National 4 (Spotlight Weekly)

"Nepalese Are Going To Be The Loser"

— Bal Krishna Neupane

Advocate BAL KRISHNA NEUPANE has filed several public litigation cases at the Supreme Court. Advocate Neupane pleaded on behalf of Lumbini Overseas Manpower Agency in the recent controversy surrounding it and the Ministry of Labor and Transport Management on the issue related to selecting candidates to send to South Korea for overseas employment. Neupane spoke to KESHAB POUDEL regarding the legality of the Ministry's instruction to the agency to select the candidates through lottery system. Excerpts:

How do you see the recent stay order issued by the Supreme Court against the Ministry's instruction to select the workers for South Korea on the basis of lottery?

Our country is based on rule of law so every action and decision of the government must be in accordance with the existing laws. As far as the criteria regarding selection of the workers for foreign employment is concerned, Foreign Employment (First Amendment) Act 2049 has clearly laid down conditions for selection and other procedures. The clause 10 (a) of the act explains how merit list has to be prepared and how the persons should be chosen.

What does the Clause 10 (a) state?

The clause 10 (a) states, “the license holder shall have to keep prepared the merit list of the persons, who have submitted the applications before the license-holder for foreign employment in consonance of the advertisement published under section 10 for the selection of workers, on the basis of their professional qualifications and experience." The clause 11 (a) of the regulations further elaborates criteria. The act and regulation clearly set the process for selections. Interestingly, how can a minister issue directives for lottery draw as another criterion? This is a violation of the act and regulation by the minister Raghuji Panta. We filed the case in the court showing how minister violated the law and regulations and the court issued an interim order.

But the minister argues that he can issue instructions under the clause 20 of the act to the concerned license-holders on the matter of foreign employment?

Yes, he can issue directives but he cannot issue ‘unnecessary directives’ compelling any agency to go against prescribed laws. The right of directing is not given to make other clauses of the act defunct. If a minister has such rights under one particular clause, there is no need to have so many clauses. Supreme Court had already defined the legal status of the directives. In a decision in 1997, the Supreme Court issued an order that directives cannot be issued violating the law and constitution. This was issued when the Home Minister Bamdev Gautam gave directions to issue the citizenship certificate in accordance with the report of Jitendra Dev Commission. Likewise, apex court also issued similar order in response to the directive of CPN-UML’s government to make all temporary teachers permanent. The court argued that there are processes to make a teacher permanent. It seems that the minister is issuing Hukum (diktat) like Rana prime minister used to issue in the past. Despite what is written in the act, the minister is determined to introduce the lottery through his Hukum.

Do you mean there is no provision for lottery?

Definitely, there is no provision for lottery. What we have to understand here is that all foreign employers want to recruit physically strong, professional and experienced manpower. More the competitions between the applicants, better the choice. If the workers are selected under the basis of lottery, we cannot fulfill the requirement of employers. Foreign employers come here to Nepal not to recruit the persons that were lucky as per the wish of the minister. Lottery system is also against the liberal economic policy pursued by the government.

But the minister argues that he chose the lottery system to give fair and equal chance to all the 15,000 applicants and stop unlawful practices in the selection process?

As far as the argument of minister on lottery is concerned, it is merely a baseless argument. In our country the tradition is that recruitments are made on the basis of professional qualifications and experiences. Whether it is in Public Service Commission, Nepal Police, Royal Nepal Army or politics, the people are chosen on the basis of merit. Public Service Commission chooses a few hundred persons from 20,000 applicants. Can the Public Service Commission also choose the person on the basis of lottery? Indian Army and British Army recruit best of the best Nepalese among tens of thousands of applicants. If minister Panta wants to give fairness to all, why should not he apply the lottery in his party. Since the CPN-UML has more than 100,000 workers, how was Panta selected for the post of minister? What about his other equally competent and qualified colleagues who were dropped? Is he ready to draw the lottery in his inner party politics? Lottery is just like a gambling. If employers do not get persons as per their wish from Nepal, they will turn to other countries like India, Pakistan, Bangladesh or Sri Lanka. In that situation, Nepalese are going to be the loser.

Then why is the minister pursing his own idea?

Minister Panta’s only intention seems to be to destroy the flourishing foreign employment business – which is one of the backbones of the economy right now. Despite violent Maoist insurgency, foreign employment remains a major sector to sustain Nepal’s economy. When tourism is facing troubles and export of carpets and garments are falling, remittances are the only sources of foreign currency. The CPN-UML has a long history of sabotaging the national interest preaching ultra-nationalist slogans. Whether it is in the case of distribution of citizenship or cancellation of Arun III project or ratification of Mahakali Integrated Treaty, people know about the true faces of the CPN-UML. People will know in the future whose interest minister Panta is serving. The circumstances and publicity given by the media shows that this decision is against Nepal’s interest.

What about the irregularities and unfairness committed by manpower agencies?

The minister must take actions against those who violate the laws and commit the irregularities. If there are persons who commit irregularities, they must be punished. Foreign Employment Act and other many acts are there for the purpose. Interestingly, instead of locating the culprit, minister Panta seems to want to kill all in the name of justice.

How do you see the minister’s vow to challenge the court’s decision?

Since the Court issued an interim order hearing from our side, it is now minister’s duty to put his point of view in the court. The minister has every right to go to court but it is for the apex court to deliver the final verdict.

The minister argues that the employment company has accepted the applications of those under the prescribed qualification. What is wrong in drawing the lottery among the candidates with the equal qualification?

Accepting applications do not automatically qualify a person for the post. If that is the case, why do Public Service Commission or other recruiting agencies do not draw lottery instead of following a lengthy process including written examination, interview and others.

How do you see the move of the Commission of Investigation of Abuse of Authority and the Revenue Investigation Department against the particular manpower company?

The Department of Revenue falls under the Ministry of Finance and the ministry is under the CPN-UML leader Bharat Mohan Adhikari. This makes it clear whose interest the CPN-UML is serving. Whether it is the action of the CIAA or the department or the Ministry, all are aimed and directed at destabilizing and ruining Nepal’s flourishing sector.