Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the information supplied by the Government in reply to its previous comments. In particular, it notes with interest the adoption of the new Constitution of the Kingdom of Nepal, No. 2047 of 1990.

1. In previous comments the Committee has noted that the national legislation - in particular article 10 of the former Constitution and section 4 of the Civil Liberties Act (No. 2012) - does not prohibit discrimination in employment on the basis of political opinion. It has also noted that sections 9.12, 9.13 and 10.6(2) and (9) of the Civil Service Regulations appear to permit discrimination in employment on this basis by prohibiting public employees, on pain of dismissal or removal, any participation in political activities and any action or views contrary to the Panchayat system. The Committee has pointed out that it is not compatible with the Convention for conditions of a political nature to be laid down for all kinds of public employment in general, though it may be admissible to bear this in mind for the filling of certain posts which are directly concerned with implementing government policy.

In this connection, the Committee notes with interest the Government's statement that the newly adopted Constitution provides for the abolition of the partyless (Panchayat) system, freedom of association and, in article 11, for no citizen to be discriminated against on grounds of religion, race, sex, caste, tribe or ideology.

While taking due note of the prohibition of discrimination on the ground of ideology, the Committee wishes to point out that, under the Convention, the protection against discrimination based on political opinion goes beyond the scope of opinion based on ideology and encompasses any opinion for or against a particular political system or policy, independently of any ideological views. The Committee accordingly hopes that the Government will consider making specific provision to prohibit discrimination in employment and occupation also on the basis of political opinion, as required by Article 1(a) of the Convention.

In the light of the new consitutional provisions, the Committee also requests the Government to indicate whether the above-mentioned provisions of the Civil Service Regulations are still in effect as regards the prohibition of participation in political activities, and if so, to indicate the measures taken or proposed to ensure compliance with the provisions of the Convention in this respect. The Committee wishes to draw the Government's attention to the comments made in paragraph 61 of its 1988 General Survey on Equality of Employment and Occupation regarding restrictions that may be imposed on public officials, in particular, regarding the obligation to exercise discretion.

2. The Government also refers to the provisions of the new Constitution, in connection with the Committee's previous comments concerning the absence of legal recourse or right of appeal for candidates who failed to obtain permanent posts in the government service, on the basis of the police report which must be drawn up on their activities.

The Committee notes that Part 14 of the new Constitution provides for the setting up of a Public Service Commission. It requests the Government to indicate whether under the new Constitution the above practice is still conducted and, if so, to indicate the measures taken or proposed to ensure that rejection is not based on political opinion or on any other ground which would constitute discrimination under the Convention. The Committee would also point out that, under Article 4 of the Convention, candidates rejected for security reasons should have the right to appeal against the decision.

3. The Committee further notes with interest that article 12.2(a) and (e) of the Constitution provides respectively that all citizens shall have freedom of thought and expression and the freedom to carry out any profession, occupation, trade or industry. The Committee notes at the same time that provisos (1) and (5), respectively, to article 12, allow the imposition by law: (i) in relation to freedom of thought and expression, of reasonable restriction, inter alia, on any act which undermines the sovereignty and integrity of the Kingdom of Nepal or any act of sedition or defamation and (ii) the imposition of any condition or qualification for carrying out any industry, business, profession or occupation. The Committee would be glad if the Government would indicate any restriction, and any condition that may be imposed in these respects, in pursuance of provisos (1) and (5) to article 12 of the Constitution.

4. The Committee notes that the prohibition of discrimination laid down in article 11(2) does not include the ground of national extraction. Referring in this connection to the provisions of Part 2 of the Constitution on citizenship, which cover also the acquisition of citizenship through naturalisation and accession of territory, the Committee requests the Government to consider making appropriate provision to include national extraction among the grounds on which discrimination in employment and occupation will also be prohibited, in accordance with Article 1(a) of the Convention.

5. The Committee further notes that the provision of article 11(2) applies only to citizens of Nepal. It wishes to point out that although "nationality" is not a prohibited basis of discrimination under the terms of Article 1(a) of the Convention, foreign citizens, if lawfully authorised to engage in employment and occupation in Nepal, should equally be protected against any discrimination on all the other grounds stipulated in Article 1(a) of the Convention.

6. The Committee also notes that, under article 19 of the Constitution, "every person shall have the freedom to profess and practice his own religion as coming down to him from the perennial past having due regard to the traditional practices, provided that no person shall be entitled to convert another person from one religion to another". The Committee requests the Government to indicate in its next report the manner in which the above provisions are applied in practice in order to ensure that no distinction, exclusion, or preference is made in employment and occupation on the basis of religion, in compliance with Article 1(a) of the Convention.

7. The Committee notes with interest the establishment of a new National Tripartite Labour Advisory Board under the chairmanship of the Minister for Labour and Social Welfare and the formation of a subcommittee thereunder to recommend new labour laws. In this connection the Committee would draw the Government's attention to the need for further provisions to be made in order to ensure full compliance with the Convention, as indicated in its preceding comments. It hopes that the necessary action will be taken under the new labour legislation to be adopted.

8. Regarding the information previously requested on the employment of women in government departments and semi-governmental agencies, including statistics showing the evolution of their participation at different levels, the Committee notes the statistical information supplied on the employment of women at different hospitals and health offices operated by the Government. The Government again indicates that the Central Personnel Record Centre has not yet tabulated the total number of permanent female staff in the government sector. The Committee hopes that the Government will be able to supply with its next report all the information requested on the employment of women in the sector concerned.