Report in which the committee requests to be kept informed of development - REPORT_NO278, June 1991

CASE_NUMBER 1337 (Nepal) - COMPLAINT_DATE: 21-MAI-85 - Closed

1. 114. The Committee has already examined the substance of this case on six previous occasions, each time presenting interim conclusions to the Governing Body, the most recent of which were approved in November 1989 (see 268th Report, paras. 336 to 357).
2. 115. The Government supplied certain comments on this case in a communication dated 14 May 1990, which were reflected in the Committee's 272nd Report, paragraph 6 (approved by the Governing Body at its May-June 1990 Session). On that occasion, the Government pointed out that His Majesty the King had suspended certain statutory restrictions so as to establish more democratic values and individual rights; in particular the right to freedom of association had been restored. The Committee took note of these positive developments in general, but requested a specific reply from the Government on the outstanding allegations in order to be able to reach final conclusions in full knowledge of the facts.
3. 116. At its February-March 1991 meeting, the Committee addressed an urgent appeal to the Government for its reply to the last remaining allegations, stating that it would present a report on the substance of the case at its next meeting even if the observations requested from the Government had not been received by that date (see 277th Report, para. 11). No reply has been received from the Government following this urgent appeal.
4. 117. Nepal has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 118. This case originated in a complaint by the World Confederation of Organisations of the Teaching Profession (WCOTP) presented on behalf of its affiliate, the Nepal National Teachers' Association (NNTA) in May 1985. The allegations referred to the Government's refusal since 1980 to register the NNTA or to enter into negotiations with it and repressive actions by the authorities such as detentions, mass arrests and torture in detention. At subsequent examinations of the case, the WCOTP added further allegations, in particular the death of seven NNTA district leaders, the dismissal of 61 teachers and the transfer of another 35 due to their union activities; government interference disrupting the second (1987) and third (1988) national conferences of the NNTA and arresting 72 demonstrators at the 1987 gathering; the creation by the authorities of two new associations purporting to represent, respectively, primary and secondary teachers and which held their inaugural congresses in 1989; the arrest in late 1987 of a further ten named trade union leaders.
2. 119. On several occasions in the history of this case the Committee was obliged to express its profound regret that the Government had either not replied or merely sent very brief general responses denying the allegations without any supporting evidence and documentation. This was all the more serious given the gravity of the allegations and the several requests- including contacts at the International Labour Conference by the Chairman of the Committee and interventions by the Director-General of the ILO- made to the Government for its observations. At its November 1987 examination of the case, the Committee felt the situation had so deteriorated as to urge the Government to accept the sending of a representative of the Director-General to assist in finding solutions in accordance with relevant ILO standards and principles on freedom of association (see 253rd Report, paras. 302 to 327).
3. 120. In its replies over the years, the Government explained, inter alia, that the refusal to register the NNTA was due to its politically motivated activities, acts which in fact led the Government to declare it an illegal body. The Government defended its drafting of constitutions for the two new teachers' associations on the grounds that they would be more democratic and broad-based. It considered the allegations of death of teacher unionists to be false, baseless and intended to malign the Government and regretted that the WCOTP had not supplied more details on the deaths. It claimed that if any teacher was detained it was not for his professional activities but for state offences. In addition, it stated that the police action during the NNTA congresses was justified because the Association had been outlawed. As for the negligible number of teachers dismissed or transferred, the Government stated that those who realised their mistake and wished to rejoin their schools had been reinstated. On one occasion, the Government explained that it found the complaints so malicious and baseless that it did not deem it worthwhile to give its observations on them and it expressed its sorrow that its silence had jeopardised the decision of the Committee because the Committee had been obliged to examine the case in the absence of specific and detailed information.
4. 121. At its most recent examination of the substance of the case in November 1989, the Governing Body, in the light of the Committee's interim conclusions, approved the following recommendations (268th Report, para. 357):
   • (a)The Committee expresses its deep regret at the lack of detail supplied by the Government on the outstanding aspects of this case which has been examined on five previous occasions and which- according to the complainant's regular communications- appear to remain without solution.
   • (b)Given the seriousness of the long-standing allegations in this case, the Committee urges the Government once again to supply specific and detailed information on all of the allegations currently before it in this case.
   • (c)In particular, it requests the Government to set up a judicial inquiry into the alleged deaths at the hands of the police in 1985 of seven district officers of the NNTA ... and to inform the Committee of the inquiry's findings.
   • (d)The Committee recalls the importance of freedom from arbitrary arrest and of the right to a fair and rapid trial; it requests the Government to supply information on the 15 named detainees, some of whom have been imprisoned since 1985, especially details on their release and/or the specific charges brought against them, progress in their various trials and copies of the judgements acquitting or sentencing the teacher trade unionists involved.
   • (e)Given the importance attached by the Committee to the principle of non-discrimination in employment for trade union membership or activities, it requests the Government to inform it rapidly of the current situation of the trade union leaders and members listed in Annex I (61 dismissed) and Annex II (35 transferred) to the present case.
   • (f)The Committee again urges the Government to recognise the NNTA, which has been requesting registration since 1980.
5. 122. The Committee, as noted above, took account of certain information communicated by the Government in May 1990 concerning important political changes in the country, but requested full replies to all the outstanding allegations which specifically involved trade union rights. Despite the Committee's urgent appeal addressed to the Government at its February 1991 meeting, no new communication has been received from the Government.

B. The Committee's conclusions

1. 123. The Committee can only express its deep regret that, once again in this case, it is obliged to examine the allegations without the benefit of having the Government's up-to-date comments. As it has on many previous occasions, it recalls that the purpose of the whole procedure set up in the ILO for the examination of allegations of violations of freedom of association is to promote respect for trade union rights in law and in fact; as the procedure protects governments against unreasonable accusations, governments on their side should formulate, so as to allow objective examination, full and detailed replies to the allegations brought against them (First Report of the Committee, para. 31).
2. 124. After examining the history of this case, the Committee considers that it must once again emphasise that trade union rights can only be exercised in a climate that is free from violence of any kind against unionists and that it is for governments to ensure that this principle is respected (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 70). Even if, as the Government indicates, recent political changes aim at restoring freedom of association in the country, it is still incumbent on the Government to reply to the detailed allegations presented against it over a number of years, and to do so in as much detail as possible. This is particularly the case when there are allegations of deaths, arrests and detentions, dismissals, transfers and police interference in union meetings.
3. 125. The Committee recalls that the principles of freedom of association have consistently upheld that no worker should be prejudiced- through anti-union acts such as dismissal or transfer- in his or her employment due to union membership or activities and that arrests based on legitimate union activities constitute a violation of trade union rights (Digest, paras. 538, 540 and 588). It also recalls, as regards the police interference in the NNTA's national congresses, that the right of trade unions to hold meetings freely in their own premises for the discussion of trade union matters and without interference by the public authorities is a fundamental aspect of trade union rights (Digest, para. 142).
4. 126. In view of all the above, the Committee asks the Government to keep it informed in the future of developments affecting the NNTA (such as its registration or official recognition and the facility for holding its annual conferences). It also asks the Government to confirm that the NNTA is no longer deemed to be an illegal association by the authorities.

The Committee's recommendations

1. 127. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)The Committee can only express its deep regret that, once again in this case which originated in May 1985, it has been obliged to examine the allegations without the benefit of having the Government's up-to-date comments and without any official documentation to refute the allegations made over the years concerning the deaths, arrests, dismissals or transfers of union leaders and unionists, some of which date back to the early 1980s. It once again urges the Government to keep it informed of developments concerning these various allegations which have now been outstanding for many years.
   • (b)While noting the Government's indications concerning important political changes in the country in early 1990, the Committee asks the Government to keep it informed in the future of developments affecting the Nepal National Teachers' Association (such as its registration or official recognition and the facility for holding its annual conferences). It also asks the Government to confirm that the NNTA is no longer deemed to be an illegal association by the authorities.