Thesis submitted in partial fulfillment of the requirements for the Degree of Master of Arts in Inter-Asia NGO Studies

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Contant
Name of Thesis Pag. No.

Overview of the Political Economy of Cambodia in 1960s- 3-40 1990s A study of changes in the Civil Society in Thailand and South 41-138 Korea-focused on the post dictatorship period

Delit In Inia

139-236

North Korea’s Human Rights situation through Universal 237-314 Human Rights perspective

Legal status of women and their rights in Nepal

315-382

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Master of Arts in Inter-Asia NGO Studies

Overview of the Political Economy of Cambodia in 1960s-1990s

Thesis submitted by: THACH Chitaro

Thesis submitted for fulfil of MA Degree Graduate School of NGO Studies, SungKongHoe University

May,2009

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DECLARATION

I hereby state that this thesis has been submitted an original work, reflect-ing my own analysis and thoughts.

Signature:

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Overview of the Political Economy of Cambodia in 1960s-1990s

Author by THACH Chitaro Master of Arts in Inter-Asia NGO Studies (MAINS) Graduate School of NGO Studies, SungKongHoe University

Supervised and approved as to style and content by Prof. CHO Hee Yeon Professor, Department of Sociology Examiners Prof. CHO Hyo Je Professor, Department of English

Prof. JIN Young Jong Professor, Department of Sociology

May, 2009 This is

(a

research,

an

analysis)

Thesis

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Acknowledgements
The work, testimony and writings of many political, economic and social changes have in-spired the production this thesis. I hope this thesis will be widely used in a range of develop-ing countries as much as it will be used in the developed world and that the material will be stimulating and constructive.

There are countless number of people who helped in the process of writing and finalizing this work. I would like especially to thank Prof. CHO Hee Yeon who has shared his tremendous ideas and experiences within the course of empirical research in Political Economy of Cambodia as well as countless other materials from website of Trusted Archives for scholarship were reviewed and cited in the literature of this study. For all those, I acknowledge the rich contribution of many advices from Prof. CHO Hyo Je and JIN Young Jong that made to this work and I have greatly learned. A number of people have also read and made helpful comments on an early draft of this thesis.

I am gratefully to thank professors and staff in Master of Arts in Inter-Asia NGO Studies which put their effort to streamline and compromise the course until finished. Finally, I would like to thank all of contribution, maintenance, supporting, and encouragement to 5.18 Memorial Foundation, Hansol Textile and Sungkonhoe University directs to this scholarship.

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List of Contents Chapter I: Introduction ............................................................................................................... 1 1.1 Research Contexts .......................................................................................................... 1 1.2 The Thesis Frameworks ................................................................................................. 1 1.3 Outlines of the study ...................................................................................................... 3 1.4 Research Methodology .................................................................................................. 5 Chapter II: Historical and Post Colonial Reviews ..................................................................... 6 2.1 Internal Politics and Demands for Independence .......................................................... 6 Chapter III: The Political Economy in 1960s-1990s ................................................................. 9 3.1 Sihanouk’s legacy in 1960s ........................................................................................... 9 3.2 Lon Nol’s Hegemony in early 1970s ........................................................................... 13 3.3 Killing Fields in 1975-79 ............................................................................................. 15 3.4 The Alliance of Communists Countries in early 1980s ............................................... 18 3.5 The Peace Talks in 1985 – 1990 .................................................................................. 21 3.6 The Share of Powers .................................................................................................... 23 Chapter IV: Comparative analysis of political economy development in Cambodia .............. 30 Chapter V: Conclusion and Challenges ................................................................................... 38 Appendix ................................................................................................................................ 44 Bibliography ............................................................................................................................ 45 List of Tables Table 1: The structure of frameworks ........................................................................................ 1 Table 2: List of Political Economy Comparative Analysis by Regimes ................................. 30
Overview of the Political Economy of Cambodia in 1960s-1990s V

List of Acronymes ARVN The Army of the Republic of Vietnam CPK Communist Party of Kampuchea CPP The Cambodian People’s Party CSES The Cambodia Socio-Economic Survey DK Democratic Kampuchea EC European Community FUNCINPEC Cambodge Indépendant, Neutre, Pacifique, et Coopératif FSEDP First Socio-economic Development Plan GRUNK Khmer Royal Government of National Union KPRC The Kampuchean People’s Revolutionary Council NLF National Liberation Front PRK People's Republic of Kampuchea SOC the State of Cambodia UNTAC United Nations Transitional Authority in Cambodia UNDP United Nations Development Program

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Chapter I: Introduction 1.1 Research Contexts I am exploring the possibility of taking both the context of political fraction, economic policy and social movement to be precise. The political and social issues in Cambodia epitomize various forms of regimes and dynamic. The justification of Cambodian politic for conduction this research was to take note of the king Norodom Sihanouk’s activities or Cambodia is Sihanouk was once a common judgment and it seemed a valid in the period of 1960s-1970s. After Khmer rouge collapsed, the following decade of 1980s, the Cambodian political econ-omy will debate on the rehabilitation of all sectors under the assistance of Communist Coun-tries. In 1990s, after the signing of the Paris Peace Agreements in 1991, the second launched Cambodia on a process of democratic reconstruction and transition to a market economy.

1.2 The Thesis Frameworks

Table 1: The structure of frameworks Items The periods (Descriptive)
Chapter II: and Post Reviews Historical Colonial

1950s: Sangkum Reastr Niyum - The presence of French colonial started with invasion of Conchinchina and pro-tectoration in Cambodia in 1863. - Japanese troops invaded Cambodia starting with Vichy’s agreement. Indochina was the increasing menace to the authority posed by the Japanese. - Demands independence from French colonial and social movement. - The first wave of democracy.

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Chapter III: The Political Economy in 1960s-1990s and Chapter IV: Analysis

1960s: Sangkum Reastr Niyum/Sihanouk’s legacy - Sihanouk’s role in political arena and radical economic. - Direct democracy policy in Cambodia. - Economic growth depends on foreign policy. - Vietnam War had influenced Cambodia. - Student movements in 1969. - Economic down and inflation in 1969.

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1970s: Khmer Republic (1970-75) and Democratic Kampuchea (1975-80) - The transition regime to Khmer Republic under coup d’état in 1970. - Economic assistance from the U.S. - The warfare between government and Khmer Rouge guerrilla in. - The transition regime to Democratic Kampuchea in 1975. - Vietnamese troops’ mission in Cambodia in 1979.

1980s: People Republic of Kampuchea - The transition regime to People Republic of Kampuchea in 1980. - Rehabilitation under assistance of communist countries. - Vietnamese troops removed from Cambodia. - Peace process in Cambodia.

1990s: State of Cambodia and Kingdom of Cambodia - The transition regime to State of Cambodia in 1990. - The returning of the King and Paris Peace agreement. - The second wave of democracy under national election in 1993. - Arms clash between political parties. - Strengthening economic development through socio-economic, education and alleviation of poverty.

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The frameworks analytical of the Political Economy of Cambodia in 1960s-1990s need to be linked with historical event in 1950s somehow in order to understand the whole aspect of Political Economy in Cambodia. The table above showed that Cambodia has comprised with many regime transition during the period of 1960s-1990s because of affiliation with civil War. In order to get the point of these transitions I have described about the political fracture and social movements were undertaken by Norodom Sihanouk that provides the academic with an appropriate tool for further understanding about political economy process and chal-lenge. Norodom Sihanouk’s activities in the political arena has given a potential affect both positively and negatively to the state of Cambodia as shown in the table and which will be described in Sihanouk’s legacy in 1960s along with the suffering of Sihanoukism was de-feated by Lon Lon’s coup d’état in 1970 and founded a new regime to republicanism under name of Khmer Republic in early 1970. The detail descriptive is shown in Lon Nol’s hegem-ony. Khmer Republic had been survived for a short time while Cambodia has extremely con-fronted with economic down and Vietnam War. The new regime founded Democratic Kam-puchea by Khmer Rouge guerrilla who directly headed by Sihanouk and his supporters in Communist Party of Kampuchea which is dealing in Killing Field. Khmer Rouge is the state of barbarism had been collapsed by Vietnamese troops under special agreement with Cambo-dian prominent leaders and new regime founded People Republic of Kampuchea in 1980s. The explanation of reason why as well as contents in the table is describing in the alliance of communists countries. The next two regimes were founded with firstly, State of Cambodia 1980s and secondly, Kingdom of Cambodia in 1990s conducts in the peace talk and the share of powers. Bearing in mind of what was described above is exploring together in Chapter III: The Political Economy in 1960s-1990s. 1.3 Outlines of the study This account is organized around a number of major issues. It includes the profile of Cambo-dian political context in general and economic scheme. The transformative potential of the regime in Cambodia because of political instability and economy crisis that can be addressed and analyze through the follow chapters: Chapter II: Historical and Post Colonial Reviews; it deals briefly with French colonial in 1863, Japanese colonial in 1945. There was a tension by social movement in these periods and internal political demands forward to receiving independence from French colonial. I have put these colonials review because it can make directly relevant for developing case which importantly dimension to an understanding of the political economy and social con-texts of Cambodia. Chapter III: The Political Economy in 1960s-1990s; it describes about the relationship be-tween political economy and social models activities by suggesting that political instability push the economic slowdown, it is an essential element for regime transition. This chapter reviews all of collective views of those materials took part in the focusing group discussions regarding the political economy. The descriptive of the political economy of Cambodia in this chapter has subordinated directly to the next chapter and can be debated on approaches to the analysis of Cambodian political economy. It has become necessary a feature to improve currently challenging with low-income is likely to suffer the most from the crisis. Chapter IV: Political Economy Analysis; it focuses on the implication of chapter III, how-ever, it explores in detail about which originate importantly of the Cambodian political econ-omy. The analysis examines 12 indicators to predict political instability: inequality, inde-pendence, civil war, corruption, 11

ethnic fragmentation, trust in public institutions, risk of la-bour unrest, geographical position, regime type, factionalism, GDP growth, and unemploy-ment rate per capita income. Chapter V: Conclusion will combine all of the chapters in one in order to figure out the major cause of trouble interims of the logistics to conduct proper research and ensure that the politi-cal economy analysis has been reached efficiently.

1.4 Research Methodology This thesis has given a special attention to all readers which with debating or researching, this is because of the ongoing civil war in Cambodia almost 3 decades, therefore the relative documents were lack of valid data and accurate information on the political economy needs in the period of 1960s-1990s, however, it was important to conduct this research, especially through using a participatory approach of political and social movements background in Cambodia from the perspective of political economy. Much of literature in the West is criti-cal of the existing systems of research provision for political economy and social movement. As for understanding the political and social movement background, I have organized over these decades along with the sort of Shanouk’s activities and his hegemony because Siha-nouk can be the best judged for Cambodian political economy.

Chapter II: Historical and Post Colonial Reviews 2.1 Internal Politics and Demands for Independence The presence of French colonial started with invasion of South Vietnam (Conchinchina), basically for gaining control of the whole Indochina. French colonizers have put pressure on Norodom the man to be Ang Duang’s successor to approve the protectorate treaty with France in August 1863. The whole systems were ruled by French government as the domi-nant political force, all the provinces were under administration of French officials particu-larly all the decision from monarch had to submit to the representative of the French govern-ment for approval. In 1880s, the French government had been started tighten up the situation of Cambodia by controlling of taxes collection under the new agreement of forcing the king to agree to the costs of French “protection” over Cambodia. After Norodom died the French government decided to place Sisowath on the throne in 1904. Otherwise, Norodom Sihanouk was born on 31 October 1922 with his parent Suramarit and Kossamak. Sihanouk was se-lected to place on throne on 1941 while that time France had surrendered to Nazi Germany and Pétainist regime was established in Vichy1. Starting with Vichy’s agreement, Indochina was the increasing menace to the authority posed by the Japanese. They were arranged to station their troops in North Vietnam, the Japanese had further undermined France’s colonial position by cooperating with Thai government. Japanese coup of March 9, 1945 on the following day, Japanese troops entered the capital city Phnom Penh three day later the king Sihanouk repudiated the existing treaties with French and proclaimed his country independence. The border provinces of Battambang and

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Siem Reap were lost to Thailand, thanks to Japanese mediation, Cambodia suffered little economically during the war2.
2 Thompson

and Richard, 1953, Cambodia Moves toward Independence; http://www.jstor.org/stable/3023994

Son Ngoc Thanh was play prominent roles throughout Sihanouk’s tenure of power and his associates represented the first stirring of modern nationalism in Cambodia and his principal interest was gaining domestic political power. He was founded a newspaper of Cambodian language called Nagaravatta at being subjected to French rule in order to publicize their views against French colonial. The newspaper argued for Cambodia and called on their coun-trymen to awake to challenge posed by the Chinese and Vietnamese domination of commerce in the country, they did not advocate violence to achieve their aims. In 20 July 1942, a major demonstration against the French took place in Phnom Penh and Son Ngoc Thanh, was claimed to be seen wearing Japanese military. Thanh and Sihanouk asserts, was hiding in the Kempe Tai3. After the largely bloodless Japanese coup de force and disarmed the French military there is a real difficulty in assessing Sihanouk’s role during that period; however, he assumed the title of prime minister in addition to continuing his role as the monarch. Shortly after, a new Cabinet was formed, in which Son Ngoc Than named Minister of Foreign affairs on behalf of the Japanese military command, and later nominated as Prime Minister. After Japan surren-dered on 15 August 1945; Sihanouk’s formal acceptance of the French power on 23 October and declared his loyalty to France. He offered opening negotiations with the French at Sai-gon. The king was embodied in a modus vivendi signed in January 1946. Under this Franco-Cambodian had reached agreement between the king and French to seek the return of prov-inces lost to Thailand during the war. With the new signing, the Cambodian’s political con-text changes through the framework of new government institute. Cambodia was launched
Milton Osborne, 1994, Sihanouk Prince of light, Prince of Darkness; pp:28-41 4 Ibds: Milton Osborne, 1994 p: 81. See also Thompson and Richard, 1953
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democracy by calling on the first election of Cambodia’s National Assembly in 1947. While the tension roused dramatically to against French, Sihanouk thought France should transfer to the Cambodian sovereignty and his government the powers it still retained. He was preparing to leave for travail to take the case for Cambodia’s independence to wider international audi-ence. The situation was unstable to French government and also confronted with difficulties elsewhere in its colonial empire. Otherwise, the French has bore the sentimental with the king, did not want to break, in the view of friendship for France and willingness even if inde-pendence were granted, the remaining still within the French Union. The formal declaration of Cambodia’s independence took place on 1953, 9 November, with the transfer of sover-eignty symbolized.4 Chapter III: The Political Economy in 1960s-1990s 3.1 Sihanouk’s legacy in 1960s The population of Cambodia was assessed to be 5,728,771 persons, according to the census of April 17, 1962. It was the first population census of Cambodia. Of 5,728,771 persons of the population of Cambodia, 5,512,997 are grouped into 1,071,101 private households (that is an average of 5.3 persons) and the remaining 205,744 persons in a number of institutional households.5The census of the population in 1960s will contribute to political economy analysis. After France granted the country independence, Sihanouk has been named by the domestic acclaimed as the “Father of Independence.” Sihanouk has become a very real sense of essential strength, the apex of the popular pyramid in Cambodia. Sihanouk was convinced to revolutionize the monarchy and like the people to conception of government which com-bined both conservatism and social and economic reform. On March 2, 1955, Sihanouk abdi-cated in favour of his father and becoming an active participant in the political arena, he im-mediately founded the Sangkum Reastr Niyum (People Socialist Community) that can be created his chief instrument and maintaining national unity. It was designed as a political party and as a common meeting ground for all Cambodians who wished to vote for the mon-archy. The people responded enthusiastically to Sihanouk’s new role as an active political leader and with their support and unanimous popular support that he was enabled to block opposition to his ideas. In that time, most of the political parties dissolved themselves and their member joined Sihanouk’s party. Since then, Sihanouk has definitely dominated Cam-bodia’s political scene. The Sangkum Reastr Niyum has won every election. “It was also led him to exploit fully the institutions of direct democracy which he has created as a part of his design to involve the people directly in politics. One such institution is the
5 George 7 Kao

S. Siampos, 1970, The Population of Cambodia 1945-1980 6 Smith Roger, M. 1967, Prince Norodom Sihanouk of Cambodia Kim Hourn, 2002, Cambodia’s Foreign Policy and ASEAN p:19; See also David Chandler, 2000, A History of Cambodia p: 191

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National Congress, a biannual forum at which the people are given the opportunity to discuss current issues of domestic and international importance with Sihanouk and his advisors and to voice their complaints against government officials and legislators6.” Cambodia had received foreign assistance from the United States $25 million in 1955 for military and economic assistance under French’s channel. Cambodia’s security concerned according to serious threat from North Vietnam to its independence, so Cambodia needed to have commitment defence from the United States. In 1960s Norodom Sihanouk was the key architect of foreign policy that specialize in the policy of neutrality. “Sihanouk began for the first forged a tactical alliance with elements of the Cambodian left as well as with Communist China. These alignments had four shorten effects, the first was the drifting to the left of Cam-bodia’s printing media and increasing tolerance for left-wing school teachers; The second effect was the election to the Assembly in 1962 of several leftist educated politicians in France, such as Khieu Samphan, Hou You and Hu Nim, into the National Assembly; Third effect was Sihanouk’s decision to terminate U.S. economic and military assistance in; the fourth was for increasing tolerance of the left wing, many of whom were able to survive the repression in the 1950s and 1960s7.” “The Vietnam War which occurred soon broke out in South Vietnam between Vietnamese loyal to the pro-U.S. and destabilized the Cambodian economy and drove Sihanouk from office. The cold war tensions that were being played out in Vietnam, at such enormous hu-man cost, had little relevance in Cambodia, but this did not stop Cambodia from becoming engulfed in the conflict. By 1965, over two hundred thousand U.S. troops had swarmed into South Vietnam to prop up the Saigon government and prevent a communist victory. In the Meantime, North Vietnamese troops had moved into position in the south top reinforce lo-cally recruited guerrillas. As the war intensified, it threatened to spill over into Cambodia, as it had already spilled over into Laos. Sihanouk broke off diplomatic relations with the United States and sought to convene an international conference that would lead to the neutralization of Southeast Asia and the withdrawal of U.S. troops. By 1966, Sihanouk also allied himself secretly with the North Vietnamese, a decision, probably impossible to avoid. He wanted to remain in power and to keep Cambodians from being killed.8”
8 David

Chandler, 2000, A History of Cambodia, pp:195-196

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Cambodia’s radical economic has been impacted upon the more affected by the War in Viet-nam and internal instability. The major implication key countries such as France, United States, China, North Vietnam, South Vietnam, and Thailand contributed both positively and negatively to development of Cambodia during that period, particular to Cambodian domestic politics, war, peace and security, as well as the economy. “In related, Sihanouk nationalized the importexported sector of the economy and closed Cambodia’s privately owned banks. And the others were parts of an effort to gain control over economy and cripple the Chinese and Sino-Khmer business elite in Phnom Penh. The broke off with the U.S. made Sihanouk vulnerable to pressures from the left and lowered military morale. The nationalization of for-eign trade soon encouraged the commercial elite to trade clandestinely with Communist in-surgents in Vietnam, and by 1967, over a quarter of Cambodia’s rice harvest was being smuggled to these forces, who paid higher prices than the Cambodian government could af-ford. At the same time, the government lost revenue from the export taxes it normally charged on rice. Foreign trade was also hampered by the loss of entrepreneurial skills and government ineptitude. Because of losses of revenue as a result of clandestine trading, mis-management of state-controlled industry, and extravagant expenditures, Cambodia’s econ-omy in 1967-1968 was faltering. Agriculture problems had never attracted Sihanouk’s sustained attention. They included low yields, poor irrigation, and excessive interests charged on loans to farmers and were being exacerbated by a rapidly increasing population and fluctua-tions in world prices9.”

9 David

10 Donald

Chandler, 2000, A History of Cambodia, pp:200-204 Kirk, 1971, Cambodia's Economic Crisis; http://www.jstor.org/stable/3024657

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“The most important aspects of the Cambodian economy, after Cambodia had gained independence in 1953, were rice and rubber. The Rice exports accounted for 60.3% of total commercial exports valued at 2,416,225,000 riels ($59,637,709) in 1965 as opposed to 24.41% of commercial exports valued at 2,205,156,000 riels ($40,093,745) for 1969. Rubber exports fluctuated considerably during this period but did not reflect the same downward trend. From a high value of 879,770,000 riels ($15,994,181) in 1966, earnings from rubber declined by approximately 15% for the next two years but then raised to 1,034,139,000 riels ($18,802,527) in 1969-46.9% of total commercial export earnings10.” “In the year of 1969 may prove to be a watershed year for Cambodia and for Sihanouk. Inter-nal pressures on Sihanouk emanate from essentially three sources: a pattern of widening in-surgency in the countryside, make more complex by the presence of 30,000-500,000 North Vietnamese and NLF forces; urban disaffection and disagreement, especially among younger educated men; and governmental and press criticism, open and implied and largely apparent in Phnom Penh. Cambodia faced worsening economy (particularly the government’s program to control the rice stocks); Cambodian plans to import 10,000 tons of rice from China. Siha-nouk has no way attempted to deny the seriousness of the situation during that time and the government announced a devaluation of the riel and a program of austerity. These develop-ments reflected disappointments in Cambodia’s efforts to attract and develop industry, and it appears likely that while tourism will continue to be emphasized as a foreign-currency earner, agriculture will be given first priority; supplanting industrial development in Cambodia’s planning.11” The inflation, North Vietnamese troops in Cambodia and the termination relationship between the United States and Cambodia was enraged some military officials. Prince Sirik Matak (Sihanouk’s cousin) joined with General Lon Nol to plotting coup d’état the Prince in March 1970 while Sihanouk was on an overseas trip. The newly formed regime the Khmer Republic and U.S.-Pro returned. Lon Nol’s government ordered Vietnamese troops to leave Cambodia within forty-eight hours because of Vietnam-U.S. war.

11 Bernard 12 Peter

K. Gordon and Kathryn Young, 1970, Cambodia: Following the Leader?; http://www.jstor.org/stable/2642250 A. Poole, 1972, Cambodia: The Cost of Survival; http://www.jstor.org/stable/2643076

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3.2 Lon Nol’s Hegemony in early 1970s After Lon Nol and Sirik Matak seized control in Cambodia, their government ordered Vietnamese troops to leave Cambodia within forty-eight hours due to Vietnam-U.S. War. The confrontation with Vietnamese Communist, it may provoke them to put all their efforts to seize control Cambodia. The danger was alarming that the Viet Cong (National Liberation Front) and the Army of the Republic of Vietnam (ARVN) were using the war situation to dig themselves permanently in eastern Cambodia. That regime can be described Cambodia as the purest example of the President of the U.S., Nixon doctrine. “In December 1971, the U.S. Congress decided to place a ceiling of $341 million on the amount of money that can be obligated for U.S. military and economic aid during fiscal year 1972. Congress also decided that the U.S. government can assign no more than 200 American officials and 85 (third country nationals) to Cambodia.12” Norodom Sihanouk who learned of the coup was exiled to Beijing, China. Mao Zedong al-ways encouraged him, and motivated him to speak out to Chinese publicly. These created a great sentimental value between Chinese and Sihanouk. They supported him as a wonderful house including office in Beijing. The office in Beijing based called Khmer Royal Govern-ment of National Union (GRUNK) that has own insurgent army. Chinese government wanted him to struggle and fight back with Lon Nol. The Prince himself appealed to all Cambodian people to run into jungle for restoring his power. He was later joined the Communist Party of Kampuchea (CPK), which was given later the name Khmer Rouge by Sihanouk as their leader. CPK is a political party founded that supported by the Vietnam communist which never win election since the first election held in 1958. This party was led by Saloth Sar (Pol Pot), Son Seun, Khieu Samphan, and Ieng Sary. Cambodia situation returned to chaotic as internal power started to struggle and riots with civil war Khmer Rouge guerrilla and external Vietnam War. “Communist and American sources in Phnom Penh reportedly agreed, in late 1971, that there were about 12,000 Sihanoukist guerrillas under arms in Cambodia, along with about 3,000 Khmer rouges (who opposed the Phnom Penh government). In trying to summarize the mili-tary situation in Cambodia, one begins with the fact that even the exact size of the Cambo-dian army is uncertain. The official strength of the army is about 200,000 men, but up to 300,000 of these are phantom soldiers whose names pad the payrolls, according to Americans concerned with the aid program.13”

13 Ibds:

Peter A. Poole, 1972

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“Compounding this problem was the corruption of the military establishment, which habitu-ally exaggerated the number of men under arms in order to extract more financial aid than was necessary from the United States. A State Department spokesmen confirmed that monthly payrolls for the Cambodian armed forces had covered the salaries of 300,000 men in some instances even thought the actual total was approximately 200,000. With the result of intense American pressure and reminders of the possibility of withdrawal of American economic and military aid averaging $70 to $75 million and $170 to $175 million a year respectively. The authority of the high political council was basically limited to economic and so-cial problems, exacerbated greatly during the offensive. The government had to raise the price of rice, the standard economic bellwether, from between 2500 and 3000 riel per 100-kilogram sack to approximately 5800 riel per sack.14”

14 Donald

Kirk, 1974, Cambodia 1973: Year of the 'Bomb Halt'; http://www.jstor.org/stable/2642841 15 Milton Osborne, 1994, Sihanouk Prince of light, Prince of Darkness; p: 217 16 Kate Frieson, 1988, The Political Nature of Democratic Kampuchea; http://www.jstor.org/stable/2760458

“1970s was the decade that Sihanouk’s fall from power was arguably the most tragic in Cambodia’s long history. What had been bloody but episodic encounters between the army and leftist-led rebels were now transformed into full-scale war as Lon Nol’s forces battled both indigenous Cambodian Communist and their Vietnamese allies. Adding to the loss of life and destruction wreaked by the war was devastating campaign of strategic bombing carried out by American B52s until it was halted by Congress in August 1973.15”

3.3 Killing Fields in 1975-79 The Cambodian Communists, the Khmer Rouge, finally gained their victorious that defeated Lon Nol’s government in April 17, 1975. The Khmer Rouge had seized Phnom Penh city and made the transition regime to Democratic Kampuchea. Several Khmer Rouge elements were known to be originated by the Khmer Vietminh (Vietnamese nationalist movement organized by the Communist Party of Vietnam to fight against the French colonial). “The Democratic Kampuchean regime (1975-79) has been labelled Marxist-Leninist, Maoist, peasant-populist, national chauvinist and even fascist by various observers of Cambodia. The variety of politi-cal labels suggests not only a semantic debate, but also the existence of genuine confusion about the political nature of Democratic Kampuchea (DK).16”
Overview of the Political Economy of Cambodia in 1960s-1990s 16

“The young men who appeared from in the central of Phnom Penh soon after first light did all the things that victorious rebel are supposed to do. They drove about in jeeps flying a stranger flag, a white cross on a blue and red filed, acknowledging the cheers of the crowds as they passed. They seized control of key installations including the Information Ministry and the radio station, and fraternised with government troops, who threw away their weapons and waved white flags in surrender.17”
17 Philip 18 Kate

Short, 2004, The History of a Nightmare; p: 266 Frieson, 1988, The Political Nature of Democratic Kampuchea; http://www.jstor.org/stable/2760458

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CPK called its central leading committee the Angkar. The Angkar came to embody the su-preme power of the state and became known for imposing a ruthless dictatorship. During this time the Cambodian people were victims of tyranny and barbarism. Massacres were perpe-trated both by communist politicians, as self-proclaimed state leaders, and by officials in the service of the revolutionary administration. “CPK ruled Cambodia; it never proclaimed pub-licly that its ultimate goal was a Communist state. Khieu Samphan, chairman of the CPK’s State Presidium, told Sihanouk that Cambodia would be the very first state achieves a type of instant communism in which the necessary historical stages were, in some miraculous way, leaped over in the Cambodian context.”18 The first policy was evacuating of the Phnom Penh's residents that made this city became a ghost city where strolled some group of Khmer Rouge soldiers. They started shooting their guns and by pointing at people, ordered them to leave their homes and to move away from the city. About 2 million people were evacuated to countryside to undertake agriculture. Khmer Rouge soldiers were being on fatigue duty had changed public gardens into kitchen ones or they had demolished the building of the central bank with powerful dynamite. Safes were lying down amid ruins, bank notes scattered among refuses. The national library became the fossilized estate where flew the birds. There were no currency, no public transport, and no school. The market as well as commercial activities determined as exploitation factors were strictly banned. Telecommunication means (television, telephone) were not used. The radio whose daily broadcast had been made under the name of the voice of Democratic Kam-puchea. Programmed broadcastings bombarded the population with revolutionary communi-cation and songs. Cambodia lived on the fringe of terrestrial civilization, a country in peace. No political adversary, no guerrilla existed. The Khmer Rouge, builder of the Cambodian State, plunged their country in the gloomy space of tears and blood. In contrast to 1975 vic-tory, DK began military attacks Vietnam almost immediately, when most of Cambodian- Vietnamese residents were expelled from the country. “Pol Pot’s aim was to plunge the coun-try into an inferno of revolutionary change where, certainly, old ideas and those who refused to abandon them would perish in the flames, but from which Cambodia itself would emerge, strengthened and purified, as a paragon of communist virtue. The goal was not to destroy but to transmute. The evacuation, Pol Pot wrote later, was an extraordinary measure...that one does not find in the revolution of any other country. When the full leadership met at the Sil-ver Pagoda soon afterwards to discuss the new guidelines, they decided to give absolute pri-ority to raising farm production. ‘Agriculture is the key both to nation- building and to na-tional defence,’ Pol Pot declared.19” “There was a minuscule space for the exercise of free will. In Khmer Rouge Cambodia, there was none – which marks a qualitative difference that only those who have experienced it can comprehend. Not only were there no wages, there were markets. With time, as the system grew more rigid, even barter was discouraged. Like true slaves, the inhabitants of Pol Pot’s Cambodia were deprived of all control over their own destinies – unable to decide what to eat, when to sleep, where to live or even whom to marry.20”
19 Philip 20 Ibds,

Short, 2004, The History of a Nightmare; p: 288 p: 291 21 Kate Frieson, 1988; The Political Nature of Democratic Kampuchea; http://www.jstor.org/stable/2760458 22 Scott Luftglass, 2004; Crossroads in Cambodia: The United Nation's Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge, http://www.jstor.org/stable/3202401

20

The well known of the “former deputy premier of DK, Ieng Sary proclaimed in 1977 that what we are trying to bring about has never occurred before. We are not following any model, either Chinese or Vietnamese...the Cambodian situation does not fit any existing model and thus requires original policy.21” Those CPK’d leaders were believed that without socialist system, Cambodian could never be able to defend the country and the Khmer race would disappear. This socialist revolution has set up a strong base for Khmer nation. Cambodia nation – state, capable of creating militant and mobilized peasantry to guard against foreign domination, capable of approximating the agricultural feats achieved furring the Angkorean period and finally capable of restoring national grandeur to Cambodia. “Those Khmer Rouge leaders, responsible for the deaths of over 1.7 million of their fellow Cambodians have enjoyed freedom absent domestic and in-ternational accountability for their actions. During this period, a combination of domestic instability and international apathy rendered the country paralyzed by the memory of a once-promising government that turned into a killing machine.22”

3.4 The Alliance of Communists Countries in early 1980s Cambodian people were rescued from DK regime in January 1979 by Vietnamese troops (under the name of the second revolution) put their effort to revive Cambodian people from the victim of victims of tyranny and barbarism regime; the Vietnamese government’s view that set Cambodia up into this plan according to agreement which was granted by Cambodian
Overview of the Political Economy of Cambodia in 1960s-1990s 19

leaders. The document was quoted as saying that the reason with Vietnamese government decided to help Cambodia under special relationship due to many attempts from Vietnam to negotiate since 1975 about territorial with Khmer Rouge leader, but they failed. “A year later discussions about the border broke down completely because, according to the Khmers, the Vietnamese presented a new map which took away a vast part of Cambodia's territory. The situation became so bitter that at the end of 1977 Khieu Samphan, the new head of the Khmer state, broke off diplomatic relations with the Socialist Republic of Vietnam. He declared in 1978: the number one enemy is not U.S. imperialism, but Vietnam, ready to swal-low up Cambodia.23”
23 Joseph

R. Pouvatchy, 1986, Cambodian-Vietnamese Relations, Asian Survey; http://www.jstor.org/stable/2644157

“January 1978 while the Vietnamese attempted for the first time to intervene militarily in Cambodia in order to overthrow the Khmer Rouge, the Vietnamese leader declared that they were ready to meet the Kampuchean leaders and settle the border problem between the two countries. The Khmers, however, declared that no discussion could take place until the com-plete evacuation of Cambodian territory by the Vietnamese. Khmer-Vietnamese relations took by United Front of National Safety of Kampuchea was set up along the borders by Khmer Rouge fugitives at the end of 1978 and the Vietnamese Army intervened massively and finally successfully in Cambodia. Hanoi then declared: The Vietnamese people were only exercising their legitimate rights of self-defence, in their forceful opposition to all the acts of aggression, in order to protect their independence, their sovereignty, their territorial integrity, and to maintain the friendship that has existed for a long time between the Kampuchean and the Vietnamese peoples. This border treaty was finally signed in 1983 by Hun Sen and Nguyen Co Thach. This 21

agreement stressed each country's territorial integrity and sover-eignty. It banned the moving of frontier markers and prohibited border residents of either country from crossing that border in order to take up residence, farm, collect forest products, hunt, and fish or pasture animals. Besides this state of affairs concerning the border, which cannot be of great satisfaction to the government in Phnom Penh, there is the larger problem of the settlement in Cambodia of Vietnamese civilians (not to be confused with the 150,000200,000 Vietnamese troops). In July 1983 Sihanouk spoke of hundreds of thousands of Vietnamese who threaten to turn Cambodia into another South Vietnam. According to the Khmer People's National Liberation Front and the Khmer Rouge, there are some 600,000-700,000 in the country in contrast to an estimated Cambodian population of less than 6 million. An ac-cord, whose contents have not been made public, was signed in 1984 and stated that Cambo-dia authorizes Vietnamese to reside in Cambodia as long as they agree to live and work there honestly.24”

24 Ibds 25 Gottesman,

Evan R. 2004, Cambodia After the Khmer Rouge; p: 45

“The Heng Samrin regime or People's Republic of Kampuchea (PRK) was taking shape. Guided by Vietnamese military and civilian advisors, the regime established itself along typi-cal communist lines. Although the first pronouncements from Phnom Penh described only the state apparatus – the Kampuchean People’s Revolutionary Council (KPRC) – power in the PRK. Hen Samrin, the former Khmer Rouge commander whom the Vietnamese selected to be president and head of state, was virtually unknown to Cambodians. Uneducated and yet rigidly Marxist in outlook, Heng Samrin was politically and ideologically reliable. His back-ground as a former Khmer Rouge cadre also allowed Hanoi to present the new regime as be-ing led by forces inside the country, as opposed to Hanoi-trained communists. Later, it be-came apparent that he was dependent on Vietnamese support and that he lacked the political skills necessary to develop a personal power base.25 ” 3.5 The Peace Talks in 1985 – 1990 The fourth change, in part a reflection of the first three, has been a decline in the importance of ideology in the Cambodian scheme of things. Re-designation of the Phnom Penh govern-ment, from the People's Republic of Kampuchea (PRK) to the State of Cambodia (SOC), is symbolic of this. “Hun Sen announced on April 30 in 1985 that his government was no longer a Leninist ‘people's republic’ and henceforth was officially to be known as the State of Cambodia (SOC); he also indicated that a new flag and new national anthem were forthcom-ing. Work is underway to alter the present constitution, moving it politically from the left to the centre. Clearly, the SOC government is making a determined effort to move backward to more orthodox Khmer style of politics. As with Hanoi's divestment, it can be (and is) charged that this is merely a tactic; hence its significance remains to be determined. Prime Minister Hun Sen, Party Chief Heng Samrin, and others in the government have never been particu-larly good Marxist-Leninists. What they now appear ready to do is to alter political strategies and adopt one that is more identifiable as Khmer nationalism. In the long run this change could mean increased not lesser difficulties for Prince Sihanouk and other SOC political competitors. A few observations are appropriate at this 22

point about the Khmer Rouge or the DK political element and its future in the Cambodian political process. Over the past several years there has been considerable oversimplification if not mindlessness about what is and is not represented here. Commonly, the problem is reduced to a kind of sloganizing about the return of the Khmer Rouge. Conjured up is the vision of Pol Pot and company still intact and unchanged in a jungle awaiting a signal to return to Phnom Penh and resume their holocaust. Whoever it is and whatever it was, the DK today is not the Khmer Rouge of 1975-79. About 70% of the present cadre structure in Phnom Penh is ex Khmer Rouge, which includes Hun Sen and many other leaders. Therefore, to the question where are the original Khmer Rouge comes the answer: they are in Phnom Penh running the SOC. The average age of the Khmer Rouge follower is 22 years, meaning the average follower of today was nine years old when the DK was sowing the killing fields. This is not to say the present day DK represents no threat and would not be bloody-handed, given the chance. But so would other Khmer, given the opportunity, including those seeking to settle scores with the Khmer Rouge. Government is what prevents this.26”

26 Douglas

Pike, 1989, The Cambodian Peace Process: Summer of 1989; http://www.jstor.org/stable/2644830

“Cambodia, which was headed step by step in the direction of socialism, had three types of collectives: Type one, solidarity groups, in which peasants worked the land communally; Type two, solidarity groups, in which land was distributed to individual families, who coor-dinated the harvesting and sale of rice to the state; and Type three, solidarity groups, which were really just private farms. Toward the end of 1987, after several years of poor harvests, central officials began discussing agricultural policies in terms of ‘rights’ that is the right of Cambodian peasants to work the land as they saw fit. Autonomous decision making within the context of collectives, Agriculture Minister Say Chhun reckoned, would create the incen-tives that would boost rice yields. The solidarity groups themselves were not the problem, he had decided. Interference by incompetent and corrupt local officials was. The solidarity group policy truly has qualities that are extremely appropriate for the situation in Cambodia. But so far we have imposed overly rigid limitations on our solidarity groups, so they don’t function. This has a bad effect on production. As for the land policy, we have said that the land is the property of the state but we have given the solidarity groups and families the work of conducting business. So the solidarity groups and families have rights as masters of the land, whereas the owner is the state. But so far some of our local state authorities don’t un-derstand this clearly and turn around and take these ownership rights and manage and distribute land inappropriately. This is why people are very disappointed (Minutes, Cabinet, Coun-cil of Ministers dec. 3, 1987).27”
27 Gottesman, 28 Ibds,

Evan R. 2004, Cambodia After the Khmer Rouge; p: 272

p:280

23

“Vietnamese Communist Party had begun reforming its land policies, did the Cambodian leadership really begin to consider reform. They agreed of misunderstood the distinction between ownership and rights, and rush into collectivization too quickly. In February 1989 the Party acknowledged the change in policy, amending the constitution to read, citizens have full rights to hold and use land and have the right to inheritance of land that the state has granted them to live on and to conduct business on. Hun Sen, who was not about relies on the Party leadership to push reform, urged his ministers to act on their own. Hun Sen convened long meetings at the Council of Ministers at which he urged his ministers to accept reform. On September 14 he argued for a single price system as the only way for state industries to compete and to develop their own relations with the private sector. In fact, Cambodia’s econ-omy has evolved into a market economy. There should be a way to change state intervention [in the economy], which is [currently] excessive. There isn’t a single country that has suc-ceeded at a planned economy. Many socialist countries are collapsing because the big help the small. This situation leads to negligence. Now we are imposing competition.28”

3.6 The Share of Powers The signing of the Paris Peace Agreements in October 1991 launched Cambodia on a process of democratic reconstruction and transition to a market economy after almost thirty years of conflict and civil war. The first parliamentary election was running under the presence of United Nations Transitional Authority in Cambodia (UNTAC) presence took place in May 1993, facilitated the foundation of a constitutional monarchy with King Sihanouk as head of state, and led to the appointment of a power sharing government comprising of three parties. Two co-prime ministers were appointed, Prince Ranariddh of the royalist, Front Uni National pour un Cambodge Indépendant, Neutre, Pacifique, et Coopératif (FUNCINPEC) party and Hun Sen of the Cambodian People’s Party (CPP). In this connection, democracy had launched two times, within 1947 under Franco-Cambodian committees in Sihanouk’s era and in 1993 under Paris Peace, it may about to enter the final phase of democracy in Cambodia. However, after 1993 election, the first of government coalition to be formed and started a program for rehabilitation and development which has potential demands for higher levels of education and training to strengthen the nation's human resource development base. The edu-cation system became more driven and controlled by market forces than selection criteria and patterns. As the people realized that an effective entry into the market economy required higher levels of education, increasing pressure was put on the education system to absorb more students. “The country is still in transition from a centrally planned system for education and training to a market driven system where employment will generally be in the private system or through selfemployment. Still, links between education and training institutions and em-ployment are weak. The existence of a growing private education and training sector, the potential for greater involvement in education and training by employers and the lack of re-sources of the Royal Government lead to a conclusion that various methods of sharing re-sponsibilities and costs between the Royal Government and private sector needs to be estab-lished. Much is expected of the higher education and technical education systems in linking education to employment and broad based human resource development. This expectation is based on a lean transition period. The agriculture, health, education and training sectors proved to be the most attractive and active for international programs. Indeed, by 1994, some 24

50 international organizations were financing and staffing education programs throughout Cambodia. Ironically, teacher training, the best resourced and funded post secondary training by the State of Cambodia, received the bulk of international attention. The governments of Australia, France, Norway and the United Kingdom were amongst the most active financiers of education programs. Non-governmental organizations funded by these nations, provided a wide variety of teacher in service training programs primarily within the areas of early child-hood and primary education. However, the heavily funded programs were provided by uni-versities and private consultancy firms. These programs focused on foreign language training and in particular, the training of foreign language teacher.29” “Since 1992 the EC has invested more than euro 250 million in such priority sectors as aid to refugees, rural development, primary education, health, institutional support, environment, mine clearance, human rights and development of democracy, emergency humanitarian assis-tance and support for strengthening the rule of law. After the events in 1997 the Community had little option but to focus its strategy on gradually consolidating existing programmes, which were both social and humanitarian [primary education, health and mine clearance] or address such issues as the needs of the poorest communities [rural development].” (The EC Cambodia strategy paper, 2000-03)
29 Stephen

J. Duggan, 1996, Education, Teacher Training and Prospects for Economic Recovery in Cambodia;

“The publication of Cambodia's First Socio-economic Development Plan, (FSEDP) 1996-2000 is a significant event representing a major step in the country's re-emergence from Pol Pot's Killing Fields and long years of civil war. Moreover, the document is, technically speaking, a competent, realistic product, crafted by Cambodia's donors, to put that unfortu-nate country back on the road to reconstruction and sustainable development. Technical qual-ity aside, however, Cambodia is bedevilled by deep rooted political, cultural and historical
http://www.jstor.org/stable/3099812

problems which cast serious doubts about future prospects. Indeed, precisely because these problems remained unresolved, and in particular because the donors assume that aid alone can save Cambodia, the country could, once again, slide back into chaos and civil war. Be-fore sustainable development can take hold in Cambodia, its history, culture and political legacies need to be analyzed realistically, and the lessons of the past must be effectively in-corporated into its development strategy. This paper is a small contribution towards that end. The paper is organized in five parts. After this introduction, part two briefly highlights the principal targets and priorities of the FSEDP 1996-2000. Part three is a brief historical survey to provide the bare bones context for the genocide of 1975-79, dealing with its external and internal causes. The fourth part presents an analysis of Cambodia's present coalition politics, which contain the same seeds of disunity that led to the civil war in the early 1970s and the tragedy of Pol Pot. The final part concludes with a brief review of challenges and future prospects.30” The process became to halt in July 1997 when First Prime Minister Prince Ranariddh was ousted after armed clashes between the two main parties of the government coalition. The two prime ministers did not get along but promised to work together. Their political relations had begun to sour during when First Prime Minister Ranariddh was threatened to leave the coalition unless the CPP was willing to ensure a more equitable share of power. “For a time, both sides restrained 25

themselves from using threats or violence and agreed to try to maintain the coalition, but the armed clashes between the two parties erupted. One of few things that two prime ministers could agree on was the granting of amnesty of Khmer Rouge defectors led by former Khmer Rouge Deputy Prime Minister Ieng Sary. Tensions between two top political leaders spilled into 1997, and it became clear that the prime ministers were no longer
Ozay Mehmet, 1997, Development in a Wartorn Society: What Next in Cambodia? http://www.jstor.org/stable/3993211 31 The NUF was composed of at least four parties: the Khmer Neutral Party (KNP), the Buddhist Liberal Democratic Party (BLDP) led by Son Sann, the officially unrecognized Khmer Nation Party (KNP) led by Sam Rainsy, and the Funcipec, all of whom agreed to struggle against the CPP in the next elections.
30

prepared to share power. In the next elections, due in 1998, only one prime minister is to be elected, and feeling threatened by the politically and militarily mightier CPP, Prince Ranariddh moved to build a new political front. Known as the National United Front (NUF)31, its 14 points agenda called for: (1) defending the nation, religion, and monarchy; (2) holding free and fair elections; (3) supporting the idea of one prime minister in the next elec-tions; (4) strengthening the legislative system and a neutral administrations; (5) defending human rights and fighting against dictatorship; (6) improving international cooperation but defending national sovereignty and territorial integrity; (7) resolving immigration problems; (8) promoting the people’s standard of living; (9) developing human resources; (10) eliminat-ing corruption; (11) fighting against drugs; (12) resolving lost public properties; (13) defend-ing Khmer culture; and (14) defending environment. Hun Sen immediately responded by taking steps to build his own political alliance. By August, the alliance reportedly comprised 12 political parties.32” The events of 1997 had important economic repercussions, causing GDP growth to fall from 7.4% to 2%, a decline in per capita income, a dramatic drop in tourism and foreign invest-ments and a significant drop in external aid. As Cambodia depends on the international com-munity for almost 60% of its budget, the situation seriously undermined and the level of soci-ety is rehabilitated. According to the Cambodia Socio-Economic Survey (CSES 1999) largely confirmed that the poverty headcount index in 1999 was an estimated 36 per cent (Poverty Profiles, 1999). The data for measuring poverty were collected through living conditions of Cambodians since 1993, and it appears largely unchanged from 1997. Poverty rates are high-est in rural areas where roughly 90.5 per cent of the poor live. The remainder of the poor is
Overview of the Political Economy of Cambodia in 1960s-1990s 28
32 Sorpong

Peou, 1998, Cambodia in 1997: Back to Square One? http://www.jstor.org/stable/2645469 33 Ibds

located in other urban areas (7.2 per cent) and the capital Phnom Penh (2.3 per cent). (The EC Cambodia strategy paper) “Economic growth was negligible in 1997. The government’s early target was a growth rate of around 7.5%; before the coup, the official forecast was down to 6.6%; and by October the Finance Ministry admitted that growth was negative in the second half of 1997 and would be flat for the whole year. There were several contributing factors. Cambodia’s agricultural sec-tor once again fell into heavy flooding. In the 1996 flood, reportedly the most severe in sev-eral years, more than 20 people died, some 1.3 million were displaced, and hundreds of thou-sands of hectares of paddy and other crops were flooded, or destroyed. In late 1996 and early 1997, a series of strikes by garment workers may also have affected the fast-growing indus-try’s output and exports. The coup hit the economy harder than anything else. Before July the annual inflation rate had been kept at a healthy level of about 7%; in September it was said to have 26

increased to 18%. The two days of fighting and looting after the coup caused at least $50 million in damage. With more than 7,000 foreigners fleeting the country and the number of foreign visitors dropping dramatically, tourism suffered a huge loss. Somewhere between 20,000 and 40,000 service workers were said to have lost their jobs. The ongoing conflict also drained public resources as Phnom Penh spent more on defence and security. Some do-nors moved to reduce their aid that directly supported the state budget. The International Monetary Fund (IMF), for instance, suspended its aid programs to Cambodia. It should be stressed, however, that the Cambodian economy did not completely collapse because major donor, initially maintained their humanitarian assistance such as Japan, United States, France and Australia.33” Hun Sen demanded that the prince their mutual hostilities throughout most of the year. Hun Sen demanded that the price, stand trial for the importation of illegal weapons and having conducted secret negotiations with the Khmer Rouge. However, the King Norodom Sihanouk pardoned the prince, thus paving the way for the latter’s return to Cambodia, where he took active part in the July election of 1998. The second election held in July after the first since UN organized election of May 1993, comprise three parties as CPP was the winner with 64 seats, came in second place FUNCIPEC with 43 seats and Sam Rainsy sealing third with 15 seats. A new coalition government between CPP and FUNCINPEC late November 1998, based on a common political programme. Cambodia ranks 140 out of the 174 countries on the United Nations Development Program (UNDP) Human Development Index. The government did little to spur growth. Its military budget for the year remained enormous. Despite a 5% reduction from 1997’s level, military expenditures still represented a full 45% of total spending (roughly US$397 million). Mean-while, the environmental damage caused by deforestation continued to affect agricultural production. The survey revealed that low consumer confidence afflicted by high inflation rates, and depreciation of the Cambodian currency.

27

Chapter IV: Comparative analysis of political economy development in Cambodia Table 2: List of Political Economy Comparative Analysis by Regimes

Regimes

The periods

Analysis

1950s: Sangkum Reastr Niyum

Historical and Post Colonial Reviews - The agreement between French government and the King Norodom under the presence of French colo-nial and protectoration in Cambodia in 1863. - French enforced law and rule to the Cambodian people by administrating all provincials and French government dominated both political and financial scale. - The movement of demanding independence from French colonial under leadership of Norodom Siha-nouk in 1953. - Economy and military assistances from the United States of America in 1955 under channel of France. - People believe the country should have Royalist family with the name of peace.

- Colonial; - Inequality and injustice; - Demands for independence; - Risk of labour unrest; Territory conflict; - Regime type of royalist; - Factionalism; - Financial risk of unrest; Cambodia economy base on export of rice and rubber.

28

1960s: Sangkum Reastr Niyum

Sihanouk’s legacy in 1960s - Sihanouk’s role in political arena and radical eco-nomic. - Sihanouk was the key architect of foreign policy. - Direct democracy policy in Cambodia. Vietnam War had influenced and destabilizes Cambodia economy. - Sihanouk allied himself secretly with the North Vietnamese in order to remain in power and to keep Cambodians from being killed. - Student movements in 1969. - Economic down and inflation in 1969. - Government announced a devaluation of the riel and a program of austerity in 1969.

- Regime type of royalist; Conservatism, socialism, factionalism and economic reform; - Maintaining national unity policy; - Direct democracy involve the people directly in politics; - Foreign aid that specialize in the policy of neutrality; Economic growth de-pends on foreign policy. - Alliance with elements of the Cambo-dian left and China; - Vietnamese War effected; - Import-export sector has been closed; - Unemployment rate growth; - Agriculture problem with rice harvest being smuggling and included low yields, poor irrigation, and excessive interests charged on loans to farmers.

29

1970-1975: Khmer Republic

Lon Nol’s Hegemony in early 1970s - The transition regime to Khmer Republic under coup d’état in 1970. - Economic assistance from the U.S. - The warfare between government and Khmer Rouge guerrilla. - Corruption in military establishment. - Sihanouk exiled in Beijing and he joined CPK which later name Khmer Rouge guerrilla;

Regime type republicanism - Lon Nol and Sirik Matak seized control in Cambodia; - Vietnamese troops to leave Cambodia within forty-eight hours - Pro-US back; U.S. military and economic aid during fiscal year 1972; - ARVN were using the war to dig themselves permanently in eastern Cambodia; - Civil War effected by Khmer Rouge guerrilla; - Chaotic situation; - Factionalism.

1975-1980: Democratic Kampuchea

Killing Fields in 1975-79 - Khmer Rouge seized Phnom Penh in 17 April, 1975; the transition regime to Democratic Kampu-chea. - Khmer Rouge elements were known to be origi-nated by the Khmer Vietminh. - Vietnamese troops’ mission in Cambodia in 1979. - About 1.7 million people were killed. - No one live in urban area. - People must know about how to do agriculture.

- Regime type Democratic Kampuchea; - Marxist-Leninist, Maoist, peasant-populist, national chauvinist policy; Guerrilla founded overthrown Lon Nol’s hegemony; - Cambodian people were victims of tyr-anny and barbarism and killing machine regime; - No infrastructure of public service, bank, communication, justice, school, religion…; - Agriculture policy is strongly moti-vated. Vietnamese troops intervention in 1979.

30

1980-1985: People The Alliance of Communists Republic of Countries in early 1980s - The transition regime to Kampuchea People Republic of Kam-puchea in 1980. - The border treaty was finally signed in 1983 by Hun Sen and Nguyen Co Thach - Rehabilitation under assistance of communist countries. Vietnamese troops removed from Cambodia. Peace process in Cambodia.

- Regime type People Republic of Kam-puchea; - Communism; - Settle border problem Vietnam and Cambodia; - Political and economic policy under Vietnamese government guide and sup-port; - Agriculture is the main factor for our economic growth by nationwide effort;

1985-1990: The The Peace Talks in 1985 - 1990 - The transition regime is - Regime type the State of State of Cambodia the State of Cambodia in 1985. Cambodia; - Cambodia’s economy has - No longer a Marxistevolved into a market economy. Leninist, Maoist; - Vietnamese Communist People's Republic, Party assistance; Socialism; - Reform land policy; - Economic reform policy with assistance of communist countries;

31

1990s to The Share of Powers - The transition regime to Kingdom of present: The Kingdom of Cambodia in 1991. - The returning of the King and Paris Cambodia Peace agree-ment under UN. - The second wave of democracy under national election in 1993 with the present of UNTAC. - Arms clash between political parties CPP and FUNCINPEC in 1997. - Strengthening economic development through socio-economic, education and alleviation of pov-erty. - Potential demands for higher levels of education and training to strengthen the nation's human re-source development base. - Refugees, rural development, primary education, health, institutional support, environment, mine clearance, human rights and development of de-mocracy, emergency humanitarian assistance and support for strengthening the rule of law were aided by International NGOs.

- Regime type Kingdom of Cambodia - The king return in 1990; - Authoritarianism; Democratic reconstruction and transition to a market economy; - The controversial of political party be-tween FUNCINPEC in 1997; The first parliamentarian election in 1993; Two Prime Minister: the first is Rannaridh and second is Hun Sen; - Basic institutions were set up and vari-ous laws ranging; - Human resources development; Privatization, Market forces; - Local NGOs founded in 1991, and International NGOs has dramatically funded. - Socio-economic Development Plan; - Poverty rates are high; - GDP down in 1997 and growth well afterward; - Unemployment rate per capita income; - Infant mortality rate high; poor health system; The first Opposition Political Party founded in 1994, headed by Sam Rainsy; 32

- Natural disaster, - Factionalism; - Corruption;

33

Table 2 has shown the really different between decades of Cambodia through conflict, civil war and economic, political and social instability. Bearing in mind the decades of destructive exacerbate poverty and perpetuated economic inequities. These conflicts resulted in destruc-tion of infrastructure, human capital, and institutions, as well as a large proportion of Cam-bodian being displaced, maimed, orphaned, or widowed. Not surprisingly, these conditions created deep poverty, and the aftermath has been accompanied by widespread economic and social inequities. In the table section of Post Colonial review in 1950s presents the evolution of economic in Cambodia under French protectoration that enforced law and rule to Cambodian people by administrating all provincials, particularly dominant political and financial scale. These conditions created deep of social unrest which dedicate inequality and injustice, demands for independence, risk of labour unrest, territory conflict, factionalism, and financial risk of un-rest. However, the major trade of Cambodia was on export of rice and rubber. In the 1960s, Cambodia still in form of royalist regime since independent was granted to Cambodia in 1953. Cambodia’s political economy has begun reconstruction within framework of conser-vatism, socialism, factionalism. Sihanouk owned the Sangkum Reastr Niyum party that very well played well political scene and its popularity has grown steadily by maintaining national unity policy; direct democracy involves the people directly in politics; foreign aid that spe-cializes in the policy of neutrality as Sihanouk was the key of foreign policy; and economic growth depends on foreign policy. Unfortunately, Vietnamese War has significantly threat-ened to Cambodia economic that was forcibly Sihanouk decided alliance with elements of the Cambodian left and China. Importexport sector has been closed, unemployment rate growth up and agriculture problem with rice harvest being smuggling and included low yields, poor irrigation, and excessive interests charged on loans to farmers. A few stylized facts from the data show that Cambodia’s initial conditions with respect life expectancy and GDP per capita in the 1970s were among the weakest and have been very slow to improve. Physical and hu-man capital formation has been negatively affecting growth. Results in 1970s divided into two sections are the Khmer Republic (1970-1975) and Democratic Kampuchea (1975-80). An estimate using five-year average from each regime indicates that regime was formed was republicanism leading by Lon Nol, pro-US back by against the presence of Vietnamese troops, U.S. military and economic aid during fiscal year 1972. However, ARVN were using the war to dig themselves permanently in eastern Cambodia and civil War affected by Khmer Rouge guerrilla formed by Sihanouk and communist party. “Higher real per capita growth is associated with lower initial income levels, better macroeconomic performance, faster human and physical capital accumulation, smaller government, and stronger institutions and govern-ance. These results imply that higher long-term growth in Cambodia could be achieved by better education, more rapid physical capital information, and improved governance. This is a formidable policy challenge in an economy suffering from weak public administration and lacking financial resources.34” Decade afterward in 1980s another two regimes were formed People Republic of Kampuchea (1980-85) comprise by settle border problem Vietnam and Cambodia, communism, political and economic policy under Vietnamese government guide and support, agriculture is the main factor for economic growth by nationwide effort. The State of Cambodia (1985-1990) was set a new changing policy as no longer a Marxist-Leninist, Maoist, People's Republic, Socialism, reform land policy and economic reform pol-icy with assistance of communist countries. Rebuilding institutional and physical infrastruc-ture was particularly difficult since most of the educated population had either been killed or fled the country during Khmer Rouge 34

period. Civil conflict and the withdrawal of external assistance stalled progress on marketoriented reforms introduced in the mid-1980s. Even the
34 Cambodia

Rebuilding for a Challenging Future, 2006

coalition government formed and two prime minister in the name of share power following UNTAC which UN sponsored election in 1993 could not fully solve internal tensions, which erupted into a violent conflict in 1997. However in 1990s, democratic has been reconstructed and transition to a market economy, basic institutions were set up and various laws ranging from commercial contracts. The Financial Institutions Law provided the legal basis for suc-cessful bank relicensing. A building up in the administrative capacity, privatization and mar-ket forces, substantial foreign assistant through International community aid and founded local NGOs to streamline and progressive projects by human resources development, and socio-economic development plan. Otherwise, Cambodia still confronted with many prob-lems as various observers have categorized Cambodia in authoritarianism by individual power and everything based on one person, GDP down in 1997, unemployment rate per cap-ita income, infant mortality rate high with poor health system, natural disaster, corruption, factionalism. Chapter V: Conclusion and Challenges Cambodia’s reconstruction and reform efforts have spanned almost three decades. Beginning after the 1975 – 79 Khmer Rouge period, early efforts were beset by ongoing internal tension civil unrest that persisted until 1998. Within three decades 1960s – 1990s, Cambodia has experienced adverse effects from heightened risk of social unrest come through with political instability and civil war. According to assessment through six regimes transition in Cambo-dia, the only regime more endangered is Democratic Kampuchea or it’s been well known as Communist guerrilla Khmer Rouge regime in between 1975 – 1985; this regime led Cambo-dian people begun to experiences of tyranny and barbarism. From the various scholars ob-served that the Democratic Kampuchean regime has been labelled Marxist-Leninist, Maoist, peasantpopulist, national chauvinist and even fascist. After Khmer Rouge captured Phnom Penh in April 17, 1975 about 2 million people were evacuated from the city to undertake ag-riculture. The goal was not to destroy but to transmute as one of the prominent Khmer Rouge leaders Ieng Sary proclaimed in 1977 that what we are trying to bring about has never oc-curred before. The city had no longer existed anymore, not even the provincial centre. The town centres had been in rural area where peasant farmers worked to death on serving the Khmer Rouge or Angkar. The whole population was founding a force for growing the agri-cultural production. “Maoism, there are grounds for comparing the agriculture policies of Mao’s China and Khmer Rouge’s Cambodia. It may be significant that the Pol Pot group called its agriculture policy the Super Great Leap Forward, a clear linguistic borrowing from Mao’s Great Leap Forward campaign of 1958 to 1960. It is doubtless significant that Pol Pot spent some years in China while Mao was still the self-proclaimed leader of third-world revolutionary move-ments. Although it is still not clear what transpired during Pol Pot’s time in China, the ideological influence of Mao and the Gang of Four (Saloth Sar or Pol Pot, Son Seun, Khieu Samphan, and Ieng Sary) became manifest in Cambodia after 1975.” (Kate Frieson, 1988) The policy of pernicious culture, the xenophobia or more precisely racism against Vietnam-ese was firmly 35

inculcated in the Khmer Rouge mind. Their anti-Vietnamese attitude had as starting point the thirst of revenge to the Vietnamese invasion over Cambodian territories. Along with the Khmer state at that time, broke off diplomatic relations with Vietnam and declared in 1978 that the number one enemy is Vietnam. Chauvinist refers to an identity with and loyalty to nation which villagers frequently used the phrases “We Khmer” to speak of Cambodia as a territorial nation and Cambodians as an ethnic group. If one understands that the State is grounded on its sublime power, protected and organized, if furthermore, it guarantees against external and internal perils, its own security, it will dis-pose to that effect. Then the Khmer Rouge will have in their State a sacred power enabling them to quell all opponents who would be susceptible to brew a plot against them. Otherwise, far from assuring security and general interest of the people, the Khmer Rouge only guaran-tees their own safety, their own security and their existence by using means of absolute power. The entire matters of Khmer Rouge State is arousing particular interests of a group of communists who set themselves at all cost to secure a lasting power by tearful of insurgents, pro-democratic revolts, systematically organize painful ragging against people. The Khmer Rouge leaders are the true masters – creators of Cambodian holocaust. The Cambodian economy was facing problems after a robust start, likewise, the economic situation in DK regime believes in their own system and every exports, trade, tourist, foreign investments were becoming weakened that Cambodia would experience the strongest decline in GDP growth out of any country within the East Asian and Pacific bloc. However, Cambodian peo-ple had confronted colonial with French was coming by spreading out the power come through with Indochina; they had proclaimed Cambodia to be defended under French protectorate treaty with King Norodom since 1863. The French government dominated both politi-cal and financial scale. Under pressure from French government, social movement has be-come fundamentally demand for independent. The movement had risked Cambodian people’s life due to French’s hegemony while political, finance and economic clout was within the hand of French representatives. However, the French prestige was become weakness by 1941 world war two, with two reasonable according to Nazi Germany and the menace of Japan increased in Indochina under Vichy treaty with Germany. Therefore, the political posture was changed, however, French representatives still in Cambodia with common political fraction. Japanese colonial was settled down after Japan finally surrendered to the United States in 1945. French retuned with new infrastructure that Cambodia’s autonomy within French Un-ion under Franco-Cambodian committees according to modus vivendi signed in January 1946. The new system has brought Cambodian’s political context changes through the framework of new government institute, election law and constitutional were devised by joint Franco-Cambodian committee. I have presumed that in the period of colonial Cambodia po-litical economy was extremely following a pattern of French assistance. The first election of Cambodia’s National Assembly had appeared in 1947 after the new political system was promulgated. The election resulted with majority to Democrat party 54 seats out of total of 78 at that time. The Independence Day has finally granted to Cambodia in November 1953. Cambodia during the period of 1960s, Sangkum Reastr Niyum regime was founded which specified to People Socialist under Sihanouk’s leadership. However, the most impressive during Shanouk’s hegemony was his prestige was dramatically increased under the name of “Father of Independence” and He was the chief of instrument for creating and maintaining national unity. 36

Sihanouk’s party has won every election and begun to exploit fully the institu-tions of direct democracy which he has created as a part of his design to involve the people directly in politics. “Antonio Gramsci's Quaderni del Carcere contains a novel theory of poli-tics whose central concept is that of hegemony. The importance of this concept for political activity lies in its having placed on the agenda the concept of democracy and the possibility of a democratic road to socialism. Although the political importance of Gramsci as a critic of economism and a precursor of democratic socialism is generally accepted, the theoretical approach to his thought is by no means clear.” (Esteve Morera, 1990) Cambodian economy has relied on foreign policy, however, the most significant affected was Vietnam War and internal to cause trouble. France, United States, China, North Vietnam, South Vietnam, and Thailand were the key of contribution and development of Cambodia. Sihanouk’s hegemony was overthrown by Lon Nol and Sirik Matak under coup d’état in and suffer violent coups, others could just see widespread demonstrations and protests in 1970. Cambodian government policy was quickly reversed with new regime founded Khmer Re-public. Cambodian economy was extremely confronted with the biggest crisis in 1970s. With this view, the political instability was sunk economic down and can devalue indefinitely. Noticeably, Lon Nol’s regime was underlying social inequalities and government corruption in Cambodia could be revealed as the country suffers from growing unemployment and drops in foreign investment. Lon Nol’s government was punching out in early 1975 come through with rapidly changed of regime from Khmer Republic to Democratic Kampuchea, particular escalated into communism by Khmer Rouge guerrilla. In decade of 1990s, after almost three decades of civil Cambodian government has inspired their works to greater efforts for country rehabilitation through all sectors, especially poverty alleviation that come through with discourse on poverty reduction strategy paper by listening and involving attentively from various donors international and numerous NGOs both local and international. The poverty in Cambodia has been overwhelming by the result of 36 percent according to Cambodia Socio-Economic Survey (CSES 1999). After the signing of the Paris Peace agreements in October 1991, democracy has been reversed in Cambodia and transition a market economy. The first national election had conducted by the presence of UNTAC in 1993, as the result of power sharing government comprising of three party CPP and FUNCIPEC that led to the appointment of two Prime ministers Prince Ranariddh (FUN-CIPEC) and Hun Sen (CPP). The new coalition government had issued the policy of poverty alleviation which aligns economic and strengthening the education sector. Since the early 1980s, teacher training and in particular in service training has been regarded as critical role for the qualitative improvement of the education sector. In the early 1990s, major multilateral investors in education, namely the World Bank and Asian Development Bank, have also ar-gued that strengthening the education and health sectors is a necessary precursor for strength-ening developing economies. International interest in the restoration of the education sector has been significant. However, the system is riddled with problems restraining reconstruc-tion. The consolidation in between multi parties and coalition government through democracy will be the most important areas for community aid for the period of 1990s. The new coalition government had given the appearance of not being process in 1997 due to arms clash cause problem between FUNCIPEC and CPP. Likewise, the economic was halted and had dropped down respectively. The event led international community to rethink and con-cerned the projects. This image made very depress to the new symbol of democracy in Cam-bodia. The second election has come through in 1998 seal 37

with freshman role of opposition party Sam Rainy. However, the result of 1998 election had been denied by SRP and FUNCI-PEC with which pushed to form a huge amount of demonstration strike in front of National Assembly. The politic fracture has facilitated base on common politic program that Hun Sen was nominated as Prime minister, come with Ranariddh was Chair man of National Assem-bly, sealing with SRP had boycotted to join coalition government. Since 1998, Cambodia has seemly switched to the new political platform of between democracy factors included authoritarianism behind the back because since then CPP has won every election until 2008 under leadership of Prime Minister Hun Sen and all of the powers have potentially identified by him. Hun Sen’s government began to develop poverty alleviation project that poverty lies in changing the model of development from traditional economic growth to open a free market, basic education and health for all, land reform, equitable growth and good governance. The government of Cambodia still put the poverty eradication in front due to the tragic events between 1970s and the long-term of civil violence structure. The low income tied to high level of illiteracy particularly for people in rural area. Economic reforms have insisted to be done that spherically in economic and public financial reform, strengthening governance, strengthening banking and financial systems, fiscal reform, improving state property management, macroeconomic stability, increasing investment, social infrastructure sectors, promoting private sector and human resources development following the triangular strategy. Otherwise, socioeconomic development, fair and effective land management and oil exploration have been critical topics for economic flourish at that time. This whole thesis has attempted to highlight the cause of indicators used for political instability as follows: in-come, inequality, date of independence, corruption, ethnic fragmentation, trust in public insti-tutions, discrimination against minorities, history of instability, risk of labour unrest, infant mortality rate, geographical position, regime type, factionalism, GDP growth, unemployment rate per capita income, especially the role of Norodom Sihanouk that played a very important in political arena, economic participation and social movement in 1960s.

38

Appendix A simplified genealogy of the Cambodian Royal Family showing Prince Sihanouk’s decent Ang Duong (died 1860)
Norodom (1836-1940) Sisowath (1840-1927) Sutharot (1872-1945) Monivong (1876-1941) Suramarit (1896- 1960) Kossamak (b. 1904) Monireth (1876-1941) M Sihanouk (b. 1922) Note:

Female

figures

are

in

italics

Bibliography Gottesman, Evan R. 2004, Cambodia After the Khmer Rouge; published in Silkworm Books 104/5 Chiang Mai – Hot Road, Suthep, Chiang Mai 50200, Thailand International Monetary Fund, Cambodia Rebuilding for a Challenging Future, 2006, Publica-tion service 700 19th Street, NW, Washington, DC 20431, USA David Chandler, 2000, A History of Cambodia; first published in the United States by Westview Press: A Subsidiary of Perseus Books L.L.C, published in Thailand in 2003 by Silkworm Books, 104/5 Chiang Mai 50200 Elsenhans, Hartmut, 2000, “Political Economy or Economic Politics? The Prospects of Civil Society in an Era of Globalization.” Indian Journal of Public Administration. Kim Hourn, K. 2002, Cambodia’s Foreign Policy and ASEAN, From Nonalignment To Engagement; Published by Cambodian Institute for Cooperation and Peace. Osborne, Milton E, 1994, Sihanouk: Prince of Light, Prince of Darkness; North America, Hawaii 96822: University of Hawaii Press 2840 Kolowalu Street; Australia, NSW 2065: Allen & Unwin Pty Ltd 9 Atchison Street Philip Short, 2004, The History of a Nightmare; Typeset in Monotype Bembo by Servis Filmsetting Ltd, Manchester, Printed and bound in Great Britain by Clays Ltd, St Ives plc; John Murray (Publisher), 338 Euston Road London NW 1 3BH Electronic Sources: Bernard K. Gordon and Kathryn Young, 1970, Trusted archives for scholarship. Cambodia: Following the Leader? Asian Survey, Vol. 10, No. 2. Retrieved November, 23, 2008.

From http://www.jstor.org/stable/2642250 Donald Kirk, 1971, Trusted archives for scholarship. Cambodia's Economic Crisis, Asian Survey, Vol. 11, No. 3. Retrieved October, 07, 2008. From http://www.jstor.org/stable/3024657 Donald Kirk, 1974, Trusted archives for scholarship. Cambodia 1973: Year of the 'Bomb Halt', Asian Survey, Vol. 14, No. 1. Retrieved November, 23, 2008 from: http://www.jstor.org/stable/2642841 Douglas Pike, 1989, Trusted archives for scholarship. The Cambodian Peace Process: Summer of 1989, Asian Survey, Vol. 29, No. 9. Re-trieved November, 21, 2008. From: http://www.jstor.org/stable/2644830 Esteve Morera, 1990, Trusted archives for scholarship.

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Gramsci and Democracy, Canadian Journal of Political Science / Revue canadienne de science politique, Vol. 23, No. 1. Retrieved December, 18, 12, 2008. From: http://www.jstor.org/stable/3228219 Joseph R. Pouvatchy, 1986, Trusted archives for scholarship. Cambodian-Vietnamese Relations, Asian Survey, Vol. 26, No. 4. Retrieved Novem-ber, 23, 2008 from: http://www.jstor.org/stable/2644157 John R. 1935, Trusted archives for scholarship. Communism and Collective Democracy, The American Economic Review, Vol. 25, No. 2. Ritrieved January, 31, 2009. From: http://www.jstor.org/stable/1802427 George S. Siampos, 1970, Trusted archives for scholarship. The Population of Cambodia 1945-1980, The Milbank Memorial Fund Quarterly, Vol. 48, No. 3. Retrieved November, 11, 2008. From http://www.jstor.org/stable/3349242 Kate Frieson, 1988, Trusted archives for scholarship. The Political Nature of Democratic Kampuchea, Pacific Affairs University of British Columbia, Vol. 61, No. 3. Retrieved, September, 24, 2008 From: http://www.jstor.org/stable/2760458 Leonard R., Eugene W., and Harvey F., 1975, Trusted archives for scholarship. Students and the Politics of Reality, Sociology of Education, Vol. 48, No. 4. Re-trieved November, 24, 2008. From: http://www.jstor.org/stable/2112262 Ozay Mehmet, 1997, Trusted archives for scholarship. Development in a Wartorn Society: What Next in Cambodia? Third World Quarterly, Vol. 18, No. 4. Retrieved November, 21, 2008. From: http://www.jstor.org/stable/3993211 Peter A. Poole, 1972, Trusted archives for scholarship. Cambodia: The Cost of Survival, Asian Survey, Vol. 12, No. 2. Retrieved November, 11, 2008. From http://www.jstor.org/stable/2643076 Smith Roger, M. 1967, Trusted archives for scholarship. Prince Norodom Sihanouk of Cambodia, Asian Survey, Vol. 7, No. 6. Retrieved December, 06, 2008. From http://www.jstor.org/stable/2642610 Stephen J. Duggan, 1997, Trusted archives for scholarship. The Role of International Organisations in the Financing of Higher Education in Cambodia, Higher Education, Vol. 34, No. 1. Retrieved November, 21, 2008. From: http://www.jstor.org/stable/3448165 Stephen J. Duggan, 1996, Trusted archives for scholarship. Education, Teacher Training and Prospects for Economic Recovery in Cambodia Retrieved November, 21, 2008. From: http://www.jstor.org/stable/3099812 Scott Luftglass, 2004, Trusted archives for scholarship. Crossroads in Cambodia: The United Nation's Responsibility to Withdraw Involve-ment from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge, Virginia Law Review, Vol. 90, No. 3. Retrieved November, 21, 2008 From: http://www.jstor.org/stable/3202401 Sorpong Peou, 1998, Trusted archives for scholarship. Cambodia in 1997: Back to Square One? Asian Survey, Vol. 38, No. 1. Retrieved November, 11, 2008 http://www.jstor.org/stable/2645469 Thompson, V. and Richard, A. 1953, Trusted archives for scholarship. Cambodia Moves toward Independence, Eastern Survey, vol. 22, No.9. Retrieved November, 21, 2008. From http://www.jstor.org/stable/3023994 The EC-Cambodia: Country Strategy Paper 2000 – 2003. Retrieved June, 27, 2007 http://ec.europa.eu/external_relations/cambodia/csp/02_06_en.pdf 40

A STUDY OF CHANGES IN THE CIVIL SOCIETY IN THAILAND AND SOUTH KOREA--FOCUSED ON THE POST-DICTATORSHIP PERIOD

Thesis submitted in partial fulfillment of the requirements for a M.A Degree of Inter-Asia NGO Studies By
BIDHAYAK DAS (INDIA) SUNGKONGHOE UNIVERSITY THE GRADUATE SCHOOL OF NGO STUDIES MASTERS OF ARTS IN INTER-ASIA NGO STUDIES (MAINS)-(2008-2009) In May 2009

Date Approved: May 29, 2009 Supervisor: Hee Yeon, CHO Examiner: Dae Hoon, LEE Examiner: Sung Woo, HUR

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Contents: Acknowledgement Abstract Abbreviations Chapter I 1. Introduction: Background Civil Society in Thailand Civil Society in South Korea Purpose and use of Research Methodology a. Cases for Research b. Survey of Literature and other forms of documentation c. Interview and Focus Group Discussions Theoretical Framework Analysis Overview of Chapters. Chapter 2. 2. Historical Sociology: Ideological differentiation

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2.1 Historical backdrop

2.2 Differentiation of Social Movements in a more historical sociology perspective
2.3 Suppression of the Left and the anti-communist regimentation order: Chapter 3. 3. Ideological Characterization and Popular Grassroots movements 3.1 Background 3.2 Ideological Characterization of movements in Thailand and South Korea: 3.3 Problematising Grassroots Movements in Thailand and South Korea: 3.4 Conclusion Chapter 4. 4. Emergence of new civil society movements in an Asian democratization context 4.1 Background: 4.2 Establishment of Civic Organisations and growth of new social movements: 4.2.1 Political Character: Democratic Consolidation: 4.2.2 Problematizing civil society movements in Thailand and South Korea:

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4.3 Conclusion Chapter 5. 5.1 Recommendations 5.2 Conclusion References Annexure: Questionnaire Maps

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ABSTRACT Contribution of the public masses to democratization has been a subject of considerable interest in Asia mainly owing to the rapid pace of the process of democratic consolidation following the end of dictatorships. In these emerging democracies, opportunities have opened up for the masses to participate in the political life of the nation which also created more democratic open spaces for civil society groups to diversify along different ideological patterns. This study aims is to examine the process of change in social movements in the wake of democratization in two fledgling democracies of Asia that is Thailand and South Korea while keeping democratization as the backdrop. Further the study will provide a critical viewpoint of the process that triggered the process of diversification in civil society groups during the post dictatorship period. Social Movements have played a key role in creating the much needed space for democratization in both these countries but did not remain static after democratization with some retaining their old radical ideological orientation or what is also popularly termed as progressive movements and others adopting a more moderate approach called new civic movements. Essentially the study will attempt to show how civil societies evolved as legitimate non-state public institutions to challenge the state’s undemocratic policies and the factors that induced political pluralism and opened up or reduced the democratic space in the post-dictatorship and military led authoritarian regime periods.

Keywords: Civil Society, Democratization, Dictatorship, Democratic Consolidation, Progressive Movements, New Social Movements.

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Chapter I 1. Introduction: The growth and political activity of civil society in Asia has been associated with important challenges against different kinds of regimes or governments and with fundamental political change that has taken place for the last three decades. This correlation is important as it provides ample scope to theorize about the capacity for political influence among associational groups and civil society organizations that belong to the non-state public domain. This research seeks to examine the dynamics of change that has taken place in the civil society in South Korea and Thailand, with a clear focus on Social Movements as factors that have facilitated effective political reforms. In other words, to show how civil society has been playing a prominent role in the process of Democratic Consolidation in these countries. Democratization in different parts of the world during the 1980s brought with it varied geopolitical and economic change which had a telling impact on the character of civil society resulting in its increasing recognition as a political force. In Thailand and South Korea for example the process democratization would not have been possible without the participation of civil society. The democratization process in these countries witnessed vital changes in the character of civil society, which has often been described as a key element in the successful transition towards democracy. There is no denying that in both these countries the role of the elites is extremely significant in advancing the process of democratization, but more importantly, the presence of civil society as radical or liberal forces helped deepen the process of democratic consolidation. In fact a key focus of this study is to undertake a systematic exercise to firstly examine existence of civil society under different situations during the pre and post dictatorship period and then

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delve into the causes that led to a process of ideological differentiation within civil society groups. However, a substantial portion of the study would attempt to understand the process of change and how it impacted the process of democratic consolidation. The changes that took place within the civil society is said to have resulted mainly due to the political and economic conditions that prevailed during different periods of time. For instance in Thailand the economic success of the 1980s and early 1990s is taken as a key factor that strengthened the middle class and led to demands for more openness, political liberalization and democratization. Several issue-oriented organizations and environmental groups sprang up to stimulate democratic aspirations among the urban middle class and to fight for democratization. (Bunbongkan, 1999:138). The economic growth also prompted civil society groups to change their ideological positions from being extremely radical to liberal and more market friendly. In South Korea while student and workers played a crucial role in fostering democratic transition during the latter part of the 1980s, the role played by an otherwise reserved middle class during the post-dictatorship period created sufficient conditions for opening up the democratic spaces and allowing for divergence of civil society movements. According to some authors the movements for democratization created a restructuring of sorts that changed the complexion of civil society towards a more self-empowering position and brought about drastic mindset change. This attitudinal change is believed to have spread across different dimensions of the civil society through class, occupational groups, minority groups and so on. (Cho, H. 2005: 7) The changes that civil society groups underwent while still continuing to drive the agenda of democratic consolidation perhaps prompted many scholars and activists to advocate the importance of civil society and also perhaps the changes in their ideological character which

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they describe as “crucial for improving the quality of governance, strengthening people power, enabling development, and above all, promoting democratization and strengthening democracy,” (Lee, H.G. 2004: 1). However, the emergence of civil society as a concept, especially in late democratizing countries like Thailand and South Korea has witnessed a wide array of debates and opinions. Though civil society has been accepted as an agent for political change in many developing societies in Asia, its actual characteristic and specific meaning is contested. Its definition has also varied according to the number of authors and scholars that may exist. The concept has descriptive as well as normative dimensions, and thus its usage is subject to intense and endless debate. Two attractive features of the concept that make it popular also contribute to making its usage more contentious. One, the civil society concept is complex and open in character and as such can be readily modified so as to be applicable to a broad variety of intentions and situations. The other is that the concept has considerable appeal because it “embodies for many an ethical ideal of a social order, one that, if not overcomes, at least harmonizes the conflicting demands of individual interest and social good.” (Seligman 1992, p. x) 1.1 Background Many scholars and researchers believe that civil society in South Korea existed much before the great democratic struggle of 1987. They trace the existence of a civil society which they categorize as a set of independent associations (both civic and interest based) and movement organizations pursuing common interests and values vis-à-vis the state and economy (Diamond,

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1994: 5)1. In other words it can be said that civil society and social movements are deeply interwoven, so much so that many a time very little difference seems to exist between the two. In Thailand too the social movements that were largely instrumental in pushing forward the agenda for democratization, are often used as an operational definition for Civil Society, which can also be regarded as an institutional approach to study civil society. Taking Thailand’s political reform and civil society as a case author Daniel Arghiros argues that growth of civil society is thought to have strengthened and deepened democracy. He says that “opening up opportunities for the masses to participate in the political life of the nation is thought to support the growth of civil society,” (Arghiros, 2002: 224). This study will essentially study the different characteristics of civil society in South Korea and Thailand and how it has evolved as a force, both in the conservative and progressive realms over a period of time. While knowing fully well that the conditions which prevail in South Korea is much different from that in Thailand, the study has been conceptualized in a way to bring out the different characteristics of civil society under similar and contrasting situations so that at the end it is possible to evaluate whether civil society does or does not play the role of an agent for inducing important changes in a growing democracy. In comparison to South Korea where the emergence of Civil Society has been traced to as far back as the late nineteenth century when popular movements were started by newly formed civic associations against a supposedly weakening Chosun Dynasty (Seong, 2000:87), in Thailand

1

See Larry Diamond, “Rethinking Civil Society: Toward Democratic Consolidation,” Journal of Democracy 5 (1994): 5. According to him, civil society is defined as a realm of organized social life that is voluntary, self-generating, (largely) self-supporting, autonomous from the state, and bound by a legal order or set of shared rules.” With this definition, he emphasizes the following aspects of civil society: citizens’ collective action in the public sphere, its intermediary role between the private sphere and the state, and restriction and legitimation of the state power. However, it needs to be noted that civil society does not exist only in relation with the state but also in relation with the economy. Civil society, pursuing autonomy and self-protection, tries to protect collective values and interests from the encroaching market that stimulates competition among people and hence fragments social solidarity. Thus, Jean L Cohen and Andrew Arato stress self-limitation and functional autonomy of the three separate spheres of the state, economy, and civil society. See Cohen and Arato, Civil Society and Political theory (Cambridge, MA:MIT, 1992), pp. 15-18.

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civil society grew out of the concept of Pracha Sangkhom which literally means the society of the people. This concept too can be traced back very far in history. Unlike in Korea civil society or Pracha Sangkhom does not signify state market and society as separate entities. The concept of Pracha Sangkhom is contested by authors like Pasuk Pongpaichit (1999) who says that the approach is largely urban with roots in the modernist middle class (Pasuk, 2000). She says that this approach has its faith in industrialization, modernization, and liberal representative democracy. It has been argued by authors like Kyoung-Ryung Seong that the key features that marked the evolution of civil society in South Korea was its growth as independent civil associations to either protect people from invading foreign power (Seong 2000:136) against state power like that of Syng Man’s Rhee’s personalist rule and against military dictatorships under Park Chung Hee and Chun Doo Hwan. But even while tracing the evolution of civil society what needs to considered, as mentioned earlier, that the concept of civil society both in a very general context as well as when applied to Thailand and South Korea has been interpreted differently by different authors and therefore continues to be contested. The concept of civil society has been surrounded by some amount of ambiguity and “the denotations of ‘civil society’ have undergone significant changes over time and in different national contexts.” (Lehmbruch, 2001:230). In the early 1900’s, Friedrich Hegel defined civil society as “the intermediate realm between the family and the state,” wherein civil society was defined as a form of freedom, where the individual becomes a public person. In his definition Hegel was more careful while describing the “self-organising and self-regulatory capacity” of civil society which perhaps made him to suggest that civil society needs to be regulated by the state. He said though the state and civil society

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depended on each other, yet their relation is full of tensions and therefore requires a complicated balancing act. (reference) Italian scholar Antonio Gramsci incorporates the idea of political liberalism in civil society to underscore the significance of the broader participation of people and members of the public, in politics. His definition incorporated not just the relationship between state and family, but included culture, ideology and political debate. (Reference). Gramsci’s definition of civil society assumes great significance from regarding its role in impacting political changes. Civil Society from the point of view of Jurgen Habermas, “is made up of more or less spontaneously created associations, organisations and movements, which find, take up, condense and amplify the resonance of social problems in private life, and pass it on to the political realm or public sphere". This theory in essence will form the basis of the argument in this analysis taking social movements as an indicator of quantification of civil society. These would be represented by voluntary associations, and non-governmental or non-profit organisations, social movements, networks and informal groups. These organisations make up the infrastructure of civil society; they are the vehicles and forums for social participation, "voice" processes, the expression of values and preferences, and service provision. Almost similar views can be found in how Larry Diamond defines civil society as “the realm of organized social life that is open, voluntary, bound by a legal order or set of shared rules.” (Diamond, op. cit., p. 221) In fact in the modern political science civil society is often identified as “an intermediary between the private sector and the state.” (Bunbongkan, 1999:137). In this way civil society is distinguished from the state and economic society, which includes profit-making enterprises. (Ibid)

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Today, most scholars regard civil society as being composed of non-economic and nongovernmental organizations operating to serve the needs and interests of society. The purpose of this study however is not to capture and measure civil society either as a totality or in all its aspects but to simply examine its role in the process of democratization and the changes that underwent consolidating the process. 1.4. Purpose and use of Research: The primary aim of this research is to examine the changes that have taken place amongst civil society organization following the ouster of undemocratic regimes and how these developments have impacted political changes or political reforms. This research is a humble extension of the attempt by researchers and scholars all over the world, especially Asia to examine the growth of civil society in a very Asian context, taking South Korea and Thailand as two contrasting cases where non-state actors have played a crucial role in initiating or preventing political change. Using different indicators, such as voluntary associations, and non-governmental or non-profit organisations, social movements, networks and informal groups, essentially the study will attempt to show how civil societies evolved as legitimate non-state public institutions to challenge the state’s undemocratic policies and the factors that induced political pluralism and opened up or reduced the democratic space in the post-dictatorship and military led authoritarian regime periods. In effect using social movements for democratization as indicators the study will examine the changes in civil society by analyzing differentiation in ideological shift between movements in the pre and post dictatorship periods. Evolution of new social movements will be a crucial part of the study to examine the ideological positioning of movements in the present day and whether these changes have had any impact in the process of democratic consolidation.

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The research could be used, firstly, to bring out the similarities as well the contrasts in the nature of civil society changes that have taken place over a period of 20 years. Secondly it would try to provide some useful insight into the progression of two extremely diverse societies emerging out of military backed undemocratic regimes besides providing ample opportunity to understand civil society from an institutional study approach while avoiding to get into the intellectual trap of who does or who does not constitute the concept of civil society. 1.5. Methodology: The approach that has been adopted is essentially a qualitative analysis based on a comparative study. Analysis of primary and secondary data forms the basis of the arguments and analysis to problematize civil society and arrive at a conclusion. Different civil society organizations that were part of social movements in South Korea and Thailand are used as cases to show the changes that they underwent in their ideological orientation vis-à-vis their role as agents of democratization.

a. Cases for Research The case studies broadly are a few new civic movement or citizens movements (Simin Undong) and Progressive groups in South Korea and a few groups in Thailand which have taken divergent paths from their earlier radical positions. These include the KFEM and Green Korea as citizen movement groups and the labour movements as a popular or progressive movements while in Thailand the focus primarily will be on Women’s and Consumer’s groups, election monitoring agencies such as Poll-Watch and Asian Network for Free Elections (ANFREL) which are regarded as the ‘new’ citizens’ movement groups and the Assembly of the Poor (AOP), which is closely associated with Progressive Grassroots Movements.

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The reason for choosing these groups is that I have been personally associated with ANFREL as an international election observer during which time I have observed elections in Thailand and also studied Government formation. Besides this as a Journalist I have visited Thailand to study the socio-political developments taking place in that country since the 2006 coup detat. My association with the May 18 Memorial Foundation in Gwangju as a Folk School Participant opened up my interest in Korean Social Movement and democratic uprisings which was advanced a great deal during my one year sojourn in Seoul as student of MAINS at the Sungkonghoe University. I wanted to utilize this opening and convert the opportunity into an academic exercise that would provide an indepth understanding of the increasing importance of civil society not just as a force that has the potential to induce political transformation, but one that could also be viewed as an independent sphere of self-governance.

b. Survey of literature and other forms of documentation: Available literature on the subject was reviewed extensively during the last six months or so. These included articles published in well known academic research journals, local research publications, books, periodicals, magazines, newspapers, reports of organizations and in-house newsletters, previous research materials on the subject and all other forms of relevant documents pertaining to the study.

c. Interviews and Focus Group Discussions: Interviews and Focus Groups Discussions (FGDs) were organized with civil society organizations members—Chairperson, General Secretary, Managers and members—in South Korea and

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Thailand both on an one to one basis and Online. A couple of phone in interviews were also used to collect comments and data from the different organizations and individuals. Interviewees also included academicians, intellectuals and groups actively participating in political activities but outside the domain of the state. The number of persons interviewed included on an average three from each organization and also about 10 individuals representing different fields of activities in the civil society context such as professors of universities, activists, media persons, teachers, NGO workers, students, women’s organizations activist and farmers. The questions for interviews (see Annexure) were pre-set and open-ended and framed considering the timeline for preparing the thesis. The interviews were conducted essentially to generate candid viewpoints on the changing role among individuals and groups in a more sociopolitical context. Though a wide survey was not possible, but given the experience and important positions that the interviewees occupy in the civil society space, it perhaps has provided the required insight as demanded by this study to justify the subject matter of research.

1.6. Theoretical Framework Analysis: A number of frame work have already been developed by numerous authors and scholars to show the political significance of civil society organizations in the event of the ouster of dictatorships and military led authoritarian regimes in South Korea and Thailand. In this study the theoretical consideration will be based on a multi-dimensional differentiation approach to show the different kinds of political and sociological changes that occur during democratization.

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To examine the changes in civil society organizations by using social movements as a viable indicator, in the later phase of democratization I would like to borrow the conceptual framework of the “multi-dimensional differentiation,” approach as articulated by Professor Cho Hee Yeon, in his work on civil society and social movements in the post dictatorship context in South Korea. Though the concept has been applied in a very South Korean context, I would like to make an attempt to expand the idea and use it to draw a comparison between Thailand and South Korea. Essentially, I would like to study the following characteristics of social movements to provide a discursive analysis regarding changes in civil society and its impact on the process of democratic consolidation: 1. Historical Sociology: Ideological differentiation 2. Ideological Characterization: i) ii) Popular/Progressive Civil Society Movements New Civil Society Movements

3. Democratic Consolidation: The multi-dimensional approach has been depicted in the figure below: Figure 1: Dimensions of changes in social movements in democratization Dimensions Categories conservative, progressive orientation Content liberal,Diverse ideological differences show up among social movements in the democratization: diverse in terms of ofideological content. And different orientations, depending

Ideological character

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movements

on issues.

system-centered and There are movements aimed to change in politicalof life-world-centered bureaucratic and economic systems, on the one hand, and movements movements the life-world, on the other hand. Objects There is difference in movements in terms of attitude to institutional Political character oriented politics- institutional politics. There are institutional politics-oriented de-movement to enter it and change it, on the one hand, and

and

institutional

politics- anti-institutional politics movement, on the other hand,

oriented movements which has orientation to keep away from the institutional politics and de-link from it. national Issues and sub-There are national and sub-national issues, on the one

national issues and hand, and trans-national issues, on the other hand. Efforts trans-national issues for confrontation with trans-national issues increase.

Source: Cho Hee Yeon, April 15, 2005 Notwithstanding the fact this framework is much broader from the one adopted for this study, yet the end objective is almost the same, which is to provide an understanding of the differentiation in civil society divergence, especially the emergence of new social movements and its impact on socio-political changes under different conditions. Advancing the contemporary relevance of Habermas, ‘New Social Movements’ theory, Gemma Edwards argues that the ‘new’ movements of the post-60s era (such as Women’s Youth, Alternative and Ecology Movements) form the raw materials of the public sphere. According to her new social movements during the struggle over lifestyle and identity, respond to questions

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about the legitimacy and accountability of governments, and in turn, raise them. (Edwards, 2004: 113) I believe that the newness of the movements in the present context assumes more significance, and agree with what Habermas says about why the newness of the movements should be based on the conflicts around which they organize. (Ibid. 113). The conditions in advanced capitalist societies such as Thailand and South Korea are pretty much similar as civil society organizations which were involved in democratic struggles seem to be shifting away from the old politics of capital-labour struggles and focusing more on issues pertaining to the ‘Life World.’ The other important aspect is the ‘colonisation’ of the Life-World which Habermas argues as becoming more central to social movements and rejection of it by civil society organizations by constructing a relatively ‘genuine public sphere,’ for opposing the imposing agendas of the state and the economy. (Ibid. 113) A similar rationale is expressed by Cho Hee Yeon in that he underscores the need to move beyond the question of whether social movements can keep their former dynamics or not because “the democratization, which social movements have fought for, brings with it a new context in which they should be accustomed to and subsequently changed their movement strategies.” (Cho, H. 2005). This would imply that the popular sentiments and dynamics of social movements need to be clearly understood. In a study on urban social movements in Chile and Spain P. L. Hipsher explains the changing dynamics of social movements by arguing that democratization phase following post authoritarian rule creates different kinds of situations. On the one hand it provides space for protests by civil society groups but on the other it also limits their radical and insurgent behavior making them discard a more confrontationist strategy. This is believed to be an outcome of a

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lurking threat of authoritarian aggression in the minds of political leaders and radical forces. (Hipsher, P.L., 1996: 273). Therefore, it can be argued that this divergence of civil society organization in the social movement’s arena is a fit case for a discursive analysis using a ‘multi-dimensional approach,’ theory. This could also be described as one way of understanding how and why civil society had differentiated into different areas following their emergence as a coherent force under the sole agenda of ousting an undemocratic regime.

1.7. Overview of Chapters: Overview of Chapter 2 Chapter 2 essentially deals with differentiation in social movements in civil society form a historical sociology viewpoint. In essence it attempts to locate the eventual separation of social movements in a more historical context, by arguing that there is need for understanding the division of ideologies and conflict between the Left and the Right both before and after the breakdown of dictatorships. Overview of Chapter 3: The above papers forms the basis for explaining the nature of the grassroots people’s movements In Chapter 3, the primary focus is on the divergent paths which radical civil society actors took in their attempt to retain the radical face of activism or oppositional stand against the state. The chapter attempts to underscore the importance of the roles played by grassroots people’s

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movement led by labour and peasants groups in building solidarity across various groups and associations to oppose repressive and top down undemocratic policies of both state and capital. At the same time the chapter also attempts to problematize the grassroots peoples’ movements to show how these movements ignored broader community issues and refused to look beyond the realms of their own concerns that led to the initiation of the citizen’s movements. Overview of Chapter 4: The above mentioned papers capture some of the critical aspects of divergence that civil society organizations have undergone, which are reflected in Chapter 4 of this study. Chapter 4 essentially is a discursive way of analysis of the emergence of civil society organizations in a newer socio-political context. Besides it is also an attempt to provide a clearer picture of the compulsions or new opportunities that led to a differentiation in social movements in the post dictatorship period in both Thailand and South Korea.

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Chapter 2: 2. Historical Sociology: Ideological differentiation 2.1 Historical backdrop: In the democratization of Asian countries, in particular, Thailand and South Korea, the role of civil society in different forms at different times was a key feature that resulted in the overthrow of dictatorships and installation of democracy, although sometimes very fragile and instable. However, a significant aspect that shaped the process of democratization in both Thailand and Korea was the emergence of civil society in the form of student activists, intellectuals, labour, religious groups and the middle class to challenge military backed undemocratic regimes that suppressed all forms of human rights and civil liberties on the pretext of fighting communist forces. The struggle for democratization in Thailand and Korea dates back to the days of colonial rule, though the former holds a rare distinction of being one of the few Asian countries that escaped virtual colonisation. Further because of the pro-US stand which Thailand had taken during the 1970s it was regarded by radicalised sections as a semi-feudal half colony of the United States which led to the belief that the only way forward was to launch a Maoist arms struggle in the countryside. In fact analysts studying emergence of civil society movements in the Asian democratization context have argued that ideological differentiation in civil society organizations in Asia, pertinently in Thailand and South Korea is rooted in a policy of anti communism regimentation of society.

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However, notwithstanding the repressive nature of the state that was aided by the US policy of anti-communism, social movements in civil society in both Thailand and South Korea grew from below, a constant feature of which were democratic struggles that were waged by students and labour movements throughout the 1970s through the 1980s and into the early 1990s. The primary concern was to establish a democratic regime. The rather forceful democratic struggle in these countries is said to have confounded analysts who saw monochrome military dictatorships and demobilized labor as the prevailing norm in the capitalist cold war states of Asia (Jim Glassman; Bae-Gyoon Park; Young-Jin Choi, 2008). Korea was witness to emergence of a strong labour movement in 1987, the year of the great democratic struggle. This process triggered off a series of events that resulted in formation of civilian governments that were keen to provide assistance and support to labour and popular organizations. Social changes in Thailand were no less eventful than in South Korea. In fact the struggle for democracy saw much more blood spill on the streets of Bangkok since the seventies through the eighties culminating in the 1992 Black May incident. In comparison to South Korea the Thai labour was not as strong, but it engaged in the democratic struggle and also aligned with the students to promote social insurgency which was ably supported by the emergence of other organizations that were involved in struggles for rural livelihoods as well as various forms of social and environmental issues. Most of these movements made a definitive impact on the social and political arenas. However, these social movements which had began to consolidate in different forms through the nineties and the turn of the millennium as new social movements and popular or grassroots movements have been on the downslide owing primarily to conflicting ideologies. However, there are a number of reasons which have been attributed to explain the decline of social

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movements in South Korea and Thailand by many authors, which will be subsequently analysed in this as well as the following chapters. This chapter will essentially attempt to locate the developments from a historical context to possibly provide a newer dimension to the debate on ideological differentiation of social movements. 2.2 Differentiation of Civil Society Orientation in a Historical Sociology Perspective: Those who have studied historical sociology2 have taken a slightly different approach in that they try to locate the eventual separation of social movements in a more historical context, by arguing that there is need for understanding the division of ideologies and conflict between the Left and the Right both before and after the breakdown of dictatorships. The division of ideology in terms of Left and Right made a decisive impact on the future of democratization and civil society’s role in this process. In the case of South Korea there are different explanations regarding the differentiation in ideological patterns following decolonization from Japanese imperialism. Cho Hee Yeon explains how a policy of ‘exclusion,’ ‘restriction’ and ‘transformism’ which were the basis of the state centric anti-communist ideologies made a difference in deciding the outcome of democratization, notwithstanding the fact that South Korean democracy emerged from below and was loaded with radical democracy ideas. (H. Cho, 1998: 149-150;2001, & 2002). In the case of Thailand the weakness of the Marxist or Communist ideology was mainly due to the fact that there was no mass mobilization in the struggle for national liberation. The process of an ‘anti-communist regimented society’3 had begun in earnest very early in history during the

2

The sociological study of the origins and development of societies and of other social phenomena that seeks underlying laws and principles. 3 The concept of anti-communist regimented society has been applied by Professor Cho Hee Yeon (Refer to Cho, Hee Yeon, Inter-Asia Cultural Studies Vol.1 No.3. Dec. 2000 The Structure of the South Korean

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early 1930s and was later augmented by the American policy of anti-communism in South East Asia in the 1970s. In this chapter the purpose is to firstly identify the commonalities in terms of historical origins of differentiation of ideologies within civil society in Thailand and South Korea, immaterial of the diverse changes that resulted from the democratic struggles since the 1970s through the 1980s. Secondly, the attempt is also to understand ideological differentiation from a historical context and help establish a possible linkage of the between the events that occurred in past with the present order of existence of social movements. Or in other words the changes that occurred place in social movements in the Thai and the Korean civil society during pre and post dictatorship periods. 2.3 Suppression of the Left and the anti-communist regimentation order: In both Thailand and South Korea, the approach of the ruling class, to purge communists, had unique similarities, in that to lay the foundation for the future of democratization without the Left. According to Giles (Ungpakorn, 2007: 84) the agenda of the ruling class to crush the Left has important consequences on the evolution of civil society post 1976. The outcome of the Thammasat University massacre which saw thousands of students going to the jungles to join the Communist Part of Thailand (will be henceforth referred to as CPT), could lead to a resurrection of the Left ideologies in which case the future of Thailand politics would perhaps have been different than its present free market neoliberalist and neoconservatist image as

Developmental Regime and Its Transformation---An Analysis of the Developmental Regime of Statist Mobilization and Authoritarian Integration in the Anticommunist Regimentation) in the context of South Korean Democratization. This concept has been used here to describe the process of ideological shift which was state led project using different apparatus both during pre-dictatorship and dictatorship periods.

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promoted by the ruling class. However several factors played a significant role in dismantling the CPT and communism ideologies with the government adopting a more political settlement approach in addition to use of force to tackle communist insurgency (Ibid.). The historical contextualization of post colonial Korea is a significant indicator that exemplifies how the anti-communist plank which was played up by the undemocratic authoritarian regimes to undermine the importance of radical democracy, which Seoungwan Lee links to the unique geopolitical situation of the Korean peninsula. He argues that the division of the Korean peninsula where the Cold War has been internalized and the real object of ‘anti-communism’North Korea as the enemy—coexist (Lee, Seoungwan. 2008:23). The state founding period perhaps laid the basis for the transformation of the movements in the later years, following democratization. This has been extensively explained by Lee who draws upon Gramscian concepts of ‘transformism; and ‘passive revolution’ to show popular consents legitimize ‘repression’ and why popular opposition is eased in terms of the logic of domination. (Ibid. 28) The Government’s policy to provide “amnesty” for those who had gone to the jungles to fight alongside the communists paid off, as at around the same time a split in ideology between the student activists and the Conservative CPT leaders was emerging. After a brief sojourn in the jungles the student activists deserted the CPT and returned which eventually brought about the collapse of the CPT. The anti-communist churning perhaps needs to be located in the cold war period when American hegemony in Asia, especially South East Asia played a crucial role in blocking the spread of communism or the ‘domino theory’ which was perceived as a threat by the US in the event of the growing power of the red army in China, growth of communists in Burma, North Korea and Vietnam and the open revolt by the Malayan communists. All these events, which

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was intensified by the seizure of power on January 1950 by Ho Chi Minh in Hanoi with support from Peking and Moscow, made the US align with Thailand which reciprocated by sending 4,000 troops and 40,000 tons of rice to aid the US during the outbreak of the Korean War. This was explained by the then Thailand Prime Minister Phibun as “by sending just a small number of troops as a token of our friendship, we will get various things in return,” (Fineman, 1997: 117). However, the US involvement in Thailand came with a cost, as the former announced that it would assist the Thai military with arms supply in return that the Thai government make a show of suppressing communism and distancing Thailand from China. (Pasuk and Baker, 2002: 293). This deal with the US was arguably a defining moment in a historical sociology conceptualization of pushing the communist against the wall. The crackdown in 1952 which was purportedly carried out by the Phibun Government against “the military’s enemies,” was also targeted against leftist intellectuals and prominent Chinese. (Ibid) The US concern that a communist victory in China would impact Thailand was not unfounded as the growth of communism in Siam is traced to the Chinese Communist Party in 1932 (Ibid 309). A communist wing was formed within the Koumintang organization in Bangkok in 1925 which was later boosted by the formation of the Siamese Communist party on April 1930 by Ho Chi Minh following his visit to Bangkok. In 1942, the CPT was secretly founded in Bangkok. In the Korean case too the US involvement played a significant part in suppressing communists from organizing themselves as a political force. The American Military Government (AMG) in Korea (Mingunjong) that arrived in September 1945, aligned with the traditional landowners to end the dominance of the bottom-up organizations. The traditional landowners who represented the far right-wing forces were opposed to the Left as the latter received overwhelming support from the people for its policies of dismantling the vestiges of Japanese

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Colonialism such as land ownership that had been “the direct locus of economic exploitation under Japanese colonialism and the main object of discontent for most Koreans. (Lee, Sheoungwon. 2008: 74). The landowners masked themselves as ‘nationalists,’ and practiced conservative ideologies that were oriented towards the economic reproduction of the old colonial and class relation without any new social reform. (Ibid, 75). The American Military Government (AMG) was apprehensive of the connection between Civil society groups and communists and it began what has been termed by many scholars as “dramatically transforming Korea’s political landscape” (Kim, 2004:142). The AMG crushed all efforts by Left forces and organizations to assembly and express their political character and imprisoned Left workers and leaders but on the other hand it encouraged right winged forces to forms social organizations and promote the AMG backed slogan of ‘anticommunism’ and ‘antiSovietism’ (Choi 1993a; W. Kim 1996). The Americans were aware of the existence of a highly oppositional civil society even during the Japanese colonialism from 1910 to 1945. The Japanese imperialism is believed to have given birth to a “conflictual engagement,” (Kim, 2004: 140) between the state and the civil society which led to a highly resistant, militant, and oppositional civil society. This period is said to have laid the foundation for the popular movement which was dominated by farmers, peasants and the minjung (poor people). Several national organisations like the Korean Federation of Workers and the Korean Federation of Peasants were formed during this period which played a decisive role not only in the struggle for labour rights but also against Japanese imperialism.

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The strength of the working class grew even after Japan’s surrender in August 1945. The transfer of power by the Japanese colonial state to Yeo Unhyung, who was the leader of Geonguk Dongmaeng (The League of Korean Independence), because of his ‘somewhat radical views (Lee, 1946:189) paved the way for the Committee for the Preparation of the Korean Independence (CPKI) and subsequently emergence of various social organizations representing youth, students, women, cultural activities and religious beliefs. This was period of growth of communist influence in Korea’s political landscape marked by the reestablishment of the Korean Communist Party (Choson Kongsangdang) on September 11, 1945. During the period from 1945 to 1950 civil society organizations that exhibited Left leanings and espoused social welfare and distributive justice were identified as threats leading to imposition of ban on their activities. The National Security Law (Kukka Poanbop) was enforced soon after the Republic of Korea (South Korea) was officially inaugurated in 1948, to suppress antigovernment civil society organizations. The development of the concept of anticommunist regimented society has been described as one of the precondition for the developmental regime to emerge and function smoothly in South Korea. According to Cho “the formation and reproduction of the developmental regime in South Korea can not be fully analyzed without considering interactional influences of the Cold War and the civil war.” (Cho,H. 2000:4) He goes on to explain the importance of the formation of 'the anticommunist regimented society' by arguing that in the process of the violent conflicts accompanying the civil war, oppositional figures and groups were widely removed from the public arena. This argument perhaps aptly describes the systematic destruction of the ideological space, a more leftist one which existed in the working class movement and popular opposition movement, first by an US

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led oppression and them by the subsequent development regimes under Park Cung Hee and Chan Doo Hwan. The Cold war logic was internalized by resorting to harsh repression of the Left and opening up social and political spaces for those who were right-winged and supported the Government. Gradually the internalization of the Cold war logic assumed some amount of consensus amongst the people and it helped the state to influence people’s mindsets in terms of social and class relations. The Reproduction of the concept of anticommunist regimented society was done by propounding the fact that the Civil War was not over, but stayed in armistice which has been instrumental in a “continual domestic reproduction of Cold War-like confrontation,” (Ch,H 2000: 7). Moreover, in contemporary South Korea this logic of ‘a society in truce’ has been played over and over again in the minds of the people, to strengthen the efforts of the dominant group, the ruling elite to preserve the confrontation reasoning. In Thailand too the process of anticommunist regimentation was not too different, with a systematic approach adopted by the ruling elites to suppress communists. In 1965, the Communist Suppression Operations Command (CSOC, later ISOC) was set up with support from the US. A decisive strategy that of isolating the villagers from the guerillas, which was first attempted in British Malaya and Vietnam, was tried out by the CSOC in Thailand in 1967. What followed was intensive policing and village monitoring activities such as village patrols, curfews and occasionally moving whole groups of villagers (Ibid. 313). These methods were supported by other more internalized ways of training villagers and arming them with weapons to guard themselves against guerillas. But when these tactics failed, with villagers passing on the arms

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and the radios to the guerillas, other more direct methods like arresting of CPT workers to understand the Maoist guerilla warfare were adopted. What arguably played a significant part was the push for completely communist ideologies as it promoted class based mobilization and in the process threatened the elites in both civilian and military bureaucracies, and to the monarchy itself. This created a broad conservative coalition which hunted CPT members into the remote jungles of the periphery and by the mid-1980s, the CPT was routed and the domestic legitimacy of the Thai left as a political force was virtually destroyed (Ibid.). In 1976, activists working toward village self-reliance and uplift were condemned as anti-nation subversives and lumped in with communists. Teachers, organizers, and workers were threatened or killed (Ibid.). By the time Thailand had moved firmly into a democratization space, after the 1992 incident an almost full parliamentary democracy was established in Thailand, but the Left or any political party representing workers or small farmers was not part of this change. This systematic delineation of the Left from institutional politics can be summarized as the process of forming an “anti-communist regimented society,” which would perhaps corroborate the fact that the dynamics of civil society in Thailand’s political development has interesting formulations and political cleavages which were perhaps formed as a result of the marginalization of the Left and suppression of communism. For instance throughout Thailand’s democratization, the civil society which emerged as a force had elements of the former Leftists who seemingly had undergone an ideological orientation and were now more aligned to the changing polity. But what is also important is to understand the other factors, more internal, which led to the disappearance of the Left from Thailand’s political landscape. From the beginning the communist movement in Thailand was immersed in debates over its character and revolutionary

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image, which has been attributed by many scholars as a reason for the divergence of ideologies following state suppression on the CPT during the mid-seventies. During the 1970s, especially after the outbreak of the student massacre of 1976, a good number of people were passionate of taking up arms to oppose the repressive state. But the problem as has been observed by Giles, is that “they were led by an organization which took up arms in rural areas, ignoring the struggles in the city, with the aim of carrying out a ‘capitalist democratic revolution rather than a socialist revolution. This is because the communist mistakenly believed that Thailand was a semi-feudal half colony of the United States and that the only was forward was a Maoist armed struggle in the countryside,” (Ungpakorn, 2003: 15). But what perhaps needs to be understood in this historical sociology analysis is that Thailand was already capitalist, major struggles had taken place in urban areas and the only way forward was to lead the urban struggle towards what Marx and Trotsky called, a “permanent” revolutionary struggle among workers for socialism (Ibid.15). The failure of the rural armed struggle combined with other factors such as the political confusion resulting between the authoritarian hierarchy of the CPT and the more libertarian students eventually led to the collapse of the communist movement and attempts of a democratic capitalist revolution too fizzled out. (Ibid. 16). This proved decisive as most of the Left workers divorced themselves from socialism and joined NGOs, which incidentally became a haven for Left party refugees in a context of political demobilization. (Simpkins, 2003: 256) Authors like Chantana Banpasirichote observes that “each political incident of the past produced a generation of active citizens, many of whom became important catalysts for subsequent political actions” (Banpasirichote, 2004: 215). It is generally held that student activist of the past had reemerged in some form or the other in the different phases of democratic transitions

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in Thailand and that they now form the new middle classes of Thailand. The middle class is said to have taken an active part in the May 1992 uprising as the ‘mobile phone mob (Ibid). Unlike Thailand where the state has been able to almost completely erase communist ideologies in the South Korea notwithstanding the reproduction of the cold war truce theory or the US support that was extended to liberal democracy regimes to oppress the Left, the oppositional civil society, which is referred to as the popular movement and had Left leanings, continued to remerge throughout especially in the aftermath of the Korean War through the late 1950s, the sixties, seventies and the late eighties during the authoritarian civilian regime under Syngman Rhee, the military dictatorship under Park Chung Hee and Chun Doo Hwan and even after that during the democratization period. Therefore, in the light of above historical accounts and arguments it can perhaps be argued that the South Korea’s contemporary history is inseparable from its democratic struggle in the 1960s through the seventies and the eighties. Most of the contemporary studies have had to be located in a historical context to understand the transitions towards democracy and the changes or shift in ideologies in Civil Society groups. To understand this conundrum of constant suppression and reemergence of the Left in different forms the socialization of anti-communist order and its impact on civil society activation during the democratic struggle and after would perhaps throw up some challenging dimensions for investigation. This could also help to elaborate this discursive exercise to explain the phenomenon of changes in civil society groups during the process of democratization. However, given the limitation of this study, the focus will primarily be on ideological differentiation with attempts to locate the anti-communist socialization during the democratization phase.

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Chapter 3. 3. Ideological Characterization and Popular Grassroots movements 3.1. Background: Prior to democratization the ideology that was predominant in Thailand and South Korea emerged out of socialist ideas and in both cases it started from below. The objectives of these movements were to oust military led undemocratic regimes and establish a popular and participatory democracy in the wider political sense. Subsequently in the wake of democratization ideological classifications began to get differentiated into Conservative through Liberal to Progressive spheres. I will attempt to analyse the status of these radical movements vis-à-vis the emergence of movements that have moved away from hardcore Leftist ideological orientation but are radical enough to be included as a movement that continues to project some elements of Radicalism. This is especially true in the case of Thailand as will be seen later in the cases of grassroots peoples’ movements which claim to represent the voices of the poor and the oppressed class in society. Though Radical movements in South Korea and Thailand underwent similar suppression at the hands of the military backed dictatorships and American support since the early days of its modern history, the situation after post dictatorship periods in both these countries changed dramatically, with South Korea managing to retain some semblance of the ‘old movement,’ in its labour organizations and propagation of the Minjung philosophy through the nineties and up to the present day. In comparison the history of radicalism or movement that were inspired by Maoist ideologies ended with the crushing of the CPT by the state and increasing collaboration by NGOs, who represented the new social movements with the state and foreign funding agencies in the name of development and reforms.

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In Thailand often Grassroots Movements that are centered more around Life World issue which has been defined by Habermas as ‘linguistically organized stock of interpretative patters,’ (Habermas, 1987:124) are classified as movements that have retained elements of radicalism, though some scholars have categorized these movements under ‘Autonomism’4 which they claim evolved more in response to the past authoritarianism of the CPT and brutal oppression by the right-wing military regime. In the case of South Korea democratization paved the way for the formerly radically oriented people’s organizations to grow and sustain itself. This was possible perhaps owing to the fact that unlike Thailand in South Korea the democratization phase created sufficient opportunities for workers and labour movements to advance its ideological orientation and develop a popular base. The ideological orientation of these movements and how they posit themselves in the emerging order of neoliberal globalization will be broadly analysed based on a secondary data research and interviews. The idea is not so much to focus on the similarities alone of such kinds of movements in Thailand and South Korea, but also to bring out the contrasting nature of both with reasons thereof.

3.2. Ideological Characterization of movements in Thailand and South Korea: While the radical movements in Thailand was forced to develop itself in the guise of a ‘Third way reformism,’ which has been termed as ‘Autonomism,’ and ‘Post-Modernism,’ ((Ungpakorn, 2007: 91), in the case of South Korea the workers movements, which
4

The dictionary meaning of Autonomism is ‘the belief in or a movement toward autonomy.’ Many scholars have defined it according to the situation and contexts in which they have described civil society differentiation. For more conceptual clarity on Autonomism in Thailand refer to Ji Giles Ungpakorn, Coup for The Rich and Dulcey Simpkins Radical Influence on the Third Sector: Thai NGO contributions to socially responsive politics: In Radicalising Thailand.

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formed the core of the democratic struggles grew stronger. The labour movements have continued to represent the radicalized face of civil society in South Korea. Democratization in South Korea played a crucial role as it opened up autonomous free spaces that allowed movements to stabilize, whereas in Thailand, democratization is a contested subject. Even till this day and time the country has struggled to come up with a clear definition of democracy, given the fact that the military and the monarchy (not explicit) are powerful stakeholders in the process of governance.

Moreover, given a past history of brutal repression by the state which culminated with October 1976 virtual elimination of the Left, the position of radical movements in Thailand has become a complex subject that perhaps cannot be adequately covered within the scope of this study. However, within the limitations of space, the complexities will be examined so as to be able to bring to fore the similarities that may exist and the dissimilarities when compared with the South Korean context.

What perhaps would be pertinent in the case of Thailand is to understand the collapse of the CPT and how it gave rise to Third Way Reformism or Autonomism, which as practiced in Thailand, is a form of “Localist” Anarchism (Chumchon-Niyom)5. Many of the autonomists belong to the 1970s era of student activists who supported the Left but subsequently deserted the CPT for its authoritarian policies (Ungpakorn, 2007: 95).

5One

good example in the Thai literature is Chattip Nartsupa et.al. (1998) The Theory of Peasant Community Economics. Witeetat 7 as mentioned in Coup for The Rich.

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What assumes great significance here is to note that while in both these countries there was a gradual suppression of the Left, as has been described in the previous chapter on Historical Sociology: Ideological differentiation, its impact on social movements were strikingly different. For instance when compared to Thailand, it is easy to differentiate the reasons for sustenance of radical movements in South Korea. Though communism was openly practiced but most workers and pheasants continued to be inspired by Leftists ideologies, which arguably was a key reason for the inability of authoritarian regimes to completely erase communism. Further, following democratization, the formerly radically oriented people’s movement developed itself in terms of organizations and its popular base. The most remarkable aspect of the labour movement in the post dictatorship period as is argued by Cho Hee Yeon is the ability of the grassroots people’s movement to rapidly expand its local branches and new-sub organizations (Cho, H. 2005: 11). Cho Hee Yeon makes the following observations: Just after the Great Democratic Struggle of June 1987, thousands of new democratic trade unions began to organize nation wide, and former government-patronized unions began to democratize from inside. For example, there was a change of leaders to a democratic one during the so-called 'Great Labour Struggle' in July-August-September of 19876. This new surge also swept over white-collar workers across various areas. Based on this emergence of new democratic trade unions, the National Council of Trade Unions was organized in January 1990 and, thereafter, the Korean Confederation of

6

In June 1987, the number of trade unions was 2,700, and that of its members was 1,050,000. However, in the wake of Great Labour Struggle, the former increased to 7,900 in 1989 and the latter to 1,930,000.

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Trade Unions came into being, covering such areas as Korean Big Conglomerates, white-collar workers, public service workers, and blue collar workers. In addition, the peasant movement, teacher's movement, urban poor and other grassroots people’s movements could expand themselves organizationally. For example, national organizations such as Korean Farmers League in April 1990, National Alliance of Street Vendors in October 1988, National Alliance of Urban Poor in November 1989, and National Alliance of the Displaced in 1994. (Ibid.). Unlike Thailand the popular movement in South Korea has continued to survive under severe constraints imposed by several factors, from internal organizational politics, to loosening of the democratic space under the neoliberal open market economy and the constant exploitation of the labour by the state and the economy in different ways. Notwithstanding the controversies that continues to arise pertaining to labour and formation of class consciousness what cannot be wished away is that the breakdown of the dictatorship in 1987 brought about a new era of labour militancy. Sociologists like Hagen Koo term labour militancy in 1987 as an “explosion that marked a watershed in the South Korean working-class struggle,” (Koo, Hagen. 2001: 185). In his opinion during the phase of democratization, the labour movement changed in character becoming qualitatively more different from the pre-1987 democratic struggles. (Ibid). In his book titled, Korean Workers The Culture and Politics of Class Formation he sums up his views on the Korean labour movement as: “The post-1987 labour movement became qualitatively different from the previous struggles, not only in terms of the patterns of conflicts and organizational strength, but

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also in terms of the main actors, regions, industries, and gender composition. Since the eruption of this massive labour offensive, the Korean labour movement became better organized, stronger, more aggressive, male-led, and labour militancy thus brought a significant change in the balance of power between capital and labour and in working class identity and consciousness among ordinary industrial workers.” (Ibid.) The revitalization of labour movement after the ouster of the undemocratic regime was described by Professor Lee, Byoung Hoon as “Workers at the shop floor tried to make their life democratic,” which in essence meant that many workers were organizing on their own and carving out their own space in the new political environment.7 In contrast Thailand labour movements have been mostly about state enterprise unions, which forms the backbone of the so called, “Thai labour movement,” in terms of manpower and resources. The main players in the movement are the unions of the Electrical Generating Authority of Thailand, or EGAT, and the Metropolitan Electrical Authority, or MEA, and strongly supported by the national State Enterprise Workers’ Relations Confederation, or SERC. These groups get occasional support from a growing network of civil society allies—ranging from consumer organizations, to NGOs, to farmers’ organizations—in their confrontation with the government. However, the support is often conditional and based on political affiliations, perhaps owing to the fact that members of the state enterprise unions have divergent political ideologies. Therefore, more often than not Autonomists are accepted as the most suitable alternative which represents the struggle of the workers, daily wage earner, the farmer and the poor. Those who have adopted this philosophy in Thailand include the leadership of the Assembly of the
7 Interview

with Professor Lee, Byoung Hoon, labour specialist and advisor of KCTU, department of Sociology, Chung-Ang University, Seoul

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Poor (AOP) and other rural civil society movements. The basic idea is to reorganize the village and the grassroots on a self-sufficiency model by rejecting the state. Autonomists also termed as culturalists often use the phrase kamtrop yuu tii mubaan—the answer lies in the village— which is said to stem from the culturalist search for a higher form of development at a lower level of governance (Simpkins, 2003: 260).

Building of political parties and political theories do not find any place in Autonomist’s principles. It has many similarities with the ideas expressed by Autonomist in other countries, such as John Holloway, Toni Negri and Michael Hardt. (Holloway, 2002; Hardt & Negri, 2000)
Marxist academician Giles quotes British Marxist Chris Harman to explain that “the strength of Autonomism is that it celebrates initiative and creativity from below and it seeks to reject compromise with the system,” (Giles, 2007: 92). The refusal to join the Peoples’ Alliance for Democracy (PAD) in the November 2008 political upheavals in Thailand has been described as an indication of the fact that the AOP leaders were worried of being dominated by conservative forces inside the PAD. They were also against the call by the PAD in April 2006, for the King to appoint a new government under 7 of the 1997 Constitution. After the 19th September coup, the AOP also took a principled position against the junta. But not just that they also opposed Thaksin (Ibid.). The emergence of grassroots movements in Thailand which still maintain a considerable radical face, are a result of the Thai state’s neoliberal development policies, with attendant processes of polarized development: concentration of income and wealth on the one hand, and marginalization (social exclusion) of majority of the population on the other (Suthy Prasartset, 2004: 140).

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Many people interviewed during the last one year as part of visits to study political developments seemed to connect radicalism in civil society with organizations working for the uplift of framers, grassroots people, indigenous communities and minorities. Human Rights activist Somsri Hananuntasuk notes that: Movements like the AOP and farmers groups like the NGO coordination committee on Rural Development) have grown out of the political spaces that opened up since the late eighties. These groups position themselves against the exploitation and domination by the state. The oppositional campaigns led by these groups against the state have in return created the autonomous spaces for social and political reforms. The emergence of these NGOs and grassroots movements have a history of oppression by the state.8 While the approach was to resist the state’s policy of marginalizing the poor and the farmers, by implementing lopsided development projects, they adopted a policy of not becoming active political actors in the reforms process. The formation of civil society groups against the state were mainly to protect peoples’ lands and natural resources and this can be described as a new kind of movement, that did not espouse communist ideologies, but were progressive and somewhat radical in approach. The AOP is a good example of a grassroots organization that has a political character in that it has been using the non-state public sphere, free of government control, to ensure that political decisions are taken in the public interest. This has enabled the Forum to be categorized as a

8

Interview: Somsri Hananuntasuk, Human Rights activist and Executive Director of Asian Network for Free Elections. Former Chairperson of Amnesty International Thailand.

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democratic organization, not in the sense of representative liberal democracy, so much as participatory democracy (Thabchumpon, 2006: 2). The AOP commenced as a people’s organization on 10 December 1995 at the Thammasart University with witness from NGOs from 10 countries (Prapass, 1998: 68). The goals that the AOP set to pursue basically included collective struggle for legitimate rights, and social justice besides other immediate and long term goals such as the struggle for land rights for both rural and urban poor, communities’ customary rights to resources management, upholding agriculture as a mainstay of the Thai society, sustainable or alternative agriculture, peoplecentered development policy, political reform including decentralization and the reform of the bureaucracy, and participatory democracy or grassroots democracy (Prasartset, 2004: 149). The author argues that the AOP goals which range from rights based issues to those that benefit the society represent a process of political reforms. In her detailed survey of the AOP’s activities Thabchumpon argues that “the struggle of the forum goes beyond interest group politics to issues of structural socioeconomic inequality.” Notwithstanding the fact that the Forum is a marginalized group and electoral politics has not provided it any benefits, it has been be successful in practicing a democracy of extraparliamentary politic, besides demanding a greater degree of public participation in economic democratic policy (Suthy, 1998: 5; Baker, 2000: 5; Somchai, 2001:183; Missingham, 2003: 23). Under its horizontal network structure, The AOP’s components comprise the Anti-Dam Network, the Land and Forest Network (under the umbrella of The Northern Farmers’ Network and The Assembly of Isan Farmers), the Network of Groups affected by State Infrastructure Projects, the Council of Sick Workers with Occupation-Related Conditions, the Slum Dwellers for Democracy, the Alternative Agriculture Network, and the Southern Federation of Fisher Folk.

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Many authors have used the growth of the assembly as also a case reflecting the discriminatory practices of the Bangkok based ruling elite and the rural poor. In the direction they underscore the importance of the Assembly as a significant player to create a strategic balance of a new political force in dealing with the government to address their difficulties. Quoting Wanida Tantivittayapitak an advisor of the Assembly in an interview Thabchumpon argues that the intensifying conflicts over natural resources forced grassroots NGOs and peoples’ organizations to work together in order to increase their bargaining power with the state. (Thabchumpon, 2006, 78). The author says, “in order to emphasize the issues of the negative impact of development policy and the problems of dislocation resulting from developing projects, the Pak Mun Dam was selected as the best place to establish the Forum (Assembly). The Dam was chosen because of its centrality to the persistent and innovative forms of resistance created by the Anti Pal Mun Dam Movement (APMDM), which were seen as a potential inspiration to other organization.” There were various kinds of responses which were a result of interviews conducted as part as part of the study. The respondents included AOP members, academicians and other Civil Society groups. AOP started off as a very strong oppositional force as it worked for the people rights and bargaining power of the people which forced the Government to listen. The political situation in the past had created good conditions for the AOP movement. The Government in 1997 under Gen. Chavalit Yongchaiyud was weak which was in contrast to later situations when the government was getting stronger and stronger and did not want to listen to the people.

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The AOP worked extremely hard with the people on the ground to preserve their rights to land, culture and livelihood. The governments before Gen. Chavalit did not solve the people’s problems and instead there were attempts to occupy people’s lands. The AOP got support from local NGOs who had worked on the ground and this allowed them to build strong network in villages and provincial levels and in the process had real network in many sub-regions. AOP could force the government to comply with 18 of their demands and could get compensation of 700-800 million baht against development projects pertaining to dams, alternative agriculture and pilot projects of different types propagated by the state.9 The AOP is one such organization which I believe represents a powerful force that opposes the state like the Left but is against armed or violent confrontation as its leaders believe that gunfights against the government had proved ineffective, and that solving conflicts through legal procedures was also useless. They adopt a policy of Marching with the poor to the city to raise their voice against exploitation by the state. The AOP march to Bangkok with farmers groups like North Net during 1998, 1999 and 2000 are good indications of the way the AOP worked as a grassroots progressive organization. The work and programs which the AOP has been engaged in since its inception is a clear indication of the fact that they question fundamental issues of democratic politics. This gives the AOP a political character, notwithstanding their ideological pattern, that ignores politics and political parties.

9Prasittiporn

Kan-Onsri Former Advisor of the AOP. Currently member of Amnesty International Thailand

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A few of the other examples of groups that could be regarded as autonomists and yet reflecting a radical face in Thailand political landscape are the NGO Coordination Committee on Rural Development (NGO-CORD) which was formed in 1985. In 1990 the northeast NGOs established four working principles to (1) strengthen local people’s organizations (POs) and occupational network groups; (2) develop alternatives so as to increase farmers production; (3) conserve and preserve natural resources, and protect the rights of people to farm land and common property resources; and (4) elicit the cooperation of the various social action groups and pressure groups (Kultanan, 1994) On the same principles other organizations that came up around the early nineties on a somewhat similar principle were the Assembly of Northeastern Farmers and the Assembly of Small Farmers which were established in 1992 to watch over land and forest conflicts in the north eastern region. These formations were mostly reactions against the government plan to erect the Council of Agriculture. Peasants feared that this would only benefit large agribusiness, who would be disproportionately represented in the council and who would influence national agricultural policy at the peasant’s expense (Prapass, 1998: 54-59). In South Korea too besides the extremely radical labour movements grassroots people’s movement as a whole, has been on a progressive course covering a wide area of professional activities.

A few of these organizations include Association of Physicians for Humanism, Network for Healthy Society in November 1987, The Joint Commie for Migrant Workers in Korea in July 1995, Minbyun: Lawyers Association for a Democratic Society in May 1988, Minkahyu Human Right Group: Political Prisoners' Family Association in December 1985, National Reconciliation Self-reliance and Reunification in May 1999, Korean 84 MAINS Thesis, 2009

National Congress for Reunification in July 1994, National Campaign for Eradication of Crime by U. S. Troops in Korea in October 1993, The Association of Korean University Student in 1993, Korean Teachers and Educational Workers' Union in May 1989, National Professors Association for Democracy in June 1987, Korea Progressive Academy Council in November 1988, Jinbo Network in November 1998, and others (Cho, H. 2005: 11).
These network organizations have driven the democratic reform of the former dictatorial regime and have done reform movement, including campaign for overcoming the dictatorial legacy and correcting economic and social structures distorted during the dictatorship. The rapid growth of white-collar workers too was arguably significant in the advancement of the grassroots movements. The white-collar movement during the 1990s spread to diverse sections in the service industry. Successful unionization occurred among hospital workers, transportation workers, communication industry workers, newspaper and television employees, university staff and intellectuals (Koo, Hagen. 2001: 196). Though law blocked any moves to incorporate civil servants into the movement, progressive teachers went ahead and set up the National Teachers Union (NTU) and waged a struggle for their legal recognition. As many as 1,500 teachers were dismissed for participating in this unionization movement. (Ibid, 197) The grassroots movement changed its character and experienced increased solidarity with labour movement taking the lead. The popularity of the labour movement within the trade union movement played a crucial role resulting in diverse effects. The organizational characteristics in the solidarity was evident from the participation of the Korean Confederation of Trade Unions and the establishment of the National Association for Democracy and

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Reunification in December 1991, covering all the grassroots people’s movement in most local communities and sectors. (Cho, H. 2005: 12)

3.3. Problematising Grassroots Movements in Thailand and South Korea: Though Autonomists like AOP presents a radical face by ignoring the existence of the state, they are closer to Right wing reformists. The inclusion of AOP under the Good governance policy which is an elitist concept framed by a group of Thai intellectuals too adds to complexities regarding a firm ideology based orientation amongst Thai radical or progressive groups.

While on the one hand the role of the AOP and other progressives in increasing the visibility of the poor and the marginalized communities cannot be negated, their ability to induce significant policy change has been found wanting which has led to contributed to the urban-rural class divide in Thailand. The policy of the AOP to march to Bangkok causing traffic jams has been disapproved by Bangkok based middle class, who feel that the poor are too demanding and confrontationist.

There is also no denying that AOP represents an important non-party political formation that goes beyond parochial interests, but it can be argued that to deal with the class power of a capitalist like Thailand for achieving broad based distributive justice objectives, a political party of workers and peasants is needed. In this context Giles argues that by rejecting a formal political party in favour of loose networks, the AOP fails to build democratic structures within its own organization (Giles, 2007: 96). This is perhaps why

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“The Assembly of the Poor is led by unelected NGO activists rather than by poor farmers themselves.” (Missingham, 2003: 187)

The other aspect that needs to be considered is while social movements in Thailand may have been effective, in one form or the other, through grassroots democratic movements for instance the labour movement is immature, divided and is often co-opted by powerful patron and hence it remains a weak link. (John Girling, 2002: 266)

There are contradictory views on the formation of class consciousness in South Korea with many arguing that the post 1987 Korean labour movement owes little to the earlier struggle and that Korean workers arrived at this stage largely because of structural changes in the working class and the democratization process. The contribution of workers towards the democratic struggle cannot perhaps be undermined, but that should not be taken as a justification of the inherent contradictions that seem to exist or which have possibly not found a convincing explanation to end the controversies surrounding labour movement. To start off with many well researched labour scholars have tended to ignore the historical process of class formation prior to the Great workers Struggle of 1987. Hagen Koo for instance shows that even some of the most thoughtful labour experts seem to slight the significance of the pre-1987 struggle in the historical process of class formation in South Korea (Koo, Hagen. 2001: 184). For instance labour expert Lim Young-Il has been quoted as saying that “prior to the 1987 Great Worker Struggle, the Korean working class had never become a major actor or a variable in class politics” besides “during the entire period from 1961 to the 1987 Great Worker

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Struggle, the Korean labour movement had not shown a process of advancement to even the lowest level of ‘political labour movement,” (Ibid). However, Koo argues that understanding the Korean labour after 1987 as being discontinuous would be in an incorrect analysis. His argument is based on the premise that historical class formation during the 1970s and the construction of the labour struggles in the 1970s and early 1980s with young women workers playing a dominant role; set the stage for the explosion during the democratic struggles (Ibid, 186). Varied arguments continue to surface about the role of women, in particular their marginalization in the movement after 1987. The ignorance of women’s contributions towards building the labour consciousness and instead holding it as an obstacle has perhaps created a prejudiced understanding of class formation in Korea. Lim Young Il’s argument depreciating the class character in labour struggles during the 170s when women played a leading role perhaps provides a critical understanding of why women’s role in labour movements were considered as having ‘symbolic’ meaning of a ‘working class movement.’ Moreover, there have been questions raised about the role of labour in the years of democratic consolidation which have found both positive and negative connotations. Yoon Kyung Lee provides a two-sided picture. The author argues that if democratic consolidation can be defined as institutionalization of democratic rules and practices, then Korean labour movements, which challenged the government’s monopoly of industrial relations policy-making, became a social force that represented the interest of the working class, something which established political parties failed to do, have made contributions towards the democratic consolidation process in Korea (Lee, K.Y. 2003: 59).

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However, on the other hand she is skeptical of the labour movements for apparently losing their objective to represent the socially weak population and instead organizing themselves around “the interest of better off workers, engaging in mobilization politics of entrenched interests, often termed as rice bowl fight,” (Ibid.). The moral strength of the Korean labour movements which was instrumental in providing a source of strength for demands of humane working conditions and social justice is also said to be waning out. (Koo, Hagen. 2001: 192). Instead of mitigating polarities in class politics, it seems like the Korean labour movement became one of the culprits of creating polarities in the labour market and heterogeneity in workers’ interests and identities. (Lee, K.Y. 2003: 59). The state has played a crucial role in disabling labour movement to a great extent. The economic union for which labour movement are increasingly criticized was largely a creation of the Government which used it as tool to contain the labour movement and to prevent it from becoming a political force and possibly a left political party. The formation of the Federation of Korean Trade Union (FKTU) is perhaps an indicator of state led intervention to nullify organized labour. Workers in large firms were gullible enough to be included under the unionized workers system by the employers, which was changed strategy to suppress organized labour. Employers, especially in large firms, wanted and were able to pacify unions by accommodating to workers’ union demands. For unions, too, it was easier to mobilize their members for immediate economic benefits than to call for an action for social democratic agenda. Along the years, unionists have developed the taste of enjoying the benefits of being “insiders,” ignoring the gravitating working conditions of “outsiders” in the labour market (Lee, K.Y. 2003: 60). 3.4 Conclusion:

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The progressive or popular movements in Thailand and South Korea are relatively contrasting in character owing mainly to the genesis of unique political conditions following democratization. In Thailand labour movement has got entangled along partisan political ideas, often co-opted by powerful patron and therefore does not represent a progressive force. Grassroots movements instead adopted a radical position against a repressive and manipulative state, but in South Korea labour movements survived the onslaught from the state and capital, despite severe dilution of its position as a powerful radical component of the democratization process. What may be described as a common feature though is a certain class of people, mostly the poor; peasants and workers who represent the marginalized groups played a key role in the struggle against the state and capital. The movements brought the marginalized communities to the forefront in their struggle for equal humane treatment and for enhancing either their economic status or rights over land, natural resources and livelihood. A high point in Thailand is that inspite of the fragility of Thai politics which is deep-seated in corruption and class divide, the ability of civil society organizations to resist the state’s monopoly on information and resources, has created sufficient room for strengthening grassroots democracy. For instance organizations like the AOP and others continue to pursue their agenda of liberating the poor and farmers from the clutches of state and capital and create a system of self-governance which can check both direct and indirect exploitation by the state.

In South Korea, labour may not present the synergy which it once did to remove military dictatorships, but it still plays a leading role in building solidarity across various groups and associations to oppose repressive and top down undemocratic policies of both state and capital. Moreover, the labour though divided along various factors such as narrow trade unionism and a

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fast growing section of irregular and unstable workers, it still remains a strong force to challenge the capital-labour exploitative relationship thereby providing sufficient justification to say such conditions makes the labour movement more progressive. Labour activists believe that arguments that tend to paint the Korean labour movement in a poor light usually originate from “wrapped academic” enclosures. However, when compared to South Korea, the progressive movements in Thailand may tend to represent more of the new social movements, which will be discussed in the subsequent chapter, in Korea that revolves around issues concerning rights to land, natural resources, environment and food. But given its ideological base in Autonomism, it has been usually regarded as a movement that has a popular base like the labour movements. The grassroots civil society groups in Thailand have clearly demonstrated that their movement is aimed at establishing a form of democratic structure that caters to the needs and aspirations of the people at the grassroots. The Grassroots democracy movements have been striving for wide ranging reforms of the bureaucracy and decentralization of power so that local communities and people’s organisations are included in the decision-making process. The actions of groups like the AOP and other grassroots based organizations which has struggled for the rights of the poor and the marginalized communities can be termed as Counter-hegemonic project—to borrow the word from Suthy Prasartset (footnote: Victimised communities to Movement Powers)—against mainstream developmental policies of the Thai state. In South Korea, labour movements since the great democratic struggle in 1987, has undergone tremendous changes, which I argue as having provided a ‘mixed bag outcome.’ Borrowing on arguments from different analysts it can be argued that labour movement has been a key component in the democratic consolidation in terms of institutionalization of democratic rules

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and practices. Labour movement has been at the heart of working class struggles that challenged the government’s monopoly of industrial relations policy–making. But on the other hand it has also been criticized for failing to prevent an internal differentiation that divided the Korean working class in different ways. In the final analysis it can argued that the grassroots progressive movements in Thailand and South Korea has to be looked at from a historical context as given their genesis as movements that set the tone for the democratic struggles in both these countries, it is only but natural to build enormous expectations on these movements for challenging the powers of the state. The real problems with the grassroots peoples’ movements, including labour movements is that it ignored broader community issues and not looking beyond the realms of their own concerns. This perhaps prompted progressive intellectuals and former activists of the democratic struggle period to start the citizen’s movements, which is undoubtedly the most important factor for the emergence of the middle class led social movements or new civic movements in the 1990s.

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Chapter 4. 4. Emergence of new civil society movements in an Asian democratization context 4.1. Background: The concept of civil society and even more so the emergence of the idea of new social movement has been subject to extensive debate with many scholars arguing that it is a western construct and therefore cannot be applicable to the Asian context. However, its increasing relevance in the late democratizing states in Asia cannot be ignored and dumped as a western thought. But, the purpose of this chapter is not to engage in a debate over the historical evolution of the concept nor its usefulness in the Asian context, as it the beyond the scope of this study. The essential idea is to continue to the theoretical framework of analysis on the differentiation model a part of which has been discussed in the previous chapter already. In this chapter the need to examine the causes of emergence of new civil society organizations and their role in the process of democratic consolidation in Thailand and South Korea will be a key focus area. An attempt will be made to understand the theoretical interpretations regarding the ‘newness,’ of these ‘new movements’ and the nomenclatures used therein to describe them. The investigations will be based on historical and contemporary research studies. The new social movement of civil society is often associated with the shift from ‘old’ to ‘new’ politics which is believed to create sufficient opportunities for providing a new public domain. The concept of ‘new’ is however subject to different interpretations. Habermas argues that conflict between capital and labour is no more the concern or the core issue in advanced capitalist societies, where the momentum of the conflicts have shifted towards ‘colonisaton of life-world’ (Edwards, 2004: 113). Edwards however questions Habermas in that she argues that

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while anti-corporatism generates public debate through a struggle against the ‘colonisation of the life-world’ by an expanding global economic system, the ‘old’ politics of labour are very much part of an anti-corporate activity. This then begs the question of what exactly is ‘new’ for Habermas. (Ibid) The new social movement or new civil society organizations are considered to be different from the old order, in that they aim to initiate reforms within the existing political systems which were not just about changing the nature of state power, but also about self activity within society, outside the realms of the state (Cohen & Arato 1997:493). Many critics of the new social movement and civil society believe that following on from the “collapse of confidence” in a Marxist alternative to capitalism in the 1980s, the ideas of the “new” social movement and “civil society” became dominant among former Left activists and academics and those involved in social movement who sought to bring about democracy and social justice (Ungpakorn, J.G. 2003: 312). These authors argue that the distribution of power within society and state society relations must be examined critically to understand the limitations with civil society and new social movement theories. The theories have been described as assumptive by scholars on the pretext that these theories base their arguments on assumptions that the state can somehow be neutralized by various independent forces in society, regardless of class. According to Giles the model of state and society as it is constructed under the framework of new social movement of civil society assumes that “there is no alternative to free-market capitalism and parliamentary democracy where voters are free to choose or mandate those who control the big corporations that dominate the means of producing wealth in society.” He extends his argument using Italian Marxist revolutionary, Gramsci’s explanation that the whole

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idea of civil society and the so called independent institutions in society which are claimed to reduce the power of the state, are under the hegemonic idea that there is no alternative to the current set-up. In other words, civil society strengthens the stability of the democratic capitalist state (Forgacs 1999: 227; Ungpakorn, 2003: 312). In Thailand for example the study of civil society organizations in terms of their evolution as new social movement groups has been interesting. Any study on civil society organizations especially those pertaining to the current understanding of new social movements has to be studied from the openness of the political space provided by the state as well as the perspective of the general public regarding extra-parliamentary democracy. This is perhaps because there is very thin demarcation between NGOs which are independent but depend on foreign funding and those that are state led and are more elite in character. However, all these are included in the concept of new social movements of civil society. However, the demarcations are much more clearer and distinct in the case of South Korea where the new civic movements called Shimin Undong are considered more autonomous and free from the control of the state, in other words, almost fitting the now accepted “non state public sphere,” definition of civil society. The new civil society groups are considered moderate which differentiated themselves from the progressively oriented grassroots people’s movement, which has led the anti-dictatorship movement, and established themselves as a kind of new movement with its own independent identity. This new movement is characterized as 'liberal' in its main ideological orientation. (Cho, H. 2005: 8) The Korean case in somewhat unique in that it is often used as an example to show that while in other regions of the world civil society was rapidly demobilized and deploiticised, in Thailand for example even after the change from dictatorship to a democratization phase the elite

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bureaucracy continues to influence most civil society groups, in South Korea the civil society that is represented by the new social movements has been playing a significant role in the politics of democratic consolidation. For a more detailed account each of the two countries the emergence vis-à-vis changes in the civil society movements will be analysed one alongside the other and finally the two situations will be problematized and compared in the conclusion section of this chapter. 4.2. Establishment of Civic Organisations and growth of new social movements: In the early years of democratization in Thailand, opposition to oppressive state actions often was through resistance and rebellion. During this period the emergence of the civil society was slow. The beginning of the emergence of Civil Society is recorded very early in history, but in this research the growth of civil society against an authoritarian state will incorporate developments since the 1970s when the student movements, environmental movements and policy advocacy initiatives of the NGOs in the 1980s, the new middle class mobile-phone mob in the May incident of 1992, the Assembly of the Poor of 1995 and the People’s Anti-Corruption network as well as several groups pushing for further political reforms in 2000, were all part of this ongoing anti-state extra bureaucratic political process. They have all been the constituent elements of an emerging and developing civil society.10 In the South Korean context the consequences of the Great Democratic struggle (Yuweol Minju Daehangjaeng) has to be taken into consideration. This struggle led to the creation of “autonomous free spaces,” in the political and social arena. The outcome of the movement which in essence meant weakening of the dictatorship can also be viewed from the context of
10

Civil Society and Good Governance: A New Chapter in Thailand’s Political Reform? 213 Chantana Banpasirichote

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revitalization of the civil society. According to Cho Hee Yeon weakening of the dictatorship also meant greater freedom and recovery of formal democracy that included free press and free elections. The movements for democratization in a way created a restructuring of sorts where complexion of civil society changed towards a more self-empowering position which also brought about drastic mindset change. The “self-empowered revitalization,” (Cho, H. 2005: 7) is said to have made people believe that they are much different than what they used to be. This attitudinal change has also been extended to other diverse group actors, including class, occupational groups, minority groups and so on. Though it may seem to be true that civil society in Thailand and South Korea grew along the principles of adopting a more non-confrontationist approach with the state, the end results were not the same. That is to say the social cleavages that opened following the emergence of new social movements had contrasting characteristics. In Thailand the civil society movements grew along different lines. Chantana Banpasirichote explains that the non-state actors who were engaging in political and policy arenas were to be found in two categories: student movements and the NGOs. This was followed by involvement of business association in politics in the mid-1980s. The involvement of business associations in politics transformed the traditional bureaucratic polity into a new form of liberal corporatism. (Banpasirichote, 2004: 213) Many of the grassroots organizations and environmental and political reform NGOs do not find such corporatist relationship with the state fruitful. Their experiences of cooperating with the Government in the past have not worked well. Pressure politics through mass mobilization and public campaigns through mass media are still the preferred approaches for the grassroots movements (Ibid.).

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In contrast in Korea the change towards new social movement is supposed to have generated a new kind of awareness of civil and political rights as well as political consciousness. There was more awareness for legal protection of rights guaranteed by the Constitution, marking a sea change from the situation during the dictatorship regime when the first Constitution was legislated in 1948 which did not provide protection to citizens and uphold their political rights. The Governments that came to power after post-dictatorship had no option but to respect the wishes of the people to accord legal protection to rights of the citizens. No doubt, the people had been “reborn as a modern public in the process of overcoming the dictatorship through a kind of individual self-empowered subjectification,” (Cho, H. 2005:8), but the empowering process also led to vital structural changes as well. People were now organized along different lines of class, identity, minority groups, women and so on which was more of an expression of collective behavior, in the form of organizational associations to press for their demands. Contrary to the psyche that prevailed during the undemocratic regimes, when there were more convergence between civil society groups, democratization brought about significant changes in that it created issues of distributive justice with minority groups making their position clear on their identities and equal treatment against discrimination. This attitudinal change resulting in creation of new social movements has been described as an outcome of the breakaway from the main radical minjung (poor people) movement influenced by the upheavals in Eastern Europe, the expansion of the middle class and the development of procedural democracy (Cho D., 2005:71). In South Korea, the differentiation in social movements, as has been discussed in the above paragraph, brings to fore, an important dimension of change in Social Movements in the post

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dictatorship period, that is emergence of a ‘civil movement,’ (Simin undong).11 Simin Undong is believed to have been created by the moderates in the former movements which confronted the dictatorship. The aim was to carve out its own identity different from that of the more radical groups represented primarily by labour unions and groups. In Thailand perhaps the concept of civil society (Pracha Sangkom) would come closest to describing a partial meaning of Simin undongs. The former concept is more elitist and is based on the principles of ‘good governance,’ which includes the state as one of the key components. What is interesting to note in the Thai case is that though Pracha Sangkom—literally the society of the people—is explained by authors like Banpasirichote as not signifying state, market and society as separate entities. The author says that the term “expands the earlier conception of collective action as the territory of student activists and NGO movements.” (Banpasirichote, 2006: 221) The concept of pracha sangkhom is mired in debates. It is contested by authors like Pasuk Pongpaichit (1999) who argues that the approach is largely urban with roots in the modernist middle class (Pasuk 1999: 26). She says that this approach has its faith in industrialization, modernization, and liberal representative democracy. “This approach has adopted the term

11

The 'Simin Undong' can be called in South Korea diversely: citizen's movement, civil movement, civil society movement, NGOs, and so on. It is identified as the South Korean type of 'the new social movement' in the Western context, while the people's movement is defined as 'the old movement'. 'Simin Undong' implies many characteristics of the new social movement, but cannot be defined as completely identical. Here I use the concept of civil movement for it. In the Asian context, the civil movement and NGOs are perceived as specialized movements on specific issues, sometimes funded by foreign donor countries. However, the civil movement in South Korea has quite a popular base and its budget comes from domestic sources. In addition, the grassroots people’s movement (Minjung Undong) is not a movement of the general public, but that of the lower classes, including the working class, peasants, urban poor and others. Therefore, it is identified as the 'lower (Keecheung) grassroots people's movement. (For further understanding, see Koo, Hagen, 1993, "The State, Minjung, and the Working Class in South Korea", Hagen Koo ed., The State and Society in Contemporary Korea, Ithaca: Cornell University Press). In addition, the concept of civil society is used here to cover the civil movement and the grassroots people’s movement as well, based on interpreting the civil society in a broader sense.

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pracha sangkhom to translate “civil society” and has been active in strengthening community organizations, especially in provincial urban centers.” (Pasuk, 1999: 26) Users of the term pracha sangkom often include the state and some of the institutions of the market in the idea of civil society and that it is also taken as a teflection of consensus (Banpasirichote, 2004: 213). Banpasirichote quotes Praves Wasi, a respectable social critic, as proposing a coalition of benja parkee, or five partners in the civil society such as: The academic community; the people; NGOs; Government and Business. She continues to explain that in practice different actors, attributing different connotations to pracha sangkom seem to use it primarily to justify their own political actions. For state actors civil society has become a concept that valorizes a corporatist relationship with the state, promotes consensus and calls for public responsibility. This is currently the dominant perception of civil society in Thailand. The concept of Good Governance, Thammarat (meaning ‘the righteous state’), which has been often been tagged to pracha sangkom was invented by a group of academics from Thammasat University to overcome the financial crisis of 1997. The group wrote a letter to the government demanding that it applies the principles of ‘good governance’ in handling the crisis. (Banpasirichote, 2006: 223). Thirayuth Boonmi, a theorist of good governance observes that ‘good governance’ is the interactive relation between the state, the private sector and society which would lead to a transparent, efficient government and economic sector, and at the same time increase popular participation, reduce state power and strengthen civil society (Thirayuth,1998a: 12)

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However, good governance (see annexure) is also seen as part of the State led civil society syndrome, which is an elitist idea that emphasizes cooperation between state and social organizations. Theorists who propound the idea of a state led society believe that the state is a strong actor in the process of social justice and all forms of cooperation with it would bring meaningful change. Noted author and social thinker Chai-Anan Samudavanija too argues that civil society is a partnership of the state, the private sector and the popular sector. (Chai-Anan 1998:41). Often civil society is tagged to good governance. For this school of thought the state must play a key role in the efforts to construct Pracha Sangkhom or civil society in Thailand. They reject the idea of excluding the state from civil society (Somchai, 2002: 134). But, even while accepting the fact that state led civil society growth has been more dominant, on the other end of the spectrum there are interesting features which provides enough room to differentiate civil society groups that are anti-state and more confrontationist in their approach. According to some school of thought the organizational forms and political strategies embraced by civil society groups vary by issue area. (Simpkins, 2003: 261). NGOs concerned with “hot issues” (praden rohn) which are often associated with representing farmers from northern areas, may share overall goals of social justice but disagree on how to achieve it. They do not fancy cooperation with government officials, and tend to take on the role of troublemakers—the need for which is clearly understood within the NGO sector. (Ibid) Some species of NGOs whose members have been part of the democratic struggles and likely supporters of the CPT, have now transformed themselves as civic educationists. Such groups play a crucial role in political development in that they focus on nonpartisan projects such as voter education and election monitoring, while not interfering with government affairs or

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confronting other groups. (Ibid, 271). The case of the Poll Net and Asian Network For Free Elections (ANFREL) are few examples. Responses from a cross-section of people on new civil society movements in Thailand: The reasons for differentiation with civil society groups is primarily because of impacts of globalization which have compelled many activists who are part of NGOs to look at new concepts of social movements. This is also because the government authorities cannot assist the people achieve their needs. People and social groups have developed more attention in social and worldwide development and therefore they are now willing to work for social welfare and justice in their own terms. New civic social groups are moderate in their approach, as for example, The Campaign for Popular Democracy, The Human rights groups, Women in Development groups. The Consumers Protection groups and others who use the autonomous social and political spaces that have been created by democratization to seek justice through legal means. Since 1997, Thailand Civil Action groups began to involve in National Development and these initiative are aimed at social changes and political changes.12 Sakool Zuesongdham identifies “Human Right Watch (HRW), Consumers Foundation of Thailand (CFT), Thailand People's Network Against Corruption (PNAC), Friend of Women (FOW) and State Enterprises Relations Confederation (SERC),” as some of the new social movement civil society organizations that are different from the grassroots movements groups with a more system-oriented nature of orientation.13

12

Interview with Surasavadee Hunpayon, Lecturer Thammasat University and member of Poll watch Foundation

13

Interview with Sakool Zuesongdham, Poll Watch, Thailand by the author.

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In fact new actors started occupying the political public sphere after the May 1992 incident which is also said to have led to constitutional and political reforms, mostly under pressure from several civic groups. The most important event in contemporary history however has been the promulgation of the Constitution in 1997 which is said to have provided enough open spaces for civil society groups to emerge to monitor the political reforms process. A few of the groups which emerged as a potential force include the campaign for Popular Democracy, the federation of Democracy, the Protection of Civil Rights and Freedom Group and the Institute for Political Development. The civic movement in South Korea took a more formalized orientation in 1989 with the setting up of the Citizen's Coalition for Economic Justice (CCEJ). The CCEJ (called Kyungsilryon in South Korean) was set up with a view to essentially undertake social reforms by using more legal and non-radical ways. The CCEJ’s primary focus was to work for ensuring economic justice especially in the face of rise in price of house and land. CCEJ aimed to fulfill its objectives by shunning all ideas that promoted a confrontational approach and instead stressed on the need to work for justice through cooperation and peaceful means. This core value created a separate identity and popularity for the CCEJ which also attracted many “likeminded intellectuals and ordinary citizens,” (Cho, H. and Park W. S. 2003:3) who were not keen on radical approaches to join the movement.

The emergence of new civic organizations like the Peoples’ Solidarity for Participatory Democracy (PSPD), the Korean Environmental Foundation Movement (KEFM), and Green Korea United (GKU) are a few examples of such movements which was described by Kim Je Nam as: 103 MAINS Thesis, 2009

Movements becoming more diverse owing to the situation that activists of the democratic struggle were confronted with. “After democratization was achieved, new political subjects and positions opened up and we had to move ahead by allowing the people to diversify into any different areas so as raise the level of political consciousness so as consolidate our actions for a better democratic society. In that doing each movement grew in strength and worked together.14

As many as 38 came together under an umbrella organization called Korean Council of Citizen’s Movements (Han’guk Simin Tanch’e Hyobuihoe), created on September 12, 1994. According to Sunhyuk Kim, at the beginning the membership of this organization were drawn from a wide variety of social groups: religious groups (Buddhist, Protestant, Tonghak, Won Buddhist), environmental organizations (KFEM, church-environmental institutes, green associations), women’s groups, the consumer movement, the reunification movement, the movement for educational reform, and organizations for the handicapped (Kim, 2004:148). Most of these groups have been advocating a new social activism in Korea which is in contrast to the people’s movement groups (minjung undong tanch’e) that has been trying to find a new identity in the politics of democratic consolidation. Arguably civil society groups like the KFEM represents not just an environmental movement but a crucial phase of the citizen’s movements that was initiated to play a check and balance role so as to prevent the state from using aggressive development policies to marginalize farmers and the poor during the democratization phases. The fact that KFEM joined bigger networks like the Korean Council of Citizen’s Movements (Han’guk Simin Tanch’e Hyobuihoe) to advocate a new

14

Interview with Kim Je Nam Policy Committee representative, Green Korea United, Seoul.

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social activism perhaps provides enough basis for a rational judgement about environment being an important component for establishing social democracy.

The above argument is advanced by other students of social movements who argue that environment movements like the KFEM played a decisive role in the chapter of the citizen’s movement in South Korea during the 1990s to join other groups and “change the image of social movement from violent protests in the streets against the authoritarian state to peaceful movement taking place out of concern for ordinary citizens, usually associated with consumption, education, housing, the environment, and gender equality.” (Shin, 2006: 6)

Those that have delved deep into the politicization of the social movements in South Korea, believe that organizations like the KFEM are serving a larger role. Cho Hee Yeon describes this as, “……Some activists from KFEM and other organizations created The Green Political Committee to promote the political entry as an independent party with ecological agendas. However, this group is now trying to make itself a stepping stone for an environmental political party, including environmental political education and propaganda among its agenda, based on the supposition that it will take a long time for the green party to take a root in the South Korean context. In the general election of 2004, it focused on supporting the environment-friendly candidates. In June 2004, it renamed itself 'Korean Greens (Chorok jeongchimoim) to cover more potential participants.” (Cho,H. 2005: 20)

KFEM which is an offshoot of the Korean Research Institute of Environmental Problems which was transformed into the Korean Anti-Pollution Movement Association (KAPMA) represents an important coalition in the non-state public sphere. It has been described as a coalition that can still lead coalition campaigns against authoritarian power but focuses mainly on moderate

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advocacy for sustainable and environmental-friendly industrial structures, development and technology to preserve the ecology and making it safer for people to live (Cho D., 2005:74).

Director of KFEM, The Head Office of Environment & Health Lim Ji Ae described environmental and economic advocacy issues as being only a part of the movement, that aids in the building of better coalition for the struggle for widening the democratic space.

Environment movements acted as a catalyst and were set up at a time when popular movements like labour movements did not provide much alternative with focus only on their own issues. It was an important phase which should not be simplified to an alternative movement only, but should be addressed more critically to understand how new directions and goals were set by other social interest groups. 15

The KFEM has concentrated on a number of focal projects: focal projects have included for example, preserving clean water; reducing air pollution, increasing international solidarity in the anti-nuclear movement; expanding environmental education; computerising environmental information; waste reduction; diversification of energy sources’ promoting environment friendly local politics; and educating children in environmentalism.(Kim, 2002: 101)

4.2.1. Political Character: Democratic Consolidation:

The way civil society has grown perhaps serves as an indication of the measure of contribution by civil society towards democratic consolidation. But this is not to say that countries like Thailand and South Korea has stabilized the process of democratic consolidation. In these emerging democracies, one of the challenges facing them is how to make democratic consolidation possible. This is where role of the civil society groups assumes great significance to
15

Interview with Director of KFEM, The Head Office of Environment & Health Lim Ji Ae

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ensure that a reversal to authoritarian rule is not possible. In this context the role of the elites which is represented by the ruling class, decision makers, top government officials, organizational leaders, politicians, intellectuals, is also crucial as their commitment to democracy will be largely instrumental in preventing authoritarianism. While considering the fact that in democratization of Asian countries like Thailand and South Korea the role of elites’ was pre-eminent, it must also be realized that civil society organizations active participation in the whole process was very crucial. They generated political pressure for reform, leading to the liberalizing of political systems and eventually bringing down dictatorial regimes. In Thailand for instance the three broad categories of NGOs which have been identified by researchers based on their political role include those that emphasise politics of cooperation. NGOs in this category, which are closely linked with state agencies or policies in a number of areas include the Population and Community Development Association (PCDA), the National Council on Social Welfare of Thailand (NCSWT) and the National Council for Child and Youth Development (NCCYD). The second category includes civil society organizations that strongly support grassroots movements (Thabchumpon, 2002:187). The AOP and other likeminded organizations are a few examples whereas the third category exmphasises political empowerment from below. In the rural sector village based and grassroots civil society groups have participated in substantive political reforms in areas of decentralization, participation and empowerment. A few of the high points in civil society activation oriented towards policy changes and political decisions can be traced as far back as 1995 when after continuous struggles the Electricity Generating Authority of Thailand (EGAT) agreed to pay a compensation of 90,000 baht to families who lost their fishing careers owing to the construction of the Pak Mul dam. The cabinet

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decision to stop the construction of the Kaeng Krung Dam in Surath Thani Province to generate hydropower in the early nineties is another example of influencing political decisions towards upholding people’s rights over land and natural resources (Wandee, 2000: 89). Any discussion on Thai Civil Society cannot be understood without the aspect of the urban-rural class divide. The Thai civil society is divided between the Bangkok based elite urban civil society and the rural popular civil society. (Vitit and Taylor 1994:47). The elite-urban civil society which comprises of progressive civil servants, the business community and the middle class is growing and gaining more political power. Whereas the rural based society has been virtually left out of the political process except for their role as voters during elections. This had led to the creation of grassroots NGOs in villages which are pushing hard for establishing grassroots democracy in Thailand. (Thabchumpon, 2002:186) But there are civil society groups that have grown along the lines of new social movements which are similar to Simin Undongs in South Korea, the ideological differentiation patterned along moderate orientation. According to Sakool civil society groups like the Human Right’s Watch have confined its role to monitoring all human right abuses in the country, especially the southern part of Thailand, whereas the Foundation for Consumers influenced a political decision to prevent privatisation of Electricity Generating Authority of Thailand and still aiming to get PTT back to the public. The PNAC and the brought crooked politicians and their supporters to book by sending them jail on abuse of power which was complemented by the SERC which joined People Alliance of Democracy (PAD) to oust power-corrupt and non-legitimate governments. The FOW have also influence legislations and laws to

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protect women and their children from sexploitation and harassment by politicians and influential figures.16 Similar arguments about the increasing political role of civil groups in Thailand was aired by Ratchada Apronslip, in that groups like the CFT has been covering many areas of issues workers' right, anti-privatization of public infrastructure, environmental degradation and food safety&security, health care, etc under common goal. She analysis these activities as “diverse in terms of legal amendment and drafting, raising awareness, demonstrations, public education, etc.” 17 Besides many women’s groups in Thailand such as EMPOWER, and Friends of Women Foundation (FOW), which started as charitable organizations to protect and help disadvantaged women in the rural sector and in prostitution, have been instrumental in affecting significant policy changes. The Reform in 1982 of the Local Administration Act (1914) which triggered a movement for the inclusion of women as village and district chiefs is a case in point. FOW campaigned on specific issues such as treatment of women in police custody and worked with government agencies in producing surveys and framing possible areas of state intervention. (Doneys, 2002:169) The creation of more politically active organizations in the late 1980s led to change of perception about political systems which began to be viewed less as institution to oppose but as targets to include a wider framework for political demands concerning women’s rights. The necessity which was felt at that time was to make political systems more democratic and more decentralized so as to encourage women to participate in local and national elections. These objectification of movements led to formation of the Association for the Promotion of the Status
16 17

Interview with Sakool Zuesongdham, Poll Watch, Thailand by the author. Interview with Ratchada Arpronslip, NGO activist Thailand

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of Women (APSW), the Gender and Development Research Institute (GDRI), the Gender watch Group (GWG) and the Women in Politics Institute (WPI) (Ibid. 171). Doney argues that during the period between late 1980s and the early 1990s, Thai women’s movement illustrates “the politicization of social life implied in the concept of the public sphere, where reform is shaped from outside the state.” While media and other discursive mechanisms such as conferences, hearings and seminars were used to end discrimination, women’s groups successfully launched specific campaigns to bring about policy changes. The Prevention and Suppression of Prostitution Act (1996), which transferred criminal responsibility from the prostitute to the customer and to sex trade establishments can be taken an example to highlight civil society activation towards expansion of democratic spaces. (Ibid.) In a more recent trend there have been sufficient trust from civil society to closely monitor the electoral process so as to ensure that corruption is checked at its origin and it allows for a more clean and healthy parliamentary form of governance. The role played by civil society groups like ANFREL, Poll-Net and Poll watch since the late nineties till now has led to indirect political action which too like the women’s movement have been shaped from outside. Somsri Hananuntasak describes the political character of ANFREL as: In terms of political reforms through free and fair elections ANFREL has since 1997 onwards has focused on election observation, voter/civic education, electoral reform and public awareness for good democratic governance. Most of the time ANFREL has done the work on election observation as a regional body. Anfrel networks with P-Net and Poll Watch. Though a direct participant in the institutional political arena its actions has brought some amount of awareness of democratic consolidation through free and fair elections.

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ANFREL’s influence on political reforms is justified by its role to check on the alleged abuse of power in the Election Commission of Thailand as the case under the chairmanship of Vassana Permlarp, the former Commissioner whose favour tactics towards Thaksin was questionable.18 The democratic transitions and the growth of civil society gives enough reasons for scholars of Sociology and Political Science to believe that no democratically elected government in South Korea suspend democracy or prolong its own power by undermining the quantitative and qualitative developments of civil society (Seong, K.R., 2000: 87). Seong argues that there is no alternative to democracy as a legitimate form of government. For these reasons, neither the government nor the military has ever attempted to abolish democracy since February 1988, when the democratically Roh Government took power (Ibid.). In a more specific sense the democratic consolidation process can be viewed at from issues pertaining to the state structure, administration and economy which are dealt by civil society organizations like the CCEJ and PSPD and those that concern environment, land, rights, and grassroots activation where organizations like KFEM, Green Korea and others are predominant. These two dimensions of civil society movements can be categorized as the system-centered and Life-world theory following Habermas. Cho Hee Yeon refers to this as ‘the democratic reform movement’ of the political and economic systems. Such a movement implied the democratic reform of the political system on the one hand, and that of an economic system, including a reform of Korean Chaebol and so on, on the other hand. (Cho,H., 2005: 12)

18

Interview with Somsri Hananuntasuk, Executive Director of ANFREL and former Chairperson of Amnesty International Thailand.

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Significantly, the focus of the Korean Civil society groups in the post dictatorship period has been on two aspects, that is, to carry out various institutional reforms in the political process and to expand civil liberties and human rights. The reforms movement that essentially began with the CCEJ in 1980s and early 1990s on issues such as regulation of land speculation in the name of the public concept of land ownership was later picked up by other groups like the KWAU and the PSPD for instance which played a part in the formulation on the special law on sexual violation (1993) and the National Solidarity for ‘5.18. Special Law’(1995) (Hong, 2007). The high tide of the reforms process was the nineties when CCEJ managed to influence significant economic changes like the independence of the Korea Central Bank from the political control of the government, more public provision of public housing, change of tax policy in favor of the lower class rather than business, the introduction of Real Name Financial Transaction System and reform of Korean Chaebol. These actions were well complemented by organizations like the PSPD, which successfully ran campaigns under the banner of Civic Action for the General Election in 2000 (CAGE) against corrupt politicians called 'Nakchon’ and 'Nakson movement' (Cho,H. 2005:13). “These campaigns meant that civil society movement organizations intervened in the process of a party's nomination. Those movement organizations are said to be doing a kind of proxy-party role.” (Ibid.) During the 1997 financial crisis the Economic Reform Committee of the PSPD played a crucial role in pushing for economic reform by through the Minority Shareholders' Movement as a methodology to push diverse reform agendasi. The best example of shareholders' action against improper management was a lawsuit brought against former officers of the Korean First Bank

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(KFB) on 3 June 1997. PSPD sued on behalf of 61 minority shareholders. The plaintiffs won 40 billion in compensation against the former president and directors of KFB (Ibid. 15). Other scholars like Sunhyuk Kim points to another significant event, which took place on September 8, 1999 when as many as 40 civil society groups including the CCEJ, PSPD and the KFEM launched the Citizens’ Solidarity for Monitoring the National Assembly Inspection of Government Offices (CSMNAIGO), Kukchong kamsa monitor simin yondae), which were meant to record the attendance of individual lawmakers in various committees and to evaluate their performance as well advance a list of 166 crucial reform tasks for ending corruption in private schools and deal with problems resulting from expanded implementation of the National Pension System (Kim, 2003: 89). Therefore from the arguments provided by different scholars and experts, it can perhaps be said that the democratic consolidation process has been oriented towards more transparency and wider participation of the masses for social justice to give more attention to the diverse issues that were either ignored or overlooked in the aftermath of the process of democratization in 1987. 4.2.2. Problematizing civil society movements in Thailand and South Korea: Building civil society in Thailand has been subject to speculation in the intellectual circles both inside and outside Thailand. While agreeing that there is a increasing need to understand the emergence of the new social movement following the severe state repression in 1976, the collapse of the CPT forcing most students activists and CPT members to join NGOs, it must also be accepted that most of the what is termed as the new social movements in Thailand have arisen following the failure to find an alternative to capitalism in the 1980s. Giles terms the creation of new social movements as a result “collapse of confidence in Marxism,” (Ungpakorn,

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J.G. 2003:291). The period is crucial as it is thought to have shaped the present order of social movements. In Korea new social movements arose more out a necessity to provide a free space for the nonstate and the masses to redress past injustices committed during the dictatorship period and also to monitor the political administration of democratic governments. While there appears to be no contradictions in the formation of the Shim Undongs what is critical perhaps are the internal weaknesses that plagues Civil Society thereby inhibiting the growth of both formal and social democracy. Where self-interests have tended to predominate, there have been intense conflicts between civil society groups. To name of few of these collisions are the conflicts between Taegu-Kyungbuk and Pusan-Kyungnam over the issue of a large scale industrial complex in the upper area of Nakdong River. This is a case of inter-regional conflict which has failed to bring the civil society on a single platform (Kim, 2002: 101). The convergence of different Civil Society actors under one platform has not been easy, reasons being very many. In Thailand for instance in the wake of acute class division that pervades the Thai society, there cannot be any one concept for different civil society groups. Each group represents a certain kind of aspiration. For example the idea of good governance which is an elitist concept and promoted by leading Thai intellectuals does not conform to the idea of a civil society which represents a non-state public sphere completely free of state control. This idea has been compared to a ‘state-led civil society concept,’ which has been elaborated by Frolic in his study of civil society in China which is essentially a creation of the state to support the state mechanism. (Somchai, 2002: 133).

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The state led-civil society which has been compared to the idea of democratic elitism tends to increase the class division between the elite and the poor who are mostly farmers from rural Thailand. This has been a major factor which has led to the present political turmoil in Thailand with the Peoples’ alliance for Democracy (PAD) which is a loose collection of Authoritarian Royalists doing everything possible, in the most undemocratic manner to overturn the mandate of the major electorates, the poor and rural population, for reinstituting the oligarchic order in Thailand. Moreover, the belief that the survival of democracy in Thailand depends upon ‘the leadership of the Bangkok based ‘enlightened’ elite, who reject the rural and poor urban voters as “uneducated and ignorant,” has also undermined the democratic consolidation process, especially in so far as the role of divergent groups of civil society groups are concerned. Today the power to influence political changes, to extent of overthrowing elected governments by force rests with the middle class elite that swears by the power of the monarchy. On the other hand, the idea of good governance which was promoted for social justice through the rule of law, particularly in the case of corruption, has become an elitist tool to exploit the poor. For instance Banpassirichote argues that the rules made to protect the poor have often been turned against them forcing them remain underdogs of civil society (Banpassirichote, 2004: 229). At the same time, the extra bureaucratic polity has also expanded in the form of a growing NGO sector which has also worked against the interests of the poor, farmers and the marginalized. In Korea the problem is not so much about a class divide but more of a case of regionalism which has been the most critical issue in a sociopolitical sense, developing alongside a highly centralized state. Regionalism which is especially strong in Cholla, Kyongsang, and Chungchong

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is believed to have played a major role that has political processes, from formation of political parties to creation of political alliances and determining electoral outcomes (Seong, 2000: 136). Korean civil society has been questioned by critics about other more technical aspects pertaining to management and functions of social movements organizations. For instance the voluntary nature of participation of members in civil society organizations has been subject to much skepticism with political scientists and sociologists arguing that while participation of ordinary citizens is broad it is not based on firm commitment (Ibid). Kim has quoted figures documented by Han’gyorae shinmun, (May 13, 1996) to show that in CCEJ even as membership increased dramatically since 1989, but the number of paid members remained very small at less than 10 per cent. This has provided enough scope for free riders in the drive to produce public good (Ibid.). The apparent failure of civic organizations to build a cooperative linking network with interest associations too has come up for debate. Different people cutting across the social rubric view this differently and there is no one opinion which tends to agree or disagree. For instance many believe: Civic mobilization in the democratic consolidation process has similarities with the democratic transition which has been a key factor for show of solidarity by different groups and the ordinary citizen. Developments like the formation of the Emergency Committee on Enacting a Special Law for Punishing the Perpetrators of the May 18 Massacre, establish by 297 civil society groups in 1995, the 1997 protests against various antidemocratic legislations, candle light vigil in 2004 against the accidental killing of two Korean girls by an American soldier vehicle and the 2008 massive demonstrations against the Lee Myung

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Bak regime’s conservative policies, all point towards the fact that even though the nature of protest may have changed, but the pattern, leading from students to teachers and then encompassing others like religious activists, industrial workers, teachers and ordinary people into a larger civil society mobilization program has been almost similar to the 1980s democratic movements.19 However, KFEM Director Lim provides a slightly different perspective in that she argues: The patterns of movements have changed and where the main actors are not necessarily civic action groups. “Democracy cannot be explained through the 1987 framework these days, as the chain of action that was created even in the 2008 candle light demonstrations were a spontaneous reaction where the website played a key factor in strategy building,” she argues. She terms the changes in character in social movements as the web brigade movement, but admits that the basic purpose which is opening up more autonomous spaces for democracy remains the same.20 The other critical area of discourse has been the relatively poor performance by the Korean civil society groups to internationalise the social movements and establish transnational networks. A prime reason for this has been attributed to the continuance of the strong legacies of minjung nationalism which can be traced back to the anti-colonial movements against Japanese imperialism.

19

Focus Group Discussions (FGDs) with with teachers, students, scholars, labour groups, peace activists and others. The author interviewed KFEM Director, The Head Office of Environment & Health, Lim Ji-Ae who provided a detailed account of the changes that have taken place in the character of movements. She cited many reasons for explain changes. Democracy education in schools has made students more pro-active in using the internet to expand democratization process which is a key feature of the 3rd democracy period. The 80s generation have gone into specialized form of activism and therefore coalition building becomes a challenging task, which creates conditions of spontaneous participation on any issue confronting civil society and democratization.
20

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A number of scholars of social science have tried to prove that the ideological orientation based on nationalist sentiments have caused a decline in social movements. They argue that transnational agendas were used as motivational factors in the campaign against FTA in the opposition to neoliberal globalization. Instead these protests are said to have been based on “a nationalist reaction” to U.S.-led imperial globalization, and that they were justified as “a patriotic act to save the national economy and the lives of Korean people threatened by U.S. imperialism.” (Glassman; Park; Choi, 2008: 358) The reaction of Korean social movements to the 1997 economic crisis too has been described as influenced by the nationalist framing. Analysts have summed up the reaction by Korean Civil Society on the IMF bail as driven by more nationalist considerations which is perhaps exemplified by the way nationalist campaigns were taken out in the name of “National Debt Compensation Movement” to protecting national sovereignty (Ibid.). The civil society movement which is also popularly referred to as the NGO movement appears to have extremely contradictory from inside. While on the one hand it promotes the cause of the poor and the oppressed but on the other, it displays a political character that belies its pro-poor pro-social justice image. The very fact that most of the civil society groups in Thailand operate within an ideological framework that conforms to free market neoliberalism and the ruling capitalist class, perhaps describes the dichotomy of civil society’s role in democratic consolidation. 4.3. Conclusion: The emergence of the idea of “new” social movements and “civil society,” was based on a “selflimiting radicalism,” which was prepared to abandon the old revolutionary objective of seizing state power. The growth of civil society organizations after the 1980s following the collapse of

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communism in most parts of the world, is often identified as a cause for the differentiation of ideological orientation from a more radicalized to a moderate and cooperative form that was increasingly prepared to work within the parameters of the state by being lesser confrontationists and more collaborative. The case of Thailand and South Korea is not too different in the sense that in both these countries, the emergence of new civil society organizations can be traced to similar historical contexts when the state was extremely suppressive and dictatorial in nature. The harsh conditions which led to movements for democratic struggles laid the foundation for the diverse orientations in social movements that followed the ouster of dictatorships by movements that started from below. The growth of new civil society groups in Thailand has been a complex process with many scholars and analysts linking the initiation of these groups to the dismantling of the CPT in 1976 following the brutal repression against communists by the state. Thus it is often believed that the situation that prevailed during the 1970s period played a decisive role in the ideological orientation of civil society groups. While many student activists and intellectuals who had joined the CPT were left disillusioned with the latter’s authoritarian style of functioning and consequently returned back to join NGOs, others clung on to their radical beliefs and tried to wage isolated battles against the state. Incidentally, the complicacies arising out of this situation also led to huge divisions between the left and the left moderate groups, besides creating antiprocesses which was largely responsible for the foreign funding dependency syndrome. In South Korea the evolution of new civil society groups was more in response to the complex environment that confronted the 1980s activists, in terms of utilization of the political and social spaces that were created by the democratic uprisings. While the fact remains that

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anticommunist regimentation was never at its end point, with a section of elite always fanning it across the social fabric, radical movements that were identified with labour struggles and student movements seem not have an answer for other newer and somewhat complex social aspirations. This prompted a slow transformation of ideological orientations and gave rise to groups like the CCEJ, KFEM or the PSPD to widen the democratic space and make the political society more accountable for its actions. A striking contrast between these two countries, if it may be termed as such, is the composition and what is called the associational life with Thailand civil society presenting a complex mix between being autonomous and state-led or driven by other external considerations such as foreign funding, whereas in case of South Korea most of the civil society organizations that emerged during the 1980s, have succeeded in retaining their identity as a non-state actor that is dependent mostly on memberships for its sustenance and not on the state or outside support. However, this is not to say that civil society-state relationships is confined only to institutional politics as many organizations like Green Korea, KFEM and other Life-world centered groups accept government funds, but on a strict set of guidelines which not only makes their action legitimate but also prevents any hindrance to their work as civic groups that are free of state control. In Thailand the role of middle class has been crucial in the unfolding of democracy and this was made possible by the economic success of the 1990s. The rise of middle class in Thailand led to the demands for more openness, political liberalization and democratization which allowed civil society groups to withstand supressionary pressure from state institutions, especially the bureaucracy and the military. This in turn created sufficient spaces for issue oriented organizations like the confederation of democracy, women groups like EMPOWER, FOW,

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grassroots environmental groups and election monitoring groups to continue the struggle for liberal democracy. In South Korea too the middle class exerted strong pressure for democratic change, but what was more noticeable was the major roles played by civil society and mass mobilization to deepen political, economic and social reforms. Arguably, in contrast to what Tarrow observed, that “elite choices spear to predominate at the consolidating phase of newly emerging democracies,” (Tarrow, “Mass Mobilisation and Rgime Change,” p 207.) South Korea’s case was the reverse. Thus from the above comparison it can be said that while in Thailand the middle class played a decisive role in the democratization phase, which many critics view as a cause of the politics of class divide, in South Korea, the elite or the middle class bourgeoisie impact was not as profound and dominating making room for participation of people from across the social spectrum. The role of the civil society during democratic struggles notwithstanding, the dynamics of social and political changes demands that it plays a more complex role, especially in so far as creation of free public spaces are concerned and sharing of the public space equally by everyone. As has been discussed in the chapter above, it can be clearly seen that civil society groups in both Thailand and Korea were provided with diverse situations, but under a somewhat similar environment of democratic struggle. The issue confronting civil society groups was to strengthen the democratic arena but with a different approach that was more legal and less radical. In this direction, civil society groups faced several challenges which ranged from the voluntary nature of participation of members in civil society organizations, absence of adequate number

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of social activists to support much needed public action to sustain ongoing reforms and asymmetric power relations.

Chapter 5. 5.1 Recommendations based on the research and literature analysis: To make democracy more participatory and pluralistic in nature, there should be a conscious effort to include the communist or the Left aligned parties in the fold as is the case with many other Asian countries like in India where communist parties have an important place in the political system. Both the progressive and the new social movements in Thailand and South Korea perhaps must make serious endeavours to effect political changes which could see the participation of Left political parties in the political mainstream. Though Korea has the labour party and some political parties in Thailand are said to be inclined towards the Left, but that they cannot exist as parties promoting Leftist ideologies perhaps doe not augur well for a healthy and functioning democracy. In both Thailand and South Korea there is an absolute need to recognize the radical elements that exists in grassroots peoples movements or labour movements. Besides the radical elements in these movements has to be sustained to enable them to withstand challenges posed by the state and other state controlled institutions. For a free and smooth passage of democratization labour movements must be allowed to grow freely without any state influence. In Thailand state enterprise managed labour movement cannot be accepted as a progressive movement.

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Third Way Reformism as practiced by some groups in Thailand may be promoted as an alternative to organised labour or progressive movements. This is connected to the history of the Left and the gradual disappearance of communism from Thailand. Autonomists should play a more proactive political role. In this context the principles of the AOP needs to be expanded and made politically more crucial. Good Governance should not be an yardstick to define or measure movements like the AOP. Building of grassroots based political parties extremely essential in order to build democratic structures within groups and organizations working for the cause of grassroots peoples like farmers and marginalized communities. In other words organisations must democratize from inside. In South Korea though grassroots peoples’ movement has been able to rapidly expand its local branches and new sub-organisations there is a need to address issues of class and equal participation of women. For instance class consciousness in the labour struggle in korea needs to be accepted so as to understand the complexities in the movements. Marginalisation of women in labour movements is another critical issue, as it has often led to ignorance of women’s contributions towards building the labour consciousness. Labour groups must rethink their objectives and adopt a uniform strategy that takes cares of the needs of all workers and not just of the interest of better off workers. The need to prevent polarization and heterogeneity in workers interests must not be dismissed as speculative “wrapped academic concerns,” but rather as a serious problem confronting the ideological sustenance of the labour movements in South Korea.

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The state must refrain from suppressing the interest of labour and not devise strategies to coopt organised labour under a more state controlled unionized system as this would hamper the process of democratic consolidation. Further the process of democratic consolidation will fail if the elites do not make serious commitment to democracy. While, there is no denying the fact that grassroots and other civil society organisations have generated political pressure for reforms, the role of elites was also pre-eminent in the bringing down of dictatorial regimes. The elites are often categorized as top decision-makers, organizational leaders, politicians, top government officials, intellectuals, leaders in the private sector, and opinion shapers. Analysts like Suchit Bunbongkarn is of the opinion that a reversal to an authoritarian rule difficult, if not impossible if the elites are committed to democracy. If the elites split in their political beliefs and a large number favor authoritarianism, a reversal to authoritarian rule is possible. (Bunbongkarn 1999:54) There is need to understand the role of new social movements particularly with reference to the political space within which each of these movements operate in different geographical domains. To distinguish the character of new social movements from those that tend to be under the control of the state, it is important to identify it with the politics of democratic consolidation. In the case of the present study the historical significance of events like the democratic struggles during the dictatorship periods in Thailand since the 70s through the 90s and the Great Democratic Struggle (Yuweol Minju Daehangjaeng) in South Korea needs to be recognized for a clearer understanding of the genesis of new social movements and the differences therein. In order to understand the role of new social movements in different situations a comparative analysis is strongly recommended.

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Though a corporatist relationship between civil society groups and political parties has been a success story in Korea, it may not always work well, especially when the political situation if fragile as is the case of contemporary Thailand or under the present conservative government in Korea. Therefore, it would suffice to say that corporatist relationship should be based on clearly laid out objectives and principles. Civil society must reduce internal and inter-regional conflicts to avoid a reversal to authoritarian rule or allow conservative forces to suppress the growth of social movements. Recognition of class division within society is essential for creating a more uniform ideological orientation based on a more rational approach. This is applicable to both Thailand and South Korea. The concept of state-led civil society must be subject to further discussion and academic discourses as it tends to create a class division. In Thailand for instance the good intention behind the idea of ‘good governance,’ notwithstanding, the fact that it promotes democratic elitism which believes in free market neoliberalism, such initiatives cannot be regarded as movements within the non-state public sphere. Further the concept of good governance has to be applied to other regions outside Bangkok. It must be able to embrace the needs of the poor and allow for creation of free democratic spaces to challenge the state on policy and other issues concerning governance. Owing to the class divide in Thailand often rural and poor urban voters have been regarded as ‘uneducated and ignorant,’ which is against the principles of a participatory democracy where

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free flow of expression and the exercise of the rights of choice must be respected. This should not be encouraged in a society that promotes democratic standards. In South Korea ordinary citizens who are members of new social movements must show more commitment by becoming paid members so as to ensure more accountability and more active participation for generating public good. Networking amongst the different social movements groups is highly recommended for better civic mobilization in the democratic consolidation process. There should be more efforts to internationalise social movement issues and establish transnational networks. Further ideological orientation of social movements should not be based on nationalist sentiments. Also changes in social movements with increasing use of technology must be welcomed by everyone, especially civic action groups. Finally civil society movements must have a political character which is pro-poor and pro-social justice. Civil society movements may support the idea of free market neoliberalism but it must not affect the process of democratic liberalism. 5.2 Conclusion: From the study on civil society changes it is apparent that the evolution of civil society groups in Thailand and South Korea as legitimate non-state public institutions provided an opportunity to challenge the state’s undemocratic policies besides triggering a process of political pluralism. This pluralism needs to be understood from the perspective of how and why social movements diversified owing primarily to a shift in differentiation of ideological orientation between civil society groups mostly during the post dictatorship periods. Various cases have been highlighted

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in the study such as breakdown of the CPT in Thailand in the mid-70s and the creation of an alternative new social movement (Shimin Undongs) in South Korea to show how movements that started on the same ideological position to oust authoritarian dictatorships diversified over a period of time. A significant observation was that while most of the civil society movements in both the countries had unique and distinguishable characteristics, some being very State controlled as is the case for Thailand, yet what perhaps assumes great significance is that the central objective of these movements was to push forward the agenda of democratization. Further, it has been seen that even though there was a systematic move by the State and external powers such as the U.S to eliminate communism from society, there were several forms of resistance from within civil society throughout history and also up to the modern day and time. It is another thing that most of the resistance that had some Leftist centric elements came in different forms, like for instance the autonomist led grassroots movements in Thailand and the labour movements in South Korea. Perhaps, given the historical process of ‘anticommunist regimentation,’ in the society, the process of diversification within civil society was a natural and unavoidable occurrence. Regardless of the suppression against the radical forces what cannot be ignored is that the process of democratization in both these countries was possible only with the emergence of civil society in the form of student activists, intellectuals, labour, religious groups and the middle class. This group, though at times dominated by the elite, especially in the case of Thailand they did not hesitate to challenge military backed undemocratic regimes that suppressed all forms of human rights and civil liberties. However, it has been shown by many authors that the policy of suppression of communism in these countries had an significant impact in that, firstly, it widened the gap between the Left and the Right and secondly it led to a gradual marginalization of the former so much so that

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these groups have to survive within a very contested political space. This systematic eradication of the Left forces from the emerging political space has striking similarities in both countries though under different situations. Further, the dramatic changes that radical movements have undergone in both these countries is a plausible indication of the fact that different kinds of survival strategies were adopted to sustain their struggle against suppressive regimes and governments. While in Thailand the radical movements diversified into grassroots peoples’ movements—Third way reformism— centered on Life World issues, like the AOP, in South Korea labour movements succeeded in withstanding the challenges and retained its radical face, besides being recognized as the progressive movement that contributed substantially in the Great Democratic Struggle. From several academic researches, it has been possible to identify the differences between labour movements in the two countries. While in Thailand labour movements have been mostly about state enterprise unions, which forms the backbone of the so called, “Thai labour movement,” in terms of manpower and resources, in the South Korean case democratization opened up sufficient opportunities for workers and labour movements to advance its ideological orientation and develop a popular base. Therefore, in contrast in Thailand Autonomists are accepted as the most suitable alternative which represents the struggle of the workers, daily wage earner, the farmer and the poor. Moreover, the fact the autonomists reject the State and refrain from building political alliances has been a key factor that provides a more radical face than other forms of scial movements, even labour in Thailand. Another significant observation of the study is the rapid growth of white-collar workers in South Korea during the 1990s which spread to diverse sections in the service industry. Further, the incorporation of civil servants into movement, though law prevented such actions helped the

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grassroots movement to experience increased solidarity. The formation of the National Teachers Union (NTU) the consequent dismissal of 1,500 teachers for participating in unionization movements perhaps provides a clear explanation of how the grassroots movements, which had labour in the lead, became extremely popular. On a more critical aspect Autonomists like the AOP have been shown to be closer to Right Wing reformists owing primarily to that fact that they accept elitist ideas of good governance their inability to induce significant policy change. Compared to this in Korea the main issue confronting the progressive movement, is that of conflicting positions on formation class consciousness and the ignorance of women’s contributions towards building the labour consciousness. There continues to exist contradictory views on the formation of class consciousness in South Korea with many arguing that the post 1987 Korean labour movement owes little to the earlier struggle and that Korean workers arrived at this stage largely because of structural changes in the working class and the democratization process. Moreover, Korean labour movement, despite its very progressive face has been questioned for losing their objective to represent the socially weak population and instead organizing themselves around “the interest of better off workers, creating polarities in the labour market and heterogeneity in workers’ interests and identities, while at the same time ignoring broader community issues. This has been described as one factor that prompted activists to start a separate the citizen’s movements or new civic movements in the 1990s in South Korea, while in Thailand citizen movements evolved more as a consequence of the collapse of the CPT. In the study the focus was more on the ideological positioning of movements in the present day that is to provide a categorical understanding how and why changes occurred in social movements from an ‘old’ to a ‘new order.’ From the secondary data and interviews it was

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apparent that the concept of new civil society movements or the changes in the movement itself is interpreted differently by different authors based on the context of their emergence. While in Thailand any study on civil society organizations especially those pertaining to the current understanding of new social movements has to be studied from the openness of the political space provided by the state as well as the perspective of the general public regarding extra-parliamentary democracy as there exists a very thin demarcation between NGOs which are independent but depend on foreign funding and those that are state led and are more elite in character. However, the demarcations are much more clearer and distinct in the case of South Korea where the new civic movements called Simin Undong are considered more autonomous and free from the control of the state, in other words, almost fitting the now accepted “non state public sphere,” definition of civil society. The new civil society groups are considered moderate which differentiated themselves from the progressively oriented grassroots people’s movement, which has led the anti-dictatorship movement, and established themselves as a kind of new movement with its own independent identity. This new movement is characterized as 'liberal' in its main ideological orientation. An important observation of the study is that the civil society movements, especially those that displayed a more liberal character, adopted a more non-confrontationist approach with the state but the progression and outcome of these movements have been strikingly different. For instance a clear distinction between the civil society movements the two countries can be found at a very nascent stage, that of conceptualization. Compared to the South Korean Simin Undong which provided a kind of self-empowerment making the movement apolitical and free of state control, in Thailand the liberal movements were based on the principles of Pracha Sangkom and

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good governance which includes the state and some of the institutions of the market in the idea of civil society. To match up to the Korean liberal movements that primarily focused on generating a new kind of awareness of civil and political rights as well as political consciousness, a crticial investigation revealed that from CPT members or its sympathizers have transformed themselves into civic educationists playing a crucial role in political development in that they focus on nonpartisan projects such as voter education, election monitoring etc. The cases of the Poll Net and the Asian Network For Free Elections (ANFREL) have been used to substantiate this fact. Another vital observation was the divergent ways civic movements in South Korea and Thailand took, though the central idea was to trigger a process of reforms. The civic movement in South Korea took a more formalized orientation in 1989 with the setting up of the Citizen's Coalition for Economic Justice (CCEJ) followed by other groups like the Peoples’ Solidarity for Participatory Democracy (PSPD), the Korean Environmental Foundation Movement (KEFM), and Green Korea United (GKU) to essentially undertake social reforms by using more legal and non-radical ways. In the case of Thailand the civic movement groups are understood to have evolved sometimes as loosely as social reformers whereas at other times under very formalized by state-controlled or state or foreign fund supported associations. However, immaterial of the divergent paths and outcomes, what was also important to note was that civic action groups have played a key role in the process of democratic consolidation in both these countries. Though it can said that there are still huge challenges facing democratic consolidation in both countries and that these democracies are still vulnerable, what also cannot be ignored is the fact that besides the rural and grassroots based organizations and groups the role of the elites has

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been a key towards the consolidation of democratization in these countries. Different movements like for instance ANFREL’s influence on political reforms to check on the alleged abuse of power in the Election Commission of Thailand and the PSPD, campaigns under the banner of Civic Action for the General Election in 2000 (CAGE) against corrupt politicians called 'Nakchon’ and 'Nakson movement' have shown how the role of elites are so crucial in the process of democratization. Finally it must be said that civil society organizations in a very Asian perspective play an extremely meaningful role in so far as the question of advancing the process of democratic consolidation is concerned. The challenge to overcome is how to make democratic consolidation a continuing process without the danger of a reversal to authoritarian rule. Perhaps the answer lies in making the civil society more autonomous and strong enough to resist manipulation by the state and business interests.

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Gellner, Ernest, 1994, Conditions of Liberty: Civil Society and Its Rivals. HarmondsWorth:Penguin. Gerhard Lehmbruch, “Germany”, in Yamamoto Tadashi, ed., Governance and Civil Society in a Global Age, Tokyo: Japan Center for International Exchange, 2001, p. 230. Girling John, 2002, Conclusion: Economics, Politics and Civil Society: In Reforming Thai Politics. Edited by Duncan McCargo, Nordic Institute of Asian Studies, Denmark, pp.266 Glassman, Jim, Park, Bae-Gyoon and Choi, Young-Jin, 2008, 'FAILED INTERNATIONALISM AND SOCIAL MOVEMENT DECLINE', Critical Asian Studies, 40:3, pp. 339-372 Habermas, J., 1987, The Theory of Communicative Action: Vol II. Boston: Beacon Press Hipsher, P.L, 1996, "Democratization and the Decline of Urban Social Movements in Chile and Spain," Comparative Politics, Vol. 28, No. 3, Apr., pp. 273-297.

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Kim, Sunhyuk, 2004, South Korea Confrontational Legacy and Democratic Contributions. In Civil Society ad Political Change in Asia Expanding and Contracting Democratic Space, Edited by Muthiah Allagappa, Stanford University Press, Stanford, California. pp 140-148. Koo, Hagen, 2001, Korean Workers, The Culture and Politics of Class Formation, Cornell University Press, USA. pp. 184-189, 192-197. Kyoung-Ryung Seong, 2000, Civil society and Democratic Consolidation in South Korea: Great Achievements and Remaining Problems. In Consolidating Democracy in South Korea. Edited by Larry Diamond and Byung-Kook Kim, Lynne Reinner Publishers, Boulder London. pp. 87 Kyoung Ryung Seong, 2000, Delayed Decentralisation and Democratic Consolidation. Institutional Reform and Democratic Consolidation in Korea. Edited by Larry Diamond and Doh Chull Shin. Hoover Institution Press Publication No.461. pp. 136. Lee Hock Guan, 2004, Civil Society in Southeast Asia, Nordic Institute of Asia Studies (NIAS) Press, Singapore, 2004). ch. 1. pp. 1. Lee, Seoungwan, 2008, The Litmus of Democracy: The articulation of democracy and anticommunism in South Korea (1945-1972), Ph.D Thesis, Department of Government University of Essex. pp. 23, 28. 74 Missingham Bruce, 2003, The Assembly of the Poor in Thailand, Silkworm Books. and Ji Giles Ungpakorn (2003) Challenges in the Thai NGO Movement from the dawn of a new opposition to global capital. In : Ji Giles Ungpakorn (ed) radicalizing Thailand. pp.187, 291-312. Missingham, B.D., 2003, The Assembly of the Poor: From Local Struggles to National Protest Movement, Chiangmai, Silkworm Books.

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Naruemon Thabchumpon, 2002, NGOs and Grassroots Participation in the Political Reform Process, in Reforming Thai Politics. Edited by Duncan McCargo, Nordic Institute of Asian Studies, Denmark. pp. 186-188 Niran Kultanan, 1994, “People’s organisations and the environment: a case study of Northeast Thailand”, TEI Quarterly Environmental Journal. Vol 2, no.2, April – June 1994. Pasuk Phongpaichit, 2000, “Civilizing the State: civil society and politics in Thailand”, Watershed, vol.5 no.2, November 1999-February 2000. Pasuk, Phongpaichit & Chris Baker, 2002, Revolution and Dictatorship. In Thailand Economy and Politics (Eds.), Oxford University Press, New York. 2nd Edition. pp. 293. Prapass Pintobtang, 1998, Kan Muang Bon Tong Tanon (politics on the streets: 99 days of the Assembly of the Poor and histories of demonstrations in Thai society) Kroek University, Bangkok. Shin, Yeong Kwang, 2006, The Citizens’ Movement in Korea, Korea Journal, summer, pp. 6. Simpkins Dulcey, 2003, Radical Influence on the Third Sector: Thai NGO contributions to socially responsive politics. In Radicalising Thailand (Eds.) Institute of Asian Studies, Chulalongkorn University, Thailand. pp. 256-261 Somchai Phatharathananunth, 2002, Civil Society and Democratization in Thailand: A critique of elite democracy’ in Duncan McCargo (ed), Reforming Thai Politics, Copenhagen: Nordic Institute of Asian Studies. pp.125-142. Suthy Prasartset, 1995, ‘The Rise of NGOs as a Critical Social Movement in Thailand’, in Jaturong Boonyaratanasoontorn and Gawin Chutima (eds.), Thai NGOs:The Continuing Struggle for Democracy, Bangkok:Thai NGOs Support Project (TNSP), pp 97-134.

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Suthy Prasartset, 2004, From Victimized Communities to Movement Powers and Grassroots Democracy: The Case of the Assembly of the Poor. In Democracy and Civil Society in Asia Vo. I Globalisation, Democracy and Civil Society in Asia, Edited by……. pp. 5, 140-149. Thabchumpon Naruemon, 2006, Contesting Democracy: Thailand’s Forum of the Poor, PhD. Thesis, The University of Leeds School of Political and International Studies. pp. 2, 70-79, 223 Thirayuth Boonmi, 1998a, Sangkhom khemkhaeng, thammarat haeng chat (Strong Civil Society: Good Governance). Bangkok: Saithan Press. Ungpakorn, J.G., 2007, A Coup for the Rich, Thailand’s Political Crisis, Workers Democracy Publishing, Thailand pp. 84-96 Ungpakorn, J.G., 2003, Challenges to the Thai NGO movement from the dawn of a new opposition to global capital. In Radicalising Thailand (eds). Institute of Asian Studies, Chulalongkorn University, Thailand. pp. 15, 291-312. Wandee Santiwuthnethi, 2000, Sib Pii Khoen Pak Mul (Ten Years of the Pak Mul dam: the fight of the rebel poor” in Sarakadee. vol.16, no.184, June 2000. pp. 89 –107. Yoon-Kyung, Lee, 2003, Labour Movements and Democratic Consolidation in Korea: Gains and Losses. Political Science, Duke University pp.59. http://english.kfem.or.kr/aboutus/aboutus1.htm

ANNEXURE: Rethinking Civil Society: Toward Democratic Consolidation,” Journal of Democracy 5 (1994): 5.

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Dalits in India: History, Reality in grassroots and Challenges to the Dalit Movement

Thesis submitted in partial fulfillment of the requirements for the Degree of Master of Arts in Inter-Asia NGO Studies

By Mohammad Moosa Azmi

Supervisor Prof. Khwan Jin Khwan

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I hereby certify that this thesis is a result of my work except where otherwise indicated and due acknowledgement is given.

SIGNED

DATE

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ACKNOWLEDGEMENTS I have cumulative debts of my Professor, mentor, friends and colleagues in completing this thesis. The greatest debt is to my supervisor Professor Khwan Jin Khwan, whose consistent supervision and counseling made me to work with full effort and enthusiasm. Considerable gratitude is due to May,18 foundation, Hyundai Kia Motors and SKHU whose financial support enabled me to continue and complete my thesis. And is also due to Mr. Chanho Kim and Professor Jin young jong, who considered my candidature suitable for the MAINS Scholarship. My sincere thanks and gratitude to Mr. Henri Tiphagne, Executive director, People’s Watch, who taught me a lesson of forward-looking and developed insight for social problems and nurtured in me an activist. My sincere thanks and gratitude is also to Mr. J. Manohar Vincent, Mr. Paul Dewakar and Mr. Anand Kumar Bolimera who pulled me towards Dalit movement and inspired me to work for it for social justice. I am highly obliged to Professor Francis daehoon Lee, Professor Margret, Professor Andrew Aeria, Professor Yongpyo, Professor Rajiv Narayan, Professor Cho Heeyeon and Professor Cho Hyoje for their kind cooperation and support. Last but not least sincere thanks to Mr. Erick, Mihyon, Bonojeet Hussain, Dr. Lenin Raghuwanshi and all my Friends and class mets. This work is dedicated to Anita, 8 year old Dalit rape victim and survivor, who inspired and strengthened me to move ahead in life in the direction of Social activism with Renu Mishra, Aparna and Ranjana Gaur, women activists, to ensure her fight for and justice.

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Outline Introduction …………………………………………………………………………………..6 Chapter 1 - A Brief history of Dalits in India ………………………………..…………….10 1.1 1.2 1.3 1.4 An understanding of Caste and Varna according to Indian Religions view ……….....12 Historical facts about Caste and Varna………………………………………………..17 Dalit History in the Colonial Era…………………………………………………...…23 Resistance against the Caste System in Early India and its Current status……...……28

Chapter 2 - Approaches to the Welfare of Dalit……………………………………………34 2.1. Contribution of M. K. Gandhi to the Dalit movement………………………………..…..35 2.2. Contribution of Dr. B. R. Ambedkar to the Dalit movement………………………..……37 2.3. Differences between Gandhi and Ambedkar………………………………………..….…39

Chapter 3 - Current situation of Dalits in India …………………………………...………44 3.1. Dalits’ education in India…………...…………………………………………..........……44 3.1. A- Historical background of educational development for Dalits ...……….....…46 3.1. B- History of Dalits’ education…………………………………………….……47 3.1. C- Educational structure and understanding of dropouts’ status or ‘throw out system’…………………………………………………………………….…52 3.1. D- Dalits in Higher Education…………………………………….......................58 3.2. Dalits’ land rights and its Current situation in India………………………………………59 3.2. A- Steps taken by the Government of India and the realities of those steps……..62 3.2. B- The Current situation of Dalits’ land rights and their struggles………………64 3.2. C- (i) A case study of Bhudan land distribution…………………………………64 3-2-C - (ii) 21 Dalits shot in land Dispute…………………….………………………65 3-2-D- Dalits’ land rights and Globalization…………………………………………66 3-3- Dalit women rights………………………………………………………………….……68 3-3-A- Dalit women in Asia…………………………………………………….……70 142 MAINS Thesis, 2009

3-3-B- Violation of Dalit women’s rights……………………………………………71 3-3-C- Special Dalit women’s occupations..................................................................72 3-3-D- Economic deprivation of Dalit Women………………………………………73 3-3-E- Dalit women and Human rights………………………………………………74 3-3-E (i) - Civil and Political rights……………………………….…75 3-3-E (ii) - Economic, Social and Cultural rights……………………76 3-3-E (iii) - Millennium Development Goals and Dalit Women…….77 3-3-F- Dalits Women’s struggle………………………………………………..……77 3-3-G- The Vision and the role of Dalit Women’s liberation…………………….…80

Chapter 4 - Role of Civil society or NGOs to eliminate the Caste system in India……...82 4-1- First Case study- NCDHR (National Campaign on Dalit Human Right)………….……84 4-2- Second Case study- PVCHR (People’s Vigilance Committee on Human Rights)….…..86 4-3- Review of NGOs and Civil society activities, Limitation and Challenges…………..….90

Chapter 5 - Conclusions…………………………………………………………………..…98 References .............................................................................................................................102

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Introduction “Educate, agitate and organize; have faith in yourself. With justice on our side I do not see how we can lose our battle. For ours is a battle not for wealth or for power. It is a battle for freedom. It is a battle for the reclamation of human personality.”21 Dr. B. R. Ambedker (1891-1956)

Many a time untouchability in India and slavery in Europe are compared with the presumption that untouchability is tolerable or less harmful than slavery. It is true that neither slavery nor untouchability is a free social order, but as Dr. Ambedkar maintained, If a distinction is to be made and there is no doubt that there is the distinction between the two, the test whether the education, virtue, happiness, culture, and wealth is possible within slavery or within untouchability.22 Dr. Ambedkar further argued Judged by this test it is beyond controversy that slavery is hundred times better than untouchability. In slavery there is room for education, virtue, happiness, culture or wealth. In untouchability there is none. Untouchability has none of the advantages of an unfree social order such as slavery. It has all disadvantage of a free social order.23

But the following views of Dr. Ambedkar distinguish slavery from untouchability in a more profound manner. Dr. Ambedkar maintains as follows: Slavery was never obligatory. But untouchability is obligatory. A person is permitted to hold another as his
21

These are probably the most frequently quoted words of Dr. B. R. Ambedker. You see them on the banners, T-shirts, websites, leaflets and books of Dalit activists. 22 Ambedkar, B. R. (1989). Babasaheb Ambedkar : Writings and Speeches, Government of Maharashtra, Vol. 5, p. 17 23 Ibid

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slave. If he wants to, he can free his slave, and by doing so this slave has the ability to become an equal member of society. But untouchable has no such option. Once he is born untouchable he is subject to the full social disability of an untouchable. The law of slavery permitted emancipation. Once a slave always a slave was not the fate of the slave. In untouchability there is no escape. Once an untouchable always an untouchable.

Another difference is that untouchability is an indirect and therefore worse form of social oppression. The deprivation of a man’s freedom in an open and direct way is a preferable form of enslavement. It makes the slave conscious of his enslavement and to become conscious of slavery is the first and most important step in the battle for freedom. But if a man is deprived of his liberty indirectly he has no consciousness of his enslavement. Untouchability is an indirect form of slavery. To tell an untouchable ‘you are free, you are a citizen, you have all the rights of a citizen’, and to tighten the rope in such a way as to leave him no opportunity to realize the ideal is a cruel deception. It is enslavement without making the untouchable conscious of their enslavement. It is slavery though it is untouchability. It is real though it is indirect. It is injury because it is unconscious. Of the two orders, untouchability is beyond doubt, the worst.24 Is it possible for any sensible person, much less an intellectual, to refute Dr. Ambedkar’s judgment on this distinction between untouchability and slavery and his considering untouchability worse between the two?

24

Government of Maharashtra (1989), Vol. 5 p. 15

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This thesis is about the Dalits and Untouchables of India, as well as Dalit human rights activists and civil society organizations or NGOs who work for Dalits and/or with Dalits in India. Today, 167 million Untouchables live in India, comprising 16.2 %25 of the total population. Generally Dalits are the people better known as Untouchables26. The Untouchables are those who are deemed so polluting that just touching then would defile a higher ranking person. They are not even worthy of occupying the lowest level inside the social and cultural hierarchical system known as the caste system. They are outcastes by birth, and will remain outcastes until they die. They are made to work for meagre wages or food leftovers, clean human waste with their bare hands, live in separate colonies, and even use separate tea glasses at neighbourhood tea stalls, all because they are deemed unclean and therefore “untouchable”27.

This thesis begins by briefly touching on the historical background of the caste system and the origin of untouchables in India. The history of Untouchables is very controversial and contradictory because of the interests of different political groups in India. In the essay I will outline the history of caste struggles and their contribution in the current Indian society. I will also illustrate the influence of the caste system in others religions and the historical background of the caste system according to these religions.

25 26

Census 2001.(according to India government all scheduled caste fall under this figure) In fact a variety of names are being used to refer to this group of people at the bottom of the caste hierarchy best known as Untouchables. I will mainly be using the term Dalit because that is the term my informants use and identify with, but it should be pointed out from the outset that not all Untouchables identify with this term or even know it. As will be seen each name is evocative of particular understandings and laden with political meaning. In recent years other downtrodden peoples have started embracing the term Dalit, especially tribal groups, or Scheduled Tribes (ST) as they are known in legal parlance. I will also expend the definition of Dalits in last part of this thesis. 27 Kiertzner, A. (2006). Dalit: Caste or Consciousness, University of Copenhagen

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The next part of this thesis will give a very briefly account of Mr. M. K. Gandhi (1869-1958) and Dr. B. R. Ambedkar’s (1891-1956) contributions to the elimination of untouchability and how they fought against untouchability in India and their influence on current Dalits movements. I will also discuss their contradictions and ideological differences regarding the removal of the cast system and untouchability.

The following chapter illustrates the current situation of Dalits after 60 years of Indian independence. It describes the situation of Untouchables after New Economic policies, the educational situation of Untouchables in India from origin to present and more specifically discuss the “throughout system” of education in India. Land rights of Untouchables and their land right standing from origin to present will give a detail picture of the economic situation of Untouchables in India. Also included is a separate sub-chapter for women’s rights of Untouchables which addresses the pain, suffering and struggle of Dalit women in India. This chapter will also describe in detail the reality of Dalit situation in grassroots in India.

Finally this thesis will give detailed information and contradictory aims and effects of Dalit Human rights NGOs and their work, their ideological discourse, and their contribution to Dalit movements. Through case studies of two different kinds and levels of NGO and their activities and approaches to the elimination of the caste system and

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untouchability in India. Outline their contributions, limitations and challenges as well as try to find the theoretical gap between their approaches towards Dalit movement in India.

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Chapter One 1- A brief History of Dalits in India: Indian history starts along with the history of caste system. Indian history is also based on differences according to religious beliefs. The Vedas28 and the Manuscript 29 (Manusmriti) tell us about the (mythic) origin of the caste system and the duties of the various castes, but they do not reveal much about why untouchability came into being. The Manusmriti explains that Untouchables are those born of a ‘defiled womb’, which means that untouchable castes originated from the intermixture of the different pure Varna 30 ‘colours’. From a traditional Hindu point of view this might be sufficient

explanation, but for most social scientists, something is lacking in the equation. Most will agree on exploitation being the defining factor, but that still leaves the question of who these people singled out for the most oppressive and degrading positions in a system of structural inequality were. There is no consensus response to this question. The various answers proposed go hand in hand with different religious beliefs and interpretations of historical information.

Now that we know religion is one of the biggest parts of the Dalits history, the next part of this historical background of the Dalits will attempt to find the background and history of untouchability in Indian religious tradition.

28 29

One of the oldest Hindu scriptures Ibid 30 Manusmriti 10: 58

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1-1 - An Understanding of Caste and Verna according to Indian Religions View In Indian Vedic scriptures, one of the earliest religious literary forms, we find the “caste system” or “Verna system” outlined in detail. Verna is generally translated as “colour” and meant to refer to the skin colour and figuratively to the moral status of the different castes descending from the light skinned Aryans and the darker Dravidians. As we shall see, the origin of the caste system is an intensely debated topic, and likewise the meaning of Verna31. And it is first called or mention in Vedas.

The word caste is not mentioned in any ancient Sanskrit scriptures. This word brought in use by Portuguese upon their arrival to India in 16th century32. The word caste derived from the Latin ward ‘castus’, meaning “pure”33. The Vedas are generally thought to have been composed around 1500 – 1000 B.C34.

The earliest section of the Vedic corpus, the Rig Veda, contains the Hindu creation story: Purusha is described as a primeval giant, sacrificed by the gods, and from his body the world and the Vernas were built35. The first group was made of Brahmins (priests). They came from Purusha’s mouth, and were to provide for the intellectual and spiritual needs of the community. The second group was called the Kshatriyas (warriors and rulers). They were created from the arms, and were to rule and to protect the others. Vaishyas (landowners and merchants) sprang from Purusha’s thighs. This group was in charge of

31 32

Kiertzner, A. (2006): p. 19 Bhardwaj, A. (2002). Welfare of Scheduled Caste in India. New Delhi: Deep & Deep Publication, and Thapar, R. (2002) Early India: From the origins to AD 1300. New Delhi: penguin Books. 33 Kiertzner, A. (2006): P. 19 34 Ibid & Bhardwaj, A. (2002): p.6-7 35 Rig Veda 10:90

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trade and cared for agriculture. Shudras (artisans and servants) came from the feet. They had to do all the manual work. Thus, in the Rig Veda society is described as an organic whole sustained by various groups with differing roles and occupations all amalgamated into a stable structure. In the Vernic ordering of society notions of purity and pollution are central and activities are worked out in this context. The preoccupation with purity and pollution is obviously not exclusively Indian thing; it is found in many societies and functions as a mechanism for social regulation. What is considered pure and impure however varies considerably.

We can say with certainty that untouchability was practised around the beginning of the Common Era. In the Manusmriti, Manu’s Law, the best known of the Hindu Law Books dating back to 300 B.C. – 400 A.D., there is frequent mention of untouchable castes. We learn, for example that they must never reside within the village, but outside at cremation grounds, on mountains or in groves. They are to wear only the shrouds of dead people and eat with broken utensils. They may only enter the villages and cities with the king's permission for work purposes, wearing special symbols to enable identification36. Another example of identification of the untouchables is recorded by the Chinese Buddhist monk Fa-Hsien, who was on a pilgrimage in India in the years 405-411 A.D., collecting Buddhist manuscripts and studying at Buddhist monasteries, He describes how Untouchables had to sound a clapper in the streets of the town so that people were warned of their presence37. The Manusmriti also deals with the relationships between the castes,

36 37

Manusmriti 10: 51-55 Thapar, R, (2002): p303

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between men and women, with the organization of the state and all aspects of the law, and with religious duties and reincarnation, specifically ‘Karma’ and ‘Dharma’.

Karma which means “act, action, performance" is the concept of "action" or "deed" in Indian religions understood as that which causes the entire cycle of cause and effect originating in ancient India and explained in Hindu, Jain, Sikh and Buddhist religious philosophies. The philosophical explanation of karma can differ slightly between traditions, but the general concept is basically the same. Through the law of karma, the effects of all deeds actively create past, present, and future experiences, thus making one responsible for one's own life, and the pain and joy it brings to us and others. The results or 'fruits' of actions are called karma-phala. In religions that incorporate reincarnation, karma extends through one's present life and all past and future lives as well. One of the first and most dramatic illustrations of karma can be found in the Mahabharata. In this poem Arjun, the protagonist, is preparing for battle when he realizes that the enemy consists of members of his own family so he decides not to fight. His charioteer, Krishna an avatar of god, explains to Arjun the concept of “Dharma” (duty) and makes him see that it is his duty to fight. The whole of the Bhagavad Gita (a Hindu religious epic) within the Mahabharata is a dialogue between Krishna and Arjun on aspects of life including morality and a host of philosophical problems. The original Hindu concept of Karma was later enhanced by several other movements within the religion, most notably Vedanta and Tantra38.

38

Ibid

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The paired concepts of Karma and Dharma are associated with reincarnation. Karma is essentially cause and effect, the actions (or lack of actions) we initiate will result in later effects. Dharma on the other hand is related to our destiny, our place in society and the duties we must perform39. This Hindu code is important for its descriptions of many social institutions that have come to be identified with Indian society. Even in this day and age it still generates controversy, with Manu's verses cited in support of the subjugation of women and members of the oppressed castes.

The criminal justice system in ancient India was based on the Varna system and the Manusmriti defined crime and punishment for each Varna in a hierarchical mode. As such, the foundations for a system of graded inequality are laid down in the Manusmriti. The punishment for a particular crime is not the same for all Varnas, but varies depending on the Varna of the victim as well as the Varna of the person committing the crime. For the same crime, the Brahmin could be given a mild punishment, whereas a Shudras would be given the harshest punishment of all. Whether it is the choice of names, the manner of greeting, or the process of carrying out a funeral procession, at each and every step in life this system of graded inequality is applied and observed. Manu does not even spare the rates of interest on loans. For borrowing the same amount, Kshatriyas have to pay more interest than Brahmins, Vaishyas more than Kshatriyas, and the poor Shudras have to pay the maximum amount of interest.

Manusmriti is comprised of two words “Manu” and “Smriti”. People believed that Manu was the writer of the Manusmriti and Smriti literally means “memory”. It means the
39

Kiertzner, A. (2006):20

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low of Manu is in the memory of the people mind and they practice that law in their day to day life. Even today, in democratic India we see remnants of this thinking with many Untouchables living as bonded labourers, unable to ever free themselves of debt because of outrageous interest rates. And we see that Untouchables are receive harsher punishments than other castes, or even worse, are punished for acts which are not constituted as crimes today, such as entering high caste villages or temples. This is of course prohibited by law, but the problem is that those meant to enforce the law do not always see these reforms to be in their own interest. Even Dalits practice these laws in their day to day life. People in Indian society are socialized in such a way that they practice Manu’s law even Muslins, Jains, Sikhs, Christians and others incorporated in their day to day life, not only “upper” or “dominant” caste citizens, but even lower caste and Untouchables. Over time, Manus law has become a part of general Indian social behaviour and culture.

Manu also described the system of marriage and people still follow the same concept as thousand years before. In India system of the marriage is an endogamy system which is very deeply rooted in people’s minds and consciousness. So it will continue to be practiced for years to come. Over time this system of endogamy has become part of Indian culture and in Indian society it is practiced by members of all religions. Manu also described the punishment for anyone who breaks the low by refusing the tradition of endogamy, with punishments and restriction laid out for each group of people.

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In India the advent of Buddhism, Jainism and Sikhism as well as the introduction of Islam and Christianity did not end these notions of purity and untouchability. They remained part and parcel of Indian society and these religions adopted the Brahminical traditions of hierarchical society and endogamy marriage and endogamy marriage system will remain in the Indian society.

With this historical view we can see how the caste system fused with India’s religious traditions, a Brahminecal social pattern permeating them all. The next part finds the historical origin of the caste and Verna systems in India.

1-2 - Historical facts of Caste and Varna There are several theories about the origin of Caste in India, one of which is the historical theory of Dalit origin described by Anil Bhardwaj in his book, “Welfare of Scheduled Caste in India,” which says that: In ancient India there were two cultures, the Indo-Aryan and the Dravidian. Literary records of the Indo-Aryan culture are not only the earliest but contain both the first mention and a continuous history of the factors that makes up caste. Dravidian culture, when examined records that they are immensely influenced by the Indo-Aryan tradition. The Brahmanism variety of the Indo-Aryan civilization, it is the most widely spread and deeply rooted aspect, was developed in the Gangetic plain.

It is established fact that caste originated in this region. According to Anil Bhardwaj: Around 5000 BC the peoples who lived in or inhabited this area was known as

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the Indo-Aryans, a member of the larger Indo-European or Indo-German linguistic family. This family includes the Celts, the Anglo-Saxons, the Tautens, the Romans and the Iranians among others. They lived in one fairly define region and for various reasons they dispersed from their home land with various groups heading in different directions and resettling under various circumstances. One of these groups reached India around 2500 BC with the kind of religion represented in the early Vedic tradition. Vedic Indians and Iranians lives together and called themselves “Aryan”40.

It is seen that the favorite word for certain groups and others of among IndoAryans was ‘Varna’ ‘Colour’. Thus, they spoke of the DAHA and ‘DASA Varna’ or more properly DASA peoples. The Iranian spoke of the peoples whom they captured as ‘Daha’. Iranian Daha is exact equivalent of Vedic ‘Dasa’, making allowance for the linguistic values of the sounds of last syllable. Like Vedic Aryans the spoke of themselves as Arya or ‘Ariya’ whose connection to the Sanskrit word ‘Arya’, meaning high Varna, is obvious.

The Vedic Aryans also developed on exclusive social attitude toward native populations and cultivated a partiality for ideas of ceremonial purity. Some Aryan communities actually elaborated them into exclusive social stratification, though of rather limited extent and depth. This behavior of Vedic Aryan is analogous and comparable for sake of clarity with native peoples. In spite of the egalitarian and democratic preaching of recent centuries, wherever the Europeans went as conquerors they manifested exclusiveness varying from utter contempt and strict social restriction to condescension and hypergamous attitude and practice. Whenever they condescended they at best took
40

Bhardwaj, A. (2002): p.7

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native women as wives but never even considered that their own women marry to native males. Even in this hypergamous practice they took care to separate the progeny of “halfbreeds”.41 The attitude of exclusive pride toward conquered peoples of whatever culture status or racial class met within the doings of so many Indo-European peoples appears in the attitudes and practices of the Aryans of the Gangetic plains of the Vedic or post Vedic age in particular.42

Overall this theory is basically based on “Aryan Invasion Theory” which states that Aryans come and attacked the native Indians and make them slaves or “Das”, and that “das” people over a period of time became untouchables and Shudras. These theories develop because over the last couple of centuries the stories narrated in the Rig Veda have commonly been believed to relate to historical circumstances of an Aryan people from Central Asia entering India. It all began when the British East India Company sent Judge William Jones to Calcutta in the 1770’s. He had extensive knowledge of ancient European languages and upon learning Sanskrit in India he soon found many similarities with languages he already knew.

In years to follow several scholars, most notably Max Mueller, have built on these theories of a common Indo-European language and culture.43 In short, it is argued that the fights described in the Rig Veda took place between light skinned Aryans and dark skinned indigenous peoples. As a mechanism to maintain racial segregation the caste system came into being, and as such race functions as a biological indicator of caste.
41 42

Bhardwaj, A. (2002): p. 8-9 Bhardwaj, A (2002) : p.8-9 43 Ibid

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Today the ‘Aryan Invasion Theory’ is being challenged, largely referring to the same linguistic, historical and archaeological sources, but with different interpretations of these.

An Archaeological expedition in the 1920’s of the ancient cultures in Harappa and Mohenjo-Daro in the Indus Valley. Found very advanced settlements dating back to 3000 B.C. Now Hindus nationalists or fundamentalists claim that Aryans didn’t come from outside but they are the native or indigenous peoples of India and they further migrated to the others parts of Asia, several groups even claim that this Indus valley civilization is the first civilization. Some even go as far as to say that the ancient civilizations in Europe, the Middle East and North Africa have Indian ancestry, India being, in their view the centre of the world and the oldest culture on earth. Therefore they argue that Aryan invasion theory is basically Christian or colonialist propaganda which attempts to discredit everything indigenous to India while highlighting positive foreign influence.

On the basis of historical facts, Dalit scholars have mixed opinions, Jyotirao Phule44 in the late nineteenth century, argued that Dalits have been suppressed by Sanskrit speaking Brahmins descended from the invading Aryans45. In contrast Therefore Dr. B. R. Ambedker refuted the western thesis linking caste to race. According to him, all the castes descend from a common stock and untouchable castes emerged in the wake of Buddhism as persecuted Buddhists. They were steadfast followers of Buddha after began preaching in the sixth century B.C. and they remained Buddhists while the rest of society returned to

44

Jyotirao Phule (1827-1890) was from Maharashtra and known for his work for the upliftment of women and lower castes. 45 Thapar, R. (2002): p.15; Massey (1995):23-24 and 66-72

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the Hindu fold under Brahmin pressure. As all other theories of caste and the origins of untouchability this theory is lacking in strong historical evidence46.

M. C. Raj, a Dalit leader and guru in Karnataka in South India, has a different strategy. In his recent book Dalitology he implicitly dismisses the whole debate and simply states:

“The Puranas are saying that Brahmin was born from the head of Brahma, Kshatriya was born from the shoulders of Brahma, Vaishya was born from the thigh of Brahma and Shudra was born from the feet of Brahma. But we Dalits are born from the earth and we shall go back to the earth. What he says is very scientific, rational and environmental. Therefore, we Dalits do not have any god and goddesses. Our stand is that nature is our source of power […] Dalitology is the answer to those who have created the illusion that Dalits do not have a history of their own”47

Besides relating Dalits to history, the quote also contains an encouragement to Dalits to reject the Hindu religion. But the paradox is most Dalits profess Hinduism, the very religion prescribing their predicament: they worship Hindu’s gods and follow the rules laid down by Hindu scriptures. They even practice the untouchability among subcastes.

The origin of caste in India is highly debatable and very interesting. We can see how explanations relate to the position of the author in relation to the caste system and how they invariably serve socio-political purposes. Like “Aryan Invasion Theory”, brought forward by William Jones and directly or indirectly adopted by Jyotirao Phule and
46 47

Ambedkar, B. R. in Rodrigues (2002): p.396 – 405, Jaffrelot (2004): p.39, Massey (1995): p.70 Raj, M.C. (2001): p.20

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Dr. B. R. Ambedker to create a historically verifiable picture of the untouchable condition and claiming original ancestry of India, this is a source of pride and assertion of forgotten worth deserving recognition. On the other hand fundamentalist upper caste and dominant caste Hindu theory claiming original ancestry of India through “Indus-valley” civilization is very politically established. In that situation, it is not possible to give a historically correct and verifiable picture of the untouchables. But we can see that the Untouchables have occupied a distinct place in Indian society for at least two millennia. What is interesting to note is how the explanations relate to the position of the author in relation to the caste system and how they invariably serve socio-political purposes. Dalits and nonDalits alike might assert that Dalits are a natural category, but their rationales and purposes will differ. For Dalits claiming original ancestry of India, this is a source of pride and assertion of forgotten worth deserving recognition. For non-Dalits, the ‘naturalness’ of untouchability serves to justify unequal treatment. Whenever notions of exploitation enter the discourse it is recognized that ‘social engineering’ plays a role. In the discourses of both Dalits and their oppressors we find elements drawing legitimacy from both natural and social categories, depending on the question at hand.

Now we not only know the religious history of caste but we also know the controversial historical point of view of many historians based of their political interpretations. And all these start during the colonial era. Because before the colonial time Dalits are highly oppressed, uneducated and marginalized by the oppress caste in the Indian society. We can say Dalits don’t have their history that Dalits history was destroyed by the Brahmins; or we can say the documented history of Dalits began during the

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colonial period of India. The next part of the history of Dalits attempt to see the Dalit history in colonial era to find the same account of these questions. How and why origins of Dalits become so controversial in India?

1-3 - Dalit History in the Colonial Era The British, through East India Company, came and colonized to India for their own profit and ruled for about 200 years till 1947. In this era Dalits history and political theory of Dalits came in to the picture, because at that time all political resistance and war took place for control over the state, and all social resistance and struggle happened against discrimination and untouchability. This is also the time when the ancient cultures in Harappa and Mohenjo-Daro in the Indus Valley came in to the picture. That provides opportunity to the fundamentalist forces to counter the struggle and resistance of Dalits and Untouchables in India to manipulate and further legitimize them.

We find the first systematic ethnographic studies of the caste system in the census and gazetteers of the 19th century. We have already seen how the administrative tasks of the colonial administration spurred academic interests. The vehicle of much of this administrative scholarship was the census, which began on a nationwide basis in 1871-2. British census officials became obsessed with the question of whether Untouchables were properly classifiable as “Hindus”. It may well have been the first time such a question was asked. Until Indian civilization was defined relative to a world outside, there was no need for a concept of “Hindu” at all. The origin of the word Hindu is disagreed upon by historians and linguists, but it is generally accepted as having originally been a Persian

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word for someone who lives beyond the river Indus, i.e. any inhabitant of the Indian subcontinent (before the partition of India). Until the 19th century, the term Hindu implied a culture and ethnicity and not religion alone thus clubbing all people living in India into a single group called Hindus. When the British government started a periodic census and established a national legal system, the need arose to for Hinduism to be clearly defined as a religion, along the lines of Christianity and Islam48.

As the time when British censes started and during the first 2-3 censes, there was no general model of how to register Untouchables. In the 1871-2 census the Chamars, long since recognised as the largest untouchable caste in India, were in the province of Bengal lumped into a category called ‘Semi-Hinduised Aborigines’. In other provinces untouchable castes, e.g. the Mahars of Maharashtra and the Pariahs of Tamil Nadu were placed with Buddhists and Jains into a category called “Outcastes or Not Recognising Caste”. The British census officers saw themselves as simply trying to answer the question of who was a Hindu, and they often felt their job was made harder by the attitudes of their native assistants, the complaint being that high caste Hindus did not want to recognise untouchable castes as belonging to the Hindu religious community at all. By 1911 the British noticed that a complete reversal had occurred, whereby the leaders of Hinduism were adamant that the untouchable castes were a regular part of Hinduism. The spur to change was the arithmetic of parliamentary representation. In 1909-10 under the MorleyMinto Reforms49. The Muslim League50 had sought to argue that the Hindu population

48 49

Mendelsohn & Vicziany (1998): p.27 The Government of India Act of 1909, better known as the Morley-Minto Reforms (John Morley was the secretary of state for India, and Gilbert Elliot, fourth earl of Minto, was viceroy), gave Indians limited roles in the central and provincial legislatures, known as legislative councils. Indians had previously been

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was artificially inflated by inclusion of the Untouchables, and in response the Hindus now laid vehement claim to these people. The British ended up registering the Untouchables as Hindus, but in a separate “schedule”, thereby coining the term Scheduled Castes (SC). This designation appeared for the first time in the Government of India Act, 1935. Constitutional reforms elaborated by the British administration made it mandatory to have a schedule of all castes considered untouchable who were from then on to be granted the right to education and reserved seats in various legislative assemblies, from parliament to the local village council (panchayat)51.

Indian literature is full of colonial influences in general Caste, politics and Democracy. But it shows two aspects. One the one hand it shows the positive side of British rule and their contributions to Dalits rights and on the other hand their relations ship with Brahmins and others upper caste peoples. In assessing the implications of colonialism for Untouchables Mendelsohn & Vicziany and Basil Fernando represent opposite poles on a continuum. Mendelsohn & Vicziany are mainly positive about the side effects of colonialism for Untouchables and the Indian state:

“What the census commissioners accomplished, on the other hand, was to carve out an ideological space that could accommodate […] what we are calling the Untouchables. It is difficult to exaggerate the importance of this approach for the success of Ambedkar’s political strategy in the late 1920s and 1930s. The census Commissioners had established the Untouchables as a legitimate social category, and it was then a matter of political concession rather than ideological imagination to treat them as entitled to the kind of advantages bestowed on other groupings – the Muslims, above all. Whereas
appointed to legislative councils, but after the reforms some were elected to them. 50 A social and political group of Muslims in colonial India and they are very influences in Muslims 51 Perez (2004): p.14, 24 – 25; Mendelsohn & Vicziany (1998): p.27-29

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Kabir and the other great bhakti thinkers had looked towards an ultimate equality of all individuals in the eye of God, the AngloIndian state had created a more practical basis for untouchable progress. The British had provided the instruments with which the Untouchables could assert themselves as a political collectivity, rather than merely pressing their moral worth as individuals”52.

Mendelsohn & Vicziany talk of the British policy toward Untouchables is seen as one of holding up a mirror to Indian society, thereby presenting fresh images to modernising Hindus and Untouchables themselves53.

Conversely Basil Fernando portrays the positive impact of colonialism as a myth created by self-congratulatory British, having no basis in fact. The kind of democracy they introduced in India and other parts of South Asia was a perverted kind, which only consolidated the powerful high caste elites and destroyed the power of resistance of the people by increasing and further institutionalising the suppression mechanisms of precolonial times54. The logic behind this line of argumentation is that by definition there can be no enlightened colonialism. Colonialism looks only at the moment and its motivations are: ‘how much can be extracted and how quickly?’. Accordingly the British have in fact impeded democracy. They bear responsibility not only for the past but also for the present, due to their consolidation of the caste system and destruction of local resistance to inequality. According to Fernando a ‘true’ democracy should grow from the imagination and creativity of the people and be founded on ideas of taking control over ones own destiny, but this process never took place in South Asia. This argument is basically give the picture of British how they established in India and for their establishment British
52 53

Mendelsohn & Vicziany (1998): p.29. Mendelsohn & Vicziany (1998): p.26. 54 Fernando (2002): p.155.

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needed the cooperation of the feudal elites, who had a long experience in controlling and suppressing their own people, but the latter demanded a price for their support, namely that the British would not interfere with the existing systems of inequality.

Both Mendelsohn & Vicziany and Basil Fernando highlight valuable points, and upon closer inspection they are perhaps not as incongruent as they might seem at first. I think there is no doubt that the British helped create a space for the Untouchables that they had not had before, but Fernando’s harsh comments on the nature of democracy and the political system in India help us understand why, in spite of new opportunities, the Untouchables still occupy the bottom rungs of society more then 60 years after independence. As we shall see in coming chapters, it is an uphill struggle to utilize a space only formally recognized by the more powerful groups in society.

In this section have seen how Dalit history came into being and how scholars have different opinions and arguments about this origin. One thing is clear: approaches towards Dalits during British rule opened the window for them and gave them courage to resist and fight for their dignity and also to negotiate with upper castes for their benefit. We have also seen how two famous leaders Dr. B. R. Ambedker and M. K. Gandhi, fought for the untouchables and we will go through their approaches for the elimination of untouchability in India in the next part of the thesis. But here we should know that in the last two millennia there have been many revolutions against the caste system in India. In the next part of this historical account we will see a few of the challenges against the caste system in early India and their outcomes.

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1-4- Resistance against the caste system in early India and its current status As we know the caste system established and strengthened within religion, so in early India resistance or challenge happened in the context of religion, or you can say explanations of their protests against an exploitative system were also based on religion. that challenges or changes took hold is evidence that untouchability was not simply accepted by its victims. For now, suffice it to say that we do indeed find protests against the caste system going far back in time. Below we see a brief sketch of the most notable challenges.

The first two attempts were rise of Buddhism and Jainism in India; both were direct attempts to challenge the Varna system and establish egalitarian societies, both religions came to counter Brahmanical supremacy in the early Indian society but both of these reform-religions lost their potential for large-scale influence after only a few centuries. Dr. Ambedkar also referring evolution of Buddhism was basically challenged to the caste system and Brahmanical supremacy, and struggle for spiritual supremacy began between Buddhist monks and Brahmans Priests which lasted, with varying fortunes for ten centuries. It ended after the death of King Harsha of Thanesar (650AD) with the complete victory of Brahmanism55. And after that Buddhism and Jainism lost their potential for large-scale influence in India but it expended out of Indian continent in Asia more specifically Buddhism.

55

Bhardwaj, A (2002): p.10

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The next serious challenge to the Brahmanical hierarchy came with the Bhakti movements; so-called devotional movements which can be traced back to the seventh century, but which exerted their main influence in the period between the 14-17th centuries. They were spearheaded by devotional mystics later canonized as Hindu saints. These holy men were mainly from the lower castes, some of them Untouchables, e.g. the famous Bhakti poet Kabir, whose poetry include direct attacks on Brahmin supremacy. The Bhakti saints sought to renew faith by casting aside the heavy burdens of ritual and cast and encouraged people to simply express their love of God. The movements were region specific and one of their greatest contributions was the popularisation of people’s languages as opposed to Sanskrit, which had remained the language of the Brahmins. Bhakti literature was all in the regional languages, which enabled the strengthening of different identities distinct from the Brahmanical hierarchical identity. Later on these challenges took the shape of separate religion. But once again, the Brahmanical caste system proved resilient to drastic changes, and was able to marginalise the Bhakti movement, resorting to outright violence as well as the cooption of the gods and goddesses of the oppressed castes into the Hindu pantheon56.

Other currents that challenged the caste system in North India and parts of South India came in the form of Sufism, which preached an egalitarian, socially just and ‘secular’ Islam, and Sikhism, which preached the equality of man and vigorously opposed caste discrimination. But the consolidation of Sikhism as a religion distinct from Brahmanical Hinduism in the Punjab, and the emergence of a feudal ruling class headed by monarchy there, also saw the absorption of the caste system within the religion itself
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Jacob (2002): p.6-7; Hardtmann (2003): p.48 and Kiertzner, A. (2006): p. 34

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and the resultant degeneration of original egalitarian values. Untouchables remained Untouchables, and today Punjab has the highest percentage of Untouchables in the country57.

Thus we see that the Brahmanical caste system encompassed not just Hinduism, but also the other religions present on the continent. A similar thing happened with the arrival of Christianity in India. Today many Christian communities practice untouchability, for example separate cemeteries for caste Hindus and Untouchables are not uncommon. Besides providing evidence that resistance to untouchability is not only a thing of the recent past, the rise and fall of these different religions and traditions points to the tenacity of orthodox Hinduism has in either absorbing and limiting by way of containment, or smothering radical schools of thought that challenged the control of the high castes 58. Theoretically analysed by Mendelsohn & Vicziany, the failure of those challenges is based on the tenacity of orthodox Hinduism. A practical and short answer is given by Anil Bhardwaj.

“The progress of civilisation introduced certain important changes in the Vedic social system. It would seem, firstly, that the tendency to endogamy caused by amalgamation of the races of different blood had sensibly weakened with the passage of time; at all events, one hears of numerous instances of mixed marriage both at this and at a later period. Secondly, trade and industry become organized into a number of guilds or corporations of persons following the same occupation, which quickly become influential and later, were powerful enough to secure for themselves important privileges. They soon succeeded in establishing the principle of hereditary function, which predisposed them in favour of guild endogamy. And lastly, long before the end of this period, Brahmanical order, whose
57 58

Jacob (2002): 6-7; Kiertzner, A. (2006):34-35. Mendelsohn & Vicziany (1998): p.26, and Kiertzner, A. (2006): p.35.

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original function had been confined to the expert knowledge and performance of religious ritual, had acquired a monopoly of all important branches of learning”. 59

The above historically based argument by Anil Bhardwaj and current marriage system of all big religion in India if we see and analyse then we can find the similarity of these endogamy marriages is same as Vedic or Brahmanical Varna system define or Manuscript define to maintains and sustain the notion of purity of “Caste” and “Varna”. The endogamy practices of any religion in India serve to promote and propagate the caste system in India. As well as reproduce the caste system in India. This is also one of the biggest issues for the Indian civil society to properly address. There are many laws, a few were enacted by British and later on modified by the Government of India, but they are not affected as the motive of that law to eradicate the caste system and stop the violations of the rights of those trying to escape endogamy.

However, in this chapter we see the history of Dalits and root of Untouchability and protests against untouchability all happened within the Hindu fold as trying to change Hinduism or provide alternative. Also other religions were influenced by the notion of ‘caste’ in India. But in the beginning of the 20 th century saw the arrival of two great reformers came who address the issues of untouchability and caste in India: Dr. B. R. Ambedkar, and M. K. Gandhi. Next chapter is dedicated to these two legendry leaders who changed the face of India as well as the issue of Indian Dalits. Current Indian civil society follows their approaches to address the issues of Indian Dalits. So it is very necessary to understand the basic approaches of these leaders, the differences between
59

Bhardwaj, A. (2002): p. 9

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their approaches and their contradictions. Then we can easily understand the current Dalit NGOs work, their composition and the challenges they face as they address to the caste system in India.

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Chapter - 2 Approaches for the welfare of Dalits India Approaches to the welfare of Dalits are based on two ideologies: that of Dr. B. R. Ambedkar and M. K. Gandhi, two approaches. The first autonomous anti-caste anti-Hindu stance crystallized in the 1930’s60, epitomized by the controversies between the two historical figures B.R. Ambedkar and M.K. Gandhi. These controversies are of significance for an understanding of today’s Dalit movement, because Dalit activists in their discourses now constantly refer back to this historical period61. Most Dalits’ NGOs and members of civil society who are working for Dalit Human rights and elimination of the caste system in India, follow approaches based upon the ideologies of Gandhi and Ambedkar. And also today’s Indian government policy towards welfare of SC and ST is reflection of this Gandhi/Ambedkar ideological straggle.

Before I start to write about these legendary leaders and their contribution to the Indian society and Dalits, first I have to accept the fact I am not capable enough to write and comment about them. I will just try to see them and their work according to my little knowledge and understanding of their ideological approaches and their contribution to the Indian society.

2-1-Contribution of M. K. Gandhi in Dalit Movement

60

The Adi movements of the 1920’s were in important ways forerunners to this decisive break from Hinduism. The activists of the Adi movements claimed to be the original inhabitants of India, Adi meaning ancient or original, defeated by the Aryans. These movements were found across the country, e.g. Adi Andhra in Andhra Pradesh, Adi Dravida in Tamil Nadu and and Ad Dharm in Punjab, but where largely unrelated. Most of the movements adopted a clear stand that they were not Hindus, but they also took a lot of their inspiration from Hindu poetry, including from the Bhakthi saints, and are therefore not easily categorised into either an autonomous anti-caste anti-Hindu tradition or a Hindu caste-reform tradition (Hardtmann 2003: 46-47). 61 Kiertzner, A. (2006): p.35

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In 1919, when Gandhi appeared as a shining star in an Indian political horizon, His magnetic personality gave a new life to the Indian freedom movement as well as the old congress. Under Gandhi’s Indian Congress got face lift and was converted into a mass organization, adopting the policies of non-cooperation and civil disobedience.

In the beginning, Gandhi was firm in his belief that if the untouchables were permitted to enter the temples, the blot of untouchability would vanish. It was this belief which prompted Gandhi to incorporate temple entry as a part of his anti-untouchability campaign which was intensified during post-Poona Pact period62.

Therefore Gandhi’s anti-untouchability campaign started when he was released from Yervada prison, Gandhi made fervent appeals to the orthodox and Santana caste Hindus to open up their hearts and treat the untouchables as their brothers and sisters. He also undertook the tour which is commonly referred to as the Harijan tour during the period of November 1933 to August 1934. On this tour Gandhi addressed 161places and covered a distance of 12650 miles63.

Gandhi was a devoted Hindu, and strongly believed that untouchability was a corruption of Hinduism. His aim was social reform, transforming the Untouchables into a Varna and removing their former stigma, thereby rectifying the original spiritual corruption of Hinduism. He believed this would change the attitude of caste Hindu, encouraging the acceptance of

62 63

Bhardwaj, A. (2002): p.23. Bhardwaj, A. (2002): p.24.

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Untouchables as children of God, or “harijan”, a term coined by Gandhi in 1933, and used much more by other castes than Untouchables themselves64.

After a long campaign for Untouchables, Gandhi also realized the ugly reality of the caste system and there was a considerable reconceptualizaion of the issue. In 1935 he become a critic of the caste system but continued to be a votary of Chaturvarna65 in Varna dharma. That is the time when his all the comments still criticize by many Dalits activist to dominate and ignore what Gandhi did for untouchables but we forget that the same Gandhi who in 1930 fully opposed to inter-dining and inter-marriage as he felt that such things should be left to the unfettered choice of the individuals. In 1935, he was against creating artificial little groups which would neither interdine nor inter-marry66. However, by 1946 there was a complete volte-face in his approach. It was in this year Gandhi made a startling announcement to the effect that in Sevagram, his Ashram at Wardha, no marriage would be celebrated unless one of the parties was untouchable by birth. And he said: “Untouchability is the sin of the Hindus. They must suffer for it, they must purify themselves, and they must pay the debt they owe to their suppressed brothers and sisters. Theirs is the shame and theirs must be glory when they purged themselves of the black sin. The silent loving suffering of one single pure Hindu as such will be enough to melt the hearts of millions of Hindus; but the suffering of thousands of non-Hindus on behalf of the untouchables will leave the Hindus unmoved. Their blind eyes will not be opened by outside interference, however well intentioned and generous it may be; it will not bring home to them the sense guilt. On the contrary, they would probably hung the sin all the more for such interference. All reforms to be sincere and lasting must be from within”.67

64 65

Perez 2004: 15-17 and Hardtmann 2003: 51 The Varna system is based on four Varna so it’s also called Chaturvarna system. 66 Harijan, November 16, 1935: p.316 67 the collected works of Mahatma Gandhi (New Delhi: government of India, ministry of information & Broadcasting), 1967, Volue xxIII, p515-16

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Gandhi in the name of reborn he also said: “I do not want to reborn, but if I have to reborn, I should be born as untouchable, so that I share their sorrow and suffering, and the affronts leveled at them in order that I may endeavour to free myself and them from the miserable conditions. I, therefore, pray that if I should be born again, I should do so not as a Brahmin, Kshatriya, Vaishya or Shudra, but as an Atishudra (untouchable)”68.

Overall, my understanding of Gandhi approaches towards Untouchability is the two way approach. The top down approach, meaning basically he wants to reform Hindu religion and society to stop practicing Untouchability and also in the name of untouchable they should not carry any discriminatory social and ritual religiously oppressive practices. On the other hand Gandhi also appeals to Untouchables to get rid of and not to take the reform work is, because this is the job of caste Hindus only. According to Anil Bhardwaj “He never used them as apolitical weapon or an ideological stance and wanted them to gain their own strength to stand on their own feet69.

2-2-Contribution of Dr. B. R. Ambedker in Dalit Movement Ambedkar was born in Mahow Indore on 14th April 1891, an untouchable Mahar, a caste group that traditionally worked as village servants in Maharashtra. With the help of the Maharaja of Baroda who was impressed with his intellectual capacities, and due to the fact that his father had worked in the British army and had some financial means, Ambedkar gained access to an education traditionally inaccessible to someone of his social position70. Still, his education and

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Yang India, 4 May, 1921, p.144 Bhardwaj, A.(2002): p.40. 70 Ambedkar obtained a Ph.D. in economics at Colombia University, New York, in 1916, and a D.Sc. in economics from London School of Economics and Political Science in 1923, the same year he became a barrister at law and was admitted to the British Bar.

th

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later his professional life were strongly marked by the stigma of untouchability. In primary school he had to sit outside the classroom and was not allowed to drink from the common water tanks and later, at secondary school, there was objection to his studying Sanskrit, the language of the scriptures, strictly forbidden for an Untouchable. He had difficulty finding accommodation both at university hostels, and later when he was stationed in different parts of the country as a government official. Even when he was appointed Minister for Finance in Baroda (a political post never before occupied by an Untouchable), he was discriminated against by his peers, who refused to touch any document he may already have handled71. Based on his own experiences, Ambedkar adopted a social and political perspective contrary to Gandhi’s; to him, the problem of untouchability was intrinsic to the whole construction of Hinduism, and he believed there would be no emancipation of Untouchables without the destruction of the caste system72.

Ambedkar was popularly known after completing his education he started to work for his people. First, in 1919, he gave evidence before the South Borough Committee to constitute separate electorates for untouchables. He started a weekly paper ‘Mooknayak’ (Leader of Dumb) on 31 st January 1920, to mobilise untouchables for their struggle73.

Ambedkar deeply craved a new social order based on the lofty principals of “liberty, equality, fraternity and justice”. These principals are the core of his philosophy. In 1924, he established the ‘Bahishkrit Hitkarini Sabha’, the untouchable’s welfare forum. The aim of which was to prepare the untouchables for future struggle. Through this Sabha, Ambedkar gave a clarion
71 72

Perez (2004): p.17-18 A full exposition of this view can be found in Ambedkar’s “Annihilation of Caste: With a reply to Mahatma Gandhi” (1936) 73 Kuber, W. N. (1963): p.18.

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call to his peoples to “Educate, organize, and agitate”74. He looked upon law as a vital means for social change or social engineering, the aim of which should, of course, be social justice. The concept of social justice is at the center of Ambedkar’s socio-legal philosophy.

Though analyses of the problems of untouchables as put forth by Ambedkar may only be an indicator of the prevailing system and condition of his times, His ideas continued to guide the successive government in formulating the welfare policies for Dalits and others depressed classes. At present, Dalit activists and NGOs who work for Dalits Human rights, using his three words “Educate, Organized, Agitate” to librates Dalits. As Ambedkar’s principles and his concept of socio-legal philosophy pointed out by Anil Bhardwaj, I will discuss and argue the significance of his theory and philosophy, his followers, and current Indian civil society, how they interpreted and implicated his principals in their work and outcome, and their counter arguments, in the last part of this thesis.

2-3-Differences of Gandhi and Ambedker The difference between Gandhi’s and Ambedkar’s approaches to the welfare of untouchables was intangible in the binging, but it was crystallized in 1932, and the resulting pact between Gandhi and Ambedkar still plays a core role for the welfare of Dalits in India. In 1931, at the second Round Table Conference held in London, held by the British Government regarding the proposed reforms of the new constitution of India75, they were both present and both claimed to represent the Untouchable castes. At this conference, the so-called “Communal Award” was

74 75

Bhardwaj, A. (2002): p.45. The India Act of 1935 quoted by Bhardwaj, A. (2002):

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announced introducing separate electorates for the untouchable castes. Ambedkar was strongly in favour; Gandhi, on the other hand was strongly opposed arguing that separate electorates in any form for the untouchable castes implied the risk of splitting Hindu society and destroying Hinduism76. Gandhi’s response was to enter into perhaps the most famous of his ‘fasts unto death’ on 20 September 1932. Faced with the martyrdom of the Great Mahatma, Ambedkar had no choice but to back down. He agreed in the Poona Pact to give up on separate electorates for Untouchable voters in return for a substantial increase in the number of general seats to be reserved for candidates from the untouchable castes. But it was a bitter compromise and Ambedkar later commented on Gandhi’s fast in his book ‘What Congress and Gandhi Have done to the Untouchables (1945), saying there was nothing noble in the fast, rather it was a foul and filthy act constituting the biggest betrayal of Untouchables in history. Ambedkar’s concern was that in the general constituency Untouchables would always be a minority. Without separate electorates there was an overwhelming risk that the caste Hindu majority would come to choose the representatives among the untouchable castes who were seen to be most loyal to their own interests and not to the interests of the Untouchables. Unfortunately, the current political climate only serves to confirm Ambedkar’s apprehensions77.

Ambedkar’s motives for the fight for separate electorates for Dalits have been frequently questioned and unjustly linked with an anti-nationalist agenda. His stance was deliberately

76

Muslims had been granted separate electorates with the India Act of 1909 also known as the Morley-Minto reforms, and we see how the issue of separate electorates is a continuation of the already mentioned debate on how to categorize Untouchables in the census. 77 See e.g. the book The Chamcha Age – An Era of the Stooges written by Kanshi Ram, founder and leader of the Bahujan Samaj Party (BSP), in 1982, the fiftieth anniversary of the Poona Pact. The title itself is revealing of his views. See also Jaffrelot (2003), Hardtmann (2003): p.55-57, Perez (2004): p.18, Mendelsohn & Vicziany (1998): p.104-105 and Kiertzner, A. (2006): p.37-38.

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misconstrued, and he had to bear the burden of being labeled a traitor simply because of his plea that the rights of the Dalits should be made a pre-condition for independence from the British. The visual images produced of Ambedkar and Gandhi, loaded with cultural references, further serves to set them apart. Ambedkar is always portrayed in western attire, suit and tie, with a book under his right arm whereas Gandhi is portrayed in a simple loincloth sitting next to the spinning wheel used to produce khadi, the symbol of a united Indian people against colonial powers78.

Where Gandhi became known as ‘Mahatma’ Gandhi, the Great Soul, or the Father of Independence, Ambedkar became known as ‘Babasaheb’ Ambedkar, the Great Man, and as Father of the Indian Constitution, because he was the first Law Minister in independent India as well as chairman of the committee that drafted the Indian Constitution. But compared to Gandhi, Ambedkar has been unknown outside India until quite recently. It is only with the intensified activities of the Dalit movement in the 1990’s that his name has become somewhat better known. Among Dalit activists there is today a lot of hatred towards Gandhi and resentment that their hero, Ambedkar, is so little recognized within as well as outside India. It is felt that Ambedkar would have been recognised as a great social reformer on par with Gandhi, or perhaps rather Karl Marx, if only high caste Indians had not ‘kept him a secret’79.

78 79

Kiertzner, A. (2006): P.38. Hardtmann (2003): p.51.

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Chapter -3 3 - Current situations of Dalits in India In this chapter I will attempt to give a detailed picture of the Dalits situation in India. I will first describe Dalit education in India to give general information and also draw attention in Indian “throw out system” in education. Thereafter, a detailed understanding of land rights of Dalits and the situation of Dalit women in India will described in this part of my thesis.

3-1- Dalits Education in India The suffering and total marginalization of a major portion of Indian society, dates back to the time immemorial. Though even the perpetrators of these offences of Dalits concede to the fact that they were the earlier inhabitants of this land, the heap of insults and the untold story of their miseries on all fronts still goes unchecked. The arrival of the British to a certain extent proved to be a blessing in disguise for the untouchables. The British made them understand that the education can play a major role in freeing them from the shackles of slavery. According to Dr. Bhalchandra Mungekar: “Education is the surest and the soundest key to Dalit Progress”80.

Historically, Dalits in India were prevented and strictly prohibited from getting an education and the caste system in Hinduism clearly describes the practices to discriminate against Dalits in term of education. The development of Indian society is also based on education but due to religious hypocrisy and social acceptance of caste Dalits are unable to access the educationel system and there is no special system that provides education especially for Dalits.

80

Mungekar, B. L. (2002). Education :The only key to Dalit progress, paper presented in International conference on Dalits Rights, UK.

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In the British Colonial period, the British started providing opportunities for the education of Dalits. They opened the door of educational world for Dalits in India. But they had their own political interests and according to their political interests they made two types of education structures in India. An education structure for the elite class and one for Dalits.

After independence, the Indian government also continued the same type of dual education structure. According to scholar Deepali Gakhar in her paper presented in seminar entitled “Dalits In Education” she mentions that in India “higher education is elite” 81 . In independent India the main objective of education is to look after the needs and development of Dalit children who have remained isolated from the ambit of education for centuries. After independence the new government at least took some steps to rise the educational standard of the Dalits, however the result of this has not been satisfactory in terms of implementation and outcome. The Indian government also does many things for the higher education of Dalits children but proper access in higher education is still very far for Dalits. Mere primary or basic education is not sufficient for Dalits empowerment, and not providing proper opportunity for higher education is also a type of discrimination.

3-2-A-Historical background for educational development of Dalits Here I make an attempt to look into the position of Dalits and their access to the higher education in India and their educational development in the post independence period. Education
81

Gakhar, D. (2001). Paper presented in seminar entitled “DALITS IN EDUCATION”. New Delhi.

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time immemorial’ till the end of the nineteenth century was limited only to a few privileged classes. Brahmins82 had monopolized the entire educational sector in India. They were considered supreme and education became their property. The Shudras83 and untouchables84 (Dalits) were denied even basic education.

Instructions in formal education were more or less limited only to the dwijas (“twiceborn”) castes. The Brahmins who studied classical religious texts and interpreted and communicated them to the illiterate masses in their local dialects. The Kshatriya had to learn to rule and get acquainted with the weapons, state crafts and organizational matters and some schooling for this purpose was necessary. The Vaishyas required knowledge of arithmetic for transacting business, keeping records and maintaining accounts. Lastly skills necessary for making crafts at the domestic level could well be acquired at home, i.e., the artisan groups or the Shudras. So the “untouchables” were the only section of the society left out with no accessibility to education of any kind. If there is no accessibility of Dalits in education then talk about the accessibility in higher education is not logical. “Denial of education to the Dalits perpetuated their social humiliation, economic exploitation, political marginalization and cultural subordination”85 and it has create a cycle of oppressions and atrocities. Examples of denial of access to education can even be seen in the Hindu epic The Mahabharata 86 . There are examples of education structures when Pandaw 87 and Kavraow 88

82 83

Brahmins is the highest caste in caste order of the Hindu varna system the lowest caste in caste order of the Hindu Varna system 84 peoples they are not included in caste order of the Hindu Varna system and facing discrimination 85 Gakhar, D. (2001). Paper presented in seminar entitled “DALITS IN EDUCATION”, New Delhi. 86 One of the Holy book of Hinduism 87 the sons of the kings and by caste Kshatriya in the Book of MahaBharat 88 the sons of the kings and by caste Kshatriya in the Book of MahaBharat

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wanted to be educated they went to an Ashram to study. When one tribal child Eklawya89 went to get en education in same Ashram where there Pandw and Kavraow were studying then Guru (Teacher) Drownacharya denied him education because Eklawya did not belong to the Kshatriya caste. There was no other ashram available for him to get the same education for himself.

3-2-B-History of Dalits Education The British were silent for a long time on the question of promoting education among the native population. In 1813, parliament decided to spend less then one hundred thousand rupees for the improvement of literature and the encouragement of learned natives of India. But the depressed classes were crestfallen as British government ruled that education was to be a preserved for the higher classes. No schools were opened for depressed classes before 1855 because of the deliberate policy of the British to provide the benefits of the higher education exclusively to the Brahmins and other upper classes. The depressed classes were not allowed by the government to have their slice of education. And its maintain cycle of oppression in Indian society. What is the political interest of British that is the deferent issue but Dalits can start excess and test the education in India after long time of oppression and discrimination.

According to Indian constitution, India is a welfare state so many policies were based on welfare; but at the same time Indian government also started industrialization programs for the development of India. And in this industrialization, dominant castes also wanted to sustain their social status during a time when standard education was developing. The upper caste reaction: privatization of higher education.
89

Belong to non Kshatriya caste man in the book of MahaBharat

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The literacy rate is internationally recognized as an important indicator of educational development. The Indian government also wants to demonstrate to the international community that they also started to focus in increasing the literacy rate. An analysis of drop out rate in post independent India was conducted: “During 1961-1991, the literacy rate rose from 10.27% to 37.41% among the Scheduled Castes, while it increased from 37.41 to 57.40% in case of the rest of the population. Scheduled Caste” 90 children discontinued their studies prematurely before reaching the level for which they have enrolled. The drop-out rate in 1986-87 for classes I-V was 50.79 percent in the case of Scheduled Castes. In classes I-VIII the drop-out rates were as high as 69.15% and 80.19% respectively. 70% of the students in the age range of 6-14 years among the Scheduled Castes study in Government schools in rural India. Only 5% of the Scheduled Caste students study in private schools.

Their proportion in professional courses decreased steadily from 32.63% in 1964-65 to 28.5% in 1970-71, 25.38% in 1975-76 and 17.08% in 1977-78. It also reveals that the proportion of Scheduled Caste students in professional courses is almost half in contrast to their corresponding proportion in undergraduate level courses. A fewer Scheduled Caste students make the transmission from the lower level courses to the professional subjects, which has a direct bearing in occupations, compared to non-Scheduled Caste students”91.

Thus it is clear from the above analysis that there has been some improvement of Scheduled Castes with respect to education in the post-independence period, but there is a big gap
90 91

Those Untouchable castes come under the Scheduled list of Indian constitution. Analysis done by Deepali Gakhar in her paper Dalits and Education

183 MAINS Thesis, 2009

in the education level of Dalits and others and also a high dropout rate. Their low level of educational development is largely due to their poverty and the social stigma attached to being an “untouchable.” But there is one more important factor that was not recognized properly: the accessibility of higher education to Dalits. The Indian governments focus on the increase of the literacy rate, so the literacy rate is increasing, but access of higher education is not increasing according to population and educational growth. And the dropout rate is increasing also because all the policies are based on basic or primary education and increased the literacy rate. It means there is no policy to allow adequate opportunity to pursue higher education, and Indian government is following approximately the same pattern of British educational development and government unwillingness to provide access to higher education to Dalit’s children. Again the cycle of oppressing and discriminating against Dalits is maintained.

In 1950, The father of Indian Constitution Dr. B. R. Ambedkar, made a provision in Article 21 right to equality based on “states along with opportunity” state will take affirmative action or reservation system, for reservation in all Governmental positions and educational institutes to ensure that Untouchables and tribes (Scheduled Castes /Scheduled Tribes) were adequately represented. As per the constitutional right of reservation, Dalits are entitled to obtain 22.5% of the vacancies in State postings and admissions to courses of study.

The reservation system is not enough to fill all the gaps in minority representation in the Indian Government. With inadequate enough higher schools and colleges, there are not enough educated Dalits to fulfill all reserved quotas. And when Dalit students seek admission to higher studies, they are admitted due to reservation others who come under the meritorious fight against 184 MAINS Thesis, 2009

the reservation system because they never get the opportunity those are entitle to get the admission and their rights are denied. This means reservation system does not give enough opportunity for Dalits children but at the same time creates problems between Dalit and nonDalit students and creates a rivalry among them. This reaction turned bad recently when many students started protest against Reservation system in Delhi. Before when the “Mandal

commission” 92 recommendation was enforced, there was also a negative reaction against reservation system. It happened because of the limited opportunity for higher education and that time enforcement of reservation in higher education encroaches the ‘meritorious’ based opportunity of Dominant Caste students.

As I mentioned above the policy of reservation has been criticized on the grounds that, the quota system is viewed as an encroachment on the rights of the ‘meritorious’ students drawn from other castes and communities. This generates a social atmosphere not favorable to the Scheduled Caste and scheduled caste students in these institutions often get discouraged when admitted therein.

Dr. B.R. Ambedkar argued that “reservation is a movement for the establishment of social, economic and educational equality in the society, which is probably the most effective method of putting an end to the evils of the caste system”93. But the goals of the reservation system will not be accomplish if there is a lack of proper opportunity for higher education in the educational system. It doesn’t mean providing only the proper opportunity for higher education, but also increasing the number of good and professional higher education campuses. Because if there are
92 93

A commission constituted by India government Gakhar, D. (2001)

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not enough good and professional higher education campuses then few Dalit children will have access to higher education. And if there are too few sources for intermediate education then it’s very difficult to fulfill the reserved quota of Dalits in higher education.

The effect of this problem can be seen In J.N.U. (Jawaharlal Nehru University, New Delhi) where only about 15% of the seats reserved have been filled so far. Further in the year 2001, of the 22.5% reservation eligible to Dalits, only 6.3% is filled up, in the B.Tech course in IIT Madras. As Deepali Gakhar argued in her paper, “Their less representation is caused by inbuilt social and structural constraints. These operate [both] at the levels of their family background including social and economical positions”94. But my argument is, as I said above, that at first, if we don’t have enough Inter college campuses in proportion to the Indian population then these castes based structures will not give proper opportunity to Dalits to access Higher education and, as a result, they will end up as drop outs halfway through their education. Second, without intervention of the state it is impossible to provide proper opportunity to these students who are marginalized and suppressed in this society. And third, states should also strongly monitor the issues of Untouchability and discriminatory practices in higher education. In the name of ragging, untouchable students are tortured in Universities and hostels. Without enough inter colleges and higher education campuses, fights between Dalits and others in the name of reservations will not stop.

3-2-C-Education structure and understanding of dropout status or ‘throw out system’

94

Ibid

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School’s dropout rates show a pattern of “throwing out” Dalit children. It’s very crucial to understand the patterns of Dalit dropouts second one must identify the root cause of this dropout of Dalit children. Thus, in the following Tables we look at the statistics relating to school attendance rates among children in the age group 4-14 belonging to the above categories, with regards to sex and their origin (rural or urban). Again, the information relates to three points of time, i.e. 1983, 1987-88, and 1993-94.

It is heartwarming to observe in this table that over a time school attendance rates among SC and ST children are increasing. But compared to the children belonging to category ‘other’, they are lagging far behind. Further, the gap is much wider in the case of female attendance rates of two Dalit categories vis-à-vis ‘other’. Lastly, the school attendance rate among SC/ST children in rural areas is less satisfactory when compared to those in urban areas. In other words, school attendance rates among the SC/ST children in general and those among rural females in particular are quite unsatisfactory compared to those among the non-SC/ST children. What is further distressing is that, the drop–out rates among the SC/ST children are also much higher.

Table 1 School Attendance Rates among Children in the Age-group 5-14 yrs. (i.e. number of children attending the school per 100 children in the age-group) for different social groups in India. (Figures in per cent)

Social group

School attendance rates among children (5-14yrs.) Male Female 187

MAINS Thesis, 2009

1983@ 1987-88 1993-94 1983@ 1987-88 1993-94 Rural ST 39.50 44.50 57.90 20.40 26.20 40.90 SC 48.90 49.80* 64.30 25.50 31.10* 46.20 Other 59.20 63.40 74.90 39.20 45.80 61.00 All 55.30 58.90 71.00 34.80 41.10 55.90 Urban ST 67.00 67.20 79.70 52.70 62.30 69.70 SC 66.70 68.20* 77.50 52.30 53.80* 68.60 Other 76.50 78.00 86.80 69.10 72.60 83.00 All 74.80 76.40 85.30 66.40 69.90 80.70 @ Figures correspond to current enrolment rates. * Neo-Buddhists of Maharashtra are not considered under SC for obtaining the estimates. Source: Sarvekshana, vol. XII, No.4, April-June 1999.

This being the case the levels of education among the SC/ST population compared to the non SC/ST population is bound to be different. How they are different is shown in Table Two. Thus, Table 2 shows that the levels of middle, secondary and higher secondary education among the male as well as female population in both rural and urban areas among the SC/ST population are much lower compared to the non-SC/ST population

Table-2 Percent Distribution of Persons of Age 15 years and above by General education for Different Social Groups: India (Figures in per cent) Social Percent distribution of persons (15+) by level of general education group Not Literate Middle Secondary Higher Graduate Above All Literate and up secondary Graduate to primary Rural Males 58.80 24.50 9.60 4.30 2.10 7.00 100.00 ST 54.20 25.00 11.60 5.50 2.60 1.10 1.00 100.00 SC 188 MAINS Thesis, 2009

34.90 28.90 41.10 27.60 Rural Females 84.30 10.10 ST 82.40 11.60 SC 19.00 Other 65.50 70.80 16.60 All Urban Males 25.00 27.60 ST 31.90 29.00 SC 22.40 Other 13.70 16.20 23.30 All Urban Females 50.50 19.10 ST 62.00 17.80 SC Other 32.20 22.20 36.30 21.60 All Source: As Table 1 Other All

17.30 15.40 3.50 3.90 8.70 7.30 17.10 17.80 18.60 18.40 13.30 10.10 14.90 14.30

10.50 8.90 1.40 1.60 4.40 3.60 14.30 10.40 18.60 17.50 7.90 5.50 13.90 12.70

5.00 4.20 4.00 4.00 1.50 1.20 7.60 6.00 11.80 11.00 5.30 3.20 7.80 7.20

3.40 2.60 2.00 1.00 7.00 5.00 8.00 4.80 14.80 13.40 3.50 1.20 8.90 7.80

2.00 1.00 1.00 1.00 3.00 1.00 1.00

100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.00

Relatively low school attendance rates accompanied by high drop-out rates among SC/ST children creates a lack of proper opportunity and sow the seeds of low achievements standards of Dalit children to benefit from the available opportunities in the various spheres of the society, ultimately result in socio-economic discrimination.

According to the above attendance rate and dropout status we will now look into the reasons underlying the drop-out rate of Dalit children. The problem of school drop-out among Dalit children is a complex one, having multiple causes behind it. We may, however, integrate the items which have some proximate relationship among themselves. The reasons have been divided into six broad categories. Deepali Gakhar analyzes the causes of dropping out and come to the conclusions that there are 5 major causes of Dalits dropping out of school that include: “Poverty and Economic Hardships, School and School Related Factors, Domestic Existences, Individual

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Deficiency and Cultural Factors”95 but there is one more crucial, intangible factor the lack of proper opportunity for higher education.

Poverty and associated handicaps are chiefly responsible for the drop-out incidence among Dalit children. The next contributory element to reckon with is the existing inadequacy of the school system. Punitive, unhelpful and impersonal attitudes of school teachers as well as the aggressive and unfriendly acts of school mates seem to have created a credibility vacuum between Dalit students and the school system. The third, fourth and fifth categories relate to family or personal issues like sickness and death, declining interest of the child in studies and superstitious beliefs and values against the continuity of school education. In general, the economic backwardness of Dalit families and unreceptive and discourteous atmosphere in the school constitute two major barriers that lie at the root of the drop-out problem among Dalit children, but the last category alone plays a greater role very intangibly and without addressing this cause, we cannot control the drop out of the Dalits children in education. Above I already mention many cause of drop out of Dalits children but one more important part I observed is being missed by the social thinkers and by our society and government. This factor forces me to say that it’s not drop out its “Throw- out system” which means the intangibly prevented proper opportunity for higher education.

An example in the Varanasi District in India, in a total of nine blocks, each block has a number of Government primary schools96 (till 5th standards only) as shown in table no.3 below.

95 96

Gakhar, D. (2001) Varanasi District Basic Education Department, primary schools list Register, 2008

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Table No. 3 s.no 1 2 3 4 5 6 7 8 9 Name of the Block Nagar Nigam (City Municipality) Pindra Sevapuri Kashi Vidya pith Haraua Chola Pur Chirai Gaon Bada Gaon Aaraji Line Total Number of the schools 229 174 179 161 191 274 203 160 223 1794

As the table above shows, the total number of Primary schools is 1,79497 and if we include 200 schools, those which are run by the Indian government under NCLP (National child labor Project) through labor department with the help of NGOs then the number of primary education schools will be 1,994.

Out of 1,994 primary schools in Varanasi, there are only 162 governments inter colleges (from 6th standard to 12th standard only). It means there are less than 10% of Inter colleges required accommodate all children who have completed primary level education. It is impossible for that percentage to accommodate all qualified children from 1,994 primary schools every year. This means less than 10% inter college eligible student are not “thrown out” due to their inability to get admission. It is also easy to say that this limit leads to the creation of standards and rules or regulations to prevent certain children to be admitted. According to Indian Constitution every child has the right to a good and standardized education, but this system violates these fundamental rights. The weaker section of society fall victim to this system namely the poor,

97

Ibid

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Dalits and women. These systems throw out those children who came from this section of society. This, in my opinion should be called “throw-out” instead of “drop-out”.

We already know that an overwhelmingly large percentage of the SC/ST population living in rural areas work as agricultural laborers. Even the up and corners among them are generally marginalized farmers lacking access to adequate social resources. In view of this problem, the level of education alone could help them cross the boundaries of caste-based occupations and jobs and secure socio-economic stability in their otherwise deprived lives. Such a low level of education, however, compels a large number of the Dalits to undertake jobs that earn relatively low income. This has as inevitable consequence poverty among the Dalits. Poverty is the main factor to preventing them from getting a decent education. This is a cycle of hall progress that throws out children while preventing them from making their own lives better.

As we know, a large proportion of Dalits come from the villages or rural areas, and they are poor. Privatization of education and elite higher education is impossible for Dalits to access to higher education campuses. Compared to Dalits students studying in Government inter collages, there is a huge difference on the quality of education and this very evident in the higher education.

3-2-E- Dalits in higher educations As we know 80% of students who attend university come from the top 20% of classes. Under the caste hierarchy they fall under the upper caste and that realty was not yet been realized by the Indian government until now. This proves that the throw out system has tangibly prevented Dalits from getting higher education. 192 MAINS Thesis, 2009

Despite all these problems, if any Dalit can get access to these higher education campuses, caste discrimination still applies and forces these Dalit students to cut short their higher education. This type of discrimination demands society’s deep consideration as well as that of the state and law enforcement that these issues might be properly addressed.

3-2-Dalits’land rights and its Current situation in India Denial of land rights to Dalits is directly linked to the caste system and its pernicious influence results in gross human rights violations in multiple forms. Exclusion and discrimination faced by Dalits is a corollary to the graded and iniquitous social system which prevails in Indian society.

Because Dalits are discriminated against and marginalized by the religiously based social belief they are assigned or bound for most heinous tasks like manual scavenging. Historically they are landless and/or usually work in the agrarian field as bounded and labor. Almost half of them (49%) are agricultural laborers, while only 25% are cultivators. By contrast, in 1961, 38% of Dalits were cultivators and 34% were agricultural laborers98.

The caste system would have not perpetuated for centuries only through subjective prejudices and the idea of pollution. One of the most formidable factors that provided enduring strength to the caste system was its solid economic foundation.
98

Again, what needs to be

Broken Promises and Dalits Betrayed BLACK PAPER on the status of Dalits Human Rights (A Summary)

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emphasized, is that the economic aspects of the caste system were sanctified by the Hindu religious scriptures and, like every other form of social discrimination, they were also deeply internalized99.

In view of this, it would be interesting to assess the extent of land ownership by Dalit households. This is because in rural areas ownership and/or access to land is the single crucial factor that enables one to share the benefits of agricultural development and also serves as a symbol of social prestige. Thus, Table 1 shows that households owning less than one hectare of land ,ade up 68.50% among the SC compared to 57.5% among others. Further, as we increase the size of land owned by any household, the percentage of households belonging to SC families continues decline when compared with those belonging to the category ‘others’. For example, only 1.5 % of SC households owned more than four hectares while the same percentage for others was 6.40. This unequal ownership of land among the SC households vis-à-vis the others

ultimately results in unequal distribution of gains of agricultural prosperity. In the case of ST the position of land ownership is better than SCs and sometimes also ‘others’. This may be attributed to the nature and features of the tribal economy and should not mislead one to conclude that agriculture as an economic activity is more favorable for ST compared to the SCs, let alone the non-SC/ST population.

Ownership of Agricultural Land by Sign Class of Holdings (1993-94) Table 1 No. 1 2
99

Sign Class in Hectares S. T. Landless 13.30 Less than 1 51.30

S. C. 18.10 68.50

Others 11.20 57.40

All 12.90 59.10

Mungekar, B.L. (1999).

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3 4 5 6

1 to 2 18.70 08.00 2 to 4 11.90 03.90 4 above 04.80 01.50 Total 100.00 100.00 Source: Sarvekshana, vol. XII, No.4, April-June 1999.

15.10 09.90 06.40 100.00

14.00 08.00 06.00 100.00

In Table 2, we present the composition of households by household type i.e., by nature of primary occupation. The novelty of this table is that we have separate information for SCs, STs, and ‘others’ i.e., ‘non-SCs and STs’. Thus, Table 3 shows that only 38% of ST and 20.10% of SC households are self-employed in agriculture and 5.90% and 10.70% of them are self-employed non-agricultural fields. Thus, all self-employed (both in agriculture and otherwise) ST and SC households comprise 44% and 30.80% respectively. Compared to this, 43.30%, 14.50% and 57.70% households belonging to ‘others’ were self-employed in agriculture, self-employed in non-agriculture or otherwise self-employed.

Percent Distribution of Households by Household Type (1993-94) Table 2 Household Type S. T. S.C. Others SEA 38.00 20.10 43.30 SENA 06.00 10.70 14.40 All SE 44.00 30.80 57.70 AL 37.80 49.30 23.20 OL 10.10 10.20 06.90 All Lab. 47.90 59.50 30.20 Others 08.20 09.70 12.10 All 100.00 100.00 100.00 Source: As Table 1 SEA = Self-employed in agriculture, SENA = Self-employed in non-agriculture AIISE= All Self-employed, AL= Agricultural labor households OL= Other Labor AII Lab= All labor, ST= Scheduled Tribe, SC= Scheduled Caste

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Furthermore, 37.80% and 49.30% of ST and SC households were agricultural labor households, while the proportion for ‘other’ was 23.20%. Similarly, ‘other’ labor households constituted 10.10% and 10.20% respectively for the ST and SC households with only 6.90% among ‘others’. This shows that the majority of SC households depend upon their own labor as their main source of livelihood, followed closely by ST households. In this respect households belonging to category ‘others’ are far better off when compared to those of ST and SC100. 3-2-A-Steps taken by the Government of India and the Realities of those steps After the independence of India, thanks to the efforts of Dr. B. R. Ambedkar the Indian government adopted a constitution that ensures the equality, justice and fraternity. In order to achieve these objectives some special pro-SC visions have been made available for the downtrodden in general and for the SC and ST in particular. These provisions exist mainly in the areas of education, employment in the public sector and political representation. Also, in addition various acts have been passed against practice of untouchability (1955), violation of Civil Rights (1976), and SC/ST prevention of Atrocities (1989). Various schemes and programs have been introduced for the welfare of SC/ST communities. The constitution of India guarantees basic human rights also known as Fundamental rights. Violation of these rights could be challenged in the court. But From independence to today, after all these laws and rules, still Untouchables are facing lots of problems and discrimination that are regularly highlighted by them, Media and NGOs. Only the form of violation and discrimination has changed not social conciseness.

After independence many land reforms and land rights movements were affected and such movement was Bhudan Andolan (Land Gift movement) started by Vinoba Bhave to promote the
100

Mungekar, B. L. (2002).

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Bhudan Movement over a period of twenty years, Vinoba walked the length & breadth of India persuading land-owners and land-lords to give their poor and downtrodden neighbors a total of four million acres of land, but most of the land was never reached the Dalits. This accrued even though according to Bhudan Act, 50% of Bhudan Land should be given/distributed to landless Dalits as priority and after that landless poor.

Secondly came the Land Reform Act. Land Reforms Acts which were envisioned as a ‘redistributive’ strategy to change agrarian relations and break the caste-class nexus of big landlords and, had the potential to provide reparation for the crucial disability inflicted upon Dalits by the caste system. “The implementation has however been subverted by the absence of political will and bureaucratic commitment, loopholes in the laws, tremendous manipulative power of the landed classes, lack of organization among the poor and excessive interference of courts”101.

According to the Report of the National Commission for Scheduled Castes and Scheduled Tribes102, as of 30 September, 1996, about 5.213 million acres of land were distributed at an allIndia level. Of these about 1.8 million acres were distributed to SC, and 2.67 million acres to nonSC/ST persons. A total of 5.121 million beneficiaries have so far been covered, of which 1.84 million were SC, and 2.55 million non-SC/ST. The land distributed per SC/ST beneficiary comes to 0.977 acre, which is less then the 1.047 acres for each non-SC/ST. Of the total land distributed to SC households, however, West Bengal alone accounted for about 20 percent, followed by UP. In terms of share in beneficiaries, West Bengal also accounted for nearly 43% of total beneficiaries, followed by U.P. (13%), A.P. (12%) and Bihar (12.4%)
101 102

Report on Prevention of atrocities against Scheduled Castes, NHRC, 2004, p.85 1995-96, Government of India

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.

3-2-B-The Current situation of Dalits Land Right and their struggles The egalitarian principles enshrined in the Indian Constitution have not been realized up to a great extent even after five decades of a modern and democratic system of governance in the country. Dr. Ambedkar was very clear on this matter. One of the biggest issues he had with the Congress party and Gandhi ji concerned caste. The Congress held that political power could tackle caste, whereas Dr. Ambedkar thought that caste would have to disintegrate from within. Through his writings, he pointed out the limitations of legislation or the power of the State in dealing with issues that are essentially social in nature. He argued: “As experience proves, rights are protected not by law but by the social and moral conscience of the society. If social conscience is such that it is prepared to recognize the rights which law chooses to enact, rights will be safe and secure. But if the fundamental rights are opposed by the community, no Law, no Parliament, no judiciary can guarantee them in the real sense of the word”103

Dr. B.R Ambedkar’s words from 60 years ago are today’s ground reality. As an example of land dispute and atrocities in India we can see the situation of Dalits in India.

3-2-C (i)-A case study of Bhudan Land distribution In a village named Baranpur in Korao Block Tahasil Meza on the 4 th of January 1958 Vinoba Bhave get 1095 Bigha Land which he redistributed as a token gester to 18 th Dalits about 95 bigha land and rest of the land he give to Bhudan Samiti (Committee) and he expected that
103

Bhan, C. (2008).

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according to Bhudan Act land was redistributed to all Dalits but Upper caste people make a trust name of Sarvoday Mandal Baranpur trust and they transfer 600 Bigha land to the name of that trust. When the people who know this they apply to get back their land and rest of the land was return to the land lord of that area. It happened in 1960 but upper caste was doing all this in the paper and government register. In 1975, an upper caste group with the nexuses of the police and political leaders, came and took possession of the land and destroyed Dalits crops that day, a Dalit committed suicide, shocking everyone. After that, Dalits went to the court to sue and to fight for their land rights but to this day after 33 years, the case is pending. Meanwhile more the 50 cases were fabricated against Dalits with the help of the police to demoralize them and more then 100 counts of mass atrocity took place in that village without any result favoring Dalits. This is the ground reality of Bhudan land distribution. The 18 people who got titles for land during the Binova Bhave were listed as landlords in the government record but in reality they received nothing and are still landless. This is one example of the thousands of pending cases of Korao block alone104.

3-2-C (ii) 21 Dalits Shot in Land Dispute Chamalpur Village, Allahabad District, Uttar Pradesh. A disputed and unused piece of land was under consideration to be allotted to 7 Dalit families. On the afternoon of 10 November, 2006, a dominant-caste member of the village, along with his family, began to erect a house on the land. When the Dalits learned of this, they rushed to the police station to lodge a report. The police officials discouraged and demoralized the Dalits and did not register the complaint. The Dalits then returned to the land where they requested that the perpetrators stop working and
104

News paper (Nishpaksh Pratidin on 20 November 2007 Lucknow, UP, India)

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showed them the stay order of the court. In response, members of the dominant-caste Yadavs began to curse the Dalits and fired gunshots at them, injuring 21, six of them seriously. No arrests have been made and no protection has been provided to the Dalits though they continue to receive threats from the perpetrators.

If we look deeply we will find that all case studies give us an idea of the facts and figures of government reports and also those to which I refer above, and the reality of the land ownership of Dalits. And we clearly understand the situation of Dalits as well as the violations, atrocities and crimes committed against in India are dire. Indian government reports Crimes against Dalits according to official Indian crime statistics, averaged over the period 2001-2005, are as follows: 27 atrocities against Dalits every day 13 Dalits murdered every week 5 Dalits’ homes or possessions burnt every week 6 Dalits kidnapped or abducted every week 3 Dalits women raped every day 11 Dalits beaten every day A crime committed against a Dalit every 18 minutes105

These types of cases and records of atrocities give us an idea of the situation of Dalits land rights and the government’s will to deliver justice to the Dalits. It also shows the caste system and general apathy among people.

3-2-D- Dalits land rights in globalization According to Vandana Shiva, “We are witnessing the worst expressions of organized violence of humanity against humanity because we are witnessing the wiping out of philosophies

105

www.ncdhr.org.in

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of inclusion, compassion and solidarity. This is the highest cost of globalization -- it is destroying our very capacity to be human. Rediscovering our humanity is the highest imperative to resist and reverse this inhuman project. The debate on globalization is not about the market or the economy. It is about remembering our common humanity and the danger of forgetting the meaning of being human”.106

From Independence to today, in the name of development, Untouchables face many types of problems created by the process of industrialization. For example, landless Untouchables borrow land from landlords with terms and conditions and those landlords have extra land that they are unable to cultivate. They give that land to Untouchables for cultivation and after one season they divide crops according to there terms and conditions. But after the widespread use of big machines like tractors and harvesters, landlords stop giving land to Untouchables so due to mechanized agriculture Untouchables and SC are also losing their agriculture work. Secondly, in India agricultural work was traditionally done in villages but now big farm houses and agricultural fields are more common and the 70% of the SC and Untouchables population lives in villages are loosing their livelihoods. Third, in the name of development, the Indian government introduced mega structure development projects and to make way many Untouchables, SC and ST peoples are forcefully displaced from their traditional villages. Fourth, in the name of SEZ, (Special Economic Zone) the Indian Government gives land to big private companies: lands originally belonging to “landless” SC/ST and Untouchables who are not compensated. Untouchables are still landless and the government forgets to give land to landless Untouchables, SC and ST. It’s kind of state sanctioned atrocity.
106

Shiva, V. (2008). Globalization and Its Fall Out: Neither Prosperity nor Peace.

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In many parts of India, Dalits and Tribals are fighting for their land rights. In Gujarat, Narmada Bachao Andolan (Narmada Dam Movement), in West Bengal, Nandi Gram and Signore land movement. In Jharkand, Tribals are also fighting for their land rights. In Orissa, Untouchables and Tribals struggle against SEZ. These are the few major struggles for land rights in India. Still the Indian Government and bureaucrats are ignoring the land rights of Dalits.

Recently 25 thousand SC/ST, Poor and landless, marched from Madhya Pradesh to New Delhi, the National Capital of India more than 1000 Km covered for land rights and Land reform and they want to raise their voice because the Indian government and government officials are not listening to their sentiments and suffering. They want to tell them that without land they cannot live and survive. Land rights is the key issue for Dalits upliftment and it will happen only through this fight for their land rights and through this struggle is going on. The lack of interrelation of all land rights struggles is leaves only hope that in future changes will take place. What the cost will lies in the future’s hands.

3-2- Dalit Women Rights Indian society, as I see it flows from hunting and gathering period until today as a Religion and Caste based Patriarchal Capitalist Society. In these thousands of years of social transformation, it did not only develop a society but also left back or forcefully prevented a community from being a part of this “developed” society and exploited the rights of marginalized peoples.

202 MAINS Thesis, 2009

This means that if we find those people or groups and communities who were prevented from enjoying their rights in this socialization and development we can apply this to the current Indian social composition of the society. We can say very easily that they are the religious minorities, oppressed or the out caste (untouchables), women and the poor portion of Indian society.

In the Indian caste system, untouchables some time called Dalits, or outcasts, are people who, according to traditional Hindu belief, do not have any "Varna" (according to the traditional caste system).Varna refers to the Hindu belief that most humans were supposedly created from different parts of the body of the divinity Purusha (person). The part from which a Varna was supposedly created defines a person's social status with regard to issues such as with whom they may marry and which professions they may hold. Dalits fall outside the Varna’s system and have historically been prevented from doing any thing but the most menial jobs. But today the caste system does not remain only in Hindu religion it’s a social and cultural phenomenon and groundreality of Indian society and has affected other major religions like Islam, Christianity, Sikhism and Buddhism.

Today the caste system does not only exist in India, it exists in a big part of South Asia and Japan 107 . As I have said, Untouchables are outcaste and they face very inhumane and degrading treatment from the upper or dominant caste people. Patriarchy is also a part of the caste
107

Japan historically subscribed to a feudal caste system. While modern law has officially abolished the caste hierarchy, there are reports of discrimination against the Buraku or Burakumin undercastes, historically referred to by the insulting term "Eta”. Studies comparing the caste systems in India and Japan have been performed, with similar discriminations against the Burakumin as the Dalits. The Burakumin are regarded as "ostracized." The burakumin are one of the main minority groups in Japan, along with the Ainu of Hokkaidō and residents of Korean and Chinese descent

203 MAINS Thesis, 2009

system that worsens the situation of Untouchables women as victims of discrimination, deprivation and exploitation.

In this situation, an overview of Untouchables women and the violation of their rights and struggles and future impact on South Asian society is. If the current society one of religion and caste based patriarchal capitalist society, its first and worst victims are Untouchables Women who not only face caste discrimination but gender based patriarchal violation and capitalist exploitation as well. In this situation, Dalit women struggle or “Dalit Feminism” is the only hope for the Future of Untouchables womens rights and a peaceful democratic society.

3-3-A- Dalit Women in Asia

The caste system exists throughout Asia, particularly in India, Pakistan, Nepal, Bangladesh, Sri Lanka and even in one part of Japan. The SC and ST, number around 260 million people in South Asia (accounting for roughly 1/4 of India’s population), face systemic and structural discrimination in the region due to their inferior social status108.

This means about 50% of 260 million people, or around 130 million people, are Untouchables women found only in India and if we include Untouchables women from Pakistan, Nepal, Sri Lanka and Bangladesh, then number of Untouchables women may reach around 150 million which is a very big population. These Women are especially discriminated against, even within their own caste, as they are defined as intrinsically impure beings. Dalit women are forced
108

The Hague Declaration on the Human Rights and dignity of Dalit women (http://www.iheu.org/node/2474)]

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to perform the most degrading jobs, denied access to education, and are subjected to violence, including the “Devadasi system” of forced and ritualized prostitution. Dalit women are basically stripped of all their basic human rights, having no recourse against the men perpetuating these abuses and inequalities.

3-3-B- Violations against Dalit Women

A case study- Dalit’s House Destroyed, Wife Molested Due to Land-Ownership Bhaniyana Village, Pokhran District, Rajasthan. A Dalit couple (Tajaram and Bhawari Devi) are the only Dalits who own land in the entire village. Having no respect for them and wanting to take the land to extend the campus of a nearby private school, several dominant caste villagers sought to intimidate the couple. On the night of December 7, 2006, these dominant caste members forcibly entered their house, molested and injured Bhawari Devi (failing in an attempt to rape her) and ransacked and destroyed everything in her home. The police registered a report, but have taken no measures to protect the family and have not apprehended the accused109.

This is the common case in terms of atrocities and Untouchables women are the soft target for the dominant caste to control and maintain the status quo and also exploit Dalits and Dalit women.

3-3-C- Dalit Women’s Occupations Temple Prostitution (Devadasi system)
109

www.ndchr.org

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In India’s southern states, thousands of girls are forced into prostitution before reaching the age of puberty. Joghinis, literally meaning “female servant of god,” usually belong to the Dalit community. In the name of religion, thousands of Untouchable female children between six and eight years are forced to become maidens of God (ritualized prostitution in temples). Once dedicated, the girls are unable to marry and are raped by temple priests and upper-caste men, eventually auctioned secretly into urban brothels for prostitution. It is estimated by NGOs that each year 5,000 to 15,000 girls are secretively auctioned to brothels110.

Manual Scavenging According to government statistics, an estimated one million Dalits are manual scavengers who clear feces from public and private latrines and dispose of dead animals; unofficial estimates are much higher. An activist working with scavengers in the state of Andhra Pradesh claimed, “In one toilet there can be as many as 400 seats which all have to be manually cleaned. This is the lowest occupation in the world, and it is done by the community that occupies the lowest status in the caste system111.

Thousands of female manual scavengers are forced to earn their living scavenging, cleaning dry latrines, by using metal pans and a short broom to scoop up the night soil. The excreta is carried in baskets on their heads. This dehumanizing practice has killed the dignity of women at the same time these women believe that without this job they will have no way to earn their livelihoods. Gender division reinforces and sustains caste distinctions, and gender ideology

110 111

(HUMAN RIGHTS WATCH) Caste and eye Cast an Eye. International Dalits Solidarity Network

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legitimizes not only the structure of patriarchy but also elements of Caste hierarchy. Yet another dimension of this ideology is that lower caste women are considered inferior and sexually loose.

The overall violation of Untouchable gives us an idea of the situation of Untouchable women in India. As I mention before out of 27 atrocities against Untouchable every day and13 Untouchable murdered every week and many more. This is the data of violation of Untouchable in India and if we include the domestic violation against Untouchable women and indirect mental violation of Dalit women because of their male family members being subjected to atrocities then situation of Dalit women is getting worse and worse. And this is an overview of atrocities to understand the situation Dalit women in India only were I to include the data of Pakistan, Nepal, Bangladesh and Sri Lanka the situation of Untouchable women would become unpredictable.

3-3-D- Economic Deprivation of Dalit Women Untouchable Women are the most economically deprived section of Indian society. •The female Untouchable labor force constitutes the backbone of Indian agricultural economy. • 71% of them are agricultural laborers. • 90% were cultivators (1991). • 32.40% of the household sector and a large number of them employed in unorganized labor in urban areas. • A large number of them are employed in unclean occupation. • They are denied just and equal wages, fair share in economic distribution, maternity benefits, security and protection. • Almost all Untouchable womens enter the labor market before the age of 20. • 31.6% of all girl children from Dalit communities are child laborers (Guntur District – Andhra Pradesh)112.

3-3-E- Dalits Women and Human Rights

112

Manorama, R. (2000).

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The interface of the severely imbalanced social, economic and political power equations in caste and patriarchy impacts Untouchable women uniquely, distinctly from the experience of other women and even Untouchable men. These forces combine to expose them to increased physical and sexual violence and increased exploitation of their labor. Together these keep Untouchable womens from having access to and control over assets and resources. It does not recognize their social and economic contribution. It limits their choices and opportunities, placing them on the bottom rung in all development indicators. This process of exclusion and discrimination inculcates the disrespect and indignity of Untouchable women at the hands of all men and non- Untouchable women.

India is a democratic country and a signatory to most of the major UN human rights treaties. These treaties provide the same rights for men and for women. Because India is also a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)113, the Government has an extra obligation to make sure that women can realize their rights. It is generally accepted in international law that governments have to do more than just pass legislation to protect human rights. The Government of India has an obligation to take all measures, including policy and budgetary measures, to make sure that women can fulfill their rights. It also has an obligation to punish those who engage in caste-based violence and discrimination. The government of India, as a modern country with a growing economy, has the means to fulfill its obligations.

113

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

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3-3-E (i)-Civil and Political Rights India is party to the International Covenant on Civil and Political Rights. Based on this treaty, the Government of India has an obligation to make sure that Dalit women can enjoy a whole range of human rights, such as the right to life, freedom from torture or cruel, inhuman or degrading treatment or punishment, freedom from slavery, the right to be equal before the court, the right to recognition as a person before the law, the right to privacy, the right to marry only with free and full consent, and the right to take part in public affairs. The life and dignity of Dalit women depends on the realization of these human rights. However, they are breached systematically.

An essential precondition for the realization of civil and political rights of Untouchable womens is registration. Article 24 (2) of the Covenant provides that every child shall be registered immediately after birth. In India, 46 % of all children are not registered. There is no system for the registration of marriages. This is not only a barrier for the realization of civil and political rights; it also prevents the protection of Untouchable girls from sexual exploitation and trafficking, child labor and forced and child marriages.

A case study- District Varanasi, Village Koirajpur, Uttarpradesh, India 2006 New elected Untouchable women village head Muniya Devi was brutally tortured and stripped half naked by Dominant Caste people namely Ravindar Singh and his family. After independence, it is the first time in that village Head seat was reserved for Scheduled Caste women and it was also the first time that any Untouchable woman becomes village gead. The case is pending in court and Muniya Devi still waiting for justice. 209 MAINS Thesis, 2009

This is just one reality of the practical state of the civil and political right of Untouchable women. In many villages, when Untouchable women become village head, their husbands take over their rights and force her to stay at home and do house work. In Uttar Pradesh, we call them “Pradhan Pati” (Husband of Village head) and government officials also call them and except them to take part in the official meetings in the name of his wife. This is another example of “practicing” Civil and political right of Untouchable women. When her family members are violating her rights, she is left with no choice and cannot do anything against them.

3-3-E (ii)- Economic, Social and Cultural Rights India is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This treaty not only identifies a range of economic, social and cultural rights, but it also requires that all people have these rights without discrimination. The treaty also discusses the ways in which states must work to realize these rights. The rights outlined by ICESCR include the right to work and to just and favorable conditions of work, the right to form trade unions, the right to social security, protection of the family, the right to an adequate standard of living, including food, housing and clothing, and the right to health.

In villages, the situation is worse because all these so called rights do not exist in reality. 79.8%114 of Untouchable lives in the villages in India. This majority of women suffer a worse form of human rights violation. These women hardly enjoy any of these human rights.

114

Caste an Eye

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3-3-E (iii)- Millennium Development Goals and Dalits Women In 2000, 189 countries accepted the Millennium Declaration and agreed to take the necessary action in order to attain eight specific goals: the Millennium Development Goals (MDGs). The realization of human rights of Dalit women will have a major positive effect on the realization of the MDGs. Dalit women are extremely poor, and make up 2% of the world’s population. In India, 60 million children do not attend primary school; the majority of these children are Dalit girls. India’s child mortality rate is one of the highest in the world and with its vast population and a rate of 540 maternal deaths per 100,000 live births, India accounts for more than 20 % of all global maternal deaths. A greater availability and accessibility of healthcare for women, including Dalit women, is needed115.

3-3-F- Dalits Women Struggle One of the more significant developments in the post independence period is the rise in Dalit consciousness and activism. While this is still confined to a relatively small portion of Dalits, achievements in creative writing, cultural expression of the Dalit experience, a search for ideology and identity and, a growing organized socio-political strength, are in evidence. Among the Dalit masses a new wave of assertiveness is noticeable on all fronts. Therefore, Dalits are becoming less willing to accept social, cultural an economic subjugation and are claiming dignified Human Rights. Many observe and believe that this assertiveness is the result of the middle and upper caste backlash.

115

Manorama, R. (2000). Background information on Dalit women in India,

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The story of women’s participation in the anti-untouchability movement is an interesting phenomenon. To trace the early activism of untouchable women, one has to go back to the beginning of the 20th century. In the following decades women’s activities developed from participation as beneficiaries or as an audience to the shouldering of significant responsibilities in various fields of activity in the Ambedkar movement.

The life, work and struggles of Dalit women for survival and dignity today has more to do with subjugation than in the past. This struggle assumed varied dimensions, particularly in the face of significant developments in the socio-economic and political arenas.

Thousand of villages and districts have small Dalit womens organizations like in Varanasi, Banaras Mazdur Mahila Sangthan (Varanasi Women Labor Organization), Savitri Bai Mahila Manch (Savitri bai Phule Women Forum), and Mushar Nat Adhikar Manch. These district level organizations organize Dalit women and fight against atrocity and discrimination.

These small organizations came together and established a state and national level organization which is not only fighting for Dalits rights but also for Dalit womens rights and gives opportunity to these Dalit womens organizations to come forward and take leadership of the whole struggle. Especially in India, only a few national and state level organizations are doing a tremendous amount of work for Dalit rights and Dalit womens rights like the National Campaign for Dalit Human Right (NCDHR), All India Dalit Mahila Adhikar Manch, Peoples Wacth Tamil Nadu, Dalit Action Group, Sakshi, Dalit Shakti Kendra. etc.

212 MAINS Thesis, 2009

These National organizations came together and built a strong network during the last decade and they are doing a great job in terms of international advocacy in the United Nations. One of the outputs of the effort was apparent when UN appointed two- member special reporters to submit reports on the basis of work and descent based discrimination. That is the one of the great achievements of the Dalit Movement and this is the only movement or struggle which is not only based on man’s leadership: these movements are also lead by Dalit women who are coming forward very strongly.

The first-ever International Conference on the Human Rights of Dalit Women was held at The Hague in 2006. Determined to “transform their pain into power,” Dalit women from India, Pakistan, Bangladesh, Sri Lanka, and Nepal presented shocking and heart-breaking testimonials about the violence perpetrated against them and the impunity that followed. In connection with this conference National Federation of Dalit Women (NFDW) was launched by Dalit women through long, drawn out debates and discussions amongst the Dalit women, representatives from the women’s movements and Dalit movement as a whole, for over a decade. Dalit women view the formation of NFDW in the larger context of historical struggles of Dalits all over the country to redeem their full dignity, particularly that of the Dalit women. The National Federation of Dalit Women (NFDW) was launched by Dalit women themselves and committed itself to undertake several tasks to bring about positive changes in the lives of Dalit women, such as legal action against caste-based atrocities, political empowerment of Dalit women, economic empowerment against growing pauperization, building self-confidence and leadership.

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3-3-G- The Vision and the Role of Dalit Women in Liberation The role of Dalit women is crucial and it is in the centre of Dalit liberation and identity; in the larger framework of Dalit movement and struggle. Henceforth, women’s positions in the Dalit vision is more than an equal partner with men and this must form the main path of alternative consciousness. In essence, the Dalit vision and alternative consciousness is primarily feminist, non-patriarchal, non-hierarchical and positively ecological. Dalit women all over the country need to stand up for freedom, the inalienable right to human dignity and equal status with men and others in the society.

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Chapter 4

Role of civil society or NGOs to eliminate the caste system in India Above, we saw a broad picture of caste system, different versions of the history of its origin, approaches to the welfare of untouchables, the struggle for the elimination of untouchability and these tasks current situation in India. As is already known, there are many subcastes that exist in India, perpetuating and sustaining the caste system in the country. In this chapter I will attempt to draw first, the kind of role played by the civil society or NGOs to address the caste system and untouchability in India and second their limitations and challenges to their approaches in addressing the caste system in India.

There are many definitions of NGOs and civil societies in the academic world. Here I am not going to evaluate and analyze or attempt to understand these NGOs and civil societies according to those definitions. Instead I will try to understand them according to their work or action towards the elimination of the caste system and welfare of Dalits. In my understanding, to best evaluate any NGO or civil society, we must first evaluate their work and activities.

In doing so, it is also important to set some standards and norms for evaluation. The goals of social service, social work and movement will be used as standards. In understanding these standard or norms, let me give you one metaphor to explain their work and activities under these standards.

215 MAINS Thesis, 2009

There was one person who was walking on the street when he suddenly fell down under the hole in the ground. Few peoples came forward and brought him out, did some first aid thereafter sent him to either hospital or home. Later on, these people organized themselves, mobilized fund and decided to help anyone falling in the hole in the ground by bringing them out and sending them back home. This charity work falls under the term, ‘social service’. The second example is when people came forward and decided to fill that hole in the ground so that no one will have accident. Later on, when they went further they found many other holes and they decided to take responsibility to fill all these holes. So they organized, they also mobilized sum fund and started filling the holes in the ground. These kinds of work fall under the category of ‘social work’. The third category is few peoples decided to go forward and checked who is digging the hole in the ground and stopped them. In order to stop them, they either convinced them to stop and pending failure, confronted them. In confronting them, they mobilized their recourses and started to take some actions. These kinds of activities fall under the definition of ‘Movement’.

Looking at the metaphor, we can describe the first one as “immediate responses”; the second as “Long-term responses” and the last example is trying to achieve “permanent solution”. These three categories in all three activities are important and non-negotiable. Take this example: If someone is going to die because of hunger then the immediate response is to provide food and then later on to make arrangements for them to raise permanent food for themselves and lastly eradicate that causes of their hunger and poverty. In order to understand the activities of NGOs, here I will attempt to give few case studies of different NGOs in India who are working for or

216 MAINS Thesis, 2009

with Dalits. Then latter on I will evaluate their activities according to our standards and understanding of the caste system.

4-1- Case study- NCDHR (National campaign on Dalit Human Right) The National Campaign for Dalit Human Rights (NCDHR) is a coalition of Dalit Human Rights activists, civil society organizations, journalists, and academics who are committed to ending the caste-based discrimination and “untouchability” practices that deny human rights and dignity to 170 million Indian citizens – one sixth of India’s population. Established in 1998, NCDHR is a non-party based secular platform centered in Delhi with offices in 14 states around the country. NCDHR monitors atrocities, legal interventions, and advocates nationaly and internationally to achieve a three-pronged objective: (1) to hold the State accountable for all Human Rights violations committed against Dalits; (2) to sensitize civil society by increasing visibility of the Dalit problem; and (3) to render justice to Dalit victims of discrimination and violence. All activities are supported by private contributions; they accept no government funding116.

NCDHR's Origins & Objectives In October 1998, seventy-eight Dalit activists and human rights activists from across India, concerned about the frequent atrocities and the blatant lack of implementation of the SC/ST (Prevention of Atrocities) Act, 1989, met in Bangalore to discuss a program of action. They were anguished that though the nation had just completed her 50th year of independence and in spite of the Constitutional and International commitments to the contrary, the prevalence of
116

www.ncdhr.org.in

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"untouchability" continued unabated in many parts of the country. In conjunction with the 50th anniversary of the Universal Declaration of Human Rights, they called for an urgent national campaign to highlight Dalit Human Rights and to uphold that "Dalit Rights are Human Rights."117

NCDHR also declared that it is to be stressed that the Campaign is not an effort to subsume, replace or negate ongoing efforts of Dalits and others in various mass movements, people's organizations, labor unions, etc. Rather, it is an effort to galvanize and martial all these movements into a representative body that can collectively organize, educate, agitate, and demand an end to untouchability and casteism once and for all in both the government and in civil society118.

Earlier Work & Current Focus Since its inception in 1998, NCDHR has made major strides in giving visibility to the plight of the Dalit community in South Asia. NCDHR’s work has been instrumental in bringing the kind of international attention and media coverage which has made many in India and around the world sit up and take notice of the injustice and oppression faced by Dalits. To name just a few examples, NCHDR has been involved in events such as the World Conference Against Racism in South Africa (2001), all World Social Forums, the historic 40-day Dalit Swadhikar Rally across India (2004), the first ever public hearing on “The Situation of the Dalits in India” at the European Parliament in Brussels (Dec 2006), and the first International Conference on the Human Rights of Dalit Women at The Hague (Nov 2006). The positive results of these efforts

117 118

Ibid ibid

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include the first-ever recognition of the Dalit Human Rights problem by the United Nations (Aug 2001), the European Union (May ‘07), and the United States Congress (July ‘07), important events which have increased international pressure on the Government of India to address the serious Dalit issues it has until now only paid lip-service to119.

With successes in raising national and international awareness of the Dalit human rights situation, NCDHR’s focus is shifting: NCDHR seeks foremost to hold the State responsible for not checking the “impunity” being enjoyed by non-Dalits in the criminal justice administrative system. Specifically, they challenge the State and its justice delivery mechanism, including the Human Rights institutions that are in place, to actually implement and enforce its constitutional and legislative measures to safeguard, protect and promote the basic human rights of Dalits.120

4-2- case study- PVCHR (People’s vigilance committee on Human rights) PVCHR – People’s Vigilance Committee on Human Rights was started in 1996 as a membership based human rights movement in Varanasi (Uttar Pradesh), one of the most traditional, conservative and segregated regions in India121.

PVCHR works to ensure basic rights for vulnerable groups in the Indian society, e.g. children, women, Dalits and tribes and to create a human rights culture based on democratic

119 120

ibid ibid 121 PVCHR report provided by the convener of PVCHR 2009

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values. PVCHR ideology is inspired by the father of the Dalit movement, Dr. B. R. Ambedkar, who struggled against Brahmanism and the hierarchical caste system prevailing in India122.

In 1999, PVCHR formed the public charitable trust Jan Mitra Nyas (JMN) to monitor and evaluate activities, to manage its own bank account and to enable the organisation to have official clearance for receiving foreign grants123.

VISION and MISSION of PVCHR

To establish a true, vibrant and fully entrenched democratic society through the Jan Mitra concept where there shall be no violation of civil rights granted by the state to a citizen124. To provide basic rights to all, to eliminate situations, which give rise to exploitations of vulnerable and marginalized groups and to start a movement for a people friendly society (Jan Mitra Samaj) through an inter-institutional approach125.

PVCHR works in Indian society, more specifically in the northern part of India, especially in rural areas, which are still influenced by feudalism and the caste system which that determines the political, social, and economic life of the country. Caste based discrimination is practiced in the educational system, in places of work, villages and towns and even in courts of justice. The most heinous impacts of caste based discriminations are starvation and malnutrition. Acute

122 123

Ibid Ibid 124 Ibid 125 Ibid

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poverty and cases of starvation occur especially in marginalized groups in the Indian society like minority communities, tribes and Dalits126.

PVCHR working approach The working approach of PVCHR are to Accurate investigation and documentation of human rights violations connected with advocacy, publication and networking on a local, national and international level, creating models of non violent and democratic communities (People friendly villages, torture-free villages), to Building up local institutions and supporting them with active human rights networks, creating a democratic structure for the ‘voiceless’ to enable them access to the constitutional guarantees of modern India, to empowering marginalized communities by trainings and access to information, to promoting a human rights culture and linking local and international human rights together as well as linking grass roots activities and international human rights networks and institutions together.127

PVCHR activities PVCHR approach these problems in two ways: “practice to Politics” and “Politics to practice”.128 “From practice to politics” The approach in this field of activities is two-fold: to have a strong grassroots organization to work for democratic rights of those in marginalized communities and second, to create the structure and dynamics to receive the assistance of national and international institutions.129

126 127

Ibid Ibid 128 Ibid
129

ibid

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PVCHR works on the grass-roots level in 45 villages in Uttar Pradesh. In close cooperation with local human rights activists, PVCHR documents cases of severe human rights violations in the villages, for example cases of malnutrition and starvation, police torture or lack of medical treatment. Especially in cases of custodial torture, PVCHR also provides legal aid. To raise public awareness, PVCHR alerts media as well as national and international human rights networks and requests local authorities to act to prevent further human rights abuses130.

Effective advocacy (Urgent Appeals) for every single case can be accomplished through close cooperation with key partner, the Asian Human Rights Commission (AHRC). In the context of international advocacy along with AHRC, PVCHR achieved the rare distinction of being reported by the UN special rappoteur on Racism and Xenophobia. In the same year three out of four cases from India in the report filed by the representative of the Secretary General for Human Rights defenders were from PVCHR.

In the case of the “From politics to Practice” approach PVCHR creates “THE MODEL OF JAN MITRA VILLAGE” to translate policy into practice. The “Jan Mitra Rickshaw Bank Project” has been implemented according using the concept of micro-credits. 100 rickshaws are provided to rickshaw drivers who commit to pay back a daily amount of 25 Rs (INR), but unlike to the current situation the Rickshaws will change ownership of the drivers after a period of 2 years.

130

ibid

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PVCHR facilitates the provision of education in these villages, reactivating defunct primary schools, encouraging the education of girls, and promoting non-formal education. Further activities are focused on the organisational development of vulnerable groups and the implementation of village committees. In each Jan Mitra village a community centre has been established, forming the basis for project activities. People are also provided with communitybased counselling.

One of the core activities in the model villages are the Folk schools. In community meetings people give testimonies about their suffering and receive support from their neighbours. The main issues dealt with in the Folk schools are conflicts with the village head or experiences of torture. Special forums for women are also organized. Here the main problems discussed are mostly health related, and sometimes also related to dowry issues. The statements of the villagers are recorded and their demands are forwarded to appropriate local administrations and government.

Review of NGOs and civil society activities, limitation and challenges Looking at these two organizations, we can first find out that NCDHR is a umbrella organization of Dalit’s NGOs in India while PVCHR is a grass-roots organization that works in a small part of northern India, mostly in villages and with the urban poor in Varanasi, Uttar Pradesh.

Both organizations share the same activities of monitoring Dalit atrocities, organizing legal intervention, documentation and advocacy, and lobbying against atrocities. Incidentally atrocities against Dalits are some of the biggest issues in India, and both organizations fight 223 MAINS Thesis, 2009

against them in their own capacity, putting pressure on local, state and central government to take steps against the impunity of these violations. At the same time they also beseech international organizations to address these issues in India in order to force the Indian government to take more immediate action. It is a common observation that the approach they use that is, looking at the law in a broader concept- is the same approach that Ambedkar used. On one hand, we can say that this kind of approach is very important, however, these activities fall under the standard of immediate relief, “social service”, in helping victims to fight for their human rights, and also long term relief, “social work”, to build pressure on the local, state and national level to set up strong mechanisms or strengthen existing mechanisms that could stop atrocities in India against Dalits. What are lacking, perhaps, are specific activities wherein victims can become aware of how to fight against the caste system as well as for their own fundamental human rights or to persecute the perpetrators of offences. These kinds of activities may decrease the reproduction and propagation of the caste system and put a stop to violations and atrocities based upon this caste system. Focused action for these issues is missing in these organizations’ activities.

The question now to answer is: who are those people who is responsible for the caste system, excepting of course, the Hindu believers? The answer can be traced back to the historical development of caste system. Caste system is established, strengthened and sustained based on hierarchy and separatism. I have already mentioned several times that in India all four castes and the Dalit “out caste”, are divided into thousands of sub-castes; and that the sub-castes relate to one another in an antagonistic manner, or as Dumont would have it, a hierarchical manner, but it is time to look into this with greater scrutiny. Both Dumont and Moffatt referred to the reproduction of hierarchy as fundamental evidence that Untouchables share in the same ideology as caste 224 MAINS Thesis, 2009

Hindus thereby accepting the moral basis of their own inferiority as well as religious belief. Both claim that the structural response of the untouchable castes to their exclusion is replication. That is, Untouchables recreate among themselves virtually every relationship and institution from which they have been excluded due to their untouchability131. this means that the caste system is works as social force, that force, forced upper caste as well as Dalits to reproduce and propagate the caste system in India.

A further question is this- how can the caste system reproduce? What are the major activities that sustain and strengthen the caste system in India? Many of the reasons come from, the political, economical and religious activities; however, we can single out the most important and strongest activity, which is the endogamy system. This endogamy system is the basis and foundation of the caste system and is very visible in current Indian society; people can eat with Dalits, live with Dalits, work with Dalits, play with Dalits, and allow them in temples, but they cannot marry Dalits. Even people from a sub-caste will not want to marry with someone of similar status of another sub-caste, even though both belong to the untouchable caste. This endogamy system is also forced upper caste or dominant caste equally to follow the social structure of endogamy.

The dynamic of sub-caste is so deeply rooted in Indian society, as well as in Dalits’ regard of this issue. In sharp contrast to the strategy of glorifying a distinct Dalit culture, Martin Macwan, Director of Navsarjan in Gujarat, claims that:

131

Moffatt (1979): p.89.

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“Caste lies within ourselves. It flows in our blood. You hear many people saying that caste is something outside himself, but I say it starts with me. Nothing can change before I change. Caste is internalized in the way we eat, marry and move in social space. Anyone who says differently is a big hypocrite. We can take up wonderful programmes, but if they in any way reinforce the caste system we have not achieved anything”132.

Commenting on the general dynamics of the sub-caste clash, Mr. Macwan says:

“Caste is a conspiracy to divide the poor, it is a fallacy, a man-made division not a natural one. In Navsarjan we have two non-negotiable; anyone who believes in sub-caste cannot be a part of Navsarjan, and we will not go and work there. And two, treating women as inferior to men is a non-negotiable”133.

The above comments by Mr. Martin Macwan refer to the way to come out with these subcaste systems and at the same time show how it is deeply connected to hierarchy and the separatist caste system in Dalits and non-Dalits as well as NGO’s.

If the root of the caste system is within the Dalits community as well as that of the caste Hindus, then Indian society is just a mere composition of these groups, as well as the civil society and NGOs. They all just came from similar cultural backgrounds, carrying the same consciousness into their NGO work. It won’t come as a surprise, then, that if an NGO is organized and established by a caste Hindu, its members will be of the same caste or same caste members will be in good and higher post in that organization. At the same time, a Dalit NGO has a majority of its members coming from the Untouchables community. In fact, membership in many NGOs depends on who is the peoples who established a particular NGO and they belong to which caste. This kind of phenomenon will not end. Coordination and networking among the
132 133

Interview Martin Macwan 25.01.05., Ahmedabad. Ibid

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Dalits’ NGO’s themselves is another problem, be it at the grassroots, national or international level. We can also say these NGOs are not Dalit NGOs basically they are caste based NGOs. So, we have to differentiate between Dalit Movement and SC or ST Movements in India.

How do Dalit NGOs and Human rights activists address the issues of the sub-caste and endogamy system? One perspective is mentioned by Anna Kiertzner during her work with Dalits’ NGOs and organizations as well as Human right organizations. According to her:

In spite of a growing awareness that the efforts of building a strong collective movement are severely hampered by sub-cast clashes most of the organisations I worked with had not developed a strategy of dealing with these conflicts. The issue is in the hearts and minds of the Dalit activists no doubt, but it is rarely articulated and not reflected in the organizational materials. Not in the vision, mission and strategy documents, the training materials, the annual reports nor the websites134.

Her observations are correct. In fact, it is very rare to find any NGOs or organizations who clearly mention the endogamy system or help and assist in giving awareness to Untouchables and caste Hindus should end this endogamy system and fight against the caste system in India. What’s worse, no single NGO works specifically with caste Hindus for the issue of caste even though it is a fact that the caste system is deeply rooted in society and the majority of the people still follow this system, unconsciously though it might be. It is not even surprising to know that the perpetrators are always from the upper or dominant caste, yet there is no clear and specific strategy or activity to address them.

134

Kiertzner, A. (2006): p.73.

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This is worth mentioning because there has always been a dilemma when it comes to prioritizing what and who to address. In many cases, local people will organize themselves in saving the perpetrators, who are from the same caste; others will sympathize with the victims and fight injustice. Many of them choose to save the perpetrators to save the dignity of their castes. In these situations, we can clearly see that there is no single strategy for giving awareness to caste Hindus about the struggle of Dalit movement against the caste system. This becomes more difficult and non scientific, non practical and non realistic.

As one Human Right activist pointed out regarding NGOs: “They are selling Dalits and Dalit issues, and it’s all ready sold-out135”. Ashok Bharti, the leader of another national level network, the National Conference of Dalit Organisations (NACDOR) even made the same comment on this issue as quoted by Anna Kiertzner:

“NCDHR leadership does not like to give space to other leaders. They are trying to monopolize the space of international advocacy by not allowing other Dalit platforms membership of IDSN. Basically IDSN is a mouth piece of NCDHR, an extension wing of a few powerful NGO leaders. But we need to give space to multiple voices from within India. No single group can speak on behalf of all Dalits”136.

Some opponents go as far as to accuse the human rights NGOs of being deliberately exploitative, profiting on Dalits in the ‘human rights market’ by misusing the enterprise and the
135 136

I have not mentioned the name of this person because of the controversial nature of the comment. Interview Ashok Bharti 10.01.05., New Delhi. This is a very serious allegation and one needs to be very careful when commenting on it. It is true that IDSN has a very limited number of partners within India relying heavily on NCDHR, but this is due to historical reasons – long lasting relationships between the funding agencies that are members of IDSN and the NGOs that formed NCDHR, the catalyzing effect of Human Rights Watch’s Report Broken People etc. – and not due to any ‘conspiracy theory’. At the same time it is also true that a more broad based representation is desirable, and both NCDHR and IDSN should perhaps do more to ensure this, if not they might run the risk of endangering NCDHR’s reputation and development on the national scene. ( clarification of Anna Kiertzner regarding Ashok Bharti’s comments)

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word ‘Dalit’. In a 2003 edition of the bi-weekly magazine Dalit Voice137, Fr. Maria Nathan refers to the human rights NGOs as Vedic-dominated NGOs thus equating them with the Brahmin rulers in the caste system and alluding to a new form of hegemonic power amongst Dalits themselves. NCDHR claims to be the first and largest national network of Dalit organisations, but this status is contested by NACDOR138. NACDOR claims to have a larger membership base than NCDHR because they are movement based, NCDHR on the other hand prides themselves on receiving more attention nationally as well as internationally. The relations are so strained between NCDHR and NACDOR that for three consecutive years they have held separate events at the World Social Forum and also hold separate celebrations on important days like the anniversary of Ambedkar’s birth and death 139/ 140 . In the same way there are many NGOs and civil society organizations and activist who accuse PVCHR also in the same way and contested with PVCHR as NACDOR contested with NCDHR.

These comments and statements clearly demonstrate the biggest challenge of NGOs and civil society in maintaining the legitimacy of their identity and work while at the same time coming together and working together. In summary, there are many similarities, limitations and challenges facing Dalit NGOs and civil society in India.

137 138

Dalit Voice Vol. 22 No. 6, March 2003. There are other national networks of Dalit organizations, e.g. National Dalit Forum (NDF) based in Hyderabad, but to my knowledge NCDHR and NACDOR are the biggest networks. 139 Kiertzner, A. (2006): p.83. 140 NACDOR launched a new initiative at the World Social Forum in 2004 called World Dignity Forum, an alliance between Dalits, Muslims, Tribal and other oppressed groups. The 5th of December is celebrated as World Dignity Day. NCDHR is not part of this initiative. The two organizations give different explanations for this, each accusing the other of being exclusionary and not wanting to join forces. (clarification of Anna Kiertzner regarding above comments)

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Conclusion

After working through the issue of Dalits in India and their history, we find that there are many historical theories and definitions of the background of Dalits in India and its roots in the dominant Brahmanical culture in India. There are few facts of Dalit history in Hindu religious books and all that do exist are narrated in a derogatory way.

In Indian society and culture, as I reflected upon at length in this thesis, a fairly large amount of contextual information is necessary in order to understand the practices of society as well as Dalit organizations and the conflicts that characterize the contemporary Dalit movement. Although the problem of caste must be one of the oldest in the world, having a history of more than 3000 years, it is also one of the least discussed at a global level and, significantly, it has not informed the human rights debate which has been going on since the end of World War II.

There are a lot of problems with and challenges to the Dalit Movement in India, but Dalit NGOs and Civil Society still ignore the issue of sub-caste and internal segregation, as well as the practice of endogamy, which is predominantly responsible for the reproduction of the caste system.

One of the implications of the recontextualization of the concept of “Dalit” is that the ‘old’ definition cantering on membership of a caste category seems inadequate in capturing the realities of the lives of Dalits as well as the struggles of the Dalit movement. In these previous chapters I told the story of how Martin Macwan had to make a hard decision regarding those who believe 230 MAINS Thesis, 2009

sub-caste people should not be part of his organization. Reflecting on this and other similar episodes Macwan states: “Segregation is a basic fight of the Dalit community. The integration cannot come along caste lines; it has to come on ideological and moral grounds, and therefore we redefine Dalit”141. For Macwan, Dalit is a moral position; a Dalit is a person who has overcome caste consciousness and both caste and sub-caste affiliation. In a seminar142 on civil society’s approaches to Dalit empowerment, he provocatively raised the question: “Are we creating a Scheduled Caste movement or a Dalit movement?”

Anna Kiertzner, supporting the view of Martin Macwan regarding the definition of “Dalit” and she worded a similar idea in this way: “Macwan is not alone proposing a new definition of Dalit, but he is the one person I have met who makes the strongest case and most forcefully pursues an agenda consonant with this definition”143. Keirtzner refers to Dalit writer Gangadhar Patawane expressing similar views: “Dalit is not a caste. Dalit is a symbol of change and revolution. A Dalit believes in humanism. He rejects existence of God, rebirth, soul, sacred books that teach discrimination, faith and heaven because these things made him a slave”144. When she interviewed Suresh Lelle, Director of Chindu then she put his view in this way: “Calling yourself Dalit means you have given up your sub-caste identity. Dalit as consciousness moves, shapes and

141

Franco (2004): p.321 This quote is not from my own interview with Macwan, but taken from Franco, Macwan & Ramanathan’s book. Journeys to Freedom: Dalit Narratives about the different strategies employed by Dalits in the state of Gujarat to attain liberation from oppression. The book is based on interviews with 56 Dalit respondents reproducing large parts of the interviews with the intention of giving the subalterns a voice. 142 The seminar took place in New Delhi on 24-25. September 2004 and was organized by the Indian Institute of Dalit Studies.
143 144

Shah (2006). Shah (2006): p.22-23.

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changes. A Brahmin can also become Dalit, but he has to work harder to ‘decasteify’ himself than a SC and ST, he has a longer distance to travel”145.

I participated one programme National consultation on Sc/St (prevention of Atrocity) Act 1989 organized by PARVVI (Public Advocacy Initiatives for Rights & Values in India) a Delhi based NGO on 20-21 st March 2009, in ISI (India social Institute). In that programme Mr. S. R. Darapuri a retired IPS officer and well known Dalit Activist in UP presented his lecture on Sc/St Act. In that presentation, one participant asked him “who are Dalits in India?” and Mr. S. R. Darapuri answered “all SC are Dalits in India”. This answer made me realize that to this day Dalit activists and Dalit leaders are greatly confused about and misunderstand the Dalit Movement and concept of Dalit. In that program, more than 15 state representatives and Dalit activists as well as Dalit NGOs participated. This proved that one of the biggest challenges for the Dalit Movement is to understand the definition of Dalit and the motives of the Dalit movement in India.

As Martin Macwan states, “segregation is one of the biggest challenges in Dalit community” I realized and observed that not only segregation, but also contesting and blaming other Dalit NGOs and civil society is also one of the biggest challenges to the Dalit movement, as well as ‘decastify’ themselves is the challenge of Dalit Movement. I believe until these issues, more specifically sub-caste issues, clear understanding of the definition of Dalit and ‘Decasteificetion’ of Dalits, and the practice of endogamy are more properly addressed and recognized by Dalit NGOs and civil society, the Dalit Movement will struggle internally and they will fail to eliminate the caste system in India.
145

Interview Suresh Lelle 01.02.05., Hyderabad by Anna Kiertzner

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References
1. Ambedkar, B. R. (1979). Annihilation of Caste: With a reply to Mahatma Gandhi.

Bombay: Education Department, Government of Maharashtra. 2. Ambedkar, B. R. (1991). What Congress and Gandhi have done to the Untouchables.

Bombay: Education Department, Government of Maharashtra. 3. Ambedkar, B. R. (1992). Buddha and his Dhamma. Bombay: Education Department,

Government of Maharashtra. 4. University Press. 5. Copenhagen. 6. unknown. 7. Dumont, L. (1980). Homo Hierarchicus:The Caste System and its Implications. Chicago: Bhardwaj, A. (2002). Welfare of Scheduled Caste in India. Unknown place: Press Kiertzner, A. (2006). Dalit: Caste or Consciousness? Copenhagen: University of Ambedkar, B. R. (2002). The Essential Writings of B.R. Ambedkar. New Delhi: Oxford

University of Chicago Press. 8. Books. 9. Jacob, T. G. (2002). Reflections on the Caste Question: The Dalit Situation in South Thapar, R. (2002).

Early India: From the origins to AD 1300. New Delhi: Penguin

India. Bangalore: NESA.
10. Jaffrelot, C. (2003). India’s Silent Revolution : The Rise of the Low Castes in North

Indian Politics. London: Hurst.
11. London: Hurst. Jaffrelot, C. (2004 ). Dr. Ambedkar and Untouchability: Analysing and Fighting Caste.

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12.

Massey, J. (1995). Dalits in India: Religion as a Source of Bondage or Liberation with

Special Reference to Christians. New Delhi: Manohar.
13. Mendelsohn, O. & Marika V. (1998). The Untouchables: Subordination, Poverty and

the State in Modern India. Cambridge: Cambridge University Press.
14. Perez, R. M. (2004). Kings and Untouchables: A Study of the Caste System in Western

India. New Delhi: Chronicle Books.
15. Fernando, B. (2002). An Examination of Caste Discrimination in India.: Hastrup, Kirsten

& George Ulrich (eds.), Discrimination and Toleration: New perspectives. The Hague: Kluwer Law International.

16.

Hardtmann, E. M. (2003). Our Fury is Burning: Local Practice and Global Connections

in the Dalit Movement. Stockholm: Stockholm Studies in Social Anthropology.
17. Raj, M. C. (2001).

Dalitology: The Book of the Dalit People. Tumkur: Ambedkar

Resource Center, REDS. 18. unknown. 19. Mungekar, B. L. (2002). Education: The only key to Dalit progress. Paper presented in

Ram, K. (1982). The Chamcha Age: An Era of the Stooges. New Delhi: Publisher

International conference on Dalits rights, United Kingdom. 20. 21. Gakhar, D. (2001). Dalits in Education. New Delhi: Lady Irwin College. Shah, G., Mander, H., Thorat S., Despande, S. & Baviskar, A. (2006). Untouchability

in Rural India. New Delhi: Sage Publications.
22. Manorama, R. (2000). Dalit Women the Downtrodden of the Downtrodden. Paper

presented in a national conference of Dalit women, in Bangalore. 23. Bhan, C. (2008). Markets and Manu: Economic Reforms and its Impact on Caste in

India. Philadelphia: University of Pennsylvania,

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24.

Narula, S. Broken Promises and Dalits Betrayed, BLACK PAPER on the status of Dalits

Human Rights (A Summary) 25. Mungekar, B. L. (1999). State, Market and the Dalits: Analytics of the New Economic

Policy. In S.M. Michael (ed.), Dalits in Modern India: Culture and Vision. New Delhi: Sage publications. 26. Shiva, V. (2008). Globalization and Its Fall out ‘neither Prosperity nor Peace’. Paper

presented in national conference, New Delhi. 27. Franco F., Macwan J., & Ramanathan, S. (2004) Journeys to Freedom – Dalit

Narratives. Kolkata: Samya.
28. Moffatt, M. (1979). An Untouchable Community in South India: Structure and

Consensus. Princeton: Princeton University Press.
29. The collected works of Mahatma Gandhi (1967). New Delhi: Government of India,

Ministry of Information & Broadcasting, 30. 31. Varanasi District Basic Education Department, primary schools list Register, 2008 NHRC Report (2004). NHRC Report on Prevention of atrocities against Scheduled

Castes. New Delhi:NHRC. 32. 33. 34. News paper (2007, November 20). Lucknow: Nishpaksh Pratidin. Caste an Eye, Retrieved Jan 11, 2009 from http://www.idsn.org The Hague Declaration on the Human Rights and dignity of Dalit women, Retrieved

Jan 11, 2009 from http://www.iheu.org/node/2474 35. 36. 37. 38. 39. Census 2001. New Delhi: Government of India. Manusmriti (2007). Gorakhpur: Geeta Press. Rig Veda (2007). Gorakhpur: Geeta Press. Harijan (1935, November 16). Dalit Voice (2003, March 6). New Delhi:

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40. PVCHR. 41.

PVCHR Report (2009). PVCHR Report provided by the convener of PVCHR. Varanasi:

(1921, 4th May).Delhi: Young India.

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North Korea’s Human Rights Situation through universal human rights’ perspectives

Special Rapporteur’s contribution to its realization

Thesis submitted by

Ratchada ARPORNSILP
(student number: 8000606-2456235)

Under the supervision of

Professor CHO Hyo-Je

Thesis submitted for an MA Degree Graduate School of NGO Studies
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SungKongHoe University June 2009 CONTENTS

Acknowledgement Abstract Introduction

Chapter 1

Background of the DPRK’s Commitment towards International Human Rights Instruments 1-1 1-2 1-3 1-4 International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child

5

Convention on the Elimination of All Forms of Discrimination against Women Challenges towards treaty-based mechanisms

1-5

Chapter 2

Overview of Special Procedures 2-1 2-2 2-3 General information on Special Procedures Working methods of mandate-holders Special Procedures under the era of Human Rights Council

22

Chapter 3

Special Rapporteur on Human Rights Situation of the DPRK 3-1 3-2 International human rights concerns and politics Vitit Muntarbhorn’s credentials as the Special Rapporteur

31

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3-3

Working methods of Special Rapporteur

Chapter 4

Review of Special Rapporteur’s annual reports 4-1 4-2 4-3 4-4 4-5 The first report (2005) The second report (2006) The third report (2007) The fourth report (2008) Recommendations

42

Chapter 5

Review of reports conducted by other agencies 5-1 5-2 5-3 Human Rights Watch World Report 2008 Amnesty International Annual Report 2008 The U.S. Department of State’s Country Reports on Human Rights Practices The Korea Institute for National Unification’s White Paper Observations

54

5-4 5-5

Chapter 6

Conclusion

62

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ACKNOWLEDGEMENT

May I take this opportunity to express my deep appreciation to many helping hands for this small achievement. My first and foremost gratitude goes to my supervisor, Professor Cho Hyo-Je who has been giving me valuable guidance along the way, and my committed examiners, Professor Lee Dae-Hoon and Professor Hur Song-Woo who gave me such thoughtful and enlightened recommendations as well as their endurance in attentively reading this thesis. However, the flaws contained in this document are solely my responsibilities. I would like to apologize for not being able to exceed or even fulfill their expectations at some points. Two more persons I must sincerely thank for are Mr. Moon Chun-Sang from The Asia Foundation who kept answering any of my simple query or doubt in regards to North Korea, and Mr. Mersham Ismail, my dear friend, who provided me with a chance to visit an NGO named PNAN and access to materials on North Korea human rights. This thesis forms a part of Master of Arts in Inter-Asia NGO Studies. My participation in this fruitful program would not be possible without the financial assistance and other kind supports from the May18 Memorial Foundation and SungKongHoe University. Last but not least, I am thankful to all my classmates and friends, especially Shantha Ariyarathna for taking efforts in making hard copies and submitting this thesis for me, Bona Dea Mendoza and Moosa Azmi for the cheering conversations over midnights throughout January. Also, the appreciation is extended to all supports from my loved ones back home.

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ABSTRACT
At the international arena, there is an increasing attention paid to the human rights situations in North Korea starting with the first adoption of a resolution by the UN Commission of Human Rights (replaced by the Human Rights Council) at its 59th session in April 2003 expressing concerns over the issues which in the following year led to the resolution 2004/13 appointing the position of Special Rapporteur on the human rights situation of the Democratic People’s Republic of Korea. This special procedure mechanism constitutes the UN human rights Charter-based bodies designed to address specifically thematic and country issues of human rights concerns on the ground. Under the international human rights regime, the Charter-based bodies work along-side the Treaty-based bodies and other agencies for the advancement of human rights. This research will, somehow, focus on the mechanism of Special Procudures by elaborating on the establishment and mandates entrusted upon the holders to investigate the violations on the ground, and essentially in case of DPRK how international politics made an impact to the issues of human rights concerns as well as to the formulation and the scope of Special Rapporteur’s mandates. Although human rights and human dignity should be considered as an indispensable part of human being and given priority over any political conflict, in reality it is abused or integrated into political arrangement. More importance is how other stakeholders maximize opportunities arising and manoeuvre politics to serve human rights cause.

Keywords: DPRK, human rights, international human rights mechanisms, Special Procedures, international politics, civil society and NGOs

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REFERENCES Cho Sung Yoon. “The Judicial System of North Korea,” in Asian Survey, Vol. 11, No. 12, 11671181. California: University of California Press, 1971. Felice Gaer. “Social and Humanitarian Issues,” in A Global Agenda: Issues Before the 56 th General Assembly of the United Nations, 151-238. Maryland: the United Nations Association of the United States of America, 2002. John Feffer. “U.S. Policy Change on North Korean Human Rights,” presented at the 5 th International Symposium on North Korean Human Rights: International Perspectives and Challenges Concerning North Korean Human Rights, organized by National Human Rights Commission of Korea at Korea Chamber of Commerce and Industry. 29-30 October, 2008. Lee Won Woong. “Politics of Human Rights in North Korea: A framework for change,” in Journal of Asian and African Studies, Vol. 42, 233-244. London: Sage Publications, 2007. Linda Camp Keith. “The United Nations International Covenant on Civil and Political Rights: Does it make a Difference in Human Rights Behavior?” in Journal of Peace Research, Vol. 36, no. 1, 95-118. London: Sage Publications, 1999. Louis Henkin. “Human Rights: Ideology and Aspiration, Reality and Prospect,” in Realizing Human Rights: Moving from Inspiration to Impact, eds. Samantha Power, and Graham Allison, 3-38. New York: Palgrave Macmillan, 2000. Michael Freeman. Human Rights: An interdisciplinary approach. Cambridge: Polity Press, 2002.

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Oona Hathaway. “Between Power and Principle: An Integrated Theory of International Law,” in The University of Chicago Law Review, 469-536. Chicago, 2005. Paul Gordon Lauren. “To Preserve and Build on its Achievements and to Redress its Shortcomings”: The Journey from Commission on Human Rights to Human Rights Council, in Human Rights Quarterly, Vol. 29, 307-345. The Johns Hopkins University Press, 2007. Ruediger Frank. “EU-North Korean Relations: No Effort Without Reason,” in International Journal of Korean Unification Studies, Vol. 11, No. 2, 87-119. Seoul: Korea Institute of National Unification, 2002. Suh Bo Hyuk. “Controversies over North Korean Human Rights in South Korean Society,” in Asian Perspective, Vol. 31, No. 2, 23-47. Oregon: Kyungnam University & Portland State University, 2007. Todd Landman. Protecting Human Rights: A Comparative Study. Washington D.C.: Georgetown University Press, 2005. Tony Evans. The Politics of Human Rights: A Global Perspective. London: Pluto Press, 2001. Vitit Muntarbhorn. Address by Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea. Keynote Speech at the 5 th International Symposium on North Korean Human Rights, organized by National Human Rights Commission of Korea at Korea Chamber of Commerce and Industry, 29-30 October 2008. Vitit Muntarbhorn. Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (A/HRC/7/20). 7 th Session of Human Rights Council. 15 February 2008. 243 MAINS Thesis, 2009

Vitit Muntarbhorn. Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (A/HRC/4/15). 4 th Session of Human Rights Council. 7 February 2007. Vitit Muntarbhorn. Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (E/CN.4/2006/35) Vitit Muntarbhorn. Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (E/CN.4/2005/34). 61st Session of Commission on Human Rights. 10 January 2005. Yvonne Terlingen. “The Human Rights Council: A New Era in UN Human Rights Work?” in Ethics and International Affairs, Vol. 21, no. 2, 167-178. Academic Research Library, 2007. ----------. 2007 Country Reports on Human Rights Practices – Korea, Democratic People’s Republic of. The Bureau of Democracy, Human Rights, and Labor: United States Department of State. 11 March 2008. ----------. Annual Report 2007. The United Kingdom Foreign and Commonwealth Office. ----------. Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council. Office of the United Nations High Commissioner for Human Rights. ----------. Human Rights Fact Sheets: No.27 Seventeen frequently asked questions about the United Nations special rapporteurs. Office of the United Nations High Commissioner for Human Rights. Geneva: United Nations, 2001. ----------. Implementation of the Convention of the Rights of the Child: List of issues to be taken up in connection with the consideration of the third and fourth periodic report of the DPRK (CRC/C/PRK/Q/4). Committee on the Rights of the Child, 20 October 2008. 244 MAINS Thesis, 2009

----------. Korea (Democratic People’s Republic of). Amnesty International Report 2008. 28 May 2008. ----------. North Korea: A Matter of Survival, The North Korean Government’s Control of Food and the Risk of Hunger. Human Rights Watch, Vol. 18, no. 3(C). May 2006. ----------. North Korea. Human Rights Watch. World Report, 2008: Events of 2007, 300-304. ----------. The Combined Third and Fourth Periodic Report of the DPRK on its Implementation of the CRC (CRC/C/PRK/4). Human Rights Committee. 10 December 2007. ----------. The Initial Report of the DPRK (CEDAW/C/PRK/1). Committee on the Elimination of Discrimination against Women. 11 September 2002. ----------. The Manual of Operations of the Special Procedures of the Human Rights Council. Office of the United Nations High Commissioner for Human Rights. August 2008. ----------. The Second Periodic Report of the DPRK on its Implementation of the ICCPR (CCPR/C/PRK/2000/2). Human Rights Committee. 4 May 2000. ----------. The Second Periodic Report of the DPRK on its Implementation of the ICESCR (E/1990/6/Add.35). Human Rights Committee. 15 May 2002.

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INTRODUCTION Rationale
The issue of human rights in North Korea has long been considered very much politicized or politically sensitive to be addressed within the domestic political structure of South Korea where the swing of government from conservative and progressive front would make difference in its stance and policy agenda towards North Korea’s human rights situations. Hence, the labeling of these political ideology have mostly overshadowed the authentic plight of human rights and, even worse, discarded or precluded the search for comprehensive analysis and concerted efforts aiming for the enjoyment of rights by the North Koreans. Having mentioned as such, it is impossible to segregate human rights from politics at any level. The challenge is how to manoeuvre the politics to serve the human rights cause.

Notwithstanding, there have been global attempts, particularly after World War II to build what is so generally called international human rights regime underlying the universally accepted norms and standards on human rights. Though practically and undeniably, international politics intervenes and manipulates at certain extent but up until now, the international human rights structure under the United Nations has become better established, increasingly open to different non-state actors, including individuals, more responsive to the victims of human rights abuse, and equipped with diverse mechanisms to monitor for the norms’ compliance and implementation. In other words, the international human rights regime has been opened for more actors beyond states to participate in the leverage of the political human rights arena. The

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mechanism of Special Procedures which will be the focus of this study is one particular example of how a distinguished individual can involve in international human rights regime through collaboration with multi-stakeholders.

Even though North Korea has ratified a number of core international human rights instruments which means there are existing formal and official channels to address the concerns within the international community, in 2004 the then Human Right Commission appointed Professor Vitit Muntarbhorn as Special Rapporteur on the situation of human rights in the DPRK entrusting him with the task to specifically investigate the systematic human rights violations and report his findings as well as recommendations to the General Assembly and the Commission. His tenure has been annually renewed since.

Objectives
The objectives of this research paper will firstly bring to light the situation of human rights in North Korea through the lens of universal human rights standards focusing on the work and impact of Special Procedures, taking a particular look at the role, mandate, and limitation of Special Rapporteur raising the question of how he contributes to the realization of human rights in North Korea. And secondly, this research should contribute to the work of those advocating for human rights of either North Korea or beyond to add up their understanding and awareness of international human rights mechanisms so that these can be increasingly maximized.

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Research questions and content overview
Chapter 1: Instruments This chapter will provide a brief compilation of DPRK’s human rights treaties ratification and reporting status as well as the concluding observations under the corresponding treaty-based bodies. Reviewing the existing commitment under the treaty Background of DPRK’s Commitment towards International Human Rights

Committees would provide general understanding to the extent of the DPRK’s involvement in the formal international human rights regime. Chapter 2: Overview of Special Procedures – the categories, roles and mandates This chapter will generally introduce the Special Procedures mechanism addressing how it comes to existence in parallel with treaty-based bodies, what categories and issues the mechanisms have covered, who the mandate-holders are, how they reach out for their sources, gather information and analyze them. Chapter 3: The adoption of Special Rapporteur on Human Rights Situation of DPRK This chapter will, first, discuss the questions of when and how the position was established addressing the question of why during that time of its appointment there was grave concern at the international level in related to the human rights situation of DPRK. Second, it will explore the credentials of Vitit Muntarbhorn as an appointed mandate-holder, reviewing his previous experiences in the field of human rights at domestic, regional and international arena. Third, it will investigate how Vitit Muntarbhorn responds to the mandate

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and methods of his data collection, the challenges and limitation he faces and how he deals with them. Chapter 4: Review of Special Rapporteur’s annual reports This chapter will compile the Special Rapporteur’s annual reports on human rights situation of DPRK since the inception surfacing the various considerations and recommendations propounded, together with related observations. This should capture the whole trends towards any particular concerns of human rights in the DPRK, along with significant factors pinpointed. Chapter 5: Review of other significant reports on human rights situations in DPRK This chapter will set forth several reports on the issues conducted by renowned international human rights NGOs, namely Human Rights Watch and Amnesty International and reports done by government agencies which are the U.S. Department of State’s country report on human rights practices and the Korean Institute for National Unification’s White Paper on Human Rights in North Korea. Basically, this will delve into the issues of concerns and tactical strategies applied as well as analyze if these coincide or rely on Special Rapporteur’s reports. Based on those reports, this research will explore how these actors perceive the role and contribution of the special mechanism. Chapter 6: Conclusion

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Research methodologies
This research will be conducted through: Content analysis by reviewing and analyzing materials and documents related to North Korea’s human rights and the mechanism as mentioned above in both quantitative and qualitative data. Participation in related conferences and workshops.

CHAPTER 1 Background of DPRK’s Commitment towards International Human Rights Instruments
The development of global human rights agenda has progressed remarkably during the second half of twentieth century. From the outset of the United Nations after the second World War and with clear priority to avoid the eruption of any future atrocity at the similar degree, the significance in creating international norms for peace and security seemed prevalent. The Charter of the United Nations was adopted in San Francisco in 1945 laying out the structure of this world body and declaring its primary purpose of maintaining international peace and security along with its secondary purpose to promote and encourage respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. According to Louis Henkin, this was the first use of the term “human rights” in a major international treaty, the Charter, the most important treaty of the century.146 Article 55 and 56 of the Charter emphatically state that all members of the United Nations pledged to take joint and
146

Louis Henkin, “Human Rights: Ideology and Aspiration, Reality and Prospect,” in Samantha Power, and Graham Allison, (eds.), Realizing Human Rights: Moving from Inspiration to Impact (New York: Palgrave Macmillan, 2000), p. 9.

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separate action for the achievement of “universal respect for, and observance of, human rights and fundamental freedoms for all…”147

The endeavor to cultivate human rights at the global level had seen further leap with the proclamation of the Universal Declaration of Human Rights on 10 December 1948 by the General Assembly and even during the peak of Cold War, two cornerstone international human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966. Together they constitute what has been recognized as International Bill of Human Rights. Presently, the principal international human rights covenants and conventions are consisted of the above mentioned treaties and, inter alia, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC), and also, though with the slower path of international engagement, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, and Convention on the Rights of Persons with Disabilities.

In order to enforce and monitor the provisions, the Committees were established in corresponding to each covenant and convention with the responsibilities to review the member countries’ periodic reports and provide responding remarks or observations as to prospects of further improvement and recommendations for shortcomings. This procedural observance of
147

United Nations Charter

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compliance is known as treaties-based mechanism. So far, the DPRK has been a party to 4 international human rights instruments which are ICCPR, ICESCR, CRC, and CEDAW. Table 1 below shows the brief information of its ratification and reporting status. It is noted that none of these instruments’ Optional Protocol has been ratified by the DPRK at all. An Optional Protocol is basically the separate agreement attached to the respective covenant or convention facilitating a direct procedure for complaint by individual victims to the Committees.

Table 1: International Human Rights Instruments ratified by the DPRK International Human Rights Treaties International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Convention on the Rights of the Child Date of Ratification 14 September 1981 14 September 1981 21 September 1990 Number of Submitted Reports 2 2 Next Report Due Date 1 January 2004 30 June 2008 Optional Protocol x x

4 1

20 October 2012 27 March 2006

x x

Convention on the Elimination 27 February of All Forms of Discrimination 2001 against Women

By reviewing each covenant and convention’s periodic reports and concluding observations made by the Committees in short, this should be beneficial in understanding how the DPRK perceives of its own human rights situations vis-à-vis the international standards, and the issues of concern addressed by the Committees. It is beyond the scope of this research to 252 MAINS Thesis, 2009

discuss in details the content of each report, however. The focus, therefore, will be placed on the most recent reports and corresponding remarks.

1-1 International Covenant on Civil and Political Rights The DPRK became party to the ICCPR on 14 September 1981 and since then it has been obliged under Article 40 to accordingly submit the periodic report detailing the advancement and accomplishment the state has conducted in order to realize the provisions. The DPRK, thus, submitted its initial report on 24 October 1983 and the supplementary report on 2 April 1984. The second periodic report was due on October 1987 but it was submitted instead on March 2000.148

The second report covered in principle the period from 1984-1997 and the ICCPR’s Committee certainly took note of absent communications along these 17 years. It is crucial to bear in mind the major transition in the DPRK, particularly in 1994 when Kim Il Sung suddenly passed away. His son, Kim Jong Il inherited the leadership and later brought about the promulgation of new Constitution. The report submitted to the Committee highlighted those amendments of legislation as the Constitution, the Criminal Law, the Criminal Procedures Act, the Civil Law, the Family Law, the Civil Procedures Act, and many other laws closely related with the civil and political rights were either adopted, amended or supplemented. The report was

148

Human Rights Committee, The Second Periodic Report of the DPRK on its Implementation of the ICCPR (CCPR/C/PRK/2000/2), 4 May 2000.

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elaborated in accordance with articles of ICCPR and mainly referred to provisions of these legislations, focusing on legislative measures in enforcing ICCPR.

In brief, the report states that the DPRK Constitution provides for the principles and popular policies in political, economic, cultural and all other fields of social life. Every citizen is particularly ensured the true democratic rights, freedom, happy material and cultural life and stipulates the basic rights of citizens including the right to equality, the right to vote and to be elected, the freedom of speech, press, assembly, demonstration and association, the freedom of religious belief, the right to complaint or petition, the right to work and relaxation, the right to free medical care and education, the freedom of literacy and artistic activities, the freedom of residence and travel, the right to gender equality, the protection of marriage and family, the inviolability of the person and the home and privacy of correspondence, etc. The report has provided updated information concerning the Criminal Law which has reduced the maximum period of reform through labor from 20 years to 15 years and the minimum from 1 year to 6 months. Besides, the number of the criminal acts whereby capital punishment was imposed was decreased from 33 to 5. The amended Criminal Procedures Act of 1995 paid great attention in guaranteeing better the rights provided in the ICCPR, especially for every individual person facing a trial under the charge of a crime. These are only few exemplary instances of this report.149

149

Ibid.,

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The ICCPR Committee presented its Concluding Observation in response to the DPRK’s report highlighting the concerns on the impartiality and independence of the judiciary organ in enforcing those amended legislations. In addition to judicial protection, the Committee

mentioned the lack of independent national institution for the promotion and protection of human rights as well as the limited number of human rights organizations in the DPRK and the limited access to its territory reflecting from the small number of international human rights nongovernmental organizations been granted permission to visit the DPRK over the past decade. Specifically, the Committee addressed that the DPRK took steps to improve conditions in the facilities for detention ensuring all persons deprived of their liberty are treated with humanity and respect for the inherent dignity. It also requested that DPRK’s next report contain statistics on the number of persons held in pre-trial detention, the duration and reasons for such detention, and ensure that anyone arrested or detained on a criminal charge is brought promptly before a judge. The list of concerns ranged from issues on public assemblies, public executions, instances of ill-treatment and torture, requirement of travelers’ certificates to reduction of child mortality and increase of life expectancy. The consideration of women’s trafficking was also raised, since the DPRK was not party to the CEDAW as yet, referring to the report of the Special Rapporteur on Violence against Women of the Commission on Human Rights.150

The third report was due on January 2004 but until now it has not been submitted yet.

150

Ibid.,

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1-2 International Covenant on Economic, Social and Cultural Rights The DPRK became party member to the ICESCR on the same occasion as the ratification of ICCPR. As a result, it was bound by Articles 16 and 17 to submit periodic report describing the measures taken to implement the ICESCR. The initial report was submitted on 14 January 1989 and considered at the sixth session of the Committee on Economic, Social and Cultural Rights on 27 November 1991. The second periodic report due on 6 June 1992 was submitted 10 years later on 12 April 2002, hence covering the period from its first submission onwards.151

The report tried to explain numerous legislative and other measures in accordance with the Constitution, the Labor Law, the Regulations on Labor Protection and Labor Safety, the Civil Law, the Public Health Law, the Education Law, to mention few. Basically, the report cited many articles of the Constitution and other laws pertinent to the right to work, right to just and favorable conditions of work, right to join a trade union, right to social benefit, family protection, right to an adequate standard of living, right to enjoyment of physical and mental health, right to education, compulsory primary education, right to take part in cultural activities and enjoy the benefits of scientific progress. For instance, it quotes Article 70 of the Constitution which declares that citizens have the right to work and provides for the freedom of choosing occupation, the right to be provided with stable jobs and working conditions and the right to

151

Human Rights Committee, The Second Periodic Report of the DPRK on its Implementation of the ICESCR (E/1990/6/Add.35), 15 May 2002.

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work according to ability and to be paid in accordance with the quantity and quality of the work done.152 The corresponding Concluding Observations of the Committee on ICESCR first acknowledged the efforts by the State party and its people to overcome the effects of the natural disasters from the mid-1990s, including the reconstruction of the food production infrastructure and recognized the wide coverage of free health care and the full implementation of a free and universal 11-year education system. Nonetheless, its concerns were laid down in the field of judicial independence which could have an adverse impact on the protection of all human rights guaranteed under the ICESCR and the lack of information about the exact functioning of the individual complaint system under the Law of Complaints and Petitions. Moreover, the

Committee was concerned, particularly that the right to work may not be fully assured in the present system of compulsory State-allocated employment, in contrary to the right of the individual to freely choose his/her career or workplace, along with the issues of domestic violence, children’s malnourishment, the control of a single trade union structure by the ruling party, and so on. The Committee, consequently, recommended the DPRK to seek international assistance and engage itself in international cooperation or in the regional activities undertaken by various agencies, including the Office of the United Nations High Commissioner for Human Rights as well as to join the International Labor Organization as a full member and ratify the main International Labor Organization conventions in due course. Specifically it urged the DPRK to establish appropriate mechanisms to guarantee equal access for the more vulnerable groups to international food aid and give priority to these groups in food programs. It also expressed its readiness, if invited, to send a delegation to visit the DPRK in order to ascertain the
152

Ibid.,

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realities and the efforts being made by the State party to apply the provisions of the ICESCR and to offer assistance in discharging its obligation.153 The next report which should integrate the Committee’s recommendations into further development was supposed to be submitted on 30 June 2008. 1-3 Convention on the Rights of the Child The DPRK had acceded to the CRC on 21 September 1990 without any reservation and in compliance with Article 44, handed its initial periodic report on 13 February 1996, its second report on 16 May 2002 covering the period of 1995-2000, and the combined third and fourth report on 10 December 2007 covering the period of 2001-2007. The Committee of CRC had issued the Concluding Observations respectively. The latest report was considered at the fiftieth session at the end of January 2009. In the latest report, aside from emphasizing its general polity of attaching great importance to child-related matters, like that of bringing up children to be independent, creative, and intellectually, morally and physically balanced which remain generally in line with the principles and requirements of the CRC, the elaboration has been made towards a number of amended and newly adopted legislation with a view of giving more practical effects to its commitment. Such laws as the Inheritance Law protecting the rights of unborn child in receiving inheritance, the Law on the State Budgetary Revenue providing numerous sources of State revenue to be expended for the protection and promotion of children’s rights and welfare, the Law on Tobacco Control prohibiting the sale of tobacco products to minors, the Family Law

153

Ibid.,

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affording special protection to mothers and their children, provision on a priority basis of conditions for the healthy upbringing and educating of children, deciding custody in consideration of the best interests of the child in the event of divorce, along with the Education Law, the Narcotic Drugs Control Law, the Civil Procedure Law, the Foodstuff Sanitation Law, the Law on Prevention of Communicable Diseases, the Criminal Procedure Law, and the Environmental Protection Law were either adopted, amended or supplemented bearing the integration of CRC, thereby contributing to further perfecting the legal system for the protection and promotion of children’s rights.154 Given the manifold legislative amendments and proclamations, the report highlights the efforts of the National Coordinating Committee for the Implementation of the Convention on the Rights of the Child (NCRC) which conducted a comprehensive review of the existing laws and regulations to find that the requirements of the Convention are reflected in the national laws either to the letter or in substance.155 Apart from those legal mechanisms, the DPRK has applied a more comprehensive strategy for the implementation of the CRC, such as the development of the ten-year National Program of Action for the Survival, Protection and Development of the Child, following the signing of the Declaration of the World Summit for Children in order to promote the well-being of children and women as well as the protection of their rights.156

154

Human Rights Committee, The Combined Third and Fourth Periodic Report of the DPRK on its Implementation of the CRC (CRC/C/PRK/4), 10 December 2007. 155 Ibid., 156 Ibid.,

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This report was considered by Committee in January, 2009. It requested the DPRK to provide concrete clarifications on issues which have not yet been fully implemented in accordance with the previous concluding observations, particularly in relation to age of majority, cooperation with civil society, civil rights and freedoms, parental responsibilities and childcare services, children with disabilities, returnee children. Also, it raised the question of whether steps have been taken to monitor and evaluate the implementation of the National Program of Action and to what extent non-governmental organizations (NGOs) have been involved in the implementation of child-related programs as well as in the drafting of legislation, regulations and policies, or any restriction placed upon them. It called upon the DPRK to provide disaggregated data (by sex, age groups, urban and rural areas, for example) on children deprived of a family environment, the rates of malnutrition, child abuse, victims of sexual exploitation, child labor, and child refugees, together with data on budget allocation and trends discharged for the implementation of the CRC throughout the country in the areas of education and health.157 1-4 Convention on the Elimination of All Forms of Discrimination against Women The DPRK has become member party of the CEDAW on 27 February 2001 and having bound by Article 18, submitted its initial report on 11 September 2002. The report was prepared by the National Coordination Committee of the DPRK for the Implementation of the CEDAW constituted by the officials of the Presidium of the Supreme People’s Assembly, the Cabinet, the ministries concerned, namely the Ministry of Labor, the Ministry of Education, the Ministry of

157

Committee on the Rights of the Child, Implementation of the Convention of the Rights of the Child: List of issues to be taken up in connection with the consideration of the third and fourth periodic report of the DPRK (CRC/C/PRK/Q/4), 20 October 2008.

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Public Health and the Ministry of Foreign Affairs, and the institutions as the Central Court and the Central Public Prosecutors Office.158 The report first gave an overall picture of the DPRK’s socialist administration and functions. In the pursuing sections, it elaborated on the principle of sex equality as mentioned in article 77 of the Constitution that women are accorded an equal social status and rights with men, article 1 of the Law on Sex Equality that women shall have equal rights with men in all spheres of the state’s economic, social, cultural and political life, and article 18 of the Family Law that husband and wife shall have equal rights within the family.159

It put emphasis on the legal and institutional measures in enforcing many aspects of CEDAW touching issues like elimination of discrimination, development and advancement of women, acceleration of equality between men and women, sex roles and stereotyping, exploitation of women, political and public life, international representation and participation, nationality, education, employment, equality in access to health care, social and economic benefits, rural women, equality before the law and in civil matters, equality in marriage and family law, and arbitration.

The Committee strongly urges the DPRK to expedite its efforts towards the withdrawal of reservations within a concrete time frame and incorporate fully the definition of discrimination in line with the CEDAW into its Constitution and other appropriate national legislation. It also recommends the DPRK to develop, adopt and implement, at the national
158

Committee on the Elimination of Discrimination against Women, Initial Report of the DPRK (CEDAW/C/PRK/1), 11 September 2002. 159 Ibid.,

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level, a comprehensive and coordinated plan of action to promote gender equality and ensure gender mainstreaming at all levels and areas, as well as to involve women’s groups at all stages of policies’ process. Apart from that, it encourages the State party to provide gender training and create gender focal points in the related entities. It requests the DPRK to include in its next periodic report due on 27 March 2006, detailed information on the content of the ten-year National Plan of Action for Women and to place it within the context of the implementation of the Beijing Platform for Action, together with this concluding comment.160

1-5 Challenges towards treaty-based mechanisms These are so-called, treaty-based bodies which hold the State accountable towards the international human rights instruments that it has signed, ratified or acceded to. Here I would like to base the argument from the empirical study conducted by Linda Camp Keith which tested the hypothesis of whether becoming a party to the international treaty (and its optional protocol) has an observable impact on the state party’s actual behavior, across 178 countries over 18 years period (1976-1993).161

Quoted from Linda Camp Keith, the high level of formal acceptance of these international agreements suggests substantial progress towards universal recognition of human rights norms. However, the impact of the agreements on actual human rights behavior remains unclear. Keith asserted for an optimist that a state’s ratification or accession to these agreements

160 161

Ibid., The test referred to herewith was carried out on the ICCPR only.

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would signal its willingness to be guided by the documents’ principles, and that the monitoring mechanisms of these documents would promote the implementation of these rights into national policy. On the other hand, Keith further cited some scholars who had questioned the value of the reports on several dimensions. Specifically, first, because the reports are filed by the state’s own officials, it is rather unlikely that they will be totally objective accounts of the state’s behavior. And second, the large number of states remain delinquent or, at certain point, have been late in filing their reports to the committee.162 The case of the DPRK is not uncommon.

Keith bases the test using measures of human rights behavior developed by groups of political scientist which are the Freedom House Political and Civil Rights indices and Stohl et al.’s Personal Integrity measure in order to compare the behavior of states which have become the party of ICCPR and those which have not. The results of the study are consistent with the assertions that the treaty’s implementation mechanisms are too weak and rely too much upon the goodwill of the party state to effect observable change in actual human rights behavior. States that recognize these weaknesses may believe that there is little risk to their sovereignty or to the continuation of their current policies in becoming a party to the treaty.163

Though propounded above, Keith upheld the impact that the treaty may indirectly lead to the better protection of human rights via the changes of domestic laws which very much depends

162

Linda Camp Keith, “The United Nations International Covenant on Civil and Political Rights: Does it make a Difference in Human Rights Behavior?” in Journal of Peace Research, Vol. 36, No. 1 (London: Sage Publications, 1999), p. 98. 163 Ibid., p. 112.

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upon an independent judiciary. This apparently does not reflect the case of the DPRK where its judicial mechanisms are under the realm of state’s political power in which the public accountability and transparency deem very slight, claiming by Cho Sung Yoon as “a weapon of the dictatorship of the proletariat for implementing and defending the policies of the North Korea’s Communist Party”.164

Citing from Todd Landman, the study of Keith can be complement with his study which examines the relationship of international human rights law and human rights protection through various theoretical lenses of international law, international relations and comparative politics. Landman concurs with Keith that state’s compliance with its human rights obligations depends a great deal upon the good-will of state itself. In order to achieve desirable good-will for the international human rights regime to function effectively, other independent variables must be added into the calculation. He enumerates democracy, wealth, interdependence, internal/external conflict, population, specific regional location, along with the presence of international governmental organizations and non-governmental organizations (NGOs) as factors to be integrated.165

Under the system of treaty-based monitoring bodies, NGOs can also participate and be involved in implementing the treaties by the submission of “shadow” or alternative reports. This

164

Cho Sung Yoon, “The Judicial System of North Korea,” in Asian Survey, Vol. 11, No. 12 (California: University of California Press, 1971), p. 1167. 165 Todd Landman, “Protecting Human Rights: A Comparative Study,” (Washington D.C.: Georgetown University Press, 2005), p. 26-30.

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is the consequence of the fact that state party is likely to ignore NGOs or civil society, especially those with conflicting perspectives, though it is required to them in its periodic report. NGOs are then provided with channel to directly submit independent parallel reports and informal presentations to bring a particular human rights concern to national and international attention under this monitoring framework. These shadow reports would help the treaty Committees to focus these issues in the dialogue with state parties. Unfortunately for the case of DPRK where NGOs and civil society are not established, the alternative reports which are sent to those Committees, such as the one submitted to the Committee of ICESCR by Good Friends, Center for Peace, Human Rights and Refugees, a non-profit NGOs based in Seoul mostly came from NGOs outside the country. This undeniably limits the range of information and evidence attempted to be enlarged in these reports.

Though with all these mechanisms and procedures intact, the assertions by Oona Hathaway at the certain point counter as well as deepen the probable consideration of state to commit and comply to those international obligations beyond the good-will and favorable gesture. Citing from Hathaway’s claim that state calculates what to gain and lose upon

committing and complying with any treaty, bearing in mind the limitation of monitoring mechanisms. The collateral consequences are the factors of motivations. Collateral

consequences arise from the anticipated reactions of individuals, states, and organizations to the state’s decision to commit to the treaty and then to abide or not to abide by its terms. These reactions that fall outside the legal framework created by the treaty or its implementing

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legislation but nonetheless affect the state’s material and other interests, Hathaway elaborated.166 These range from foreign aid and investment to reputational benefits from voluntarily joining a treaty. However, the following compliance depends in particular on the monitoring and

advocacy work of domestic groups which can make noncompliance more difficult and costly, commitment decisions, therefore often hinge on whether domestic political actors supportive of international law exist and are poised to press for treaty adherence.167 Definitely for the DPRK, such things as domestic political actors or interest groups, independent judiciary, NGOs and media, as briefly described above are absent to attach compliance cost on the declared commitment.

In short, to actually take steps to realize human rights norms involves several actions at both domestic and international levels. At the international human rights setting, Louis Henkin states that it can be achieved through the followings. There is much to be done to make compliance with international human rights norms real: to move state beyond nominal commitment to authentic commitment; to make the reporting system required by covenants and conventions more meaningful; to enhance the authority of the treaty committees; and to move beyond voluntary reporting by states parties to include international monitoring, investigation, and judicial protection.168

166

Oona Hathaway, “Between Power and Principle: An Integrated Theory of International Law,” in The University of Chicago Law Review (Chicago, 2005), p. 492. 167 Ibid., p. 509. 168 Louis Henkin, “Human Rights: Ideology and Aspiration, Reality and Prospect,” in Samantha Power, and Graham Allison, (eds.), Realizing Human Rights: Moving from Inspiration to Impact (New York: Palgrave Macmillan, 2000), p. 30.

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The DPRK positions itself as one of the most isolationist state where all other factors favorable to human rights good-will and gestures are very restricted. These coincide with many loopholes in formal human rights mechanism as state’s voluntary commitment and reservations mentioned above and defects in the procedural management as delayed response to violations on the ground. Consequently, the international human rights regime under the UN Charter has formed a more flexible mechanism to handle the possible loopholes and gaps sprung from the above treaty-based measures and under the particularly contextual circumstance of the DPRK, the Commission on Human Rights appointed the Special Rapporteur to investigate its human rights transgression from 2004 onwards. The questions as what factors led to the hypothetical requirement of this position for the DPRK, especially only in 2004 when the international community commenced to raise the problems will be unfolded in the following chapters.

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CHAPTER 2 Overview of Special Procedures
Special Procedures are the human rights protection mechanisms fallen within the structure of the UN Charter-based bodies carrying the mandates entrusted upon them by the Commission of Human Rights (replaced by Human Rights Council in 2006). As stated in the official web page of the Office of the High Commissioner for Human Rights (OHCHR), the facilitating and supporting body of the mechanism, “Special procedures” is the general name given to the mechanism which calls on the mandate holders to examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. Currently, there are 30 thematic mandates169 covering the concerns of political, civil, economic, social and cultural rights, and 8 country-specific mandates170 which are Burundi (2004), Cambodia (1993), the DPRK (2004), Haiti (1995), Myanmar (1992), the Palestinian territories occupied since 1967 (1993), Somalia (1993), and Sudan (2005).

169

These are: adequate housing, people of African descent, arbitrary detention, sale of children, child prostitution and child pornography, right to education, enforced or involuntary disappearances, extrajudicial, summary or arbitrary executions, extreme poverty, right to food, effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights, the right to freedom of opinion and expression, freedom of religion or belief, right of everyone to the enjoyment of the highest attainable standard of physical and mental health, human rights defenders, independence of judges and lawyers, indigenous people, internally displaced persons, mercenaries, migrants, minority issues, racism, slavery, international solidarity, countering terrorism, torture, dumping of toxic and dangerous products and wastes, trafficking in persons, transnational corporations and other business enterprises, right to water, and violence against women. 170 The year of mandate establishment is specified in parentheses.

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The titles given to individual mandate holders or experts vary which are Special Rapporteur, Special Representative of the Secretary-General, Representative of the SecretaryGeneral or Independent Expert. This does not, in any way, reflect the hierarchical authority among them. They are simply the result of political negotiation.171 The mandate can also be entrusted to a working group usually composed of five members, one from each region. The scope of each mandate is defined by the resolution creating them. In general, these mandate holders undertake several types of activities to fulfill their duties which include but not limit to responding to individual complaints, conducting studies, providing advice on technical cooperation at the country level and engaging in general human rights promotional activities. It is also crucial to note that they serve in their personal capacity, and do not receive salaries or any other financial compensation for their work under the special procedures, though the OHCHR bears all other costs in fulfilling their mandates, such as traveling expenses.

2-1 General information on Special Procedures172 The idea of creating the mechanism of Special Procedures commenced in 1965 without much thorough discussion of the exact format or procedures. Prior to that, it was well

understood that the Commission on Human Rights (later the Commission) was set to focus on elaborating various human rights standards and the resolution by the Economic and Social
171

Office of the United Nations High Commissioner for Human Rights, “Human Rights Fact Sheets: No.27 Seventeen frequently asked questions about the United Nations special rapporteurs,” (Geneva: United Nations, 2001), p. 6. 172 The information set forth here in this part of the research is extracted mainly from the Report of the Open-ended Seminar on Enhancing and Strengthening the Effectiveness of the Special Procedures of the Commission on Human Rights held in Geneva during 12-13 October 2005, Human Rights Fact Sheets: No. 27 Seventeen frequently asked questions about the United Nations special rapporteurs, the Code of Conduct for Special Procedures Mandate-holders, the Manual of Operations of the Special Procedures of the Human Rights Council, and other relevant document.

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Council resolution in 1947, confirmed that it had “no power to take any action in regard to any human rights complaints”.173 However, in 1965 the Commission faced with a great number of individual petitions from South Africa, mostly based on the issue of apartheid, and was put under considerable pressure to deal with them. Two years later, the Commission decided to establish an ad hoc working group of experts to investigate the situation of human rights in southern Africa which led to the recognition of the need for public debate on specific countries. It took until 1975 before the Commission dealt with another situation by creating an ad hoc working group to inquire into the situation of human rights in Chile, following the 1973 coup by General Augusto Pinochet which in 1979 was replaced by a special rapporteur and other two experts to study the fate of the disappeared in Chile. The mandate was expanded in the ensuing year to become the Working Group on Disappearances dealing with the question of enforced disappearances throughout the world. Since then, there has been less reluctance on the Commission’s part to solicit the help of human rights experts in examining specific situations, essentially analysis on how human rights principles are applied in reality on the ground.174

The selection process of experts began with the candidate nominations by governments, Regional Groups operating within the UN human rights system, international organizations, NGOs, and even individuals. A Consultative Group established will propose to the Human

Office of the United Nations High Commissioner for Human Rights, “Human Rights Fact Sheets: No.27 Seventeen frequently asked questions about the United Nations special rapporteurs,” (Geneva: United Nations, 2001), p. 3. [Quoted from The Economic and Social Council resolution 75 (V) (1947) and decision of the Commission on Human Right at its first session, in January 1947.] 174 Ibid.,

173

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Rights Council (the former Commission) a list of candidates who possess the highest qualifications. Each individual mandate-holder is selected on the basis of their expertise, experience, independence, impartiality, integrity and objectivity whose tenure will not be longer than 6 years with annual review for country mandates and every three-year review for thematic ones.175

The principal functions of Special Procedures generally include: (1) analyzing the relevant thematic issue or country situation; (2) providing advice on the measures which should be taken by the concerned government(s) and other relevant actors; (3) alerting the UN agencies and the international community on the need to address specific situations and issues as an early warning and preventive measures; (4) advocating on behalf of the victims of violations; (5) activating, mobilizing, and encouraging the international and national communities for mutual networking and cooperation; (6) following up to own proposed recommendations.176

Those mandate-holders, namely UN experts will discharge the above activities in an independent capacity, and in accordance with the mandate specified in the resolution establishing them. Professional and impartial assessment of facts based on internationally recognized human rights standards, free from any kind of extraneous influence, incitement, pressure, threat or interference of any party are key conducts. They must strictly observe and uphold the highest standards of the code of conduct which are efficiency, competence and integrity, or in other
175 176

Ibid., Office of the United Nations High Commissioner for Human Rights, “The Manual of Operations of the Special Procedures of the Human Rights Council,” published on August 2008.

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words, though possibly be more expansive, probity, impartiality, equity, honesty and good faith. Although the mandate-holders exercise their functions on a personal basis, their responsibility is not considered national but exclusively international, entitled to privileges and immunities as provided for under relevant international instruments including the Convention on the Privileges and Immunities of the UN as other officials of the organization.177

2-2 Working methods of mandate-holders It is generally agreed upon that the mandate-holders should exercise their functions based on mutual respect and open relationship with all parties, especially the States. It is more important for them to be cautious and attentive at all times of all available sources of information which, due to certain sensitivity, they should always be guided in their information-gathering activities by the principles of discretion, transparency, impartiality, and even-handedness. Wherever feasible and appropriate, they should endeavor to consult and meet with such sources, as well as seek to cross-check information received to the best extent possible.178

In order to fulfill the duties, all the mandate-holders will basically aim to visit a particular country as an essential means to obtain direct and first-hand information on human rights violations which would allow for more thorough observation of the situations and facilitate an intensive dialogue with all relevant authorities. The visit occurs at the invitation of a state whose
177

Human Rights Council Resolution 5/2: Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council, 18 June 2007. 178 Office of the United Nations High Commissioner for Human Rights, “The Manual of Operations of the Special Procedures of the Human Rights Council,” published on August 2008.

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government may take initiative to invite a mandate-holder or alternatively a mandate-holder may request for the invitation by communicating with the government. The Human Rights Council established the system of “standing invitation” in which states extended automatically accept a request to visit at all times.179

An invitation for country visit is not the sole expectation of the Special Procedures from the governments. In this connection, governments must offer appropriate guarantees, preferably in writing, to ensure the protection of witnesses and the absence of all reprisals against any person cooperating with the mission in any way.180

When not on the country visit mission, most Special Procedures are to receive information from different sources. They can act on credible information, which according to the admissibility criteria in the Code of Conduct, should not be manifestly unfounded, politically motivated, abusive, or based entirely on mass media reports, by sending a communication to relevant government(s) through diplomatic channels, unless agreed otherwise. Mandate-holders are encouraged to send joint communications where appropriate.181

Communications will usually take the form of either “urgent appeals” or “letters of allegation”. The former is used in cases where the allege violations are time-sensitive in terms of

179 180

Ibid., Ibid., 181 Ibid.,

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loss of life, life-threatening situations or imminent and on-going damage of a grave nature that require urgent intervention to cease the violation. In appropriate cases, mandate-holders may decide to make such appeals public by issuing press releases. Generally governments are requested to provide a substantive response within a month. Whereas letters of allegation are to communicate information about violations that are alleged to have already occurred and of which impact on the alleged victim can no longer be changed. Governments are usually asked to respond within 2 months. In both types of communication, the mandate-holders call upon the government concerned to take all appropriate action to investigate and address the alleged events and to provide the results. Depending on the response received, the expert may decide to inquire further or make recommendations.182

All the country visit findings and communications must constitute as an indispensable basis of the Special Procedures’ annual periodic reports. Mandate-holders can also conduct other activities such as thematic studies, participation in seminars or conferences and human rights awareness-raising.183

2-3 Special Procedures under the era of Human Rights Council On 15 March 2006, the UN General Assembly issued the resolution 60/251 establishing Human Rights Council in replacement of the Commission on Human Rights, as a subsidiary organ of General Assembly.
182 183

Ibid., Ibid.,

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This actually lifts the status of recognition given to the issue of human rights in the structure of UN from the Commission under the Economic and Social Council to equal footing with other two pillars of the UN which are peace and security, and economic and social development, as what Kofi Annan as former Secretary-General had persuaded all the world’s leaders to agree at the September 2005 World Summit.184 As Paul Gordon Lauren asserted, the Commission and its whole human rights architect were very much the result of political negotiations and compromise from the outset. Besides, somehow along its existence until recent years of its operation, the Commission had been widely and severely criticized for the failures to live up to the vision of being a genuine protector of human rights abuses’ victims and instead become a shield for violators to which in the midst of serious discussion on UN reform during 2004-2006, enormous attention was directed.185

Among all the decision and discussion, those involved in redesigning the regime concurred upon creating a system of Universal Periodic Review in which all members of the new Council can be subject and accountable to castigation of their human rights situations. Apart from that, they all agreed to retain, further strengthen, and institutionalize the Special Procedures mechanism since this is the key machinery that effectively addresses the human rights

184

Yvonne Terlingen, “The Human Rights Council: A New Era in UN Human Rights Work?” in Ethics and International Affairs, Vol. 12, No. 2 (New York: Academic Research Library, 2007), p. 167. 185 Paul Gordon Lauren, “‘To Preserve and Build on its Achievements and to Redress its Shortcomings’: The Journey from Commission on Human Rights to Human Rights Council,” in Human Rights Quarterly, Vol. 29, (The Johns Hopkins University Press, 2007), p. 308.

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encroachment, as Terlingen puts it that this unique system is the great invention by the Commission to advance human rights protection globally as its “eyes and ears.”186

All mandate-holders under the Special Procedures, even prior to the full establishment of the Council, have among themselves attempted to consolidate and systemize their works and approaches in order to best maximize benefits for the cause of human rights. A number of meetings on issues of enhancing its effectiveness taken place, Special Procedures’ extranet access bulletins regularly released, annually related facts and figures published, Coordination Committee set up to, to name a few initiatives arising among the mandate-holders to strengthen this mechanism under the Human Rights Council and support of the Office of the High Commissioner for Human Rights.

186

Yvonne Terlingen, “The Human Rights Council: A New Era in UN Human Rights Work?” in Ethics and International Affairs, Vol. 12, No. 2 (New York: Academic Research Library, 2007), p. 168.

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CHAPTER 3 Special Rapporteur on Human Rights Situation of the DPRK
The position of Special Rapporteur on human rights situation of the DPRK under the Commission on Human Rights (currently the Human Rights Council) was adopted at its 50 th meeting on 15 April 2004 by resolution 2004/13. In reference to the resolution, the members requested the Chairperson of the Commission to appoint an individual of recognized international standing and expertise in human rights as Special Rapporteur whose mandates are to establish direct contact with the government and the people of the DPRK, including through visits to the country, and to investigate and report on the situation of human rights and on the Government’s compliance with its obligations under international human rights instruments. In order to carry out this mandate, the Special Rapporteur is requested to seek and receive credible and reliable information from all relevant actors, including governments, NGOs, and any other parties who acquire knowledge of the matters. The Special Rapporteur is required to report the findings and recommendations to the General Assembly and the Commission.187

The resolution also calls upon the government of the DPRK to extend its full and unreserved cooperation to, and to assist, the Special Rapporteur in the discharge of the mandate and, to this end, to take all necessary steps to ensure that the mandate-holder has free and unlimited access to any person in the DPRK whom he/she might wish to meet. Not only the concerned governments, but the resolution also requests the Secretary-General and other UN

187

Commission on Human Rights Resolution 2004/13: Situation of Human Rights in the DPRK, 15 April, 2004.

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organs to give the Special Rapporteur all necessary assistance and support. Accordingly, Professor Vitit Muntarbhorn was appointed to the task.188 So far, his tenure has been annually renewed by the Commission’s resolution 2005/11 of 14 April 2005, the Commission-replaced Human Rights Council’s resolution 1/102 of 30 June 2006, and the most recent resolution 7/15 of 27 March 2008.

The resolution 7/15, voted in favor by 22 Council’s member states, including the ROK, Japan and EU countries, reviewed the mandate commending the Special Rapporteur for the activities undertaken and his continued efforts despite the limited access to information and, therefore, decided to extend it for a period of one year.189

This chapter attempts to describe the backdrop of contextual framework in the international arena of how and why the awareness and concern over the human rights situations of the DPRK have raised above the channel of formal mechanisms to address the issues which, as previously discussed in Chapter 1, would require the good-will of the state to implement the proclaimed obligations but it may be a protracted gradual process. Though complement each other in many aspects, unlike the treaty-based mechanisms, the special procedures, more or less, seem to be imposed upon the states, particularly in the case of country-specific mandates by other states constituting the majority vote in the Council. The justifications and presumptions to

188 189

Ibid., Human Rights Council Resolution 7/15: Situation of Human Rights in the DPRK, 27 March, 2008.

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establish Special Rapporteur will be explored here, along with his credentials and methods of work as well as the challenges faced. 3-1 International human rights concerns and politics leading to the appointment There can never be a single direct explanation to a particular phenomenon in increasingly complex social aspects of the world today. Likewise, the issues of human rights in one of the last residue of ideological conflict of Cold War and the most reclusive society on earth as the DPRK involve numerous layers of perspectives.

The recent concerns on North Korean human rights at the UN global stage leading to the establishment of the Special Rapporteur started off with the UN Commission on Human Rights resolution 2003/10 in April 2003, sponsored by the EU countries with support from the U.S. and Japan. They expressed deep concern about reports of systematic, widespread and grave human rights violations in the DPRK, including torture and other cruel, inhuman or degrading treatment, public executions, imposition of death penalty for political reasons, the existence of prison camps, severe restrictions on the freedom of thought, conscience, religion, opinion and expression, peaceful assembly and association, and the discrimination against disabled children and women. Hence, the Commission requested the High Commissioner for Human Rights to engage in a comprehensive dialogue with the authorities of the DPRK on this matter.190 The response from the Permanent Mission of the DPRK was nothing more than taking this position of international community as the pursuit of political purposes under the pretext of “human rights.” The DPRK emphasized that while continuing to pursue substantial discussions and
190

Commission on Human Rights Resolution 2003/10: Situation of Human Rights in the DPRK, 16 April, 2003.

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cooperation for achieving genuine human rights in the Commission and other human rights meetings, the DPRK has opposed the challenges of politicization of human rights and double standards.191 Later in April 2004, the Commission adopted resolution 2004/13, again under the sponsor of EU countries, to establish the Special Rapporteur on the situation of human rights in the DPRK.

Apparently, the DPRK has objected the whole process and contents of addressing specifically its human rights situations within the frame of the Commission as part of political incentives to artificially impair its image and deprive its people of their sovereignty and genuine rights. Nevertheless, the DPRK stresses its position to achieve international cooperation and collaboration designed to ensure the sovereign rights of all peoples as it has become party to several international legal instruments on human rights and implemented them in good faith.192

As quoted from the study of Todd Landman earlier in Chapter 1 which complements the precedent argument of Linda Camp Keith, he elaborates a few independent variables facilitating for the state’s good-will to implement the human rights obligations which are different level of democracy, economic development, international interdependence, presence of NGOs, and so forth. All these factors only exist at the minimum degree under the totalitarian state of the DPRK as those human rights violations and concerns addressed in the Commission’s resolution are obviously constituted as parts of state’s tools and strategies to control its subjects. The
191

Note verbale from the Permanent Mission of the DPRK addressed to the Office of the UN High Commissioner for Human Rights, dated 4 February 2004. 192 Ibid.,

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questions here are the fact that those oppressions have commenced probably since its foundation but only from few years back that the international community perceives it is inadequate to deal with them through the formal procedures of treaty-based mechanisms which will only gradually transform and engage the DPRK in its human rights duties and decides to the formation of country-specific Special Procedures to help deal with.

Apart from the fact that after the collapse of the former Soviet Union, the DPRK’s major patron for food and oil subsidies, following with natural disasters during the mid of 1990s, the DPRK has faced severe blow of economic downturn causing greater number of people illegally cross the borders and seek better opportunities in other countries whose accounts of personal experience as well as the situations within the DPRK have been portrayed and reported, the human rights concerns at the global level can be recognized in parallel with the emerging attention towards the DPRK as a whole which essentially coincided with the overall interest direction when the former U.S. President Bush delivered his state of the union address in January 2002, declaring the continuous war against terror stating North Korea, along with Iran and Iraq as “axis of evil.” This rhetoric reflected many policies’ implications as John Feffer, the CoDirector of Foreign Policy in Focus, argued that when a more confrontational stance predominated in U.S. policy towards the DPRK, human rights issues were also more prominent. He mentioned, for instance, the former President Bush’s emphasis of human rights language when describing the authoritarian political structure and “evil” intent of the DPRK regime.193 In this atmosphere, the Congress passed the North Korean Human Rights Act of 2004.194

193

President Bush convinced that North Korea was a regime arming with missiles and weapons of mass destruction

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The North Korean Human Rights Act officially legislated in October 2004 was an amended version of the North Korean Freedom Act advocating for by the U.S lawmakers in 2003. The Act was slightly amended when it expired in 2008 and extended to 2012 as the North Korean Human Rights Reauthorization Act 2008. Though the key features of this Act are the appointment of Special Envoy (in later Act of 2008, enhanced its authority to Ambassador) and humanitarian assistance provided for the refugees, Suh Bo Hyuk mentioned the suspicious reactions criticizing the law for being a thinly veiled way in which to pressure or encourage the overthrow of the regime in Pyongyang with the hidden politically motivated intention.195 This claim is of no difference towards the Special Rapporteur.

Since the EU counties, led by the United Kingdom, have played an indispensable role in the drafting and adoption of the above mentioned resolutions in both General Assembly and the Commission/Council, it is significant to examine the possible causes of their action. In this respect, Ruediger Frank set out the assumption based on “special relationship” between London and Washington, which would effectively prevent any support, not to speak of an initiative, of a European political challenge of the U.S. as well as the U.S.-Japan-Europe triad that, without much doubt, the issues of the DPRK touch the interests of Japan and the U.S., though not with substantive direct impact to the EU interests. He propounded that:

and potentially providing these arms to terrorists while starving its citizens. 194 John Feffer, “U.S. Policy Change on North Korean Human Rights,” presented at the 5th International Symposium on North Korean Human Rights: International Perspectives and Challenges Concerning North Korean Human Rights, organized by National Human Rights Commission of Korea at Korea Chamber of Commerce and Industry, October 29-30, 2008. 195 Suh Bo Hyuk, “Controversies over North Korean Human Rights in South Korean Society,” in Asian Perspective, Vol. 31, No. 2 (Oregon: Kyungnam University & Portland State University, 2007), p. 37.

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…the EU’s engagement with North Korea has to be seen in the context of a global alliance between the USA, Japan and the EU…which shows that the EU is indeed ready to play its role in the cooperative alliance with Washington, even under the current extraordinary conditions and could further be interpreted as a will for closer political cooperation with Japan 196 Having positioned the hypothesis as such, the scenario seems precarious to the extent that the support for global call on North Korean human rights concerns by the EU is located in the careful consideration of its alliance’s interest and stance. Hence, if the international politics is likely a decisive factor whether harsh expression on human rights will be applied or whether the human rights of the DPRK could then be compromised in the case of softer policies to engage the DPRK in other areas. In this sense, the claim of human rights politicization stated by the DPRK’s authority against the resolutions may probably have some grounds.

Surfacing the scenario as such, Michael Freeman stated: The international politics of human rights is part of international politics. This means that it is characterized by a considerable amount of self-interest, pragmatism and short-term crisis management, rather than systematic implementation…The UN has, therefore, been the central institution where international human rights law and politics meet, and often clash, and where the gap between human rights ideals and realities is especially apparent.197

The DPRK is simply another such clash as Tony Evans describes UN as the generator of impressive body of international law on human rights contributing to the global reach of the

196

Ruediger Frank, “EU-North Korean Relations: No Effort Without Reason,” in International Journal of Korean Unification Studies, Vol. 11, No. 2 (Seoul: Korea Institute of National Unification, 2002), p. 112. 197 Michael Freeman, “Human Rights: An interdisciplinary approach,” (Cambridge: Polity Press, 2002), p. 52 and 9.

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‘idea’ of universal human rights whereas it is an organization based upon sovereign states with their own national interest and agenda still.198

However, these pose as an opportunity and at the same time a challenge for those advocating for the DPRK human rights, including the Special Rapporteur on the situations of human rights in the DPRK. Perhaps politics played role in the establishment of this position but with provided space, Special Rapporteur in collaboration with other parties can alert the DPRK of its monitoring and advocacy.

3-2 Vitit Muntarbhorn’s credentials as the Special Rapporteur Since the personal integrity and credentials constitute the most significant element as the human rights capital of the mandate-holders, this section, thus, devotes to briefly provide background information about Vitit Muntarbhorn, the Special Rapporteur on the situations of human rights in the DPRK.

Vitit Muntarbhorn, a graduate of Oxford University and the Free University of Brussels and a barrister at the Middle Temple in London, is the renowned human rights scholar who acquires the teaching position at the Faculty of Law, Chulalongkorn University in Bangkok, Thailand. At the faculty level, he held the position of Department Head on various occasions and has received numerous awards for his relentless contribution to pedagogical and academic
198

Tony Evans, “The Politics of Human Rights: A Global Perspective,” (London: Pluto Press, 2001), p. 85.

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fields. He has taught at a variety of other institutions, including the Faculty of Law at Reading University in the UK, and at the Canadian Human Rights Foundation. He has conducted and published a number of researches on international norms of child right, women right and rights related to refugees leading to more awareness of this area in Thailand. He also holds various adhoc consultant posts in government agencies, independent organizations as the National Human Rights Commission of Thailand, NGOs and civil society, such as the International Law Association of Thailand and Campaign for Popular Democracy. His accredited legal and human rights devotion to the society is impossible to fully table here.

At the international level, he participates and shares his expertise in several forums and opportunities, such as a member of Advisory Council of Jurists in the Asia-Pacific Forum, the Co-Chair of the experts’ meeting to develop the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity released in 2007, the Co-Chair of the Civil Society Working Group for an ASEAN Human Rights Mechanism, a former executive director of Child Rights ASIANET, a regional network for the protection to children established by UNICEF, to exemplify few. For his service under the UNCharter Special Procedures, prior to being appointed the Special Rapporteur on situations of human rights in the DPRK, he was the first mandate-holder on the Sale of Children, Child Prostitution and Child Pornography during 1991-1994 and he has persistently dedicated to reinforcing the Special Procedures mechanism with the committed belief in its added values to human rights as he noted, during an open-ended Seminar on Enhancing and Strengthening its Effectiveness, the focus on victims, the broad range of the mandates, and the fact that action by

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Special Procedures in relation to an alleged violation of human rights do not require exhaustion of domestic remedies, based on prima facie concerns. In this seminar, he was the only mandateholder submitted a proposed paper “Special Procedures of the UN at the crossroads.” Besides, he actively addressed the mechanism when he chaired the Coordination Committee of the Special Procedures.

He was presented with the UN Educational, Scientific, and Cultural Organization (UNESCO) Prize for Human Rights Education in 2004, the same year he was appointed the Special Rapporteur on the situation of human rights in the DPRK.

3-3 Working methods of Special Rapporteur The work of mandate-holders must be strictly observed in compliance to the mandate under the resolutions establishing them, along with the Code of Conduct and the Manual of Operations. In this regards, Vitit Muntarbhorn is tasked with preparing and submitting the annual report on the human rights situations in the DPRK to the UN General Assembly and Human Rights Council. In order to fulfill his mandate in the midst of the international political challenges described earlier as well as with the absence of recognition from the DPRK, the Special Rapporteur has maximized all resources and capacities available.

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The approach of the Special Rapporteur continues to seek an invitation for country visit and convince the DPRK to respond to the mandate as a window of opportunity to engage with the UN. To date, the authorities have declined to cooperate with the Special Rapporteur. Instead, he makes his visit to the neighboring countries whereby the North Koreans cross border in search for asylum and which positively respond to his requests. He carried out his past visits in Japan, Mongolia and the ROK where he met and conducted interviews with North Korean people and victims’ families, respective government authorities, independent organizations as the National Human Rights Commission, NGOs, and other UN agencies. With all these sources and information, the Special Rapporteur cross-checks and compiles data while analyzing the human rights situations and providing recommendations based on his expertise to all parties concerned. Usually he organizes a press release at the end of his country visits. The Special Rapporteur also attends and participates in seminar, conferences and workshops on the DPRK human rights issues, in which he would present a statement giving clarification on his mandate. For instance, in October 2008 he presented a keynote speech at the 5 th International Symposium on North Korean Human Rights in Seoul organized annually since 2004 by the National Human Rights Commission of Korea.

Since the adoption of his mandate, Vitit has sent several communications to the DPRK’s government which mostly were joint communications with other Special Procedures. Those communications mainly expressed the concerns and called upon the DPRK to provide information in related to groups of people who were repatriated back against their will and in fear of being tortured or summarily executed. Some communications appealed on the case of

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abductions of other nationals by the DPRK. In the beginning of these communications, the DPRK’s reply rejected the content and reiterated its position of not recognizing the mandate. In the later phase, there has been no response from the DPRK government at all.

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CHAPTER 4 Review of Special Rapporteur’s annual reports
In the Commission on Human Rights’ resolution 2004/13, apart from expressing deep concern over the human rights situation in the DPRK and appointing the Special Rapporteur to establish direct contact with the Government and people of the country and to investigate the human rights violations, it requested the Special Rapporteur to present a report annually to the General Assembly and the Commission (later the Council).

Up until this year, Vitit Muntarbhorn has submitted 4 annual reports which generally but not always cover the second half of previous year to the first half of reporting year. All his reports range from 20-22 pages composed of brief introduction, issues of human rights concerns and activities which cover in details communications sent to the DPRK’s government and neighboring countries’ visits.

In the first section of all his reports, Vitit generally expresses his appreciation to all parties equipping him with required assistance and insists the DPRK to view his mandate as a window of opportunity reaffirming that the adopted process is based upon a constructive step-bystep approach, working progressively to promote and protect human rights in the country in a fair, balanced and independent manner. Also, the Special Rapporteur welcomes the fact that the DPRK is a party to 4 key human rights treaties mentioning its recent engagement with the

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monitoring Committees. His reports always emphasizes the hope that the negotiations between various international players to denuclearize the Korean peninsula, so-called the six-party talks progress positively and provide a key development to build trust and confidence bringing about additional space for the improvement of the human rights situation, supposedly by diverting limited resources from military-first policy to welfare.

4-1 The first report (2005)199 In his initial report, the Special Rapporteur laid out his concerns by first elaborating on constructive elements towards internationally-accepted human rights standards and underlying political, economic, social and cultural contexts of the DPRK. Among all these, the report highlights the notable progress before 1995 in areas of economic, social and cultural fields, such as various safety nets to help the population, ranging from State-provided health care to social security. Unfortunately, those have declined drastically since and from 2002, the public

distribution system (PDS) has been adjusted to introduce small-scale consumers’ markets and reduce food subsidies causing food prices to rise by 400%.

His analysis is situated in the context that the DPRK’s authorities put more emphasis when considering the issues of human rights on collective (State-centric) rights, the protection of national sovereignty and state’s right to survival. Besides, the attempt to understand the human rights situation in the DPRK cannot be totally separated from the challenge of democratization in

199

In parentheses, the year of submission is provided.

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the country, the effects of war on the Korean peninsula (1950-1953), the challenge of demilitarization and disarmament in the region, the challenge of sustainable development and the need for broad-based popular participation. Instead, human rights situation must be addressed bearing the traumatic development since the mid-1990s, at times linked with internal and external factors.

Concerning the specific human rights challenges, the reports underscored on; 1) the right to food and the right to life from his consultations with key humanitarian agencies that there was a continuing need for food aid to help the population which should accompany with more effective monitoring aimed at ensuring maximum transparency. The sources he interviewed gave conflicting account of whether the food aid provided from abroad was diverted for other uses. 2) The right to security of the person, humane treatment, non-discrimination and access to justice which provided the backdrop for the resolution establishing the mandate of the Special Rapporteur. The report quoted from the Concluding Observations by the Human Rights Committee under the ICCPR on the issues of collective punishment, lack of due process of law or access to justice, increased penalties for anti-State crimes, for instance. There were also reports that there is no independent judiciary which the Special Rapporteur stated he was not in a position to verify all these reports and allegations, but initial impressions suggested these could not be seen as merely coincidental, therefore he urged authorities to address this scenario in a transparent and efficacious manner.

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3) The right to freedom of movement and protection of persons linked with displacement which quoted from the Concluding Observations by Human Rights Committee on concerns related to the Immigration Law. He also introduced the international legal terms, “refugee(s) sur place” describing the case of North Koreans people who did not leave the country for fear of persecution, but who fear persecution upon return. 4) The right to the highest attainable standard of health and the right to education quoted from the Concluding Observations by the Committee on ICESCR on a rise of various diseases and malnutrition as well as access to schools. The Special Rapporteur stressed on both

quantitative and qualitative forms of education, particularly on a high degree of indoctrination through education. 5) The right to self-determination/political participation, access to information, and freedom of expression/belief/opinion, association and religion in which the Special Rapporteur cited from Concluding Observations by the Human Rights Committee on these restrictions from the Constitution’s provisions, the Press Law, and so on. 6) The rights of specific persons/groups which were mainly women and children who have become much more vulnerable in the face of crisis pushing them to leave homes in search for employment and food elsewhere and falling victims of smuggling or trafficking.

4-2 The second report (2006)

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In the second report, the Special Rapporteur provided information on the changes that occurred during the past year. He divided the reports into general and specific concerns with attachments of detailed communications submitted to the government of DPRK.

The general concerns addressed the issues of right to food and life with worrisome expression that the authorities were no longer permitting various markets to operate for fear of losing the hold on economy, thereby reverting to the public distribution system which still discriminated against the vulnerable, particularly children, pregnant women, the elderly and those with disabilities. The country’s shift from accepting humanitarian relief to its current call for a development framework should be coupled with a strategy to incorporate human rights comprehensively into the programming process. There was also the question of the rights to security of the person, humane treatment, non-discrimination and access to justice in which he criticized the reforms of the Criminal Code and Criminal Procedure Code in 2004 operating under “quasi-judicial systems” as comrade judgment committees and socialist lawful living guidance committee. Concerning the freedom of movement, asylum and refugee protection, there were reports of potential or actual forced return (“refoulement”) of North Koreans who had sought asylum in neighboring countries without adequate guarantees of safety throughout 2005/2006. The Special Rapporteur sent numerous communications on this issue to the DPRK. He posed this as a challenge to also work with neighboring countries to abide by international law highlighting the need to avoid criminalizing innocent people who need protection and humane treatment. With regard to the right to self-determination and to political participation, access to information, freedom of expression, belief and opinion, association, conscience and

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religion, there was no ostensible improvement during the year due to the implementation gap between legal provision and actual application.

The specific concerns gave more detailed analysis on the situations of women, children, the elderly, the disabled and the ethnic minority, the Chinese Koreans who, under the hierarchical and stratified society as the DPRK were relatively more oppressed. While women are a large base of the workforce, their access to high decision-making positions is limited and often relegated to stereotyped roles, as noted by observations made in July 2005 by the CEDAW Committee. Women and children in families are at times punished for being associated with relatives seen as hostile to the regime, on the basis of “guilt by association.” He raised a challenge for international and national agencies dealing with children, particularly those with access to the localities, to act more proactively and accessibly to address not only the issue of child survival and development but also child protection and participation. Though he welcomed the adoption of new law in 2003 on the protection of persons with disability, the implementation remains to be seen. To date, it is reported that they were sent away from the capital city, and especially those with mental disabilities are detained in areas or camps known as “Ward 49” which harsh and subhuman conditions.

4-3 The third report (2007) In the third report, the Special Rapporteur analyzed the key concerns based on perspectives of sustenance, freedoms, asylum, vulnerability and responsibility.

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The sustenance involved rights pertaining to food, nutrition and related matters which in 2006, outside aid has been less than forthcoming, as a reaction to the missile and nuclear tests carried out by the DPRK. World Food Program was able to reach 29 countries out of the projected 50 and was able to cover only some 740,000 beneficiaries, having received only 12 percent of the required funding and expected available food stocks to be exhausted by the second quarter of 2007. The shortage of food will thus have a major impact on the needy population compounded by the decline of medical services and shortage of medicines, fertilizers and electricity.

Given the repressive nature of the State and the Government’s cult-based system, basic freedoms are markedly constrained, including rights pertaining to security of person, humane treatment and justice. There were still continuing reports of violence committed by State authorities against political dissidents and criminals as torture, public executions, substandard prison conditions, to name few. This has been confirmed by a number of interviews which the Special Rapporteur had with refugees whom he met during the year.

The rights pertaining to refugees/those seeking refuge constitute the center of asylum perspective which the Special Rapporteur paid attention to several points of increased concern as the issue of characterization and definition between refugee and illegal immigrant, along with their different protection, the strict control over migration of the DPRK both inside and border

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crossing. Several persons interviewed by the Special Rapporteur experienced with forced return and punishment inflicted at various degrees. There was also the issue of responses on the part of first asylum countries of which practices varied by country and geographical area, reflecting from the changing pattern of the arrivals. He addressed the issue of international burden-sharing to not only help first asylum countries in finding durable solutions but also exert effective influence on the DPRK to handle the root causes leading to outflows. He emphatically regretted that there is a “market value” attached to refugees, who were exploited in a “chain-enchained” manner: at every step of the way from the borders of the country of origin to the final destination country, there is a chain of elements that seek to exploit the needs of refugees and their “worth” in a manner tantamount to slavery.

In the perspective of vulnerability, the Special Rapporteur discussed rights concerning to specific groups which are women and children, especially with the rise in number of women seeking refuge whom could be subjected to human smuggling or trafficking. Main concerns for children included their access to food and the quality of education as a key instrument of indoctrination with children utilized for political ends.

New perspective introduced in this report was the responsibility and accountability of the State authorities to protect human rights and freedoms which during 2006, the Security Council and the General Assembly adopted resolutions on the DPRK, imposing a variety of sanctions on the country. The Special Rapporteur referred to a study by the Committee for Human Rights in North Korea which claimed that the misdeeds of the authorities were tantamount to crimes 296 MAINS Thesis, 2009

against humanity, fulfilling the conditions of intent and widespread or systematic attacks on the civilian population. He also mentioned another perspective linked with the individual criminal responsibility elaborated in the Rome Statute of the International Criminal Court.

4-4 The fourth report (2008) In this report, the Special Rapporteur examines the situations from numerous factors which are; human rights and the development process: the inequity factor; access to food and other necessities: the disparity factor; rights and freedoms: the insecurity factor; displacement and asylum: the (im)mobility factor; groups of special concern: the inequality factor; consequences of violence and violations: the impunity factor. The report states that the gap between the haves and have-nots is on the increase, as seen in the food situation and lack of distribution of resources and political power undermining the potential for human development. In other words, there is no genuine participation by the people, a key determinant of sustainable development advocated by the international community. There is also a great disparity between access by the elite to food and other necessities, and access by the rest of the population to such items which in 2008 seen more serious food shortage. The report cites from the External Auditor’s report on World Food Program in many aspects.

The insecurity factor is described in terms of public executions and harsh prison conditions, based on the Amnesty International Report 2008. The Special Rapporteur also mentions rigid control over those professing their religious beliefs and the abductions of foreign 297 MAINS Thesis, 2009

nationals, in particular the recent consultations between the DPRK and Japan in which the former committed to reinvestigate the cases.

The issues of displacement and asylum is on an increase with the report that the authorities were compelling various groups, including the elderly, to leave Pyongyang around the time of important events and an incipient stream of workers and migrants laborers travelled to special economic zone inside the country or across the border as part of bilateral arrangement on labor importation. In this front, the Special Rapporteur urged the DPRK to join ILO

conventions. The situation facing those seek refuge abroad remains precarious due to first, more restrictions were imposed, even “shoot on sight” policy; second, the promise of rewards (bounties) was offered by local authorities in an asylum country to help identify them; third, more severe punishment for those offering asylum across the border are threatened. The Special Rapporteur has emphasized that they should neither be prosecuted nor treated as illegal immigrants, but rather as asylum-seekers or refugees. He further raised the question of the status of children born in other countries to one or more parents from the DPRK, inviting response aimed at ensuring the child does not become stateless, and the question of family reunification.

The inequality factor focuses on women and children in related to falling victims of violence in the plight of survival crisis. The Special Rapporteur has talked directly with many women whom were sold into forced marriage in a neighboring country before moving on to seek refuge elsewhere. For children, he referred to most recent report submitted by the government of the DPRK to the Committee on CRC which was decidedly thin in regard to the special protection 298 MAINS Thesis, 2009

measures for children in difficulties, such as refugee children, children of political dissidents, children of minorities, abused or neglected.

For the impunity factor, the Special Rapporteur urged the national authorities and the international community to address the conditions which has enabled such violations to exist and/or persist for a long time. He commends few entry points to act on this in connection with different actors and scope, namely softer entry point to hold local officials more accountable at the national level; harder entry point to advocate for more accountability in the international setting, whether in terms of state responsibility or individual criminal responsibility, involving also civil society, or to examine whether other arrangements, regional, bilateral or mixed, may be possible to advocate a sense of responsibility to counter the impunity factor. He exemplified the engagement of the DPRK with the new Universal Periodic Review system under the Human Rights Council.

4-5 Recommendations The end of the Special Rapporteur’s reports comprised his recommendations proposed to the DRPK and international community which become more consolidated from the first to the latest one.

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For immediate measures to be taken by the DPRK, the Special Rapporteur urges the government to ensure effective provision of and access to food and other basic necessities, end the punishment of asylum-seekers returned, terminate public executions and other abuses, resolve the issue of foreigners abducted by the DPRK, and invite him to assess the human rights situation on the ground in the country so that concrete area of improvement can be advised.

For the progressive longer-term measures, he requests the DPRK to ensure a more equitable development process in the country, implement human rights under the treaty-based obligations effectively and comprehensively, and transfer resources from the militarization process to the social development sector. He also calls upon the DPRK to overcome disparities and build food security through sustainable agricultural development with broad-based people’s participation, to guarantee the security of person by modernizing national judicial system, reforming prisons and abiding by the rule of law, to adopt a clear policy not to punish those who leave the country while addressing the root causes of refugee outflows, criminalizing those who exploit them, instead of the victims, and acceding to related international treaties, to protect the vulnerable groups, as well as to seek technical assistance from the UN agencies.

The Special Rapporteur invites the international community to respect the rights of refugees, particularly the principle of non-refoulement, to emphasize more strongly the need for participatory, sustainable and equitable development in the DPRK highlighting strategies for food security “no access, no aid,” to maximize dialogue with the DPRK government to promote dispute resolution and enlarge space for human rights discourse and action, and to address the 300 MAINS Thesis, 2009

impunity factor through a variety of entry points whether in terms of State responsibility or individual criminal responsibility.

CHAPTER 5 Review of reports conducted by other agencies
Due to the fact that the DPRK is known as reclusive isolationist state where information or knowledge of internal current situations exists at best at minimal level and more or less under supervision of the regime, to provide any account concerning the DPRK is reliant a great deal upon the holders and presenters of information’s reputation and credentials, as well as their methods of access to sources and analysis. This chapter therefore will only portray some of selective reports regularly published by globally renowned human rights NGOs which are Human Rights Watch and Amnesty International, together with the annual country reports on human rights practices conducted by Bureau of Democracy, Human Rights and Labor, the U.S. Department of State and the annual White Paper on Human Rights in North Korea compiled by Korea Institute for National Unification. government agencies each. These will constitute 2 reports from NGOs and

Other reports from other organizations definitely contribute

significantly to the increased pool of resources and awareness in the field however they are, more or less, either based on thematic issue of human rights concerns or irregularly published.

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The core criteria and focus of this review will be placed on how these reports relate to and recognize those of the Special Rapporteur and his role, what the particular issues of concerns they raise and on what ground. It is beyond the scope of this chapter to examine particular reports in detail as well as to analyze the trends of these reports.

5-1 Human Rights Watch World Report 2008 Though Human Rights Watch (HRW), in April 2008 had issued a special report on the children of North Korean women in China: Denied Status Denied Education and in May 2006 a report particularly examined the North Korean Government’s Control of Food and the Risk of Hunger, HRW generally contributes around 5 pages for North Korea in its annual world report.

For 2008, HRW stands firm that the DPRK’s human rights conditions remain abysmal. The report mentions in particular issues of the right to food, North Koreans in China, refugees and asylum seekers outside China, treatment of suspects and prisoners, North Korean workers at Kaesong Industrial Complex and key international actors involved.

It is of no surprise that regarding the previous research on situations of food and background information pertinent to the plights of refugees and asylum seekers, HRW’s annual report places emphasis on those areas. Even under the section on treatment of suspects and 302 MAINS Thesis, 2009

prisoners, the report mainly addresses the penalties, torture and harsh treatment inflicted on illegal border crossers as criminal act of treason. It mentions routine inhuman and degrading treatment in detention facilities as lack of food and medicine leading to illness and sometimes death. Concerning issues of North Korean workers at Kaesong Industrial Complex, the report only criticizes against the structural arrangement of trade agreement between South Korean and the U.S. businesses overlooking the working conditions which fall short of international standards on freedom of association, the right to collective bargaining, sex discrimination and harassment, and harmful child labor.200

Under the section of key international actors, the report in short elaborates on recent development of nuclear disablement, the second inter-Korea summit, other recipient countries of North Korean workforce, issues of international abductions, and at last points that North Korea has not responded to repeated requests for dialogue from Vitit Muntarbhorn, the UN’s Special Rapporteur since 2004.201

5-2 Amnesty International Annual Report 2008 Amnesty International Annual Report normally sets aside approximately 3 pages to cover the DPRK. The report reaffirms that systemic violations of human rights continued, including capital punishment, torture, the political and arbitrary use of imprisonment. Though it mentions

200 201

Human Rights Watch World Report 2008, p. 303. Ibid.,

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situation of food shortfall, refugees and asylum-seekers, the report in more details describes the issues of enforced disappearances, freedom of expression, death penalty and prison conditions.

The report provides some descriptions relating to the cases of violations on the issues of enforced disappearances and death penalty. The first case is about Son Jong Nam who was arrested in January 2006 accused of treason from visiting his brother in China. Reportedly he had been at risk of imminent execution since his arrest and in a critical condition following torture by the National Security Agency (NSA). The second case is about the president of an export company in South Pyongan province who had been publicly executed under the charge of selling factory equipment to buy food for starving workers and hiding his membership of a grassroots anti-communist civil militia. It, nonetheless, has not stated how and where the information is received.202

The report censures as always for the restricted and denied access by independent human rights monitors in general and the UN Special Rapporteur on the human rights situation in the DPRK and the UN Special Rapporteur on the right to food in particular.

5-3 The U.S. Department of State’s Country Reports on Human Rights Practices The Annual Country Reports on Human Rights Practices of the Bureau of Democracy, Human Rights, and Labor under the U.S. Department of State dedicates 15 pages to cover the
202

Amnesty International Annual Report 2008

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DPRK situations and is composed of 6 sections: respect for the integrity of the persons, respect for civil liberties, respect for political rights, discrimination, societal abuses, and trafficking in persons, including women, children, persons with disabilities; and worker rights. Unlike many other reports related to the DPRK, this one does not mention the food crisis in particular but briefly states officials’ corruption and transparency in providing food ration.

In all sections, the report first outlines what rights, entitlements, freedom, and duties have been specified in the Constitution and related ordinance, and follows with counter reports. Similar with Amnesty International’s, this report surfaces the cases with the names of those who were violated, such as the account of Son Jong Nam among other defectors’ cases who are highly likely to face torture upon being repatriated back. The report does not specifically elaborate on where and how the interviews were conducted or the sources of information. It cites, oftentimes from a South Korean NGO or NGOs without providing specific organizations, except for Freedom House, Human Rights Watch and the Korea Institute for National Unification’s White Paper on Human Rights in North Korea. It also in many sections quotes the report of Special Rapporteur on the situation of human rights in the DPRK, even in more frequency than other reports.

In section relevant to governmental attitude towards international investigations, the report describes the government’s ignorance of requests for visits by international community, both NGOs and international experts, particularly mentioning that the government prevented the UN Special Rapporteur on the situation of human rights in the DPRK from visiting the country 305 MAINS Thesis, 2009

to carry out his mandate as well as rejected the offer of the Office of the High Commissioner on Human Rights to work with the government on human rights treaty implementation.

5-4 The Korea Institute for National Unification’s White Paper The White Paper on Human Rights in North Korea has been published by the Korea Institute for National Unification (KINU) annually in both Korean and English from 1996 bearing in mind the constraints in making assessment of the DPRK with limited access to objective information directly or monitor independently ongoing human rights violations, to conduct research on current situation or verify specific accounts. To supplement the shortage of sources, the White Paper draws from a variety of reliable materials including intensive and repeated personal interviews with new settlers (North Korean defectors in South Korea), questionnaires and surveys, reports of NGOs and international organizations, and interviews with experts and staff at various relief agencies. The White Paper hence is the most comprehensive research-based report of all.

For the 2008 White Paper, it is divided into 5 sections: human rights and the characteristics of the North Korean system, the reality of civil and political rights, the reality of economic, social, and cultural rights, the rights of minorities that are women and children, other human rights violations such as South Koreans abducted and detained in North Korea, the human rights of South Korean POWs held in North Korea, and human rights violations of North Korean

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escapees.203 Examining the structure of the White Paper, it can be assumed that this year paper’s core contents provides account in accordance with areas of international human rights obligations declared by the DPRK towards the treaties ratified. Though most information relied on previous White Papers, the interviews of new settlers and recent developments have been highlighted and added on in the current one.

As part of the section 1, human rights and the characteristics of the North Korean system, in sub-section 3, international human rights regime and North Korean human rights policies, the White Paper gives account of increasing pressure under the UN human rights regime on the DPRK to improve its human rights situations. It does not mention on any treaty obligations however displays the mechanisms under the UN Commission on Human Rights and General Assembly in issuing related resolutions and establishing the Special Rapporteur on the human rights situation of the DPRK. It further explains the DPRK’s official response and the ROK’s participation towards all these international initiatives as well as the DPRK’s reaction towards the ROK and the EU countries as the main advocate in international human rights stage.

5-5 Observations It should be indispensably noted that the restricted sphere to sources of information in the DRPK creates concerns for all parties in addressing, verifying and analyzing the human rights situations. The main sources are from accounts of those left the country and the international

203

The Korea Institute for National Unification, White Paper on Human Rights in North Korea, 2008.

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agencies residing inside. Consequently there is a high tendency that these reports published will not really surface any unique unheard story but likely to refer or quote from one another. All of them acknowledge the existence of the Special Rapporteur on the situations of human rights in the DPRK but only the White Paper of KINU that significantly refer to his substantial analysis as the “refugees sur place” and how to categorize or differentiate between refugees and illegal migrant workers considering the particular context of the DPRK. Although the U.S. Department of State’s Country Report did cite certain description from the Special Rapporteur’s reports, it only brings the cases of incidents but not his analysis based on international legal human rights terms. At the same time, the Special Rapporteur uses the accounts of all these reports, except the U.S. Department of State as a springboard for crosschecking his information and furthering human rights violation investigation and analysis.

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CHAPTER 6 Conclusion
This research bases its foundation upon the development of the present international human rights architect under the UN with the genuine supposition in the existence of universal human rights for all and reviews its established mechanisms through the lens of human rights issues of the DPRK focusing on Special Procedures under the UN Charter-based bodies which is the Special Rapporteur on the human rights situation of the DPRK.

In order to understand the Special Procedures, the research first provides insight into the formal structures of human rights implementation under the treaties-based mechanism. For the DPRK, it is the party to 4 core human rights instruments, namely the ICCPR, ICESCR, CRC and CEDAW. As a result, it is abided by monitoring mechanism of each treaty’s corresponding Committees to submit its periodic reports on the compliance and implementation. Though the DPRK has not followed the reports’ due date and taken the Committees’ observations into practice seriously, at least this can be considered as channel of human rights engagement with such an isolationist state. In this sense, Linda Camp Keith would assert that the treaty’s implementation mechanisms are too weak and rely too much upon the goodwill of the party state to effect observable change in actual behavior. Keith’s assertion, together with Oona

Hathaway’s integrated theory of international law concurs that suppressive state commits to the international human rights laws which possess weak enforcement mechanisms with the calculation of this condition in mind aiming for the collateral consequences it would gain from

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doing so. This reveals many loopholes in enforcing compliance of the proclaimed commitment to the universal human rights standards, especially in states of which domestic rule of law institutions are also weak, the existence of NGOs and civil society are limited or absent, the media and democratic pluralism are highly restricted.

The research moves on to another mechanism of international human rights regime, socalled Special Procedures which are the Charter-based bodies under the Human Rights Council describing in details its origin, methods of functions and transformations to date. It was operating under the former Commission on Human Rights in which only the 53 members of the Commission could play role and set human rights agenda or criticize other states’ human rights practices. The structure of Commission was claimed by many critics to abuse global human rights aspirations to serve own national interests. In the midst of relentless call for the reform of the international human rights regime, the Commission stood at the center of this resolve. Several new initiatives and reorganization were introduced to the Commission-replaced Human Rights Council however throughout its review period the Special Procedures were hailed as the only efficacious machinery to address and respond to human rights encroachments in an objectively constructive manner. The mechanism was strengthened and consolidated even more vigorously in the era of Human Right Council.

Even though many critics and human rights advocates have given high credibility to the work of Special Procedures, the establishment and appointment of the mandates, in most cases the country-specific mandates, have faced with opposition from the imposed countries under the 310 MAINS Thesis, 2009

claim of political manipulation. This argument is exactly happening in the circumstance of the establishment of Special Rapporteur on the situations of human rights in the DPRK. As earlier explained, within the treaty-based bodies, the voluntary aspect of self-reporting constitutes the main monitoring structure which oftentimes proves to be flawed and inefficient, particularly in the DPRK’s case which lacks numerous strands to facilitate the access of human rights monitoring and implementation. Nonetheless, these have not simply posited the authentic trigger to appoint the Special Rapporteur in 2004. The research puts forward that, where all conditions remain the same, the establishment of Special Rapporteur coincided with and responded to the harsher rhetoric at the peak of global war on terrorism which the DPRK was enlisted as one axis of evil. The heightened attention has been directed towards the DPRK not only in regards of its threat to global security but also the specification of its regime in oppressing own subjects as evil. This increasing scale of alert with underlying alliance between the U.S. and EU countries prompted the latter to take a lead in sponsoring the appointment of Special Rapporteur.

This rejection of Special Procedures by the government of DPRK founded on the claim of politicization is nowhere unfamiliar to all parties concerned, and most importantly to the Special Rapporteur himself. During presenting a keynote speech at the 5 th International

Symposium on North Korean Human Rights: International Perspectives and Challenges Concerning North Korean Human Rights, Vitit Muntarbhorn clearly ascertained, regardless of whatever ramifications establishing his mandate, of the integrity to fulfill the duties for the sake of universal human rights and to verify to the utmost the pluralistic sources of information and crosschecking. All these have been profoundly reflected in his annual reports for the past 4 years

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in which he applies his expertise in legal human rights norms and standards to analyze the human rights situation of North Koreans both within and itinerant across neighboring countries. The main challenge he faces is the objection and unwelcoming position of the DPRK causing in the absence of cooperation and recognition towards his role and contribution which in turns obstructs the access and examination of the situations first hand, the significant feature of Special Procedures. Certainly there are many other difficulties to encourage the involved actors to facilitate and follow the recommendations with the realization or even awareness of North Koreans’ human rights.

The research also observes the volatility of his position in which resolutions establishing and renewing the mandate create its existence as well as outline of working space. As having noticed above, the human rights agenda emerges at times of alert in global security threat of the DPRK regime, accordingly it could assume that when the engagement with the DPRK would change or reverse to a softer gesture, the human rights advocacy could possibly be toned down and the mandate may be extinguished, though not in the foreseeable future, especially with the current severe relations of the DPRK and other nations.

Hence, still it is indispensable for those proponents of human rights and human dignity to always make the concerns on human rights situation of North Koreans louder than political rhetoric. The diplomatic or softer relations with the DPRK regime in the future cannot and will not be placed as the primacy over human rights. In other words, human rights advocacy cannot

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be used as inferior factor which can be ignored or raised whenever the surrounding circumstances are shifted.

Although the Special Rapporteur’s contribution has been recognized by a number of human rights NGOs and agencies, there are still gaps to be filled in terms of applying his substantial analysis or technical assistance and maximizing the mechanism in a more proactive way bearing in mind that their reference to the Special Rapporteur would expose him to diverse cases, uplift his leverage in addressing human rights situations, and make known to the international community that the mandate’s existence will weigh on issues of human rights, not political rhetoric subjecting decisions and resolutions of Human Rights Council accountable, as well as advocate for the standardization or minimum criteria in terminating the position.

This research, needless to say, will contain manifold limitations and challenges. Essentially and most importantly of all is the fact that this research bases its framework on sheer universal legal human rights perspectives as the only tool to address the human right situations of the DPRK which though it is probably the most objectively accepted and concrete mechanisms, the research overlooks and takes numerous other arguments and machinery to address human rights for granted, political aspects, moral and philosophical implication of rights, cultural relativisms, to name just few. It is worthwhile to always note that the application of a single method to realize human rights will never bear fruit. The promotion and protection of human rights must involve as many combinations of strategies and mechanisms as possible, for instance the encouragement for benign economic development, democratically healthy and participatory 313 MAINS Thesis, 2009

administration, etc. Moreover, it overlooks the theoretically underneath implications of state’s behavior and political justifications. The future research can deepen this study also more on the ground examining as to which degree the Special Procedures has created human rights impact.

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Legal Status of Women and Their Rights in Nepal; Before and After 1990

Thesis submitted by: Sachit Lochan Jha

Thesis Submitted for an MA Degree Graduate School of NGO Studies, SungKongHoe University February 2009
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Sachit Lochan Jha MA in Inter-Asia NGO Studies (MAINS) Graduate School of NGO Studies, SungKongHoe University

Legal Status of Women and Their Rights in Nepal; Before and After 1990

Supervisor Professor Dr. CHO Hee-Youn Examiners Professor Dr. CHO Hyo-Je Professor Dr. HUR Song Woo

May 2009 This is a research (an investigative) Thesis
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Table of Contents
Chapter I Introduction 1. Research Background 2.Problematising Women’s Rights in Nepal 3. Research Aims 4. Research Methodology Chapter II Global debate on Women and Development: Framework for Analysis

1. Women as Agents of Development 2. Nepal’s Development and Women’s Position as a Policy Agenda Chapter III Legal Status of Women in Nepal Before 1990

1. Historical Background of Nepalese Legal system 2. Historical Account of Nepalese Legal System and Women’s Position

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3. Legal status of women in Nepal Before 1990 3.1. Legal Status of women During the Rana period 3.2. Legal Status of Women from 1950 to 1960 3.3. Legal Status of Women from 1960 to 1990 3.3.1. Status of women in Constitution of Nepal 1963 3.3.2. Women’s Rights in General Law (Muluki Ain) 3.3.2.1. Women’s Rights on the Property 3.3.2.2. Rights on the Inheritance and Succession of the Family Property 3.3.2.3. Rights of Marriage and Family Relations 3.3.2.4. Rights of Woman’s Own Body Chapter IV Legal Status of Women in Nepal After 1990

1. Women’s Movement for Property Rights in Nepal After 1990

2. Achievement of 11th Amendment of Muluki Ain and Current Legal Status
of Women

2.1. Women's Right to Property

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2.2. Rights on the Inheritance and Succession of the Family Property 2.3. Rights of Marriage and Family Relations 2.4. Women's Right to Abortion 2.5. Sexual Offence against Women 3. Changes in Government System after 1990 3.1. Status of Women in Current Interim Constitution of Nepal 2006 Chapter V 1. Conclusion

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ACKNOWLEDGEMENT

I would like to thank Dr. CHO Hee Youn, for contributing much time, enthusiasm, and insight to this thesis. His advice and words of encouragement throughout the course of the study were invaluable in making this thesis a possibility. I have benefited much from working under his guidance. Dr. HUR Song Woo also provided me suggestions and comments with substantial reading materials especial on Global Women’s Movement, for which I am greatly indebted.

I would also like to acknowledge all the friends of MAINS 2008, administrative staffs, Professors, especially DR. JEONG Jin Young and Professor AHMAD Mohiuddin whose encoraugement, trust and friendship inspired me greatly through the course of my studies. My deepest appreciation goes to the SongKongHoe University, Hyundai KIA Motors, and 5.18 Memorial Foundation for providing me the scholarship. With out their support it was not possible to finish my study. Their understanding and kindness will always be cherished.

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Chapter I Introduction 1. Research background

Universally, man and women make society. Biologically man and women are different for the natural purpose but in action, they are one. Therefore, male and female could not be an alternative to each other. In individual basis, they are not able for the creation of human being separately it is because they are integral part of each other by nature. Therefore, creation of human being and continuation of the society is impossible in the absence of anyone of them. In this sense for the existence and continuation of society, value of man and women is same or in other words, male and female have equal importance. However, in reality, they do not have equal status and there is no equal position and participation in society.

Equality is the most important thing for all human beings to live dignified life in society. It also contributes a lot for development of the society. It not only encompasses equality in opportunity but also includes strategies to create opportunities for equal enjoyments of rights. Equality to all is one of the basic norms adopted to protect human rights, human dignity, and fundamental freedoms. Its acceptance in democratic society has been instrumental in developing various approaches that lead to conceptualizing equality in legal systems. However, the concept of equality is still perceived differently by different people, because of the circumstances and forms that they are exposed to. Therefore, equality and equal enjoyments of rights are possible only with having equal laws. It can be achieved by

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making special provisions for the advancement of special groups who were marginalized in society, like women, who are in disadvantaged position.

In Nepal, the population of women and man is almost equal but the situation of women in reality is not equal. Women in Nepal have been discriminated because of sex for centuries due to their biological as well as culturally based gender role in society. Whole social norms and values and social institution are deeply based on Hindu philosophy Males are favored from birth due to their ritual role in Hindu religion, and economically they can and will provide security for their parents in old age. Females are supposed to follow their husband, father, or son and by birth, females are considered as a borrowed property, which the parents should return to their owner, by marriage. These kinds of ideas create situations for female to have less access to education, employment, income, health care and so on than males. Such discriminatory situation leads them towards subordinate status in the society.

In the modern states, gender equality normally provided by law. Nepal also started to govern the society by written constitution with the principle of rule of law from 1958. From that day until today, Nepal experienced and practiced around five constitutions. In 1990 when the country reestablished multiparty democratic system, the constitution, which not only guaranteed right to equality and non-discrimination based on sex, has also made provisions that the state can take special measures for the advancement of women. Therefore, some civil society organizations and international communities have pursued government to eliminate the discriminative laws against women. In some sense, it was quite successful.

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However, due to the patriarchal social norms and values, rigidly following of social system and role as defined by religion is still acceptable in Nepalese society, which creates discrimination against women. In addition, unequal opportunities for them to develop their capacities are in existence. Therefore, it still needs to be studied to identify and understand the status of women and their rights in Nepalese society to understand the development and democratization of the country.

2. Problematising Women’s Rights in Nepal

In 1950, Nepalese society adopted the democratic system of government by popular movement called ‘movement for democracy’. New type of government system was introduced; social, cultural civil, political, and economical rights of people were guaranteed by the constitution. According to the law, everyone was considered as equals to each other and the journey towards modernization and the development was started. However, the women were left behind in this journey because of traditional values, which were existed in the society at that time. Later, in 1960, the global women’s movement and UN development policies influenced the Nepalese government system to think about women’s issues. Hence, the policies for the betterment of women’s rights were started to be incorporated, and special attention was given to modify women’s legal status and their rights. Therefore, this study mainly deals with the following questions. I) The contemporary feminist ideology and gender movement which started in the west, influenced upon women movement in Nepal. What are the achievements of those movement in Nepal?

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II) III)

How is the legal status of women in Nepalese society before and after 1990? As a member of international community, Nepal has ratified various international covenants including CEDAW convention, which also emphasizes government to take temporary special measures to achieve equality for women in all sectors. What are the initiatives taken by the Nepalese government and legislation to fulfill the obligation for improving the status of women?

3. Research aims

This study focuses on the legal development in Nepal to understand and analyzed the women’s legal rights in Nepalese society; I consider existed traditional religious social values and the changes. This will help us to understand the difficulties for implementation of the women’s rights in practice. Therefore as a research aim this research has two purposes. First is to figure out the changes in the legal status of women in Nepalese society, which was started after 1950 .Second is to find out what kind of difficulties were faced by Nepalese women to make change in their legal status by system and society.

4. Research methodology

In this research doctrinal method shall be applied. Both Primary and secondary sources shall be used as per required. Information would be collected from books, articles, seminar papers, research reports and

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from the international conventions, past and existing constitution of Nepal , and other existing laws as well. In analyzing the data, comparative and analytical approach will be applied to identify differences and similarity between women’s legal status and their rights in different periods.

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Chapter II

Global debate on Women and Development: Framework for Analysis

After the world war, as the United Nations was established, from the very beginning of its formation, women’s advancement and development became a major concerning agenda. Therefore, the Commission on the Status of Women (CSW) was established in 1946 to create guidelines and formulated actions to improve the situation of women in the economic, social, cultural, and educational fields.204During that period, UN’s concern towards women was more protective rather than status oriented. UN called on governments to abolish discrimination against women, which were already declared in the principle of UN charter 1945.

In the 1960s, the issues of women's movement in the West were mainly concentrated on their reproductive rights (abortion, contraception, and parenting), violence against women, sex discrimination, and freedom from the sexual domination. Therefore, women also started to criticize the UN's protective approach to women at that time.

204

http://www.un.org/womenwatch/daw/CSW60YRS/CSWbriefhistory.pdf

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1.Women as Agents of Development In 1970, the book ‘Women’s Role in Economic Development’ by Ester Boserup, was published. It was an extensive research work about the role that women played on economics that was carried out in various developing countries of Asia, Latin America, and Africa. Her work shows that how women’s work contributed in national economy and how the women were ignored to be recognized as development agents. She pointed out and argued that western development theorists assume Third World women to be housewives rather than development agents. This resulted in Third World women being marginalized from the development arena. Her insight brought a completely new perspective on concerns for women within the development arena. Therefore, a body of theory called Women in Development (WID) emerged.205 The WID perspective helps to carried out change in UN’s approach for women from protectionoriented approach to status-oriented approach. The realization of women’s marginalization by UN resulted as the declaration of ‘International Women’s Year’ for 1975 and 1976-1985 as a ‘Decade for Women.’ The WID approach focuses on the women’s productive role rather than reproductive role. The main argument for women’s concern was based on the assumption that women were always marginalized from the development arena. Therefore, the issues about their heavy work burden, low productivity, and low efficiency were raised. As a result, various policies were formulated to enhance their productivity and efficiency. Various programmes were lunched to enhance women’s capacity emphasizing on improvement of their conditions, especially in the field of education, health, technological access and development. Later the women movement started to move towards equity approach.

205

Chandra Bhadra, Gender and Development: Global debate on Nepal’s Development Agenda

(Research Note) 2001.

327 MAINS Thesis, 2009

During the late 1970s, many feminists challenged the term ‘Women in development’ they argued that the term gave a false meaning, if women were outside of the society, then they need to be integrated. It should be ‘development for women’ rather than ‘women for development.’ Therefore, the movement was that time for women and development and the question of that movement was integration.206

Neo-Marxist and Socialist feminist argued that only providing education, training and health services will not bring any substancial change. Women were exploited by their unpaid labor which deprived them from productive resources, therefore, there was a need to change in overall structure. Hence, they demanded the need for structural adjustment from patriarchal to equitable for both men and women. As a result, policies were developed with Women and Development advocacy. Importance was given to equal participation of women in development and various programmes were developed on focusing women’s access to credit and employment. Therefore, the emphasis was to not only improve women’s condition but also on changing their position from lower to equal as man.207

The women’s movement of 1960s, which started in the west, became global and spread widely through dialogue and debates during 1980s. The movement carried out various world conferences on women that contributed to women all over the world. The first conference was held in Mexico City in 1975 and the second was in Copenhagen in 1980.In those conferences, dialogue between the women
206 207

Ibid Ibid

328 MAINS Thesis, 2009

from First World and Third world was not smooth as it could be because the issue of North- South came out as an argument for debate. Southern women argued that not all women shared an identical interest. The interest of the women from the First World may be equality, but for women from Third World it was development and may peace for the women for Second World. Only during the Third World Conference at Nairobi in 1985 bought the common ground between the women from all three worlds. The comprising ground was that women’s category varied according to their political and the economic context therefore women are not homogeneous. 208

The decade of 1976-1985 and the world conferences on women provided sufficient platforms for everyone to debate and dialogue concerning women’s issue. It became global movement, which bought gender as a central theoretical thinking arguing that to bring women into the core of development, the existing gender relation need to be reexamined. Therefore, the gender prespactive in development started and as a background, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was tabled in United Nations in 1981 which was ratified subsequently by numbers of countries. The advocacy for gender equity and equality took place gradually. After the identification of common ground for movement in 1980s; the Rio Earth Summit of 1992 put forward the relationship of women with the environment and their role in sustainable development. The third world conference, that was held in Vinenne in 1993, recognised women's right as human rights and led to use of women’s rights framework to reach sustainable development. In 1994 women’s empowerment and reproductive health as well reproductive rights were placed in center of development policies through international conference on population and development in Cairo. Copenhagen Social Summit came as a key to eliminate poverty and improve social development with gender equality. Later in 1995, The Beijing Conferanec recognised 12 critical areas
208

Ibid

329 MAINS Thesis, 2009

of concern and identified women's human rights, violence against women and women in armed conflict also as areas of development concern. Issues about girl child became special category of women during that conference.

After that to implement the Beijing Platform for action, “mainstreaming gender concern in all development endeavors was recognized as the strategic imperative, which got reinforced in the Beijing +5 Outcome Document. There was a shift in development programmes from ‘women specific programmes’ to ‘gender responsive/sensitive programmes’. The sensitization and agency of men for women's concern was also perceived. Affirmative actions and positive discrimination in favor of women for equity and equality were articulated. With the advent of the democratic movement into the world politics, the emphasis on promoting women's ‘self determination’ through their political empowerment was strongly recommended”209.

2. Nepal’s Development and Women’s Position as a Policy Agenda

In early 1950s, the first democratic political system was introduced in Nepal and within that time, Nepal became a member of United Nations. Nepal started to look forward for economic development through planned development and the First Five Year Plan was foumulated in 1956. This Plan started with the aim of modernizing Nepal with giving important emphasis on infrastructure building for industrial development. Women were considered as beneficeries of development and area of concern

209

Ibid

330 MAINS Thesis, 2009

about women at that time was only their reproductive role. After formulation of first five years economic development plan in Nepal, under the Ministry of Panchayat, women traning centers was established and various women centered trainings were conducted. The tranings were especially related with household sector, such as childcare, family plaining, nutrition, poultry rising, knitting and sewing etc.210 In 1975 when UN decleared the International Women’s year, Nepal Participated very actievely and made changes in Muluki Ain (National Common Code) especially those clauses which concerned women. The Panchayat development committee decided to established Women’s Services Coordination Committee (WSCC) under Social Service National Coordination Concil(SSNCC) with the objective of expanding development and welfare activities for women.in 1977.211

In 1979, the research study ‘The status of Women’ Conducted by Center for Economic Development and Administration (CEDA) at Tribhuwan University with the support of USAID for the first time. This documentation impelled the development planners and policy makers to recognize the productive role of women in economic development. The findings and recommendations of the Status of Women study and national and international advocacy and concerns for women’s issues were instrumental in creating a separate chapter on WID policy for the first time in the Sixth Five Year Plan (1980-1985). Subsequently, the Seventh Five Year Plan (1986 – 1990) and the Eighth Five Year Plan (1991 – 1995) further expanded the WID policies.

The Sixth Five Year Plan identified that women can contribute to national development if their efficiency enhanced. Hence, the Sixth Five Year Plan policy emphasized increasing efficiency of

210

Bina pradhan, The Status of Women in Nepal: Institutions Concerning Women in Nepal, CEDA Ibid p.38 and Chandra Bhadra, 2001.

Kathmandu 1979, p 37.
211

331 MAINS Thesis, 2009

women.212 That may be the reason that the Seventh Five Year Plan was even more emphasized on active and equal participation of women to increase their efficiency and productivity. It, therefore, approved the National Plan of Action for Women Development in Nepal, formulated by Women’s Services Coordination Committee (WSCC) in 1982, and assured women of decision/policy making power.

The Democratic Movenment of 1990 brought clear change in WID and its concerns.The democratic political atmosphere started to provide opportunities for Nepalese women to express their own consciousness. Many The democratic constutition of 1990 tried to provide Nepalese women the right to equality with men. The ratification of the CEDAW without reservation was the primefacie in this regard. At the government level, WID Chapter in the Eight Five Year Plan (1992-1997) stressed on the Mainstreaming Policy. This resulted in the establishment of WID units and other WID functionaries in various ministries and the National Planning Commission it self. Women Farmers’ Development Division was established at the Ministry of Agriculture in 1992.In 1993, Child and Women Development Section was established at the National Planning Commission; Women Education Unit was established at the Ministry of Education; and the WID cell was established at Water and Energy Commission Secretariat in the Ministry of Water Resources. The National Council for Women and Child Development was eastablished at the National Planning Commission in 1995.

Along with these changes, Nepal participated in the Fourth World Conference on Women in Beijing, China in 1995. Marking the occasion, a large group of women from Nepal participated in the NGO Forum at Huariou City of China, which provided an opportunity to these Nepalese women to build up networking globally and strengthen women's advocacy within Nepal. The Ministry of Women
212

National Planning Commission documents, 1980

332 MAINS Thesis, 2009

(and Social Welfare) was established in 1995 immediately after Beijing Conference,. Soon after its establishment, the Ministry declared its policy as ‘Gender Equality and Women's Empowerment’ and became active in programme formulation and implementation, drafting of bills and sensitization/awareness creation activities that were to lead towards gender equality and women's empowerment. The drafting of Women's Equality Bill in 1996 and forwarding it to the Ministry of Law and Justice (which took almost six years to pass through parliament) that the Ministry performed was one of the major activities in Women Development area. In the same year, the Ministry organized a ‘National Women's Convention’ participated by more than five hundred women representing all 75 districts of Nepal. The Ministry also formulated the ‘Gender Equality and the Empowerment of Women: National Plan of Action (NPA)’ to operationalize the Beijing Platform of Action in 1996. The Ninth Five-Year Plan (1997-2002) made its commitment to women by stipulating its working policies as mainstreaming, gender equality, and women's empowerment.

Not for long by then, WID was incorporated as one of the papers in Home Science, Masters' Degree curriculum at Tribhuvan University in 1990 and the Post-Graduate Diploma in 1996. Similarly, many NGOs and private (consulting) companies became active in research and training programmes in gender and development. This way, the academic exercises are also continuing to contribute to gender and development understanding and practice.

333 MAINS Thesis, 2009

Chapter III

Legal Status of Women in Nepal Before 1990

1. Historical Background of Nepalese Legal system

Every society has its own rules, regulations, tradition, and customs and all are different with one another. Societies develop theses kind of social rules, customs, and tradition to maintain the continuation and regulate society smoothly according to their beliefs. Gradually, coping with the changing time and development, societies change those beliefs, norms, and values into their law and legal systems. Therefore, we can say that the law or the legal system is a kind of mirror of society, which reflects almost all faces and determines right and duty of the every including member. Thus, before tracing the legal status of women in Nepalese society, it is better to have an overview on the development of legal system in Nepal and position of women in the system. This will help us to understand the social norms and beliefs, which shaped Nepalese law and decided rights and duties of the every member living inside.

2. Historical Account of Nepalese Legal System and Women’s Position

Nepal was ruled by various dynasties that followed the Hinduism from the very long time. The rulers applied the customary rules and traditions according to the religion as laws to govern the country. Those laws were interpreted and enforced to govern the social matter with the help of a range of holy texts of

334 MAINS Thesis, 2009

Hindu religion, like Vedas, Purans, Narada Smiriti, Yagyvalakye Smiriti, Manu Smiriti and so on. The Hinduization of Nepal and law according to Hinduism began from the 4th century A.D. when Lichhavi Dynasty replaced the non-Hindu rulers known as Kirats. During Lichhavi rulers' period, they introduced the Hindu Verna system and consolidated; the system which categorized the peoples according to their work into caste system. The hinduization of law gained momentum during the Malla Period.213

The early Malla rule started with an Ari Malla in the 12th century replacing the Lichhavis. In late 14th century, King Jayasthiti Malla, who was known in the Nepalese history as one of the great reformists; introduced the code called Manab Nnaya Sastra. (Code of Human Justice) That code was a complete codification of substantial and procedural rules for the time. The code was a set of numbers of custom and ethical principals that were followed by Nepalese society from long time based on Hindu religious philosophy. For example, that code strictly prohibited inter-caste marriage. If a man married women from higher caste, either he will condemned to death or had his penis cut off and if a man married women from lower caste neither his family nor his society accepted that man and the children born from that relation were considered as lower caste.214 Another feature of the code was that it totally denied the independent existence of women. They were put under the guardianship of father when they were child, under husband when they were adult and under the son when they were in old age. This is one example of creating dependency of women, and it always connected her existence with a man that was the teaching of Hindu religious text called Manu Smiriti.

213

Brief Historical Overview of Legal and Justice system of Nepal in Analysis and Reforms of Criminal
Ibid ;p.19

Justice System in Nepal , CeLRRd,1999,Kathmandu , p.13-30
214

335 MAINS Thesis, 2009

As the society was shaped with divisions and hierarchy, the people from Bramhin and Chettri casts were considered more superior than other castes. They enjoyed more privileges than any other casts and were punished less than others for the same offences. However, the position of women was always lower than a man with whom she was, and generally, her independence was not recognized at all. Her social status and personality was still connected with her husband. Many of women’s rights were directly connected with their fertility, for example, woman having a boy child had more privilege over the property than women having a girl child did. Therefore, women and lower caste people were thought to be inferior and gradually that feeling of inferiority and subordination changed into untouchability. Gradually, these so-called upper-classes became ruling elites. They protected their domination and ruling power with the help of institution of feudalism.215Until that time, the modern Nepal was divided into many small principalities, only Kathmandu valley was known as Nepal.

In 1769, Prithvi Narayan Shah, a King from Gorkha Principalities, around 100 Km far from Kathmandu Valley, started to unify the all small feudal kingdoms of that time into one big nation. Therefore the Modern History of Nepal starts from that very time on the long overall Nepalese history. After the unification, the king and his successors ruled the country with the continuation of Hindu legal system that was existed beforehand. Later in 1846, his successors failed to maintain their control over the rule and other ruling elites known as the Ranas controlled the state powers and ruled Nepal in their names allowing them a little or no power at all. This oligarchy lasted till second half of 20th century. Meanwhile, in 1853, the prime minister Jang Bahadur Rana promulgated the first codified law entiled ‘Muluki Ain’(Country code which is also known as a Common law) in Nepal after his visit to Europe.
215

Yubaraj Sangroula and Geeta Pathak; Gender and Laws Nepalese Perspective ; Pairavi

Prakashan ,Kathmandu 2002,p.8-9

336 MAINS Thesis, 2009

Before promulgation of ‘Muluki Ain’ in 1853, the Nepalese legal system was governed by the Hindu philosophy, which is based on Sruitis, Smritis, Vedasa and Puranas which had been conducted as the source of law in the administration of law and justice.216 However, Muluki Ain of 1853 was the first codified law and, was developed at that time with the help of religious priests and learned persons of Sanskrit. Therefore the nature of that law was neither a secular one nor the free one of the Malla period. Moreover, it not only looked like the collection of religious rules but also became the law of land for all the sectors of society. But the most important feature was that it was written in Nepali language not in Sanskrit language. Therefore that Muluki Ain consolidated all social values which were developed as social ills in the previous eras. However, as a common law, that country code was continued until 1963. Therefore to conclude, Nepalese legal system was till then completely shaped according to Hindu religion and there was not visible difference in women’s position in the society. It was only after 195051; Nepal started to govern itself by a written modern constitution. That is why the modern legal history of Nepal in practical, was started only from 1950.

3. Legal Status of Women in Nepal Before 1990

In 1950, the autocratic Rana rule was overthrown by a popular movement and then the New Muluki Ain was formed in 1963. This code was relatively better but daughters were again denied recognition as sons. The New Muluki Ain still exits in the Nepalese society as a general law. It has been amended many times. After the women’s year 1975, the sixth amendment on New Muluki Ain in 1976, brought a little

216

Bishal Khanal, Regeneration of Nepalese Law, Brikuti Academic Publication; Kathmandu ,2000,p.11-

12

337 MAINS Thesis, 2009

improvement regarding women’s property rights and some other women’s issues. For example, before this amendment, under the partition provision even 35 years old unmarried daughters were not entitled to have an equal share of parental property as their brothers. Likewise, the New Muluki Ain has defined women’s exclusive property given by parents and in-laws’ relatives as “Daijo and Pewa” respectively.

Provisions of New Mulluki Ain are applicable merely as common law, and as such cannot overrule the application of a specific statuette promulgated in matters of family property, succession, adoption, incest and other matrimonial relations because there are very few specific acts relating to the protection of women. They are not enough to make balance between men and women. In addition, the provisions of constitutions itself creates difficulties to maintain gender balance. Therefore, in Nepal, state policies themselves have some confusions about giving equal rights to women in the changing situation. To understand this, it is better to have a brief look on Nepalese political history and political changes, which shaped the Nepalese society and legal system.

Major Political changes in Nepal

Periods Before Rana Rana Period

Date 1769-1846 1846-1950

Legal System Based on Hindu religious books and rulers decision Muluki Ain ( Written Law) based mostly on Hinduism Constitution, Muluki Ain

Pre –Panchayat Period

1950-1962

Panchayat Period

1963-1990

Constitution, Muluki Ain

Impact Foundation of a hindu kingdom Consolidation of hindu law in the society Emergence of western ideas in hindu society. Conflict between traditional and modern system in the society.

338 MAINS Thesis, 2009

Democratic period

1990-till date

Constitution, Muluki specific laws

Ain, other

Achievement of completely democratic form of government system.

In 1947, the Rana regime had promulgated a law called” Nepal Sarkar Baidhanik Kanoon 1947. However, the law was most favorable only to Ranas, there were few good provisions about fundamental rights like free education and equality before law. But Ranas didn’t practice and follow these norms.

After having democracy, the Interim Constitution was promulgated in 1951 which was committed to the gender equality and also held directive principles favorable to women and children.

The first constitution of the Kingdom of Nepal was promulgated in 1958. Although, the constitution guaranteed the equal protection of the citizens, discriminatory provisions continued to exit in the Muluki Ain. In 1962, that is, two years later the introduction of the partyless Panchayat System, a new constitution–“Constitution of Nepal” was promulgated. It had also guaranteed the rights to equality for all citizens irrespective of their sex, race, caste, tribe, or any of them. Again, the New Muluki Ain, like the previous one, could not bring any significant changes in the position of women.

The popular movement of 1990 restored democracy again; and after the promulgation of “The Constitution of the Kingdom of Nepal, 1990”, replaced the previous "Constitution of Nepal".

339 MAINS Thesis, 2009

In the beginning there were no changes regarding women’s rights, everything remained same including the discriminatory provisions of earlier Muluki Ains. But, in 1993 some women activist and NGOs started to raise their voices for equal rights especially in terms of property rights. That was successful to bring some positive impacts on women’s rights but still many discriminations remained in the system.

In Nepalese history, generally these kinds of changes and reforms are found as a part of economic development strategies. This is another factor, which stops the voice of women for long time in Nepal. Like in other countries, Nepal also started its development with following the planned development. All the issues related to the social reforms are included in the development plans. Women’s issues and problems are also tried to address as a part of development issues. Followings are the some examples that the state did in the past to promote standards of Nepalese women.

Development Plans on Women (1980/81-1995/96)
The Sixth Five Year Plan(1980/811984/85) 1. Attempt to involve women directly in agricultural training because overwhelming majority of women were involved in agriculture. 2. To encourage women in cottage and small industrial activities by providing them training, capital and marketing facilities because of extensive unemployment during agricultural off seasons and carry out programs to raise women is income opportunities and status. The Seventh Five Year Plan (1985-1989/90) 1. To enable women to participate activity in the development process by providing appropriate opportunities, to foster self reliance among women by increasing their productive capacity and to raise their social and economic status by this all round development. 2. There will be additional programs in agriculture for women in the field of agricultural extension. Quotas will be fixed in various training programs. 1. The Government is committed to equal and meaningful participation of women in development process. 2. Programs designed to enhance women’s participation will be included in economic and social sectors (agriculture, forestry, industry, health & education) 3. Policies will also be enunciated to raise employment opportunities for women in these areas. 4. Credit, technical known-how The Eighth Five Year (1992/93-1996/97)

340 MAINS Thesis, 2009

3. To involve women in population control activities so as to increase efficiency of population programs. 4. To increase the role of women in formal and informal education as also trainings on health and nutrition education. 5. To provide increased employment opportunities to educated women so as to make better use of their knowledge and skill. 6. To reform laws and regulations which inhibit women’s participation in development (HMG, 1981)

3. Training on basic health needs and maternal and child care programs will be conducted. 4. Literacy among women will be increased in the education sector quotas and special incentives will be used to increase female participation in education and various training Programs . 5. More emphasis will be given to development of cottage industries for providing work for women during the offagricultural seasons. Special provision will be made for women in the provision of training facilities, credit and other resources. Marketing facilities will also be developed. 6. Women will be encouraged to get involved in forest protection and preservation. 7. Facilities will be provided for participation in government and non-government organizations. 8. Nepal women’s Organization will be facilitated to conduct development activities for women. 9. Legal reforms will be effected move provisions hindering women’s participation in national development

entrepreneurship training & Market services will be extended. 5. Policies will be adopted to encourage the appointment of women the government, & nongovernment sectors and to provide them opportunities for career development. 6. Laws and by laws which hinder the development of women will be reformed. 7. Information on gender discrimination at work will be monitored and documented. 8. A suitable organizational structure will be formed for coordination and monitoring activities relating to women.

Source: Respective Five-Year Plans .c.f.

The above figure also tries to illustrate that the legal status of women started to change after only the Eighth Five Year Plan. Actually, it was not the question of only law but also the question of overall development. Countries like Nepal, which was following the path of modernization, have to think about

341 MAINS Thesis, 2009

how to manage the existing social, religious customs, norms, and values with contemporary changes of development.

Therefore, for the purpose of the study about the legal status of women in Nepal before 1990, I would like to divide the Modern Nepalese history in three periods, they are as follows.

1. Legal Status of women During the Rana period 2. Legal Status of Women From 1950 to 1960 3. Legal Status of Women From 1960 to 1990

I will give my focus in the third period because in the history of Nepal during the Rana Period which is my first period division, there was not much development in terms of modern legal system.

The period of 1950 to 1960 was known as the foundation period of modern legal system in Nepal. In this period, the political situation of Nepal was very fragile. There was an unseen conflict going on between the King and the political leaders. At one side, King wanted to rule the country while on the other side, political leaders wanted to limit the King's rights and establish a modern democratic ruling system. Therefore, within 10 years, Nepal exercised the three constitutions. That is why I have put these ten years as the second period.

342 MAINS Thesis, 2009

Finally I have put the period of 1960 -90 as the third period, because in 1962, the king controlled the state powers and gifted the new constitution to the people, which lasted until 1990. Within this time the state had started to develop and modernize. Therefore, almost all the spheres of the society were in the process of reform to catch the pace of development, which was seen at that time in global arena. All the modern concepts from the international community started to influence Nepalese society, the concept of empowerment of the women was one of those concepts in which Nepal started to think and work in this period.

3.1. Legal status of women During Rana Period

The legal status of women was very week at that time. At the beginning of Rana period, Sati system which forced women to sacrifice their life and burn themselves alive with their dead husbands as a name of Sahadharmini (follower of husband) was not illegal. As the Prime Minister Jang Bahadur Rana declared it illegal, due to the opposition of religious priests and the groups at that time, he was forced to make provision in the legal code that those women who wished to become Sati could do it in the presence of the chief officer of the court. This is just an example of contradiction between social norms and the wills to change in the Nepalese society of that time. The legal status of women described in that country code was not in the favor of women. The chapters related to then Muluki Ain , the partitions, women’s property, marriage etc. were some of the examples which declared the women as dependent to men and they did not have their independent legal rights.217 Even in the case of rape, they were

217

Narayan Prashed Panthee, Role of Supreme Court On Gender Justice , LL.M. Dissertation Paper,

2002,p.33

343 MAINS Thesis, 2009

treated otherwise and their status was downfall. All the rights of women were based upon her male counterpart because of adopting traditionalism as a source of that codified law.

During the Rana period, women did not have voice even in domestic affairs of the family, they were almost like dummies of the showcase, and their husbands were everything for them. They did not have rights except obligation therefore; Nepalese women were suppressed and exploited in this period218. The status and well-being of Nepalese women, in general, had been affected by traditional values that prevail in society. Most of those traditional values of the past became a kind of barrier to the freedom and equality for women even rulers tried to prohibit them.

In 1947, the Rana prime minister Padma Samsher formed a constitution reform committee to draft first constitution of Nepal and he invited constitutional experts from India and in 1948 he promulgated the Government of Nepal Act, 1947 ( was never implemented ) at the first time gave the equal voting rights for the women . They could elect the members of town and village panchayat. The right to adult franchise has given equal opportunity to men and women.219

3.2. Legal Status of Women from 1950-1960

218

B.Thapa, Women and Social Change in Nepal (1951-1960) Pub. Ambika Thapa Kathmandu Anirudha Gupta, Politics In Nepal; Allied Publisher Private Ltd. 1964,p.30-34

1985,P.24
219

344 MAINS Thesis, 2009

The political change of 1950 changed the legal field also. Nepal opened its door towards the outside world, and started to have relations with international communities. The totalitarian Rana rules and regulations were changed and the new democratic legal provisions were founded. The Personal Liberties Act 1950 and the Interim Government Act of Nepal-1951 were the main achievements in this regard. To draft the Interim Government of Nepal Act of 1951, Indian experts were invited so the western influence regarding the civil liberties can be seen in that Act, in terms of gender issue, it incorporated some sort of western concept.220 That constitution lasted until 1959. In 1959, King Mahendra proclaimed the new constitution replacing the Interim Government of Nepal Act. The first legislature elected in Nepalese history was only after introducing this constitution by adult franchise. B.P. Koirala became the first democratically elected prime minister of Nepal. Various kind of legal reforms were done, many acts concerning with the citizens' everyday life were introduced. However, because of the political turmoil between King and the political leaders for achieving political power, women’s issues remained in shadow. Therefore, although many positive acts and laws were introduced but in case of women, the Muluki Ain of 1853 still stood as a barrier to enjoy the new provisions. That is why the status of women within that time was still not much different than the past days.

3.3. Legal Status of Women from 1960 -1990

Suddenly, in 1960 the king dismissed the B.P. Koirala’s government, enacted emergency rule and suspended the constitution of 1959. The king took the complete sovereign powers of the state and proclaimed the new constitution entitled "Constitution of Nepal" 1963. This constitution introduced the

220

Ibid

345 MAINS Thesis, 2009

party less system with unicameral legislature. This constitution incorporated the following fundamental rights relating to equality for the entire citizens.221

a) All citizens shall have the right to equal protection of law. b) No discrimination shall be done against any citizen in the application of general laws on the ground of religion, race, sex, caste, tribe, or any of them. c) There shall be no discrimination against any citizen in respect or any other public services only on the grounds of religion, race, sex, caste, tribe, or any of them.

After promulgating the Constitution of Nepal, 1963, the Muluki Ain of 1853 was also completely revised and replaced with ‘New Muluki Ain’ with the initiation of the king Mahendra in 1963. The Constitution of Nepal lasted until 1990 and the New Muluki Ain of 1963 is still in practice with 12th amendments. The sixth amendment of the New Muluki Ain was the first initiation taken by the state to upgrade the status of women in the country after declaration of women’s year in 1975.

3.3.1. Status of women in Constitution of Nepal 1963 Within this time, many changes occurred in Nepalese legal system. Although the ruling system of Nepal was absolute monarchy, many legal provisions and the laws were drafted based on the western concepts making it appropriate in Nepalese society. However, the constitution became fundamental law of land, it accepted some traditional rules and costumes also but regarding the legal rights of women,

221

Art. 10 of The constitution of Nepal 1963

346 MAINS Thesis, 2009

this constitution looked much progressive and in some sense, it accepted the concept of equality between men and women.

Looking at the rights to equality, provided on article 10 of the Constitution of Nepal 1963, according to the clause 2 of that article “No discrimination shall be done against any citizen in the application of general laws on the ground of religion, race, sex, caste, tribe, or any of them”222 and again in the clause 3 “there shall be no discrimination against any citizen in respect or any other public services only on the grounds of religion, race, sex, caste, tribe, or any of them”223. It means that if we look both of these clauses at the same time, it looks they open the space for women in public as well as private arena equally as men. It looks there were no discrimination for doing public service and in terms of wages men and women can get equal wages for same work and opportunities to get jobs in public service.

The constitution also gave the voting rights to the women after the age of 21 that was similar as men and right to be a candidate in election. This is another change in women’s right in political arena. In the same time, constitution made the provision for improvement of women, categorized them under the privileged category, and made clear that state will form the Nepal Women Organization for greater participation of women.224 This is also a positive discrimination in favor of gender to maintain equality. Following the International year for Women, various laws were amended and initiation was taken to increase the participation of women in political units to make at least one woman’s participation in all village and district level assembly. That was a remarkable influence of global women’s movement in
222 223 224

Art 10 Clause 2 of The constitution of Nepal 1963 Art 10 Clause 3 of The constitution of Nepal 1963 Article 67, clause 1 of The Constitution of Nepal 1963.

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Nepalese society and in political system as well as in law, which can be seen in the article 30, 31, 32 of the constitution.225

However, the constitution was only able to provide fundamental rights to women but it was still not able to provide legal equality. If we look deeply in the meaning of those words of right to equality, it is only for the purpose of implementing the general law which was especially the provisions of New Muluki Ain which has lots of discriminative provisions in terms of sanction for various criminal offences. For example, according to the old Muliki Ain, there was less punishment for the crime committed by women because women were considered as weak personalities. However, the provision of right to equality strictly prohibited this kind of unequal treatment and about the laws which were discriminatory themselves the provisions of right to equality was quiet. Not all the laws in Nepalese society were based on the concept of equality. Similarly, another provision, ‘right to religion’, which was granted in article 14 of the Constitution of Nepal, made possibilities for contradiction between right to equality and createed confusion in women’s legal status.

According to the article, “Every person may profess his own religion as handed down from ancient time and may practice it having regard to the tradition”.226And in Hindu religion, there are lots of traditional values and norms, which are not in favor of women and they stop or prohibit women's freedom in the society. Therefore, the right to one’s own religion of this constitution, in one hand, is able to protect the people’s religious right, and in other hand, unwillingly it limited the women’s legal right, because it gave
225

Lynn Bennet with assistance of Shilu Singh, Nepali Swasnimanish haru koKkanooni Sthiti ma Art 14 of The constitution of Nepal 1963

Parampara Ra Paribartan 1979,Vol.1Part.2,p.4
226

348 MAINS Thesis, 2009

chances to claim that, women don’t have rights in some social sector because religion and tradition doesn’t allow them to participate or enjoy in such sector of society even though those kinds of activities were strictly mentioned illegal in the constitution. However, we cannot deny that this constitution was comparatively able to protect and upgrade the legal rights of women than any previous laws and systems but here we can see the problems for promoting the absolute legal equality between men and women.

3.3.2. Women’s Rights in General Law (Muluki Ain)

The major laws, which directly affect the women’s life and opportunities, are specially related with the property law, marriage and divorce, partition rights, inheritance rights etc. Actually, these kinds of laws are related with the access over resources. In general, these laws are a part of family laws in Nepal. These kinds of laws vary depending the places and religions.227 The New Muluki Ain, which came to existence in 1963 replacing the Muluki Ain of 1853, governs the above laws in Nepalese society. In this Muluki Ain, remarkable changes are made to enhance the status of women after the International Women Year 1975, as sixth amendment.

3.3.2.1. Women’s Rights on the Property

227

Lynn Bennet with assistance of Shilu Singh, Nepali Swasnimanish haru koKkanooni Sthiti ma

Parampara Ra Paribartan 1979,Vol.1Part.2,p.14

349 MAINS Thesis, 2009

Women’s rights on the personal property were formulated in the Chapter 14 of the New Muluki Ain. These provisions are very near to the traditional concept of the women’s property rights in Nepalese society. According to these provisions women have absolute control over her personal property and can use as her wish and handover to anyone whom she wants without any restriction. If she died without making any will paper about her property, then the inheritance right about that property shall go first to her son, then to her husband, then to her unmarried daughter, then to married daughter, then to son’s son and finally to any successor of her husband’s family. 228 The real properties of women in which law gave her control are called ‘Daijo’, the gifts given by her relatives on marriage and ‘Pewa’, gifts given by her husband’s relative and her own self-earning.229 However, these provisions were, quite near to traditional system but there were two remarkable changes. First, the definition of ‘Daijo and Pewa’ could cover not only moveable properties but immoveable properties too. Second, the inheritance role, in which it goes to her husband’s family side rather than her natal family side.230 Another important improvement was that by this legal provision women could use their self-earning as they wanted.231

It was the first time that women in Nepal were given some support from laws to get property rights but it was also not an absolute one as the men's rights.

228 229 230

Unit 3, Chapter 14 Clause 5, New Muluki Ain ,1963 by sixth amendment. Unit 3,Chapter 14 Clause 4 ,New Muluki Ain ,1963 Lynn Bennet with assistance of Shilu Singh, Nepali Swasnimanish haru koKkanooni Sthiti ma

Parampara Ra Paribartan 1979,Vol.1Part.2,p.22
231

Unit 3,Chapter 14 Clause 4 and 5 ,New Muluki Ain ,1963 by sixth amendment

350 MAINS Thesis, 2009

Although the Women’s property section of Muluki Ain gave, the rights to women over their real property, there were many other laws, which created problems in implementation, and finally stop them to enjoy their own property. For example, whenever a woman wanted to use or handover her real property, the provision of Evidence Act of Nepal 1974 demands her to show the proof that either those property come under the definition of Women’s Property Chapter of Muluki Ain or not. If yes, then she had to prove how and when she got that property, otherwise law and court will assume those kind of properties also as commonly shared property of the family.232 Moreover, to prove their own real property was always not easy for women because of various reasons. This provision not only created barrier to enjoy the property right but also looted a big part of her property from her in case she failed to prove those properties as her real properties. A husband and all the members of the husband’s family could claim their part from her property but as a wife, she could get only from her husband’s share from the total common property of the family. Here we can see that in one hand, one law guaranteed the women’s property right and at the same time, another made obstacle to enjoy it but anyhow there was a provision, if everything was favourable, there was a possibility to enjoy the right to property. It was itself a big change in the Nepalese society at that time although not enough yet..

3.3.2.2. Rights on the Inheritance and Succession of the Family Property

The modern Nepalese law made even more strong binding provisions for women to have an access on the rights to inherit the property from her family and for succession rights, than traditional system. According to the partition section of the New Muluki Ain, daughters could claim her part of property as

232

Cluase 6.a. Nepalese Evidence Act 1974

351 MAINS Thesis, 2009

equal to her brothers from her parents if she was unmarried till the age of 35 and even then she had to return the rest property if she got married after 35 years old.233

The provisions of New Muluki Ain recognized women as a successor of her husband’s property, therefore; if the father in law, mother in law including husband or husband alone denied her to provide food and other necessary arrangements, at any time she could claim her part of property from her husband.234 In normal situation, women could claim for partition from her husband if she reached at the age of 35 or the time of marriage was above 15 years.235

This section of the Muluki Ain, which provided inheritance and succession rights from the family property, was silent about the girl child in the family. Women can enjoy these rights if she was married but girl child should wait for until 35 of her age to get the property right and the law was also quiet about how why of the care and making other necessary arrangements of the girl child before her marriage. Therefore, it means the girl’s situation is worse than women’s are, because the law had recognized son as a successor of the parental property by birth, and it was also clear that the father should take care about his sons according to his property status otherwise sons could claim, but for the daughters the law was silent. Only, because she was not entitled to get property rights by birth like her brothers, this provision deprived daughters to get inheritance of their parental property. Looking at the composition of these laws, the laws do not recognized women as the head of a family, and even if she wanted to do transition of her property she should get consent either from her husband or from the son
233 234 235

Unit3,Chapter 13 Clause 16, ,New Muluki Ain ,1963 by sixth amendment Unit 3,Chapter 13 Clause 10, ,New Muluki Ain ,1963 by sixth amendment Unit 3,Chapter 13 Clause 10, chapter 12Clause 4 ,New Muluki Ain ,1963

352 MAINS Thesis, 2009

if husband was no more. 236These kinds of provisions stopped women to have a right to make a decision in the private sphere too. No where, the law agreed that the women could take her decisions alone about her property and others also without consent of father, husband or son. It means, although there were rights but she could not enjoy them at her wish.

These women’s rights on property described above are comparatively better and progressive than traditional Hindu legal system that was practiced strictly in the Nepalese society until 1950s. However, after applying the modern system of law and order in the society, the new laws that were developed within the influence of development of contemporary world, were also not gender friendly. It is because, the continuation of traditional strong Hindu patriarchal social norms were still not uprooted in the contemporary Nepalese society.

The Hindu legal system that was based on religion, perceived women in one hand as an inferior and in other hand a dangerous being, thus, the man should have control over women and should provide security to her. According to the Manu, one of the pillars of Hindu legal system who wrote the Manusmriti, established the theory that ‘women should be protected by father in their childhood, by husbands in young age, and by sons in their old age, they cannot be able to be independent.’ But on the contrary he himself profounded another idea which conveys that, ‘the place, where the women are worshiped, gods like to stay there’. So the attitude towards women in this concept is very complex in Hindu society. It was connected with the concept of pure and polluted, holy and sin. Above two sayings

236

Unit 3,Chapter 14 Clause 2,3 ,New Muluki Ain ,1963

353 MAINS Thesis, 2009

of Manu are conflicting with each order. In the first one, the status of women was very poor and weak while in second, very good. It was to maintain the social institution called kinship and to maintain the patriarchal heredity.

Among the Nepalese in Hindu Bramhans' and Chatries' society, women’s social and ritual status is double facet. The status of daughters and sisters considered as pure and holy, and deserve to be worshipped, whereas the wives and daughter in laws and their positions are just opposite. Once the girl is married, she has to behave in her husband’s house as they want. And from there every step of her everyday life is started to be controlled. The girls lose the freedom of life that they had lived in their natal family. Their situation in the family starts to change only after bearing a child, especially a son. The natal family where the women have blood relation, their status is high and in their socially achieved family status is low. 237

In Hinduism, status of a wife and a daughter in law is low because of the concept of Hindu family system, which follows only father’s lineage rather than mothers' and all these situations are connected with rituals, traditions, and customs which determines the process, and inheritance rights of property. If the system allows daughters to do such rituals then that property will go to the daughter who will marry one day with another man who doesn't or may not have any blood relation with the girl’s family. Therefore, I think to maintain the securities of the property in the same family, these kinds of concepts might have been developed. That's why lineage became very important in Hindu society as the heirship of parental

237

Lynn Bennett, Dangerous Wives and Sacred Sisters: Social and Symbolic Roles of High-Caste

Women in Nepal; Columbian University Press,1983

354 MAINS Thesis, 2009

property is related with that. That is why, even during the development of new legal system and laws, these concepts have always influenced directly or indirectly.

3.3.2.3. Rights of Marriage and Family Relations

Marriage is considered as a sacred ritual ceremony rather than a contract in Hindu law. During the marriage ceremony, man and woman both have to promise that they will be together in every kind of problems and happiness in the life. Man has to give word to woman that he will be taking the responsibility of the woman’s security, needs and happiness whereas the woman vows that she will follow her husband and his decisions without any question in her entire life. There is a belief that the relation of husband and wife will last for seven births. Therefore, Hinduism does not allow divorce, while the practice of polygamy was much promoted. That is why, again the concept of purity tries to control the women’s sexual, and reproductive behavior which denies their remarriage therefore after marriage if her husband dies, even then she must live whole life as a widow or she should be burnt alive with her husband’s dead body as a Sati.

In this way Hindu society has made women to be dependent upon her husband to get her own identity, relations, rights, and respects, not from her own natal family. To control the sexuality of women, religion defined various types of marriage and status of those marriages, which not only affect the women’s selfrespect but also determine the rights over property.

355 MAINS Thesis, 2009

However, the New Muluki Ain denied lots of those kinds of unequal and dependent status of women and made some progress. According to the New Muluki Ain women now have rights to choose her mate herself after the age of 18. This was a very new thing in the society at that time238. The law gave some spaces to women for divorce if they have problems with their husband according to the said legal grounds in same law.239 As a wife, they can get their part of property from their husband even after divorce.240 If, at the time of marriage she was not the age of 16 she can deny the relationship with her husband and that marriage can be voidable, arranged marriages too, now, have to be based on both the bride and the grooms' consent.241

Child marriage was banned, polygamy became illegal and all kind of marriages got the equal rights and equal status in the society regardless cast of women242 this was the major change, which was opposite and not acceptable to religion. The inter-cast marriages were made valid, and it also made the provision for court marriages as equal to Hindu religious ritual marriages. But still because of the social acceptance, inter - caste marriages were very rear at that time. Young people who loved each other and got married in their traditional way rather than legal registration, usually tried to hide their relationship because of social exclusion and so far this kind of behavior unfolded so often. In this case, if the marriage was not open and recognized before the death of the husband, the wife was not entitled to get her property rights even though it was proved after her husband’s death. Moreover, her children were deprived from getting even a surname from their father’s family that creates more vulnerability to women but the law

238 239 240 241 242

Unit 4,Chapter 17 ,New Muluki Ain ,1963 Ibid Ibid Ibid, by sixth amendment Ibid

356 MAINS Thesis, 2009

was silent there to protect and treat them as equal as man. Hence, we can say that the status of women in this regard increased a lot than earlier but still there was a need to improve and make women very dominant towards the case of gender balance.

3.3.2.4. Rights of Woman’s Own Body

So the law validitated all kinds of marriage in the society as tradition, customs of the people and community, but still the question of women’s virginity and sexual purity was heavily affected because of the Hindu religious influences in the society, and the law related these sectors were very rigid and did not favor women as men. The Hindu traditional philosophy does not allow women to have a sexual relationship with more than one person. If someone did, it is considered as a sin and illegal that is just because of the understandings about pure heredity. Moreover, even between the husband and wife, women cannot deny to have sex when she does not want. If she denied, the legal provisions indirectly allow husbands for second marriage. Similarly, the law did not think about the rape of a sex worker women at that time and made the provision of mere simple fines for the man who raped them. It means, the law did not think sex worker women as same as other women in society Polyandry was accepted as tradition even it was declared illegal by law, we can see some indirect support towards it by law through the legal punishment for rape cases.

If a man raped a woman, the legal punishment was only 3-6 years of prison and he should give half of his property to the woman who was raped. Here, this kind of provision was made because if a woman was

357 MAINS Thesis, 2009

raped no one will marry her and she had to face lots of shame and trouble from the very society. Regardless giving sympathy, even from her family, they would start to blame the same woman saying that she was raped because of her behavior and her appearance which inspired the man to rape her or something like that. Therefore, if something like that happened in spite of the claim for remedy, society would try to marry her with that very man who committed rape. It wouldn't matter if that man was already married or not. And, if she got married to him then there will be no charges for the man by law. Moreover, after that there would be not much difference in his social status in the society but for the woman if she denied to marry, she should face many problems and no one would be ready to take care of her including her natal family. So usually, the women got married in many cases. That was itself a violation of their human rights.

Another part of Nepalese law regarding woman’s body rights, was the abortion rights .In Hindu philosophy, women cannot decide about to have a baby or not, she should follow her husband's wish. Even in the contemporary law in Nepal, women do not have any control over her reproduction power. And, if they wanted to have abortion, there were no such provisions. Abortion was strictly defined in law as a crime. In the contemporary legal system, laws related to women’s status are heavily affected by traditional Hindu legal system. It is also true that the influence of modern legal system was also not less. If we look at the above discussions, it looks like Nepalese society was running between the two philosophical concepts, which are conflicting each other. Moreover, the modern changes, which are taking place at that time in the Nepalese society, were trying to manage their modern liberal social norms and value in the society with out destroying the existing social values towards the women’s legal status.

358 MAINS Thesis, 2009

The declaration of United Nation International women’s year 1975, which was the result of global women’s movement at that time, brought many changes in Nepalese women’s legal status. For example, daughters could claim the property from her parents if she was unmarried until the age of 35. The change was made that half of the property she can use without anyone’s consent. Right to divorce became more flexible, minimum age of marriage increased to the age of 16. Those new provisions at that time emerged in the society as the means of social changes. However, all these changes were brought by the political elites of the time according to their own rationales and they do not represent the voice of women from the grassroots of Nepalese society. Nonetheless, gradually women’s status was getting better comparatively the earlier times but still lots of changes had to be done to get them the same status as men. The obstacle for that was the situation of the country where still more women were poor, uneducated, and dependent. This resulted in the situation that always forced them backward and did not give space to speak out by them. Therefore, not much initiation and no serious movements were taken from women by themselves to get their rights during this span of time.

359 MAINS Thesis, 2009

Chapter IV
Legal Status of Women After 1990s

Background As we saw in the previous chapter, there were some initiations taken by the government to improve women’s legal status. But that was not enough. Although government and political elites made commitments in the international level for promoting women, still it was not taking place in the grass root levels. Their activities were not addressing the real women in Nepal and on the other hand women’s economic dependency was becoming a barrier for their personal development and their independent existence. Moreover, the major cause of all those dependency was the conditional property rights of women and the social structure, which gave women some dignity only after marriage because without property it was difficult to have independent existence especially when someone doesn’t have any particular living skills or education. Therefore the inherit property rights became main agenda of Nepalese women during 1990s.

After the restoration of multiparty democracy by popular movement in 1990, the new constitution was promulgated with the provision of multiparty democracy. Absolute monarchy changed into constitutional monarch and it guaranteed people’s fundamental rights. This change means so many things for so many people. Everyone’s desire was high, mostly of those who were always marginalized in the past. Among them, women were the category who were always dominated and marginalized in each and every sector and social institutions as well. Therefore after 1990 many NGOs emerged and many of them especially started to work for awareness rising for women and carried out various women

360 MAINS Thesis, 2009

centered programmes and activities actively. To address the women’s issue, government ratified the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW-1979) in 1991. The constitution also gave the space for women activist to raise their voice, so, the women’s movement which was always included in any political movement in Nepal, started to come out separately and visibly. Many lawyers, activists, and general people started to support women’s issues gradually. Debates on women’s issues started especially among the young generation.

In 1995, Nepal participated in the Fourth World Conference on Women in Beijing. “Marking the occasion, a large group of women from Nepal participated in the NGO Forum at Huariou City of China. It provided an opportunity to Nepalese women to build up networking globally and strengthen women's advocacy within Nepal. Immediately after Beijing Conference, the Ministry of Women (and Social Welfare) was established in 1995. Soon after its establishment, the Ministry declared its policy as "Gender Equality and Women's Empowerment" and became active in programme formulation and implementation, drafting of bills and sensitization/awareness creation activities that were to lead towards gender equality and women's empowerment.”243 But before establishment of Ministry of Women, there was a remarkable initiation taken by some women activist to get equal property rights as men which can be symbolized as a milestone in women’s movement in the history of Nepali women’s movement.

243

Chandra Bhadra, Gender and Development: Global debate on Nepal’s Development Agenda

(Research Note) 2001

361 MAINS Thesis, 2009

1. Women’s Movement for Property Rights in Nepal After 1990

Until 1990 Nepal was running under strong feudalistic social values and norms. There was no clear provision for women’s property right before 1975.On the occation of UN decleration of International Women Year in 1975, The Muluki Ain ( Country Code) was amended and a cluse on women’s property and inharitence rights added. After that amendement Nepali women’s property and inhairetence rights became dependent on their maitral or sexual status. The clause states that if a woman remains unmarried up to 35 years of age, she would have a right to inherit property. However, the amendment limits itself as it continues because if she gets marriage after having property that should be returned back to the brothers by deducting the marriage cost.244

The legal status of women continued as it is but in 1990, people of Nepal restored the multiparty democracy system through popular movement, and absolute monarch came under the constitution. New constitution was introduced with a guarantee of human rights as fundamental rights of people. Therefore, through the constitution it was guaranteed that no one should be discriminated on the basis of

244

Unit 3,Chapter 13 Clause 10

362 MAINS Thesis, 2009

sex. Moreover, in 1991, the government ratified the UN Convention on the Elimination of all forms of Discrimination Against Women without any reservation. This step of government paves the way and energy for women rights activists to advocate for women’s rights. Gradually they lead the nation's Women's Movement demanding that all inequalities in Nepali law must be eliminated and focused attention on the equal rights of women to inherit property. Major political parities also included this demand in their respective election manifestos. However, after the general election in 1991, the opposition party in the parliament has raised the issue of women rights repeatedly but the government has neither considered it seriously, nor taken any initiation to amend discriminatory laws.245 The situation remain same and voices of women activists were unheard, finally in 1993 the

case was filed in the Supreme court(SC) of Nepal with the demand to amend the Muluki Ain to give women equal rights over property by two women lawyers. The Supreme Court recognised that there could not be discrimination between men and women on the subject of their rights and exercise of those rights, but unfortunately, decision of court was not much progressive as many people hoped. The SC did not speak out clearly about the clauses of Nepali laws, which were challenged, and were inconsistent with the constitution. The court passed its responsibility through issuing an order to the government to introduce a bill in

245

Binda Pandey, Women's Property Rights Movement in Nepal, Workers News 32, March 2002

363 MAINS Thesis, 2009

parliament that would guarantee women’s rights over property. This judgement still became a landmark towards the improvement of women rights in Nepalese women’s movement. Following is the Main text of the judgement.

“Taking in to consideration the social conditions of men and women, Nepalese law has adopted only some different processes of partition share. Rather than depriving the daughter of the right to a share or discriminating against her, the right of a daughter to get a partition share has been managed in only a slightly different manner to that of a son, by taking into account her social status. For instance, according to clause 16 of the law of Aungsabanda 246 , an unmarried daughter should attain the age of 35 years in order to get partition share, while even a married daughter should attain the age at least 35 years or complete 15 years of marriage to get a partition share. In regard of the process of partition share, a son gets partition share at his birth, but a daughter should fulfil some terms and condition to get the same which cannot be disregarded. Before

246

The term ‘Aungsa’ and ‘Banda’ mean ‘share’ and ‘division’ respectively. Aungsabanda is a law that

governs the partition of ancestral property among legitimate heirs in Nepalese society. Legally the term Angsabanda means a right to obtain a share of the ancestral property. Hence, Aunsabanda means a right which applies to partition of the ancestral property held by parents. The property that is not inherited fron the family’s ancestors is called ‘self-owned.’

364 MAINS Thesis, 2009

declaring the clause 1 of the law on Aungsabanda unconstitutional and making provision for the same entitlement of a daughter to partition share as that of a son, the negative aspects of this change or its implication on society should also be taken into account. Such changes would result in a great impact on the structure of a patriarchal society like ours, handed down from ancient times. A daughter would not be compelled to get married and go to her husband’s house after marriage. Declaring clause 16 unconstitutional and making provisions entitling a daughter to get partition share like a son would entitle a married daughter to partition share from the properties of both her father and husband. Whereas, a son could be entitled to get partition share only from the property of his father. This will give a married daughter a greater right to partition share than a son, which will discriminate against men. This will affect laws of the country made in regard to property rights.”247

Following the directive judgement of SC, The Ministry of women and social welfare drafted an amendment bill to the Muluki Ain (11th Amendment Bill) and was tabled for discussion in the House of Representatives in 1997 which was popularly known as the ‘women’s property right bill’. The House of Representatives (lower house)

247

Yubraj Sangroula and Geeta Pathak, Gender And Laws Nepalese Perspective; Pairavi Prakashan

2002,p.68

365 MAINS Thesis, 2009

delivered the bill to the foreign and human rights committee later it was diverted to the Law and Justice Committee of the house. Even the bill was tabled in the parliament in 1997 but not debated for a long time due to the changes into government, dissolution of the parliament and the other. During this period, different political parties and parliamentary committees have made a number of changes to the original bill. Finally, in October 2001 the ruling party passed the Bill with a majority vote in the Lower House of Parliament. It was then before the National Assembly (Upper House). The Upper House rejected the bill and sent back to the Lower House to do review. Here, the ruling party at that time who had the majority in the lower house was pressing for the bill to be adopted while the oppositions who had majority in upper house with the support of almost all women organizations, was pressing hard to guarantee inherited property rights for women equivalent to that of men.

This situation brought a risk that the bill would not be passed again for several years and will go through another round of discussion. Ultimately, in 2002 march 14 th the bill was finally passed in the parliament and sent to the king for approval and from September 27 th 2002 the bill came to effect as 11 th amendment of Muluki Ain. Therefore, in the history of Nepalese women’s movement this achievement means a lot in terms gender equality and the improvement of legal status of women.

366 MAINS Thesis, 2009

2. Achievement of 11th Amendment of Muluki Ain and Current Legal Status of Women Today Nepalese women can enjoy much more rights than ever before. The situation is made possible only because of the long efforts of the Nepalese women themselves. Although the 11th amendment upgraded women’s situation in various sectors but still not enough. They have to go long way towards gender equality.

2.1. Women's Right to Property

Before 11th amendment the right to property of nepalese was not clear and visiable.They were always considered as a second grade citizen and must be

dependent on their male counterparrt or male guardian. According to the partition law of parential property only father, mother and sons are considered as the heirs of the property and a daughter who was unmarried until 35 years old age only qualify for geating parential property righs like a son. But the new law gave equal rights to daughters. Therfore, now they can enjoy partition share rights on parential property by birth like sons. The new law establishes a wife’s right on her husband’s property immediately after marriage. Earlier she has to wait for at least

367 MAINS Thesis, 2009

15 years after marriaage and should be above 35 years old by age. This new changes gave widow’s to claim their share of property from the joint family

immideately after her husbands death if she wants and can use that property even she gets married again. These are the remarkable changes on the womens property rights.

2.2. Rights on the Inheritance and Succession of the Family Property

The law of inheritance and succession of the girls’ parents’ property was not in favor of girls before the 11th amendment of the country code. After that amendment, comparatively as before, girls can inherit the parent’s property, but still the law is much confusing and the activists and women organizations also are not taking much interest in this issue anymore. The following chart is helpful to understand the change created by 11th amendment.

368 MAINS Thesis, 2009

* A B D

C *= Person who died. A= Husband B= Wife C= Son D= Widow Daughter in Law E= Unmarried Daughter F=Son’s Son (Grand Son) I G=Son’s Unmarried Daughter (Grand Daughter) K J H F G E

Inheriting sequence of the property after 11th amendment of Muluki Ain

Above chart is based on the Nepalese Inheritance Law. According to the chart if the wife died, her property will go to the husband, similarly, if the husband died then the property will go to the wife first. If there is no one like that then only it goes to son, then to the widow daughter in law, if she is also absent then it will go to unmarried daughter, then to the son’s son, then son’s unmarried daughter. If she is also absent then the property of dead person will goes to his/her married daughter, then daughter’s son and then daughter’s unmarried daughter and at last if there is no one to inherit it will goes to the nearest successor.

369 MAINS Thesis, 2009

Before this amendment, at any cost daughters were denied to inherit the property if there is someone from the dead person’s patriarchal lineage. This amendment insures the daughters as heirs after son and widow daughter in law but not all daughters only those who are unmarried. Moreover, for married daughters this law made their position of inheritance only after if there is no unmarried daughter or son’s son or son’s unmarried daughter. Considering the law before amendment, the new law cutoff the married daughters right because according to the previous law if the sequence reached to the daughters the unmarried daughter can get 2/3 of the father’s property and married daughter can get 1/3 ,but now, if unmarried got the property then married daughters are far away from that father’s property. Therefore, in my opinion the people and organizations in Nepal who claim themselves as the leader of women’s right who struggled for equal property right for women as men forgot to maintain equality among women. Until today no single women’s organization or any so- called women lawyer activist did not raise any voice to create equality among women. Therefore, it looks they are lobbing only to get equal rights as men, it doesn’t matter for them if women creates inequality among women.

2.3. Rights of Marriage and Family Relations

There are also several changes done for the women’s rights of marriage and family relation. In terms of marriage age before it, there is with the guardian’s permission the girl can marry when she is 16 years old and boy at 18 years. And if the boy and girl want to get married themselves, then the girl should be 18 years old and boy must be 21 years old otherwise that marriages cannot be legal. So, the law encouraged parents to marry their girl child at 16 which is not good for girl’s physical, mental development. Now according to the new law if a girl and a boy to get married with the permission of

370 MAINS Thesis, 2009

guardians then both of them must be at least 18 years old and without permission both must be 20 years old. Similarly, earlier there was very small sanction for child marriage but now the sanction is increased.

Women could not claim for divorce even her husband had sexual relations with other women but husband could claim for divorce if his wife had sexual relation with other man. But now both can claim if that happened. If a woman proved to be impotent the husband can now get divorce but it has to be proved through a registered medical practitioner. The sanction for polyandry is multiplied ten fold. Women can now adopt any child as a man can even if they are single.

2.4. Women's Right to Abortion

According to previous Nepalese law related to abortion, it was strictly prohibited even the mothers’ life was endangered unless a fetus was aborted. There are so many examples of women who were imprisoned because of doing abortion knowing and unknowingly. The drastic change in this regard carried out by the new law through 11 th amendment. The amendment legalized abortion with some conditions. The law gave rights to the women to do abortion only with her decision within the 12 weeks of pregnancy. Moreover, if the birth of child will endanger mother’s life or if women became pregnant by rape or incestuous sexual relation then abortion is legal within 18 weeks of pregnancy. That was very remarkable change in women’s body right in Nepal. It became an inspirational achievement for all South Asian women because Nepal is the first South Asian country to legalize abortion this way.

371 MAINS Thesis, 2009

2.5. Sexual Offence against Women Rape is one of the major issues that have been raised by the women's movement in Nepal. In this regard, the amendments to the civil code make the law stronger and increase the punishment for rapists. According to the new provisions, a rapist can be imprisoned for 10-15 years, if their victim is below 10 years of age; 7-10 years of imprisonment, if their victim is between 10 and 16 years of age; and 5 - 7 years of imprisonment, if the victim's age is above 16 years. In each category, an additional five years of prison can be given if the victim is a pregnant or disabled woman. Before there was no system for hearing the rape case in closed trail but now considering the women’s future and honor in the society .The new law made the system of hearing in the close trail for rape cases. 3. Changes in Government System after 1990 After achieving the democratic type of government system in Nepal in 1990 through the popular movement is known as ‘Movement for Restoration of Democracy’ even until today. The various political parities emerged as multi party system. New constitution was introduced but the drafting of the constitution and the parties who were involved to draft that looked they are going to make contract rather than going to establish the achievement of movement. Therefore, some small progressive political parties opposed that initiation of big political parities that had majority in the parliament at that time. Those voices of small political parties remain unheard; finally, the constitution was introduced as a contract between the king and the people. Later the progressive parties raised questions on constitution regarding various issues including the issue of army and the king’s prerogatives in the parliament. At that time too they were unheard. So finally they launched armed war in 1996, that is now known everywhere as Maoist’s movement. The

372 MAINS Thesis, 2009

conflict ended after 10 years in 2006 with the help of another popular movement known as ‘Peoples Movement part 2’ with signing the peace treaty between the Maoist insurgents and the political parties. This change and peace paved way for drafting new constitution through the constitutional assembly in which every member are elected by the people. Therefore, today in Nepal, the constitution of 1990 is suspended after peace treaty and the interim constitution is proclaimed by the parliament in 2006. After having the election for Constitutional Assembly (CA), the first meeting of CA abolished the monarchy system and declared Nepal as a Federal Democratic Republic and a secular country in May 28, 2008. The drafting of new constitution is in process. 3.1. Status of Women in Current Interim Constitution of Nepal 2006 As we understood from previous chapters that after 1990s people’s empowerment and awareness gradually increased. Women have started to think about their rights and raised the voices for that. With the help of various women activist and women centered organizations, finally Nepalese women movement was successful to get property right. But it was not enough and the same time ten year long internal conflict also contributed to raise awareness among women from rural areas where the existence of government is almost nil. This situation in a sense, did not allow the lawmakers to avoid increasing voice of women. Therefore, the current Interim Constitution of Nepal 2006 is able to make fundamental differences and is appreciated from various perspectives, especially for its concern on women’s issue. From the following chart, we can understand the status of women in current constitution.

373 MAINS Thesis, 2009

S. N. 1.

Section

Provisions

Provisions Remarks/ Principles adopted in Interim Constitution

Part2, Citizenship

Art. 8: Citizenship at the Commencement of the Constitution (2) (b) any person whose father or mother is a citizen of Nepal at the birth of such person. Art. 8 (6) A women of foreign nationality who has a matrimonial relationship with a Nepalese citizen may acquire naturalized citizenship, if she desires to do so, pursuant to the laws in force. Art 8 (7) Notwithstanding anything contained elsewhere in this Article in the case of such a person born to the women citizen of Nepal married to a foreigner, if such a person is born in Nepal and has been residing permanently in Nepal who has acquired citizenship of the foreign country by virtue of the citizenship of his/her father he / she may acquire the naturalized citizenship of Nepal pursuant to the laws in force.

Discrimination still exists in that foreign husbands cannot become Nepalese citizens on the grounds of marriage.

Similarly, if their children want to be Nepalese citizens they have to be born in Nepal

2.

Part 3 Fundament al Rights

Art. 12 Right to Freedom Art. 13 Right to Equality: following principle has adopted: Equality before law, No discrimination against the citizen, Positive discrimination for the protection of interests of women, dalit, indegenious ethnic tribes, Madhesi, or peasants, labourers, economically, socially, or culturally backward and children, the aged disabled and those who are physically or mentally incapacitated. Art. 14. Right against untouchablity andRacial

The

principle

of

Separation of Power is clearly defined.  State Responsibility has been defined.  Mixed electoral system adopted  Declared the federal

mode of government in new constitution.  Considered that CA is one of the key strategies of building peace in the country.  Introduced the locally

Discrimination. Art. 15. Right Regarding Publication, Broadcasting and press. Art. 16 Right to Regarding Environment and Health Art. 17. Education and Cultural Right Art.18. Right regarding Employment and

374 MAINS Thesis, 2009

Social Security Art. 19. Right to property Art. 20 Right to women: (1) No one shall be discriminated in any form merely for being a women. (2) Every woman shall have the right to reproductive health and other reproductive matters. (3) No physical, mental or any other form of violence shall be inflicted to any woman, and such an act shall be punishable by law. (4) Sons and daughters have equal rights to their ancestral property. Art. 21. Right to Social Justice: (1) Women, Dalit, indigenous tribes, Madheshi community, oppressed groups, the poor and laborers, who are economically, socially or educationally backward, shall have the right to participate in the state mechanism on the basis of proportional inclusive principles. Art, (22): Right to Child, Art. 23 Right to Religion, Art. 24 Rights to justice, Art. (25) Rights against Preventive Detention, Art. (26) Right against Torture, Art. (27) Right to Information, Art. (28) Right to Privacy, Art. (29) Right against exploitation, Art. (30) Right Regarding Labour, Art. (31) Right against exile, Art. 32 Right to Constitutional Remedy. 3. Part 7: Constitutio n al Assembly Art. (63) Formation of the Constituent Assembly: (4), The principle of inclusiveness shall be taken into consideration while selecting the candidates by the political parties pursuant to sub-clause (a) of Clause (3) above, the political parties shall have to ensure preoperational representation of women, Dalit,  

defined concept of inclusive democracy. New structures such as a Public Service Commission, Election commission and a National Human Rights Commission.

The 33% reservation here is contradictory with the concept of Proportional representation. The term inclusion has been used at least in seven Interim places in the

oppressed tribes/indigenous tribes, backwards, Madhesi and other groups, in accordance with and as provided for in the law. Notwithstanding anything contained in this clause, in the case of women there

Constitution;

however, there is no

375 MAINS Thesis, 2009

should be at least one third of total representation obtained by adding the number of candidature pursuant to sub-clause (a) of clause (3) to the proportional representation pursuant to sub-clause (b) of clause (3). 4. Part18: Political Parties Art. 142 (3) (c): in the executive committee at all levels, there should be the provision for the inclusiveness of members from neglected and suppressed regions including the Women and Dalits. (4): The Election Commission shall not register any political party if any Nepali citizen is discriminated against by becoming a member of the political party on the basis of religion, caste, tribe, language or sex, or if the name of, the objectives, insignia or flag of such political parties is of a nature to divide the country, or such party constitution or rules are for the purposes of protecting and promoting a party- less or single party system of governance. 

common understanding. It is full of conceptual contradictions.

Source: - CEDPA Nepal, The Status of Women in the Constitution and the Laws in Nepal’s Changing Context, A Literature Review, Kathmandu 2008.

376 MAINS Thesis, 2009

Chapter V Conclusion

Naturally, the process of development of all human beings is same. In this sense, nature did not discriminate any human beings to have existence in this world. Yet, there is some differences created by nature among the human bodies only and that is for continuation of human beings themselves. Gradually, when the society was developed, various kinds of rules, regulations, laws, and traditions, etc were created to maintain peace and equality among human beings. Naturally men are stronger than women physically, therefore everywhere in the society started to discriminate women from the early stage using various arguments. However, those decimation and practiced rules, norms changed into law in the modern society with the process of development.

The development process also contributed to question the male dominant society about the existence of women and their equal participation and contribution. We can find these things in the feminist movement of the west where women started to raise their voice for their political rights in the beginning. Today, democratic system of government and rule of law became most dominant ruling system of the society everywhere in the world. So, the law became overall for every member the state and equally enforced to all. In this situation, those inequality which are still remained in the society with vary facets need to change to achieve gender equality in everywhere. Therefore, legal reforms are one of the preconditions for gender equality. Without eliminating or reducing discriminatory laws, the uplifting of women’s social economical and political status is not possible.

377 MAINS Thesis, 2009

This study tries to reveals status of Nepalese women in Nepalese Law. In Nepal, the government, activists, civil society and the court have been taken significant initiatives for the advancement of women. Many activities have been carried out to improve the status of women in Nepal. In this regard, the greatest achievement of the Nepalese women is the more concrete provisions in the recent constitution and the 11th amendment of the country code. The 11th amendment of the country code provides equal property rights to daughters, full rights to widows in inheritance, rights of wife in husband’s property, inheritance rights to divorced woman, and rights of adaptation of child equal as men. But still there were discriminatory laws remained, even after amendment. Therefore, considering this reality parliament has promulgated some special laws to enhance the status of women. Similarly, new Interim Constitution of Nepal 2006 has eliminated the earlier discriminatory provision of citizenship and provided equal rights to women to transfer citizenship to their children and also guaranteed thirty three percent reservation in the candidacy of the constitute assembly. Additionally, the parliament has past the proposal to end all the kinds of violence against women. It is also one of the achievements towards general equality. No doubt, equality permits inequality, but such inequality should be fair, reasonable and just. Otherwise, in the name of creating equality by permitting positive discrimination to others will generate more tensions. For instance, the eleventh amendment of country code gave property rights to women. The rational behind of those rights is to reduce the economic dependency of women and to give them equal chances to participate in every sectors of society. But what happened is today the girl has equal property rights as boy on her parents’ property. And when she gets married, she has to return back the properties of her parents, if the property remains with her. Especially, the law is concerning immovable property, because movable property can be transferred and

378 MAINS Thesis, 2009

handover very easily. So again if she got married, she can claim the property rights with her husband. It looks there are possibilities that girl can get double property rights. Because of this, among the families, especially who have less access to education and awareness, the girls’ position inside the family became lower and discriminatory. As we understood earlier chapters, in Nepalese society daughters are worshipable, but this amendment creates new tension between brothers and sisters. However, there is absence of effective communication system and coordination within the executive, legislative and judiciary. Without having coordination between various wings of government, it is difficult to eliminate discriminatory laws and following the path towards gender equality. Today after long internal conflict, Nepal became Federal Democratic Republic and going to frame new constitution as the future of Nepalese people. The current time is very crucial for making substantial differences in women status. There are still lots of discriminatory tradition, customs, as well as laws are still remained. Therefore, following suggestions may be useful to improve the status of women in the future to get gender equality.

1. Introducing gender sensitive curriculums in various educational materials 2. Establish state- mechanism to implement international convention. 3. Ensuring effective coordination between government bodies and non- government institutions. 4. Conduct gender equality programs at grass root level. 5. Capacity building of women and men regarding gender equality. 6. Advocacy for legal reforms. 7. Implement newly reformed law in practice visibly.

379 MAINS Thesis, 2009

References

Primary Sources

A)

Constitutions

     

Government of Nepal Act 1948 ( Repealed ) Interim Government of Nepal Act 1951 ( Repealed ) Constitution of the Kingdom of Nepal 1959 ( Repealed ) Constitution of Nepal 1962 ( Repealed) Constitution of the Kingdom of Nepal 1990 (Repealed) Interim Constitution of Nepal 2006

B)

Acts and Laws

Civil Rights Act 1955


Evidence Act 1974 ( Nepalese Evidence Act)
New Muluki Ain 1963 with 12th Amendment

C)

Reports

     

Forum for Women, Law and Development (FWLD), Ktm, Special Measures for Women and Their Impact, 2003 ___ ___ ___, Implementation Status of the Outcome Document of Beijing Platform for Asia, 2003 ___ ___ ___, Discriminatory Laws in Nepal and Their Impact on Women, 2006 ___ ___ ___, Shadow Report on Initial Report of Government of Nepal on CEDAW Ministry of Women Children and Social Welfare, Ktm, CEDAW Second and Third Periodic Report (Combined), 2002 National Planning Commission, Ktm, Five Year Plans ( 5th,6th, 7th, 8th, 9th, and 10th)

D)

International Instruments

380 MAINS Thesis, 2009

    

Convention of the Elimination of All Forms of Discrimination Against United Nation’s Charter 1945 Universal Declaration of Human Rights 1948 International Covenant on Civil and Political Rights 1966 International Covenant on Social, Economic and Cultural Rights 1966

Women 1979

Secondary Sources

 

Aryal, Bhojendra. Gender Studies, Samaj Shastra Prakashan, Ktm, 2003 Bhadra, Chandra. Gender and Development: Global debate on Nepal’s Development Agenda (Research Note) 2001 Bennet ,Lynn. with assistance of Shilu Singh, Nepali Swasnimanish haru ko Kkanooni Sthiti ma Parampara Ra Paribartan 1979,Vol.1Part.2 Bennett, Lynn. Dangerous Wives and Sacred Sisters: Social and Symbolic Roles of High-Caste Women in Nepal; Columbian University Press,1983 CeLRRd ,Brief Historical Overview of Legal and Justice system of Nepal in Analysis and Reforms of Criminal Justice System in Nepal ,1999,Kathmandu
CEDPA Nepal, The Status of Women in the Constitution and the Laws in Nepal’s Changing Context, A Literature Review, Kathmandu 2008.


 

Gupta, Anirudha. Politics In Nepal; Allied Publisher Private Ltd. 1964 Höfer, András. The Caste Hierarchy and The State in Nepal, A Study of the Muluki Ain of 1854 Khanal, Bishal. Regeneration of Nepalese Law, Brikuti Academic Publication; Kathmandu ,2000 Muluki Ain 2020B.S.(1963 A.D.)
Pandey ,Binda. Women's Property Rights Movement in Nepal, Workers News 32, March 2002


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Pradhan ,Bina. The Status of Women in Nepal: Institutions Concerning Women in Nepal, CEDA Kathmandu 1979

Panthee, Narayan Prashed. Role of Supreme Court On Gender Justice, LL.M. Dissertation Paper, 2002 Shakya & Umesh Upadhyaya. Country Report on International Women's Conference, 1-5 August 1997, Malmo, Sweden; Sangroula, Yubaraj and Pathak, Geeta. Gender and Laws Nepalese Perspective; Pairavi Prakashan ,Kathmandu 2002 Thapa, B. Women and Social Change in Nepal (1951-1960) Pub. Ambika Thapa Kathmandu 1985

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