The right to employment is an important right in the life of every individual. In the lack of employment a person cannot live a dignified life. In the lack of employment an individual could be prevented from utilizing all other rights as well. To get employment is not just a service but a fundamental right of all citizens. A citizen denied proper employment and adequate living standards cannot fulfill their duty towards the state and the society. The question of employment is also tied to a person’s social prestige and capacity. It also defines the inter-relationship between the individual and the state. Likewise it also indicates towards the structure and statbility of the state. A country that has a large number of unemployed cannot achieve political or social stability.

A large population of unemployed is very usually very dangerous for any countries political and social stability. Experiences from many countries around the world have already proven that the presence of a large majority of unemployed aids in the destruction of the social structure and is one of the prime reasons that create grave political instability. According to one World Bank study 55% of the total population of Nepal is under the poverty line while 48% are unemployed. This is a very serious situation. Nepal will never be able to achieve social stablity by denying employment and humanitarian living standards to nearly half its population. Creating large scale employment should be the first priority for Nepal, if it is to take democracy and peace forward. It was the massive poverty and lack of employment opportunuties that allowed Nepal to go through the process of the armed conflict. At present it is going through a declared peace process. However to change conflict into peace permanently there needs to be serious ecoomic and social changes. For sustainable peace to be achieved the people need to get the benefits of peace. Until the current situation where a large majority of people are deriving their livelihood earning less than a dollar a day changes Nepal will not have sustainable peace. Creating large scale employment is a considerable step towards sustainable peace.

However our political parties assume that only the management of combatants is the peace process. At present while there is a lack of laborers to work in the rural agriculture sector and construction sector, according to an ILO survey report at least 7 million Nepalis are outside of the country for work purposes. This is a frightening situation. Nepal’s economy today is based on remitance. The social cost of a remittance economy is very steep. It has given birth to the process of a breakdown in social order and balance. No country that exports a majority of its active population can never progress forward. Nepal’s rural areas today are without the youth, with just the old and the children remaining behind.

Legal and constitutional provisions

Employment is a human right. Article 23 of the Universal Declaration of Human Rights, 1948 has placed the “right to work” as a fundamental human right. Likewise Article 24 of the Declaration has reflected the “right to adequate standard of living”. Some formulists question the legal importance of the Universal Declaration of Human Rights and argue that it is not legally binding. However, today the Declaration has already come a long way. It is already an integral part of the international law and is called the offical provision of Articles 55 and 56 of the United Nations charter. As under Articles 55 and 56 of the UN Charter, the member states have committed to preserve and promote human rights individually as well as collectively.

In this regard the UN Covenant on Economic, Social and Cultural Rights is also very important. This is a mandatory document on behalf of the country ratifying it. Article 6 of this Covenant clearly specifies and includes that those countries ratifying this accept the individual’s right to work, which includes the right of every individual to independently choose or accept the work they want to and conduct their lives. The member states for this commitment shall conduct necessary steps towards ensuring these rights.

This provision of the Covenant is mandatory for Nepal which has ratified it. As per Article 9 of the Treaty Act this is a mandatory document for Nepal. In this regard the provision in Article 18 (1) of the Interim Constitution of Nepal is also very important. This provision states that every Nepali citizen has the right to employment as mentioned in the law. It is the duty of the state to reflect the right to work and create laws accordingly as per the constitution. That the state has not created laws to implement this article of the constitution shows that the state is not responsible towards its duty. A bill to reflect employment and reduce poverty has been made.

To create employment for the citizen is an important responsibility of the state. The state is bound by its constitutional duty as well as by international treaties. That the state has remained indifferent towards its constitutional duty is a disregard for the constitution. Nepal must seek legal, administrative, and other ways to fulfill the various specific responsibilities as per the UN Covenant on Economic, Social, and Cultural Rights. Creating large scale employment is major defense shield for democracy and peace.

A draft of the bill made to reflect employment for poverty reduction has already been prepared. Creating employment is a major tool to reduce poverty. This is a self proving fact that creating employment is an important step towards reducing poverty. The following are the important points of the bill:

1.      The Nepal Government can allocate the areas in which the Act can be implemented, at the recommendation of the Central Employment Committee, by publishing in the Nepal Gazette.

2.      Provide manual labor work to every unemployed family that is living below poverty in the region where the Act is applicable. If employment cannot be given, provide unbemployment allowance.

3.      It has provisions entailing the requirement of identification cards to obtain manul labor.

4.      It has provisions where an individual with identification, desiring of employment, may provide an application to the Local Employment Committee from 1^st Shrawan to the end of Kartik.

5.      The Local Employment Committee must provide a minimum of 100 days of work in a single fiscal year to at least one member of a family that is unemployed in either a construction work, employment related work, or a public function that is in its region.

6.      If it cannot provide employment in its own area, it may arrange for employment anywhere within five kilometers of the district.

7.      The wage of the person receiving such employment cannot be less that what has been fixed as the minimum wage for that fiscal year. The wages will be distributed every two weeks. As far as possible the disbursement will be through a bank or a financil institution.

8.      It has been suggested that if it is not possible to provide employment until 100 days in a fiscal year to an unemployed family, such family should be provided half the amount of the minimum wage it would have received for working for 100 days, as uneployment benefits.

9.      In areas where this Act has been implemented, the District Development Committee or Village Development Committees must direct, through cooperatives, to provide employment in development works being conducted in its area.

10.  A Central Employment Coordination Committee has been arranged under the coordination of the vice-chair of the National Planning Commission. Likewise under the coordination of the District Development Committee Chair, there are provisions for a District Employment Coordination Committee.

11.  There are provisions for a Local Employment Coordination Committee under the coordination of the Village Development Committee chair.

12.  Provisions have been kept for a Labor Employment Fund with amounts being contributed by the Nepal Government, various foreign governments and international donor agencies.

13.  The Central Employment Committee has been given the responsibility of regularly monitoring and evaluating all the programs and activities related to employment generation.   

Suggestions and Recommendations

That the state is making laws to ensure employment is initself a positive step. However the proposed draft bill is unable to establish the right to work in a manner that is firm enough. The draft bill seems to have failed from the rights based approach. We have to remember that economic, social and cultural rights are also equally important. Rights are not more or less important whether they are economic or social. Both are equally important. They are sovereign, mutually inclusive, and equally important. The right to work is a fundamental human right and implementing it is the states responsibility. The bill seems directly influenced by the Mahatma Gandhi National Rural Employment Guarantee

Act 2009, however it has not been able to incorporate the positive aspects of the Act.

The following needs to be incorporated in this bill:

1. The bill has provisioned for providing labor intensive employment to those “under the poverty line” but has not defined what “under the poverty line is”. In reality who so ever wants to be involved in labor work must be provided the opportunity to do so. When the state is under immense poverty, it means that those who are deprived of the means of production are under poverty line. However when the law has not defined it clearly enough, the families that are actually unemployed an under pressure may not be able to get the true benefits of this legal structure.
2. The bill has not been envisioned to be implemented all over Nepal. The country is in a very deprived stage. There are poor people living in all parts of Nepal. Therefore it must be implemented all over the country.
3. The bill has only envisioned providing minimum employment for 100 days in one fiscal year. Those living under poverty line cannot afford a humane life by only working for 100 days in a year. For this they have to have permanent work rather than temporary employment.
4. The bill has only provided for work for one individual per family. It will be better if labor intensive employment can be provided to all those between age 16-65.
5. The bill has provided for filing an application to get employment but fails to state how long after the application has been provided that the agency should be able to give work. The Indian Act very clearly states that work should be provided within 15 days of the application being made. Likewise the Indian Act also provisions that when 15 applications have been received new work must be immediately started.
6. It has been provided that the Local Employment Committee will coordinate with the District Employment Committee and provide labor work within 5 km of the district in either construction, employment, or public works. But in a geographically difficult terrain like Nepal where transportation facilities is limited, especially in the rural areas, the 5 km should be cut down to 3 km. And if work has been arranged further than 3 km, travel allowance of 10 percent must also be arranged.

The investigation and suggestion was prepared by Advocate Dinesh Tripathi for the Nepal Constitution Foundation with inputs from women, Janajati, Dalit, Madhesi, youth and other related pressure groups. The Foundation is grateful to Gopi Biswakarma, Radha Thapa, Pawan Kumar Ojha, Bhup Nanda BK, Phurpa Tamang, Rohini Acharya, Sitaram Agrawal, Shankar Dutta Badu, Keshab Prasad Adhikari, Bijaya Kanta Mainali, Shiva Karki, Tara Parasad Joshi, Bharat Raj Gautam, Abhishek Adhikari and Dr Bipin Adhikari.

This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.