Forum (Spotlight Weekly)

Farmer's Irrigation: Upcoming Legal Challenges

By SURYA NATH UPADHYAY

Irrigation is intertwined with culture, history, anthropology and sociology and is connected to the softer side of human relationship, desire and behavior. This provides a flexible informal set of behaviors to manage Farmer-Managed Irrigation Systems (FMIS). The system grew and was sustained by such attributes as flexibility, responsiveness to needs and informality along with the sanction of moral values.

However, with changes on two fronts - social relationships and growing competition for water use - FMIS faced increasing challenges of sustainability. In this situation, it was natural to turn to written rules and somewhat more specific guidelines.

The need to be recognized under the eyes of law was necessary for not only managing internal behavior but also to get support from outside. As the social lifestyle changed, labor that used to be made available by voluntary work, took the form of money. It became easier for people to contribute in cash than to contribute labor for the whole day.

Similarly, the need to construct intake and make some portions of the canal more stable necessitated the purchase of cement and other materials. Hence, it was natural to shift from an informal regime to a formal one. However, the shift was not smooth. A variety of legal models emerged to make this shift. The institutional and legal models that are generally practiced are co-operatives, non-government organizations and water users associations. All these institutional and legal frameworks again have various characteristics in their content, form and operational rules. In many cases, even the objective could be broader or specific, single or multiple. Countries seem to have tried these models as it suited their legal regime and the historical evolution of FMIS.

This transition is still going on. With growing pressure of population and demand on agriculture, FMIS in recent years are facing further challenges in securing water rights and in linking their activity with other aspects of agriculture. The issue of efficiency, which was not emphasized much earlier, has become the prime issue. Hence, conflicts are bound to occur.

Water is no longer easily available. Even if it is available, it needs to be utilized in a more efficient manner. There is no space for wasting it. FMIS have to be very cautions about this. Their water right has been conditioned by limitations. Even the quantum of the water they were utilizing is sanctioned by efficiency because it is needed for various other purposes.

For FMIS, there is a specific need to know the rules of water availability and distribution in order to solve internal and external conflicts. A simple yet clear, a flexible yet specific set of rules need to be developed not only for FMIS but also for the regulatory authorities who are to manage the conflicts between the FMIS.

The second challenge FMIS are facing is that of changing pattern of agriculture. In many countries, more specifically in countries where agriculture has been more of a subsistence level, the pressure of population has necessitated to change the crop and cropping pattern. If the farmer is to survive, he is bound to move towards more cash crops, more technology, more inputs like seed and fertilizer. Marketing has become an important element. This new dimension certainly has changed the institutional and legal regime of many FMIS.

Under which laws are FMIS to be registered if they are to function many agricultural activities? In Nepal, for instance, FMIS can be registered under the Water Resources Act. With the new dimension, they seem to be ore appropriate to be registered under the Co-operative or Society Registration Acts. In that situation, relations between the authority responsible for registration and the concerned agency also need to be further clarified. All the NGOs are registered under the Society Registration Act.

There is a big difference in the function, manner and ways NGOs and FMIS function. Hence, the issue could be whether the same set of rules or regulatory regime would work for both or whether we need to evolve some special kind of regulation for FMIS.

These are some of the pertinent legal issues those of us who work in this field must find answers to so that the legal regime of a country could help the efficiency and growth of FMIS.

There is yet another challenge that has become pronounced in years after the restoration of multiparty democracy in Nepal. This probably is true in many countries of South Asia as well. As they become effective in the social/economic sector of society, FMIS provide a vehicle to reach the people for political ends. Politicians seeking votes have a compulsion to reach the people and pose themselves as the benefactors.

They belong to a particular political party and it is within their normal behavior to downgrade or criticize people having allegiance to another political party and be uncooperative toward them. Unfortunately, all our development activities are plagued with politicization. The ways, means and internal management of development are severely affected by such action. The unfortunate thing is that those who are in decision-making positions and have the means and resources to influence and intervene in the FMIS utilize their authority for this.

One has to find answer to this problem. The law can provide a mechanism to take away the arbitrary authority of the politician and adopt a more transparent, specific democratic and less interventionist procedure so that FMIS may act in a more autonomous and independent way to get means and resource from the government or agencies supported by the government. The intervention made for strengthening FMIS is bound to destroy the very institutional strength of FMIS. In this respect, we often hear in Nepal of "all party committees" to solve local issues. Although this has proved successful in certain specific cases, it is very doubtful whether political parties would desist from advancing their political objectives. We must devise ways and means to check the politicization of FMIS.

(The article is based on the presentation of the author, Chief Commissioner of the Commission for Investigation of Abuse of Authority and former secretary of water resources, at the plenary session on "Future Directions of Farmer-Managed Irrigation Systems" organized during the international seminar on "Farmer-Managed Irrigation Systems in the Changed Context", in Kathmandu on April 19, 2002. Paper courtesy: FMIS Promotion Trust, Kathmandu)