Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

The Committee has taken note of the discussions in the Conference Committee in 1989 and of the Government's report for the period ending 30 June 1989. It has also given further consideration to the observation received in March 1989 from the Confederation of Turkish Trade Unions (TURK-IS) concerning the measures taken in application of Act No. 1402 respecting martial law and proposed amendments to that Act (a copy of which had been sent to the Government to enable it to present comments thereon).

The Government's report was received on 15 February 1990. The Committee will be able to examine it in detail only when translations of the documentation appended to it (including a ruling of the Council of State of December 1989 and legislation and court decisions concerning disciplinary action against public servants) have become available. However, in view of the importance attached by the Conference Committee to the adoption of measures to eliminate the previously noted divergencies between law and practice and the requirements of Convention No. 111, the Committee deems it appropriate to draw attention already at its present session to the following points:

1. Position of public servants dismissed or transferred during the period of martial law. In its previous comments the Committee had sought information concerning the reinstatement in employment of public servants who had been dismissed or transferred to other regions pursuant to decisions taken by Martial Law Commanders under Act No. 1402, during the period between 1980 and 1987, when martial law was in force throughout the country or in a number of provinces. According to information given by the Government in its report:

- on 7 December 1989 the Council of State ruled that the provision in section 2 of Act No. 1402 that "dismissed public servants shall never be employed again in the public service" applied only during the period of martial law, and that after termination of martial law those affected would be able to return to their duties unless there were other legal impediments;

- by virtue of section 40 of Act No. 2575 concerning the Council of State, the above-mentioned ruling is binding on the administration and administrative tribunals;

- on 11 December 1989 the Higher Education Board issued a circular to University Deans informing them that, by virtue of the ruling of the Council of State, dismissed faculty members were entitled to reinstatement, and requesting them to give priority to such persons in filling vacancies and to apply to the Board for creation of additional posts if no vacancies existed.

The Committee has noted this information with interest. It requests the Government to provide particulars of the measures taken with a view to reinstatement of public servants who had been dismissed, not only in universities, but also in other parts of the public service, and also to permit persons who had been transferred to other regions under martial law powers to return to their previous positions.

The Committee recalls that, according to a document dated February 1989 communicated by the Confederation of Turkish Trade Unions (TURK-IS) and stated to be based on official figures, of a total of 9,400 public servants who had been dismissed or transferred to other regions, 4,125 were still regarded as "harmful". The Committee accordingly hopes that the Government will provide precise statistical data on the number of public servants who have been reinstated or enabled to return from regions to which they were transferred.

The Committee would also appreciate information on the steps taken to recognise the rights of those concerned arising out of their previous service and on any measures enabling them to obtain compensation for loss of earnings and other benefits during the period of their exclusion from employment or transfer.

The Committee also requests the Government to indicate what other kinds of legal impediments constitute a bar to reinstatement, and the number of persons to whom reinstatement has been refused on the respective grounds.

2. Proposed amendments to Act No. 1402 respecting martial law. The Committee notes that the bill to amend Act No. 1402 is still pending in the Turkish Grand National Assembly. According to the indications given by the Government, the bill would permit periodic review of the situation of persons affected by measures taken during a period when martial law was in force and, in accordance with article 125 of the Constitution, it would be possible to apply for judicial review of decisions taken by the relevant agencies.

The Committee notes, however, that the bill would still permit measures affecting employment to be taken against persons considered "harmful or undesirable in respect of State security", and that the possibility of judicial review under article 125 of the Constitution would be limited to determining the conformity with the law of the acts and proceedings of the administration. The Committee recalls the comments concerning the scope of Article 4 of Convention No. 111 made in paragraphs 136 and 137 of its 1988 General Survey on Equality in Employment and Occupation, in which it pointed out that measures intended to safeguard the security of the State must be sufficiently well defined and delimited in order not to lead to discrimination (inter alia) on the basis of political opinion; that the application of measures intended to protect the security of the State must be examined in the light of the bearing which the activities taken into consideration might have on the performance of the job, tasks or occupation of the person concerned; and that the provision of a right of appeal would not be sufficient to meet the requirements of Article 4 of the Convention if the foregoing substantive conditions were not met.

The Committee trusts that the above-mentioned considerations will be fully taken into account in the final text of the proposed new legislative provisions relating to martial law. It requests the Government to indicate the progress made towards the adoption of these provisions.

3. Measures taken on the basis of security investigations. According to the information communicated in 1989 by the Confederation of Turkish Trade Unions (TURK-IS), measures affecting employment in the public service had also been taken and, even after termination of martial law, continued to be taken pursuant to the Regulations on security investigations to collect political and other subjective information, which was taken into account in decisions on new appointments, transfers, promotions, etc. The Committee notes from the Government's report that the Regulations on security investigations regarding key public servants to be recruited, transferred or assigned had been held to be invalid, on grounds of formal defect, in a recent decision by the Council of State, the text of which will be sent to the ILO, when published. The Committee hopes that the Government will provide, in addition to this decision, information on any new regulations which may have been adopted or may be contemplated to provide for such security investigations, and the measures taken to ensure the observance of the Convention in this respect.