Supreme Court Divided on Civil Servants' Trade Union Ban

Kathmandu. A split opinion has emerged among the judges in the constitutional bench of the Supreme Court regarding whether to stop or not to stop the implementation of the government's decision to abolish civil servants' trade unions through an ordinance, in a writ petition filed against the abolition of professional organizations and trade unions of civil servants.

The majority opinion of the judges including Chief Justice Dr. Manoj Kumar Sharma, Binod Sharma, and Abdul Aziz Musalman, has refused to continue the previous interim order, in the writ filed by Nepal Civil Service Organization Chairman Bhavani Dahal and others. Judges Dr. Nahakul Subedi and Mahesh Sharma Paudel have expressed a dissenting opinion that the previous interim order should be continued.

Refusal to issue interim order on writ petition against dissolution of professional organizations and trade unions

'An Ordinance to Amend Some Nepal Laws, 2083' has led to a two-sided opinion among the five-member bench on the writ filed against the government's decision to abolish trade unions by repealing Section 53 of the Civil Service Act, 2049. While Chief Justice Dr. Manoj Kumar Sharma and two other judges have refused to continue the interim order, two judges have presented a 'dissenting opinion' that the decision to abolish should not be implemented and an interim order should be issued.

Majority Opinion: To be decided through full hearing

The majority opinion of Chief Justice Dr. Manoj Kumar Sharma, and Justices Binod Sharma and Abdul Aziz Musalman, has ruled that the interim order issued earlier does not need to be continued. They have stated that the constitutional review of other similar ordinances is underway, and since this matter involves serious legal interpretation, it is appropriate to decide it through a full hearing. The court has also sought 'amicus curiae' (friend of the court) from the Nepal Bar Association and the Supreme Court Bar Association to assist in this matter.

Minority Dissenting Opinion: Trade Union Rights are Fundamental Rights

The other two judges of the bench, Dr. Nahakul Subedi and Mahesh Sharma Paudel, have disagreed with the majority decision and presented a dissenting opinion. They have mentioned that Articles 17 and 34 of the constitution guarantee the right of every worker to form trade unions and engage in collective bargaining.

The dissenting opinion states, "The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and ILO Convention 98 guarantee the right to trade unions. In view of the balance of convenience, an interim order should be issued until the final interpretation of the decision that takes away the rights of employees who are exercising such fundamental rights."