Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

The Committee has noted with interest the information provided by the Government in its first and second reports on the application of the Convention. It has noted the provision of section 20 of the Constitution of the Kingdom of Nepal prohibiting trafficking in human beings, slavery, serfdom or forced labour in any form. The Committee requests the Government to supply, with its next report, copies of the following legislation: the Country Code (or the "Muluki Ain"), 1964, and the Public Offences (Crime and Punishment) Act, 1970, as well as prison rules and any other provisions governing prison labour; the Military Act and other provisions governing conditions of service of career military personnel, as well as additional information on the following points:

Article 1(1) and Article 2(1) of the Convention. 1. Bonded labour. The Committee has noted the information provided by the Government as regards measures taken to eradicate the kamaiya forms of bonded labour in the country. It has noted with interest the adoption of the Kamaiya Labour Prohibition Act, 2002, which prohibits debt bondage (sections 3 and 4) and provides for rehabilitation of freed kamaiyas, by creating the Freed Kamaiya Rehabilitation and Monitoring Committees to that effect. According to the report, the Ministry of Land Reform and Management is the leading agency working for the eradication of kamaiya labour practices in the country. At the district level, rehabilitation activities are coordinated by a committee chaired by the chairperson of respective district development committees. The Government indicated in its first report that, in 2000, the total number of kamaiya families was 18,400, and the total number of kamaiyas, including their children, was 101,522. According to the Government’s latest report received in September 2005, 12,019 ex-kamaiya families received land parcels and 8,705 families received financial assistance for building houses. The Committee has also noted from the information available in the Office that in 2000 the Government launched, with the assistance of ILO/IPEC and the ILO InFocus Programme on Promoting the Declaration, a project entitled "Sustainable elimination of bonded labour" aiming at the effective rehabilitation of kamaiyas, which was extended until August 2005. The Committee would appreciate it if the Government would continue to provide, in its future reports, information on various measures taken with a view to eradicating the vestiges of the kamaiya system under the 2002 Act, supplying copies of relevant reports, studies and inquiries, as well as available statistics. Please also supply information on the impact of the abovementioned project carried out with ILO assistance on the rehabilitation of kamaiyas.

2. Trafficking in human beings. Referring to its comments made under Convention No. 182, likewise ratified by Nepal, the Committee has noted the information provided by the Government concerning measures taken to combat trafficking in persons for the purposes of sexual and labour exploitation. According to the Government, trafficking poses a significant challenge for Nepal as it has a cross border dimension; though authentic data is not available, figures obtained from various sources vary from 5,000 to 12,000 trafficked persons per year, which may illustrate the actual magnitude of the problem. The Committee has noted that trafficking in persons is prohibited under the Trafficking in Persons (Prohibition) Act, 1986, and the Country Code, which define it as a criminal offence and impose penalties on perpetrators. It has also noted the Government’s indications concerning the implementation of the National Plan of Action against Trafficking in Women and Children for Sexual and Labour Exploitation. According to the report, the Ministry of Women, Children and Social Welfare (MOWCSW) is the national focal point responsible for planning, implementation, coordination, monitoring and evaluation of trafficking-related legislation, policies and programmes. The Committee notes from the information available in the Office that the Human Trafficking (Control) Bill was adopted in 2000, but has not yet entered into force. The Committee requests the Government to keep the ILO informed about the perspective of its entry into force and to continue to supply information on measures, legislative or otherwise, taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation, including information on the activities of the National Task Force and District Task Forces on trafficking, to which reference has been made in the report.

3. Compulsory work or service for public purposes. The Committee notes that article 20 of the Constitution referred to above does not prohibit compulsory public service under the law for public purposes. The Government indicates that public works are carried out in most cases under "food for work" programmes in which the contributors are provided with food in lieu of wage. Most of public works or labour contributions tend to aim at building some public or communal facilities, such as rural trails or roads, drinking water or school building or health posts and the like. The decision to carry out such compulsory public works is taken by respective local government bodies, users’ committees or a committee formed by the community itself for the specific purpose. The Government indicates that such compulsory labour is not permitted for the benefit of private individuals, companies and associations, and the decisions to carry it out are sensitive to the needs of the people and do take precautions not to place too heavy a burden on the population. In its second report, the Government also refers in this connection to the minor communal services in the direct interest of the community, within the meaning of Article 2(2)(e) of the Convention, which are decided by the community itself or sometimes by the local self-government institutions, in consultation with the community. The Government further indicates that such community works are not of a regular nature and there are rarely any programmes that require contribution of more than 60 days by a household member in a year; usually such programmes do not extend beyond a week at one time. The Government also states that the decision to make such labour contribution is taken voluntarily by an individual concerned, and there are no legal provisions which impose penalties for not providing such labour. According to the report, as the practice of compulsory labour is rare in the country, no precise regulations on the subject have been issued.

While noting these indications, the Committee recalls that Article 2(2)(e) exempts from the provisions of the Convention "minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community". Referring to paragraph 37 of its General Survey of 1979 on the abolition of forced labour, the Committee draws the Government’s attention to the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory services which, under the terms of the Convention, must be abolished (such as forced labour for general or local public works). These criteria are as follows: (1) the services must be "minor services", i.e. relate primarily to maintenance work; (2) the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group; and (3) the members of the community or their direct representatives must "have the right to be consulted in regard to the need for such services".

The Committee observes, taking into account the constitutional provision referred to above, as well as the provisions of the Local Self-Governance Act, 1999, which aims at the enhancing the participation of all the people including ethnic communities, indigenous people, etc. in mobilizing and allocating means for the development of their own region (preamble to the Act) and gives priority to projects aiming at the utmost participation of the local people at the village and municipality levels (sections 43(3)(c) and 114(3)), that the nature and scale of these works are such as to raise questions of compliance with the above criteria established by the Convention. The Committee therefore requests the Government to provide information on the works performed by the population under the projects carried out under the above provisions of the Local Self-Governance Act, 1999, describing the consultations which took place with the members of the local communities, or their direct representatives, in regard to the need for such works, as well as information on measures taken or envisaged to ensure the observance of the Convention in this regard.

4. Freedom of workers and employees to terminate employment. The Committee notes that it follows from the wording of sections 35(1) and 36(1) of the Civil Service Act, 1993, that civil servants may retire from service voluntarily within the time limits prescribed by the Government and may leave the post after the approval of their resignation. Please indicate the time limits prescribed by the Government for this purpose, as well as the conditions for approval of the resignation, and supply copies of relevant texts. Please also indicate whether an application to resign may be refused, and if so, what are the grounds for refusal.

5. Please provide information on the conditions of termination of employment for workers and employees employed in organizations, enterprises, institutions or firms under the provisions of the Labour Act, 1992.

6. Please indicate any provisions applicable to military officers and other career military servicemen, as regards their right to leave the service in time of peace, at their own request, either at certain reasonable intervals or by means of notice of reasonable length.

Article 25. The Committee has noted the provisions of the Trafficking in Persons (Prohibition) Act, 1986, and the Kamaiya Labour Prohibition Act, 2002, which impose penalties of imprisonment and heavy fines for various offences connected with trafficking in persons and bonded labour. The Committee requests the Government to provide information on the application of these provisions in practice and, more generally, on any legal proceedings which have been instituted as a consequence of the illegal exaction of forced or compulsory labour (e.g. under the Country Code referred to above) and on any penalties imposed, supplying copies of the relevant court decisions.