January 29th, 2016
Many fear whether the constitution has rights as provided by interim constitution. Comparing both documents, the new constitution has added few more agenda of workers in the provisions by interim constitution. The new constitution has Directive principle of the State, which characterises the country as the welfare state, building pro-socialist economic system ending economic disparity with a involvement of public, cooperative and private sector in development.
Agenda and Efforts
Form the first Constitution Assembly (CA) the Nepali trade union movement had raised its agendas under four categories – Rights, Protection, Commission and Representation. Which can be briefly summarised as follows,
These agendas were publicised among the general workers as a campaign distributing various publicity materials. During the first CA tenure these agendas were discussed either in CA by the members of trade union background or at people level during collection of feedback. On the other hand, different delegates representing trade union handed over memo to officials of CA and leaders of major political parties. During the process of finalising the first draft of constitution trade union delegation handed over memorandum on May 8 and May 17 of 2012 to leaders of major political parties. When the first CA abruptly dissolved on May 28, 2012 Nepali trade unions and political parties held a dialogue on November 12, 2012 in the City Hall to reach a political solution where trade unions raised these agendas as well.
After finalising the first draft of the constitution the trade union movement focused on comparing the provisions of workers’ rights enshrined in interim constitution and draft constitution; launched an awareness raising programme among the workers. On August 27, 2014, trade unions handed over suggestions drafted in statutory language to the Chairperson of Political dialogue and consensus committee of CA. Appeals were made to stakeholders to incorporate the workers agendas included in first draft – word by word in the constitution and add the unaddressed agendas of the workers too. Trade unions organised an interaction inviting Chief Whips of major political parties and Chairperson of drafting Committee and handed over suggestions appealing to include these agendas in the constitution.
The agenda missed in the draft were articulated in amendment’s format of the CA and mobilised workers and trade union activists to hand over it to CA members in all 240 constituencies when the CA allocated time to get feedback from people on the draft. Likewise, trade union submitted workers’ feedback at institutional level to People’s opinion collection committee. Apart from this, every possible effort was made to reach out to influential CA members and political party leaders and handover workers feedback.
Achievements and Gaps
The Constitution of Nepal promulgated on September 20, 2015 included provisions addressing demands of the trade unions as a result of these efforts.
Above mentioned three points, as fundamental rights are the most important agenda among all; which ensure the rights conferred by ILO Convention 87 and 98. For the first time in the history of Nepal, the preamble of its constitution commits to end class-based discrimination and build socialist society based in economic equality, prosperity and social justice.
The constitutional system prohibits the state to discriminate on any grounds. For the first time “worker” is included in the list of groups which has to be protected by the state and which will have special provision under law for strengthening and development. Constitution has provision of equal pay as well as social security for equal value of work and ends the gender-based discrimination. The clause prohibiting the press from publication demeaning the labour is more a constitutional belief on labour rather than restricting freedom of press.
Under the fundamental rights people cannot be sold, bought, kept as slave or bonded labour and made to work forcefully; The constitution makes any actions contradicting the provision liable to penalty and provides compensation for the victim as Right against exploitation. As per the international standard clause prohibiting child labour is included in Child rights. The fundamental right of workers also include rights of Dalit. Likewise, right to choose of employment and unemployment allowance as provided by federal state law is included in right to employment.
Under Article- 35 of the constitution, every citizen shall have right to free basic healthcare facility and no one shall be denied the emergency health service, safe drinking water and cleanliness and hygiene. Apart from access to basic education, the constitution provides for social security as per the law.
This way among the agenda of workers divided in four categories, labour- rights and right to social security are basically ensured. This means Nepali trade union movement is successful to institutionalise some of its agenda. But, the other two– provision of constitutional labour commission and 10% representation of workers in people’s representative bodies of state are laps in the constitution.
Comparisons and Ambiguities
Several international practices exist regarding the constitutional rights of workers- what they are and what they should be. ILO definition of decent work considering gender as a cross-cutting issue and mentions- “employment and right at work, achieve basic social security and promote social dialogue” as four strategic objectives. From the perspective of decent work the four pillars of decent work are provided in the constitution.
The South African Constitution, which is latest among the internationally popular, based on its “Bills of Rights”, which includes 27 clauses. It endorses all as workers rights. The new constitution of Nepal from Article 16 to 45 including 31 fundamental rights are no less than South Africa’s Bills of Rights, it provides some more rather.
Many fear whether the constitution has rights as provided by interim constitution. Comparing both documents, the new constitution has added few more agenda of workers in the provisions by interim constitution. The new constitution has Directive principle of the State, which characterises the country as the welfare state, building pro-socialist economic system ending economic disparity with a involvement of public, cooperative and private sector in development.
For the first time the constitution includes the policy of labour and employment as state policy. The policy of labour and employment in six points include concept of decent work, fair labour relation between worker and employer, encourage to invest revenue generated from foreign employment in productive sector.
In comparison, along with these positive aspects there are some negative aspects without answering the queries. The most obscure issue is the definition of worker. As much as the provisions are clear without the definition of the worker, the definition including the term “worker and labourer” makes these provisions unclear.
Like the worker – peasants commission included in the group of commissions provided by interim constitution the new constitution provides, under article 259, commissions beginning from Khas–Arya and ending with economically backward group; the term worker in this list fails to carry even the spirit of the labour commission provided by interim constitution. This means if the law does not carry the demand for labour relation commission forward, it will be impossible to implement the labour inspection system demanded by the trade union movement. And, the concept of Economic and Social Multi Stakeholder Committee, to settle unwanted conflicts and labour disputes from the parliament, to hold discussion on the trade union issues with stakeholders cannot move forward.
From the trade union perspective this constitution has not touched upon the agenda of representation of workers in elected state bodies. The agenda was proposed with the objective to develop trade union as a common structure of political parties and recognise labour as a constituency under the constitution. Thus, the issue of representation is, an on-going agenda, which is now likely to be raised as agenda within the political party.
– Bishnu Rimal
President- GEFONT/JTUCC
November 2015
(Edited version published in ILO Nepal’s Magazine- Decent Work, Issue #4; December 2015)