippines: La Salle Institute of Governance. Lacson, A., de la Rosa, J. and de Guia, T. (2018). Best practices in empowering people’s councils for enabled governance participation. InnovateGov National Summit 2018, Makati, Philippines, October. Magno, Francisco (2015). Public participation and fiscal transparency in the Philippines. Global Initiative for Fiscal Transparency;http://www.fiscaltransparency.net/resourcesfiles/files/20150706115.pdf Moses, Michael and Sue Soal (2017). Supporting local learning and adaptation: understanding the effectiveness of adaptive processes, Making All Voices Count Policy Brief, Brighton: Institute of Development Studies. Naga City People’s Council (2015). Organizing and operationalization of a people’s council: A guidebook. Philippines: Naga City People’s Council. National Movement for Free Election. (n. d.). A guide to medicine monitoring in public hospitals. Retrieved from http://www.ansa-eap.net/assets/756/mmt.pdf Ostrom, E. (1996). Crossing the great divide: Coproduction, synergy, and development. World Development, 24(6), 1073-1087. Partnership for Transparency Fund (2015). Monitoring procurement, delivery, and dispatch of medicines in the Philippines. PTF Case Study Series No. 15; https://ptfund.org/wp-content/uploads/2015/05/Case-Study-Namfrel.pdf Partnership for Transparency Fund (2016). Participatory local governance in Northern Luzon; https://ptfund.org/northern-luzon-coalition-for-good-governance/ Procurement Watch, Inc. (2010). Bantay Eskwela: Operational guidelines. Philippines: Procurement Watch, Inc. Sen, A. (1999). Development as freedom. USA: Anchor Books. United Nations Development Programme, Australian Agency for International Development and Career Executive Service Board (2005). Best practices in anti-corruption in the Philippines; http://www.ombudsman.gov.ph/UNDP4/wp-content/uploads/2013/07/Best-practices-Anti-c0rruption.pdf United States Agency for International Development (2016). 2016 CSO sustainability index for Asia. Washington D.C., United States. World Bank (2013). Final Evaluation Report: Institutionalizing Civil Society Monitoring of Public Service Delivery to the Poor (P115727).     ■ Francisco A. Magno teaches Political Science and Development Studies at De La Salle University (DLSU). He is the Founding Director of the DLSU Jesse M. Robredo Institute of Governance. He served as the President of the Philippine Political Science Association from 2015 to 2017. He finished his PhD in Political Science at the University of Hawaii.       ■ Typeset by Juhyun Jun Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

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Working paper
[ADRN Working Paper] Protection of Minority Rights in Bangladesh Requires Stronger Commitment

Introduction   Bangladesh is a densely populated country of 164 million people. Minorities constitute roughly 10% of the population. Among them, religious minorities form the major portion with Hindus comprising 8% followed by Buddhists and Christians. The rights of minorities are protected under the Constitution, which guarantees equality in the eyes of the law for all citizens. However, due to several factors, minority rights are often violated. These include economic factors, religious fanaticism, and general negative attitudes. Weak response by the state against violence, intimidation etc. also contributes to violations of the rights of minorities. There are several categories of minorities in Bangladesh. However, the dominant minority communities are ethnic, religious, and other (linguistic, refugees etc.)   Historical Background and the Present State of Minority Rights   Hindus have been the majority and dominant religion in South Asia for centuries. Buddhism is also a homegrown religion of the sub-continent, and are now the majority in Sri Lanka and Myanmar. Muslims came to the sub-continent about 600 years ago from Afghanistan, Iraq, Turkey, and other such places. A massive conversion from Hinduism to Islam took place from the 16th to 17th century.   After 200 years of British rule, the sub-continent was divided into Pakistan and India in 1947. Pakistan became a Muslim majority country and India a Hindu majority, though millions from both religions remained in the two countries. Pakistan was geographically divided into East and West Pakistan, with India in between. East Pakistan was characterized by the Bengali speaking people, who were majority Muslims by religion but with a distinct cultural identity which was different from West Pakistan. In 1971, after a brutal war, this part of East Pakistan emerged as an independent country which is now Bangladesh. Ninety percent of the population of Bangladesh is Muslim, and the remaining 10% are religious and ethnic minorities.   Bangladesh, right after independence, emerged as a secular polity with a constitutional embargo on religion in politics. The first Constitution, passed on November 4, 1972, abolished (a) all kinds of communalism; (b) political recognition of religion by the state; (c) exploitation of religion for political purposes; and (d) discrimination on religious grounds. [1] The preamble of the Constitution emphasized secularism as one of the fundamental principles of state policy. Article 9 of the Bangladesh Constitution (1972) defined Bengali nationalism as: “The unity and solidarity of the Bengali nation, which deriving its identity from its language and culture, attained sovereign and independent Bangladesh through a united and determined struggle in the war of independence, shall be the basis of Bengali nationalism.” [2] The insertion of the above clauses ensured the political and cultural dominance of Bengalis within the state. However, many claim this was a denial of the cultural identity and distinctiveness of the other groups.   Other religions are, however, are recognized under Article 41 of the Constitution, which gives citizens the right to practice and promote religious beliefs. Further provisions of Article 41 guarantee each individual’s right to refuse to practice a religion, or to be compelled to be educated in a religion other than their own. [3] Sections 295, 296, 297, and 298 of the Penal Code deal with offenses against religious places or practices. [4] (Bangladesh Penal Code 1860). The only protective provision for ethnic minorities is Article 28(4), which states that “Nothing in this article shall prevent the state from making special provision in favor of women and children or for the advancement of any backward section of the citizens.” [5]   Bangladesh has categorically maintained that there are no Adivasis or indigenous people in Bangladesh. The debate continues whether the ethnic minorities are Adivasis or migrants. As it transpired, Bengalis and Bengali Muslims are the culturally homogenous majority population, while the minority/weaker communities are expected to assimilate themselves with the “mainstream,” i.e. the dominant majority community.   Though Bangladesh broke away from Pakistan and emerged as a secular nation-state in 1971, it still bears signs of majoritarian politics, especially after the assassination of the country’s first president Sheikh Mujibur Rahman in 1975. Post-1975 Bangladesh has witnessed the rise of Islam as the state religion. However, the situation improved for rights of minorities when in 1996 secularism was restored in the Constitution of 2011. However, Islam remains the state religion. This ambiguity[6] shows the divided nature of the country’s population, which impacts the principles of secularism and rights for minorities as equal citizens.   Through a gazette notification, on October 4, 2018, the government abolished its reservation for indigenous peoples along with other quota categories for first and second class government services. The decision came in response to a series of countrywide protests against the quota system. Instead of reforming the existing system, the government completely abolished it, which resulted in the direct deprivation of the most underprivileged groups, including indigenous peoples.   In the past 20 years there has been a rise in religious extremism in Bangladesh. Some reasons include increasing globalization, use of social media, and the global rise in religious fanaticism, especially in Middle Eastern countries. Moreover, international Muslim scholars have taken control over the interpretation of Islam, which sometimes clashes with the spirit of multi-faith harmony in the country.   Feelings of victimization are one of the top causes of radicalization. Neighboring India and Myanmar are accused of persecuting Muslims. Videos of this persecution are rampant on social media, which generates feelings of proxy-victimization. [7] A study on radicalization in Bangladesh revealed that Muslim persecution in India and Myanmar, in addition to the situation in Palestine and other Middle Eastern countries, have helped to radicalize youths. [8]   The recent spasm of violence against religious minorities, especially Hindus and Buddhists, in response to fake blasphemy allegations are the result of a negative attitude towards them. Many religious attacks on minorities are actually done in the guise of attempts to steal land and assets belonging to Hindus. [9] Local politics are also at play. As the ruling Awami League has consolidated power and is now effectively without a viable opposition, there are indications that rivalry over resources (including land grabs) within the ruling party is becoming entrenched. In one local district, two rival groups within the Awami League have reportedly blamed[10] each other for the attacks on Hindu houses and temples. [11]   Status of Ethnic Minorities   Bangladesh is a country of cultural and ethnic diversity, with over 54 indigenous peoples speaking at least 35 languages, along with the majority Bengali population. According to the 2011 census, the country’s indigenous population numbers approximately 1,586,141, [12] which represents 1.8% of the total population of the country.   The majority of the indigenous population lives in the plains districts of the country, [13] and the rest in the Chittagong Hill Tracts (CHT). The government of Bangladesh does not recognize indigenous peoples as “indigenous” and refers to them as “small anthropological groups.” Major issues related to indigenous peoples’ economic and political rights, such as rights to ancestral land, remain ignored. The CHT region was in conflict until the signing of the Peace Accord in 1997. However, many clauses in the peace agreement remain to be implemented, such as the devolution of power to the Regional Council and the removal of all army camps.   Dominant Religious Minorities in Bangladesh   Religious minorities are the largest group of minorities in Bangladesh and number about 8% of the population. They are Hindus, Buddhists, and Christians. The Hindu minority population is well integrated into mainstream social, cultural, and political life in Bangladesh. There is no overt discrimination against them as such, and they enjoy their right to practice their religion, obtain employment, and other such activities. However, discreet and insidious rights violations still occur .   Reasons and Challenges behind the Violations of Minority Rights   Weak Response of the State   Often, authorities do not initiate a strong enough response to attacks on minorities. The most recent attacks occurred during Durga Puja in 2021 (the most important Hindu religious festival in Bangladesh). Although the government expressed its intention to stop these communal attacks and punish the perpetrators, justice was not swift enough and neither was compensation for victims. If this is a sincere promise, then the government should start by implementing the recommendations given in the Judicial Commissions report submitted three years ago. Such sporadic attacks such as looting and vandalizing of temples and property belonging to Hindus occurs regularly during religious festivals.   Political Indemnity   After every such incident, the two main political parties, the Awami League and BNP, start to blame each other and ultimately try to shelter any of their activists who were involved with the violence. This sort of political indemnity is a big reason why incidences of communal attacks are repeated in Bangladesh. Sections of the Bangladesh Penal Code fail to protect the rights of minorities, and perpetrators are most often not punished.   Land Grabbing   Making a profit from grabbing the land and assets of minorities, particularly those belonging to Hindus and ethnic minorities, is the most common form of rights violation that occurs. These land grabbers are often influential people who enjoy immunity, and their actions are not questioned. In the CHT, settlements by majority Bengalis have changed the demography of the region, and indigenous people are no longer in the majority. The same is true of plain land Adivasis as their land continues to be grabbed for the construction of resorts and parks. The Hindu population has lost most of their land to influential Muslims, either through intimidation, forced sales at prices far below market value or through illegal land grabbing.   Propaganda and Rumors: Violence due to Rumors Spread by Vested Quarters   In Bangladesh today, especially in rural areas, rumors are spread deliberately by vested interest groups to create negative perceptions about minorities. Many incidents of atrocities against religious minorities have been due to false rumors spread on purpose to unleash violence against them with the intention of grabbing their land or property or forcing them to migrate to India. Social media is used to create distrust and disharmony between minority and majority populations, and new technologies are used to disrupt social harmony. The result has been attacks against not only Hindus but also Buddhist communities.   Prolonged Justice System   The prolonged delay in ensuring justice for victims is one of the reasons why perpetrators are emboldened to carry on their activities with impunity. They are not usually held accountable for their actions. The entire justice system is stacked against the weak and the powerless. The saying “justice delayed, justice denied” is true in this present context. Those belonging to low income groups are even more marginalized in terms of getting justice.   Negative Attitude towards Minorities   Often, members of the majority population have a preconceived negative attitude towards minorities and believe they are inferior in terms of their social status, culture, and way of life. This negative attitude results in violence and rights violations.   Recent Incidents of Minority Right Violations   In 2013, the numbers of human rights violations against indigenous peoples grew. Incidents of rape, murder, and land grabbing and looting of property occurred. The Kapaeeng Foundation’s “Human Rights Report 2013 on Indigenous Peoples in Bangladesh” reports that at least 47 houses, including one from the plains, were set on fire and burnt to ashes, while around 2,000 people from 400 families in CHT fled to the “no man’s land” adjacent to the neighboring Indian state due to communal attacks conducted by Bengali settlers. In some cases, while these violations were committed by influential Bengali miscreants as non-state actors, while state actors, such as members of security forces and law enforcement agencies, played either supportive or passive roles. [14] The situation of the CHT throughout the year 2018 was characterized by very limited freedom of speech, expression, assembly, and association.   Those who have suffered the most are the indigenous human rights defenders (IHRDs), especially those affiliated with local political platforms, as well as many ordinary indigenous villagers. Incidents of criminalization and arbitrary search operations, arrests, detentions, and false charges occurred across the CHT. The Kapaeeng Foundation, a research organization for indigenous people, documented a total of 117 people facing false charges, 75 of whom were arrested in 2018. Additionally, some 90 houses were searched by security forces in the middle of the night without any prior warrant or complaint in 2018. [15]   Violence against Women and Girls   Indigenous women and girls have been targets of violence, intimidation, harassment, and discrimination for years. Indigenous women and girls routinely face sexual, physical, and mental violence throughout the year mostly from Bengali settlers, influential land grabbers, and sometimes even men from within their own communities. The Kapaeeng Foundation documented that at least 53 indigenous women and girls, in 47 incidents, were reportedly killed, raped, assaulted, or violated in 2018. [16] More often than not, the violence that indigenous women and girls face is political, connected to power relations and with the intention of driving them away to grab their land.   International Commitments   Bangladesh is a signatory to all UN Conventions such as ECOSOC, UNCAT etc. that focus on the protection of cultural, political, and social rights. May 2018 was the third time the human rights situation in Bangladesh was reviewed by the Working Group on the Universal Periodic Review (UPR). A 29-member delegation led by the Minister of Law, Justice, and Parliamentary Affairs attended the thirtieth session of the UPR Working Group. The Bangladesh delegation condemned violence against religious and ethnic minorities and claimed that allegations of such incidents had been addressed as promptly as possible during the period under review. In a similar vein, the delegation emphasized a “zero tolerance” policy towards crimes perpetrated by members of law enforcement agencies.   This same government policy statement appeared in the second UPR review of Bangladesh in 2013. Moreover, the delegation reiterated previously made commitments concerning the implementation of the 1997 CHT Accord and existing constitutional provisions on protecting the local culture and traditions of indigenous peoples.   Facebook and Social Media   Almost every year since 2012, religious minorities have been attacked somewhere in Bangladesh after online posts promulgating false allegations. The pattern runs like this: rumors begin within a local community that people from a minority background have defamed Islam, and such orchestrated “fake news” quickly spreads online to incite violence against minorities. While Facebook remains a key platform for inciting hate and violence towards minorities in Bangladesh, three other factors are important to understand why these deadly rumors attract mobs who then attack minorities for alleged blasphemy.   Firstly, studies in recent years have identified shifting trends in Islamic majoritarianism in Bangladesh where blasphemy and atheism are deemed to have deadly implications. [17] Atheist bloggers have been murdered[18] by violent Islamists, for example, and several “blasphemous” writers, cartoonists, publishers, and bloggers now live in permanent exile.   Current Practices to Protect Rights of Minorities   Government Initiatives to Address Violations of Minority Rights   As mentioned above, the Constitution of Bangladesh guarantees equal rights for every citizen of the country without prejudice towards any one. The government’s stated position is “zero tolerance” for crimes against minorities. The government also sets up investigation commissions after every attack and vows that the perpetrators will not be spared. When an attack occurs, the police take action and arrests are made. The National Human Rights Commission has been set up to monitor rights violations against all citizens with a special focus on minorities.   Non-Government Initiatives   Civil society organizations have been active in the protection of minorities. Several NGOs have specific programs and projects to monitor rights violations and provide services to minorities, such as legal and financial assistance. In order to portray an objective situation, parallel reports are submitted by CSOs to concerned international bodies dealing with the rights of minorities. The Human Rights Forum Bangladesh (HRFB) and Citizen Platform for the Implementation of the SDGs are two such national-level platforms with links to grassroots human rights defenders.   Conclusion and Recommendations   Bangladesh is still known as a multicultural and multi-religious country with a culture of social harmony and religious tolerance. The government is committed to upholding the principles of secularism as enshrined in the Constitution of Bangladesh, even though it often fails to act decisively against the perpetrators of violence and rights violations. It must be noted that Hindus do enjoy religious freedom, as Durga Puja is celebrated by everyone annually in a grand manner irrespective of religion. However, incidents of violence should be handled in a stronger way. Other secular festivals, such as the Bangla New Year on April 14, are also universally celebrated.   Sincere dialogue and discussion is needed to address issues such as diversity, cultural, social, political, and religious rights, and acceptance of different opinions and differences. The entire education system needs to be revised to include the above issues in the curriculum, and children should be taught at a young age to celebrate diversity rather than reject it. It is through social, religious, and cultural harmony that Bangladesh will attain the dream with which it was created of a discrimination-free society with the political, social, religious, and cultural rights of every citizen ensured.    References   Bangladesh and Violent Extremism: Resolve Network Research 2016-2017. Resolve Network. 2018. https://resolvenet.org/system/files/2018-10/RSVE_16-17BGD_ResearchCompendium_FINAL.pdf. Bangladesh Bureau of Statistics (BBS). “Population and Housing Census 2011.” Government of the Peoples Republic of Bangladesh. 2011. http://203.112.218.65:8008/WebTestApplication/userfiles/Image/National%20Reports/Population%20%20Housing%20Census%202011.pdf. Barman, Dalem Chandra. Human Rights Report 2013 on Indigenous Peoples in Bangladesh. Kapaeeng Foundation. 2014. http://www.kapaeeng.org/kapaeeng-foundation-launches-its-human-rights-report-2013-on-indigenous-peoples-in-bangladesh. Chowdhury, Mong Shanoo, and Pallab Chakma. Human Rights Report 2018 on Indigenous Peoples in Bangladesh. Kapaeeng Foundation. June, 2019. http://bdlaws.minlaw.gov.bd/act-11.html?lang=bn. Rita, Shamima. “Land Grab: Mayor Ivy`s Family Seizes Temple Property?” Dhaka Tribune, February 6, 2021. https://archive.dhakatribune.com/bangladesh/nation/2021/02/06/land-grab-mayor-ivy-s-family-seizes-temple-property.     [1] “The Constitution of the People’s Republic of Bangladesh,” People’s Republic of Bangladesh, 1972. [2] Ibid., Article 9. [3] Ibid., Article 41. [4] “The Penal Code, 1860,” People’s Republic of Bangladesh, 1860, Sec. 295-298. [5] “The Constitution of the People’s Republic of Bangladesh,” Article 29(4). [6] Shafi Md Mostofa, “Bangladesh`s Ambiguity on Religion Has Been Expensive for the Country.” The Diplomat, 2020. [7] Shafi Md Mostofa, “Explaining Islamist Militancy: A Pyramid Root Cause Model,” in Islamist Militancy in Bangladesh, ed. Mark Beeson (Palgrave Macmillan, Cham, 2021), pp. 163-186. [8] Ibid. [9] Shamima Rita, “Land Grab: Mayor Ivy`s Family Seizes Temple Property?,” Dhaka Tribune, 2021. [10] Iftekhar Mahmud and Alam Palash, “Awami League`s Two Groups Blaming Each Other,” Prothomalo, 2021. [11] Mubashar Hasan, “Minorities under Attack in Bangladesh,” The Interpreter, 2021. [12] Bangladesh Bureau of Statistics (BBS), “Population and Housing Census 2011,” Government of the Peoples Republic of Bangladesh, 2011. [13] Sadeka Halim, "Land Loss and Implications on the plain land Adivasis," Shanghati, Bangladesh Indigenous Peoples Forum, 2015. [14] Dalem Chandra Barman, Human Rights Report 2013 on Indigenous Peoples in Bangladesh, Kapaeeng Foundation, 2014. [15] Mong Shanoo Chowdhury and Pallab Chakma, Human Rights Report 2018 on Indigenous Peoples in Bangladesh, Kapaeeng Foundation, 2019. [16] Ibid. [17] Bangladesh and Violent Extremism: Resolve Network Research 2016-2017, Resolve Network, 2018. [18] Saad Hammadi and Emma Graham-Harrison, “Inside Bangladesh`s Killing Fields: Bloggers and Outsiders Targeted by Fanatics,” The Guardian, 2016.     ■ Shaheen Anam is the Executive Director at the Manusher Jonno Foundation.     ■ Typeset by Jinkyung Baek Director of the Research Department∙Senior Researcher     For inquiries: 02 2277 1683 (ext. 209) | [email protected]  

Shaheen Anam 2022-06-28Views : 17658
Working paper
[ADRN Working Paper] The Protection of Dalit Rights in Nepal: Status and Way Forward

Background   Nepali society interacts through a caste-based ideology, system, and structure. However, the discrimination, indignities, and inequalities bred by the caste system get swept under the carpet or shushed by those in power—the dominant caste groups. The caste-based hierarchy excludes the lower caste categories from equal and inclusive representation and access to decision making and justice, and has jeopardized their lives by exploiting their human rights, labor, and skills.   These caste inequalities have infiltrated all aspects of citizenry and state and have further marginalized the already excluded, particularly women, Dalits, indigenous populations, and different gender identities, who have yet to find true meaningful representation and participation in democracy and nation-building. The barriers associated with ethnicity, culture, religion, vernacular, and geographical diversity add an additional layer to the already existing discrimination.   Nepal’s marginalized and excluded communities have long resisted the supremacy of Brahmanical patriarchy and demanded equitable access to resources, allocations, and mobilization. Dalit resistance continues to stand against the unforgiving and unremitting caste-based discrimination to this day. However, the state and the dominant power groups have long neglected them, their voices, and their resistance, forcing them to the margins of society in exclusion. And yet, it is always and only the Dalits at the forefront of the resistance despite the fact that the caste inequalities have in one way or another persecuted every other caste.   Who are the Dalits?   The National Dalits Commission defines “Dalits” as "those communities who, by virtue of atrocities of caste-based discrimination and untouchability, are most backward in social, economic, educational, political, and religious fields, and deprived of human dignity and social justice." The worldwide total population of Dalits is estimated at 36 million, and according to the 2011 census, the Dalits in Nepal comprise 13.6% of the total population, with seven Hill Dalit castes and 19 Madhesi Dalit castes. Of them, 51% are women. Dalits are one of the most marginalized communities of Nepal. Along with less access to resources, they have food insecurity, sustain themselves on daily wages, and have less access to rights and the justice system.   In the specific context of the Dalits, poverty walks hand-in-hand with the practice of untouchability, affecting access to work and meaningful income possibilities. Caste-based discrimination and untouchability (CBDU) continue to be deeply entrenched in Nepalese society. As a consequence of the system based on casteism in many parts of the country, Dalits are still subjected to the worst forms of discrimination. They are subjected to endless humiliation and injustices in their social, cultural, economic, administrative, and political lives; assaulted, raped, and murdered; and denied access to places of worship, common water sources, education, and dignified jobs. The impact of poverty on civil and political rights, as well as on economic, social and cultural rights such as the rights to health, housing, food, education, and social security.   The longstanding discrimination and deprivation of economic benefits by the state and society has left the Dalit community economically backward. The Dalit community is the second lowest in terms of Human Development Index (HDI) ranking, just above the Muslim community in Nepal. Although Dalits work in traditional occupations, a large portion of Dalits have day-to-day problems, contributing to an inadequate standard of living. The Dalit community always struggles with food scarcity. The daily wages they earn are not adequate to cover their nutrition needs.   According to the 2011 Census, there are 1.8 million Dalit women in Nepal, making up 13% of the total female population of the country. Dalit women’s lives are uniquely characterized by exclusion through customary provisions of caste institutions based on the notion of purity and pollution as well as patriarchy and gender discrimination. As a result of such exclusion and discrimination, they endure extreme forms of poverty, humiliation, and denial of social and economic rights and recognition as human beings. Dalit women, like other women from minority communities or indigenous peoples, Madhesi, and Muslims: they tend to remain invisible.   Although Dalit women constitute half of the Dalit population, they face intersectional three-fold discrimination: class, sex, and caste. Dalit women in Nepal continue to endure discrimination in many areas including education, health, employment, and access to economic resources. They are discriminated against not only by dominant castes, but also within their own communities, where men are dominant. Traditional harmful practices against Dalit women include extreme verbal abuse and sexual epithets, physical assault, and rape. Impunity for perpetrators is rampant due to weak legal mechanisms. Dalit women still face hardships regarding property rights and do not enjoy ownership of property on equal footing with Dalit men. Child marriage, early pregnancy, and uterus prolapse are just some of the conditions that have worsened the health conditions of Dalit women, mostly the Madheshi Dalit women.   Status of Protection of Dalit Rights in Nepal: An Overview   Status in Education   According to the 2011 Census, the average literacy rate in Nepal is 65.97%, with 75.21% of men and 57.53% of women being literate. The literacy rate for Dalits aged 6 years and above is 52.4% compared to the national average of 65.9%, while the literacy rate for Tarai/Madhesi Dalits is just 34.5%. Women from all Dalit groups have lower literacy rates compared to the national average and their male counterparts. The literacy rates of Dalit women are 45.5% overall, with women from the Musahar and Dom community at the bottom, with literacy rates of 17.4% and 17.9%, respectively.   Children from Dalit communities face discrimination at school from their teachers and peers. Due to the prejudiced mindset, teachers provide less care for Dalit children, who are not permitted to drink water, are addressed in a rude manner, and are placed in separate lines, seats, and so on. Ultimately, these students fall behind in their learning achievements, often dropping out. In turn, low educational attainments have a multifaceted impact on the socio-economic and political life of Dalits, and become a barrier to human development. The isolation and segregation of Dalit students are apparent. Teachers in Nepalese schools are largely upper caste males who have not internalized the value of caste and gender equality. Dalits are discouraged from becoming teachers and occupying higher executive positions in schools because the non-Dalit community does not want to pay respect to a Dalit.   Status of Life Expectancy   Dalits fall behind in all major health indicators. For example, the under-five mortality rate among Dalits is 90 deaths per 1,000 live births, compared with the country level of 68. Nepal has immunization coverage of 83%, whereas immunization rates for Dalits are 13 points below the average. In 2011, around 31% of children under five had a low weight-for-age ratio. Disaggregated results across ethnic and caste groups depict that the proportion of underweight children is highest among Madhesi Dalits (36.3%) and Hill Dalits (33.9%), with the exception of Madhesi caste groups (41.2%). This clearly indicates that there are problems with access to nutritious food for Dalit groups among others. Many Dalit women in rural areas suffer from uterus prolapse, and their morbidity rates are high. Child marriage, early pregnancy, and reproductive health issues are other problems faced by Dalit women.   Status of Poverty   Dalits comprise the poorest community in Nepal in terms of all poverty measures—income, consumption and human development. Discrimination is the single most important factor explaining why the Dalit are disproportionately affected by poverty. Around 42% of Dalits live below the poverty line (43.6% of Hill Dalits and 38.2% of Terai Dalits), whereas the national poverty rate is 25.2%. While the immediate causes of this gap are limited employment opportunities due to occupation specialization preventing Dalits from accessing well-paid jobs, as well as lack of access to (quality) education and land that perpetuates poverty from one generation of Dalits to the next, the persistence of social discrimination is the overarching factor explaining this situation.   Land is the main asset for determining an individual’s social status and standard of living in Nepali society. The land holdings of the Dalit community are small, and landlessness among Dalits is extreme, with 36.7% of Hill and 41.4% of Madhesi Dalits being landless. Landlessness makes Dalits economically vulnerable and dependent on landlords. Most Dalits are agricultural and occupational laborers and are generally landless. This makes them vulnerable to violence and discrimination. The Constitution guarantees provision of lands and housing for landless Dalits according to the law. However, the amended law on land distribution is overly complex, imposing many conditions on land acquisition. Similarly, Dalits can obtain housing, but under complex conditions. The root causes of Haliya, Balighare/Khalo, Charuwa, Haruwa, etc. systems are associated with the issues of landlessness and small holdings.   Status of Atrocities against Dalits   In Nepal, Dalits are regarded as a group of people who don’t have any sort of human rights, let alone access to justice or a voice. Nabaraj BK and five of his friends were killed in Rukum West on May 23, 2020. On the very same day, the body of a 13-year-old child, Angira Pasi, was found hanging from a tree in Rupandehi after she was reportedly raped and murdered.   In 2016, Ajit Mijar was murdered for marrying a girl from a so-called upper caste. His body still lies cold at TU Teaching Hospital, waiting for justice. These tragic outbursts of violence resulting from inter-caste marriages suggest that, while the mainstream narrative highlights social cohesion and harmony, resistance by dominant groups is strong when historical hierarchies are questioned. Although untouchability was declared illegal more than a decade ago with the adoption of the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011, caste-based discrimination persists across the country, with lingering prejudices continuing to cause significant violence within Nepali society.   A social science teacher murdered Laxmi Pariyar. Even elected representatives are not safe— Mana Sarki, a ward representative, was beaten to death in her home in 2018. The custodial deaths of Roshan Bishwakarma, Shambhu Sada, and Bijay Ram Chamar are but the reflection of statelessness and oppression of the vulnerable by the dominant so-called upper caste and elites. Over and over again, history continues to repeat itself.   These are just few representative stories of Dalits, who are systemically marginalized and persecuted every day through the contemporary caste hierarchy, the tragic outcome of a centuries-old caste system. And yet, many more stories remain unreported and untold.   The Pandemic, Dalits, and Democracy   The COVID-19 pandemic deepened the layers of discrimination and hardships for Dalits. With lockdown in affect, their means of earning wages were put on hold, resulting in no income and no access to remedial services. To support citizen from low-income groups, the government introduced a relief package system. However, Dalits could not benefit from those packages. The Samata Foundation conducted research across all of the provinces and published a book titled The Impact of COVID-19 on the Dalit Community in 2020. The book focused on the repercussions of the pandemic and lockdown on the livelihood of the Dalit community and the measures taken by the government, along with the hardships faced by elected representatives. During the research, we found that the relief packages distributed by local governments were not adequate to serve a large portion of the Dalit community. Only 1.6% of Dalits stated that the relief packages were readily available, while 52.2% claimed to not have any relief packages available. Similarly, 14.5% of Dalits indicates that the packages that were available were not sufficient to meet their needs.   Various efforts have been made by the government to exploit the democratic situation by disregarding constitutional institutions. The introduction of various undemocratic bills such as the NHRC Act (Amendment) bill, the introduction of the media council bill, the bill on mass communication, the information technology bill, and measures proposed to register and monitor I/NGO activities, was seen as a method to suppress the voices of the public.   According to Dr. Kyungmee Kim, a visiting researcher at the Department of Peace and Conflict Research at Uppsala University, “the lack of inclusiveness and representation of diverse minorities in the country is a threat to the consolidation of democracy.” While Nepal “has made tremendous progress” with regard to democratization over the past decade, “the progress is stagnant if not under threat due to the emergence of political leaders who have autocratic tendencies.”       The social and economic impacts of COVID-19 on poor and low-income groups are higher than on other groups. The Dalit community is disproportionately affected in humanitarian responses, relief distribution, and other support programs. During the COVID-19 pandemic, most Dalits encountered difficulty in accessing income and meeting basic needs due to unequal social protection schemes. Such lack of social protection once more perpetuates the vicious cycle of poverty, exclusion, and marginalization. Amid the lockdowns, the many violations perpetrated against Dalits remained invisible, such as the massacre of 23 Dalit youths, which was a brutal display of the deeply entrenched caste-based discrimination of Nepali society.   Legal Instruments for the Protection of Dalit Rights   The new Nepali Constitution is one of the biggest achievement for Dalits and the Dalit movement. Dalit rights are provisioned as fundamental rights. In particular, Articles 24 and 40 guarantee fundamental rights including education, health, and land. Nepal enacted the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011 that criminalizes all forms of caste-based discrimination. More importantly, the election system has ensured Dalit representation in all three-tiers—federal, provincial, and local governments. After the formation of the three tiers of government, the number of Dalit representatives increased, but their representation is still not proportionate compared to the Dalit population of the country. However, the increased representation is a fostering hope for the Dalits in Nepal.   However, four years after its promulgation, the Dalit community has still not enjoyed those rights on equal footing, nor felt satisfactory action has been taken by the government to ensure the rights enshrined therein. The National Dalit Commission (NDC) has been elevated to constitutional status, but the commission is not in line with the Paris Principles. Moreover, NDC commissioners have not been appointed since the Commission acquired constitutional status due to the apathy of the government.   The Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011 is the main law which has criminalized CBDU. Criminal (Code) Act 2074 (2017) has also further strengthened actions against it. To date, the Dalit Empowerment Act has only been enacted by the provincial government of Province 2. The Constitution of Nepal, mainly the preamble and Articles 18 and 42 (Right to Equality and Right to Social Justice), provide that the socially backward and indigent KhasArya shall have the right to participate in the state bodies on the principle of proportional inclusion. However, Article 84 of the Constitution has guaranteed KhasAryas, the major dominant caste group in Nepal, will have more than full proportional representation, as per their population. Accordingly, the electoral law of Nepal has prioritized KhasArya compulsory in the first rank, while nominating members for the House of Representatives under a proportional electoral system. Therefore, it is inconsistent with the spirit of Constitution's preamble and fundamental rights, which aims to provide for affirmative action to the groups who have endured historical injustices. Article 40(1) of the Constitution ensures that the Dalit community shall have the right to political participation in every state body according to the principle of proportional inclusion.   The local level election law has guaranteed Dalit women a place as members of ward committees at the local level. A large number of women from the Dalit community are represented at the local level, and 6,567 are ward members. However, such representation is merely formal and has not led to the effective participation of Dalit women in local decision-making processes.   Conclusion   After the promulgation of the Constitution, the country became a federal system where the principle of inclusion needs to be considered. In order to implement the principle of inclusivity, a reservations policy was put in place in 2007 by the Public Service Commission for Dalits and marginalized communities, providing that 45% of positions in the federal civil service should go to specific disadvantaged groups as now identified in the Constitution. This policy was effective to some extent. Women’s representation in civil service, for instance, increased from 11% in 2007 to more than 20% a decade later, a remarkable achievement in such a short period of time. However, progress was slower for other groups.   Unfortunately, these quotas are not in compliance with the proportional system, as the Dalit community has only 9% reserved seats in classified (allocation for marginalized groups is 45% of total vacancy and is considered 100%) vacancies. Dalit representation in the civil service was below 1% prior to the introduction of the reservations policy, but it remained around 2% by 2018, which is significantly below the aims set by the policy. In contrast, KhasArya representation is approximately 62%.   Similarly, not every mechanism of the state has proportional representation. For example, the Federal Cabinet of Nepal does not have proportional representation of women and Dalits. The House of Representatives of Nepal only includes 6.91% representation of Dalits. Not a single provincial parliament has proportional representation of Dalits. Among the 753 mayoral positions at local level, only six (2.05%) individuals have been elected as mayors in municipalities and one (0.22%) in a rural municipality. Twelve (4.10%) have been elected as deputy-mayors in municipalities and 15 as vice-chairs (3.26%) in rural municipalities.   The representation of the Dalit community in the judicial mechanisms is also insignificant, as there have never been any Dalit judges in the Supreme Court. There have only been three Dalit judges in all seven high courts, and one Dalit district judge out of 77 district courts. Representation in high-ranking positions in the police force is also negligible.   To address all these challenges, there is a need to amend the present constitution to ensure Dalit rights. Additionally, the recent verdict of the Supreme Court on a writ petition by advocate Prakash Nepali needs to be properly implemented. The structure, budget, and plans, as well as the review, revision, and implementation of the laws should be ensured. Additionally, there needs to be proportional representation of Dalits and minorities in the state bodies, especially the bureaucracy and law enforcement agencies like the Nepal police force. In a nutshell, awareness needs to be enhanced to enable the Dalits and minorities to claim their rights. Nepal is a diverse country with more than 125 ethnic groups and 123 vernacular languages, and its social foundation stands in the caste system propounded and protected by the Hindu varna system. Caste is everybody’s concern and hence should be on everybody’s agenda.■     ■ Pradip Pariyar is Executive Chairperson of Samata Foundation. Mr. Pradip Pariyar is an alumnus of American University and Tribhuvan University. He specializes in youth empowerment, peace building and capacity building of media professionals.     ■ Typeset by Jinkyung Baek , Director of the Research Department∙Senior Researcher     For inquiries: 02 2277 1683 (ext. 209) | [email protected]  

Pradip Pariyar 2022-06-23Views : 21699
Working paper
[ADRN Working Paper] Fighting for Love: A Battle for Equal Marriage Rights in Thailand

Homosexuality and transgenderism have had a long presence in Thai history. With a high level of visibility and societal tolerance, Thai lesbian, gay, bisexual and transgender (LGBT) individuals appear to enjoy relatively greater freedom to express their identities and to lead their way of life than their compatriots in other countries (UNDP 2014). Such an outward appearance of individual freedom and acceptance, however, has concealed the prevalent institutionalized discrimination that poses a challenge for the Thai LGBT community to access rights equal to those that their heterosexual counterparts have enjoyed. Since 2012, the Thai LGBT community has fought for the right to marry, which would allow them the same rights as heterosexual couples. In this article, we look back at LGBT rights advocacy in Thailand and how the fight for legalized same-sex marriage has resulted in a public debate on minority rights.   A Brief History of LGBT Rights and LGBT Advocacy in Thailand   The history of homosexuality and LGBT rights in Thailand is often complex and contradictory. Pre-colonial Thai society was relatively androgynous and quite accepting of non-heteronormative behaviors. Sexual activities, including homosexuality, were considered a private matter and did not concern the state.   However, this attitude towards sexuality began to change with the arrival of Western colonial norms during the 19th century. According to Peter Jackson, an eminent scholar on the history of Thai gender and homosexuality, around this time a more rigid Western understanding of sexual orientation and gender identity began to replace the less formalized Thai moral concepts of gender (Jackson 2003). During the Victorian era, Thai society began to adopt this Westernized concept of virtues and sexualities as a path towards modernity to become a more civilized nation. In the process of the Westernization of Thailand, individual sexuality and sexual behavior became part of a person’s identity, and social norms changed such that to the criminalization of homosexuality and sexuality have also been considered.   In 1917, a royal decree on gender assignment was issued. It was the first time that a person’s identity was officially recognized by one’s gender at birth. When Thailand shifted from an absolute monarchy to a constitutional monarchy in 1932, such a “modern” concept of sexual orientation and gender identity was systematically imposed and employed by the state as a means to establish a new social order (Winichaikul 1994) (Barme 1993). Clear definitions of gender identity and how Thai men and women should express their sexuality began to emerge. Gender norms were institutionalized through newly established state apparatuses such as schools, the legal system, the military, and the police force. These institutionalized gender norms and definitions remain key challenges to Thai LGBT rights advocacy to this day.   There has been no evidence of any laws against cross-dressing, cross-gender behavior, or sexual orientation in Thailand. Early Thai laws tended to criminalize sexual acts rather than sexual identity. Private and non-commercial sodomy between consensual adults was decriminalized in 1953 (UNDP 2014). Since then, there has been little development in terms of legislative policies to protect and to promote the rights of the Thai LGBT community. No evidence emerges of any LGBT advocacy in Thailand in the 1960s and 1970s. One reason might have been that Thai LGBT community enjoyed a comfortable level of social space and freedom, which led to the absence of an LGBT advocacy group or political union. Accordingly, historiographers on Thai social movements often point to the outbreak of the HIV/AIDS epidemic during the 1980s as the birth of Thai LGBT advocacy.   When HIV/AIDS first arrived in Thailand, it was labeled a homosexual or a “sinner’s” disease. HIV/AIDS patients were stigmatized along with the LGBT community. Those who were infected were considered shameful to society, and the disease was rarely discussed in public, which resulted in a greater number of infections. Thai LGBT advocacy was hence born out of a mission to change public perception of the LGBT community, as well as to educate its members about prevention of and treatment for the disease (Ungpakorn B.E. 2559 (2017)). The Rainbow Sky Association of Thailand, which is one the oldest LGBT advocacy groups in the country, began itself as a self-help group that offered information exchanges among HIV/AIDS patients. Since the 1990s, the Rainbow Sky Association has, along with many other LGBT advocacy groups, started to campaign for more equal social protection and legal rights for the LGBT community. This includes the right to civil partnership and the right to receive equal fundamental benefits like other Thai citizens, including the rights to make health care decisions for a partner or the right for same-sex couples to be eligible for employee benefits or health insurance policies, joint financial loans, inheritance, and adoption or other parental rights. In the next section, we will discuss the movement to campaign for same-sex marriage rights and public discourses on the issue.   Public Discourses on Civil Partnership and Equal Marriage Rights   The issue of same-sex marriage rights was introduced into the Thai public discourse around 2012, when a same-sex couple in Chiang Mai, who happened to be leading LGBT rights advocates, applied for a marriage registration, and their application was refused by the registrar because Thai laws did not recognize same-sex marriage. Their petitions to several government agencies led to legal reform efforts to allow equal marriage rights to same-sex couples.   Since 2013, there have been several drafts of same-sex marriage legislation. The life of the first draft proposed by the Ministry of Justice was cut short by the 2014 military coup and political climate that followed. A second draft was again proposed by the Ministry of Justice in 2018. However, it was heavily criticized by the LGBT community and legal experts because its content was primarily about co-ownership of assets and inheritance rather than marriage rights. This is due to the inability of legislators to think beyond traditional definitions of family and gender norms (Wallayangoon 2018). The third draft was revised from the second draft in 2019 by the Rights and Freedom Protection Department together with an LGBT advocacy group, and it came to be known as the Civil Partnership Bill.   The Civil Partnership Bill allows same-sex couples who are at least 20 years of age to register in a civil partnership which includes the right to start a family, the right to co-manage assets, the right to serve as each other’s legal representative, the right to inheritance, and the right to adopt. It defines “civil partners” as “two persons of the same sex who register their relationship under the civil partnership law.” According to some legal experts, such a definition may contradict the existing Civil and Commercial Code which predicates that “A marriage can take place only when the man and woman have completed their seventeenth year of age. But the Court may, in case of having appropriate reason, allow them to marry before attaining such age.”   In contrast with the Civil Partnership Bill which is predominantly about same-sex civil partnerships, the Civil and Commercial Code encompasses broader civil and legal rights. As a result, some politicians and LGBT advocates fear that the Civil Partnership Bill cannot grant rights equal to those that heterosexual couples have received, such as access to civil servant welfare or legal protection over dowry disputes. Moreover, some legal experts also argue that the Civil Partnership Bill does not take into an account the case where transgender couples want to start a family, which in effect has excluded them from the same marriage rights. Accordingly, opponents of the bill have proposed that parliament reform the Civil and Commercial Code to be more gender-neutral, which would allow LGBT couples more equal access to the same rights as heterosexual couples compared to the Civil Partnership Bill (Lawattanatrakul 2021). The campaign for the Civil and Commercial Code reform, which later became known as the Marriage Equality movement, quickly gathered momentum on the internet and led to a campaign within the LGBT community to reject the Civil Partnership Bill as it was deemed less equal or even an obstacle to true marriage equality (An Open Letter to Minister of Justice 2019).   The dispute between the Civil Partnership Bill and the Marriage Equality camps has caused much confusion among the Thai public. It has nearly escalated into a political row between those supporters of the government proposition (the Civil Partnership Bill camp) and those who stand opposed (the Marriage Equality), has threatened to derail the whole legislation process. From my observation, the media, which is unanimously in support of LGBT rights, has played an important role in resolving the situation by providing a public sphere for debates on the issue as well as helpful information.   Existing Mechanisms and Key Challenges for LGBT Rights Protection   “Human dignity, rights, liberties, and equality of the people shall be protected. The Thai people shall enjoy equal protection under the Constitution.” - Chapter 1, Section 4, Constitution of the Kingdom of Thailand B.E. 2560 -   On paper, the constitution of the Kingdom of Thailand provides a basic mechanism for minority rights protection. Both the Thai Constitution and numerous ratified human rights resolutions and conventions provide LGBT citizens with the same rights as other Thai citizens. All citizens are entitled to receive protection from the state and must not be discriminated against for any reason, especially by the state itself. For example, citizens must not be discriminated against based on gender, age, disability status, race, birthplace, or religion. In practice, Thai law, which has rarely been revised to keep up with the changing times, often excludes LGBT citizens from obtaining basic equal rights and protections. One major challenge for legal reform to protect LGBT rights is the conservative and heterosexual majoritarianism among Thai legislators and legal practitioners (UNDP 2014) that prevents the legislative body from comprehending the world beyond the traditional heterosexual family structure and gender roles. Another major challenge seems to stem from the Thai attitude towards laws and law reform. The constitution and laws are often seen as sacred, unchangeable, and unintelligible to the public. For law reform advocacy to gain enough momentum, members of the Thai LGBT community need to become better informed regarding legislative policies and the legal reform process.   The third key challenge for the Thai LGBT community is the absence of a unified core movement or a state-recognized LGBT union. This absence became obvious during the Civil Partnership and Marriage Equality campaigns, where different advocacy groups appeared to have their own discourses and agendas that often clashed with one another and nearly derailed the true aim of the movement.   The last key challenge for Thai LGBT rights advocacy that we want to present here is the failure of policy makers to separate their personal religious and moral worldview from their obligation to protect civil rights. The challenge becomes even greater when such a religious and moral worldview is intertwined with their own minority identity and rights. Legislation passed in 1946 officially recognizes a limited use of sharia for Thailand’s Muslim minority in the four border provinces of Pattani, Yala, Narathiwat, and Songkhla. Traditional Islamic law holds that homosexual activities are forbidden and considered a punishable offence. Accordingly, Muslim legislators chose to vote against marriage equality during the February 2022 parliament session. Despite the fact that the bill passed by an overwhelming majority, Muslim legislators still sought to be exempted from the bill and to maintain their minority right to observe Islamic law.   As of March 2022, both the Civil Partnership Bill and the Civil and Commercial Code reform have been approved by the parliament in principle. They must go through several additional legislative protocols before they become effective. Anything can happen along the way, and the battle for equal rights for the Thai LGBT community continues.    References   Asanasak, Suprawee. 2022. "Legal Mechanism towards Marriage Equality: experiences from abroad." SDG Move. January 12. Accessed March 1, 2022. https://www.sdgmove.com/2022/01/08/sdg-insights-constitutional-court-ruling-legal-mechanisms-to-recognize-marriage-equality/. Barme, S. 1993. Laung Wichit Wathakan and the Creation of Thai Identity. Singapore: Institute of Southeast Asian Studies. Constitution Drafting Commission. B.E. 2560 (2017). Constitution of the Kingdom of Thailand. August 29. Accessed March 1, 2022. https://cdc.parliament.go.th/draftconstitution2/download/article/article_20180829093502.pdf. iLaw. 2020. "#marriage equality: a survey of legal and a reform of civil law on marriage." iLaw. July 7. Accessed March 1, 2022. https://ilaw.or.th/node/5711. Jackson, P. A. 2003. "Performative Genders, Perverse Desires: A Bio-History of Thailand's Same-Sex and Transgender Cultures." Intersections: Gender and Sexuality in Asia and the Pacific, vol. 9, no. August 2003 1–52. Lawattanatrakul, Anna. 2021. "Next Steps on Thailand's Road to Marriage Equality." Pachathai English. December 3. Accessed March 1, 2022. UNDP, USAID. 2014. Being LGBT in Asia: Thailand Country Report. Bangkok: United Nations Development Programme. Ungpakorn, Giles. B.E. 2559 (2017). ขบวนการเคลื่อนไหวทางสังคมไทย (Thai Social Movement). Bangkok: Prachatipatai Press. Wallayangoon, V. 2018. the101.world. November 8. Accessed March 1, 2022. https://www.the101.world/partnership-law/#_ftnref1. Winichaikul, T. 1994. Siam Mapped. Honolulu: University of Hawaii Press. https://prachatai.com/english/node/9596. Working Group for Marriage Equality. 2019. "An Open Letter to Minister of Justice." Pachathai News. August 22. Accessed March 1, 2022. https://prachatai.com/journal/2019/08/83980.     ■ Jirayudh Sinthuphan is an assistant professor at the Institute of Asian Studies, Chulalongkorn University. ■ Thanchanok Ruendhawil is a researcher at the Institute of Asian Studies, Chulalongkorn University.     ■ Typeset by Jinkyung Baek , Director of the Research Department∙Senior Researcher     For inquiries: 02 2277 1683 (ext. 209) | [email protected]  

Jirayudh Sinthuphan 2022-06-23Views : 18813
Working paper
[ADRN Working Paper] Malaysia’s Ongoing Tussle With Democracy

Abstract   Following Malaysia’s fourteenth general election (GE14) in 2018, there was a genuine sense of optimism brimming in the imagination of many of its citizens. A result of the undercurrents formed ever since GE12 back in 2008, the difficult transitions away from colonial legacies like patronage or feudalism as well as traditional political arrangement of consociationalism were beginning to unravel. A more democratic environment began to organically take shape in many layers of Malaysian society in tandem with the gradual electoral rejection of the long-ruling National Front (BN) coalition, culminating in the first ever democratic change of federal government in GE14 after more than six decades of single-party dominance.   However, a sudden collapse of the Pact of Hope (PH) coalition due to party defectors and ideological differences led to a unique political and constitutional crisis that gave birth to a new coalition named the National Alliance (PN). After poor handling of the COVID-19 situation and blatant attempts at undermining democratic pillars, Malaysians again went through a period of uncertainty as the PN coalition endured an internal reshuffle involving the prime minister’s post. All of these recent incidents have given rise to many questions as to the health of democracy in Malaysia. Some have felt utterly confused and disillusioned with the entire democratic process, while others are actually galvanized to offer alternatives via more participatory or direct forms of democracy.   Introduction   Many observers of Malaysia anticipated a more progressive shape of democracy for the country as it bucked the global and regional trend of sliding backwards into more authoritarian regimes or far-right populist rule. Unfortunately, the deposed BN coalition effectively manufactured a narrative to entice its long-time political rival, the Pan-Malaysian Islamic party (PAS), into working together in forming the National Concord (MN) to destabilize the PH government and potentially return the BN coalition to power. This strategy led to the eventual resignation of the seventh prime minister and self-sabotage of the promising “New Malaysia” agenda. Leadership ambiguity ensued for several weeks until the hastily assembled PN coalition stepped in as a substitute amidst the start of the pandemic.   The far less transparent and rather desperate installation of the PN government without the people’s mandate led to clear and urgent demands from the Malaysian public, especially its civil society, to rethink democracy and reform its decaying institutions as posited by Francis Fukuyama in his works. As the eighth prime minister was forced to make way for the current prime minister to avoid being removed in a vote of no confidence in Parliament, numerous concessions were dealt out as part of a Memorandum of Understanding (MoU) between the fragile government and the largest opposition bloc. This further invited public criticism as the deal was discussed and done among the leaders of the respective parties and its supporting members of Parliament (MPs).   Such an “elite” form of deliberation adds salt to the wound for the people who felt cheated by some of their elected representatives that jumped ship and collaborated with the electoral losers. This is further exacerbated by the double standard SOP practiced by law-enforcers during the COVID-19 lockdowns in Malaysia that gave politicians leeway while the public received the full brunt of penalty fines. There is a near-total deficit of trust towards the entire political establishment on both sides of the aisle, triggering conversations on renewed calls for a more inclusive and deliberative democracy that can actually resolve the real issues that average Malaysians are facing.   Definition and Local Context   Essentially, deliberative democracy or direct democracy is a process that aims to gather the relevant stakeholders or those citizens whose daily interests and future prospects are affected by a particular issue to willingly participate in expressing their opinions and exchanging ideas. Once these valuable inputs are shared and critically evaluated, participants begin to discuss and determine for themselves what sort of policies derived from the dialogue are best to put forth in the interest of all members of the public, irrespective of background or social status. Once a consensus is reached, this inclusive decision-making approach not only gives a platform for citizens to voice their concerns to influence policy making, but more importantly it gives a certain measure of responsibility for the stakeholders themselves to also ensure that their recommendations are indeed implemented and that they have a sense of mutual ownership of public policy.   Historically, Malaysia practices an indirect form of democracy, which is the representative mode it inherited from its British colonial experience. This foreign concept was carefully designed and infused with existing local context during the early period formation of the federation to establish the current modern system, which is a constitutional monarchy. Malaysia’s democracy is somewhat distinct compared to other nations in the world on the basis of its complex power structures and diverse social fabric. Even at the highest level, the elected King (Yang di-Pertuan Agong) is subject to consultation with his fellow brethren through the Royal Council (Majlis Raja-Raja) for any official matters. As there are nine monarchs in Peninsular Malaysia, they each assume the Kingship of the Federation of Malaysia on a five-year rotational basis after internal deliberations.   Beneath the royal institution, which is limited or bound by the federal Constitution, are the executive, legislative, and judiciary branches of government that were adopted heavily from the Westminster system. As the executive and legislative branches are fundamentally elected from amongst the public, it is here that the functions of democracy apply. Candidates stand for elections both at federal and state levels on behalf of their constituencies and the prevailing winners then enter into the lower chamber of a bicameral parliament structure or state assemblies to convey the issues, debate motions, and suggest policies to be enacted. The party or coalition that gains the majority of MPs in the lower house will go on to form the cabinet for the executive branch.   Delving deeper into Malaysia’s representative democracy, the interactions and affiliations between the MPs and their grassroots base through various avenues and local activities remains a vital component of public engagement. As representatives, maintaining such physical outreach or media communication is necessary to enable greater participation among the constituency. It also functions as a means of information dissemination for government initiatives whereby national agendas are explained to the public and feedback is channeled through the elected representatives, who then take this feedback into consideration when forming policies at the executive level or passing laws at the legislative level. Nevertheless, there exist crucial gaps within such dealings, with the example of some MPs who respond by providing services to the voters to curry favor for the next electoral cycle.   External Developments   Although Malaysia shares a geographical landscape and common cultural features with ASEAN, the country’s path to democracy differs greatly to its counterparts as the experience in gaining independence, its population makeup, and choices taken by the founding fathers when appraising democracy have been dissimilar. Due to anxieties surrounding racial and religious sensitivity, Malaysia chose to adopt a more exclusive form of deliberative democracy that entrusts its privileged segments to assume leadership decisions and facilitate items relating to personal liberties. Deliberative or direct democracy was not an attractive option during the inception of Malaysia as a nation-state back in the 1940’s and 1950’s, yet the topic seems fairly relevant today, especially for the younger generation. Direct democracy is being seriously explored given the challenges and changes taking place in many contemporary democracies.   Malaysia’s strategic location in the heart of Southeast Asia as well as its long-held stable democracy (some define it as semi or quasi-democracy) provides it with generous access to its surrounding neighbors to learn from their different models of governance. That being said, popular trends or new changes, particularly those pertaining to democracy, that occur in the ASEAN region will in some way or form permeate to impact Malaysia’s own trajectories. The propagation of identity politics and appointment of “strongman” leaders amidst crises have recently stalled democracy’s inroad in this part of the world. The examples of very open democracies such as Indonesia and Philippines practicing direct or deliberative democracy at village or community level are offset by the extreme fundamentalism and populist authoritarian tendencies in these same places.   Additionally, Malaysia’s well-developed infrastructure compared to the rest of the region has also given Malaysians wide access to international news coverage and knowledge from universities abroad regarding the political experiments performed in more advanced liberal democracies. Malaysians had easy access to real-time updates at their fingertips on events like the United Kingdom’s exit from the European Union (Brexit), the presidency of Donald Trump in the United States, and the Arab uprisings across the Middle East and North Africa (MENA) region, allowing them to observe the many volatile drawbacks and difficulties of sustaining democracy. These episodes, coupled with the neighboring examples of China’s rapid prosperity despite its excessive display of human rights violations and India’s escalating social polarization despite being the world’s largest democracy, put discussions about democracy in Malaysia at a slight disadvantage.   Recent Issues   The main obstacle in Malaysia for something as familiar as representative democracy to evolve into direct democracy would be convincing the persons located in semi-urban and rural constituencies of its merits. The inequalities that they face, be it in terms of robust discourses or economic opportunities, can very much hinder their appreciation of untested measures. It would seem far more practical for these communities to delegate the responsibilities of managing policies to an elected representative while they attend to their daily affairs. An entrenched system of race-based policies, religious bureaucracy, and the decades-long nexus between political status and business interests further complicates any attempts at altering the present circumstances.   As exemplified by the political turmoil post-GE14, there have always been resisting elements both within administration hierarchies and the general populace that push back against progressive ideals by casually labeling them foreign undesirables that threaten the majority’s way of life. It is often implied that implementing more democracy would dilute certain facets of the social contract, and thus the perception is to merely tolerate the beneficial outcomes of democracy like peace and freedom while overlooking its core principles like good governance or justice. Moreover, the proponents of democracy and human rights in Malaysia are usually found in urban-centric areas, have been involved with activism, are exposed to multicultural surroundings, and belong to a younger age bracket. Those that can identify themselves in any of these four quadrants tend to be willing to support direct democracy tools like referendums or petitions.   As a consequence of Malaysia’s rapid modernization in the 1980’s and 1990’s, we witnessed a clear national direction that invested early on in the tech ecosystem which broadened the digital space as unintended compensation for a partially free public sphere. The internet cafes, blogs, online forums, and social media sites like Yahoo or MySpace back then revolutionized Malaysia’s democratic scene by providing alternative avenues for deliberation and dissent to take place. Over time, this inculcated the steady advance of prominent civil society organizations and informative media outlets to enrich conversations about democracy. This now seems to be bearing fruit as their integrity as an autonomous “third force” remains intact against the backdrop of the political establishment’s scramble to grab power. A burgeoning volunteer culture is seen with the #KitaJagaKita movement and recent flood disaster relief efforts.   Another example of formidable NGO networking in Malaysia is the increasing presence at stakeholder engagement events hosted by the government. Such consultations, either through high-level face-to-face meetings or town hall dialogues, have in recent years become more widespread as the government acknowledges the important role played by civil society organizations in both nation building and policy making. Furthermore, in the era of the constant surveillance of the 24/7 news cycle, no sitting government can afford to discount strategic partners or casually dismiss their demands as they did in the past, since doing so would seriously hurt their reputation and subsequently affect their electability, particularly in city-centric and ethnically mixed seats.   All of this indicates that there is already latent potential for community-driven initiatives in Malaysia to step up and fill in the gaps or reprimand the abuses committed by formal institutions, rigid administrations, and, most troublingly, political parties, which had principally dictated public affairs from 1957 up until 2018. With the continuing fragmentation of the political class, there is ample room and purposeful interest for a reconsideration of democratic models in Malaysia. A citizen’s assembly mirroring the Scandinavian and Irish case studies has been touted by the Better Malaysia Initiative and has garnered some traction. However, criticisms include the implementation mechanism as well as the fact that it is a proposal by elite individuals to start an elite council consisting of eminent Malaysians emulating the National Operations Council in the early 1970’s after the deadly racial riots of May 13th.   There are more positive indicators in favor of direct democracy. The mounting influence of online petitions through websites such as change.org to instigate pressure towards specific issues, the policy suggestion from BERSIH 2.0 on recall elections to hold party-hopping MPs more accountable, and sub national efforts by IDEAS to encourage citizens to monitor state government budgets and procurement are all examples demonstrating that efforts towards direct democracy are already in the pipeline.   Emerging Trends and Conclusion   Looking at the upward trend among Malaysians to seek direct democracy as an outlet for their disappointments with representative democracy, we find that much of the frustration centers around the shattered expectations for institutional reform after the infamous Sheraton Move incident in February 2020. The collapse of the PH government created intense debates as to the motives of elected representatives and the actual meaning or value of their votes. The situation has also fashioned a variety of choices as new political parties emerge, such as the youth-based party MUDA (Malaysian United Democratic Alliance), the anti-corruption party PEJUANG (Homeland Fighters Party) and the inclusive Parti Bangsa Malaysia (Malaysian Race Party) to name a few. This suggests that decentralization of traditional power distribution in Malaysia is well underway.   Elaborating further on decentralization, the MOU signed between the PN government and the PH opposition bloc has also revisited the issue of federal-state relations between Peninsular Malaysia and the Bornean territories connected to the Malaysian Agreement of 1963 (MA63). As such democratic discourse gains momentum, civil society organizations and progressive politicians have also raised improvements to local council elections in the hope this will mark a catalyst for moving the needle of Malaysia's conventional political culture. Leading the charge is the talented UNDI18 movement that successfully pursued the expansion of the legal voting age as well as automatic voter registration in Malaysia. Their advocacy and organization of the #Lawan street protest built optimistic expectations for MUDA as a youth generation bloc aiming to disrupt the status quo.   With a weakened majority government as well as an opposition coalition in such disarray, the predominant logic in reading Malaysian politics would be the formation of post-electoral pacts or shared governments for the foreseeable future. A far less powerful state and a steadily influential civil society segment do indeed encourage more involvement from the public that can endorse further support for direct forms of democracy. The key lessons are to further strengthen the people’s room for dissent and protect their civil liberties in tandem with basic human rights. Simultaneously, enhancing democratic literacy that can create more awareness of disinformation is pertinent to restoring trust to public institutions. By executing such reforms, there is potential for progress. However, further nurturing is required before a mature democracy can benefit all.   Nevertheless, there has to be caution against the potential to return to the feudalistic mindsets and patronage practices that heavily rely upon cronyism and grassroots servicing. An attempt at a political comeback by the former sixth prime minister using a populist personality, despite the tainted image of the 1MDB corruption scandal, is truly frightening and threatens Malaysian democracy. ■   References   Bohman, J. (1998). ‘The Coming Age of Deliberative Democracy’, Journal of Political Philosophy 6 (4): 400–425. Disch, L. (2011). ‘Toward a Mobilization Conception of Democratic Representation’, American Political Science Review 105 (1): 100–114. Dryzek, J.S. (2000). Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford: Oxford University Press). Dryzek, J.S. (2009). ‘Democratization as Deliberative Capacity Building’, Comparative Political Studies 42 (11): 1379–1402. Kuyper, J. W. (2016). ‘Systemic representation: democracy, deliberation, and nonelectoral representatives’, American Political Science Review 110 (2): 308–324. Mansbridge, J., Bohman, J., Chambers, S., Christiano, T., Fung, A., Parkinson, J., and Warren, M.E. (2012). "A Systemic Approach to Deliberative Democracy," in J. Parkinson and J. Mansbridge (eds.). Deliberative Systems: Deliberative Democracy at the Large Scale (Cambridge: Cambridge University Press), pp. 1–26. Moore, A. (2017). Critical Elitism: Deliberation, Democracy, and the Problem of Expertise (Cambridge: Cambridge University Press). Rehfeld, A. (2006). ‘Towards a General Theory of Political Representation’, Journal of Politics 68 (1): 1–21. Urbinati, N. (2006). Representative Democracy: Principles and Genealogy (Chicago: University of Chicago Press).     ■ Halmie Azrie Abdul Halim is … (Bio Example) ***the director of Participatory Research in Asia (PRIA), a pioneer CSO, who has dedicated more than three decades to work on participation, democratic governance, and civil society development. He has twenty-five years of professional experience working with universities, research institutions, and CSOs. He serves on the Steering Committee of the Asia Democracy Research Network (ADRN) and the Asia Democracy Network (ADN). He holds a Ph.D. degree in anthropology for his work with the Parhaiya tribes of Chotanagpur in India.     ■ Typeset by Juhyun Jun , Research Associate     For inquiries: 82 2 2277 1683 (ext. 204) | [email protected]  

Halmie Azrie Abdul Halim 2022-06-07Views : 13817
Working paper
[ADRN Working Paper] Can Online Public Participation Strengthen Direct, Deliberative, and Participatory Democracy in India?

Introduction [1]   Most modern constitutional democracies govern themselves through the representative form of democratic governance. This representation is determined by fair, regular, and competitive elections. However, over the decades, the limitations of representative democratic governance have been well-documented (Jayal 2009; Hirst 1988). To address these limitations, several innovations have been fostered by governments, civil society, and citizen associations and are variously known as direct, deliberative, and participatory democracy. Despite having the common goal of complementing representative democracy, the theoretical underpinnings, trajectories, and practices for direct, deliberative, and participatory democracy that has been elaborated elsewhere have been quite distinctive (Leib 2006; Carson and Elstub 2019).   Direct democracy is understood as describing those rules, institutions, and processes that enable the public to vote directly on a proposed constitutional amendment, law, treaty, or policy decision. The most important forms of direct democracy are referendums and initiatives (Bulmer 2017). In contrast, deliberative democracy considers the participation of the public in deliberations and decision-making to be the central element in democratic processes. In deliberative democracy, the public deliberation of free and equal citizens forms the basis of legitimate decision-making (Joseph and Joseph 2018). The emphasis in deliberative democracy is on deliberation as opposed to voting, which is the focus in direct democracy. In promoting participatory democracy, the participatory democrats prize public engagement in both formal activities such as consultations, committee hearings, and participatory budgeting sessions, as well as less obviously political actions such as spontaneous protests, volunteering, or involvement in decision-making (Dacombe and Parvin 2021). Many scholars have studied, critiqued, and questioned the efficacy of direct democracy (Lupia and Matsusaka 2004), deliberative democracy (Owen and Smith 2015), and participatory democracy (Parvin 2021) for their theoretical constructs as well as their practices.   A key expectation from a democratic governance regime is the formulation of policies that promote equity and ensure justice. Public participation in policymaking is the cornerstone of a mature and consolidated democracy. With growing public aspirations, public policymaking that affects millions of citizens cannot rely only on the representative and procedural democratic mechanisms. It must embrace direct, deliberative, and participatory democratic mechanisms and practices.   This paper lays out the practice of public participation to promote direct democracy and dives deeper into the question of potential and actual barriers to online public participation, especially for policymaking. It maps the existing interventions in online public participation and suggests good practices. Based on the gaps found in the existing discourse, recommendations are made for the most meaningful and inclusive ways to engage in online public consultation when making public laws and policies.   India, despite being the largest democracy in the world, has often relied more on procedural democracy and created very little space for direct public consultation in its national, sub-national, and local policymaking at a substantive scale. The emergence of local governance institutions in the early 1990s created some significant spaces for public participation in decision-making related to local development. The 73rd and 74th Constitutional Amendment Acts, enacted in 1992, made provisions for Gram Sabhas (an assembly of all the electorates within the territory of a Gram Panchayat[2] ) and Ward Committees (elected or nominated members in a municipal ward to be constituted in municipalities with a population of more than 300,000). Both the Acts elaborated the functions of Gram Sabhas and Ward Committees respectively, which included participation in planning and monitoring of all local development work. Despite being the only institutionalized space for direct participation, the experience has been mixed as far as Gram Sabhas are concerned. However, the experience of Ward Committees has been disappointing as most state governments and municipalities have not formed or activated these committees.   In the last decade, many public programs have emphasized the importance of public participation in the effective implementation and monitoring of these programs. A few ministries and departments of both the union and state governments have occasionally invited comments, suggestions, and objections to proposed policies or plans. However, in the absence of a robust mechanism and coherent laws requiring mandatory public consultations, such initiatives have often been short-lived and dissipated before they could accomplish their goals (Arora and Bandyopadhyay 2021).   In the absence of an institutionalized space for public participation in public policy planning and monitoring, several civil society organizations and citizen associations have used the social accountability approach and tools to promote public participation by engaging in participatory data gathering and analysis, sharing of findings with public authorities as well as the media, and negotiating with public institutions responsible for the implementation of a program or policy. They have used many tools including Citizen Report Cards, Community Score Cards, and Social Audits. Such initiatives have helped citizens amplify their voices, but have fallen short of institutionalization and scaling up public participation (Bandyopadhyay, 2015). In cases where Social Audits have been institutionalized, for example in the Mahatma Gandhi National Rural Employment Guarantee Scheme (NREGS), implementation has fallen far short of expectations due to the lackadaisical attitude of the public institutions and insufficient capacity of local governance institutions.   In the past few years, with the rise of technology innovations, several governmental initiatives have tried to leverage technology for soliciting public consultations in public policy planning and monitoring. On several occasions, ministries and departments have invited members of the public to share their concerns, comments, and suggestions online regarding a specific policy or program initiative. However, the absent legal framework for organizing online consultations with members of the public and “affected persons” in making public laws and policies belies the government’s efforts to put citizens at the center of policymaking. The practice of public consultation in making public laws and policies has been sporadic, whimsical, and inadequate. In several cases where suggestions, comments and feedback have been sought from citizens on draft bills or draft rules, there was no obligation on the part of the government to “close the feedback loop” by disclosing specifically what feedback from the public was considered, was or was not included, and why (Arora and Bandyopadhyay 2022). On the other hand, a few civil society groups have leveraged online technology to channel public concerns and suggestions in public policymaking processes.   This paper delves into the following research questions: What lessons can be drawn from the current online mechanisms and practices for consulting members of the public in making laws and policies by the governments? How have civil society organizations attempted to influence policymaking using online public participation? What principles can be suggested to make online public consultations reliable, inclusive, and ongoing?   To examine examples of governmental as well as civil society initiatives that promote online public participation, this paper uses a simple yet meaningful framework: Inform, Listen and Consult, Consolidate and Prioritize, and Feedback.   1) Inform Communicate the details of the program or policy under consideration directly to the public. Make the public aware and educate them about the initiative. Prepare them to engage by conveying what the institution expects from them in developing a program or policy and why public participation is critical.   2) Listen and Consult Engage with the public by asking questions and listening to their responses. Ask specific questions to get quality information on issues and ideas relevant to the program or policy under consideration.   3) Consolidate and Prioritize Collect, analyze, and evaluate public responses on an ongoing basis. Different methods require the use of different tools, but the analysis will uncover important trends in various aspects of the program or policy.   4) Feedback Communicate findings back to the public to keep them in the loop. This will ensure that the public is aware of how their participation has influenced the program or policy.   The Promises of Online Technology for Promoting Direct Democracy through Public Participation   In the last decade, with the emergence of digital and information technology in all spheres of human activities, copious efforts are being undertaken to make development, democracy, and governance more inclusive by using digital and information technology. The champions of the tech-driven development community often advocate a range of virtues associated with digital and information technology in promoting public participation, including:   1) Ease of participation Online technology has enabled communication and participation between multiple actors, both state and non-state, in multiple arenas.   2) Scaled-up outreach despite limited resources Constraints on the available resources to reach out to the people collectively en masse can be overcome using online platforms. Multiple social networking sites and online meeting platforms that the public and other non-state actors use for communication with each other across geographies, as well as in some cases with the state actors, allow for higher and scaled-up outreach.   3) Access to decision-makers Multiple experiments and initiatives using online technology have provided members of the public with the ability to access decision-makers remotely, without having to physically encounter the bureaucratic hierarchy.   4) Integration of information from multiple ministries Online portals have enabled the integration of information from multiple departments and ministries or the silos of domains and jurisdictions together, such that one does not have to spend time physically going to look for information from the right source or to meet the right government official from one department to another.   5) Artificial Intelligence (AI)-based labeling and sorting for ease of analysis and decision-making AI technology has the potential to sort and analyze a vast and diverse quantity of information with predefined labeling which otherwise would have been cumbersome and daunting to handle manually.   Barriers to Online Public Participation   Online public participation, especially in the Indian context, is not without its share of limitations. The following are the most prominent barriers to scaling up online public participation.   1) Digital divide The fundamental challenge in India remains access to the internet and technology for all. While access and inclusivity have improved enormously in recent years, continuous high-speed internet connectivity is still limited to pockets of the population. Many groups continue to face exclusion from high-speed internet access and technology, thereby impacting their access to technology-based services including the existing gender inequality (Sheriff 2020). Moreover, there are chronic inequalities based on other intersecting factors such as income, language, literacy, disability, caste, and religion. The infrastructural challenges at hand include the unstable supply of electricity or power cuts in many parts of the country, poor telecom service provider signals or networks, higher pricing of high-quality devices with higher storage capacities (pricing depends upon the device manufacturing companies), and higher pricing of high-speed internet broadband plans or mobile data plans (depends on the internet service provider), among others.   2) Polarization of information due to predesigned algorithms Information and news that internet users receive online to read or hear are based on predesigned algorithms such that users receive information that is increasingly tailored to and influenced by their searches and browsing histories. This creates a cycle of polarized opinions as the multiplicity of voices and opinions are often less tolerated or accounted for. This has contributed to a deep-seated polarization of political views and opinions among India’s residents. Thus, there is a growing phenomenon of echo chambers or information cocoons wherein similar views and opinions are recycled and thereby reinforced. These algorithms block out the diversity of perspectives.   3) The majority takes all In a majoritarian democratic state and culture, there is a risk of important minority voices being overlooked or ignored. These could be the voices of marginalized people or unpopular opinions that do not gain enough traction or prioritization. Interaction to influence different interest groups or perspectives, and facilitation to coalesce around a shared agenda is not easy with online consultations alone. Trust in online consultations without an offline relationship is thereby obstructed.   4) Untrained staff Efforts are underway to enhance individual and organizational capacities for using technology in the functioning of governance institutions. However, these capacities vary across levels of government machinery and are the weakest at the district, city, and block levels, at present. Most staff members are not trained to facilitate public participation using technology.   5) Sense of a safer space Public policymaking is intrinsically political. Discussions on social media are often loaded with threats, trolling, and abuse, which may cause a sense of discomfort in engaging online. This poses a huge barrier to building a positive culture of participation and civic discourse. Safe space requires building mutual trust and respect, especially for marginalized people and groups to share and communicate their vulnerabilities and lived experiences. Online modalities may not enable deep listening to alternative points of view, which is an important aspect of creating a safe space.   6) Getting relevant responses can be difficult Promoters of public participation may face the challenge of receiving mixed responses based on personal experiences, opinions, perceptions, evidence, etc. This may increase the difficulty of the task of finding relevant responses. A search for a pointed and objective response might also be prone to the existing biases of the institution that is seeking public participation. This is particularly relevant for online responses, where opportunities to probe deeper and seek further clarification are limited.   7) Extractive nature of information gathering Information gathering exercises, even in non-digital modalities, have largely been extractive in nature where communities and respondents do not get to know how their data will be used. A similar trend is visible with digital modalities. A growing awareness of data privacy is also linked to this concern.   Use of Technology in Public Participation – A Typology of Purposes and Mechanisms   This section lays out the landscape of the civil society initiatives and government programs that use technology for public engagement in India. It elaborates on the emerging typology of purposes and mechanisms as evidenced by various Indian examples. These have been organized around the following five major purposes of public engagement.   1) Dissemination of information and online campaigns Several civil society initiatives have tried to provide relevant information online in a language and manner that are accessible to ordinary citizens. Most government initiatives to provide information online have been focused on raising awareness and driving behavior changes.   2) Facilitating access to government schemes and programs A few civil society organizations and social entrepreneurial initiatives have developed online platforms which not only provide information about government schemes and programs, but also allow members of the public to check their eligibility and enroll as beneficiaries.   3) Grievance redressal Still other online platforms developed by civil society groups are for members of the public to register their grievances as well as share their experiences in accessing public services. The information collected through these platforms is collated and analyzed for advocacy and engagement with relevant public departments.   4) Highlighting policy issues through online petitioning There are a few online platforms developed by other civil society groups which allow members of the public to initiate petitions either to change some policy provisions or to draw the attention of the policymakers to a defined policy gap. These platforms encourage citizens at large to support specific petitions.   5) Crowdsourcing ideas and suggestions for policymaking A few government ministries and departments publish draft public policies or laws on their websites to solicit comments, suggestions, and objections from the public. This has largely been an ineffective way to promote public engagement, as in most cases the jargonistic legal language, lack of facilitation, and rigidity of the platforms do not allow for meaningful deliberations. In recent years, a few civil society organizations have developed online platforms that organize online deliberations and consultations with the public and especially with the “affected persons” by a specific law or policy. They collate responses from the public and share the consolidated findings with the concerned ministry or department.   A Framework for Effective Online Public Consultation   The foregoing context and analysis provide a sound basis for suggesting a framework for effective online consultation with the public in matters of public policymaking. The framework consists of four key phases as follows.   1) Inform the public Information is power. The purpose of this step is to raise awareness about the governance systems, laws, policies, and entitlements that are important to the public. Unlike traditional ways where information sharing and mobilization of the public happened face-to-face, digital platforms are being explored for this today. Technology is being used to simplify knowledge dissemination, raise awareness, and create an informed public. Multiple types of platforms are being used for information dissemination. The focus is on simplifying and making information accessible, simpler, and contextual for a wider audience, in some cases in multiple languages or local dialects as well.   2) Listen to and consult with the public This phase aims to listen to and consult with the public to facilitate the use of diverse perspectives in decision-making during policy planning. There are very limited initiatives with this goal this in the Indian context today. Consultation with the public has important considerations such as who is consulted, why are they consulted, what are they consulted for (evidence, lived experiences, opinions, ideas, perceptions etc.) and how they are consulted (digitally, online, face-to-face). In this process, it is important to consider primary stakeholders, but who else should be consulted on laws that are generic and not constituency-based? It is important to identify a pathway for intentionally reaching out to diverse caste groups, genders, religions, locations, levels of literacy, languages, and disability-based minority groups such that they are not disfavored, and to ensure that they have access to the technology necessary to enable their participation in the first place. In an online space, norms and ground rules need to be set for the consultation process to encourage engaging respectful interactions, acknowledge feedback received (administrators can do this), and encourage respondents to keep the conversation relevant.   3) Consolidate and prioritize responses It is not very difficult to collect data and hold consultations, but it is not so easy to analyze and consolidate a vast amount of data. The steps in the process are making sense, identifying trends and patterns in the data using labels, consolidating it, and prioritizing the key ideas that emerge from the consultation. One must consider the heterogeneity of the group to obtain disaggregated data. Gender, age, caste, religion, ethnicity, and socio-economic disaggregation of data are important to hear and understand what different constituencies are saying. Technology must be designed to provide solutions to understand the data in a disaggregated manner. In the labeling system, technology must be able to consider minority or less popular opinions and views. There is always a chance that breakthrough suggestions or recommendations may emerge from minority views. The data consolidation process and results need to be transparent for the members of the public who provide the feedback. The public must be made aware of the process of consolidation and prioritization to enhance trust in the process. At the same time, sensitive data cannot be given out to any institution, regardless of whether it is the government or private companies or civil society groups. The growing awareness and concerns about data privacy must be respected, and members of the public should not be discouraged from participating by requests for unnecessary identification.   4) Closing the feedback loop This is an important phase where the government or the public participation promoter shows that it cares and is invested in the process. An exchange between the public and government is important for a meaningful dialogue. Feedback to the public is important to provide the rationale for the decisions taken, explain how the inputs were used, and close the feedback loop. This communication exchange between the government and the public is important to incrementally increase mutual trust and understanding. Feedback needs to showcase a long-term vision with the inputs received. Participation does not stop here. It is the cycle of participation that will improve the quality of input from the public and make the government more responsive.   Conclusion   This article highlights that in the absence of a robust legal framework for promoting public participation in public policymaking, civil society has created direct, deliberative, and participatory spaces to complement India’s representative and procedural democracy mechanisms. The rise of online technology has opened new vistas for direct public participation in public policymaking processes. However, the impact, outreach, and institutionalization of such efforts require more investigation and interrogation. Nevertheless, some lessons could be used to scale up the use of online platforms to strengthen direct and deliberative participation.   Fully digital channels for information dissemination will not be effective in rural and other marginalized communities that do not have adequate access to the internet and other such technology. Online channels for information dissemination could be more effective if used in collaboration with organizations which have a physical presence in these communities. The people who will be directly impacted by a program or policy must be consulted. It is important to gather and provide relevant budgetary information to the public to ensure transparency in fiscal policies. If the information is relevant, it can further influence budget planning in the future. Participatory budgeting has the potential to bring transparency, accountability, and effectiveness to local development.   Low digital penetration is one of the biggest challenges that members of the public face in accessing services through online systems. Multiple efforts are needed to increase the public’s digital access, awareness, and literacy in linking them to government schemes and programs. Public application submissions still require an offline interface. It is mostly grievances from the public that can be resolved through online mediums. An effective grievance redressal mechanism is a good source of public feedback about government programs and policies. It is also important for local civil servants to be digitally trained to respond to online queries and grievances from the public.   Petition platforms are important models for civic education and citizen-led campaigning. Petition pathways directed towards the key decision-makers can be strengthened to increase direct public participation. Digital methods for crowdsourcing ideas, such as text messages, social media channels, and government discussion forums, can be leveraged to scale up public participation. Well-equipped systems and multi-sectoral partnerships between civil society groups, national, state, and local governments, and the private sector may be needed to scale up crowdsourcing ideas and suggestions for program planning. However, it must be considered who is being consulted and why. Such consultations also need to maintain the spirit of collective participation. While offline discussions can be shifted into the online sphere for public knowledge, adopting an effective hybrid model of consultations to encourage empathy, care, and trust is also critical to the continued promotion of direct, deliberative, and participatory democracy. ■   References Arora, Shruti and Bandyopadhyay, Kaustuv Kanti. 2022. Citizens should have a say in the laws that affect their lives. IDR. 24 March 2022. Available at: https://ecdpm.org/wp-content/uploads/CAPACITY_BOOKLET_ENG_WEB.pdf Bulmer, Elliot. 2017. Direct Democracy - International IDEA Constitution-Building Primer 3. International Institute for Democracy and Electoral Assistance (International IDEA), Stockholm, Sweden. Carson, Lyn and Elstub, Stephen. 2019. Comparing participatory and deliberative democracy. Research and Development Note, The New Democracy Foundation. Available at: https://doi.org/10.1080/00344893.2021.1933151 Hirst, Paul. 1988. Representative Democracy and Its Limits. The Political Quarterly. Vol. 59, No.2, April-June 1988. https://core.ac.uk/download/pdf/144222057.pdf Lupia, Arthur and Matsusaka, John G. 2004. Direct Democracy: New Approaches to Old Questions. Annual Review Political Science. 2004. 7:463–82. DOI: 10.1146/annurev.polisci.7.012003.104730. Owen, D. and Smith, G. 2015. Survey Article: Deliberation, Democracy, and the Systemic Turn. The Journal of Political Philosophy 23 (2): 213–234. Parvin, Phil. 2021. The Participatory Paradox: An Egalitarian Critique of Participatory Democracy, Representation, 57:2, 263-285, DOI: https://indianexpress.com/article/india/nfhs-data-shows-urban-rural-gender-gaps-in-internet-use-7103710/     [1] Acknowledgements: This article draws on the findings from a research study titled “Institutionalizing Online Citizen Consultation for Public Policymaking in India.” The study was undertaken by Participatory Research in Asia (PRIA) with support from the International Center for Not-for-Profit Law (ICNL). The author was the Principal Investigator of the research study. [2] The lowest level of governance structure within a three-tier governance structure of the Panchayati Raj Institutions (PRIs) in rural areas.     ■ Kaustuv Kanti Bandyopadhyay is the director of Participatory Research in Asia (PRIA), a pioneer CSO, who has dedicated more than three decades to work on participation, democratic governance, and civil society development. He has twenty-five years of professional experience working with universities, research institutions, and CSOs. He serves on the Steering Committee of the Asia Democracy Research Network (ADRN) and the Asia Democracy Network (ADN). He holds a Ph.D. degree in anthropology for his work with the Parhaiya tribes of Chotanagpur in India.     ■ Typeset by Juhyun Jun , Research Associate     For inquiries: 82 2 2277 1683 (ext. 204) | [email protected]   -

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