Observación (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (2002)

The Committee notes that no report has been received from the Government. It must therefore repeat its previous observation on the following matters:

1. Article 1(a), (c) and (d) of the Convention. In its earlier comments, the Committee referred to a number of provisions of the Penal Code, the Press Act and the Societies Act, under which penalties of imprisonment involving, according to section 87 of the Penal Code, compulsory prison labour, may be imposed as a means of political coercion or as a punishment for expressing political views or views which are ideologically opposed to the established political order, or for stopping or hampering activities in a wide range of government offices, public utilities, organizations, associations and industrial installations, without distinction between essential and non-essential services.

The Committee also noted the Government’s repeated statements that neither section 87 of the Penal Code nor Law No. 104 of 1981 on the State Organization for Social Reform governing prison work provided for forced labour on the part of prisoners. Work performed by prisoners was not compulsory; it was executed in conformity with section 18 of Law No. 104 which provided that each inmate had the right to work in conformity with his capacities and qualifications, in order to get vocational training; work was governed by the provisions of the Labour Code and, in practice, it was not even possible to satisfy all the demands for work.

In its latest report, the Government repeats these indications, adding that under section 20(2) of Law No. 104 of 1981, as amended by Law No. 8 of 1986, work by prisoners outside the penal institutions is voluntary.

The Committee takes due note of these indications. It recalls that under both sections 87 and 88 of the Penal Code, concerning imprisonment and hard detention (to be imposed on persons sentenced to more than one year’s imprisonment), persons convicted are to be assigned to work, as specified by law, in a penal institution. Under section 19 of Law No. 104 of 1981 on the State Organization for Social Reform, work, while not being a punishment in itself, "shall constitute an integral part of the enforcement of the punishment", and "the technical committees shall regard the work as a mandatory necessity for maintaining intact the integrity of the inmates, the wards and the community". While the Government indicated in an earlier report that the necessary measures were being taken to modify section 19 of Law No. 104 of 1981 with a view to providing that work of persons sentenced to imprisonment was optional and depended on their will and free choice, no such measures appear to have been taken so far. The Committee once more expresses the hope that the necessary measures will be taken to ensure the observance of the Convention with regard to the abovementioned provisions of the legislation, be it by removing the restrictions on the freedom of expression, the right to strike and the other rights and freedoms touched upon in Article 1(a), (c) and (d) of the Convention, or by removing the penalties of imprisonment (involving an obligation to work) through which these restrictions are enforced, or by amending sections 87 and 88 of the Penal Code and Law No. 104 of 1981 so as to make prison labour optional for those concerned.

Pending the adoption of the appropriate legislative amendments, the relevant provisions of the Penal Code, the Press Act and the Societies Act are again set out in a request addressed directly to the Government.

2. Article 1(c). In previous comments, the Committee referred to section 364 of the Penal Code, which provides for imprisonment in cases where officials or persons with public functions leave their work even after resignation or do not carry out their work when this might endanger the life, health or safety of the population or cause riots or unrest or paralyse a public service. It noted that under resolution No. 150 of 1987 of the Revolutionary Command Council (RCC) all workers in state service and the socialist sector are public officials, and that under RCC resolution No. 521 of 7 May 1983 the resignation of Iraqi officials in the state services or the socialist sector or mixed sector may not be accepted in the first ten years of service and is subject to the reimbursement of all training costs before or after the appointment. Officials resigning without the agreement of their department also lose their rights arising from previous service, under resolution No. 700 of 13 May 1980. Only women may have their resignation accepted unconditionally under resolution No. 703 of 5 September 1987. Also, under resolution No. 200 of 12 February 1984 any official or worker in state services or the socialist sector who after written notice does not resume work or exceeds leave by more than three days without a reasonable excuse is subject to imprisonment of from six months to ten years, and under resolution No. 552 of 28 June 1986 the same applies to all officials or graduates centrally placed who do not accept their posting.

The Committee refers to the explanations provided in paragraph 110 of its 1979 General Survey on the abolition of forced labour, where it indicated that forced or compulsory labour as a means of labour discipline may consist, inter alia, of measures to ensure the due performance by a worker of his service under compulsion of law. While the Convention does not protect persons responsible for breaches of labour discipline that impair the operation of essential services or in circumstances where life and health are in danger, in such cases there must exist an effective danger, not mere inconvenience. Furthermore, the workers concerned must remain free to terminate their employment on reasonable notice. The Committee further recalls that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to change a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with both the present Convention and the Forced Labour Convention, 1930 (No. 29), likewise ratified by Iraq.

The Committee once more refers to the report of the Governing Body committee set up to consider the representation made by the Federation of Egyptian Trade Unions under article 24 of the ILO Constitution alleging non-observance by Iraq of several ILO Conventions (document GB.250/15/25, Geneva, May-June 1991). The Committee notes that the Governing Body committee concluded in its recommendations, inter alia, that:

(i)  the Government should take the necessary measures to repeal, in so far as they are still in force, the provisions of the Penal Code and the Revolutionary Command Council resolutions which prevent workers from terminating their employment by giving notice of reasonable length and which provide for penalties involving compulsory labour as a means of labour discipline;

(ii)  pending the repeal of these provisions, the Government should take the necessary measures to enable all workers wishing to terminate their employment relationship to leave their jobs by giving notice of reasonable length and without being liable to sanctions or deprivation of rights accrued from previous service;

(iii)  the Government should communicate, in its reports to be transmitted under article 22 of the Constitution on the application of the present Convention, information on the measures taken or envisaged to give effect to these recommendations in order to enable the supervisory bodies of the ILO to continue the examination of the questions dealt with in this report.

The Committee recalls that, in its 1993 report, the Government indicated that measures had been taken to amend, inter alia, section 364 of the Penal Code. In the absence of further information on the matter, the Committee again requests the Government to supply detailed information on any measures taken so far to give effect to the recommendations of the Governing Body committee, including copies of any amending legislation adopted.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.