Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. Article 2, paragraph 2(c), of the Convention. In previous comments, the Committee referred to the provisions of Decree No. 59-121 of 27 October 1959 (amended by a Decree of 6 March 1963), to establish the general organization of the prison services, under which prison labour may be hired to private undertakings and prison work may be imposed on persons detained pending trial. The Committee noted the Government's statements that, following comments by the Committee of Experts, the hiring of prison labour to private individuals has been abolished by repeated circulars and that persons awaiting trial are no longer forced to perform prison work. The Committee also noted that the revision of Decree No. 59-121 was under study.

In its latest report, the Government indicates that Decree No. 59-121 has still not been amended. The Committee again expresses the hope that this text will be amended in the near future in order to bring the law into conformity with the Convention on this point.

2. In earlier comments, the Committee referred to Act No. 68-018 of 6 December 1968 and to Ordinance No. 78-002 of 16 February 1978 respecting the general principles of national service, which define national service as the compulsory participation of all Malagasies in national defence and in the economic and social development of the country. It also noted the provisions of section 8 of Ordinance No. 78-003 of 6 March 1978 establishing the conditions of service of staff liable to national service obligations on the active and reserve lists, under which members of the armed forces performing their service outside the armed forces are referred to by their functions (teachers, doctors, telegraphists, etc.), followed by the term "national service". Lastly, it noted the various texts that either referred to the powers of the military committee for developments with regard to work in support of the local communities, or laid down the procedure for incorporation in national service of young school-leavers and recruits of a particular age group, or changed the name of the units responsible for development (development forces).

The Committee notes that under the first section of Decree No. 92-353 communicated by the Government, young men and women of Malagasy nationality who are holders of a baccalaureate qualification may perform national service "outside the people's armed forces" on a voluntary basis, under certain conditions, including that of "agreeing to serve in the post designated by the military commander". The Committee notes that the voluntary nature act relates not to performance of the national service but to the sector of assignment (outside the people's armed forces).

The Committee recalled once again that under the provisions of Act No. 68-018 and Ordinance No. 78-002, national service is defined as the compulsory participation, imposed for a period of up to two years, of part of the population, namely young Malagasies from 18 to 35 years old, under the threat of various penalties and sanctions, in the activities of national defence and the economic and social development of the country.

In this regard, the Committee observes that under Article 2, paragraph 2(a), of the Convention, compulsory military service is excluded from the scope of the Convention only if it is confined to work of a purely military character. The Committee recalled in paragraphs 25 and 49 of its General Survey of 1979 on the Abolition of Forced Labour that when adopting the Recommendation (No. 136) on the Special Youth Schemes Recommendation, 1970, the International Labour Conference rejected the proposal to permit participation by young people in national development schemes in the framework of compulsory military service or as an alternative to such service, on the grounds that it was incompatible with the Conventions on forced labour.

The Committee draws the Government's attention to paragraphs 27 to 29, 31-32 and 56 to 61 of the same penal survey in which it set forth the clarification made by the Conference deliberations on the 1970 Recommendation to the subject of the relationship between the Conventions on forced labour and certain compulsory programmes involving participation by young people in activities to promote the economic and social development of the country.

The Committee requests the Government to take the necessary measures to ensure full application of the Convention.