Solicitud directa (CEACR) - Adopción: 1997, Publicación: 86ª reunión CIT (1998)

1. Use of conscripts for non-military purposes. In its earlier comments the Committee referred to Act No. 76 of 1973 (amended by Act No. 98 of 1975) concerning general (civic) service of young persons on completion of their studies. It asked the Government to provide information on the practical application of the above legislation, including information on the number of persons who applied for exemption from such service before the Ministry of Social Affairs and those whose applications had been refused.

The Government refers in its report to Ministerial Order No. 469/77 issued under Act No. 76 of 1973 which exempts from the obligation to perform general (civic) service certain categories of persons, such as those who have completed military service or obtained a temporary exemption from it, who reached the age of 30, who obtained certain university degrees, disabled persons and some other categories, as well as cases of force majeure approved by the Minister of Social Affairs. The Government indicates that the exemption of these categories has resulted in a marked decrease of the number of conscripts. The Committee observes, however, that the above-mentioned list of exempted categories appears to be exhaustive, and that consequently all other persons who do not belong to these categories seem to fall outside the scope of Ministerial Order No. 469/77 and are not covered by such an exemption, which means that the general (civic) service is not likely to be voluntary for them.

The Committee notes the Government's indications in the report concerning the establishment, under the above-mentioned Ministerial Order, of technical committees specialized in the areas of employment of conscripts, as well as local public service committees which supervise the application of the conscripts' working plans. It also notes that the local councils and the regional federation of associations of each governorate are represented on the committees. However, as regards the Government's repeated statement that the general (civic) service can be considered as "minor communal services" within the meaning of Article 2, paragraph 2(e), of the Convention and therefore should be excluded from its scope, the Committee, with reference to paragraph 37 of its 1979 General Survey on the abolition of forced labour, wishes to draw the Government's attention once again to the criteria which determine the limits of this exception and serve to distinguish it from other forms of compulsory labour. These criteria are as follows: (1) the services must be "minor services", i.e. relate primarily to maintenance work; (2) the services must be "communal services" performed "in the direct interest of the community", and not relate to the execution of works intended to benefit a wider group; (3) the members of the community or their direct representatives must "have the right to be consulted in regard to the need for such services". The Committee points out once again that the general (civic) service provided for under section 1 of Act No. 76 of 1973 (amended by Act No. 98 of 1975) does not appear to satisfy the above-mentioned criteria and therefore cannot be considered as "minor communal services" within the meaning of the Convention.

The Committee therefore refers once again to paragraphs 49 to 62 of its 1979 General Survey on the abolition of forced labour where it recalled that the Conference, while adopting the Special Youth Schemes Recommendation, 1970 (No. 136), had rejected the practice of making young people participate in development activities as part of their compulsory military service, or instead of it, as being incompatible both with the present Convention and Convention No. 105 which provides for the abolition of any form of compulsory labour as a means of mobilizing and using labour for purposes of economic development. The Committee hopes that the Government will take the necessary measures in order to ensure the observance of the Conventions on the abolition of forced or compulsory labour, both in legislation and in practice. It asks the Government to provide, in its next report, information on any progress made in this regard.

2. Article 25 of the Convention. In its earlier comments the Committee requested the Government to take the necessary measures in order to bring the national legislation into full conformity with this Article of the Convention, according to which "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation of any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced". The Government refers once again to article 13 of the Constitution, to section 375 of the Penal Code and to section 170 of the Labour Code. The Committee is therefore obliged to draw the Government's attention once again to the following points: (1) article 13 of the Constitution, though it prohibits the illegal exaction of forced or compulsory labour, does not provide for specific penalties; (2) section 375 of the Penal Code punishes the use of violence, brutality, terror, menaces or illegal practices where they interfere with the right of any person to work or with the right to employ or refrain from employing any person whatsoever, but does not provide for penal sanctions for the illegal exaction of forced or compulsory labour and therefore does not give effect to this Article of the Convention; (3) section 170 of the Labour Code, which provides for the imposition of a fine if an employer requires a worker to perform work other than that agreed upon in the contract of employment, covers only workers who fall within the scope of the Labour Code and therefore does not punish any other cases of the illegal exaction of forced or compulsory labour which may occur outside the employment relationship covered by the Code. The Committee consequently points out that the above-mentioned provisions do not meet the requirements of this Article of the Convention and reiterates its hope that, in the course of the revision of the national legislation to which the Government referred in its earlier reports, the necessary measures will be taken to bring it into full conformity with the Convention (for example, by modifying the scope of section 375 of the Penal Code and reinforcing the sanctions prescribed, or in other suitable manner). The Committee asks the Government to provide, in its next report, information on any progress achieved in this regard.

3. In its earlier comments the Committee asked the Government, in connection with section 138(5) (as amended by Act No. 71 of 1973) and section 141 of Act No. 232 of 1959, to provide information on how these provisions are applied in practice to applications by officers of the armed forces to resign. The Committee has noted the Government's repeated indication in its reports that the acceptance or refusal of resignations is a matter of organization and administration of manpower and is not related to forced labour. The Government adds in its latest report that the acceptance or refusal of a resignation is subject to the personnel registrations of the armed forces.

The Committee wishes to draw the Government's attention once again to paragraphs 67 to 73 of its 1979 General Survey on the abolition of forced labour, and recalls that persons who have voluntarily entered the service -- particularly career servicemen -- may not be deprived of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. In order to ascertain whether the practical effect given to section 141 of Act No. 232 is compatible with the Convention, the Committee asks the Government once again to provide information on the criteria applied in accepting or refusing a request for resignation, along with other relevant information on the acceptance in practice of such requests.

The Committee reiterates its hope that the Government will not fail to provide the information requested, together with copies of Act No. 232 of 1959, as amended by Act No. 71 of 1973, and all the laws and regulations concerning employment in the public service which contain provisions on resignation.