Informe provisional - Informe núm. 251, Junio 1987

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

1. 373. The World Confederation of Organisations of the Teaching Profession (WCOTP) originally presented its 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 December 1986 and 3 April and 8 May 1987.
2. 374. Despite numerous requests to the Government for its observations on these various allegations, no reply was received and the Committee, at its May 1986 meeting, was obliged to examine this case without the benefit of the Government's reply (see 244th Report, paras. 337 to 356, approved by the Governing Body at its 233rd Session).
3. 375. Since then, the Committee has addressed a further urgent appeal to the Government for a reply (248th Report, para. 12, approved by the Governing Body at its 235th Session, March 1987). At the same time, 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.
4. 376. 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. 377. In its previous examination of this case, the Committee noted that the WCOTP alleged the following: (1) refusal by the authorities to register the Nepal National Teachers' Association (NNTA); (2) refusal by the Minister of Education to enter into negotiations with the NNTA; (3) repressive actions by the authorities, including detention of NNTA leaders, interference in the NNTA second national conference by the police and mass arrests of demonstrating teachers.
2. 378. At its May-June 1986 Session, the Governing Body approved the Committee's conclusions contained in its interim report on this case and, in particular the following recommendations:
   • 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."

B. Further information supplied by the complainant organisation

1. 379. In its communication of 2 December 1986, the WCOTP alleges that the imprisonment of the General Secretary of its affiliate, the Nepal National Teachers' Association, Mr. Devi Prasad Ojha, has again been extended under the Public Security Act; that, on 27 September 1986, Mr. Ramashis Yadar, a NNTA district executive member was arrested while issuing membership receipts to the teachers; that, on 27 October 1986, the chairman of the Dhannstra District Committee of the NNTA, Mr. Chandeswar Prasad Shingh, was arrested near the NNTA office. The WCOTP adds that while the Minister of Education has been sympathetic towards the registration, reinstatement and release of teachers, and to the formation of an ad hoc committee for teachers, the local administration is allegedly involved in establishing an association parallel to the NNTA at the national level.
2. 380. In its communication of 3 April 1987, the WCOTP complains that the Government of Nepal continues to deny registration to the NNTA and refuses to receive delegations from that organisation. It reiterates that the NNTA General Secretary, Mr. Devi Prasad Ojha, is still detained under the Security Act (which legislation permits the issuance of detention orders, valid for nine months and renewable, without stating reasons, preferring charges or bringing the prisoner to trial) and adds that two other teacher unionists - Messrs. Ram Bahadur Thopa, Assistant Secretary of the Syanga District Committee of the NNTA, and Madhar, of the Khavre District Committee - have been held in detention since 1985, in addition to the 7,000 teachers who have been detained for various periods of time - and brutally beaten in some cases - since then.
3. 381. The WCOTP alleges that the following NNTA teacher unionists have been killed (it states that dates cannot be given because of uncertainty, mainly due to deficiences in official reports and the difficulty of transcribing from the Nepalese calendar):
   • - Tanka Bhushal (of the Argha Khanchi District; died after beating by police in his home);
   • - Min Bar Chand (of the Baitadi District; beaten to death in the police station);
   • - Abikeshar Bharati (of the Jhapa District; found dead outside his village);
   • - Mahendra Tadav (of the Sirha District; shot in his home by bandits known to be in the employ of a local landlord);
   • - Suresh Shar Burja (of the Myagdi District; shot by persons known to be regularly employed, for purposes of intimidation, by a member of the legislature);
   • - Ram Dev Pandit (of the Dhanusa District; became ill in prison and was refused medical attention; released in extremis and died before reaching hospital).
4. 382. The WCOTP also supplies details concerning 61 teachers who were allegedly dismissed for having participated in NNTA activities (see Annex I) and 35 teachers who were allegedly transferred for this reason (see Annex II). According to the WCOTP, reports providing numbers but not names show the following total figures, in addition to the above-mentioned dismissed or transferred teachers: 138 dismissed, 80 transferred, 6 demoted and 13 arrested on false charges. The WCOTP also states that intimidation and victimisation of teacher unionists continue.
5. 383. According to the WCOTP, after the violent disruption of the second NNTA national conference in 1984 by police attacks, the Government announced its intention of creating a new organisation for secondary teachers only. The Acting President of the NNTA, who had been in detention for six weeks, was released to participate in talks on behalf of the NNTA which, however, rejected the proposal. The WCOTP alleges that in late 1986 the Government proposed the creation of two organisations, one for primary teachers and one for secondary teachers, and invited the NNTA to appoint five persons to an advisory committee to discuss this proposal. The WCOTP states that after these nominations were received, the Government selected 13 more teachers without reference to the NNTA, added two Ministry of Education officials and two Members of Parliament, and appointed a third Member of Parliament to chair the committee. It was allegedly made clear to members of the advisory committee that it must arrive at recommendations acceptable to the Government, and that an acceptable outcome would make it more likely that the General Secretary and his colleagues would be released and dismissed teachers reinstated.
6. 384. The WCOTP states that under these pressures and after six weeks of discussion, the Acting President of the NNTA, and the four other members appointed by the NNTA, abandoned the explicit mandate given to them by the Central Executive Committee of their union. On 30 January 1987 they signed a committee report which was accepted by the Government in February, and which:
   • a) set forth the constitutions of two separate organisations, the NNPTA and the NNSTA;
   • b) established a two-level structure for secondary teachers (NNSTA), but deleted the district level for primary teachers, leaving them only the right to elect delegates to a triennial national conference;
   • c) provided that dismissed teachers and temporary teachers would be ineligible for membership;
   • d) provided that the Government "may" provide funds to the associations.
7. 385. The WCOTP states that the Central Executive Committee of the NNTA does not consider this agreement valid and, since its signing, the officers concerned have not participated in NNTA meetings. It stresses that there has been no spontaneous movement on the part of teachers to create separate organisations, although some secondary teachers and head teachers are known to favour the concept. The Minister, moreover, allegedly reported to the press that the NNPTA and the NNSTA were the sole existing teachers' organisations, and that he considered the NNTA to have gone out of existence. The WCOTP states that efforts by local NNTA officers to call meetings to discuss the proposed changes have led to threats of disciplinary action for insubordination and Ministry of Education officials have pressured head teachers to sign declarations of support for the changes. It adds that the NNTA is preparing to convene its third national conference in June 1987, but greatly fears that the Home Secretary will again order the police to disperse the meeting.
8. 386. In a communication dated 8 May 1987, the WCOTP states that Mr. Devi Prasad Ojha has been released from detention.

C. C. The Committee's conclusions

1. 387. Before examining the substance of the case, the Committee regrets that it is necessary to draw once again to the attention of the Government of Nepal the considerations it set out in its First Report (Para 31), namely that the purpose of the whole procedure is to promote respect for trade union rights in law and in fact, and it 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. 388. The Committee in these circumstances again deplores that the Government has not sent any reply to the serious allegations presented by the WCOTP two years ago and that it has been obliged, because of the time which has elapsed, to examine the case for a second time without being able to take account of the Government's observations or comments.
3. 389. The Committee notes that the allegations in this case - including the most recent ones - concern numerous serious violations of the freedom of association of a national teachers' organisation (the NNTA), ranging from refusal to register it through to the continued detention without trial for over two years of eight of its leaders and death of six of its district officers. On this latter allegation it notes that the complainant gives no specific reasons for the deaths apart from pointing out that the six persons involved held office in its district units, and it recalls that in its previous examination of this case it appeared that during anti-union violence led by the police one teacher had been killed, although his links to the trade union in question were not specified.
4. 390. Faced with this range of grave allegations, the Committee expresses its deep concern over the situation of the NNTA and urges the Government, after taking note of the following considerations to do its utmost to ensure that respect for the trade union rights of teachers is guaranteed freely in Nepal.
5. 391. Turning now to the allegations which have been outstanding for two years and which are amplified in the most recent communications from the complainant, as regards the non-registration of the Nepal National Teachers' Association, the Committee would recall, as it did in its previous examination of this case, 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. The Committee once again hopes that the NNTA, which has been applying for registration since early 1980, will be able to plead its case before the competent courts especially given the threat it feels from the February 1987 agreement creating two new teachers' organisations.
6. 392. Linked to this question of non-registration during the Committee's previous examination of this case was the complainant's allegation that the authorities refused to meet and negotiate with the NNTA. The Committee notes from the information supplied more recently by the complainant that, at least since late 1986, much discussion has taken place between the NNTA (admittedly through those of its officers who, after signing a report which was not acceptable to the association's full executive, have since not participated in NNTA meetings) and Government representatives. Of more vital concern to the complainant according to its latest allegations is the fact that these talks led to the establishment of two new, allegedly government-controlled, teachers' organisations and the accompanying government coercion to stifle any discussion of, or opposition to, this.
7. 393. The Committee has always emphasised in cases such as this that workers should in practice be able to form and join organisations of their own choosing in full freedom. When looking at allegations that the public authorities have, by their attitude, favoured or discriminated against one or more trade union organisations - by means of public statements or the unequal distribution of subsidies or facilities or the refusal to recognise certain organisations - the Committee has stated that any coercion of this kind jeopardises the right of workers to form and join organisations of their own choosing (see, for example, 93rd Report, Case No. 494 (Sudan), para. 333).
8. 394. The Committee notes with great concern that the WCOTP's most recent allegations concerning government repression of teachers and in particular NNTA members reflect its previous examination of such serious measures as mass arrests (the WCOTP gives the figure of 7,000 detentions since 1985) and the continued detention without trial, apparently on the grounds of their union affiliation and activities, of eight NNTA officers since 1985 (Yagya Murti Arjal, R.P. Panday, A.P. Sapkota and K.P. Bhattari - all of whom were listed in the Committee's previous examination of this case - and Ramashis Yadar, Chandeswar P. Shingh, Ram B. Thapa and Madhar referred to by the WCOTP in its latest communications). The Committee must once again stress the importance of the principle that the detention of trade union leaders for trade union membership or activities connected with the exercise of their trade union rights is contrary to the principles of freedom of association. Moreover, it again emphasises that one of the fundamental rights of the individual is that detained persons should be brought without delay before the appropriate judge. In the case of persons engaged in trade union activities, 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 urges the Government to inform it rapidly of the charges against these union leaders and of their current situation.
9. 395. The third major set of allegations concerns continuing acts of anti-union discrimination taken by the authorities against teachers in their employment (according to the most recent allegations a further 61 dismissals and 39 transfers). In these circumstances, the Committee can only recall once again 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. 1113 (India), para. 130). It urges the Government to inform it rapidly of the current situation of the teachers who were apparently prejudiced in their employment because of their trade union activities or functions.
10. 396. The Committee is particularly concerned at the alleged death of a further six teachers, members of the NNTA, although the complainant has been unable to supply more specific information on the circumstances surrounding these deaths. During its previous examination of this case the Committee already commented on the alleged death of a teacher at the hands of the police and it would repeat its exhortation to the Government that a judicial inquiry be set up to ascertain the facts in full and determine the responsibilities so that steps will be taken to punish those responsible and to prevent the repetition of such actions. It again hopes that such an inquiry will be carried out as soon as possible into all the alleged deaths and requests the Government to inform it of developments in these matters.
11. 397. Lastly, the Committee recalls that no information has been forthcoming from the Government on the alleged police raid on the NNTA premises on 17 May 1985, in particular on the Committee's request, made during its last examination of this case, that the papers confiscated at that time be returned to the union.

The Committee's recommendations

1. 398. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee deplores the fact that the Government has not sent its observations on this case in spite of many requests to do so and that the Committee has therefore been obliged, on two occasions, to examine the case in the absence of these observations.
   • b) Given the seriousness of the numerous allegations in this case, the Committee urges the Government to do its utmost to ensure that respect for trade union rights of teachers is guaranteed freely in Nepal.
   • c) Meantime, the Committee once again hopes 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.
   • d) The Committee draws the Government's attention to the principle that favouritism or discrimination in its dealings with unions jeopardises the right of workers to form and join organisations of their own choosing and it urges the Government to inform it rapidly of the current situation of the union leaders who have apparently been detained, dismissed or transferred and of the return of confiscated papers to the union.
   • e) As regards the alleged deaths of teacher unionists at police hands, the Committee urges that a judicial inquiry be carried out as soon as possible so that steps will be taken to punish those responsible and prevent the repetition of such actions; it again requests the Government to keep it informed of developments in these matters.

Z. ANNEX I

• Teachers allegedly dismissed for trade union activities
  1. 1 Vice President Ram Chandra Shama - Central Committee
  2. 2 Vice President Chuda Mani Shama - Central Committee
  3. 3 General Secretary Devi Prasad Ojha - Central Committee
  4. 4 Dina Nalti Sharma - Central Committee
  5. 5 Gore Bahadur Khapangee - Central Committee
  6. 6 Rabikira Nirgib - Central Committee Mekb
  7. 7 Baburau Thapa - Bhorpur
  8. 8 Chudamani Sharma - Myagdi
  9. 9 Khuma Malti Subedi - Myagdi
  10. 10 Ganesh Bhattarai - Dhanakuta
  11. 11 Madhar Ghimoree - Dhanakuta
  12. 12 Uman Alti - Secretary of the District Association - Dhanakuta
  13. 13 Agam Thapa - Dhanakuta
  14. 14 Pahal Mau Basnet - Dhanakuta
  15. 15 Nefra Pandhak 16. Surya Pandhak 17. Naraya Subedi 18. Hom Par Koirela 19. Badri Naraya Yadar - Saptari 20. Bishnu Ojha - Ghapa District 21. Chandre Swore Prasad Sing - President of Dhanusa District 22. Ram Sagar Pandit - Dhanusa District 23. Vindaya Swore Mahota - Dhanusa 24. Dil Bahadur Joshi - Dhanusa 25. Luxari Prasad - Dhanusa 26. Ram Dev Pandit - Dhanusa 27. Ganegh Gha - Dhanusa 28. Ram Ratan - Dhanusa 29. Ram Nalti Akhol - Tanahu 30. Tunga Nalti Chapagi - Ghapa 31. Jula Bharai - Ghapa 32. Rabesi Phemaree - Ghapa 33. Metia Dahal - Ghapa 34. Buddhi Raj Dhimel 35. Ranga Par Dahal 36. Udab Dhimal 37. Dawodar Timelsika 38. Khau Bhandari 39. Thakar Mishra 40. Puspa Kharal 41. Bimala Dahal 42. Somanalli Ganlair 43. Maresh Shama 44. Kashar Adhikari 45. Luxmi Kiran Pandel 46. Radra Chapagar 47. Pradip Thapa 48. Buddhi Ma Adhikai 49. Puspa Bhottarin 50. Chirengabi Adhikari 51. Narayan Silwal 52. Tara Kharal 53. Shiba Kharal 54. Bhuban 55. Binod Oli 56. Pundeja Bhattarai 57. Divar Pokhral 58. Utan Bhattarari 59. Nefra Pathak 60. Krishna Chandari 61. Krishna Oli ANNEX
• II
• Teachers allegedly transferred for trade union activities
  1. 1 Monoralk Dhakal - Urla Bari Secondary School, Morang District
  2. 2 Bhegiralti Setaula - Amar Daha Secondary School, Morang District
  3. 3 Mukti Bazal - Ramahilo Primary School, Morang District
  4. 4 Kashi Nalti Shama - Madhu Malla Primary School, Morang District
  5. 5 Bhadra Naraya Chandari - Bhogpur 6. Dal Bahadur Chhaya - Boghpur
  7. 7 Bishnu Bhakta Rai - Teralhain
  8. 8 Tika Subedi - Teralhein
  9. 9 Krishna Katel - Teralhein
  10. 10 Kunta Sharma - Teralhein
  11. 11 Shiva Chandra Yadar - Sankhuya Sabha 12. Nanda Lal Mehata - Bhojpur 13. Makar Gurung - Teralhein 14. Nara Prasad Biwalee - Solukhenbu 15. Shiba Setaula - Saptari 16. Hari Naraya Bhattalai - Solu 17. Chandra Madenba - Iuruwa 18. Krishna Subha - Siraha 19. Kari Prasad Pokral - Vice President 20. Janaedan Upratee - Ghapa 21. Santa Prosahi - Ghapa 22. Bishnu Ojha - Ghapa 23. Tei Ray Khatibada - Ghapa 24. Dev Krishna Prashahi - Ghapa 25. Ambika Bhardari - Ghapa 26. Bharat Bimalee - Ghapa 27. Mohar Dahal - Ghapa
  28. 28 Garga Rau Dahal - Ghapa
  29. 29 Bhaksi Siba Kotee - Ghapa
  30. 30 Dinesa Chandra Gha - Dhanusa
  31. 31 Digember Gha - Dhanusa
  32. 32 Vindaya Swore - Dhanusa
  33. 33 Daya Rau - Dhanusa
  34. 34 Luxmi Naruyan Gha - Dhanusa
  35. 35 Rau Sagar - Dhanusa