Demande directe (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

1. In previous comments, the Committee had noted that a police report was drawn up on the activities of candidates for permanent posts in the government service and that a candidate who failed to obtain a post on the basis of such a report had no legal recourse or right of appeal. As this situation presented opportunities for discrimination, particularly on the basis of political opinion, the Committee had requested the Government to review the practice. In its latest report, the Government states that, according to the 1990 Constitution and the legislation made under it, the Public Service Commission seeks police records concerning the criminal offence of moral turpitude; and that no consideration is taken of a candidate's political opinion or ideology in connection with the police report. The Government also states that no candidate is rejected for security reasons. The Committee notes that, under section 10 of the Civil Service Act, 1993, those who have been found guilty by a court of any criminal offence involving moral turpitude cannot be appointed in any post of the civil service; and that under section 61(2) of that Act, the same offence constitutes grounds for removal or dismissal from service, and involves disqualification from government service in the future. The Committee notes with interest that section 69 of the Act provides for the formation of an Administrative Court to hear appeals against orders of departmental punishment, the procedures of which are governed by the Administrative Court Rules, 1995, which the Committee has examined. The Committee requests the Government to provide information on the way in which the term "moral turpitude" is defined under the criminal legislation, and to provide examples of any cases of the non-appointment of a candidate or dismissal of a civil servant on the basis of conviction for such an offence.

2. In previous comments, the Committee had noted that article 11(2) of the Constitution - which proscribes discrimination on a number of grounds - applies only to citizens of Nepal. It had pointed out, in this regard, that although "nationality" was not a prohibited ground of discrimination under the terms of the Convention, foreign citizens who were authorized to engage in employment and occupation in the country should be protected also against discrimination on all of the grounds stipulated in Article 1, paragraph 1(a), of the Convention. In its report, the Government states that the right to equality and the proscriptions against discrimination on the grounds of religion, race, sex, caste or ideology, as outlined in article 11, paragraphs (1), (2) and (3), apply only to Nepalese citizens but that article 11, paragraphs (4) and (5) - which provide respectively, that no person shall, on the basis of caste, be discriminated against as untouchable; and that no discrimination shall be made in regard to remuneration between men and women for the same work - are guaranteed for all individuals living in Nepal. The Government has also stated, in response to the Committee's comment on the omission of the ground of "national extraction" from national proscriptions against discrimination, that after becoming a citizen of Nepal, all of the rights relating to equality are available. The Committee considers that there appears to be a misunderstanding concerning the right to non-discrimination on the ground of "national extraction" and the extent to which even non-citizens working legally in the country should be protected against discrimination on the grounds of the Convention. The Committee points out that the concept of "national extraction" is not aimed at the distinctions that may be made between the citizens of Nepal and those of another country but covers distinctions made on the basis of a person's place of birth, ancestry or foreign origin as, for example, in the case of distinctions made between Nepalese citizens on the basis of the foreign birth or origin of some of those citizens. As Article 1, paragraph 1(a), of the Convention includes specifically the ground of "national extraction" among those on which discrimination in employment is to be prohibited, the Committee expresses the hope that the Government will also ensure that this ground is included in national legislation.

3. As concerns non-citizens working in Nepal, the Committee requests the Government to indicate whether, in practice, there are any avenues of redress (apart from those contemplated under article 11, paragraphs (4) and (5), of the Constitution) that might be taken by such persons against acts of discrimination in employment and occupation in the private sector on any of the grounds specified in the Convention.

4. In regard to its previous comments concerning the practical application of article 19 of the Constitution on the right to religious freedom, the Committee has noted the Government's explanation concerning the role played by the Public Service Commission in ensuring that recruitment for the public service is made on the basis of merit, without regard to the religion of applicants. The Committee requests the Government to indicate the measures taken to ensure freedom from discrimination on the basis of religion also in respect of employment in the private sector.

5. The Committee requests the Government to provide, with its next report, information on the measures being taken in practice to ensure and promote equal opportunity and treatment in employment in the public and private sectors including, in particular, the action being taken to overcome gender discrimination. The Committee would be grateful if the Government would supply copies of any national report on the situation of Nepalese women that might have been prepared for the Fourth World Conference on Women, held in Beijing in September 1995.