Solicitud directa (CEACR) - Adopción: 2003, Publicación: 92ª reunión CIT (2004)

The Committee has noted the Government’s reply to its earlier comments.

1. Use of conscripts for non-military purposes. In its earlier comments, the Committee referred to Act No. 76 of 1973, as amended by Act No. 98 of 1975, concerning general (civic) service of young persons on completion of their studies. According to section 1 of the Act, young persons, male and female, who have completed their studies and who are surplus to the requirements of the armed forces, may be directed to work, such as development of rural and urban societies, agricultural and consumers’ cooperative associations and work in production units of factories. Referring to paragraphs 49-62 of its General Survey of 1979 on the abolition of forced labour, the Committee 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 with the forced labour Conventions.

The Committee has noted the Government’s statement in the report that performing the general (civic) service does not include any compulsion or obligation, since the law does not provide for any penalty to be imposed on those who have not performed it. The Government reiterated that such service is meant to be voluntary. On the other hand, the Government referred to exceptions from the principle of voluntary participation authorized by the 1970 Recommendation. The Committee has also noted the Government’s repeated statement that the services defined by the above Act are considered social and rural services provided for the direct interest of the local community, and that persons who perform such services are members of the local community.

While noting these explanations, the Committee draws the Government’s attention to paragraph 52 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that "the principle that only volunteers perform such service should be reflected in the legislation; so that there can be no question of indirect pressure, governments wishing to create a service for development purposes consisting of people who have joined the service quite freely could separate this corps from the compulsory national service … Should the development volunteers be excused from compulsory military service, this should take the form of an exemption and not be used as a means of pressure so that a civic service can recruit a number of people for whom there would in any case not be any place in the armed forces".

As regards the Government’s reference to the 1970 Recommendation, the Committee recalls, referring also to paragraphs 56-62 of its 1979 General Survey, that the Conference indicated that exceptionally, legislative provisions may be made for compulsory participation in certain schemes, provided there is full compliance with the forced labour Conventions; in such cases participants should, to the greatest possible extent, be given a free choice among different available forms of activity and different regions within the country and due account should be taken in their assignment of their qualifications and aptitudes.

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(2)(e) of the Convention and therefore should be excluded from its scope, the Committee, with reference to paragraph 37 of its General Survey of 1979, 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; and (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 (as amended by Act No. 98 of 1975) does not appear to satisfy the abovementioned criteria, since the level and magnitude of the services imposed are not limited; such general (civic) service therefore cannot be considered as "minor communal services" within the meaning of the Convention.

The Committee reiterates its hope that the necessary measures will be taken to bring the legislation into conformity with the Convention on that point, for example by amending it so as to provide clearly that the enrolment of young people in the civic service programme is based on their voluntary participation, in order to avoid any ambiguity in interpretation. Pending the adoption of such measures, the Committee requests the Government to supply information on the application of the above legislation in practice, 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.

2. Freedom to leave the service. The Committee has previously requested information on the application in practice of section 141 of Act No. 232, according to which the officer’s service does not terminate until the resignation is accepted. The Committee has noted the Government’s repeated statement in its reports that provisions governing resignation aim at ensuring the good and regular functioning of the public utilities and have nothing to do with forced labour.

In order to ascertain whether the practical effect given to section 141 of Act No. 232 is compatible with the Convention, the Committee again asks the Government 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, such as the number of resignations accepted and refused, as well as the reasons for refusal.

The Committee has also noted the Government’s explanations concerning the application of section 99 of the Law on the Public Service, No. 48 of 1978, which governs resignation of public servants, and requests the Government to supply, with its next report, a copy of this law, as well as the information on the application of section 99 in practice.

3. Article 25. In its earlier comments, the Committee referred to section 375 of the Penal Code, which 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.

While noting the Government’s repeated statement that section 375, though general in scope, is also applicable to cases of the illegal exaction of forced labour, the Committee requests the Government to provide information on its application in practice, in order to ascertain whether practical effect given to this section is compatible with Article 25 of the Convention, which provides that "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". In particular, please supply information on any legal proceedings which have been instituted under section 375 in connection with the illegal exaction of forced or compulsory labour and on any penalties imposed.