As per the Fundamental Rights of the Constitution of Nepal,
Article 17. Right to Freedom:
(1) No person shall be deprived of his or her personal liberty except in accordance with law.
Article 18. Right to Equality:
(4) No discrimination shall be made on the ground of gender with regard to remuneration and social security for the same work.
Article 25. Right relating to Property:
(1) Every citizen shall, subject to law, have the right to acquire, own, sell, dispose of, acquire business profits from, and otherwise deal with, property. Provided that the State may levy tax on property of a person, and tax on income of a person in accordance with the concept of progressive taxation.
Explanation: For the purposes of this Article, "property" means any form of property including movable and immovable property and the word includes intellectual property right as well. (2) The State shall not, except for public interest, requisition, acquire, or otherwise create any encumbrance on, property of a person.
Article 28. Right to Privacy:
The privacy of any person, his or her residence, property, document, data, correspondence and matters relating to his or her character shall, except in accordance with law, be inviolable.
Article 34. Right to Labor:
(2) Every laborer shall have the right to appropriate remuneration, facilities and Contributory social security.
Article 38. Rights of Women:
(6) The husband and wife shall have the equal right to property and family affairs.
However,
As per section 15(2), 17(2) and 24(Ga) of the provisions of social-security-scheme-operating-procedure-2075-second-amendment, in case of death of Contributor during service time or after taking 180 months pension, respective husband/ wife or Father/ Mother who has alternative job/pension Income shall not be allowed to take neither principal amount of life time earnings and savings of 20% as a PF of Contributor nor pension from that amount.
Moreover, as per provision of section 35 of the same procedure, any facility given under SSF can be suspended on recommendation of the Government if they cannot run the scheme and there is no guarantee of returning even the principal amount.
From the above provisions, principal amount/ future potential Income shall be collapsed and nobody knows where the money goes although it is Individual’s contribution for his/ her social security, whereas PF/CIT can refund each Individual’s principal with interest amount at the time of retirement.
Opinion and conclusion:
As per the Fundamental Rights in Article 17(1), 18 (4), 25(1), 28, 34(2) and 38(6) of the Constitution of Nepal, every Individual has equal rights and any tax paid earnings (PF/CIT+ Gratuity etc.) deposited in any retirement funds account is his/ her private Movable property on which Individual has privacy and cannot be taken over by Government in normal course of action as well as should have Individual’s right/ freedom to deal with either to take back in lump sum or as a pension after retirement.
The major concern of SSF is to secure the retirement life of Contributors aging from 60 to 75 years since as per Article 41 of the Constitution of Nepal, the senior citizens shall have the right to special protection and social security from the State. But to secure the age of 15 years, Contributor is derived from the other all Fundamental Rights of the constitution of Nepal in other articles like 30. Right to Clean Environment, 31. Right relating to Education, 35. Right relating to Health, 36. Right relating to Food, 37. Right to Housing, 39. Rights of Child, 43. Right to Social Security, 44. Rights of Consumer and etc. since the pension amount is not sufficient to exercise all these Fundamental Rights and have great adverse impact on socio economic status of Contributors of SSF considering our social structure.
In addition to that, in case of death of Contributor, the provision of Contribution-based-SSF-law-2074, is not clear about who is ultimate beneficiary of Individual’s account on SSF where as in base of PF/CIT/BFIs, his/ her immediate legal heirs shall be the beneficial owner of deceased depositor/account holder.
In conclusion, as per provision of section 3 of the Contribution-based-SSF-law-2074, only those Individuals who have made contribution under SSF can get benefit therefrom. So, it should be the choice of Individual to make a secure future based on his/ her contribution during service time and contribution in SSF should be made voluntary to make prosperous Nepal in terms of Social Security in compliance with the Fundamental Rights of the Constitution of Nepal.
Happy to see the secure society of prosperous Nepal and stay safe!
Disclaimer: This personal opinion should not be used for any legal purposes.
Writer is a Social Campaigner.
