Pratyush Nath Upreti
After almost eight long years of tussle, the people of Nepal finally have a draft constitution. The proposed text has disappointed several interest groups and thereby, has been heavily criticised. My first impression of the draft constitution was that it was lengthy and unclear, making it look like an unedited version of a political manifesto. Even so, finally, we at least have a draft constitution which will hopefully be an inclusive constitution when it is finalised.
There are a few provisions in the draft constitution which are practically meaningless. One of them is Article 38, which guarantees the right to employment as a fundamental right. According to 38 (1), every citizen is entitled to the right to employment subject to terms and conditions imposed by law. This provision is followed by a most bizarre clause which guarantees citizens an unemployment allowance until they land a job. Prima facie, this provision may look attractive and progressive, but it is not so. The fundamental question is why do we need such a provision? Will securing such rights ensure employment? Will this encourage the youth employed abroad to return to Nepal? If implemented, will the government of Nepal be able to bear the cost?
Including the right to employment under fundamental rights with the provision of an enforcement mechanism through the Supreme Court is suicidal. This is because it puts an enormous burden on the state. For example, people in the age group of 16-40 years are considered to be youths in Nepal; and as per the 2011 Census, 40.3 percent of the total population of Nepal, or 10,689,842 individuals, belong to this group. Even if we assume that only one-third of these youths are unemployed, then as per the article, the government is obliged to provide unemployment benefits to them.
Even considering if the allowance is a very nominal amount of Rs 100 per day it will undoubtedly be a huge burden on state resources. So why not create employment opportunities by using the skills and knowledge of the citizens instead of turning them into parasites?
Moreover, this provision does not need to be in the fundamental chapter, as it has already been included in Article 55 under the heading ‘policies of the states’ which obliges the state to create an environment for job opportunities. So, there can only be reasons for incorporating this right. First, it looks like a mandate introduced to convince the youths that employment opportunities are secure under this provision. Second, it seems to be an attempt to write a progressive constitution by including everything at once. In reality, the provision is just an illusion created with the hope that every youth land a job which is practically impossible.
I am also fully aware of the link between the right to employment and other fundamental rights guaranteed by the draft constitution. Employment, no doubt, is interlinked with other rights such as education, food, health and the right to life. Without a living wage, these rights will not be fulfilled. But the point is why we need a separate provision? Since the right to employment is a facet of the right to life, which is mentioned in Article 21, there is no need for such a provision. If the state does not fulfil its obligation, any citizen is entitled to approach the court under Article 51. Then, if needed, the court will interpret the provision accordingly. So it would do well for Constituent Assembly members to first ask the youths whether they want unemployment benefits or be able to use their potential and energy and participate in economic development.
There are a few constitutions, like that of France, which contain a similar provision guaranteeing employment. Similarly, in Article 42 of the 1982 Chinese constitution the right to work is treated as a glorious duty of every able-bodied citizen. But again, such provisions completely depend on the socio-economic and political situation of a country. At this moment, Nepal is going through a transitional phase, and with the recent earthquake, we have a greater responsibility towards reconstruction, rehabilitation and, most importantly, economic prosperity.
Therefore, rather than bring such a provision, the government should find a way to create employment opportunities by encouraging the private sector and properly utilising or channelling the available resources in the development sector. More than this, creating political stability will certainly bring foreign direct investment. If the government can do these few things honestly, a certain majority of the citizens will be employed, and no need for unemployment benefits will arise.
Unfortunately, the political parties haven’t realised this, and they are rather willing to include each and every provision in the constitution to please their interest groups. This will result in a breakdown of the constitution. It is unfortunate that the political parties do not realise that everything cannot be incorporated in the constitution. If needed in the future, there is always the possibility of including it through an amendment.
Unemployment is not only a concern for Nepal but for countries across the globe. There are several factors which lead to an increase in unemployment. Research shows that unemployment among youths leads to political instability. Further, political instability might also result in unemployment. The solution to this problem, however, does not lie in including the so-called progressive provision under the fundamental rights chapter. The focus should be put on creating more development programmes, encouraging the private sector and promoting an investment culture.
Guaranteeing the right to employment under the fundamental chapter is not going to solve the problem. For me, the right to employment in the draft constitution is a new form of slavery. It devalues the energies of the youth and turns them into slaves. The young people do not need allowances, they need a platform to utilise their skills and incentives to be creative and lead a dignified life instead of depending on unemployment benefits.
The good thing is that the constitution is yet to be finalised and there is still an opportunity to alter this provision.
Upreti is an advocate
Link to the article:Parasitic proposal, The Kathmandu Post, 24/07/2015