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Electoral Reforms in India: Good Governance Diplomacy in Smoke and Mirrors

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The punishment suffered by the wise who refuse to take part in the government, is to suffer under the government of bad men said Plato. The governance is perennial permutation and election is periodic mutation. Governance is not limited to electoral reforms alone; it has got embedded with a multitude of vicissitude. India is synonymous with democracy and it has become a shibboleth in political parlance to address India as the largest democracy.

Democracy is an engine that is propelled by the fuel of equality with equity, liberty with pluralism, fraternity with multiculturalism and unity with diversity on the tracks of rule of law and public participation. But democracy has eviscerated democracy in India due to its being in the hands of people who do not subscribe to an idea called institutional constitutionalism that in turn ensures good governance. The good governance germinates and gestates choices called election that is an inalienable and non-derogable feature of democracy that works as the spinal cord to sustain diversity, pluralism and multi-culturalism.

Election is not a seasonal pomp and show but a sacrosanct and serious process of upholding norms of democratic way of life in all geo-political entities including India. Thus, election is not limited to change of one set of political structure with another one but it a multitude of many dimensions. However, there is a pejorative trend in the most powerful methodology of making choices at the hustings. Despite the fact that scientific and technological advancements [EVMs (Electronic Voting Machine)] are being employed to elicit the free and fair preferences and predilections of We, the People of India, at the electoral politics but electioneering still lacks transparency in terms of funding, trolling, and defection etc.

The robust economic reforms peregrination of India since 1991 has made an indelible integration of Indian economy with the world economy but at home has created a democratic deficit in the Indian polity and left it unattended that is overdue parliamentary reforms called electoral reforms agenda. The electoral reforms in 21st century context have become more important and relevant than ever before. In the absence of electoral reforms, democratic deficit is having an incremental impact in the form of low voter turnout, no compulsory voting, no postal voting and no online voting. These trends are bad for democracy as people’s engagement in the political process is dismal and many vulnerable sections like minorities and Dalits feel alienated and excluded. Consequently, electoral reforms agenda is subjected to amnesia by the political executive that has been basking in a state of hubris since the inauguration of the Constitution of India. This sordid state of affairs has presented a desideratum; can economic reforms alone deliver? How to address the interplay among issues of corruption, accountability, rule of law, political party development, public administration and economic reconstruction in elections in divided societies? How is good governance achieved in elections? How to promote good governance in transition? Is everything fine with the existing electoral process in India? Are we, the people of India suffering from democratic diseases or excessive democracy?

History of Electoral Reforms in India 

The first three general elections (1952-1962) have been regarded free and fair elections but subsequent elections are marred by the distortion of the power structure at every level of governance. Consequently, positive power has been restricted and negative power remains unchecked. State organs have become dysfunctional and have been suffering maximum government and minimum governance. Elections only change players but there is no change in the rules of the game. Moreover, authority stands delinked from the accountability and rule of law. Institutional on-performance has become rampant, good behaviour is not rewarded and bad behaviour is not punished and honesty and political power have increasingly gone incompatible. There have been several attempts to have electoral reforms agenda executed wherefor few committees and commissions were constituted such as 1990 Goswami Committee on Electoral Reforms, 1993 Vohra Committee Report, 1998 Indrajit Gupta Committee on State Funding of Elections, 1999 Law Commission Report on the Electoral Laws, 2001 National Commission to Review the Working of the Constitution, 2004 Election Commission of India with Proposed Electoral Reforms and 2008 The Second Administrative Reforms Commission. These committees and commissions have adumbrated the appalling deviations, discrepancies and irregularities in the election process and made pragmatic recommendations to reform the electoral architecture.

Supreme Court of India on Electoral Reforms

The Supreme Court of India ruled in July, 2013 that Parliamentarians and State Legislators who have been convicted with a jail term of two years or more are barred from contesting elections. The Supreme Court has struck down Section 8 (4) of the People’s Representation Act, 1951 in India whereunder convicted members of Parliament and State Legislatures were allowed to continue in their elected offices. Meanwhile, their appeals peregrinating in the upward mobility of the judicial hierarchy as the Clause 8(4) had provided special privilege to MPs/MLAs to hold the office even after conviction if an appeal has been filed in a higher court within the span of 3 months. On a petition filed by a NGO called Common Cause for having a separate button on the Electronic Voting Machine (EVM) with the option of “None of the Above” (NOTA) and the Supreme Court gave a favourable ruling in the NOTA case on 27th Sept. 2013. The NOTA button was inserted in the EVM machines first time during the 2014 Lok Sabha elections. In the case of People’s Union for Civil Liberties vs. Union Of India, (2013) 10 SCC 1, the Supreme Court ruled that it is a ‘categorical imperative’ that a candidate discloses his criminal antecedents otherwise such concealment would amount to a “corrupt practice” under Section 123 of the Representation of the People Act, 1951. Further, such a corrupt practice makes the candidate liable to be disqualified under Section 8A of the same Act. But such progressive judicial decisions do not get any political backing as political parties are not honest to have electoral reforms and cleanse the political system mired in political chicanery and subterfuge. There are some notable cases delivered by the Supreme Court like FCRA Tribunal Case, [CRL.M.C. No. 2784/2011 & Crl. M.A. Nos. 10129/2011/2015 and 6144/2012, Foreign Contribution (Regulation) Act, 2010], The Alleged Paid News Case [Ashok Shankarao Chavan v. Madhao Rao Kindhalkar and Others (2014) 7 SCC 99, 1], Disqualification Of Convicted MPs/MLAs Case [Lily Thomas and Lok Prahari NGO Case, (2013) 7 SCC 653] and Disproportionate assets of the Elected Representatives Case [Lok Prahari v. Union of India and Others,10 July, 2013]

Major Electoral Issues

Electoral canvas of India is in utter chaos from top to bottom and it appears beyond correction at least at the end of political architects of the country. The Election Commission of India has been making all efforts to cleanse the electoral system but We, the People of India, only look up to the highest judicial establishment of the land—the Supreme Court of India—for the redress of our repinements. However, judicial branch of the state should not be treated as a panacea for all ills that have been plaguing the country since its emergence out of the colonial clutches in 1947. There is crisis of governance that has raised its ugly head in many forms like Increasing Lawlessness, Inefficient State Apparatus, Unresponsive Bureaucracy, Expensive Judicial System (or Ineffective), All Pervasive Corruption, Criminalization of Politics, Politicization of Criminals, Money and Muscle Power in Elections, Political Instability, Erosion of Legitimacy of Authority, Fiscal Power [Cash Limit], Misuse of State Machinery [Incumbent Government], Compulsory Voting [Penal Consequences], State Funding [Reimbursement of certain % of amount] [National Election Fund], Casteism, Communalism, Religion, Regionalism [CCRR], Intra-party Democracy [Nepotism and dynastic political outfits are autocratic & unaccountable], Inclusion, Exclusion and Cessation of Candidates [Qualifications etc.], Candidate Expenditure Limits- No Limit on Political Party, Corporate Electoral Trust/Corporate Funding to Political Parties [Proposal for Electoral Bonds], Issue of Foreign Funding Taken By BJP and INC and How to bring Political Parties under RTI?

Way Ahead

In this conspectus, there is a need to have comprehensive, consolidated and holistic electoral reforms while addressing following submissions along with all issues that have been identified hereinabove that there must not be a caste-based or religion-based delimitation of parliamentary and state assembly constituencies, True Representation of political attitudes must be attended, state funding of election campaign must be based on securing minimum percentage of vote share by a political party and to equalize the election completion, there should be an easy procedure for voting, vote counting, ballot design that must be identifiable by the ordinary voter. The Constitution of India must appropriately be amended to address the administrative and legal framework to make the electoral reforms more pragmatic and practical, election law must make transparency a prerequisite of a fair election and change the way politicians plan to win the elections under all circumstances, the Election Commission of India should again be a single member body or primacy to the opinion or decision of the Chief Election Commissioner (CEC) of India be accorded in the existing election body to ensure fairness, transparency and integrity of the system, the avenues must be cajoled to ensure full turnout of the voters, National Transparency Courts (NTCs) must be established to try election-related offences and violations within a time-frame of one month, election reforms must make honesty compatible with public office and create a fusion of authority and responsibility within the gamut of citizen-centered governance. Electoral reforms must respect the people’s sovereignty and the instruments of accountability [Right to Information, Citizen’s Charters with penalties for non-performance, Stakeholder empowerment, making crime & corruption investigation agencies independent and autonomous. Therefore, the idea of a democratic polity is incomplete without periodic elections. The attitudes, ethics, and values of a society wedded with democracy of diversity and multiculturalism are expressed in elections. People’s sovereignty is asserted in the elections that accords legitimacy to the government and its lego-institutional structure for good governance. A free and fair election is the backbone of a democratic political set-up and same has been ordained in the schematization of the Constitution of India.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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South Asia

As Sri Lanka struggles with Chinese debt-trap, Maldives moves closer to the Quad

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The Indian Ocean’s geopolitical currents have witnessed drastic transformation this year, particularly in the past three months, with India shedding the exclusive right of its sphere of influence over the Indian Ocean, by allowing the United States in its own backyard. Washington and New Delhi seems to have entered into what few analysts call a ‘soft alliance’.

Sri Lanka and Maldives are strategically located in the northern section of the Indian Ocean, and have long been historically, culturally, and geopolitically under India’s sphere of influence. But, things are beginning to change as Chinese debt-trap looms over these islands.

The Quad grouping, consisting of India, Japan, the United States and Australia, has demonstrated its collective military might in the maritime sphere of India with the recently concluded annual Malabar naval exercise. It also led to the emergence of new dynamics of cooperation in previously reticent areas, built upon confidence in each other’s abilities and consciousness of where it stands in the newly unravelling geopolitical equation.

India’s new strategic comfort with bringing in partners from the Quad partners lying external to the Indian Ocean Region, namely the US and Japan into its long-held exclusive sphere of influence signals a tilt in strategic imperatives for New Delhi in favour of the US that too in an evolving cold war-like situation involving Washington and Beijing with different set of countries rallying behind each side.

India has recently welcomed the US-Maldives Defense Cooperation Agreement signed in September, this year. The following month saw US Secretary of State Mike Pompeo’s visit to Male where he announced Washington’s intent to open an embassy soon.

Less than three months after the defence pact with Washington, Male signed a new agreement with Tokyo this month, for availing a Japanese grant of $7.6 million to strengthen the archipelago’s Coast Guard capacities, in a second major pact with a Quad member.

New Delhi’s newfound willingness to work with external actors in the Indian Ocean is a sign of strategic comfort stemming out from realist foreign policy considerations to expand its circle of friends and coalition partners in its own backyard against a common and more powerful adversary, Beijing, with which it also have decades-long tensions in the Himalayan frontiers.

Even though both these two countries succumbed to disproportionately superior Chinese economic might since the past one decade, it seems Maldives has somehow managed to come out of its dangerous level of dependency on China since Ibrahim Mohammed Solih of the Maldivian Democratic Party assumed presidency of the island nation two years back in November 2018.

The Sri Lankan economy went into a tailspin since the civil war ended in 2009. The country’s exchequer was badly in need of financial support to sustain itself. It was also the time when Beijing just began to project its military and economic power in its neighbourhood and beyond as the flamboyant 2008 Beijing Olympics concluded.

The island of Sri Lanka soon acquired new geoeconomic significance when President Xi Jinping launched the most ambitious infrastructure project of this century in 2013, the Belt and Road Infrastructure, connecting three continents with the Indian Ocean as its epicenter of vitality.

With BRI, a tangled web of debt-trap rapidly began to loom over Sri Lanka as Beijing pumped-in investments into the war-battered island with malicious intentions.

The story of handover of Hambantota port, strategically located in the southern tip of Sri Lankan coast, to China for a 99-year lease in 2017, and the Colombo Port City project being built with Chinese assistance are just examples of how economic leverage gained geopolitically advantageous positions for Beijing overlooking the Indian Ocean. These assets are going to play a significant role in the connectivity of BRI’s ‘Maritime Silk Road’ aspect.

Chinese-led projects are built and managed by Chinese workers themselves as they do in any other part of the world, naturally bringing presence of Chinese personnel to the areas where it operates.

The BRI, however, enhances Sri Lanka’s significance in what theorists call the String of Pearls, wherein Beijing attempts to encircle India by a series of ports and maritime installations under its control in the Indian Ocean such as the overseas military base in Djibouti, Gwadar in Pakistan, and the ports in Bay of Bengal under Chinese influence hosted by either Bangladesh or Myanmar. Chinese submarine presence is also a new reality, particularly in areas surrounding the Malacca Straits.

All these factors naturally brought New Delhi closer to Washington to formulate a ‘collective strategy’ against the expansionist tendencies manifested by Chinese behaviour. At the same time, India has been taking proactive steps in its individual capacity to boost ties with other island and littoral states in the Indian Ocean Region (IOR), like Mauritius and Seychelles where India’s listening posts to monitor sea-lanes also operate.

The Indian Navy has always been the first responder to any HADR (Humanitarian Assistance and Disaster Relief) situations in the IOR which earned significant soft power and respect for India in the countries of the region. This vision has been immortalized in India’s maritime doctrine for regional cooperation in the Indian Ocean, SAGAR (Security and Growth for all in the Region), that was unveiled in 2015.

With the entry of the US, which already has its presence in the British Indian Ocean Territory of Diego Garcia lying mid-way of the ocean, that too with India’s approval, and France in Reunion in the western Indian Ocean, the geostrategic picture of IOR is beginning to change.

Maldives stands as a good example of how to overcome Chinese dominating agenda by boosting cooperation among democracies. But, the Abdullah Yameen-era nightmare of Chinese debt burden is still far from over. In fact, Sri Lanka too is well aware of the Chinese trap from which it yearns to decouple itself. But, Colombo is left with limited options or alternatives to do so.

The renewed Indo-US strategic cooperation, if not translated into offering a viable solution to the debt-trap conundrum, Sri Lanka might irreversibly evolve into another extension of Beijing’s legs in the Indian Ocean threatening the sovereignty of democracies in the region.

Recent steps in the strategic realm are welcome, but the Indo-Pacific democracies, particularly India and the US, should cooperate with these two key island states more in the economic realm as well, if possible near to the extent of Beijing as a collective move.

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The Dysfunctional Pakistan’s Legislature

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The legislature of Pakistan has several problems and because of this very reason governments are unable to make any landmark laws for the state that can prove to be effective in resulting some socio-political or economic changes in the society. The noncooperation among the parties in the house is the major problem that leads no healthy debate. People have never seen the political parties having a healthy debate among the political parties on some key matters that need to address. Political parties prefer crosstalk on each other that mostly ends up on the dismal of legislature. Mostly in the house the opposition and the party in power never each on consensus on anything that shows their no seriousness towards the legislation.

 In my opinion the opposition of Pakistan perceives its role to be negative always. The opposition perceives as their duty to walk out from the house, make fun of their fellow colleagues, bringing our historical facts to propagate negativity about the agenda. This attitude results in no fruitful law-making.

The scenario of national assembly of Pakistan is that if the ruling party does not has two-third majority in the house they will be paralyzed as the opposition has imagines role of not supporting the government to pass laws and bills that can benefit their reputation among the public. In this game of interest the parties forget the importance of legislation and national interest rather they are more focused on protecting their own interests and interests of their political parties.

The tussle between the government and the opposition is endless that is negatively impacting the legislative system of Pakistan.

Another factor that weakens the legislative process of Pakistan is the issues within the upper house. This plays a vital role in enacting the laws without senate’s cooperation legislation cannot improve and strength.

 The sustained bitterness and confrontation with the government and opposition leads to no progress in the making of legislation and strengthening the rule of law. For example the PTI coalition passed the bills and introduced 8 ordinances in its first year of government.

The ten bills passed by national assembly faced a new challenge which was the Senate of Pakistan where PTI also does not hold the majority. Ten out of 4 bills sailed through Senate whereas 3 remained pending in Senate. Only 7 bills turned into acts in the first year of PTI government.

The lack of coordination and seriousness in the parliament is affecting the progress of Pakistan. Without rules and making of new legislation how can the country progress? In a democratic system the rule of law is one of the pillars for true democratic practices but unfortunately in Pakistan we only see leg-pulling and blame game between the institutions.  The lack of political consensus among the parties is another problem. On the other hand the formation of Standing Committees of national assembly is important for the functioning of the system. According to the Rules of Procedure of national assembly the members of Standing Committees has to be elected within 30 days after the elections of the leader of house but according to the data of PILDAT previous assembly managed to form these in 3 months instead of 30 days. This indicated lack of seriousness of the members.

The current government has only got the executive authority and not the legislative competence that makes them dysfunctional as they are dependent on the opposition and then Senate for passing of the legislation and making it a law.

Another factor that weakens the legislative system of Pakistan is the overactive judiciary and the intervention of the military in law making. Through this intervention the legacy of the military rule is still being kept alive. Most of the time the Supreme Court and the judiciary intervene in the legislation to serve their interest and weaken their opponents sitting in the government. The overactive judiciary encroaches the governance agenda, legislative advice etc. the legislative procedure in Pakistan is still developing its institutional identity.

The duty of the legislature is to respond to its public needs and also exercise oversight of the executive, but there is not engagement in the civil society and no research is being conducted on the public policy for better and effective policy making.

In the end it can be concluded that the system is also faulty but the attitude of the parliamentarians is more disappointing and discouraging. The whole system is unsuitable for a less educated population of Pakistan as most of the parliamentarians are unaware of policy-making and its importance for the state. The process is also complex and complicated as it has to go through several steps for making a bill a law.

Through this process, law-making on controversial issues is nearly impossible because in Pakistan people protect their interest instead of their state. Even if the government is serious for law-making the judiciary, military and bureaucracy will not allow the government to do its job. This is high time to adopt a new system in this country and draw lines for every institutions particularly judiciary that is the most rigid institutions and creates hurdles for every government by interrupting them.

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Reinforcing the Role of the International Community in Resolving the Rohingya Crisis

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A young Rohingya girl holds her brother outside a youth club in Cox's Bazar, Bangladesh. © UNHCR/Vincent Tremeau

Bangladesh is hosting more than 1.1 million Rohingya refugees since August 2017. The United Nations defined Myanmar’s August 2017 atrocities to the Rohingyas as “Textbook case of ethnic cleansing”. On July 02, 2018, during his visit to Cox’s Bazar, Bangladesh, António Guterres, the UN Secretary-General noted that “I have no doubt that the Rohingya people have always been one of, if not the, most discriminated people in the world, without any recognition of the most basic rights starting by the recognition of the right of citizenship by their own country – Myanmar”. Thus, the severity of the Rohingya crisis is well-recognized by the international community. This article focuses on the necessity of the international community’s role in facilitating a safe and sustainable Rohingya crisis solution.

The ironic story is that though it is already three years passed, no concrete action is manifested to facilitate the Rohingya refugee repatriation. In the United Nations Security Council, Russia and China applied veto power in the case of Rohingya refugee resolution, which made strong impediments to the repatriation process. Russia and China did this calculating their narrowly defined interest rather than humanity which is in fact, ironic for the world. Thus, the United Nations could not play a crucial role in facilitating the Rohingya refugee repatriation.

Bangladesh is one of the densely populated countries in the world. Though Bangladesh is a rising economic power, feeding more than 170 million people is not an easy task. Also, more than 1.1 million Rohingya refugees have added extra socio-economic pressures in the country. For Bangladesh’s continued growth, prosperity, and stability, there is no alternative to repatriate the Rohingya refugees in Myanmar as early as possible. Since Myanmar committed ethnic cleansing to the Rohingyas, and the country is not interested in taking back the Rohingyas, only the international community including the United Nations, the European Union, the Organization of Islamic Cooperation (OIC) can pressurize Myanmar to ensure a safe and sustainable repatriation.

Bangladesh strongly believes that the international community can play an essential role in resolving the Rohingya refugee crisis permanently. For instance, at the 72nd United Nations General Assembly, Sheikh Hasina, the Prime Minister of Bangladesh, offered five points proposal including the full implementation of recommendations of the Kofi Annan Commission, and the establishment of civilian monitored safe zone in the Rakhine State to the international community to resolve the issue. Similarly, at the 74th Session of the United Nations General Assembly, Sheikh Hasina offered a four points-proposal to resolve the Rohingya crisis highlighting the role of the international community. Sheikh Hasina emphasized that the international community must ensure that the root causes of the Rohingya problem area addressed and the violation of human rights and other atrocity crimes committed against the Rohingyas are accounted for.

The good news is that the on November 19, 2020, the United Nations has adopted a resolution on “The Situation of Human Rights of the Rohingya Muslims and other minorities in Myanmar” while Bangladesh seeks a peaceful solution to the Rohingya crisis. The Resolution called for taking concrete actions by Myanmar to address the root causes of the Rohingya crisis, i.e. granting them citizenship, ensuring the safe and sustainable return of the Rohingyas to their homes by creating a conducive environment. Bangladesh Permanent Representative to the UN Ambassador Rabab Fatima notes that “As a country that hosts over 1.1 million forcibly displaced Rohingyas, Bangladesh continues to seek a peaceful solution to this crisis, which lies in their safe and dignified return to Myanmar”.

Notably, Germany on behalf of the European Union and Saudi Arabia on behalf of the OIC co-tabled the Resolution which was sponsored by the 104 member states including the USA, Canada, and Australia. It is also a positive development that a total of 132 countries voted in favour of the Resolution while nine countries voted against and 31 countries abstained. It demonstrates that most of the countries in the world want a permanent, sustainable and peaceful solution to the Rohingya crisis. It also signifies that these countries care for the humanity while the nine countries who voted against the Resolution only care for their narrowly defined interest. The future generations will undoubtedly read and know the actions of those nine countries who do not care for humanity. Those nine countries need to know that despite several domestic challenges, Sheikh Hasina has shown kindness, humanitarian gesture and thus protected and sheltered those Rohingyas from killing by the Myanmar armies.

Notably, Bangladesh is one of the top ten countries in the world in terms of hosting refugees. This will remain as a humanitarian example in the world. One also needs to keep in mind that the socio-economic realities of Turkey (who is the top in hosting refugees), and Bangladesh is not the same. While the GDP (per capita) of Turkey is US$ 9043, Bangladesh’s GDP (per capita) is US$ 1856, the population density of Turkey is 108 per square kilometres, and Bangladesh’s population density is 1116 per square kilometres. Thus, considering the contexts, and socio-economic realities of Bangladesh, the international community needs to reinforce the Rohingya refugee repatriation process. Most importantly, the international community needs to execute the adopted Resolution as early as possible for the sake of humanity, for the sake of a just cause. The future world will certainly note the noble actions taken by the international community for such a just, and reasonable cause.

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