Social Security: Theory and Legal Provision in Nepal, By:Bhakti Ram Ghimire
Social Security: Theory and Legal Provision
in Nepal
Bhakti Ram Ghimire
Advocate
(LL.M-TU, Master in Industry and Employment
Relation-ITCILO, Turin, Italy)
Background
All the industrial countries of the world have developed measures
to promote the economic security and welfare of individual and his family. These
measures have come to be called as social security.[1] Social security is dynamic concept and an indispensable
chapter of a national programme to strike at the root of poverty, unemployment
and diseases.
The Right to Social Security is a human right and enshrined in
major international human rights instruments, for instance, Universal
Declaration of Human Rights (UDHR), International Covenant on Economic, Social
and Cultural Rights (ICESCR)[2]. The Right to Social Security is the right to
get protection from the society through a series of public measures to provide
the benefits whether in cash or in kind from the work resulting from various
contingencies such as sickness, maternity, employment injury, unemployment,
invalidity, old age and death of the breadwinner including the health care and
family supports[3].
Goldblatt pointed out that the social security can be designed and used to
mitigate inequalities and contribute towards shaping progressive social
outcomes, and from a human rights perspective, social security should be
understood as a rights-based entitlement rather than a concessionary benefit[4].
The Right to Social
Security is recognized and enshrined under article 34(2) for contribution-based
and article 43 has for social assistance based on the Constitution of Nepal[5]. Although the Pension for government employee and gratuity and Provident
Fund schemes for the permanent workers have a long history in Nepal. After the
formulation of the Constitution (2015) and Contributory Social Security Act
(2017) provision has been expanded the coverage to all categories of employment
irrespective of employment relations. However,
to date, most Nepali people are not provided with adequate social security coverage.
The predominance of informal employment, approximately 80%, together with an
overall low-income level and limited ability to pay or contribute to any scheme
based on collective arrangements are obstacles to extend the Right to Social
Security to all Nepal.
Overview of
the Right to Social Security
So far, there is no a single definition of
what the Right to Social Security is. Sometimes, we can see the word “social
Security” and “social Protection” are used interchangeably but also are
understood to have different and/or similar meaning depending on the context.[6]
The definition of
social security and protection can be found in the ILO World Social Security
Report 2011 which elaborated that social protection is often interpreted as a
broader than social security including protection provided between members of
the family or members of a local community but is also used in some contexts
with a narrower meaning (understood as comprising only measures addressed to
the poorest, most vulnerable or excluded members of society). Social protection
has two aspects: (1) interchangeable with “social security;” and (2) as
“protection” provided by social security in case of social risks and needs[7].
Social security covers
all measures providing benefits, whether in cash or in kind, to secure
protection from: (a) lack of work-related income (or sufficient income) caused
by sickness, disability, maternity, employment injury, unemployment, old age or
death of a family member; (b) lack of access or unaffordable access to health
care; (c) insufficient family support, particularly for children and adult
dependents; and (d) general poverty and social exclusion. Social security has
two main dimensions, namely “income security” and “availability of medical
care”. According to the ILO C.102, social security covers nine (9) branches;
medical care, sickness, unemployment, old age, employment injury, family,
invalidity and survivor’s benefits. [8]
The Right to Social Security requires a system
of the implementation whether composed of a single scheme or variety of
schemes, is available and in place to make sure that benefits are provided for
the relevant social risks and contingencies. Thus, this system should be established
under domestic law, and public authorities must take responsibility for the
effective administration or supervision of the system. Moreover, the schemes
should also be sustainable, including those concerning provision of pensions,
in order to ensure that the right can be realized for present and future
generations. [9]
The coverage of the
social security benefit should consist of nine branches as in ILO C.102; health
care, sickness, old age, unemployment, employment injury, family and child
support, maternity, disability and survivors and orphans. [10]
In this regard, CESCR addresses that the
benefits, whether in cash or in kind, must be adequate in amount and duration
in order that everyone may realize his or her rights to family protection and
assistance, an adequate standard of living and adequate access to health care,
as contained in articles 10, 11 and 12 of the Covenant. The states are also
required to respect the human dignity and principle of non-discrimination. [11]
According to ILO, the
benefits are considered adequate if they are neither too low nor too high.
Benefits are regarded as too low if people cannot live on them or if they
perceive the “return” on their contributions to be too low. Cash benefits may
be considered too high if they result in expenditure levels or behavior
detrimental to the common good or to acceptance by the public of the scheme
itself. The benefits are adequate when they help to achieve expected social
policy outcomes, that is, meeting the needs of people who have to cope with
life’s essential risks and the relationship between benefit levels and taxes
and/or contributions paid during a working life is considered to be “fair”
(social adequacy). Those benefits work in synergy with employment instruments
and fiscal and other economic policies, and do not result in unwanted economic
consequences (economic adequacy).
The accessibility means
making the social protection program(s) easy for people to reach, understand
and use, irrespective of age, disability, ethnicity, geographical location or
other factors.[12]
In this regard, CESCR has stressed that firstly, the coverage should be
provided to all persons without discrimination in particular individuals
belonging to the marginalized groups. Secondly, the eligibility: the qualifying
conditions of the benefit must be reasonable, proportionate and transparent.
Thirdly, the affordability. If the social security scheme requires the
contributions, those contributions should be stipulated in advance and the
direct and indirect costs associated with the contribution must be affordable
for all. Fourth, beneficiaries of social security schemes must be able to
participate in the administration of the social security system. In this
respect, the system should be established under national law and ensure the
right of individuals and organizations to seek, receive and impart information
on all social security entitlements in a clear and transparent manner. Fifth,
benefits should be provided in a timely manner and beneficiaries should have
physical access to the social security services in order to access benefits and
information and make contributions where relevant. Particular attention should
be paid to disabilities, migrants, and persons living in remote or
disaster-prone areas.[13]
Forms of Social Security Schemes
All social security
benefits represent social transfers from one group to another in the society
(from active age groups to old) in cash or kind (access to goods or services).[14] Social transfer is
organized in different social security schemes; however, these schemes can be
divided into two main groups: contributory schemes and non-contributory schemes.[15] In the contributory
scheme, the contribution is made by beneficiaries and their employers (and
sometimes the state is the employer) determining their entitlement. This type
of the contributory scheme is called social insurance.[16] Whereas the
non-contributory scheme, there is no requirement of the direct contribution
from the beneficiaries or employers as a condition to receive the benefits. The
non-contributory scheme is usually financed through tax or the state’s revenue
and consists of a range of forms, inter alia, universal scheme and social
assistance.[17]
The universal scheme is available for all residents or to all members of
certain groups such as the elderly, children and disabled.[18] Social assistance is
different from the universal scheme in the way that the benefit in cash or in
kind is distributed to the poor by means-test or based on the similar forms of
targeting, for example, proxy means test and geographical targeting.[19]
International
instruments/standards on the Right to Social Security
The Right to Social
Security became a topic of discussion following the adoption of the Declaration
of Philadelphia by ILO in 1944.[20] Accordingly, this right
is also recognized as one of human rights because it is articulated in the UDHR[21] and ICESCR[22]. Nowadays, there are
other numerous international instruments that regulate this right, for example,
ICERD,[23] CEDAW,[24] CRPD[25] and Convention on the
Rights of the Child (CRC).[26] For the specific and
normative instruments on social security protection, we can see Conventions and
Recommendations that have been continuously adopted by ILO, inter alia, C.102
which is the first international standard that outlines comprehensive
formulation of social security issue.
Since the founding of the ILO in 1919, the International Labor
Conference has adopted 31 Conventions and 23 Recommendations addressing issues
relating to social security.[27] The ILO Governing Body
reviewed these Conventions and Recommendations on social security in 2002 in
the light of the current needs of the international community, and confirmed
that it regards eight of these Conventions as being up to date.[28] It should be noted that Nepal
has not yet ratified ILO C.102 nor any other ILO conventions related to social
security. In addition to these
instruments, the provision of Social Security can be found in other
international documents dealing with migrant workers’ protection, for instance,
in the UN agenda: International Convention on the Protection of All Migrant
Workers and Members of Their Families (UN Migrant Workers Convention),[29] International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD)[30] and Resolution 40/144 of
the UN’s General Assembly in 1985 on the Declaration on the Human Rights of
Individuals who are not Nationals of the Country in which they live.[31] ILO has a plethora of
standards that protect migrant workers. Beside its Constitution, there are
numerous instruments such as the 1998 Declaration on Fundamental Principles and
Rights at Work, Resolution Concerning a Fair Deal for Migrant Workers in a
Global Economy, the Migration for Employment Convention (Revised) 1949 (ILO
C.97), Migrant Workers (Supplementary Provisions) Convention 1975 (ILO C.143),
2007 Multilateral Framework on Labor Migration and Equality of Treatment
(Accident Compensation) Convention (1925) (ILO C.19) and 2012 Social Protection
Floor Recommendation (R202), all provide protection of the Right to Social
Security.
In addition to the
protection at the international level, we can see other documents relating to
the social security at the regional level, for instance, European Social Charter,[32] American Declaration of
the Rights and Duties of Man[33] and ASEAN Charter[34] including the ASEAN Economic
Community (AEC) agenda[35] and the ASEAN Declaration
on the Protection and Promotion of the Rights of Migrant Workers (DPPRMW) in
January 2007. Notably, at ASEAN level, representatives of all Social Security
Institutions of ASEAN members agreed to establish ASEAN Social Security
Association (ASSA),[36] a non-governmental
organization aiming to promote the development of social security in the region
in consonance with the aspirations, laws and regulations of the member
countries by providing a forum for member institutions to exchange views and
experiences on social security issues.
National
instruments/standards on the Right to Social Security
In 26 Dec 1994 the
Prime Minster of Nepal Man Mohan Adhikari introduced monthly old-age allowance
who were above age of 75 years. This was first ever initiative by the state
providing benefits as the universal social security to the citizens of Nepal
besides those in the government service. In July 1995, single women above age
of 65 begin receiving monthly allowance as Social Assistance.
Constitution
of Nepal (2015): stipulates about the
social security and social benefits that every laborer shall have the right to appropriate remuneration,
facilities and contribution-based social security. [37]
Economically poor,
physically incapacitated and helpless person, helpless single women, persons
with physical impairment, children, persons who cannot look after themselves and
the citizens who belong to communities that are on the verge of extinction,
shall have the right to social security as provided for by law.[38]
In
13 August 2017 adopted by parliament Contribution Based Social Security Act, 2017 Section
10 of the Act has provisioned Medicare and Sickness Benefit, Maternity
Protection Benefit, Accidental Benefit, Disability Benefit, Old Age Benefit,
Dependent Benefit, Unemployment Benefit, other social protection schemes
specified by the Fund.[39] Covers all employment relationships between employers and
employees, ensures the better working conditions and keeps harmonization in
vocational communication, safety and health strengthening at workplace.
State
Obligations under the provision of the Right to Social Security
According to General
Comment No.19 on article 9 of ICESCR regarding the Right to Social Security,
the committee expresses two natures of the obligations of the state member in
realization of the said right.
General Obligation
Due to the fact that
the realization of the Right to Social Security imposes the significant
financial burden for the state parties, the Convention does not require all
states to implement the right at the same level. The implementation can be
various across the state members because of different stages of economic
development. However, what the committee has stressed is that the state parties
have the immediate obligation, for example, to guarantee that the right will be
exercised without discrimination of any kind (article 2, para.2), ensuring the
equal rights of men and women (article 3) and the obligation to take steps
(article 2, para.1) towards the full realization of articles 11(1), and 12 of
the ICESCR in order to reach full realization of the Right to Social Security.[40] To emphasize on the
nature of this obligation, although the ICESCR provides for the progressive
realization due to the resource constraints, the state parties cannot postpone
their obligation or use it as pretext for noncompliance.[41] With regard to this
point, states are obliged to move as expeditiously and effectively as possible
toward the goal of full realization and required to employ all means such as
legislative, administrative, judicial, economic, social, and
educational—appropriate to the right concerned and the country’s economic, political
and social organizations.[42] Although the resource is
limited, the state parties have core obligation to afford minimum essential
level of benefits to all individuals and families that will enable them to
acquire at least essential health care, basic shelter and housing, water and
sanitation, foodstuffs, and the most basic forms of education.[43]
Accordingly, it should
be borne in mind that the Right to Social Security should be appropriately
prioritized in law and policy of the state parties.[44] Based on a study
conducted under ILO Global Study, constitutional guarantees play a very
important proactive role in introducing social rights into national legislation
and in fostering their implementation. First, an analysis of the constitutional
provisions allows position of social security rights within the framework of
human rights, in particular, civil rights to be assessed according to a
particular country. Thus, it is possible to obtain an answer to the question
about the significance of social security rights in the legal regulations of
the national law. Second, the constitutional provisions, and in particular,
interpretations made on their basis by constitutional courts of particular
states, indicate the minimal contents of social security rights. Finally, the
analysis of the contents of constitutional provisions presents an opportunity
to look at social security rights cross-sectional, i.e. to include the
perspective of international instruments ratified by the state, and of
instruments of lower rank than the constitution.[45]
Specific Obligation
States are supposed to
respect and ensure rights to all individuals; however, this is a very broad
obligation, thus, in the UN human rights bodies have adopted a tripartite
typology of how human rights obligation should be secured, namely, the
obligation to respect, to protect and to fulfill.[46] Like the obligation
imposed by other international human rights instruments, the Right to Social
Security imposes these three obligations on state parties.
The Obligation to Respect
This obligation
requires the state refraining from interfering directly or indirectly with the
exercising of the Right to Social Security-i.e., the obligation to refrain from
engaging in any practice or activity that, for example, denies or limits equal
access to adequate social security; arbitrarily or unreasonably interferes with
self-help or customary or traditional arrangements for social security;
arbitrarily or unreasonably interferes with institutions that have been established
by individuals or corporate bodies to provide social security.[47]
The Obligation to Protect
In relation to this obligation, the
state parties are obliged to prevent the third parties in interfering the
enjoyment of the Right to Social Security. In this regard, the state parties
shall take necessary measures on individuals, groups, corporations or other
entities to respect the Right to Social Security. The effective regulatory
system shall include framework legislation, independent monitoring, genuine
public participation and imposition of penalties for noncompliance.[48]
The
Obligation to Fulfill
The obligation to
fulfill necessitates the state parties to adopt appropriate domestic
legislation and measures in implementing the social security scheme. Firstly,
the obligation to facilitate entails the state parties to take positive
measures to assist individuals and communities to the Right to Social Security.
Secondly, the obligation to promote obliges the state parties to ensure
that the public awareness and education about the access to the social security
scheme are properly operated nationwide. Thirdly, the state parties are
bound to provide the social security when individuals or groups are unable to
realize this right themselves. In this case, the non-contributory schemes or
social assistance shall be conducted and the special attention shall be paid to
the disadvantaged and marginalized groups.[49] Additionally, to realize
the Right to Social Security, the state parties shall engage in the international
cooperation and assistance. Thereof, the agreement on harmonization of the
social security schemes is very crucial in safeguarding the individuals’ right
to social security especially for migrant workers.[50]
The CESCR has emphasized that the violation of
the Right to Social Security can occur through the act of commission or
omission. The violation through the act of commission is the direct actions of
the states or other entities insufficiently regulated by the states; for
example, the formal repeal or suspension
of legislation necessary for the continued enjoyment of the right to social
security and active support for measures adopted by third parties which are
inconsistent with the right to social security.[51] The violation through act of omission is
occurred when the states fail to take sufficient and appropriate action in
realizing the right, for instance, the failure to enforce relevant laws or put
into effect policies designed to implement the right to social security and the
failure to ensure the financial sustainability of State pension schemes.[52]
[1] Encyclopaedia Britanica,
Vol.20, p.762.
[2] article 22, 23&25 of
UDHR, 1948 and article 9, 10 (2) &10 (3) of ICESCR
[3] ILO, “Social Security for
Social Justice and a Fair Globalization”, (Report VI, 2011), page.9.
[4] Beth Goldblatt, “Gender,
poverty and the development of the right to social security”, (International
Journal of Law in Context, 10,4 pp. 460–477, Cambridge University Press 2014),
page.462.
[5] Article 34(2) and 43 of Nepal’s
Constitution (2015).
[6] Suchita Manajit &Mai
Thi Thanh Nga Na, “Migrant Workers’ rights to Social Protection in ASEAN: case
study of Indonesia, Philippines, Singapore and Thailand”,
(Friedrich-Ebert-Stiftung, Office for Regional Cooperation in Asia, 2011),
page.15
[7] World Social Security
Report 2010/11, “Providing Coverage in Times of Crisis and Beyond”. (ILO,
2011), page.13.
[8] Ibid. para. 6&7.
[9] United Nations Committee
on Economic, Social and Cultural Rights (CESCR), General Comment No.19: The
Right to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.11.
[10] Ibid., para. 12-21.
[11] Ibid., para. 22.
[12] See also, <http://socialprotection-humanrights.org/framework/principles/standards-of-accessibility-adaptability-andacceptability/>
[13] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.23-27.
[14] See also, <http://www.social-protection.org/gimi/gess/ShowTheme.action?id=11>
[15] Ibid.
[16] Ibid., See also, Townsend,
Peter, “Social Security and Human Rights”, in Peter Townsend (ed.), “Building
Decent Societies: Rethinking the Role of Social Security in Development”,
(Basingstoke: Palgrave Macmillan, 2009), page.36. And Goldblatt, Beth, “Gender,
poverty and the development of the right to social security”, (International
Journal of Law in Context, 10,4 pp. 460–477, Cambridge University Press 2014),
page.461.
[17] See also, <http://www.social-protection.org/gimi/gess/ShowTheme.action?id=11>
[18] Townsend, Peter, “Social
Security and Human Rights”, in Peter Townsend (ed.), “Building Decent
Societies: Rethinking the Role of Social Security in Development”,
(Basingstoke: Palgrave Macmillan, 2009), page.36. And Goldblatt, Beth, “Gender,
poverty and the development of the right to social security”, (International
Journal of Law in Context, 10,4 pp. 460–477, Cambridge University Press 2014),
page.461. 28
[19] “Social Security for Social
Justice and Fair Globalization”, (Report VI, ILO, 2011), page.9.
[20] See article 3 of the
Declaration of Philadelphia, 1944.
[21] See article 22, 23&25
of UDHR, 1948.
[22] See article 9, 10 (2)
&10 (3) of ICESCR.
[23] See article 5 (e) (iv) of
ICERD.
[24] See article 11 (1) (e), 11
(2) (b) and 14 (2) of CEDAW.
[25] See article 28 of CRPD.
[26] Article 26, 27(1), 27(2)
and 27(4) of CRC.
[27] Suchita Manajit &Mai
Thi Thanh Nga Na, “Migrant Workers’ rights to Social Protection in ASEAN: case
study of Indonesia, Philippines, Singapore and Thailand”,
(Friedrich-Ebert-Stiftung, Office for Regional Cooperation in Asia, 2011),
page.25
[28] “Social Security for Social
Justice and a Fair Globalization”, (ILO, 2011), page.12&13. The eight
conventions that are still up to date: - Social Security (Minimum Standards)
Convention, 1952 (No. 102); - Equality
of Treatment (Social Security) Convention, 1962 (No. 118); - Employment Injury Benefits Convention, 1964
[Schedule I amended in 1980] (No. 121);
- Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No.
128); - Medical Care and Sickness
Benefits Convention, 1969 (No. 130); -
Maintenance of Social Security Rights Convention, 1982 (No. 157); - Employment Promotion and Protection against
Unemployment Convention, 1988 (No. 168), and
- Maternity Protection Convention, 2000 (No. 183).
[29] The right to social
security of migrant workers is addressed in article 27 of the convention.
[30] See article 5 (e) (iv) of
the Convention.
[31] See article 8 of the
Resolution relating to Social Security Protection.
[32] The Charter was adopted in
1961 and its Additional Protocol was adopted in 1988.
[33] See article 16 of the
American Declaration of the Rights and Duties of Man, 1948.
[34] Article 1 (11) of the ASEAN
Charter, “…enhance well-being and livelihood of ASEAN people….social welfare
and justice…”
[35] In AEC Agenda, Promotion of
“Social Protection and Social Risk Management System” is outlined in AEC
Blueprint which ASEAN member agreed on 20 November 2007.
[36] ASEAN Social Security
Association (ASSA) was formally signed on 13 February 1998 in Bangkok,
Thailand.
[38] Right to social security, Article 43.
[40] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.40.
[42] Fukuda-Parr, Sakiko. et al,
“Fulfilling Social and Economic Rights: Measuring Social and Economic Rights”,
(Oxford Scholarship Online: January 2015), page.15&16.
[43] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.59.
[45] “The Right to Social
Security in the Constitutions of the World: Broadening the Moral and Legal
Space for Social Justice”, (ILO Global Study, Volume 1: Europe, ILO, 2016),
page. xvi & 1.
[46] Moeckli, Daniel. and Shah,
Sangeeta. and Sivakumaran, Sandesh. and Harris, D. J. “International human rights law/ edited by
Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran; consultant editor, David
Harris”, (Oxford University Press Oxford 2010), page.101.
[47] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.44.
[48] United Nations Committee on
Economic, Social and Cultural Rights (CESCR), General Comment No.19: The Right
to Social Security (art.9 of the Covenant), 23 Nov 2007, (E/C.12/GC/19),
para.45.
Comments
Post a Comment