Bill made to amend the Nepal Act to make some public services more inclusive, 2067
VOL. 05, NO. 21, May 18, 2012 (Jestha 05, 2069)
Inclusive simply means including all. The primary objective of the principle of inclusiveness is that the people should have the right to decide in all matters. Inclusive action is defined as providing equal opportunities to all citizens of the state, without discrimination, to participate in in all levels of state administration. The main basis of inclusiveness is to recognize the essence and identity of all communities and classes. The main objective of inclusiveness is to create a society where the people make the decisions in totality. Inclusive politics means to make every citizen actively participate in the state development process. The purpose of inclusiveness in a multi cultural multi communal state is to ensure that citizens from all classes, communities, and regions are able to participate equanimously and be able to be represented correctly.
Inclusion in the context of Nepal
In the context of Nepal there had been attempts at political sovereignity, equality and justice since 2007 BS. However looking at the history of inclusiveness none of the political changes before 2062/63 BS had taken up issues related to inclusiveness. After the People’s Movement of 2046 BS that re-instated democracy in the country, the Nepali people sought their individual and communal constitutional place and capacity in the state structure. The Constitution made in 2047BS accepted for the first time in the history of Nepal the multi-lingual, multi cultural structure. However nothing was done to addess this in the state’s political structure and process. The structure and exercise of democracy was only limited to its officiality and process, it could not be inclusive.
When the country entered into a new governance system after the 2062/63 People’s Movement there were demands for a governance system that was in line with the countries communal and cultural diversity, the concept of inclusiveness was brought forward. As a result after the re-instatement of democracy the interim parliament legislature parliament was comparatively more inclusive than before. On Jestha 4, 2063 the declaration from the House of Representatives included for the first time the phrase “inclusive governance system”. This term has been found to be used to be three different ways.
The preamble of the interim constitution of Nepal 2063 has committed to “… progressively restructure the state to resolve class, caste, region, gender related issues and problems”. Although use of the word “inclusive” under different contexts in different places has popularized the concept of the inclusiveness even more, there is still a lack of clarity which has led to it being understood differently in different contexts. Looking at the use of the term “inclusive” in the Interim Constitution it is clear that its makers did not keep in mind the concept, development, context, use or nature of the word. The seven party unity government that included the Maoists after that also could not bring the popular demand for inclusion into practice. The movements and protests that took place after this highlighted the issue and raised it to the peak. It was especially after the Madhes movement that the issue of inclusion formally got recognition as the amendment of the Interim Constitution 2063 declared that Nepal should be a federal state. A constitutional body the State Restructuring Commission was provisioned for in the Interim Constitution.
As of now the country has already entered into a federal democractic republican set up. Before being a federal democractic republic it was natural that all Madhesi, indigenous, Janjati, Dalit, women, inhabitants of Karnali, were searching for proportional representation in political parties, the parliament, judiciary, constitutional bodies, diplomatic missions, and all other state agencies. It was the state’s responsibility to put it in practice.
State of Inclusion in Nepal
The second amendment of the Nepal Civil Service Act has reserved 45 percent seats to backward communities for 20 years. The proportional representation system was developed to make political participation more inclusive. Currently autonomy is also being demanded. In terms of education the goal is to make everyone literate by 2015. In the field of health the campaigns are being conducted keeping the objectives of the Millenium Development Goal in mind but it has not been as effective. Multi-cultural trends are also being developed but these are not completed as yet. Where economic inclusion is concerned there is very little success to boast about. Nepal is still very far behind in terms of participation in productivity, distribution, creation of human capital, employment, social capital, organizations, and values.
6. These are the provisions included in the Bill made to amend the Nepal Act to make some public services more inclusive, 2067
Name and preamble: (1) This Act is called the Bill made to amend the Nepal Act to make some public services more inclusive, 2067
Issues not addressed by this Bill
First of all this Act has remained as an official Act which has been unable to addres the core values of the 2062/63 People’s Movement, the Comprehensive Peace Agreement, and the Interim Constitution of Nepal 2063. Even by the time the Bill is passed and implemented it will not be successful in achieving its goal of making all of the state’s agencies, mechanisms, and levels inclusive because the Bill has internalized correctionary measures rather than trying to radically change the unequal power structure of Nepal that is in prevalence.
Second, the Bill has only taken into consideration a few service sectors and agencies instead of taking the entire policy creation sector of Nepal. For example it has no provisions for the judicial administration, service, or agency, constitutional commission and diplomatic agencies.
Third, the bill has only attempted to bring people from a few classes, castes, and regions to the forefront in the name of inclusion and participation. If inclusion and participation are defined only interms of presence this will ultimately have negative impacts on the core values of inclusion itself. As a result those individuals who come to agencies dominated by persons from the majority class or communities, the individuals from the marginalized communities will be swallowed up by the system. In reality the true meaning of inclusion is that those from the mentioned classes be present in decision making agencies as per the minimum requirements so that they are parallely present in the prevalent structure for talks and discussions. However this is not possible through the proposed draft. What it needs is for the state to be clear whether it is trying to give some space to the above mentioned class or trying to change it. The structure resulting from the amendment of a few acts to send a few people inside, is not going to address the issue of proportional representation/participation raised by women, Janajati, backward classes and regions. Considering 45 percent as 100 and dividing it amongst them means non of the classes will get any more than 5 percent seats. It is therefore important to question how it will address the issue of inclusion.
Reservation will help in quantitative increment but might not assist in qualitative increment. This is a strong argument against reservation therefore it should not be processed unilaterally. It is also necessary to take long term plans parallelly. It is therefore inadequate to only amend acts which to make public services more inclusive. The reservation/quota system with special rights is one side but it is not all. It is not possible to meet the aims of, or ensure inclusiveness by separating the rights of all classes and regions, their political and civil rights, their citizenship rights, the feeling of equality and non-discriminatory society, culture and rights, and a state committed and responsible to these principles and to the people. It is therefore very important to also raise these issues.
9. Suggestions for the Bill made to make some public services inclusive, 2067:
Inclusion is not a end in itself, it is a strategic tool. It is not enough to amend a few acts to make public services more inclusive. Therefore the name and the preamble of the Act has to change and a new Act to make public services inclusive should be brought about. It is necessary to bring a bill to bring a special act after intensive discussions and with suggestions from the public. It is also necessarty to prepare before bringing the bill.
Facts related to those state agencies, posts, and officials should be kept straight
Vacant posts and those that are to be soon vacant should be reviewed periodically
The state should immediately start disbursing funds for investment in the education sector
Allocate and disburse funds and resources for the skills and capacity development of those women officials who have come through the reserved quota
Provide plenty of exposure opportunities to them through seminars, trainings and visits
Provide internship opportunities
Promote those currently working in the structure, keep evaluation /review period for their retirement
Create a phase out plan for those currently working after promotions and retirement plans
Create a financially burdened and progressive investment plan.
The policy of positive discrimination and its special provisions is a strategy used to bring discriminated and backward communities to the forefront until they are able to be at part with other classes. Inclusion which today is a major political and social agenda is not possible through poor implemention of correctionary measures alone and has to be taken forward through changed procedures. A proper working plan and system is necessary for this. Until this objective is achieved it is important that there are clear provisions in the Act enabling the immediate implementation of the prescribed solutions.
Direct appointment in high level post
There are either too few or no women in high level posts. If only provisions of initial recruitment and new recruitment are to be implemented this type of working process will never be able to increase womens involvement. This will take ages before equality can be achieved and Bangladesh can be an example of this. In 1972 Bangladesh had brought in the Inclusive Public Service Act in 1972 which had 10 percent seat reservation for women. There were only 7 percent women in the entire Bangladeshi public service then. However four decades after the Act was brought in place the percentage of women in public services in Bangladesh is still at only 9 percent. Neither does India have a large presence of women in reserved high posts. Therefore if we are truly committed towards an inclusive state system and have strong political willingness, instead of just relying on initial recruitment and new recruitment we need to have fixed qualifications for high posts and enable direct promotion to such.
Waiving age limits
At present women are allowed to enter the public service upto the age of 40 whereas for men its 35. This should be continued.
Special arrangements in evaluation process
While evaluating men and women for promotion or appoint to the same posts, women should be given a little more priority than men. While doing so Dalit and Janjati women should be given added discount to that given to Dalit and Janjati men. This is already being done by most non-government agencies including the United Nations.
Inclusiveness in new appointments and promotion.
As per the policy of positive discrimination and its special provisions until discriminated and backward classes come to equal levels while being inclusive in new recruitment and promotion process for he purpose of inclusiveness the total number of those being counted for inclusion should be taken as 100 percent. For this a periodical review of representation in all agencies of the state must be taken into fact.
As per the law the legal age limit to serve in government services is 58. While women can enter public services until they are 40, if they do so they will not be eligible to receive pension after having only served 18 years due to the age limit. This is why the age bar in public services must also be raised. This system should be proposed to be imposed on other classes and regions after research.
Recruitment in vacant positions
While recruiting for vacant positions the above mentioned proposals should be taken into consideration and the recruitment process taken forward.
Discharging and recruitment
Looking at the current state of inclusion in the state’s agencies the proposed working modality is inadequate to address the problem. For this the public service should be reformed. Therefore inorder to give the feeling of radicle change concepts such as voluntary retirement and golden handshake should be used so that some of the posts can be vacated and refilled under inclusionary principles.
Change in lingual policy
The one language policy pursued by the state is also one of the reasons why Janajatis, Madhesi and other classes and communities have not been able to do well in public service. This one language policy should also therefore be changed through discussions with the related communities.
In general, the basis for this is the establishemnet of laws made after the Special Act is brought about, with equal access to economic development and qualitiative education for all its primary goal.
This investigative report and suggestion paper has been prepared by advocate Manjala Jha and Indu Tuladhar of the Nepal Constitution Foundation with inputs from women, Janjati, Dalit, Madhesi, youth and other related pressure groups. The Foundation is grateful to Man Bahadur Biswakarma, Bharat Gautam, Parshuram Tamang, Sabita Baral, Yam Bahadur Kisan, Sanu Laxmi Gasi, Krishna Gurung, Rukmani Maharjan, Sarita Rayamajhi, Santosh Ranamagar, Kewal Prasad Bhandari, Tara Bahadur Bhandari, Phurpa Tamang, and Dr. Bipin Adhikari.
The research has been supported by The Asia Foundation.Views and opinions expressed in this report are of the authors and don’t necessarily reflects of the The Asia Foundation.