Calling for a Public Debate on CSOs
Totalitarian regimes rarely tolerate any intermediary organizations between the state and citizens. In such regimes, the state seeks to be all-pervasive and all-encompassing, penetrating deep into the everyday lives of citizens. The state maintains a constant surveillance on its citizens and crushes any form of dissent or activism. Democracy, on the other hand, thrives in the multiplicity and diversity of intermediary organizations that are also called Civil Society Organizations (CSOs). In a functioning democracy, citizens have the right to come together and associate independently of the state and pursue their collective interests, whether those are academic, advocacy-oriented, or even service delivery. The significance of such intermediary organizations is underscored by a belief that in a healthy democracy, the state should facilitate the growth and diversity of CSOs rather than control and restrict them in the name of regulation. Moreover, the increasing difficulty of negotiating the bureaucratic and technical complexity of modern states and markets calls for more citizen-led intermediary organizations, not less.
News and opinion pieces decrying the growth and numbers of CSOs in Nepal are commonplace in Nepali media. A large number of reporters and commentators given to populism see the proliferation of CSOs as a threat to the functioning of the Nepali state. Notably, at times CSOs are even accused of trying to run a “parallel state.” If such reports are taken at face value, CSOs mean NGOs, and NGOs are organizations that deliver developmental service such as building shelters, toilets, and taps. The solution suggested by many, i.e. delegitimizing and killing off NGOs through regulatory mechanisms, harks back to the days of the Partyless Panchayat System, when the right to organize and associate freely was overridden by the state’s preoccupation with control, coordination, and uniformity.
Unlike the Partyless System, the multiparty system and the constitution of 1990 fully recognized freedom of the press along with citizens’ fundamental rights such as the right to information and the right to organize. Such rights have also been recognized in the 2015 constitution of Nepal. Whereas there has been a lot of public debate on press freedom and right to information, right to organize still has not generated the public interest it deserves. Restricting the understanding of our fundamental right to organize to the right to form political parties does not bode well for loktantra, nor does equating democracy with political parties. As mentioned earlier, loktantra flourishes only in the recognition of the diversity of various civil society organizations, not in their uniformity. Loktantra calls for the existence of both formal organizations, such as political parties and media, and informal organizations such as citizen-led discussion forums and interest groups.
After the first janaandolan, the Panchayat-era Social Service National Coordination Council (SSNCC) was replaced by Social Welfare Council (SWC) following the promulgation of the Social Welfare Act of1992. In the wake of openness ushered in by the advent of multiparty democracy, the SWC got rid of Panchayat-style “coordination” logic through which SSNCC headed by Queen Aishwarya exercised control, and recognized the autonomy of CSOs. It also saw an impressive growth of various organizations formed on the basis of the fundamental right of citizens to associate. Unfortunately, the SWC too failed to differentiate CSOs on the basis of their functions, objectives, organizational structures, and institutional capacities. Diverse CSOs were lumped together in a single category irrespective of their functions and objectives, and were governed by the same regulatory and accountability regime whether they were academic, advocacy, or service delivery organizations.
Furthermore, it is worth noting here that other institutions founded on the basis of the same fundamental right to organize, such as media and political parties are not subjected to the regulatory and accountability regime to which CSOs are subjected. For example, CSOs need to take permission from SWC and District Development Committees (DDCs) to organize a funded program where as political parties or media don’t require that permission to exercise their right to organize and right to information. If a certain organization wants to study corruption at the local elected bodies, one can only imagine how difficult it would be to get that permission from the concerned DDC. Think, for instance, the bizarreness of a law that would require a journalist to obtain permission from the Chief District Officer (CDO) to report corruption in the local/district level police offices. Unfortunately, permission raj is seen as normal and even necessary when it comes to research and related activities conducted by CSOs.
The control and coordination mindset of Panchayat days is resurfacing again, as is evident in the proposed Social Welfare and Development Act, 2073 (BS) that will eventually replace the SWC Act of 1992. Reminiscent of Panchayat style coordination, the proposed Act gives the SWC the authority to determine various organizations’ priorities, region (geographic and thematic) where they are allowed to act, and scope of work, as well as constantly monitor (read put them under constant surveillance) them under the excuse of “avoiding duplication”. Again, avoiding duplication is reasonable only when it’s about building infrastructure in a limited designated area or delivering essential services. In contrast, academic, cultural, and advocacy work calls for diversity and competition or “duplication” as mentioned in the Act. Furthermore, such broad and vague sarkari language invites the risk of arbitrary execution on the part of the bureaucracy, something our bureaucrats are notorious for. Therefore, it is absolutely necessary to avoid such vague and all-encompassing language that can mean anything the interpreter wants them to mean.
The proposed Act gives a wide range of regulatory power to the SWC that could restrict freedom of association by, for instance, making NGOs change their priority in the name of avoiding duplication and gearing them toward “national development.” Interestingly, the word “coordination” from the SSNCC days makes a return in loktantrik Nepal to curb proliferation of CSOs and one of the most worrying parts of the draft is that the SWC can have the directive powers to recruit and appoint employees in NGOs. Drawing parallel with journalism again to highlight the weirdness of the proposal, this is similar to the Press Council Nepal telling Setopati who the latter should hire as reporters and editors. This would be unacceptable to members of our media fraternity and the general public alike. Giving SWC the right to influence recruitment in NGOs in order to hire people that the SWC thinks are suitable is an unacceptable violation of the autonomy of our CSOs.
The proposed technical and legal barriers to the registration and functioning of CSOs emanate from the Nepali government and bureaucracy’s desire to cut such civil organizations to size rather than seeing them as partners in building a just and open loktantrik society. The return of the control-and-coordination model of governance suggests a larger threat to our freedom of association in terms of our diverse interests and objectives and also to our fundamental right to the freedom of thought. Because a large number of diverse CSOs are essential to the deepening of democratic space in loktantrik Nepal, there should be proper consultation with CSOs and a more rigorous public debate on the proposed Social Welfare and Development Act.
Avash Bhandari is a Research Fellow at Martin Chautari, Kathmandu