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NEPAL
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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