Demande directe (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Repetition

Articles 1(1) and 2(1) the Convention. Bonded labour. The Committee previously noted the provisions of the Kamaiya Labour (Prohibition) Act, 2002, and noted the Government’s statement that no complaints had been filed in a court of law concerning the use of Kamaiya bonded labour.

The Committee notes the detailed information in the Government’s report concerning the implementation, in collaboration with the ILO, of the action programme entitled “Towards employment creation of freed Kamaiyas and their employable children and enforcement of the Kamaiya Labour Prohibition and Labour Act” in 2009 and 2010. The Government indicates that in the fiscal year 2009–10, training was provided to 12,939 freed Kamaiyas in 24 different types of trades, and that a fund was established in five districts to support the entrepreneurship of the trainees. The Committee also notes the Government’s statement that in 2009 it formulated a national plan of action (NPA) against bonded labour that addresses all types of bonded labour. The Government indicates that the NPA is in the process of endorsement from the Cabinet. The Committee expresses the firm hope that the NPA against bonded labour will be adopted and implemented in the near future, and requests the Government to provide information on the impact of its implementation. The Committee also requests the Government to provide information on the application in practice of the penal provisions of the Kamaiya Labour (Protection) Act, 2002, as soon as the relevant court decisions are available.

Freedom of civil service employees to terminate employment. The Committee previously noted the Government’s indication 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 requested information on whether an application for resignation may be refused and, if so, on what grounds.

The Committee notes the Government’s statement that if any civil servant retires from their position, outside of the voluntary early retirement scheme, their resignation is verified by signing in front of the chief of the organization where they are working. The Committee notes the Government’s statement that a resignation may be refused if the resignation was not made according to the will of the person resigning or it was made by force.

Freedom of career military personnel to leave their service. The Committee previously noted the Government’s indication that the Military Act, 2006, contains no provisions concerning the right of military officers and other career military personnel to leave the service. The Committee notes that section 143(1) of the Military Act, 2006, states that the Government may frame the necessary rules to meet the objectives of the Act. Section 143(2)(a) states that such rules may cover issues related to retirement, dismissal and other conditions of service. Recalling that career military servicemen who have voluntarily entered into an engagement should have the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, the Committee requests the Government to provide information on whether any rules have been adopted in this regard, and if so, to provide a copy of the relevant rules.

Article 2(2)(c). Work imposed as a consequence of a conviction in a court of law. The Committee previously requested the Government to provide the relevant legislation governing prisons and prison labour.

In this regard, the Committee notes that section 10(1) of the Prisons Act, 2019 (1963), as amended, states that unless the prevailing Nepal Law otherwise requires, no detainee or prisoner shall be engaged in any work against his/her will. Section 10(2) states that if the Government considers it necessary for the health, economic progress or improvement of the detainees and prisoners, arrangements may be made to engage any detainee or prisoner in work. Section 10A of the Prisons Act states that the Adjudicating Authority may send an offender sentenced to imprisonment for a term not exceeding three years for community service. Recalling that Article 2(2)(c) of the Convention provides that forced or compulsory labour does not include any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations, the Committee requests the Government to provide information on whether, in law or in practice, prisoners have been engaged in work in prisons or in community service. If so, the Committee requests the Government to provide information on whether, in the context of work in prisons or community service, prisoners perform work for private entities.

Article 2(2)(e). Compulsory work or service for public purposes. The Committee previously noted the provisions of the Local Self-Governance Act, 1999, which provide that priority be given to aiming at the utmost participation of the local people at the village and municipal levels (sections 43(3)(c) and 114(3)). The Committee also noted that article 29 of the Interim Constitution of Nepal 2007 allows the enactment of a law on the exaction of compulsory public service from citizens. The Government indicated in its report that this type of work is mainly associated with providing minimum basic services to the public such as public utilities like water supply, electricity, hospitals and pharmacies, etc., and that working in the public utility services did not mean forced labour. The Committee further noted the Government’s indication that 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 that specific purpose. The Committee indicated that the nature and scale of these public works raised questions of compliance with the Convention, and requested that measures be taken in both law and practice to ensure that such works fall within the minimum allowed by the Convention for “minor communal services”.

The Committee notes the Government’s statement that there are no public services/works that are identified as forced or compulsory labour as defined by Article 2 of the Convention. The Committee also notes that the Constituent Assembly, charged with drafting a new Constitution, was dissolved in May 2012, and that no new Constitution was adopted. The Committee recalls that Article 2(2)(e) of the Convention permits only the compulsory performance of 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, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services. In this regard, the Committee requests the Government to take the necessary measures to ensure that any new legislation adopted, including through the ongoing constitutional review, is in conformity with the Convention particularly by reducing the nature and scale of such compulsory public works to the strict minimum allowed by Article 2(2)(e) of the Convention for “minor communal services”. Pending the adoption of such measures, the Committee once again requests the Government 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.