Interim Report - REPORT_NO268, November 1989

1. 336. The Committee has examined this case on five previous occasions - in May 1986, May and November 1987 and May and November 1988, when it submitted interim reports to the Governing Body (see 244th Report, paras. 337 to 356, 251st Report, paras. 373 to 398, 253rd Report, paras. 302 to 327, 256th Report, paras. 282 to 309 and 259th Report, paras. 427 to 475, each approved by the Governing Body). Since then, the World Confederation of Organisations of the Teaching Profession (WCOTP) sent additional information in letters of 27 February, 5 April and 7 September 1989.
2. 337. The Government sent its further comments in a communication dated 4 October 1989.
3. 338. 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. 339. The original allegations in this case referrred to (1) refusal, since 1980, by the authorities to register the Nepal National Teachers' Association (NNTA) and the subsequent declaration of its illegality under section 6 of the National Guidance Act; (2) repression by the authorities including the death, at the hands of the police, of seven NNTA district officers in 1985 (Mr. Gandir Shrestha, Mr. Tanka Bhushal, Mr. Min Bar Shand, Mr. Abikeshar Bharati, Mr. Mahendra Tadav, Mr. Suresh Shar Burja and Mr. Ram Dev Pandit) and the detention since 1985 of eight NNTA leaders (Mr. Y.M. Arjal, Mr. R.P. Paday, Mr. A.P. Sapkota, Mr. K.P. Bhattari, Mr. R. Yadar, Mr. C.P. Shingh, Mr. R.B. Thapa and Mr. Madhar), as well as of S.C. Amatya and C.C. Dhakal, arrested in August 1987; (3) police disruption of the NNTA's second and third national conferences and mass arrests of demonstrating teachers; (4) the dismissal of 61 named teachers and the transfer of a further 35 because of their trade union activities.
2. 340. In the light of the Committee's interim conclusions, in November 1988 the Governing Body approved the following recommendations on the outstanding aspects of the case:
   • (a) The Committee recalls the importance which it attaches to the principle that workers, including teachers, should be able to form trade unions of their own choosing, without previous authorisation, for the defence of their economic, social and occupational interests.
   • (b) The Committee also recalls the importance of strikes as an essential means which workers, including teachers, should have for the defence of their occupational interests.
   • (c) The Committee accordingly urges the Government to recognise the National Nepal Teachers' Association (NNTA) since the declaration of illegality concerning this association appears to be unfounded and it has been requesting registration since 1980.
   • (d) The Committee requests the Government to ensure that all of the teachers who supported the setting up of the NNTA and took part in strikes in the education sector since 1980 be reinstated in their posts and to communicate detailed information on the manner in which it has carried out these reinstatements.
   • (e) The Committee also requests the Government to ensure that all detained teachers are released or promptly tried by an independent judicial authority. It requests the Government to keep it informed of any developments in this connection.
   • (f) The Committee lastly urges the Government promptly to supply its observations on the detailed allegations of the complainant contained in the WCOTP's communications of 5 July 1985 and 3 April 1987 concerning the death of seven trade unionists in the education sector.

B. Further allegations from the complainant

1. 341. In its communication of 27 February 1989, the WCOTP states that Mr. S.C. Amatya of the NNTA was released unconditionally from custody on 28 December 1988 after almost 18 months' imprisonment. The following NNTA unionists remain in prison: Chabi Chandra Dhakal, Prem Pakhrin, Bharat Gurung and Shanta Pradhan.
2. 342. In its letter of 5 April 1989, the WCOTP adds that the NNTA is still operating under pressure and that its activities are under strict government surveillance. The two associations sponsored by the Government held their inaugural conference in February 1989. It lists the following NNTA members still imprisoned: Hem Raj Rai, Kamal Jung Rai, Nara Pati Chapagnai, Yub Raj Sharma, Chudamani Sharma. It states that there is no information on the detention of Mr. Prem Pakhrin, referred to above, so the total number of newly listed detainees is eight.
3. 343. In its letter of 7 September 1989, the WCOTP submits the following additional information regarding two members of the Nepal National Teachers' Association:
   • - Mr. Bharat Gurung, NNTA Secretary, Taplejung District, who was in prison for about one year, has recently been released;
   • - Mr. Rishi Kattel, NNTA Central Committee member, who was arrested in May 1989, has been released on bail.

C. The Government's reply

1. 344. In its letter of 4 October 1989, the Government states that, as regards the various NNTA leaders and members allegedly still in prison it is not aware of the detention of the persons named. Either they are not teachers or they have been sent to prison on criminal or other offences. Since the WCOTP list does not state any details of the causes and places of their detention, it has become difficult to investigate if they are still in prison.
2. 345. As regards the allegation that many of the teachers who were dismissed and transferred without any reason are still in the same situation and that the Government has not taken action to resolve the problem, the Government states that no teacher has been dismissed or transferred without a valid reason.
3. 346. The Government repeats that Mr. S.C. Amatya has been unconditionally released from prison. It lists other NNTA leaders released recently: Mr. Senam Sherpa, active member, Delakha district (PSA); Mr. Jagan Nath Timalsina, active member, Dhading district (PSA).

D. The Committee's conclusions

1. 347. At the outset, 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 - appears to remain without solution for those Nepalese teachers who wanted to remain members of a union of their own choosing.
2. 348. The Committee recalls in this connection the principle expressed in its First Report (paragraph 31), 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, as detailed and full replies as possible to the allegations brought against them. The Committee wishes to stress that, in all the cases presented to it since it was first set up, it has always considered that the replies from governments against whom complaints are made should not be limited to general observations.
3. 349. In these circumstances, the Committee can only note the Government's silence on the allegations of deaths, and its denial of any unwarranted detentions or dismissals. It therefore repeats its previous requests, and urges the Government once again to supply specific and detailed information on all of the allegations in this case.
4. 350. In particular, it requests the Government to set up a judicial inquiry into the alleged deaths of teacher trade unionists at the hands of the police in 1985, to inform it of the release of or of the charges brought against the detained NNTA leaders named by the WCOTP, and to state whether the teachers dismissed for taking part in the 1980 strikes have been reinstated. The reasoning behind these repeated requests appears in the following paragraphs.
5. 351. In general, given the seriousness of these allegations, the Committee 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 (see Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, para. 70). Whenever there is an allegation that unionists have died at the hands of members of law and order forces it is not sufficient to claim ignorance of the events or protest that the complainant has not given enough details, as the Government did in an earlier examination of this case (259th Report, paras. 447 and 457), or to remain silent, as is the case in the Government's most recent reply.
6. 352. As regards the detained unionists the Committee welcomes the news supplied by the WCOTP itself that three teachers named in this case have been released. It now appears that the following 15 NNTA leaders or members are detained by the Nepalese authorities (some since 1985): Mr. Arjal, Mr. Paday, Mr. Sapkota, Mr. Bhattari, Mr. Yadar, Mr. C.P. Shingh, Mr. Thapa, Mr. Madhar, Mr. C.C. Dhakal, Mr. S. Pradhan, Mr. Hem Raj Rai, Mr. Kamal Jung Rai, Mr. Nara Pati Chapangai, Mr. Yub Raj Sharma, Mr. Chudamani Sharma. The Committee notes that the Government's previous reply on this allegation was that it had released all teachers and that if any teacher was detained this was not because of his or her professional activities but for offences against the State; the Government admitted at that time that two NNTA members were in detention, not for union activities but for offences against the State. (See 259th Report, paras. 448 and 456.) The Committee notes from the Government's most recent reply that it is unaware of the detention of the persons listed, and it suggests that they are either not teachers or that they have been sent to prison for criminal or other offences. This assumption on the Government's part is not borne out by any supporting evidence.
7. 353. The Committee sincerely regrets that it has never been presented with details from the Government describing the actual facts or events on which these detentions are based, nor with specific references to provisions of the Penal Code or state security legislation which might have thrown light on the real nature of these detentions. The Government's silence in this respect and the fact that some of these detainees have been in prison since 1985, oblige the Committee to recall that it is one of the fundamental rights of the individual that a detainee be brought without delay before the appropriate judge and, in the case of unionists, freedom from arbitrary arrest and detention and the right to a fair and rapid trial are among the civil liberties which should be ensured by the authorities in order to guarantee the normal exercise of trade union rights.
8. 354. Lastly, as regards the alleged dismissals and transfers of teachers for having participated in strikes in 1980, the Committee regrets that the Government merely replies that no teacher has been dismissed or transferred without a valid reason. In the context of the previous examination of this case (see 259th Report, para. 450) the Government was less evasive and stated that dismissals had taken place because of the undesirable non-professional activities of the "negligible" number of teachers concerned; it added at that time that those who, having realised their mistake, wished to rejoin their schools, had been reinstated.
9. 355. Since the complainant had supplied evidence in support of its allegation in the form of lists giving the names of 61 dismissed teachers and 35 transferred teachers (which the Committee considers important to reproduce once again as Annexes I and II to this examination of the case), 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 any other prejudicial measures.
10. 356. The Committee notes that, according to the complainant, the NNTA is still operating under pressure and that its activities are under strict government surveillance. In these circumstances the Committee must again urge the Government to recognise the NNTA, which has been requesting registration since 1980.

Z. ANNEX I

• Teachers allegedly dismissed for trade union activities
• (Information supplied by the WCOTP in its communication of 3 April 1987)
  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. 16 Surya Pandhak
  17. 17 Naraya Subedi
  18. 18 Hom Par Koirela
  19. 19 Badri Naraya Yadar - Saptari
  20. 20 Bishnu Ojha - Ghapa District
  21. 21 Chandre Swore Prasad Sing - President of Dhanusa District
  22. 22 Ram Sagar Pandit - Dhanusa District
  23. 23 Vindaya Swore Mahota - Dhanusa
  24. 24 Dil Bahadur Joshi - Dhanusa
  25. 25 Luxari Prasad - Dhanusa
  26. 26 Ram Dev Pandit - Dhanusa
  27. 27 Ganegh Gha - Dhanusa
  28. 28 Ram Ratan - Dhanusa
  29. 29 Ram Nalti Akhol - Tanahu
  30. 30 Tunga Nalti Chapagi - Ghapa
  31. 31 Jula Bharai - Ghapa
  32. 32 Rabesi Phemaree - Ghapa
  33. 33 Metia Dahal - Ghapa
  34. 34 Buddhi Raj Dhimel
  35. 35 Ranga Par Dahal
  36. 36 Udab Dhimal
  37. 37 Dawodar Timelsika
  38. 38 Khau Bhandari
  39. 39 Thakar Mishra
  40. 40 Puspa Kharal
  41. 41 Bimala Dahal
  42. 42 Somanalli Ganlair
  43. 43 Maresh Shama
  44. 44 Kashar Adhikari
  45. 45 Luxmi Kiran Pandel
  46. 46 Radra Chapagar
  47. 47 Pradip Thapa
  48. 48 Buddhi Ma Adhikai
  49. 49 Puspa Bhottarin
  50. 50 Chirengabi Adhikari
  51. 51 Narayan Silwal
  52. 52 Tara Kharal
  53. 53 Shiba Kharal
  54. 54 Bhuban
  55. 55 Binod Oli
  56. 56 Pundeja Bhattarai
  57. 57 Divar Pokhral
  58. 58 Utan Bhattarari
  59. 59 Nefra Pathak
  60. 60 Krishna Chandari
  61. 61 Krishna Oli
• ANNEX II
• Teachers allegedly transferred for trade union activities
• (Information supplied by the WCOTP in its communication of 3 April 1987)
  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. 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. 12 Nanda Lal Mehata - Bhojpur
  13. 13 Makar Gurung - Teralhein
  14. 14 Nara Prasad Biwalee - Solukhenbu
  15. 15 Shiba Setaula - Saptari
  16. 16 Hari Naraya Bhattalai - Solu
  17. 17 Chandra Madenba - Iuruwa
  18. 18 Krishna Subha - Siraha
  19. 19 Kari Prasad Pokral - Vice President
  20. 20 Janaedan Upratee - Ghapa
  21. 21 Santa Prosahi - Ghapa
  22. 22 Bishnu Ojha - Ghapa
  23. 23 Tei Ray Khatibada - Ghapa
  24. 24 Dev Krishna Prashahi - Ghapa
  25. 25 Ambika Bhardari - Ghapa
  26. 26 Bharat Bimalee - Ghapa
  27. 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