Appendix III − Proposed Policy Paper on Disability

1. Introduction

1. All activities initiated so far for the development of PWDs are ad hoc and fragmented. There is no master plan or a white paper to guide programs and policies for the development of PWDs in Nepal. There is no any forum of concerned agencies, UN bodies, INGOs, NGOs, professional, stakeholders, legal experts, educationist, industrialist, and social activist to share the views and suggest strategies in developing 20-25 years vision, mission, targets and strategies for the development of PWDs with appropriate approach suitable in the Nepalese context, cultural and ethnicities. To fill this gap, National Federation of Disabled, Nepal (NFDN) has initiated an exercise for the preparation of Master Plan for the Development of PWDs in Nepal. The proposed Master Plan would cover 12 policy categories as adopted by ESCAP General Meeting in 1992, which include National Coordination, Legislation, Information, Public Awareness, Accessibility and Communication, Education, Training and employment, Prevention and cause of disability, Rehabilitation, Assistive Devices, Self-help organization and regional cooperation.

2. NFDN in coordination with National Planning Commission (NPC) has prepared this Policy Paper on Disability (PPD) with a view to develop and agree general guidelines and framework for the development of the proposed Master Plan. Hence, NFDN considers PPD as a first step towards development of a comprehensive Master Plan that covers all 12 areas for the development of PWDs. This paper is based on the review of available literature and documents on disability and discussions and interactions with concerned experts and officials. The PPD presents an overview of global and national context (evolution, current status, major issues and problems) and proposed program. The UN Standard rule of equalization of opportunities and ESCAP through Resolution 49/6 and 48/3 in April 1993 have been used as a guideline for the preparation of PPD.

Definition and Classification of Disability

3. Three interrelated concepts are used to identify persons with disability. WHO has defined disability largely in terms of deviance form the normal physical and psychological condition Children with impairments who are unable to function normally are defined as disabled. If a person cannot fulfill a normal role, s/he is handicapped. Impairment is concerned with abnormalities of body structure and appearance and with organ or system function resulting from any cause; in principle, impairments represent disturbances at the organ level. Reflecting the consequences of impairment in terms of functional performance and activity by the individual; disabilities thus represent disturbances at the individual level of the person. Concerned with the disadvantages experienced by the individual as a result of impairment and disabilities; handicaps thus reflect interaction with and adaptation to the individual's surroundings. All these must be seen at different levels (degrees and types of disability). These three concepts are explained in Table 1.

4. Disability can also be classified under four broad categories, namely a) communication disability b) locomotion disability c) mentally related disabilities and d) complex disabilities. Communication disability included seeing, hearing and speaking disabilities. Locomotion disability included mobility and manipulation disability. The mentally related disabilities included mental retardation, chronic mental illness and epilepsy. Complex disability included more than one type of disability, which was termed multiple disability and included cases of cerebral palsy.

5. MWCSW (2056) divided disability into the following 7 categories and defines them separately rather than taking a single category approach.

• Physical disability: Unable to work for living because of physical disability resulted from congenital or accidental causes.
• Blind: Unable to read the first line of the Snell en's chart or who cannot be treated for his blindness as certified by a doctor.
• Visually impaired: Someone with much less than complete function of the eye.
• Mentally retarded: Someone who cannot perform normal mental activities.
• Deaf: Unable to hear and using sign language
• Hearing impaired: Hard of hearing and using hearing aid
• Mental disease: Mentally deficient to function normally because of congenital or accidental damage.

Global Context

6. The need to mainstream the PWDs in he overall development of a country is recognized internationally. In recent decades in the world, organizations of people with disabilities and their advocates have worked to make disability and issue of equal rights, rather than social welfare, and to generate change in opportunities for participation in employment. These initiatives aim to promote the full participation of disabled persons in all aspects and sectors of society. Nepal has made commitments in international forums for the development of PWDs and has a signatory to the a number of conventions including the following:

• Universal Declaration of Human Rights (UDHR) Article 25 states that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security; in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. International Year of Disabled Persons (IYDP) was observed in 1981 with the theme of " Full participation and Equality" to realize the goals of the UDHR for the PWDs.
• World Program of Action on Disability, 1982: The document was drawn up by the United Nations in consultation with organizations of disabled people. It shows countries how they can provide full and equal participation for PWDs in their own communities. To meet the objectives the "program, the UN decade (1983−92) was observed with different programs all over the World with the same theme as of IYDP (1981).
• UN Standard Rules on Equalization of Opportunities, 1993: In 1993 the United Nations adapted the Standard Rules to cover all aspects of a disabled person´s life and show how governments can make social, political and legal changes to make sure that disabled people become full and equal citizens of their countries.
• The UN Convention on the Rights of the Child (CRC), 1989: This important convention, which has been ratified by Nepal includes disabled children in all its articles. The CRC, Article 23 states the right of handicapped children to special care, education and training designed to help them to achieve greatest possible self-reliance and to lead a full and active life in society.
• The 1995 Copenhagen Declaration views disability as a form of social diversity and points to the need for an inclusive response, which strives to build a "society for all". This Declaration has promoted the "social" model of disability, in which the focus is on the constraints arising from social, political, economic and cultural factors, as well as barriers in the built environment, and on solutions through measures to remove these constraints and barriers.
• International Labour Organization Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159), its accompanying Recommendation (No. 168), 1983, and Vocational Rehabilitation (Disabled) Recommendation, 1955 (No.99): ILO Convention No. 159 views disability as a condition of occupational disadvantages, which can and should be overcome through a variety of policy measures, regulations, programmes and services. It calls upon countries to base their national policies on the principles of equality of opportunity; equality of treatment; mainstreaming of training and employment opportunities; community participation; tripartite consultations involving public authorities, worker and employer representatives; consultations with representatives of and for disabled persons.
• Asian and Pacific Decade of Disabled Persons, 1993-2002: Equal opportunities for full participation could not be achieved for the disabled persons even at the end of UN decades of Disabled Persons 1983-1992, particularly in the developing countries of Asia Pacific Region where approximately two thirds of the World's disabled persons live. In view of this, Economic and Social Commission for Asia and the Pacific (ESCAP) declared this program.

National Context

7. Legal provisions made in Nepal to ensure equal opportunities for full participation of PWDs are summarized as follows:

• The Constitution of Nepal, 2047:
• Mulki Ain (National Civil Code 1910 BS): Concerning legal proceedings the Muluki Ain says that PWDs have the right to use their guardians to fight for their legal rights in the courts and cases of PWDs should be given priority. The Muluki Ain has provision to provide food, shelter and two sets of cloths per year for the poor and people who cannot work (garib kangal). Muluki Ain 1963 (revised, 2020) made a provision to provide food, shelter and two sets of cloths per year for the PWDS and included the right of the guardians of PWDs to seek remedies through the courts.
• Education Act 2028 (1971): The Education Act provides special education to the children with seeing, hearing or speaking disabilities or those who are physically or mentally retarded. The Act authorizes the government to make proper arrangements for these disabled children. The Education rules promises that those schools which provide special education for children with seeing, hearing or speaking disabilities or are mentally retarded shall have the right to receive special facilities from the government.
• Children Act, 2049 (1992): The Child Act provides some right to disabled and orphaned children. Such children should be kept in a government children's welfare home until the disabled person reaches the age of 16. The Act also imposes duty on government to establish homes for orphan disabled children and provide them necessary education.
• Local Self-government Act 2056 (1999): This Act authorizes the Village Development Committee (VDC) and VDC Ward Committee to help in activities relating to the protection and livelihood of disabled people of the village. It also imposes duty on the VDC to maintain records on the disabled and physically handicapped children within the VDC and to make arrangements for their appropriate accommodation. Similarly, it also directs the VDC to work for the protection of orphans and disabled people according to the national policy.
• Disabled Persons Protection Welfare Act 2039 (1982): The Act and Rules have made provisions in a number of service areas including education, health, employment, tax exemption, travel expenses and legal aid services facilities as follows.
  • Education supported by the government should be free for PWDs and for at least two of their children. Government or semi supported vocational training institutions should reserve 5% of its quota for PWDs. Similarly, special educational facilities shall be arranged for the persons with seeing, hearing and speaking disability and those who are mentally retarded. The government is obliged to arrange and implement special education for PWDs. NGO who establish educational facilities for PWDS can request government support.
  • Health examinations in all governmental or semi governmental hospitals shall be free for PWDs. Each hospital should reserve at least two free beds for PWDs. Free treatment should be given to PWDs over sixty-five if they are poor. Similarly, the government may provide essential assistance to those non-governmental hospitals, which offer free medical checkups, free beds or free treatment for the PWDs. The act provides responsibility to the government to investigate the general and specific causes of disability and make essential arrangements for the treatment.
  • Employment facilities shall secure employment for PWDs in every government or semi-government organizations. These institutions are obliged to give PWDs priority if they have the sound qualifications. No discrimination shall be made among disabled employees and other employees in remuneration, facilities and service conditions. Industries with more that 25 employees should reserves 5% of their positions to PWDs. The government is required to provide suitable training for PWDs so as they can secure the above rights. Special income tax exemption facilities are available for industries that employ PWDs. Similarly equipment necessary for the employment of PWDs are exempt from all taxes.
  • The Act directs the government to initiate programs for PWDs in order to make them economically self-dependent.
  • This facility may be given to any organization that is established to provide rehabilitation services to PWDs. Any equipment to be used essentially by disabled persons due to disability may be completely or partially exempted from custom, excise and other duties.
  • The ACT calls for the provision of half-concession to the disabled person and one of his/her caretakers for bus, train and airplane travel.
  • The Act has made provision for legal counseling to the disabled person if s/he demands so in a case pending before the court through a lawyer appointed by the government. This legal facility is only limited to counseling and pleading procedures.
• Labour Act, 2056

8. The Ministry of Women, Children and Social Welfare (MWCSW), the Ministry of Education and Sports (MOES), along with the Ministry of Local Development (MLD), the Ministry of Health (MOH) and the National Planning Commission (NPC) are all directly involved in the disability sector. The government has initiated various activities to meet the provisions made in these legal documents. Example include the following:

• The government established a Disabled Relief Fund (DRF) in 1982 in order to provide education, training and maintenance and facilitate rehabilitation programs for the disabled persons. Nearly, 8 million rupees have been deposited in the DRF till now and DRF distributes scholarships of Rs.100/- to 250/- to the disabled children of the economically disadvantaged disabled children for their education. DRF has been providing some training programs, like free computer training and sewing training, for disabled persons in order to make them economically self-dependent.
• The government through its concerned agencies has launched some self-employment opportunity schemes for the disabled. The Social Welfare Council (SWC) is providing loans of Rs. 5,000/- to 20,000/- without collateral to PWDs who have no means or resources to engage in a business despite of his/her skill and efficiency.
• SWC has provision for providing sign language interpreters to PWDs. SWC has also been providing a limited number of scholarships to disabled students and provisions for vocational training with special focus on disabled women.
• At district level the Asst. Chief District Officer who also acts as district Social Welfare Officer is mandated to issue identity cards to PWDs so they claim different services and rights. However since 1994 only few PWDs have been secured identity cards.
• The National coordination Committee on Disability was formed in 2000, is chaired by the Prime Minister and includes representatives from the Ministry of Finance, the National Planning Commission Secretariat, the Social Welfare Council, the Nepal Industrial Development Cooperation, representatives from the NGO disability sector and the National Federation of Disabled People.
• MOES provides education to PWDs through the Special Education Council (SEC) and Special Education Section (SES under DOE). The SEC, established in 1973, as a the governments' central coordinating body for all special education both at NGO and government level, deals with all policy issues concerning Special Education. SEC funds NGOs, which initiate educational programs. Special education program has covered 26 districts so far.
• MOH has been playing an important role in the area of prevention and basic health facilities.
• Some private agencies have provided employment opportunity for PWDs. For example, Bakery Café, a restaurant, has provided the employment opportunity especially for deaf people where all activities of the restaurant are run by deaf people except the management. Transport Business Federation has recently decided to give one seeing disabled person free traveling facilities on all long- and short distance buses by their own interest.
• National Federation of Disabled-Nepal (NFD/N), established in 1993 as an umbrella organization of NGOs run by PWDs, has been working in the areas of advocacy, networking and coordinating activities designed and implemented foor the development of PWDs.

Chapter IV
Registration

6. Congenital disability or becoming disabled at any age for various reasons shall be registered by the disabled person himself or by his parents or guardian stating the nature of the disability.

7. A disabled person is to be registered only once at a locality and can hold only one Disabled Persons Registration Card.

Chapter V
Medical Rehabilitation

8. The disabled person shall have the right of medical rehabilitation.

9. The Departments concerned shall endeavor for the procurement of prosthesis for the disabled persons.

10. Prosthesis for the disabled persons may be made available with'-special rates.

Chapter VI
Vocational Training and Right to Education

11. Social Welfare Department shall provide training schools and teaching programmes for disabled children who cannot attend and study at ordinary (regular) schools.

12. The Ministry of Social Welfare may open vocational training schools and practical training centers for adult disabled persons.

13. The Ministry of Education shall make provisions at normal schools and vocational training schools to enable disabled persons to attend them.

14. A disabled person may have the right to at-tend and learn as an apprentice at a workshop, factory and work center according to his skill and capacity.

15. workshop, factories and departments shall appoint disabled persons who have gained certificates from the Vocational Training Schools.

Chapter VII
Help to be given on Humanitarian Grounds

16. Arrangements shall be made for the disabled to travel in public conveyance with ease.

17. Special rates shall be prescribed for the benefit of disabled persons when traveling.

18. Exemption from profit tax and tax on goods produced by Disabled Persons Producer Cooperatives or producer workshops owned by the Disabled Persons.

Chapter VIII
Right to work

19. If worker's disability does not effect the performance of his original work he must be re-assigned to it after undergoing a medical treatment.

20. A worker who either becomes disabled during his work-hours or contracts disease and becomes sick as prescribed in the Workmen's Compensation Act, and if his disability prevents him to be assigned to the original duty, he shall have the right to be transferred to a suitable section of the workshop and continue his employment.

Note: Reply from the Burma Armed Forces regarding supplement to sections 19 and 20 is being awaited.

21. Workers though disabled are able to perform their original duties, there shall be no restriction to promote them to higher posts.

22. For the livelihood of the disabled persons, Producer Cooperative Societies may be established under the supervision of the Township People's Councils.

23. Whenever Government Departments are in need of goods preference to purchase the products of the Disabled Producer Cooperative Societies or Collective Workshops may be given and encouraged.

24. Regarding the sale of raw-materials preference may be given to the disabled persons Producer Cooperative Societies or Collective Workshops whenever possible.

25. For those who are extremely disabled, the Social Welfare Department may establish suitable after care homes for them.

Chapter IX
General

26. The Social Welfare Department in conjunction with the Health Department may establish guidance centers for the disabled persons.

27. For the successful and effective -implementation of this law, the cabinet may issue rules, regulations and procedures.

The cabinet may ratify the ILO convention and recommendation on the rehabilitation of disabled persons 1983.

26. The 1958 Disabled Persons Employment Act is repealed by this law.

"Employment of Disabled Persons Act − 1958" (Act No. 33 of 1958)

It is hereby enacted as follows: Chapter I

1. (1) This Act may be called "Employment of Disabled Persons Act - 1958".

(2) This Act may come into force on the day or the days fixed by The President of the Union by notification in the official Gazette. Moreover The President of the Union may declared separately the place and the date or the effective-date of any provision in this Act that may come into force.

2. In this Act, unless there is anything repugnant in the subject or context:

• "Disabled Person" means anybody who has attained the age of 16, and had he not suffered injury, disease or congenital deformation he would be able to obtain a job or to do a work or to do his private work that suits his age, qualification and efficiency. But due to his injury, disease or congenital deformation he is experiencing considerable difficulties to obtain a job or to do a work or to do his private work. The term "Disablement" must be interpreted in accordance with this clause.
• "Disease" includes physical condition and mental condition that arise from physical retard or impairment.
• "Board" means "The Board for Normalization and Employment of Disabled Persons" constituted by The President of the Union in accordance with the Section 3 of this Act.
• "Normalization" means actions taken for the benefits of Disabled Persons and prevention of Disability so that the person may again take active part in social activities.
• "Normalization by medical treatment" means medical treatment given to disabled persons with the aim to improve their remaining efficiency or to be able to work in ordinary industrial works as daily workers.
• "Vocational Training" means training of disabled persons so that they may be able to do as wages earners or to do their private work.
• "Registered List" means List of Disabled Persons, except those who were mentally retarded, maintained by the Board.
• "Employer" means the one who employed more than twenty persons in, any business or industry or in part of the business or at the branch of the business. The term shall also included the Government Departments and Local Bodies, Boards, Corporations or Councils constituted by the Government in accordance with any existing Law in force.
• "Prescribed" means prescribed by rules or regulations made under this Act.

Chapter II Constitution of The Board

3. (1) The Board named as the "The Board for the Normalization and Employment of Disabled Persons" shall be constituted with the following personnel:

• Minister for Social and Religious Affairs, (Chairman).
• Secretary, Social and Religious Affairs Ministry
• Director, Social Welfare Department, (Secretary).
• Secretary, Ministry of Industry.
• Secretary, Ministry of Health
• Secretary, Ministry of Labour
• Secretary, Ministry of Education
• Secretary, Ministry of Defense
• Hon Secretary, Social Planning Commission
• Manager, Social Security Board
• Manager, Vocational Training School for Disabled War Veterans
• A representative from Burma War Veteran Association
• Four persons appointed by the Government.

(2) The Board is the central body which will advise the Government on Policies concerning Normalization of Disabled Persons.

(3) The Board has the right to have its own official seal and continuous function. The Board has the right to possess movable properties and immovable properties and has right to make agreements and Sign contracts. The Board has the right to sue legal proceedings and be sued.

(4) Remuneration and allowances as prescribed by-The-President of the Union shall be paid to the members of the Board who were not Government officials.

(5) Life of the members of the Board, who were not Government officials will be two years.

(6) The President of the Union may terminate the life of any Non-Governmental Officials at any time.

Chapter III

To attain Normalcy by medical treatment and opportunities concerning vocational training

(1) The Board may plan or may arrange opportunities for medical treatment to attain normalcy and vocational training for disabled persons except mentally retarded persons.

(2) The Board may constitute any Department or organization by notification to carry out the matters as prescribed in sub-section (1).

(3) The President of the Union may constitute any Department or organization with the aim to give medical treatment to physically retarded children and mentally retarded persons to attain normalcy and to give vocational training.

Chapter IV

Plans for employment of Registered Disabled Persons and to be able to do private works

(1) The Board shall maintain a Registered List of disabled persons except mentally retarded persons.

(2) The form of the Register, the procedures for entries made in the Register, alterations made in the Register and deletion of entries may be made according to the decisions of the Board.

(3) Anyone whose name is in the Registered List may be referred to as "the one who is experiencing a bad condition in comparing with other normal persons and because of his disability he is being registered".

(4) The Board may prescribe regulations-in accordance with the rules made by this Act, which laid down the procedures to prove the facts a person's name is entered in the Register. In these regulations without affecting the general objective of this power, will consist of regulations concerning the producing evidences, keeping these evidence in custody, uses of these evidences and return of these evidences.

6, (1) The Board may prescribed regulations in accordance with the rules made by this Act which laid down the procedures for entering one's name in the Register, under what facts his name is to be Registered or not to be Registered; and may prescribed regulations which laid down procedures and rules concerning to keep the said name in the Register.

(2) Anyone who wishes that his name be entered in the Register shall put up an application in accordance with the rules and regulations prescribed for this matter.

(3) If the Board satisfied;

• that the applicant is a disabled person,
• that his disability may continue to exist for six months or more than six months from the date on which his name is entered in the Register,
• that it is in accordance with any regulation prescribed regarding entry of names in the Register which is related to him,
• that the applicant is not barred by any regulation which prescribed facts that prohibit the registration of the name of the applicant, his name shall be entered in the Register,

Chapter VI Management

15. The Board if it thinks at anytime, that it can not provide vocational trainings and medical treatments needed for normalization of disabled persons shall select the persons who wish to take medical treatment and vocational training to attain normalcy at its own discretion. In making such selection, those included in the following categories shall be given preferences:

• Those who have served full time in Burma Army before and during World War II.
• Those who have served full time in Burma Independence Army (B.I.A.) or Burma National Army (B.N.A.) or Patriotic Burma Forces (P.B.F.) during World War II.
• Those who have served full time in Union of Burma Navy, Army or Air Force.

16. The President of the Union may appoint officers and staffs to carry out the matters as prescribed in this Act. Furthermore the President of the Union instead of appointing officers and staff or in addition to appointing officers and staffs, may make arrangements with any Government Department so that its officers and staffs to carry out matters as provided in this Act.

17. If the one who has committed against any provision of this Act .is a company or Partnership Firm or other legal organizations, the Director or the Manager or the Secretary or the Officer in Partnership or an agent or an implied agent, unless he can prove that the commitment has been done without his agreement, that not due to his negligence, that he has used his reasonable effort to prevent the commitment, he shall be held as the one who has committed the crime.

18. The President of the Union may, by notification, prescribe rules so that the provisions in this Act shall be effective and enforceable. These rules shall be come into force as law.