Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee has noted the information provided by the Government in reply to its previous direct request. It has noted, in particular, the adoption of the Interim Constitution of Nepal 2007, which contains a provision prohibiting trafficking in human beings, slavery, serfdom or forced labour in any form (article 29). The Committee has also noted the comments on the application of the Convention submitted by the General Federation of Nepalese Trade Unions (GEFONT) on 11 September 2007, which were transmitted to the Government in October 2007 for any comments as might be considered appropriate.

Communication of texts. The Committee again 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. Please also provide a copy of the Human Trafficking (Control) Act 2007.

Articles 1(1) and 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, in particular, the information on the impact assessment of the USDOL/ILO/IPEC project entitled “Sustainable elimination of bonded labour” aiming at the effective rehabilitation of kamaiyas. The impact assessment has shown, inter alia, that 87.1 per cent of the total household of ex-kamaiyas have received agricultural land, that the number of children enrolled in school has increased and that there has been considerable increase in the literacy rate in the ex-kamaiyas households, as well as changes in attitude and awareness. Having noted the Government’s commitment to eliminate the problem of the kamaiya labour, the Committee hopes that the Government would continue to provide, in its future reports, information on various measures taken with a view to eradicate the vestiges of kamaiya system under the Kamaiya Labour Prohibition Act 2002, supplying copies of relevant reports, studies and inquiries, as well as available statistics.

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. It has noted with interest the adoption of the Human Trafficking (Control) Act 2007, which prohibits trafficking in persons, defines it as a criminal offence, imposes heavy penalties of imprisonment on perpetrators and provides for victim protection and rehabilitation measures. The Committee requests the Government to provide a copy of the 2007 Act, as well as information on its application in practice, indicating various measures taken to prevent, suppress and punish trafficking in persons for the purpose of exploitation.

3. Compulsory work or service for public purposes. The Committee notes that article 29 of the Interim Constitution of Nepal 2007, similarly to article 20 of the 1990 Constitution, allows the enactment of a law on the exaction of compulsory public service from citizens. The Government indicates that public works or services are rarely based on forced or compulsory labour and that most 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 post and the like. The Government also confirms its previous indication 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 one week. The Government also reiterates that such labour contributions are voluntary rather than imposed by compulsion. However, as the Government indicated previously, the decision to carry out such compulsory public works is taken by respective local government bodies, users’ committee or a committee formed by the community itself for the specific purpose. It also referred 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.

As regards the exemption of “minor communal services” from the scope of the Convention, the Committee drew 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; (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” (see also the explanations contained in paragraphs 65–66 of the Committee’s General Survey of 2007 on the eradication of forced labour).

The Committee points out once again, taking into account the provision of article 29 of the Interim Constitution 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 hopes that, in the light of the above considerations, measures will be taken, both in law and in practice, in order to ensure the observance of the Convention in this regard, e.g. by amending the above provisions so as to ensure that the nature and scale of these works are reduced to a strict minimum allowed by Article 2(2)(e) of the Convention. Pending the adoption of such measures, the Committee requests the Government to continue to provide information on the compulsory public works or services performed by the population, 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.

4. Freedom of civil service employees to terminate employment. The Committee previously noted 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. The Committee again requests the Government to 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. Freedom of career military personnel to leave their service. The Government indicates in its report that the Military Act 2006, contains no provisions concerning this issue. The Committee requests the Government to indicate, in its next report, whether it is guaranteed in the national law that military officers and other career military servicemen have the 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. Penal sanctions. The Committee has noted the provisions of the Kamaiya Labour Prohibition Act 2002, and the Human Trafficking (Control) Act 2007, which impose penalties of imprisonment and heavy fines for various offences connected with trafficking in persons and bonded labour. Having noted the Government’s statement in the report that no complaint has been filed under the Kamaiya Labour Prohibition Act 2002, the Committee hopes that the Government will not fail to provide information on the application of its penal provisions, as soon as the relevant court decisions are available. The Committee also requests the Government to supply information on the application in practice of the penal provisions of the Human Trafficking (Control) Act 2007, 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.