Corruption in Foreign Employment Torments Nepal

The foreign employment business may be seen as both positive and negative. It has many dimensions and connotations in its perception. Some consider it a major source of human smuggling; and others see it as the main backbone of a country's national economy. Some feel it is a main means for employment where others see it as the worst

Nepal Must Institutionalize System of Dialogue to Address Labour Disputes

By Krishna Hari Pushkar

An Outlook from Practical Perspective of Nepal: Dilemma on Dialogue and Negotiation in Labour Issue

Globally, Nepal has recognized as one of the most terrible country in terms of maintaining systematic labour relation and administration because the areas has remained full of conflict and pandemonium since its envenom politicization. Here politicization means amateurish unionization of employers and employees. In Nepal, we found majority of labour and employers are self- claimed warhorse politicians and profounder of existing democracy and shamelessly claimed themselves as a pillar of political and socioeconomic transformational actors of the country which is a big unfortunate. Sadly, they are overestimated by themselves.

Therefore, it is difficult to find the pure labour and employers in accordance with norms and standards defined by authorities and governance. The most of the employers and employees are either unaware or just ignore about their duties, responsibilities, obligation and morality. Moreover, huge gaps in bearing duties, responsibility, accountability and moralities among the tripartite (labour, employer, and government) stakeholders are considered as other complex issues in Nepal to have good labour relation.

Sadly, Labour, Employers and Government use to see each other as an adversary actor into practice in Nepal. They often involve and guided by win-lose game, consequently each of the actors equally and periodically victimized or benefited as per their political strength respectively. Of course, political vested interest, policy corruption and contemporary transitional issue and polarization among political parties and societies are emerged as major issues in critical siltation of labour relation affairs of Nepal.

It is well-known that the country is passing through an unmalleable transition, so governance and government are weaker that helps budding impunity in every sector including labour affair of Nepal. The both employers and labour group feel that they can achieve anything by using tools and approaches of impunity or say hoo-hah. There is also lacking manner and way in extending their demands and need from respective partner. Most of the demand and agendas of struggles or protest comes through window. Union or umbrella organization of employers or employees are no more work as genuine union and do not pay proper concern in their established motto and goal, but they are became like a sister or gangster organization of a particular political parties or communities, even though most of them suffering insides with various fractions, inter-inter severe conflicts etc. In these conditions, government is not properly practicing effective and efficient model of dialogue and negotiation to address the ongoing diverse issues of labour relation in Nepal. It is painful to see the practicing model and approach of dialogue and negotiation are remained outdated and expired that brings nothing except sustainable and structured fractions, conflict and anxiousness in labour management affairs of Nepal.

Personally, I have realized and observed, there are several reasons exist that cause often failure of dialogue and negotiation (DAN) in local to central level on labour issues in Nepal. The major points are (a) impunity and outlawed way of appearance by unions and employees representatives in the table (b) Politicization and polarization of their vested interest ignoring the proper agenda of labour or employers scope, rights, duties and privilege (c) Poor coordination, homework, simulation among the representative on specific issues (d) Absence of right time, right place, right issue, right way, right representative and right authority (7R) (e) Crisis of legitimacy and legacy to address the emerged or discussed issues (f) Undefined and imbalance roadmap in handling dialogue and negotiation (g) Unwanted pressure and unavoidable influence from stakeholders sitting out the room (f) Crisis of accountability and creditability among stakeholders in DAN (g) Poor resources, uncertainty and "hit and miss" institutionalization of DAN (g) Inter ministerial connected controversial issues comes with high insensitivity without proper channels and preparation (f) Poor institutional memory bring complex repetition and duplication in further processing (g) The sitting person either consider the issues as a prestige matter or they take it as contingency issue without considering its impacts and results (h) All parties look and try their best to use either win-lose or fraudulent approach without looking the inside opportunity of win-win approach. In addition, there are various causes and reasons lead the dialogue and negotiation towards failure that includes content, concept, context, command and contemporary issues of the country and particular institutions in the particular times that may affect by various national or international social, political, economical and cultural or other reasons.

To address the issues, government of Nepal has to institutionalize and professionalize the system and mechanism of dialogue and negotiation specially to address the various labour disputes and conflicts that are coming in overwhelming numbers in recent days. The institutionalization and professionalization of the areas and subject of dialogue and negotiation is lacking within all stakeholders including government, employers and labors unions ignoring the sensitivity and technicality of the issues.

They have no budget, no resource and no professional expertise to lead or head such dialogue and negotiation, if required. State is weak, so the labour and employers believe that protest, strike, demonstration and bandh are a good solution for everything. They know government cannot able to control their impunity in fragile and transitional situation, so all of them do whatever they want and whenever they need to fulfill their vested interest. Honestly writing, the labour relation related dialogue and negotiation is not in main priority of government, they just feel headache when it comes as a pressure in their table. So, it is desire to have drastic reform and restructuring in overall labour administration reform of Nepal including labour relation in accordance with roadmap came in 100th ILO labour conference in Geneva 2011.

In Nepal, Labour Right, Employer rights, trade union rights or labour administration are just remained as a fashion and publicity for particular limited person, party and institution, because it has not been seen generalize, accessible, professionalize and mainstream into entire members and stakeholders of labour relations throughout the country. It is an urgent need of the country to aware and sensitizes its entire people about labour education, rights duties and obligation as a major issue of civic education. At the same time, the country also needs strong labour administration to control the mounting impunity and criminality of labour and employer equally. Similarly, the mainstreaming and productive collaboration with national economy and contribution in building inclusive economic development are also essential.

So, strong government, rule of law, professionalism and industrial peace are prerequisite for a successful labour relation in Nepal. Therefore, as conclusion, I would say that in Nepal's labour issue related dialogue and negotiation cannot be success if deal within academic and general traditionalistic framework. It is not easy as a book or manual of dialogue and negation describes about it, because the nature and issues of labour relation here normally comes as unexpected disaster in Nepal which is very often and common. No one can easily predict about upcoming brutal protest that when is start, what's destination, who will be the looser or winner, what will be causality and how it resolves. It meant everything is uncertain in some extend. The labour issues of Nepal cannot be compared as general case in other country but for sure it is mostly similar case as other post conflict transitional countries have. So, a specific and technically simulated transitional strategy and roadmap required to address the issues related to industrial peace and managing and dealing with good labour relation in Nepal. Even after a long history of unionism in Nepal, there is no law or specific executive orders until now that guide and command the labour based dialogue and negotiation in detail besides its urgency. Therefore, it is expected to pay high attention and priority from tripartite side, if the state wants to handle the issue effectively and efficiently in upcoming days for prosperous and pleasant labour affairs of Nepal.

http://newsblaze.com/story/20110908205600abha.nb/topstory.html

Published Date and Place: 9th Sept, 2011, World via USA

Weak State: Foreigners Disobeying the Laws of Nepal

(With special reference to Labour and Immigration Laws of Nepal)

By Krishna Hari Pushkar

In every country in the world, foreigners are required to have an employment permit from the respective government. If they do not consequences, such as immediate repatriation along with huge fines and imprisonments and even long term restriction in entry to the country can be implemented. In most of the country, the work permit is regulated by the joint mechanisms of the Labour Department and the Immigration System or something similar. Of course, the police is part of that, and a law enforcement agency can take immediate action if they find any foreigner working without obtaining the necessary labour/ employment permissions from respective authorities.

Nepal is a peculiar country in the world where massive numbers of foreigners have been working without obtaining necessary employment permit and appropriate visas. It is not limited to the private sector, but also in government-owned and popular multinational companies which have huge numbers of foreign employees against the provisions of Labour Law and the Immigration Law of Nepal. Massively, tourist visas and "not right visa" holders have found being employed by various government and nongovernmental sectors including hotels, restaurants, construction, and telecommunication, hydropower, banking areas and other systems of Nepal.

According to Labour Act, 2048 (1992) and Labour Rules, 2050 (1993), if a Nepalese citizen could not be available for any skilled technical post even after publishing an advertisement in a national-level public newspaper and journal, the manager may submit an application to the Department of Labour along with the evidence of such fact for approval to appoint a non-Nepalese citizen. If it is found, in conduction of an inquiry upon the submission of any application pursuant, that a Nepalese citizen would not be available for the skilled technical post mentioned in the application, the Department of Labour may, on the recommendation of the Labour Office, grant approval to engage a non-Nepalese citizen at work for a maximum period of up to five years not to exceed two years at a time and, in the specialized kind of skilled technical post, for a period of up to seven years. The manager who engages non-Nepalese citizens shall have to make arrangements for making the Nepalese citizens skilled and for replacing the non-Nepalese citizens gradually by them."

There is no concrete statistics on how many foreigners are working and being employed against the provisions of the Labour Law and Immigration Law of Nepal. It is estimated that more than fifty thousand foreigners are working and living illegally in Nepal without obtaining appropriate visa and permission from the Department of Labour. The Labour Law is equally applicable to all those foreigners who work in any factory, company, organization, association, firm, or group thereof, established under the prevailing laws for the purpose of operating any industry, profession or service where ten or more workers or employees are engaged ( Labour Act, 2048). But who cares?

Unfortunately the state is under transition and suffering with the dilemmas of a conflict /post conflict situation where everything is fragile. The state is not currently capable to regulate with impunity the foreigners and its employers.

There are rare histories and stories where Immigration, Police or Labour Departments' authorities have tried to regulate or monitor the issue. It should be the matter of concern for the Ministry of Foreign Affairs too, but no efforts have been found against such impunity of foreigners. Many times the media has reported that international criminals and smugglers have been using the territory of Nepal as their safe home since no productive regulation, monitoring, observation and surveillances are being used to manage the presence and activity of foreigners.

Unfortunately, in the port of entry or in diplomatic missions of Nepal, we issue visas to almost all foreigners without analyzing and assessing the applications and their backgrounds in most cases. Very often we do not verify the negative list that comes from the international or national security surveillances or intelligence system. In practice, we just issue tourist visas to all foreigners who seek to enter Nepal, no matter what their purposes are, and how long, and where and how they want to stay.

In most developed countries of the world, labour or employment permits are being obtained either by the employer or by the potential employee in advance as a precondition before applying for employment/work visa. And in some of the countries, the selected foreign employee gets a short term non-tourist visa in the port of entry or can obtain it from a respective diplomatic mission after furnishing all necessary documents. Afterward the visa gets extended after arrival once the employees or respective employers fulfill all terms and conditions and obtain employment permits and approval from the department of labour or similar authorities. In most of the countries immigration authority issues, like a renewal resident e-card, contains the information detailing the status of the particular foreigners, so they do not have to carry the passport and visa all the time.

In Nepal, there is pitiable coordinating among the respective authorities on the issue. The Labour Department, Immigration Department and other sectorial department and ministries rarely share and coordinate the information, or even use joint efforts to address the issues of disobeying and impunity of foreigners that would compel them to respect and follow the laws of Nepal.

The national security mechanism, including the Chief District Officer, Nepal Police, and National Investigation Department are also among accountable authorities to control and manage the unlawful acts and presence of foreigners, but these are not effective and never come into action against the foreigners till they commit serious crimes or are involved in aggressive public demonstrations, activities and issues of public interest that affect the public and nation on a massive level.

It is neither the employer nor the foreign employees in Nepal themselves who are serious about Immigration and the Labour Law of Nepal. Some of them don't even know about the laws. Additionally, there is also corruption, manipulation and irregularities that exist in the system that empower and gives courage to foreign employees and their employers in Nepal to ignore the spirit and provisions of the law.

Also, the law is itself faulty in a sense of clearness and procedural aspects. These laws can be easily manipulated, defined and executed in accordance with the discretion of authorities. The respective law enforcement authorities cannot execute it properly because of lack of resources, trained human resources, ICT, and scientific service delivery culture. So, the government should immediately address the problems and difficulties by arranging joint efforts for betterment, effectiveness and efficiency of these laws and the concerned authority.

Some immediate actions are essential; first, the government should instantly issue a public notice describing the provisions in terms of appropriate visa and labour/employment permissions along with times detailed. Secondly, a joint operation team can be formed containing the representation from necessary law enforcement authorities that need a massive operation in various sectors and geographical areas of Nepal especially in potential sectors and areas where foreigners are illegally and irregularly employed. Indeed, the Department of Immigration and Department of Labour should start regular and strategic inspections and monitor work to check and control illegal and irregular activities and the presence of foreigners. The employment/labour permits should be made mandatory before-hand to issue or extend visas for a particular period. By Law, both employees and employers should be made equally responsible for the labour/employment/permit and appropriate visas.

Furthermore, the Department of Immigration, Ministry of Foreign Affairs and Department of Labour must share the detailed information on the presence and job activities of foreigners who are employed or seeking to get employment in Nepal. At the end of the every year, the Department of Immigration and Labour should produce a yearly report describing in detail the employers who have recruited foreigners and also about the foreign employees themselves, their work detail and how long they are in Nepal under the definition of employment.

The horrible trend should be controlled immediately; otherwise it will be a threat on governance systems, the socio-economic situation, national security, sovereignty, and the financial system. Therefore, the government should immediately get rid of any disobeyers of the law. However, in the long-term, the Government of Nepal needs to form a team or commission of experts to review, revise, restructure and improve the overall system of Immigration and Employment Management of foreigners in Nepal.

Mr. Krishna Hari Pushkar writes about social issues, security and conflict management, often in relation to Nepal. An Under Secretary of Government in Nepal, he is well honored as a Peace, Security and Conflict Management Professional, who contributes regularly to national and international nongovernmental organizations as a peace and conflict management expert.

Source: http://newsblaze.com/story/20100801122441abha.nb/topstory.html