The Role of Legislation in Promotion of Education of Children with Disabilities

Bhushan Punani (gensecbpa@gmail.com)

Chairperson, ICEVI West Asia

Preamble: The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and Goal 4 of the Sustainable Development Goals (SDGs) desired provision of compulsory and quality education to all children including children with disabilities. While there have been many declarations, conventions and strategies on achieving this goal in a time bound manner, most developing countries have not achieved this target. These countries are nowhere close to achieving the target of “Education for all Children (including those with visual impairment).”  This paper discusses how legislation is only the beginning of the process of inclusive education and gives examples of other provisions that have been successful in exemplar countries.

A New Rights-Based Law in Nepal

On August 6, 2017 the Nepali parliament endorsed the Disability Rights Bill, adopting a human rights-based approach to disability. The new law will replace Disabled Protection and Welfare Act of 1982, which was enacted 35 years ago.The Act was formulated under the leadership of the Ministry of Women, Children and Social Welfare, in close collaboration with the National Federation of the Disabled Nepal, through a long process of consultations with DPOs, disability related services providers, other disability rights organizations and relevant government agencies, according to the National Federation of the Disabled – Nepal (NFDN), a national umbrella body of persons with disabilities.

Major provisions: The new legislation is divided into 13 chapters.

I: Preliminary

II: Classification of disability, identity card and documentation

III: Rights of persons with disabilities

IV: Additional rights to women and children with disabilities

V: Access to education

VI: Skills development and employment

VII: Health, rehabilitation, and social safety

VIII: Facilities

IX: Directive Committee and District Coordination Committee

X: Duties of various stakeholders

XI: Protection of rights and implementation of duties

XII: Crimes and Punishment
XIII: Miscellaneous

Key Features of the Nepalese Law: The access of persons with disabilities to basic services, human rights, opportunities including health, education and employment, are expected to increase on an equal basis significantly with the effective implementation of the Act.  The new Act has included some of the pertaining issues such as mental health and developmental disabilities, which were neglected in the past.

The new law incorporates some crucial features to safeguard the rights of persons with disabilities, including the following features.

  1. It is guided by a rights-based approach.
  2. It is formulated in line with the UNCRPD and the disability related provisions incorporated in the constitution of Nepal.
  3. The classification of disability has been amended.
  4. It prohibits all kinds of discrimination based on disability, with the provision of actions and punishment against it.
  5. It provides equal access to education, health, employment, public physical infrastructure, transportation, and information and communication services.
  6. It is developed in accordance with the federation system.

 

Policy Departure: The new law is more progressive and in line with international instruments made for persons with disabilities. Apart from broadening the scope of disability and clarifying the definition, the new legislation has ensured political, social and economic rights of persons with disabilities. Thus, the new Act should be considered as a major departure, from a welfare-based to a rights-based approach.

 

Way Forward: Emphasis on Implementation: If implemented effectively, the new Act provides an opportunity for persons with disabilities to lead a life of dignity. It has also envisaged more rights and employment opportunities for persons with disabilities. The endorsement of a progressive law, however, is not an end of all problems. Sincere efforts from concerned stakeholders, including the government, civil society, disabled persons’ organizations (DPOs), and others is required to materialize the provisions included in the new Act.

Education – A Constitutional Responsibility[1]

The announcement of the 2015 Nepalese Constitution was a significant step, as it promulgated that there shall be no discrimination in the application of general laws on the grounds of religion, race, origin, caste, tribe, gender, sexual orientation, physical conditions, health conditions, physical impairment/conditions, and matrimonial status, pregnancy, economic condition, and language or geographical region. With respect to education, the Nepalese constitution outlined the following:

  1. The physically impaired and economically poor shall have the right to free higher education, as provided for in law.
  2. The visually impaired shall have the right to free education with the assistance of braille
  3. Those with hearing and speech impairments shall have the right to free education with the use of sign language; and
  4. Children who are helpless, orphaned, physically impaired, victims of conflict and/or vulnerable, shall have the right to special protection and facilities from the state.

 

The basic structure of the Constitution of Nepal ensures social, economic and political justice as well as equality of status and of opportunity to all citizens of Nepal. It is thus the constitutional obligation of the State to ensure equal justice, equity, and equality to all citizens including persons with disabilities and other marginalized groups of people. Thus, the Constitution of Nepal has duly recognized the provision of education to all children, including those with disabilities.   

Elementary Education – A Fundamental Right

While the government of Nepal has endorsed inclusive education in policy, the translation of this policy to practice remains to be seen. There is urgent need to strengthen physical infrastructure and promote proper coordination between bodies that regulate – officially and unofficially – the education system in Nepal including: school supervisors, District Education Offices, Teachers, School Management Committee (SMC) members, International Non-Governmental Organisations (INGO) and local NGOs, local clubs, Village Development Committees (VDC), and Parent Teacher Association (PTA) members (CERID, 2008). The youth in Nepal have a great role to play in ensuring promotion of such coordination[2].

A Report on Disability in Nepal. Available from: https://www.researchgate.net/publication/303756141_A_Report_on_Disability_in_Nepal [accessed May 3, 2020].

 

Education of Children with Disabilities – A Legislative Mandate

An analysis of Nepal’s disability policies, acts, and regulations indicates that there are nine main areas that the government has granted facilities and rights for the disabled:

 

  1. Identity cards: Disabled persons are issued with identity cards, which are categorized according to the nature of disability (red, blue, yellow and white). Cards can be obtained from the district office.
  2. Free education: Educational institutions are prohibited from charging fees to disabled students. Certain educational allowances are also made, such as permitting the use of an assistant during examinations for students with visual impairments.
  3. Scholarships: The Government is determined to ensure that a variety of scholarships are available for disabled children, including vocational and technical training. The Government provides scholarships according to the type and severity of an individual’s disabilities, with 2% reserved for disabled students completing higher education.
  4. Medical care: Free medical examination facilities in hospitals for the disabled, and free medical treatment for disabled people above the age of 65.
  5. Workforce: The government of Nepal has reserved 5% of all jobs in the civil service industry for disabled persons.
  6. Transportation: Disabled persons receive a 50% discount for public transportation costs. Additionally, seats are reserved for disabled persons when the transportation vehicle has a capacity of 15 or more.
  7. Accessibility: Every public building and places (for example, hospitals, schools, campuses, buses, etc.) should be differently able friendly
  8. Income tax and customs: An income tax exemption applies for disabled persons in Nepal. The Government has also held that there should be custom-free means of transportation for disabled persons, including four-wheel scooters.
  9. Social welfare and shelter: NPR. 1000 per month as social welfare allowances for those with complete disabilities with nature-dependent allowances for other disabilities. The government has also put into place provisions to ensure that the disabled, including mentally imparied children, are able to access shelter.
A Report on Disability in Nepal. Available from: https://www.researchgate.net/publication/303756141_A_Report_on_Disability_in_Nepal [accessed May 3, 2020].

 

Requirements of the UNCRPD[3]:

As Nepal has ratified the UNCRPD, its provisions have the veracity and validity of law, and Nepal is bound by all the provisions of the same. Article 24(2)(a) mandates that persons with disabilities are not excluded from the general education system; Article 24(2)(b) mandates that persons with disabilities can access inclusive, quality, and free primary education and secondary education on an equal basis; other sub-articles talk of reasonable accommodation, provision of support, learning social and life skills.  The United Nations had adopted the SDGs with the principal objective to ensure that all people obtain peace and prosperity by 2030.  SDG 4 is designed to achieve inclusive and quality education for all and to promote lifelong learning.

 

Programmatic Entitlement: Nepal has taken steps towards adopting inclusive and integrated categories of schooling in its strategy towards inclusive education. The Nepalese Department of Education defines inclusive education as the developmental process of an education system that provides the right for all children to have useful education in a non-discriminatory environment of their own community by upholding multicultural differences of the country. The Department of Education has identified multiple target groups included in its inclusive education policies: girls, Janajati children (ethnic and linguistic groups), disabled children, street children, child laborers, children affected by conflict and trafficking, orphans, children living in poverty, children with HIV/AIDS and Leprosy, Kamaiya or bonded labour children, children studying in Madrasa Gumba or monasteries, and children from language-group minorities and refugee children.

 

A research study by Narayan Prasad Regmi[4] found that in theory inclusive education in Nepal is grounded in the human rights perspective. Although the Government has made different provisions for inclusive education at the policy level, the practice of inclusive pedagogy in classrooms was found less effective.  The practice of inclusive education is affected by multiple factors, such as lack of effective teachers, less inclusive culture in the schools, weak coordination between community and school, and limited financial resources of the schools. Among the factors that were found responsible for less effective inclusive practices was the negative attitude of teachers and parents towards disability and a lack of respect for disability and diversity.  Similarly, other social factors such as social values and the belief system, resource constraints, lack of knowledge about children with disabilities, and social isolation – where children with disabilities are often ignored by teachers, peers, and other school staff – were equally responsible for the study’s conclusion that there is an implementation gap between inclusive education policy and its actual practice in Nepal.

United Nations Convention on the Rights of Persons with Disabilities, available at:
http://www.un.org/disabilities/convention/conventionfull.html
https://edoc.ub.uni-muenchen.de/20510/7/Regmi_Narayan_P.pdf

 

India:  An Exemplar

India has implemented several initiatives, which might be helpful for Nepal and other countries working to implement the UNCRPD, SDG4, and new legislation.

  1. Right to Education Act (2009), which ensures free and compulsory education to all including children with disabilities.
  2. Rights of Persons with Disabilities Act (2016), a comprehensive right- based law based on principles of the UNCRPD, which ensures complete inclusion of persons with disabilities, protection of their rights, and promotion of needs-based services for them.
  3. Sarva Shiksa Abhiyan, a national level program that provides inclusive education at the primary level of education to 2.7 million children with disabilities.
  4. Rashtriya Madhymic Shiksa Abhiyan, which ensures education support including services of Special Educators to all children with disabilities at the secondary level of education.
  5. Reserving 5% of Higher Education enrollment in all type of courses for persons with disabilities, in the institutions run or supported by the Government.
  6. ADIP Scheme, which provides free of cost assistive devices, including rehabilitation and educational devices.
  7. A variety of initiatives at the University level for facilitating education of person with disabilities.
  8. Establishment of 18 computerized Braille presses across the country for providing free-of-cost Braille books to students.
  9. Reserving 4% of jobs at all levels of employment in the Government sector for persons with disabilities.
  10. Concessions in travel, services of writers in the exam, extra time in examination and such other accommodations that eliminate barriers for persons with disabilities in education and rehabilitation.

Role of Young People: Youths with visual impairment have a great role to play in promoting services for children with visual impairment. And India has made its youths a critical part of its overall inclusion strategy.  Youths with visual impairment can:

  • Understand existing policies, legislation, programs, facilities, and concessions for persons with visual impairment.
  • Create awareness about these provisions and enable persons to avail themselves of these benefits.
  • Promote and initiate advocacy measures for effective implementation of these initiatives.
  • Become role models by attaining success in availing all these benefits and emerging as leaders.
  • Take the initiative at community and school level to make education inclusive, identify children with visual impairment, motivate and enable parents to get their children enrolled and take measures to implement all the programs effectively.
  • Advocate at local, district, provincial, and national level to see that all these measures are implemented effectively.
  • Associate with organizations, parents’ groups and Disabled People’s Organization to promote such measures further.
  • Identify other role models and promote their success stories
  • Use local media for creating awareness about these provisions and benefits.
  • Organize motivational programs, extend a helping hand to students studying at various level of education, and assist them to complete all formalities for availing all the concessions and entitlements.

Conclusion

As the dictum goes, “Law prevails over expert opinions, research findings and personal views on the subject.”  Thus, it is mandatory for Nepal to ensure appropriate education of children with disabilities at the elementary as well as the secondary level of education. As India has enacted appropriate measures and adopted policies on imparting free and compulsory education to all children including children with disabilities at all four levels – constitution, legislation, policies, and schemes – now it is time to prevail upon the all Governments to ensure that each and every child with a disability is ensured free and appropriate education, in each and every mode of education, at all levels of education, and with complete provision of educational devices, professional services, and equal opportunities.

 

Let their education not be merely an academic discussion; we must respect children’s rights to education and ensure their access to appropriate, quality, and effective education.

[1] A Report on Disability in Nepal. Available from: https://www.researchgate.net/publication/303756141_A_Report_on_Disability_in_Nepal [accessed May 3, 2020].

[2] A Report on Disability in Nepal. Available from: https://www.researchgate.net/publication/303756141_A_Report_on_Disability_in_Nepal [accessed May 3, 2020].

[3] United Nations Convention on the Rights of Persons with Disabilities, available at: http://www.un.org/disabilities/convention/conventionfull.html

[4] https://edoc.ub.uni-muenchen.de/20510/7/Regmi_Narayan_P.pdf