Informe provisional - Informe núm. 244, Junio 1986

Caso núm. 1337 (Nepal) - Fecha de presentación de la queja:: 21-MAY-85 - Cerrado

1. 337. The World Confederation of Organisations of the Teaching Profession (WCOTP) presented a complaint of violations of trade union rights on behalf of its affiliate, the Nepal National Teachers' Association, in a communication dated 21 May 1985. It supplied additional information in communications dated 5 July and 8 October 1985.
2. 338. Despite numerous requests to the Government for its observations, no reply was received and the Committee, at its February 1986 meeting, addressed an urgent appeal to it for a reply (243rd Report, para. 10, approved by the Governing Body at its 232nd Session, March 1986). On that occasion, the Committee drew the Government's attention to the fact that it would present a report on the substance of this case at its next meeting, even if the Government's observations had not been received at that date. The Government has not replied to this urgent appeal.
3. 339. 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. The complainant's allegations

1. 340. In its communication of 21 May 1985, the WCOTP alleges the following:
2. (1) refusal by the authorities to register the Nepal National Teachers' Association (NNTA);
3. (2) refusal by the Minister of Education to enter into negotiations with the NNTA on its demands concerning teachers' salaries and education provision;
4. (3) repressive actions by the authorities, including detention of NNTA leaders, interference in the NNTA conference by the police, beating up of conference participants, mass arrests of demonstrating teachers and torture and ill-treatment of persons in custody.
5. 341. The WCOTP states that, following its founding conference in December 1979 the NNTA submitted its constitution to the Minister of Education for approval in January 1980. After this, registration of the Association was sought from the Ministry of Home Affairs, but to date this has not been obtained and no reasons for the refusal have been given. According to the WCOTP, the NNTA represents 45,000 teachers of the 65,000 teaching force in 68 of the 75 districts of Nepal and has contacts in the other seven districts; both private and public school teachers are covered. The WCOTP points out that, until the organisation is registered, a formal convention is considered illegal. The NNTA nevertheless decided to hold a national convention in 1984 which was disrupted violently by police (kicking and beating delegates) within one hour of commencing. The WCOTP states that the medical, bar and engineers associations have also not obtained registration. It believes that only those organisations established by the Government have been registered.
6. 342. According to the WCOTP, to put pressure behind the application for registration and to improve the status of teachers the NNTA staged strikes in March 1980 and April 1981 and undertook a non-cooperation campaign in 1984-85. It claims that the actions taken have been followed by more than 90 per cent of the membership in spite of government threats and repressive measures. It stresses that all NNTA action has been peaceful whereas the Government has reacted with harsh violence. For example, in February 1985 more than 40 teachers were demoted, transferred, deprived of grade facilities or dismissed as reprisals against the non-cooperation campaign. The WCOTP estimates that, in total, there have been over 10,000 arrests of teachers, students and guardians and that 1,000 teachers were still imprisoned at the end of March 1985. It reports the mass arrest in March 1985, of over 2,000 teachers during a "March to Katmandu" campaign which involved the closing of almost all schools for a week. Faced with these harsh measures, states the WCOTP, the NNTA staged new protests calling for the release of arrested teachers, e.g., a nation-wide strike was held on 9 January 1985 with strong support from transport, bazaar and other sectors; another 24-hour nation-wide strike was scheduled for 20 May 1985.
7. 343. The WCOTP alleges the imprisonment of the following NNTA officials: President, Janek Pyakuryal, was arrested on 12 March and released eight days later; General Secretary, Devi Prasad Ojha, was arrested on 26 March; Vice-President, Bimal Koirala, was arrested on 12 March and released early in May; executive committee members, Yagya Murti Aryal and Mohan Norayan Shresta, were arrested on 2 and 9 March, the latter being released on 23 March; district Presidents were also arrested: R.P. Panday, A.P. Sapkota and K.P. Bhattarai. It claims that those arrested were sent back to their own districts by trucks at night and submitted to the district administrative officers; they were offered the choice between signing bonds against the non-cooperation movement or resigning or going to jail. According to the WCOTP, in some districts they were beaten in custody and released.
8. 344. The WCOTP states that the NNTA has long sought negotiations on salaries and other matters related to their status and education provision. Negotiations with the Minister of Education broke down in January 1985 and teachers were excluded from salary increases of 40 to 60 per cent granted to other public employees. Teachers later received an increase which only amounted to 20 to 35 per cent.
9. 345. In its letter of 5 July 1985, the WCOTP alleges that the following incidents took place in May 1985:
   • - on 17 May at 6 p.m. the police raided the NNTA office, removed files, pamphlets, handbills and also the key of the office. Mr. Jeven, a teacher from the Pata District, was arrested;
   • - on 18 May the Teacher Training College was surrounded by the police, a curfew imposed on the college premises, and some arrests were made;
   • - on 19 May schools, shops, restaurants and offices were closed; transport was at a standstill and very few people ventured into the streets; the day was also marked by mass meetings and demonstrations in many districts, which were disrupted by the police, and arrests were again made; there was some firing and one teacher (Mr. Gandiv Shrestha) was killed;
   • - by 21 May more than 60 leaders and teachers were under arrest and at 17 June they had not yet been brought to trial. The WCOTP adds that the General Secretary of the NNTA, arrested on 26 March 1985, remains in detention and has not been charged or brought to trial. It believes that his continued imprisonment is based on discretionary powers accorded to police authorities for the maintenance of order, and not on any allegation of a breach of the law.
10. 346. In its communication of 8 October 1985, the WCOTP states that, in retaliation for demonstrations and protests, 87 teachers have been imprisoned, 159 dismissed, 82 transferred and 6 demoted. It adds that the Government of Nepal has stopped the payment of salaries to the teachers who took part in the non-cooperation campaign although the school management committees are ready to pay them.

B. The Committee's conclusions

1. 347. Before examining the substance of the case, the Committee considers it necessary to recall the considerations it set out in its First Report (para. 31), and which it has several times had occasion to repeat: the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and the Committee is confident that, if the procedure protects governments against unreasonable accusations, governments on their side will recognise the importance of formulating, for objective examination, detailed replies to the substance of the allegations.
2. 348. The Committee therefore deplores that the Government has not sent any reply and that it is obliged, because of the time which has elapsed, to examine the case without being able to take account of the Government's observations.
3. 349. The Committee notes that the allegations in this case concern numerous violations of the freedom of association of a national teachers' organisation, ranging from refusal to register it through to the continued detention and torture of its officers. It also appears that during anti-union violence led by the police one teacher was killed, although his links to the trade union in question are not specified. The Committee expresses its deep concern over this situation and hopes that the Government, having taken note of the following considerations, will do its utmost to ensure that respect for the trade union rights of teachers is guaranteed in Nepal.
4. 350. First, as regards the non-registration of the Nepal National Teachers' Association, the Committee would recall that an appeal should lie to the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration. In addition, judges should be able to deal with the substance of a case concerning a refusal to register to enable them to decide whether or not the provisions on which the administrative measures appealed against are based, constitute a violation of the rights accorded to occupational organisations by Convention No. 87. The Committee trusts that the NNTA, which has been applying for registration since early 1980, will be able to plead its case before the competent courts and be granted registration in the near future.
5. 351. Linked to the above issue is that of the authorities' alleged refusal to negotiate with the teachers' union. On this point the Committee notes that - apparently following the industrial action of 1984-85 - teachers did receive a salary increase in 1985 although it did not match the increase granted to other public employees. From the information at its disposal, it is not clear to the Committee whether the NNTA was instrumental in achieving this improvement. It would nevertheless draw the Government's attention to the principle that the right to bargain freely with employers, with respect to conditions of work, constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditons of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof (see, for example, 172nd Report, Case No. 877 (Greece), para. 92).
6. 352. The second major allegation concerns repressive actions by the authorities, including the serious measures of mass arrests, torture in detention and continued detention of union leaders (five NNTA officers have allegedly been imprisoned without trial since March 1985: Devi Prasad Ojha, Yagya Murti Aryal, R.P. Panday, A.P. Sapkota and K.P. Bhattarai). The Committee observes with special concern that these measures were taken in retaliation against a peaceful non-cooperation campaign staged by the NNTA in support of its occupational claims. It stresses the importance of the principle that the detention of trade union leaders for activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association. Moreover, it is one of the fundamental rights of the individual that detained persons should be brought without delay before the appropriate judge, this right being recognised in such instruments as the International Covenant of Civil and Political Rights. In the case of persons engaged in trade union activites, this is one of the civil liberties which should be ensured by the authorities in order to guarantee the exercise of trade union rights (see, for example, 236th Report, Case No. 1204 (Paraguay), para. 441). The Committee requests the Government to inform it of the charges against these union leaders and of their current situation. Given the lack of detail concerning the alleged torture in detention, the Committee can only recall generally that governments should carry out inquiries into complaints alleging ill-treatment of detainees so that appropriate measures, including compensation for damages suffered, may be taken.
7. 353. As regards the alleged death of a teacher (Mr. Gandivr Shrestha) on 19 May 1985 during police disruption of a teachers' demonstration, the Committee recalls that when disorders have occurred involving loss of human life or serious injury, the setting up of a judicial inquiry by the government concerned is a particularly appropriate method of fully ascertaining the facts and determining the responsibility therefor. The Committee trusts that steps will be taken to punish those responsible and to prevent the repetition of such actions. It expects that such an inquiry will be carried out as soon as possible into this death and requests the Government to inform it of the results and of the other measures taken in relation to these matters.
8. 354. The third major allegation concerns acts of anti-union discrimination taken by the authorities against teachers in their employment (as at October 1985, 159 dismissals, 82 transfers and 6 demotions). The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organisations shall have the right to elect their representatives in full freedom (see, for example, 236th Report, Case No. 113 (India), para. 130). It requests the Government to inform it of the current situation of the teachers who were prejudiced in their employment because of their trade union activities or functions e.g., are the salaries of those teachers who participated in the non-cooperation campaign being paid; have there been any reinstatements, appeals against demotions or dismissals?
9. 355. The fourth serious allegation concerns the police raid on the NNTA office at 6 p.m. on 17 May 1985, during which union effects were removed. The Committee recalls that the International Labour Conference, in its 1970 Resolution concerning trade union rights and their relation to civil liberties, considered that the right to protection of the property of trade union organisations constitutes one of the civil liberties which are essential to the normal exercise of trade union rights (see, for example, 218th Report, Case No. 1066 (Greece), para. 145). It trusts that the union papers have been returned to their owner and that such incidents will not recur.

The Committee's recommendations

1. 356. In these circumstances, the Committee recommends the Governing Body to approve this interim report and, in particular, the following conclusions:
   • a) The Committee deplores the fact that the Government has not sent its observations on this case in spite of several requests to do so. The Committee has therefore been obliged to examine the case in the absence of these observations.
   • b) Given the seriousness of the numerous allegations in this case, the Committee expresses the hope that the Government will do its utmost to ensure that respect for trade union rights of teachers is guaranteed in Nepal.
   • c) The Committee trusts that the Nepal National Teachers' Association, which has been applying for registration since early 1980, will be able to plead its case before the courts and be granted registration in the near future.
   • d) The Committee draws the Government's attention to the principle that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association.
   • e) The Committee observes with special concern that various repressive actions were taken by the authorities in retaliation to peaceful trade union activities and requests the Government to inform it of the charges brought against the five trade union leaders who have apparently been detained without trial since March 1985 and of their current situation.
   • f) As regards the death of a teacher during police disruption of a teachers' demonstration on 19 May 1985, the Committee expects that a judicial inquiry will be carried out as soon as possible to determine responsibilities; that steps will be taken to punish those responsible and to prevent the repetition of such actions; it requests the Government to keep it informed of the outcome of the inquiry and of other measures taken in relation to these matters.
   • g) As regards the acts of anti-union discrimination taken by the authorities against teachers over the last few years, the Committee requests the Government to inform it of the current situation of those teachers who were dismissed, demoted or transferred because of their trade union activities or functions.
   • h) The Committee hopes that raids on union premises, such as that carried out by the police on 17 May 1985, will not recur and that all union documents confiscated at that time have been returned to their owner, the Nepal National Teachers' Association.