Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 340, Marzo 2006

Caso núm. 2412 (Nepal) - Fecha de presentación de la queja:: 15-MAR-05 - Cerrado

Allegations: The complainants allege that after a royal coup in Nepal in February 2005, all civil liberties were suspended by the state of emergency, all trade union rights were suspended and meetings of more than five persons were banned, leading to a climate of fear, which has forced many of the members, activists and leaders of the Nepali trade union movement to go into exile, fearing arrest. The complainants further allege arrests of several trade union leaders, unwarranted searches of trade union offices and acts of harassment and intimidation by the Minister of Education against the teachers’ unions, the Nepal National Teachers’ Association (NNTA) and the Nepal Teachers’ Association (NTA). Finally, it is alleged that all public sector unions were suspended and that the amendment of the Civil Service Act banned the activities of the NEGEO

1113. The complaint is set out in a communication by the International Confederation of Free Trade Unions (ICFTU) dated 15 March 2005 and communications dated 2 June and 23 August 2005 from the Nepal Government Employees’ Organization (NEGEO).

1. 1114. The Government forwarded its observations in communications dated 12 April, 18 August and 19 September 2005.
2. 1115. Nepal has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has neither ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 1116. In its communication dated 15 March 2005, the International Confederation of Free Trade Unions (ICFTU) alleges that following the dismissal of the Government by the King, a decree promulgated on 31 January 2005 suspended all trade union rights and banned meetings of more than five persons. Since then, a climate of fear has gripped members, activists and leaders of the Nepali trade union movement, many of whom have gone into hiding, fearing arrest. It has been reported that the names of many top leaders of the Nepal Trade Union Centre (NTUC), the General Federation of Nepalese Trade Unions (GEFONT) and the Democratic Confederation of Nepalese Trade Unions (DECONT) were listed among 1,400 persons the Government intended to arrest or place under close surveillance. According to the ICFTU, a total of about 25 trade unionists had reportedly been arrested since the Royal Proclamation of 1 February, some of whom were detained for up to three months and some were ill-treated while in detention.
2. 1117. The ICFTU further alleges that several trade union leaders were forced into exile. That was reportedly the case for Mr. Laxman Basnet, the President of the NTUC. On 1 February 2005, he participated in the executive board meeting of the ICFTU-APRO (EB) at the Soaltec Crown Plaza Hotel. Following the Proclamation of the King at 10 a.m., at 11 a.m., the army came to the NTUC’s office. The police then came to the hotel but due to the presence of many international labour leaders, did not enter the hotel, but rather posted their officers outside and in front of Mr. Basnet’s car. However, Mr. Basnet managed to leave the hotel unseen and had to go into hiding. Police came to his house on three occasions and on two of them they searched his house.
3. 1118. In addition to the threats of arrest of trade union leaders or anybody actively organizing trade union activities, the ability of the unions to function was also undermined by a range of restrictions imposed by the Royal Proclamation of 1 February. Trade union meetings could be held exclusively in union offices, which were often too small to host such gatherings (unions wishing to meet elsewhere needed prior permission from the chief district officers). Furthermore, procedures for the registration of unions or renewal thereof imposed by the Royal Proclamation lacked clarity. Sanctions were provided for violations of the Royal Proclamation of up to one year of imprisonment.
4. 1119. The ICFTU further states that it has received reports of army raids on trade union offices. Army soldiers have reportedly entered and searched the offices of the NTUC several times. Trade union documents have been seized. The offices of the GEFONT have been under surveillance. On 15 and 16 February, security officers visited the GEFONT’s office and, on 17 February, conducted a search, without a search warrant. Finding nothing, they closed the union office and returned the key only in the evening.
5. 1120. According to the ICFTU, a general atmosphere of fear reigns among all trade unionists, and members of journalists’ trade unions feel particularly targeted because the King has taken measures to take control over the media and telecommunications. The President of the Federation of Nepalese Journalists, Tara Nath Dahal, and other journalists have gone into hiding or exile to avoid arrest.
6. 1121. The ICFTU further reports on harassment and intimidation by the Minister of Education against Nepali teachers’ unions, the Nepal National Teachers’ Association (NNTA) and the Nepal Teachers’ Association (NTA). On 7 March, through the media, the Minister accused the unions of political affiliation and added that teachers should not engage themselves in politics. According to the complainants, the Government expressed its opinion that there should only be one common union for teachers, if one should exist at all.
7. 1122. The ICFTU further states that is has been informed that the joint Trade Union Committee for Gender Equality (TUC-GEP) of the three national centres, the GEFONT, the NTUC and the DECONT, had obtained permission to celebrate International Women’s Day with a rally and a seminar on women’s rights on 8 March. However, on 7 March after 6 p.m., the authorities called the trade union offices to withdraw their permission and banned the event. They also threatened women organizers. However, the unions were allowed to hold a meeting at a hotel under the condition that they restrict themselves strictly to the subjects of equality and gender policy. The meeting was held in the presence of a security officer. Women’s Day rallies were held by other organizations and individual trade union members. Security forces were dispatched to survey the rallies. All over the country, 226 arrests took place: 36 in Kathmandu, 97 in Janakpur, 23 in Pokhara, 35 in Tanahu, seven in Dhangadhi and 28 in Chitwan. In Pokhara, police attacked a rally and two trade unionists were injured. In Butwal, following a rally and a mass meeting, police threatened to arrest Mr. Kamal Gautam, the GEFONT zonal head. In Mahendranagar, police searched for and threatened to arrest a newly elected GEFONT zonal head, Dharmanda Pant, after he had hosted a conference on International Women’s Day.
8. 1123. Finally, the ICFTU submits that a Royal Notice, published on 7 February, ordered all public sector unions to close down temporarily. In its communications of 2 June and 23 August 2005, the Nepal Government Employees’ Organization (NEGEO), established in 1990 and recognized by the Government through the Civil Service Act, further submits that by adopting the ordinance to amend this Act and, in particular, section 53, the Government has eliminated the provisions allowing for a national level organization of government employees and banned the activities of the NEGEO. The NEGEO expressed its concern that the new approach to organizing according to profession is aimed at creating fragmentation in the trade union movement of civil servants. In addition, the complainant alleges that the Minister of General Administration had announced that the amendment was aimed at bringing the new organizations under the Government’s control. He blamed the existing organization for being politically involved and stated that the Government needed to change this situation.
9. 1124. Following the adoption of the Ordinance, the District Administrative Office in Kathmandu published, on 3 August 2005, a notice to the effect that all types of organizations of civil servants were deregistered. The NEGEO filed a petition to the Supreme Court against this unconstitutional ban. The chief district officer in Bajhang district of the far western region locked the district office of the NEGEO and confiscated everything from it. The NEGEO alleges that the amendment of the Civil Service Act, which also negatively affects the social security system and other important workers’ rights, was adopted without consulting the social partners and the Government had even ignored their submissions. The amendments provide for “guided associations” of employees, based on number of divisions (accounting, general administration, legal, etc.) creating therefore a dozen associations. Moreover, according to the complainant, the right to organize is granted, under the new Ordinance, to non-officer employees, who favour the Royal Government.
10. B. The Government’s reply
11. 1125. In its communications dated 12 April and 19 September 2005, the Government, with reference to the allegations brought by the ICFTU, indicates that the recent political developments in Nepal cannot be understood without reference to the broader political realities that have evolved in the Kingdom during the past few years. Terrorist groups were carrying out violent subversive activities in different parts of the country instigating anarchy and jeopardizing the lives of millions. The events of 1 February were aimed at protecting people from the perpetrators of violence, improving law, ensuring essential supplies and restoring the sense of security. The Government submits that emergency situations are different from normal times and demand more stringent measures. However, it draws the Committee’s attention to the fact that since then, the state of emergency has been lifted.
12. 1126. The Government disagrees with the allegation that all civil liberties were suspended. It furthers states that it finds it difficult to see how one can enjoy liberties in a state of terror created by insurgency. The first and foremost condition for the prevalence of civil liberties is that the normal political process operates and people can lead a normal peaceful life. However, even during the state of emergency, article 12(c) of the Constitution, which guarantees freedom of association was not suspended, which meant that trade unions could operate during this period. The Government understands that the state of emergency affects the freedom of all layers of society, including trade unions. However, the Government refutes the allegation that 1,400 people were being targeted for arrest or close surveillance and states that a general surveillance was in fact needed to ensure that innocent people were not victimized and such surveillance was not prejudicial to or directed against trade unions. While there have been very few cases of arrests and detention following the lifting of the state of emergency, there has been no report of any arrest or detention carried out simply or solely on the grounds of trade union activities or membership. There has been no report of ill-treatment, torture or hardship. Moreover, special attention was given to make the period of detention as short as possible. Presently, there are no trade union activists in detention. Most of the detainees were released long before the state of emergency was lifted after preliminary investigations. The Government expressed its belief that neither the Constitution of the ILO nor the relevant Conventions or Recommendations rule out the possibility of application of some restrictions if the situation so demands. The Government considers that as the state of emergency has long been lifted, all the allegations made in connection with it have lost their relevance.
13. 1127. The Government submits that the process of social dialogue was not interrupted, notwithstanding the state of emergency. The Ministry of Labour and Transport Management was in constant touch with trade union leaders during this period. Tripartite consultations on various legislative and labour-related matters went on without disturbance. Representatives of all national trade union federations were freely taking part in those consultations. Labour offices responsible for administration of trade union activities were instructed to carry out their regular activities such as registration of trade unions.
14. 1128. With regard to the allegations brought by the NEGEO, the Government, in its communication of 18 August 2005 confirms that the Civil Service Act was amended on 14 July 2005. It indicates that the amendment of the Act constitutes an integral part of the overall reform programme, which has long been on a national agenda needed to improve the efficiency and effectiveness of government administration taking into account the socio-economic situation of the country. There is nothing conspiratorial in the reform efforts; rightsizing of the civil service is a regular function and a legitimate right of a government. Reform in the social security schemes, including pensions, was dictated by economic reasons and unsustainably swelling pension bills. Accordingly, a new and more sustainable scheme has been introduced based on contributions by both employees and the Government, which is an internationally accepted practice. Moreover, the amended Act in no way interferes with job security.
15. 1129. The Government submits that while it is aware of the right to form and join organizations for the promotion and defence of their occupational interests by public servants, Article 6 of Convention No. 98, ratified by Nepal, stipulates that the Convention does not deal with the position of public servants engaged in the administration of the State. It further clarifies that the Civil Service Act applies only to the government employees engaged in the administration of the State. There are separate laws governing the employees in other sectors and public enterprises. However, the amended Civil Service Act does not restrict civil servants engaged in the administration of the State from constituting their professional organizations. Rather, the amendment allows these employees to form professional organizations based on their respective professional interests. Section 53(1) of the amended Act explicitly mentions that “civil servants can form their organizations based on diversity of professions”. Similarly, in accordance with section 53(2) of the Act, these organizations can present their suggestions to the Government pertaining to the policy and legal reforms and thus protect their right to organize. In the meantime, the Government, in consultation with civil servants, will draft detailed provisions in the Civil Service Regulations on the procedure for establishing organizations. The Government further adds that this reform or amendment in no way interferes with the Labour Act and Trade Unions Act. Hence, the allegation of the NEGEO of having “guided organizations” is not valid. Further, the allegation that the right to organize will be granted to those non-officer employees who are in favour of the Government is unfounded.
16. 1130. With regard to the dissolution of the NEGEO, the Government states that it was necessary for the transition to the new arrangement of having professional organizations. This was done not to restrict the right to organize, but to make space for a meaningful organization and a collaborated dialogue based on professional interests of employees concerned.
17. 1131. The Government further informs that the amended Civil Service Act, besides ensuring the right to organize of civil servants, also provides for additional measures of grievance handling and redress, and therefore makes the Act more responsive to the employees’ needs.

C. The Committee’s conclusions

1. 1132. The Committee notes that the complainants in this case, the International Confederation of Free Trade Unions (ICFTU) and the Nepal Government Employees’ Organization (NEGEO), allege that after a royal coup in Nepal in February 2005, all civil liberties were suspended by the state of emergency, all trade union rights were suspended and meetings of more than five persons were banned, leading to a climate of fear, which had forced many of the members, activists and leaders of the Nepali trade union movement to go into exile, fearing arrest. The complainants further allege arrests of several trade union leaders, unwarranted searches of trade union offices and acts of harassment and intimidation by the Minister of Education against the teachers’ unions, the Nepal National Teachers’ Association (NNTA) and the Nepal Teachers’ Association (NTA). Finally, it is alleged that all public sector unions were suspended and that the amendment of the Civil Service Act banned the NEGEO’s activities.
2. 1133. The Committee notes the allegations concerning suspension of civil liberties and trade union rights, including the organization of public meetings, during the state of emergency, submitted by the ICFTU in a communication of 15 March 2005. According to the complainants, the Royal Proclamation of 1 February 2005 imposed a range of restrictions on registration and functioning of trade unions. The complainants allege that while this Proclamation lacked clarity, the violation thereof was to be sanctioned by up to one year of imprisonment. The Government provides no information in this respect and only states that the process of social dialogue was never interrupted during the state of emergency. While considering that the enactment of emergency regulations which empower the Government to place restrictions on the organization of public meetings and which are applicable not only to public trade union meetings, but also to all public meetings, and which are occasioned by events which the Government considered so serious as to call for the declaration of a state of emergency, does not in itself constitute a violation of trade union rights, the Committee would also recall that where a state of emergency exists, it is desirable that the Government in its relations with occupational organizations and their representatives, should rely, as far as possible, on the ordinary law rather than on emergency measures which are liable, by their very nature, to involve certain restrictions on fundamental rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 188 and 190]. The Committee notes the Government’s statement to the effect that the state of emergency has since been lifted and trusts that the Government will bear these basic principles in mind in the future should such an emergency situation recur.
3. 1134. As concerns the allegations of unwarranted searches of trade union premises of the Nepal Trade Union Centre (NTUC) and the General Federation of Nepalese Trade Unions (GEFONT), as well as of the house of Mr. Basnet, the President of the NTUC, and confiscation of trade union documents from the NTUC’s office, the Committee notes that no specific information was provided by the Government in this respect. The Committee considers that a state of emergency cannot be invoked to justify the entry by police or army into trade union premises without a judicial warrant. The Committee requests the Government to take the necessary measures so as to ensure that all documents seized from the NTUC’s office are returned without delay and to keep it informed in this respect.
4. 1135. The Committee further notes the allegations of threats of arrest, arrest and ill-treatment of those detained, following the events of 1 February 2005, as well as in relation to the rallies held on 8 March. The Committee notes that according to the ICFTU, 25 trade unionists were arrested following the Royal Proclamation of 1 February. The ICFTU alleges that some of them were detained for up to three months, some were ill-treated while in detention and some, fearing arrest, were forced into exile, as was the case with Mr. Basnet, the President of the NTUC, and trade union leaders of the Federation of Nepalese Journalists. Furthermore, 226 arrests took place following Women’s Day rallies. The Committee notes the Government’s statement that while there have been very few cases of arrest and detention, there has been no report of any arrest or detention carried out simply or solely on the grounds of trade union activities or membership. Nor had there been reports of ill-treatment, torture or hardship. According to the Government, special attention was given to make the period of detention as short as possible. The Government states that presently, there are no trade union activists in detention. Most of the detainees were released before the state of emergency was lifted, after preliminary investigations.
5. 1136. In this respect, the Committee would firstly recall that measures of preventive detention should be limited to very short periods intended solely to facilitate the course of a judicial inquiry [see Digest, op. cit., para. 195]. In light of the contradictory information submitted by the complainants and the Government as to the question of ill-treatment and detention lasting up to three months, as well as the allegedly continuous threats of arrest that had forced trade unionists into exile, the Committee requests the Government to carry out an independent inquiry into these matters so that appropriate measures may be taken, including compensation for damages suffered and sanctioning of those responsible. Furthermore, if, following the independent inquiry, the allegations of continued threats of arrests are confirmed, the Committee requests the Government to take steps to ensure that the authorities concerned receive appropriate instructions not to interfere in the legitimate exercise of trade union activities through the threat of arrest, so that trade union leaders may freely exercise their trade union rights. The Committee requests the Government to keep it informed of the outcome of the independent inquiry.
6. 1137. The Committee further notes the allegation of harassment and intimidation by the Minister of Education against Nepali teachers’ unions, the NNTA and the NTA. According to the complainants, on 7 March, through the media, the Minister accused the unions of political affiliation and expressed the opinion that there should only be one common union for teachers, if one should exist at all. The Government provides no reply to this allegation. Considering that such statements made by the authorities constitute serious acts of interference in trade union internal affairs and are therefore incompatible with the principles of freedom of association, the Committee requests the Government to refrain from such undue interference and to issue appropriate instructions to the relevant authorities to ensure that such acts do not occur in the future. It requests the Government to keep it informed in this respect.
7. 1138. The Committee notes the NEGEO’s allegation that the amendment of the Civil Service Act was adopted without consulting the social partners. According to the complainants, the amendments provide for “guided associations” of employees, open the way for fragmentation of associations and grant the right to organize only to those in favour of the Royal Government. In its reply, the Government refutes these allegations and states that the Civil Service Act applies only to the government employees engaged in the administration of the State and that there are separate laws governing the employees in other sectors and public enterprises. However, even as amended, the Civil Service Act does not restrict civil servants engaged in the administration of the State from constituting their professional organizations. Rather, the amendment allows these employees to form professional organizations based on their respective professional interests. The Government further adds that this reform or amendment in no way interferes with the Labour Act and Trade Unions Act.
8. 1139. The Committee regrets that the NEGEO was not consulted during the drafting of the amendments to the Civil Service Act. The Committee draws the attention of the Government to the importance of prior consultation of workers’ organizations before the adoption of any legislation affecting their rights [see Digest, op. cit., paras. 929 and 930], and requests the Government to ensure the application of this principle in the future.
9. 1140. The Committee notes the amendment of the Civil Service Act, which appears only to permit organizations in the civil service to form organizations along professional groups. The Committee further notes that as the direct result of this amendment, the activities of the NEGEO were banned and its assets were confiscated. According to the Government, such measures were necessary for the transition to the new arrangement of having professional organizations. This was done not to restrict the right to organize, but to make space for a meaningful organization and collaborated dialogue based on professional interests of employees concerned. Moreover, the Government has not replied to the allegations that the NEGEO’s assets were confiscated. The Committee considers that the reasons invoked by the Government do not justify the banning of activities of a trade union organization. In addition, the Committee recalls that public servants, like all other workers, without distinction whatsoever, have the right to form and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests [see Digest, op. cit., para. 213]. The Committee further recalls that organizations of public servants should not be restricted to employees of any particular ministry, department or service and that they should have a right to join federations and confederations of their own choosing. Considering that the wording of the amended Civil Service Act, and the subsequent ban on the NEGEO’s activities, amounts to a restriction on setting up organizations of any other type than along professional lines seriously interferes with the rights of these workers and their organizations to form national cross-professional organizations in defence of their interests, the Committee urges the Government to take the necessary measures, including the amendment of the Act, so as to ensure that public servants are allowed to establish such organizations and join federations and confederations of their own choosing, and to ensure that the NEGEO may freely exercise its activities once again and that its assets are returned without delay. It requests the Government to keep it informed in this respect.
10. 1141. The Committee requests the Government to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association.

The Committee’s recommendations

1. 1142. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) The Committee recalls that where a state of emergency exists, it is desirable that the Government in its relations with occupational organizations and their representatives, should rely, as far as possible, on the ordinary law rather than on emergency measures which are liable, by their very nature, to involve certain restrictions on fundamental right. It trusts that the Government will bear these basic principles in mind in the future should such an emergency situation recur.
3. (b) The Committee requests the Government to take the necessary measures so as to ensure that all documents seized from the NTUC’s office are returned without delay.
4. (c) With regard to the allegations of ill-treatment of detainees, arrest and threats of arrest:
5. – The Committee requests the Government to carry out an independent inquiry into these matters so that appropriate measures may be taken, including compensation for damages suffered and sanctioning of those responsible.
6. – Furthermore, if, following the independent inquiry, the allegations of continued threats of arrest are confirmed, the Committee requests the Government to take steps to ensure that the authorities concerned receive appropriate instructions not to interfere in the legitimate exercise of trade union activities through the threat of arrest, so that trade union leaders may freely exercise their trade union rights.
7. – The Committee requests the Government to keep it informed of the outcome of the independent inquiry.
8. (d) The Committee requests the Government to refrain from any undue interference in trade union affairs and to issue appropriate instructions to the relevant authorities to ensure that acts of interference in trade union internal affairs do not occur in the future.
9. (e) The Committee regrets that the NEGEO was not consulted during the drafting of the amendments to the Civil Service Act and draws the attention of the Government to the importance of prior consultation of workers’ organizations before the adoption of any legislation affecting their rights. It requests the Government to ensure the application of this principle in the future.
10. (f) The Committee urges the Government to take the necessary measures, including the amendment of the Civil Service Act, so as to ensure that public servants are allowed to establish national cross-professional organizations and join federations and confederations of their own choosing, and to ensure that the NEGEO may freely exercise its activities once again and that its assets are returned without delay.
11. (g) The Committee requests the Government to keep it informed of the measures taken in respect of its recommendations above.
12. (h) The Committee requests the Government to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association.