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Paradigm clash on development or unfettered globalisation?
Martin Khor
The clash between the differing paradigms of sustainable development and unfettered globalisation is now sharper than ever. It should to be resolved as soon as possible. The future of humanity - and the Earth depends on this.
On the one hand, there is resurgence in recognition of the heightening environmental crisis, manifested in fever-renewed concern over such issues as climate change, energy depletion, deforestation, and biodiversity loss. But, on the other, there is persistent promotion of the drivers of the crisis - unregulated growth, unfettered market forces and increased 'competitiveness' - which accelerate both resource use and pollution.
The 1992 Rio Earth Summit provided the impetus for the sustainable development paradigm with its three components of environmental, economic and social sustainability. It recognises not just the environment crisis in its many facets, but how it is embedded in economic and social systems. And it understands that a realistic and long-term solution must deal with both the environment and the development crises simultaneously and in an integrated fashion.
Two principles underpin 'sustainable development'. The precautionary principle asks us to act urgently when grave environmental harm is likely, even if all the facts are not completely available. And the principle of 'common but differentiated responsibility' acknowledges that the North is, and historically has been, most responsible for the crisis - and has more resources, as well as a greater responsibility for resolving it. The South must also play its role - but must be helped with financial resources and technology transfer, and should not be made to bear an unfair share of the burden of global adjustment.
Development goals, poverty eradication and providing for human needs should be top priorities: environmental concerns should be integrated with (and not detract from) them. Sustainable development would involve ecological practices that enable meeting the needs of future generations, and equitably change production and consumption patterns, so that resources now being wasted are saved and rechannelled to meeting the needs of everyone now alive, and of future generations.
By contrast, the paradigm of unfettered market forces - which characterizes the present brand of globalisation - pushes for vastly expanded rights and 'freedoms' for the large corporations that dominate the market: the state should intervene only minimally. Though it recognises that there are environmental and social side effects, these should be dealt with through market instruments rather than regulation, and by charity and 'social safety nets' rather than a re-design of the core economic paradigm.
With the ascendancy of this paradigm, especially following the establishment of the World Trade Organisation (WTO) in 1995, development values and principles have been downgraded in international relations. In its place is a Social Darwinian philosophy of 'each individual for himself/herself, each firm for itself, each country for itself.'
In this law of the social jungle, it is the right of individuals and companies to demand freedom to seek advantage and profit and to have access to the markets and resources of other countries anywhere in the globe, to implement their right to profit. The advocates of this approach want a free market system where the strong and 'efficient' are rewarded, and the weak or inefficient unfortunately have to lose out. Aid can be advocated and even increased to offset the glaring inequities, but the principles and practices of the market cannot be touched.
These two paradigms have clashed dramatically in international affairs. The paradigm of partnership and cooperation is represented by the United Nations' series of world conferences, in which global problems relating to the environment, women, social development, habitat, and food were sought to be discussed and resolved in a consensus-seeking framework. It was recognised that, left to itself the market would be more of the problem than the answer, and that governments - both individually and jointly - must temper it with social and environmental priorities and programmes.
In contrast, the free-market paradigm is represented by the Breton Woods institutions - which have persisted in promoting reforms in developing countries based on a narrow concept of macro-economic stability, privatisation and liberalisation - and by the WTO. The latter was initially criticised for being too 'free market' in orientation: in fact it is a combination of liberalisation and protectionism.
The developed countries, which by and large still dominate the WTO, make use of it both to push open the markets of the developing world, and to protect their own turf. Thus, the North presses for liberalisation of goods, investments and financial flows, but resists Southern requests for liberalising the flow of labour and technology. The WTO's agreement on trade-related intellectual property rights (TRIPS) is anti-competitive, designed to increase the monopoly of large corporations, and hinders technology flows.
There is a double standard even within the core area of trade in goods. Developed countries pile on the pressure to have free trade in manufactures (where they have an advantage, except in labour-intensive sectors like textiles) but insist on protecting their uncompetitive agriculture. In the stalled Doha negotiations the major subsidy givers of agriculture want to maintain their domestic support (though they will shift from one type of subsidy to another in order to claim to be not so 'trade distorting'), but some of them are pressuring developing countries to open up to farm imports, and opposing their attempts to defend their own food security and their small farmers' livelihoods.
There is also a clash of paradigms and principles between the TRIPS agreement and the Convention on Biological Diversity (CBD) over their treatment of intellectual property, biological resources and indigenous knowledge. The CBD's objectives include conserving biodiversity and protecting traditional knowledge and the rights of local communities: access and benefit sharing are key aspects. TRIPS is a commercial treaty that facilitates implementing a particular model of intellectual property which promotes private monopoly rights that are expected largely to benefit transnational companies.
While the CBD is based on the principle of national sovereignty over genetic resources, TRIPS confers the right to have 'national treatment' for foreigners and facilitates foreign ownership of patents in developing countries. There is a conflict between the stress of TRIPS on the private and exclusive rights of individual patent holders and recognising the contribution and nature of community knowledge and the rights of those that have traditionally held it.
There are also differences between the two agreements in their treatment of innovators using modern technology and traditional knowledge. Even more significant, there is a clear contradiction between CBD's system of the right of states and local communities to prior informed consent and benefit sharing, versus the right given to private companies and researchers under TRIPS to obtain patents unilaterally without undertaking prior informed consent and benefit-sharing arrangements.
This tension between TRIPS and CBD has been the subject of intense debate and negotiations within the two sides. It is imperative that the conflict is resolved, and on the basis of sustainable development principles.
The 'free market forces' paradigm has predominated for years, and still does. But there are some positive signs that indicate a strengthening of the sustainable development one. After reaching a peak at the 1992 Rio Summit, the environment lost priority among political leaders because of the pressures to be competitive in a liberalising world. But awareness of its importance is now growing again, largely due to growing evidence of climate change and its devastating effects, and to the increasing net depletion of oil resources and the need to develop alternative, cleaner energy sources. It should soon return to near the top of the political agenda, rivaling globalisation.
Though many developing countries still face persistent poverty and inequality, there has been a breakthrough - largely due to grassroots campaigning - in canceling and relieving debt: twenty countries are initially involved and another twenty may become eligible. Interest in aid has revived in several developed countries, largely in the context of the Millennium Development Goals.
There is growing realisation in many developing countries, that unfettered market forces and rapid liberalisation are not working - and a search for alternative policies that favour sustainable development. Developing countries as a whole - through the Group of 77 and China - are demanding that their right to 'policy space' is respected by developed ones. And there is also a growing public awareness that the developed countries' agricultural subsidies harm the developing world. Pressure for reform is building up. Developed countries are still resisting, but the public clamour may eventually bring some results.
Citizen groupings representing alternative approaches and promoting social and environmental causes are becoming more effective. Particularly positive has been increased networking and collaboration among Northern and Southern groups, cross-fertilising interests in such issues as the environment, development, human rights, women's rights, and cultural and social problems. The emergence of civil society - advocating alternative viewpoints at international fora and to international institutions - can monitor and help shape the globalisation process, bringing hope for the promotion of sustainable development. Most encouraging of all are the thousands of grass-roots movements and groups taking their own initiative to fight for their survival, livelihoods or the larger public cause. These are the real advocates of sustainable development, and they give rise to the best hope that the clash of paradigms will have a good outcome.
-Third World Network Features
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Low quality, high dropouts
Education suffers under repressive Myanmar regime
M.N Islam
The right to education is a fundamental human right. However, in Myanmar, infamous for human rights violations, the right is ignored. Before the 1962 military coup, Myanmar's population was one of the most highly educated in Southeast Asia. Since 1962, its education standards have dramatically deteriorated under the SLORC (State Law and Order Restoration Council), and later the SPDC (State Peace and Development Council) in 1997.
The military regime of Myanmar claims that it promotes education as a national cause. In 2000, the SPDC laid down a 30-year education plan focusing on improvements in basic education however, the budget allocated to education is less than inadequate. Since 1988, education has been allocated not more than two per cent of the GDP. According to UNDP prescriptions, governments should allocate at least five per cent of their GDP to education. At a press conference earlier in January this year, a representative of the SPDC regime claimed that every village has a primary school and students can go for higher education in their respective states. There are 156 universities in Burma. However, the SPDC highlights the number of universities and schools rather than the quality of education given. In fact, most universities in Myanmar lack teaching aids, laboratory materials and human resources.
The Myanmar military regime believes that universities are the birthplace of dissent against autocratic rule, so it attempts to control all aspects of faculty member's academic research and student activities, as well as prohibiting criticism of government policies. During 2006, the Myanmar military extended its restraint on academic freedom to those studying overseas: "All the Myanmar scholars studying overseas should submit the theme of all Myanmar-related research from the Ministry of Education to get approval..."
Moreover, during 2006, the Myanmar military government forced university students to join the Union Solidarity and Development Association (USDA), a government-backed organization. Students were told that if they refused to join, their name would not be entered on attendance sheets, not entitling them to sit for examinations. As a result, many students reluctantly joined the USDA.
Furthermore, Myanmar became a state party to the UN Convention on the Rights of the Child (CRC) in August 1991. According to Article 28, Paragraph 1(a) of the convention, Myanmar is obligated to put in place domestic legal measures that make primary education compulsory, free and available to all. Until now, parents were forced to pay various fees for their children's education; the financial burden contributed to the high drop out rate of primary level students. According to UNICEF, students and their families are forced to subsidize schools - paying for uniforms, materials, buildings and teacher salaries. Under this system 35 per cent of children do not complete more than five years of schooling and only 25 per cent enroll in high school.
Looking back at the 2005-2006 academic year, there was no significant development in education, the budget allocated was still inadequate and the SPDC was still hesitant to tolerate academic freedom of students not only inside Myanmar, but also those studying in overseas universities. Moreover, free education for primary students has not been implemented, breaching the Child Law enacted in 1993; the drop out rate is still high and students are forcibly recruited to join the government-backed USDA. Although the SPDC claims education is a national cause, education standards have deteriorated more than ever. The education system in Myanmar is still gloomy.
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Missing Pakistani teenagers
fight with Taliban
Ashfaq Yusufzai in Peshawar
"I am in search of my son, who went missing three months ago from the neighbourhood. We are told that he is in Afghanistan fighting alongside the Taliban," said Gul Afzal, a resident of Ghareebabad hamlet in Mardan, North Western Frontier Province (NWFP).
With tearful eyes he says that his son Gul Wali, 17, was deeply religious, but was never the type that would take up arms.
Unfortunately Gul Afzal is not the only father searching for his lost son. There are many families who are desperate to get news of missing brothers and sons in the autonomous North and South Waziristan, and Tank, Dir, Buner and Mardan districts in NWFP.
Intelligence officials told IPS that one year ago, some militants took a 15-year-old boy from Shabqadar village to South Waziristan Agency where he was given training to be a suicide bomber.
His parents who were searching for their missing son received a message one day from a militant group that they should consider themselves lucky that their son had blown himself up in an attack killing five foreign troops in Kandahar, southern Afghanistan.
Chief of city police in Peshawar, capital of NWFP, Abdul Majeed Marwat says the militants kidnap teenaged boys because they are easy to brainwash. The boys are told that they would get a ticket to paradise if they killed western soldiers in Afghanistan or their Afghan colleagues, he said.
In the tribal Dara Adamkhel area along the border with Afghanistan, villagers are extremely concerned about their school going boys between 13 and 20 years who are being taken to an undisclosed location by a militant group that has been providing 'hatred-based' education.
Many children have been picked up from schools and off the streets in Dara Adamkhel's Bazi Khel, Shiraki, Bosti Khel and Zore Kali localities.
"Unidentified people picked up my nephew, a sixth class student, from his school. He returned home after three weeks," said a tribesman. "We can't challenge the powerful extremists who enjoy all kinds of facilities. Even the local administration condones their training activities," complained a perturbed parent.
"The boy does not tell us much about the activities of his captors. He keeps silent. He has not divulged anything about the mysterious people," he said.
On March 27 at a public rally in Rawalpindi, Pakistan President Pervez Musharraf, in reply to a woman who asked for his help to locate her missing son, said that those abducted are in the custody of militant groups and not the government.
In fact, the suspension of the chief justice of Pakistan, Iftikhar Mohammad Chaudhry, last month, is also being linked to his continuous warnings to the government to locate persons reported missing by their families. Some 200 such families have recently started a campaign for the recovery of their kidnapped relatives.
"The missing persons might have been lured by the Jihadists, who use them in the fight in Kashmir, Afghanistan and beyond," Musharraf said.
Three month ago, two children were picked up from a school in the Dara Adamkhel. They returned home after spending more than 20 days in the so-called "unknown place".
Locals believe Dara Adamkhel has become a hub of militant activities, particularly its villages perched on rugged mountains.
On April 3, armed men in Tank district, adjacent to South Waziristan Agency, stormed the home of principal Farid Mahsud of the private Oxford Public School in Sheikh Shahnawaz Bhatta area, manhandled women and whisked him and his brother away. Two days later, the men were set free but are tightlipped about the incident.
The government has closed down schools in Tank. According to sources that cannot be named, militant groups are targeting schools for new recruits. Anxious parents and community members fear that their children may be lured away for training in subversive activities.
"Last year, three children were kidnapped by some militants from Dir district. Later, they were traced in South Waziristan at a training camp," an intelligence official told IPS.
Their parents approached the militants with requests to release the boys. But the militants turned them down saying they had spent huge amounts on their training. Eventually each family had to pay Rs 50,000 (a little over 1,000 dollars) to secure their release. "I have restricted my son to the house and school since then," one of the parents confided.
These parents were among the fortunate few. Others who have searched various border areas have been turned away. "I have searched North, South Waziristan and Tank for my child. I have also sought help from militants, but they have refused to share my worries. They asked me to leave the area," said a distraught father.
The general insecurity has forced a teacher in North Waziristan to shift his family to Peshawar. "I took the decision for the safety of my three daughters and son. I want to raise them in a good environment," he said wishing to remain unidentified.
- Inter Press Service
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Plight of Iraqi refugees in Syria
Two million refugees flee Baghdad
Dahr Jamail in Damascus
Salim Hamad, 33, glances at the sprawling buildings of the Yarmouk refugee camp in Damascus and sees business. He has set up a small teashop at the camp. "I left everything behind," he told IPS. "I have no idea what became of my house."
Salim, a railways worker in Baghdad, sold his car and furniture to raise money to bring his wife and three children to Damascus five months ago. Syria it had to be, because by then the Jordan government was no more letting in men his age. He found the money to get to Syria, and he has all of a teashop now, and that makes him one of the luckier Iraqis who could flee.
Yarmouk refugee camp, on the outskirts of Damascus, has for long been home to more than 100,000 Palestinian refugees. It is a set of tall apartment buildings separated by small alleys stuffed with shops. It is one of the better refugee camps. Most refugees have running water, electricity and other basic services. Now tens of thousands of Iraqis have flooded into Yarmouk. The exact number is unknown.
Iraqis also head for the Jaramana and the Sayada Zainab camps, besides countless other areas where they gather to live in smaller groups. The refugees are not allowed to work by law, and most have to live off their savings, and are desperate for assistance.
"I left Baghdad in order to keep my family alive," Qasim Jubouri, who was a banker, told IPS. "Of course we all fled with none of our belongings." Now the money he brought is running out, and he has no idea how he will feed his family beyond survival at a camp. "I ask all nations, particularly the United States, to do all that they can to help us," he said. "Since the U.S. government caused all of this, shouldn't they also be responsible for helping us now?" Thus far the Bush administration has issued visas to 466 Iraqis since the invasion of Iraq in March 2003.
A report released Mar. 22 by the group Refugees International calls the flight of Iraqis from war-torn Iraq "the world's fastest growing displacement crisis." Displacement is taking place within Iraq as well.
The United Nations estimates there are now 1.9 million internally displaced Iraqis. The United Nations High Commissioner for Refugees (UNHCR) says about 12 per cent of Iraq's population of about 25 million will be displaced by the end of the year.
The UNHCR says also that about two million Iraqis have fled the country, mostly to Syria, Jordan, Iran, Egypt, Lebanon, Yemen and Turkey. More than 1.5 million have fled to Syria alone. And almost all came with nothing except what cash they could find to take.
"I was a financial manager of seven companies in Baghdad, but I had to leave my house, my car, and just about everything," said 32-year-old Ali Ahmed.
After militiamen fired at his car in the once upmarket Mansoor district of Baghdad, Ali fled to Jordan. He returned but his car was attacked again. Six men from his company were killed in the attack. And that was not all.
"We had 11 engineers from one company detained by the Mehdi Army (the militia of Shia cleric Muqtada al-Sadr)," he said. "We never heard from them again. I knew then that I had to drop everything and run for my life."
Ali does not see himself returning soon. "I don't expect to go back for at least 15-20 years. I have left everything behind, and now I have nothing but a small food store I run here. But it is not enough. Not the UN, nor any government, least of all the Iraqi government, is doing enough to help us."
Short of both funds and staff, the UNHCR is unable to provide adequate assistance to Iraqi refugees. The agency lacks the resources even to process refugees' documentation. The UNHCR budget in Syria for Iraqis in 2006 was 700,000 dollars, less than one dollar per refugee. It is the only UN agency assisting Iraqis in Lebanon and Jordan.
The most desperate Iraqi refugees receive food, but there is no cash available for distribution.
-Inter Press Service
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Newsman's death casts lingering shadow over Karzai government
Hafizullah Gardesh in Kabul
The murder of Ajmal Naqshbandi, the Afghan journalist kidnapped in Helmand in early March, shocked the country. A growing wave of anger is directed at the government of President Hamed Karzai, who is viewed as having condemned Ajmal to death by his inaction.
The news hit the airwaves on April 8. Shahabuddin Atal, who claims to be spokesman for feared Taleban commander Mullah Dadullah, told the media that the young journalist had been beheaded, one day ahead of a deadline set by his captors.
Within hours, the country was in uproar. Nesar Ahmad, 40, a Kabul resident, could not speak of Ajmal without tears in his eyes. "Why are these oppressors killing you [journalists], who have no weapons except a pen and a notebook? You are the voice of the people, you bring the misery of the people to the ears of the world. Our government does not support our people, it is you journalists who do," he said.
Ajmal Naqshbandi and a driver, Sayed Agha, were seized by the Taleban in Helmand province on March 5 along with Italian journalist Daniele Mastrogiacomo, whom they were accompanying. Sayed Agha was beheaded within days, while Mastrogiacomo was freed in a controversial deal approved by the Karzai government. Five Taleban detainees were exchanged for the Italian, including Mullah Dadullah's brother, Mansoor Ahmad, and Latif Hakimi, the former spokesman of the Taleban.
Defending himself against the criticism that he gave in to the Taleban's demands too easily, President Karzai said, "Italy has given great help to this war-shattered country. When they ask for help, we should respond positively."
But critics argue that the exchange will just encourage the Taleban to carry out further abductions. One Taleban commander in Helmand, who refused to give his name, lent credence to these fears. "Kidnappings are now more important to us than suicide attacks," he told IWPR. "We will follow this path in the future."
Ajmal was reportedly freed along with Mastrogiacomo on March 19. The story then grows quite murky. According to information from local sources in Helmand and confirmed by officials in Kabul, the young Afghan was taken to the Emergency Hospital in Lashkar Gah run by an Italian aid agency, from where he later disappeared.
The head of the hospital, Rahmatullah Hanefi, has been arrested and is under investigation for his alleged complicity in the affair. Ajmal, who was held for five weeks before his murder, became a focal point for popular disaffection with the Afghan government, which many saw as indifferent to the fate of its own citizens. The longer the crisis went on, the more explosive the situation became.
In Kabul, journalists' associations organised a protest in front of parliament on April 9, the day after Ajmal's murder. They issued a joint resolution condemning the government for its failure to secure Ajmal's release, and asked all media to boycott coverage of the Taleban for one week.
Newspapers were printed with a black-bordered portrait of Ajmal on April 10, and electronic media observed two minutes of silence. Fazel Hossein Sancharaki, head of the National Union of Journalists, blamed the government for Ajmal's death.
"The government is just thinking about foreign nationals, not about its own citizens," he told IWPR. With all the power at its disposal, added Sancharaki, the government could and should have done more to gain Ajmal's release.
"After this, journalists will never feel safe, because they have no support," he said. "This will have a very negative impact on freedom of speech in Afghanistan."
Farida, a young journalist in Helmand, is a case in point. At 17, she has been a reporter for two years, even though she is still a schoolgirl. "Many of my classmates wanted to be journalists, but when we heard about Ajmal, they all said, 'no, we don't want this'. They say, 'If they can do this to men, what can they do to us?' and now they are putting pressure on me not to work, to just stay at home," she said.
"Today it was Ajmal, tomorrow it could be any one of us," said Sabawoon, a radio journalist in Helmand. "It is getting closer and closer. When will it be my turn?"The legislature has also come in for its share of condemnation. Engineer Abaas Nawian, a member of parliament, admits that the Wolesi Jirga, or lower house, did nothing to help.
"The Wolesi Jirga neglected this issue completely," he said. "It was not on the agenda even for an hour. When one member of parliament had his house searched, we talked about it for days.
"But regarding a journalist's life, the parliament keeps silent."
Fellow parliamentarian Shukria Barakzai agreed, saying, "I raised the issue [of Ajmal] several times in parliament, but I was told by the speaker Younus Qanuni to sit down and shut up." Presidential spokesman Karim Rahimi defended Karzai and his government.
"We were following the issue from the very beginning, but the Taleban lied to us," he said. "We exchanged five Taleban for Mastrogiacomo and Ajmal. They brought him to the Emergency Hospital - but they did not release him."
Rahimi added that individuals believed to be involved in the case had been arrested and were being interrogated. Observers see political machinations at work. "Ajmal Naqshbandi is the victim of political games," said one analyst, who did not want to be named. "The winners here are Italy, America, and Pakistan. The Afghan government and the Taleban are the losers."
The release of Mastrogiacomo helped prop up the government of Italian prime minister Romano Prodi, who had been under attack at home for, among other things, sending troops to Afghanistan. Prodi earlier warned Karzai that if Mastrogiacomo was not released, the Italian government might have to withdraw its troops from the country.
"We saw when the Italian journalist was freed, the prime minister gained a stronger position among his people," said the analyst. "And Italy announced more assistance for Afghanistan."
The Americans also benefited, he said, because, in the absence of Italy's 1,800 troops, the burden on US forces would be increased. Pakistan, he added, gained by undermining the Karzai government. "By killing Ajmal, Taleban and the ISI showed the Afghan people that this is a foreigners' government. Afghans are not worth anything to them."
If that is true, the policy seems to be working. "Until today, despite all the dirt in our government, I was not so pessimistic," said Najibullah, a resident of Kabul. "But after Ajmal's murder, my hatred of the government increased. They could release five Taleban killers for one Italian, but they could do nothing for Ajmal. "We do not trust this government any more. We do not trust Karzai any more."
However, the Taleban are also losing some support. "I sympathised with the Taleban," said Mohammad Ibrahimi, from western Kabul. "I thought they were holy warriors of Islam. But now they have killed an Afghan, a Muslim. I realise that the Taleban are neither Afghans nor Muslims. They are just slaves of Pakistan."
In Helmand, too, anger against the Taleban is building. "The Taleban are killers," said Mustafa, 22, a resident of Lashkar Gah. "This time they killed simple Afghans - a driver and a journalist. That is a very great crime." Mohammad Aref, 28, also of Lashkar Gah, is reserving his anger for the government.
"Our government has no sense of responsibility to the people. Even if 100 people are murdered every day, it is not important for them. They are weak - trading one Italian for five Talebs shows that our government is incapable of doing anything at all."
Shah Mahmud, 42, agreed. "The government's action in exchanging the Italian for five Talebs is a very long way removed from our beliefs and customs," he said. "The people have lost faith in the government. They will never believe it after this."
- IWPR Feature
Hafizullah Gardesh is IWPR's editor in Kabul.
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Judicial interventions and women in India
A setback for battle against dowry
Rakesh Shukla
The giving and taking of dowry was made punishable by the Dowry Prohibition Act in 1961. However, the practice of dowry continued to flourish and even extended into communities where the custom was not traditionally prevalent. The advent of more and more goods into the market fed into the practice. The nature of items in dowry changed from buffaloes, bicycles and transistors to motorcycles, refrigerators, televisions and cars.
In fact, the increasing number of dowry deaths led to the constitution of a joint committee of both houses of Parliament which proposed certain amendments in 1983. Reflecting on the role of law, the committee quotes Jawaharlal Nehru: "Legislation cannot by itself normally solve the deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help the public opinion to be given a certain shape."
The role of judicial decisions is somewhat similar. The judiciary, while interpreting provisions, has to bear in mind the social evil or issue sought to be tackled, the objective sought to be achieved, and the remedy formulated by the legislation. Judges also have to take on board a review by Parliament of the working of the statute and subsequent attempts to remedy flaws or defects and devise newer provisions. In contrast to 'literal' interpretations, a construction that furthers the objectives has to be preferred, more so in the case of laws brought in to curb pernicious social ills and evils like untouchability and dowry.
It is in this context that it is important to look at the Supreme Court's recent decision (January 2007) in the case of Appasaheb versus State of Maharashtra, 2007 (1) SCALE 50, on the important issue of offences related to dowry.
At the time of the marriage of Bhimabai to Appasaheb, a sum of Rs 5,000 and some gold ornaments were given to the family of the bridegroom. After her marriage, Bhimabai was treated well for around six months. Thereafter, Appasaheb and his mother Kadubai started asking Bhimabai to bring Rs 1,000-1,200 from her parents to meet the household expenses and to buy manure. Whenever Bhimabai went to her parents' home she used to tell them that her husband and her mother-in-law were harassing her and would occasionally even beat her.
Bhimabai's father and relatives went to Appasaheb's house and tried to persuade them not to ill-treat Bhimabai. Subsequently, Bhimabai was treated well for about four months. Then the harassment began all over again. A few days before the festival of Nag Panchami, Bhimabai visited her parents' home and complained that her husband and mother-in-law were not giving her adequate food, clothing and footwear. She also said that her husband had asked her to return with Rs 1,000-1,200 to meet the household expenses and the cost of buying manure.
On the evening of September 15, 1991, Bhimabai's father Tukaram was told that his daughter was unwell. Tukaram and his relatives immediately went to the in-laws' house. There they saw Bhimabai lying dead with froth coming out of her mouth, indicating that she may have consumed poison. The police lodged a report of accidental death and the body was sent for post-mortem.
On September 16, 1991, Tukaram lodged a First Information Report (FIR) on the incident. A case of dowry death (Section 304 B of the Indian Penal Code [IPC]), abetment to suicide (Section 306 of the IPC) and cruelty to a woman by her husband or his relatives (Section 498 A of the IPC) was registered against Appasaheb and his mother Kadubai.
Following an investigation, a chargesheet was submitted against the husband and mother-in-law. The sessions judge framed charges for dowry death, abetment to suicide, and subjecting a woman to cruelty. The prosecution examined six witnesses and placed documentary material to establish the case. The sessions judge convicted the husband and mother-in-law for dowry death, under Section 304 B of the IPC, and sentenced them to seven years' rigorous imprisonment. However, the judge acquitted them of the charges of abetment to suicide and cruelty to a woman, under Sections 306 and 498 A of the IPC, respectively.
Appasaheb and the mother-in-law's appeal against a conviction for dowry death was dismissed by the Bombay High Court in February 2005. Following the dismissal, the matter reached the Supreme Court on an appeal filed by the husband and mother-in-law against the conviction for dowry death.
The Supreme Court noted that the post-mortem report did not find any sign of external or internal injury; it stated that the cause of death was insecticide poisoning. The court examined the evidence of the father and mother. It noted that the mother had deposed that Bhimabai had complained of ill-treatment by her husband and mother-in-law, accompanied by demands for money from the parental home. That on the last visit before her death, on the occasion of Nag Panchami, Bhimabai complained again of ill-treatment and beatings for not bringing money from her parents. The court noted that the father had said that his daughter had complained of harassment due to "domestic reasons". That the mother had said that her daughter was being ill-treated for not fulfilling the demand for money to meet household expenses and the cost of buying manure, etc.
The judgment observes that the mother's statement to the police, recorded on September 16, 1991, did not mention that the cause for ill-treatment was "a demand for money and consequent beating". However, Bhimabai's mother deposed before the sessions court that she had clearly told the police that the ill-treatment was due to non-fulfilment of the demand for money. The Supreme Court judgment observes that the accused are from a humble background and could not have exerted any kind of influence on the police to omit the statement.
After the above observations, the Supreme Court accepts the statements of the mother and father of the deceased Bhimabai and observes that the "utmost which can be said is that the appellant No 1 had asked his wife Bhimabai to bring money for meeting domestic expenses and for purchasing manure". The judgment goes on to examine the ingredients of the offence of a dowry death. It notes that the death of a woman should have been caused by burns or bodily injury, or occurred otherwise than under normal circumstances and that she should have been subjected to cruelty or harassment in connection with a demand for dowry.
Thereafter, the judgment examines the Dowry Prohibition Act and observes that the giving or taking of property, directly or indirectly, should have a connection with the marriage of the parties for it to constitute 'dowry'. The court notes that the provision for dowry death is a penal provision and therefore the definition of dowry should be construed narrowly. The judgment further declares that the principle of interpretation to be followed is that if an Act is passed with reference to a particular trade, business or transaction, then the words in the legislation should be construed as having the same meaning as generally understood in that trade, business or transaction.
Observing that "dowry is a fairly well-known social custom or practice in India," the judgment indicates that the definition of 'dowry' should be construed as having a meaning that is generally understood. The judgment lays down that a "demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood".
Applying the law laid down to the facts of the present case, the judgment observes that the evidence adduced by the prosecution does not show any demand for 'dowry' being made, as money to meet domestic expenses and to purchase manure was asked for by the accused persons. The essential ingredient of a demand for dowry was held to be not established in the case, and the husband and mother-in-law were acquitted of the charge of dowry death. Noting that the trial court had acquitted the accused for the offences of abetment to suicide and cruelty to a woman by her husband or relatives, under Sections 306 and 498 A of the IPC respectively, and observing that the State had not filed any appeal against the acquittal, the Supreme Court refused to go into the question of culpability for the offences under these sections. The court directed the release forthwith of the husband and discharged the sureties and bonds of the mother-in-law who was already on bail.
The Dowry Prohibition Act was brought in with the objective of prohibiting the evil practice of giving or taking dowry. It was felt that making the practice punishable would contribute to its eradication. However, the "ever-increasing and disturbing proportions" of dowry caused concern, and a joint committee of the houses of Parliament was constituted to examine the question of the working of the Dowry Prohibition Act. This led to the insertion of Section 498 A in the Indian Penal Code which made cruelty towards a woman by her husband or his relatives punishable with three years' imprisonment, by an amendment in 1983.
The initial definition had the requirement that property or valuable security should have been given "as consideration for the marriage of the said parties" for the act to constitute dowry. The working of the Act showed that it was extremely difficult to establish in court that things had been given as "consideration" for the marriage. Concern about devising a means to tackle the menace of dowry led to the substitution of the phrase "as consideration for the marriage" by the wider phrase "in connection with marriage", through an amendment in 1984. Similarly, the definition of dowry contained the phrase "at or before or after the marriage," referring to the time when things were given. Again, in a bid to plug loopholes, in 1986 the phrase "at any time after the marriage" was substituted with "after the marriage" to make the definition more inclusive.
In 1986, in an attempt to check dowry harassment, the offence of dowry death was created by introducing Section 304 B in the Indian Penal Code which provides for a minimum of seven years' imprisonment in case of the unnatural death of a woman within seven years of marriage. Similarly Sections 113 A and 113 B, providing for presumptions against the husband or his relatives in cases of abetment to suicide and dowry death, were introduced into the Evidence Act in 1983 and 1986 respectively.
Ever since Independence there has been concern and distress with regard to the murdering of women for dowry, or harassing them to the point of suicide. The enactment of the Dowry Prohibition Act in 1961, a review of the workings of the Act, suggestions and amendments in the definition of dowry, the creation of the offences of dowry death and cruelty towards women within seven years of marriage, and insertions introducing presumption with regard to abetment to suicide and dowry death in the law of evidence are all part of serious attempts by society and Parliament to check dowry-related crimes.
It is against this background that the provisions of an enactment like the Dowry Prohibition Act and dowry death offences are to be interpreted by courts of law. Unfortunately, in the present case, the Supreme Court seems to have disregarded the entire context - the social evil to be tackled, the objective sought to be achieved, the continuing number of horrific cases of dowry death/suicide, and attempts at devising more effective provisions - and gone in for an interpretation totally at odds with the whole purpose of the legislation. Rather than looking at the enactment as social reform legislation, the judgment equates it with legislation in the area of any trade, business or transaction.
The law declared by the Supreme Court that money demanded on account of financial stringency, or to meet urgent domestic expenses or purchase manure is not dowry is binding on all courts in India. This retrograde judgment has serious repercussions for ongoing and future dowry-related cases, as well as attempts to check the menace of dowry harassment, death and suicide. It needs to be reviewed at the earliest by a larger bench of the court.
(The writer is a Supreme Court lawyer)
Courtesy: Infochange Features
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New Dawn in China-Japan relations?
Barrister Harun ur Rashid
China's Prime Minister's three-day visit to Japan (11-13 April), the first in seven years by a Chinese Premier, is being seen as an important step to get over the past and improve ties.
The visit is a follow-up to Japan's Prime Minister Shinzo Abe's groundbreaking trip to China in October, reversing a steep plunge in relations that had troubled the region and Japan's top ally, the United States.
Prime Minister Wen Jiabao was given the rare honour to address the Japanese Parliament (the Diet). It was the first ever Diet address by a Chinese Prime Minister.
The visit witnessed two agreements concluded-one on sharing technology to help save energy and the other to import rice from Japan. Mr. Wen met with Emperor of Japan at the Imperial Palace.
The genesis of disputes
Japanese invasions of China in 1930s and 40s caused immense suffering to Chinese people. China feels that Japan has not done enough to atone for wartime atrocities on Chinese people.
Furthermore the former Prime Minister of Japan Junichiro Koizumi, exacerbated bilateral relations when he regularly visited the Yasukuni shrine, honouring its war dead, which the Chinese believe glorifies militarism. As a result, China refused to hold bilateral talks with Koizumi.
Besides, China perceives some support in Japan for Taiwan's independence. It may be recalled that China's defeat in the 1884-95 Sino-Japanese war resulted in the cession of Taiwan to Japan. Japan established a military base in Taiwan and promoted educational and economic development. Only after Japan's defeat in the Second World War, the island reverted to China. Taiwan is the renegade province of China.
Japan's tacit support for Taiwan's independence goes against Chinese long-standing policy of three No's to Taiwan- namely, "No Two China, No Independence, and No Representation in international bodies". China will never tolerate Taiwan's independence.
China and Japan has long been disputing over who owns oil and gas reserves in the East China Sea in the exclusive economic zones. This dispute has led to the presence of naval forces of both sides to assert their claims.
In addition, Japan accuses China of being secretive about its rapidly growing defence budget (almost 18 per cent for this year), while China is wary of plans to revise Japan's pacifist constitution. The current constitution was written by the US before Japan became independent after the Second World War. Japan briefly came under the US occupation after the war. With 60 years past, there are provisions in the constitution that no longer befit the reality of the day, claims Japanese Prime Minister.
That Japan has signed recently a new security agreement with Australia is itself a symbol of the changing Japan. Furthermore Japan already had a security treaty with the US. China is watching with apprehension that Japan's abandoning its pacifist constitution and the tri-lateral security arrangements (Japan-US-Australia) is encircling China and no one may have any illusions about its impact on China.
Japan often takes tougher stance than China on North Korea's nuclear issue. North Korea's long-range missile can easily target Japan and this has caused great concern about its security in Japan.
Trade ties thrives
There is another dimension in its strained relations, which is generally ignored. It did not have impact on economic relationship. In fact, Japan-China economic relationship has thrived. It is reported that Japan's trade with China surged 11.5 per cent (excluding Hong Kong) in 2006 to US$ 211 billion, while Japanese exports to China rose 15.6 per cent, nearly doubling 8.8 per cent growth in 2005.
Mainland China reportedly was poised to become Japan's top trading partner this year, accounting for 17.2 per cent of Japanese trade in 2006-just a shade short of the US share of 17.4 per cent.
Chinese Prime Minister diplomatically touched all the issues that divide them. First he called for Japanese apologies to be matched by concrete actions. This implies that Japanese Prime Minister Shinzo Abe should not visit the Yasukuni shrine. However Wen took a reasonable stance when he said that just a few Japanese militarist leaders were to blame and that most Japanese people were also war victims.
Regarding Taiwan, Wen Jiabao said that Japan would understand the highly sensitive nature of the Taiwan issue, abide by its pledges and handle the issue prudently. He reiterated that he would strive to resolve the Taiwan issue peacefully.
On the issue of oil and gas reserves in East China Sea, he hoped China and Japan could find a peaceful solution to their differences. Finally Chinese Prime Minister wanted to promote friendship and cooperation and pointed out that economic development of China was an opportunity for Japan, not a threat.
It is noted that China needs stability in the region for its economic growth. There is a wide disparity of incomes between urban and countryside people and this is posing a threat to China unity. China needs peace for its march to becoming an economic power that reduces the disparity.
It is also noted that China's economy is only a fifth of the US economy in size. While the US spends US$400 billion in defence per year, China spends only US$90 billion. Military strategists believe there is no evidence to support the notion that China will become a military power threatening the US, by 2030.
Both Wen and Abe pledged to improve relations and in a joint statement they vowed to seek ways to jointly develop gas deposits in the disputed waters, pursue the de-nuclearisation of the Korean peninsula and "face up to history" in building forward looking relations.
Both countries have committed to working together to find a resolution to North Korea's abduction of Japanese citizens and to reforming the UN Security Council (Japan's hope of getting a permanent seat in the Council was dashed by China's stance in 2005).
The visit represents a further easing of ties and commences a new dawn in their relations. If Japan becomes friendly with China, mutual trust will grow and together they can work out the future political architecture in Asia Pacific.
China does not want to see Japan playing a "second fiddle" to the US to contain China in the Asia Pacific region. At the same time Japan does not want China threatening its security. Good and stable relations between the two nations can bring about a world where fear is changed to hope, want gives way to dignity and apprehensions are turned into aspirations.
The writer is a former Bangladesh Ambassador to the UN, Geneva.
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