1990 US Department of State Annual Human Rights Report on Nepal

Page 1562    




Following the promulgation of a new Constitution on November 9,  Nepal became a constitutional monarchy with sovereignty vested  in the people. From 1960, when an elected party-based  government was dismissed, until April 1990, Nepal had been an  absolute monarchy. Political parties had been legally banned,  though limited party activity was tolerated in practice.  Members of the National Panchayat (legislature), which was  subordinate to the King, were elected on an individual, rather  than a party, basis. The political transformation began in  February with a campaign by the Movement for the Restoration  of Democracy (MRD) , led by a coalition of the moderate Nepali  Congress Party and seven Communist factions linked together in  the United Left Front. The Government initially attempted to  intimidate and punish those taking part in the MRD, responding  to the increasingly widespread public agitation with  repressive measures which included the preventive detention of  hundreds of political activists and brutal treatment of  demonstrators. Several thousand demonstrators and political  activists were held for varying periods of time over the  course of 7 weeks. The Government used press precensorship  and the seizure of published editions to stifle public debate,  and 40 journalists were arrested nationwide. Police fired on  demonstrators, causing an undetermined number of deaths,  though reliable investigations place the number at 45 between  the period from February 18 to April 9, and injuring many  more .   These measures proved ineffective in halting the popular  movement. King Birendra then dismissed the Panchayat  Government and on April 8 invited the formation of an interim  Government made up of the leaders of the MRD. The new  administration abolished the Panchayat system and its  associated organizations and is scheduled to hold multiparty  elections with multiple candidates in the spring of 1991.   Internal security in Nepal is maintained by the national  police and, as necessary, by the Royal Nepal Army. Because  communication links in Nepal are limited, local officials have  a great deal of autonomy and exercise wide discretion in  handling law and order.   Nepal is one of the world's poorest countries. Over 90  percent of its 20 million people are engaged in subsistence  agriculture. Economic development varies widely; the  Kathmandu valley and the Terai (the lowland area adjacent to  India) are developing more rapidly, but population pressures,  physical isolation, and environmental degradation in the hills  between the Terai in the south and the Himalaya mountain range  in the north keep the hills the poorest region of the country.   With the sweeping changes taking place in the political  system, human rights conditions improved dramatically,  affecting all spheres of public life and all major groups of  the society. Following the formation of the interim  Government, the ban on political parties and trade unions was  ended. The Organizations and Associations (Control) Act and  other authoritarian statutes were abolished, and almost all  existing restrictive laws ceased to be enforced. Political  and religious detainees were released. Since April thece have  been no reported incidents of religious harassment. In  general, almost all limitations on the exercise of the  freedoms of religion, speech, press, and association were  ended. Worker rights improved dramatically. The interim     1563


Government's public statements reiterated a firm commitment to  respect human rights. A Constitutional Recommendations  Commission was established in June to draft a new charter  vesting sovereignty in the people rather than in the King and  providing a constitutional monarchy, democratic parliamentary  institutions, and fundamental civil and political rights. The  King will continue to exercise certain powers "with the advice  and consent of the Council of Ministers."   The principal area of human rights abuse remained police  treatment of prisoners. Beatings, sometimes severe, continue  to occur in criminal and political cases, as punishment and to  extract confessions. The interim government has paid little  attention to this situation. There also remain important  human rights concerns such as the broad powers of detention  which the authorities still enjoy under the law, and  restrictions on the right to a fair public trial and on  freedom of religion.   RESPECT FOR HUMAN RIGHTS   Section 1 Respect for the Integrity of the Person, Including  Freedom from:   a. Political and Other Extrajudicial Killing   During the MRD demonstrations, police used excessive force in  several incidents, killing and injuring an unknown number of  persons. Two human rights organizations, a government-  appointed commission, and several other commissions were  formed by political parties to conduct investigations to  determine the number involved.   The government-appointed commission to investigate the loss of  life and property during the spring prodemocracy movement  submitted its report to the Government on December 31. It  found the death toll to have been 45; 2,300 were injured. The  commission recommended legal action against civil and police  officials responsible for the harsh tactics resulting in death  and injury. It will be the Government's responsibility to  decide whether to accept this recommendation and in what  manner to act. Neither of Nepal's primary human rights  organizations — the Human Rights Organization of Nepal (HURON)  and the Forum for the Protection of Human Rights (FOPHUR) —  have disputed these findings.   HURON and other human rights organizations state that more  than 200 were injured by police firing on demonstrators in 10  separate incidents. Of these, over 50 were shot and injured  by police on April 6 in Kathmandu during the massive protest  rally that capped the demonstrations. The government  commission noted above documented two deaths. A minimum of  three more died during the agitation movement as a result of  police beatings. In late April, angry mobs killed at least  six policemen during a brief period of reprisals.   b. Disappearance   There were no reports of government-instigated disappearances.  However, the Government has established a five-person  commission to investigate the whereabouts of those missing or  dead since December 1960, when the late King Mahendra  abolished the elected Parliament and instituted the Panchayat  system. This will include the investigation of 24 people  still unaccounted for who disappeared during the prodemocracy     1564


agitation in 1990 and of eight persons arrested in the  previous 5 years, whom local press and human rights  organizations reported missing. The commission does not  expect to complete its work until 1991.   c. Torture and Other Cruel, Inhuman, or Degrading  Treatment or Punishment   Reliable sources, including eyewitnesses and medical  professionals who examined victims, report that hundreds of  the detainees during the MRD agitation in February-April were  beaten both during the arrest process and after  incarceration. Numerous human rights groups and other  credible sources reported these beatings of demonstrators and  arrestees, as well as widespread inhuman and humiliating  treatment by the police. Less widespread were reports of  torture. There are confirmed reports of people being made to  stand for long periods in ditch water during the cold months  of February and March. Others were beaten on the soles of  their feet. Under crowded jail conditions, detainees often  were denied minimal bedding. In other cases, meals brought by  families were withheld. There were also reports of  psychological torture. One prominent lawyer was transferred  from one facility to another in the middle of the night in a  manner which led him to believe that he was about to be  executed. His family was not informed of the transfer. Human  rights activists report that beatings were used most often to  intimidate youthful demonstrators and to discourage and punish  those believed to be political activists.   There are no accurate statistics on the number of people  beaten and badly mistreated during the MRD agitation.  Reliable human rights observers place the number of those  severely beaten nationwide at between 500 and 2,000. The  HURON estimates that approximately 500 were badly mistreated  in Chitwan in southern Nepal, 1,000 in the Kathmandu area, and  about 500 more elsewhere in the country. Since the change of  government in April, there has been one reported incident  involving beatings for politically motivated offenses. Twelve  political activists arrested in connection with the August 23  stoning of a royal entourage claim they were beaten, some  severely, while in police custody.   The three-person commission appointed by the Government to  investigate the loss of life and property during the  prodemocracy agitation and to look into charges of torture and  other mistreatment completed its work on December 31. It  recommended legal action against civil and police officials  responsible for deaths and injuries during the MRD agitation.   Police beating is still reported as a routine means of  extracting confessions from common criminals, particularly in  rural areas where police are often poorly trained and  supervised. The Government has rarely conducted  investigations into allegations of police brutality or  acknowledged public concern about its prevalence. Nepal's new  Constitution provides for compensation to those subjected to  physical or mental torture.   Three classes of prison facilities exist. Class "C"  cells — which generally hold common criminals, suspected  terrorists, and low-level political workers — are the worst.  They often have dirt floors, sparse or no furnishings, and  poorer food than in class "B" or "A" cells. The use of  handcuffs and fetters is sometimes reported. Prisoners in the     1565


class "C" cells reportedly suffer the most abuse, such as  beatings and being forced to kneel for long periods.  Conditions in "B" and "A" cells are markedly better, with the  latter reserved for "prominent" persons.   Facilities for care and treatment of the mentally ill are  inadequate; such persons are often placed in jails under  conditions that are degrading and sometimes inhuman by  international standards.   d. Arbitrary Arrest, Detention, or Exile   During the February-April MRD agitation, the Government  frequently resorted to arbitrary detention and arrest in order  to intimidate and to discourage antigovernment political  activity. Following the change in political system in April  1990, the new Government established an investigative  commission to examine abuses during the period leading to the  overturn of the Government. By year's end, the commission had  begun its investigation. It is expected to take several  months to complete its work and report to the Government .  FOPHUR has estimated that there were between 20,000 and 30,000  instances of arbitrary arrest and detention nationwide for  periods of over 24 hours during that period. The most  conservative estimate by a human rights observer places the  total at a minimum of 5,000. These numbers include many  instances of repeat arrest or detention. The great majority  of detainees were held for 1 or 2 days and released without  being charged and tried. Others, particularly those suspected  of being activists, were held for periods of up to 2 months.  All of these detainees were released after the change in  governmient in April.   The law used most often to detain and arrest was the Public  Security Act. Under the Act, upon presentation of a notice  stating that he is being detained, a person can be held for up  to 9 months. This initial period can be extended once by the  court for an additional 9 months before charges must be  filed. A written detention order with "grounds and reason"  must be presented at the time of detention and the district  court must be notified within 24 hours. The listed grounds  for detention are open to broad interpretation. A person may  be detained if it is suspected that his actions might affect  1) the security of Nepal; 2) order and tranquility inside  Nepal; 3) amicable relations between Nepal and other friendly  states; or 4) amicable relations among people of different  classes or religions within Nepal. Persons detained under the  Act are not brought to trial. This law still exists but has  not been invoked since April. Like all other laws and  regulations, it will be reviewed within the coming year to  determine its compatibility with the new Constitution and  changed accordingly.   On August 27 the interim Government revoked the preventive  detention powers of district level officials and limited such  powers under the Public Security Act to the Home Minister.   Other existing laws have often been used to limit human  rights. The Public Offenses Act, aimed in part at limiting  public protest or demonstration, permits a district official  to issue an order for up to 6 months' detention, or a sizable  fine. This law still exists but was not used for political  offenses in 1990 .     1566


Persons detained for the expression of views critical of, or  different from, those of the Government could also be charged  under the Treason Act. Its various clauses were used  periodically against political opponents and against persons  who criticized the King or the Government. It was invoked in  September to indict 12 people for the stoning of the royal  entourage at the Pashupatinath temple in Kathmandu. Charges  against the 12 were dropped in November following promulgation  of the Constitution. In addition, the previous government  sometimes charged persons under the Organizations and  Associations (Control) Act of 1962, which provided for the  prosecution of persons who violated the constitutional ban on  political parties. This Act was repealed in July.   Under current law, persons are permitted access to a lawyer of  their choosing only after they are no longer technically in  police custody, which can be up to 25 days in criminal cases.  Those detained under the Public Security Act are to be  presented with documentation stating they are being held under  the Act when they are imprisoned. For common crimes, the law  provides that a suspect must be brought before a court within  24 hours, and must be informed of the general grounds for the  arrest or be released. A 7-day extension may be granted for  the completion of the police investigation. The law generally  provides a person in detention with the right to a judicial  determination of the legality of the detention, but under the  former government this right was often disregarded. The  situation improved dramatically under the new Government, but  instances of abuse still occur. After the August 23 stoning  of a royal entourage, a minimum of 66 persons were detained.  Of the 12 who were eventually charged, all claimed that they  had been detained for at least 1 week before being charged,  and that they had not been allowed to see a lawyer for more  than 2 weeks .   There is a functioning system of bail, but bail levels were  substantially increased in 1987, making bail too expensive for  most Nepalese. Judges often do not set bail, and many accused  persons are held throughout their trial period.   Exile is not practiced.   e. Denial of Fair Public Trial   Nepalese law provides for the right to a public trial except  in some security and customs cases. The Constitution provides  for the right to counsel, protection from double jeopardy, and  protection from retroactive application of the law. These  rights were not always respected during the Panchayat era.  Under the new Government, there have been no reported  instances of abuse in this area.   Military and civilian courts are separate. Military courts  generally deal only with military personnel, but civilians may  also be tried in military courts for crimes involving the  military. Under the new Constitution, Nepal's judicial system  consists of three layers: the Supreme Court, appellate  courts, and district courts. The judges of all three layers  are appointed by the King upon the recommendation of the  Judicial Council. Article 93 of the Constitution provides for  this Council, whose function is to make recommendations and  give advice on matters of appointment, transfer, disciplinary  action against judges, and other matters relating to judicial  administration. The Judicial Council comprises the Chief  Justice of the Supreme Court, the Minister of Justice, the two     1567


most senior judges of the Supreme Court, and one distinguished  jurist to be nominated by the King. As is the case for  virtually all important executive branch actions, the  Constitution does not grant the King specific veto power over  Judicial Council decisions. However, these decisions are  submitted to the King for approval in the form of  recommendations. The King may also authorize the Chief  Justice to appoint district judges on the recommendation of  the Judicial Council.   In the past, cases of terrorism or treason were often dealt  with under either the Destructive Crimes (Special Control and  Penalties) Act (1985) or the Treason Act. Both provided for  closed trials before specially constituted tribunals. The  Destructive Crimes Act was repealed in July. The Treason Act  remains in effect .   The judiciary is legally independent. Under the Panchayat  system, it was generally not assertive in challenging the  King. In the past, law enforcement officials freguently  ignored writs and orders issued by the Supreme Court. The new  Constitution allows the Supreme Court to initiate contempt  proceedings and impose punishment for contempt of itself or  subordinate courts. All lower court decisions, including  acquittals, are subject to appeal. The Supreme Court is the  court of last appeal, but the King may grant pardons and may  suspend, commute, or remit any sentence by any court.   FOPHUR claimed in June that 51 political prisoners imprisoned  under the former Government remained in detention. The claim  is based on FOPHUR ' s assertion that the charges under which  most* were convicted — murder, attempted murder, illegal  possession of weapons — were fabricated. Most of these persons  had been arrested, tried, and convicted on charges of  participating in terrorist acts. The new Government promised  in June to appoint a special commission to investigate. In  early November, HURON also called for the release of these  prisoners on grounds similar to those cited by FOPHUR. As of  the end of the year, the commission had not yet been  appointed. On December 29, King Birendra, on the occasion of  his birthday, granted amnesty to at least nine of the persons  whom FOPHUR and HURON considered to be political prisoners.  Others remain in custody.   f. Arbitrary Interference with Privacy, Family, Home, or  Correspondence   While the Government has generally respected the privacy of  the home and family, principles bolstered by Nepalese law and  tradition, there have been exceptions. Search warrants are  required before search and seizure, except in cases involving  suspected security or narcotics violations. The Police Act of  1955 empowers the police to issue warrants for search and  seizure in criminal cases upon receipt of information about  criminal activities. The Chief District Officer (CDO) in  misdemeanor cases and court judges in felony cases must  approve warrants within 24 hours after they are issued. Homes  were often searched without warrants during the MRD agitation  period. Before the April revolution, the correspondence of  some persons, both Nepalese and foreign, was opened with  little attempt at concealment. No similar incidents have been  reported under the new Government .   Under the Panchayat system, the government frequently  confiscated foreign publications and periodicals containing     1568


articles critical of the government or the monarchy. There  were no reports of such confiscations under the new Government.   Section 2 Respect for Civil Liberties, Including:   a. Freedom of Speech and Press   Under the former constitution, freedom of speech and of the  press were both provided for, with the major exception that  they could not be exercised in support of a political party or  "to the detriment of the common good, the monarch, or members  of the royal family. " In practice, this rule was broadly  interpreted to permit criticism of the government but not of  the monarchy or of the royal family. In addition, provisions  of the Freedom of Speech and Publication Act (1980) placed  limits on material which might undermine the interests or  sovereignty of the nation; contravene principles which  underlie the Constitution; or encourage, abet, or propagate  party politics. This Act was repealed in July. Under the new  Constitution, the freedoms of speech and of the press are  guaranteed, though restrictions exist citing vague grounds,  such as undermining the "sovereignty and integrity" of the  nation and disturbing "harmonious relations" among the  people.   The sole radio and television stations in Nepal are government  controlled. Prior to the MRD unrest, their programming  closely reflected the views of the government. While coverge  of criticism of the government remains inadequate, programming  now reflects a broader range of interests and political  viewpoints .   The two Nepalese dailies with the largest circulations are  government organs. Under the Panchayat system, they carried  limited coverage of opposition activities and muted criticism  of the Government. Since the political changes of April,  their coverage, too, has broadened to reflect a wider range of  viewpoints. In most circumstances, editorial views reflect  government policy, but editors possess and at times exercise  the right to publish critical views and alternate policies.   A large number of Nepal's 400 publications (some of whose  circulation is only in the hundreds of copies) have always  been vigorous and candid in their criticism of the  Government. The Nepal Journalists' Association reports that  between January and April, 40 journalists were arrested for  comments critical of the Government. In the MRD ' s early days,  several papers halted publication to protest government  attempts to precensor the press. Over 10 papers had entire  runs of issues seized by authorities when they ran articles  judged to be overly critical. Several papers were pressed  into severe financial straits after the Government seized  successive editions.   Since the political changes of April, there have been no  reported abridgments of freedom of speech. Freedom of the  press has come into question only once, when authorities in  Janakpur charged two persons with slandering the royal family  in print. Charges were dismissed in December following  protests by the Nepal Journalists' Association to the Prime  Minister. Separately, an editor was detained overnight in  November for publishing "insulting" remarks against the Queen,  but no charges were pressed. There have been no new reports  of the former practice under the Panchayat system of seizing     1569


or banning foreign publications deemed to carry articles  unfavorable to the Government or to the monarchy.   Academic freedom under the Panchayat system was limited.  Professors at both of Nepal's universities are essentially  civil servants and therefore had limited autonomy under the  political restrictions of the past. The tenure system  provided little protection from government intrusion, and  self-censorship was prudently practiced by many academics.  Three lecturers were dismissed at one campus on February 13  for engaging in political activities. After the Panchayat  system ended, the three were reinstated. Since that time,  there have been no reported restrictions on academic freedom.   b. Freedom of Peaceful Assembly and Association   Under the Panchayat system, there were strict limitations on  both assembly and association. Regulations permitted local  authorities to prohibit meetings, speeches, and posters if  they were found not to be "for the convenience or good of the  general public. " These regulations were frequently invoked.  Various laws and regulations also prohibited activities  detrimental to the monarchy, relations among people, or  national security. The Organizations and Associations  (Control) Act (1962) specifically required that all  organizations be registered with the Government and stipulated  that the members of applying organizations receive a police  report stating that they were not "antisystem. " All political  parties were illegal under the Panchayat system, although in  practice political party members were generally permitted to  assemble privately and to express their views in the  independent press. During the MRD agitation, people were  often prevented from, or punished for, gathering for political  purposes. On March 16, police arrested 158 artists and  writers taking part in a peaceful demonstration with tape over  their mouths to protest restrictions on the freedom of  speech. They were released later in the day. On March 20,  over 500 intellectuals and human rights activists were  arrested at a university symposium on the MRD. Several  prominent MRD leaders arrested that day were jailed. Most  were released after 1 or 2 days.   The Organizations and Associations (Control) Act (1962) was  repealed in July 1990. Since the lifting of the ban on  political parties on April 8, there have been no reports of  arrest or detention for exercising the freedoms of assembly or  association. Under the new Constitution, freedom of assembly  is guaranteed. However, a caveat allows restrictions on vague  grounds such as undermining the "sovereignty and integrity" of  Nepal or disturbing "law and order."   c. Freedom of Religion   The majority of Nepalese are Hindus, and Nepal is officially  described as a Hindu kingdom. There is a large minority of  Buddhists, a smaller number of Muslims, and a small but  growing number of Christians. Non-Hindus are allowed to  practice their religion and to maintain places of worship.  Many foreign Christian clergymen reside and work in Nepal in  various fields. Religious education is offered by non-Hindus,  including Muslims and Christians. Religious publications are  imported mainly from India and are widely circulated.   Article 19 of Nepal's new Constitution contains language  identical to Article 14 of the former constitution in     I     1570


providing that "every person, having regard to the traditions,  may profess and practice his own religion as handed down from  ancient times," and that "no person shall be entitled to  convert another person from one religion to another." The new  Constitution also has a new clause which provides that "every  religious denomination shall have the right to maintain its  independent existence and for that purpose to manage and  protect its religious places and trusts as provided under the  law." In addition, the current legal code now provides a  maximum penalty of 1 year in prison for any Hindu who converts  to another religion and 3 to 6 years for any person who seeks  to proselytize a Hindu. The State views the conversion of  Hindus as a more serious crime than the conversion of  non-Hindus because conversion from Hinduism is regarded as  undermining the religious and ideological underpinnings of the  State. There is no penalty if a non-Hindu converts.   In the past, Nepalese authorities, particularly in the  conservative countryside, have taken the prohibition on  conversion very seriously. At the time of the MRD  demonstrations, local Christian leaders reported that at least  23 Nepalese Christians and 1 Muslim were serving prison  sentences of 3 months to 7 years for proselytization. An  additional 24 Christians were in custody awaiting trial for  religious offenses. On June 11, King Birendra granted amnesty  to all those who were imprisoned for religious offenses "in  view of the new political environment obtaining in the  country." All pending cases for religious activities were  dropped. Since the political changes of April, Christians and  other non-Hindu groups have freely engaged in a wide variety  of religious activities, including an Easter Day procession  and the sale of religious publications. Apart from some  incidents of harassment of Christians in Nepal's conservative  rural areas, there have been no new reports of religious  persecution since April.   d. Freedom of Movement Within the Country, Foreign  Travel, Emigration, and Repatriation   Citizens of Nepal may generally move and reside freely,  although the Constitution provides for restrictions which are  "in the interest of the general public" and restrictions on  acts "which disturb harmonious relations." Foreigners  (including Tibetans resident in Nepal) and journalists are  restricted from traveling to several border areas. Nepalese  abroad are free to return home. There are no known cases of  revocation of citizenship for political reasons.   Travel outside of Nepal is generally not restricted for  Nepalese citizens. However, it is limited in the case of  Tibetans resident in Nepal who wish to visit India, with  occasional exceptions. Prior to April, there were reported  instances of the government sometimes delaying or otherwise  making it more difficult for students to travel to Commitiunist  countries, either at their own expense or through host  government scholarships not administered by the Nepalese  Government. Since April, there have been no reports of such  difficulties .   Nepal has no stated refugee policy. The United Nations High  Commissioner for Refugees opened an office in Kathmandu in  October 1989. The Government is aiding its efforts by sharing  lists of newly registered refugees and asylum seekers from  China. In the past it has accepted and assimilated  approximately 14,000 Tibetan refugees. Border restrictions.     1571


tightened in 1988 by a joint Nepalese/Chinese agreement,  continued to be stringent on the Nepal side of the border in  early 1990. There was a reported relaxation after the change  in government, as many of the checkpoints on the road between  the border and Kathmandu were removed. However, 103 Tibetans  who attempted to cross from China into Nepal in the period  August through November without appropriate documentation were  turned back by local authorities at the border in 10 separate  incidents. The largest group had 43 people and the smallest  numbered 2 .   Section 3 Respect for Political Rights: The Right of Citizens  to Change Their Government   Under the Panchayat system, Nepalese citizens did not have the  right to change their government. Political legitimacy flowed  from the King, who dominated the political scene, and who was  established in the previous constitution as the "sole source  of power." There was no mechanism by which they could legally  change the political system. Under the new Constitution,  promulgated on November 9, Nepal is a constitutional monarchy  with sovereignty vested in the people. The people, through  their elected representatives, have the right to change all  but the most basic aspects of the body politic — sovereignty  vested in the people, the multiparty system, fundamental  rights, and the constitutional monarchy — through  constitutional amendment.   Nepal is now governed by a party-based coalition interim  Cabinet appointed by the King. After elections, expected to  be held in the spring of 1991 (the first multiparty elections  with multiple candidates in 30 years), it will be governed  under a bicameral parliamentary system, with the King  appointing as Prime Minister the leader of the Parliament's  majority party. In the case of no clear majority, the King  will appoint the leader of the party most likely to command a  majority in combination with one or more other parties  represented in the House. The King will continue to exercise  certain executive powers "with the advice and consent of the  Council of Ministers." These include exclusive power in  enacting, amending, and repealing laws relating to succession  to the throne. The King's income and property are tax exempt  and inviolable. No question can be raised in any court about  any act performed by the King. The new Constitution also  permits the King to exercise emergency powers in the event of  war, external aggression, armed revolt, or extreme economic  depression. The emergency powers allow him to suspend the  freedoms of expression and assembly, freedoms from censorship  and preventive detention, and other basic freedoms without  judicial review. The rights to form associations and of  habeus corpus may not be suspended. A state of emergency may  be maintained for up to 3 months without legislative approval,  and up to a total of 6 months if legislative approval is  granted.   Elections are to be held every 5 years at various levels based  on universal suffrage and with a secret ballot. The new  Constitution bars registration, and thus participation in  elections, of any political party based on caste or community  or which does not operate openly and democratically.   There are no specific laws that restrict women or minorities  from participating in the Government or political parties, but  lingering conservative traditions serve to limit the influence  of both women and some castes and tribes in the political     1572


process. The new Constitution requires that at least 5  percent of the candidates for the House of Representatives  from each registered political party be women.   Section 4 Governmental Attitude Regarding International and   Nongovernmental Investigation of Alleged Violations  of Human Rights   The interim Government created several commissions to  investigate incidents of torture and loss of life under the  previous Government. These include the three-person  "Commission to Investigate the Loss of Life and Property"  during the agitation period; the five-person "Commission to  Investigate Dead and Missing since December 15, 1960," and the  one-person "Commission to Investigate Brutalities in the  Period from February 16 to April 22." The first commission  submitted a report to the Government in December and the third  reported in September. As of the end of the year, neither  report had been made public.   Nepal has over a dozen nongovernmental human rights  organizations. The two main organizations are the Forum for  the Protection of Human Rights (FOPHUR) and the Human Rights  Organization of Nepal (HURON) . Both are considered to be  accurate and relatively unbiased in their reporting despite  the fact that FOPHUR is associated in the public mind with the  left-leaning parties and HURON with the middle-of-the-road  Nepali Congress Party. In September 1989, the Government  accepted the registration of a human rights group known as the  Human Rights Association of Nepal (HURAN) — the first to be  granted official status. (Registration has not been required  since the repeal in July 1990 of the Organizations and  Association (Control) Act). While considered by some to be  "government-sponsored," HURAN' s board of directors includes  members who were actively opposed to the Panchayat system as  well as those who accepted or supported it. HURAN has been  basically inactive during and since the MRD demonstrations.   The government-appointed commission to investigate dead and  missing since December 1960 includes representatives from  major human rights organizations. In addition to these,  FOPHUR, HURON, and several political parties have set up  independent investigations of torture and killings during the  MRD demonstrations. Without exception, the latter all report  noncooperation from police authorities in their efforts to  gather information.   Over the past few years, the Government appeared to grow more  sensitive to international opinion on human rights issues and  allowed visits by international human rights organizations  such as Asia Watch (AW) and Amnesty International (AI). In  March, during the height of the MRD demonstrations, a  two-member AW investigative team visited Nepal for 10 days. A  three-member AI team visited Nepal for 10 days in April,  immediately after the restoration of party politics. Both  teams met with political activists who had been arbitrarily  detained, relatives of those shot by the police, victims of  police torture, government officials, and others. Neither  investigative team was hindered in its movements within Nepal.   Section 5 Discrimination Based on Race, Sex, Religion,  Language, or Social Status   The Constitution forbids discrimination based on sex. Women  in Nepal have the right to vote and to hold property in their     I     1573


own names. However, women do not enjoy these rights fully in  many rural areas, where the weight of tradition, lack of  education, and ignorance of the law remain severe inpediments  to the exercise of these rights. The female literacy rate in  1988 was 18 percent, compared to the average literacy rate of  33 percent. Women are engaged chiefly in agriculture and, to  a lesser extent, small trading.   Over the years, women have benefited from various changes in  marriage and inheritance laws. The Divorce Law grants  Nepalese women the right to divorce, but on more narrow  grounds that those available to men. For example, the  marriage "will terminate automatically" if a woman commits  adultery, but the reverse is not true. A man may also divorce  his wife if she fails to bear children. There is no provision  for divorce if the man is infertile. Child custody laws also  discriminate against women. A woman must give up her child to  her former husband if she remarries or when the child reaches  the age of 16, whichever comes first, unless the husband  chooses to give up his rights to the child. Alimony is  awarded if the divorcee has no means of support for a period  of 5 years or until she remarries, whichever comes first. In  December the Government acceded to the 1979 United Nations  Convention on the elimination of all forms of discrimination  against women. By signing this Convention, and by  strengthening provisions in the Constitution regarding women  (such as equal pay for equal work), the Government committed  itself to improving further the position of women in Nepalese  society.   Wife beating is said to be common, though little is known  about its extent. Abuses occurring within the family are  seldom mentioned owing to the value attached to personal  privacy in Nepal's traditional society. In general, there is  virtually no public attention to or discussion of violence  against women, nor do any government policies focus on it as  an issue.   Trafficking in women is a deeply ingrained social problem in  several of Nepal's poorest areas. Estimates of the total  number of Nepalese girls and women working as prostitutes in  the red-light districts of India's major cities vary between  10,000 and 100,000. Coercion is often involved, although it  is impossible to gauge its extent. Newspapers occasionally  report the arrest of men attempting to abduct young women or  trick them into going to India. Economic incentives also  entice many other women. In certain parts of Nepal, mothers  raise their daughters with the expectation that they will  spend several years in the brothels of India and then return  with their earnings and settle in their native villages.   While the Government prosecutes instances of coercive  trafficking brought to its attention, there are few active  measures to stop it. The reported spread of AIDS within  India's red-light districts has discouraged the Government  from aggressively promoting the return and rehabilitation of  Nepalese prostitutes. Government efforts thus far focus more  on preventing voluntary prostitution than on rehabilitation.  The Women's Development Division of the Ministry of Labour and  Social Welfare sponsors income-generating skill training  programs in several districts known for producing India-bound  prostitutes. One specific aim is to provide an alternative  means of income.     1574


Under the Panchayat system, the Nepal Women's Organization  (one of six "class" organizations set up by the former  Government) was charged with protecting women from  exploitation and making women aware of the legal protections  available to them. The Organization was dissolved after the  restoration of party politics in Nepal. In Nepal's new open  political atmosphere, a growing number of women's advocacy  groups are taking up women's issues. Nearly all political  parties have their own women's group to press for women's  causes. In its time, the Panchayat Government had adopted  policies designed to encourage women's participation in family  planning, adult education programs, and small-scale  income-generating enterprises.   Still largely a traditional society, Nepal remains wedded to  the caste system. Public discrimination on the basis of  caste, particularly the public shunning of "untouchables," has  been outlawed and is officially discouraged. However, it is  still common, particularly in the rural areas of western  Nepal. Differentiation in economic, social, and educational  levels tends to be a function of historical patterns,  geographical location, and class origin. The spread of  education and higher levels of prosperity, especially in the  Kathmandu Valley, are slowly reducing caste distinctions and  increasing opportunities for lower socioeconomic groups.  Politics and senior jobs in the government administration and  army in Nepal continue to be dominated by higher and better  educated urban-oriented castes (Brahmin, Chhetris, and certain  elements of the Newar community) , but the representation of  other castes is slowly increasing.   Section 6 Worker Rights   a. The Right of Association   Prior to the change of government in April, the sole legal  trade union body was the Nepal Labor Organization (NLO) , one  of six "class organizations" set up by the regime both to  maintain control and represent group interests. The NLO was  abolished by the new Government. Article 12 of the new  Constitution provides for the freedom to form and to join  unions and associations.   Organized labor itself is in a state of transition. Freed  from previous restrictions and with the backing of the newly  functioning political parties, 14 trade and professional  unions linked to these parties (including Communist factions)  were formed after April, along with dozens of ad hoc employee  organizations in individual enterprises. Most have drawn up  extensive demands, ranging from large salary increases to  special benefits of all kinds. Following the change of  government, strike action became widespread, especially in  Kathmandu and among private sector enterprises.   The Government in June formed a 27-member National Labor  Advisory Committee, which includes trade union as well as  management and government representatives. The Government  fixes minimum wages on the recommendation of the National  Labor Advisory Committee. Another government commission was  established to review the legal rights, working conditions,  and collective bargaining status of civil service employees.  The employees of state corporations formed many unions after  April .   A code defining and regulating worker rights is included in a  pending major overhaul of labor law. At present, the primary     y     1575


reference for labor rights is the 1977 version of the  Factories and Factory Workers Act. A new Trade Union Act  drafted with the assistance of the International Labor  Organization (ILO) is expected in 1991, along with a separate  Disputes Settlement Act and legislation governing civil  service.   The Organization and Control Act of 1963, which restricted  formation of unions and political parties, was repealed in  July. The new Trade Union Act is expected to require  registration of unions but without prior government approval.  The Constitution permits restriction of unions only through  legal measures in cases of subversion, sedition, or similar  conditions .   According to the Department of Labor, labor organizations have  so far embraced about 3 percent of Nepal's 9.2 million  economically active population, or approximately 30 percent of  nonagricultural workers. Unions exist in the industrial  sector, the civil service, public enterprises, among teachers,  garment, and carpet workers, and in service sectors such as  tourism. About 10 percent of the working population is  employed in these formal sector activities, with the remaining  90 percent engaged in agriculture and the informal sector.   Most of the strikes which occurred after April were resolved  through direct labor -management negotiation, generally with  substantial benefits granted. Others, including strikes at  state enterprises, required Labor Department mediation, and in  a few cases the Cabinet's involvement. The Government has  attempted with some success to encourage sector-wide  negotiations, for example with hotel and restaurant workers.  The draft Trade Union Act is expected to recognize the right  to strike, as does the original 1959 Factory Workers Act.   There are no restrictions on forming confederations or joining  international labor bodies. The Nepali Trade Unions Congress  (NTUC), which is linked to the Nepali Congress Party, has  applied to join the International Confederation of Free Trade  Unions. The General Federation of Nepalese Trade Unions,  which is linked to the Communist Party of Nepal  (Marxist-Leninist), is affiliated with the   Communist-controlled World Federation of Trade Unions. It is  expected that the new Trade Union Act will stipulate  procedures for affiliations.   In June the ILO Committee on Freedom of Association recognized  the positive developments in Nepal's labor situation and  adjourned without examining a case filed against Nepal. It  requested the Government to provide details regarding alleged  repression of the Nepal National Teachers Association (NNTA)  under the previous government before it could make a final  determination. As of the end of the year, the Government had  not yet responded. Negotiations were under way between the  Government and the NNTA by which the NNTA would withdraw its  case before the ILO if the Government reinstated NNTA member  teachers dismissed by the previous government.   b. The Right to Organize and Bargain Collectively   At present, there is no legal provision for collective  bargaining, although the contemplated Dispute Settlement Act  may address both discrimination and collective bargaining. In  practice, collective bargaining has been the primary mechanism  for setting wages since April. Of the dozens of shop-floor  level associations that have sprung up, many have been     1576


successful in winning wage increases of up to 80 to 100  percent, mostly as a result of walk-outs, sit-ins, or  threats. Often, settlements reached one week have been  followed by immediate demands for new wage increases. There  are no legal provisions prohibiting discrimination by  employers against union members or organizers, but antiunion  discrimination by employers in the current atmosphere is  unlikely.   There are no special economic zones in Nepal, and labor law  and practice is the same throughout the country.   c. Prohibition of Forced or Compulsory Labor   Article 20 of the 1990 Constitution prohibits traffic in human  beings, slavery, serfdom, or forced labor in any form. This  is consistent with the previous constitution. The Department  of Labor enforces laws against forced labor in the organized  sector of the economy. However, although its extent is not  known, bonded labor is an aspect of traditional society in  some parts of the west and the south. (See also the  discussion of trafficking in women in Section 5.)   d. Minimum Age for Employment of Children   The legally defined minimum age for employment of minors is 16  in industry and 14 in agriculture. The Constitution  stipulates that children shall not be employed in factories,  mines, or similar hazardous work. There is no compulsory  education legislation or specific child protection act in  Nepal. The Department of Labor enforces the minimum age law  only in the larger enterprises of the formal sector; however,  child workers are found in all sectors of the rural and urban  economies. Child Workers in Nepal (CWIN), the only national  social action group dedicated to child rights and welfare,  estimates that 4.8 million Nepali children work at least part  time. As with the population at large, the overwhelming  majority of these children are engaged in family subsistence  agriculture, but children can be found, usually doing menial  jobs, in almost every occupation. Child employment is  particularly common in the smaller enterprises in  construction, carpet weaving, restaurants, garment  manufacturing, and domestic work.   Child labor in Nepal is encouraged by such factors as  poverty, rural-urban migration, demand for cheap and easily  controlled labor, and traditional culture where child  employment is considered a normal feature of apprenticeship or  family survival. The interim Government has taken some  measures to protect the rights of the child. These include  acceding to the United Nations' Convention on the Rights of  the Child in August, and to the World Declaration on the  Survival, Protection, and Development of Children in December  1990. By signing these two documents, the Government of Nepal  formally committed itself to the goals set out in them.   e. Acceptable Conditions of Work   In July the Government agreed to an NLAC recommendation to  increase the minimum wage in four categories by an average of  41 percent. Monthly minimum wages are: unskilled — $26;  semiskilled — $28, skilled — $32; highly skilled — $38 (at  September 1990 exchange rates). These rates are generally  adhered to in the urban organized sector, but these wages are     1577


  sufficient only for the most minimal standard of living. Wage  rates in the unorganized service sector and in agriculture are  generally lower.   The Factory Workers Act stipulates a 48 hour workweek, 1 day  off per week plus 30 holidays or leave days, 15 days of sick  leave, overtime limited to 15 hours per week, health and  safety standards, and other benefits such as the provision of  a provident fund and maternity benefits. Implementation of  the Act has improved as a result of the successful pressing of  demands by new active labor unions in the past 6 months. The  Labor Department is charged with enforcing compliance and,  although performance is uneven, it has intervened effectively  in response to labor union demands in some of the larger  enterprises. Enforcement is less likely to take place in  smaller enterprises of 50 workers or fewer and is nonexistent  in the informal sector. There are no accurate data on  industrial accident rates.     1578 [Source: US Dept of State]

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