Demande directe (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

The Committee takes note of the Government's report and the information provided in answer to certain points raised in its previous direct request. The Committee notes that the other information requested will be supplied as soon as it is available.

Article 1, paragraph 1, and Article 2, paragraph 1, of the Convention. 1. In its previous comments, the Committee referred to a number of provisions concerning resignation, in particular the following:

-- section 77 of Act No. 83-112 of 12 December 1983 to issue the general conditions of service of employees of the State, of local communities and of public administrative establishments, and the Prime Minister's Circular No. 3 of 31 January 1984 with respect to the procedure for applying the provisions of the above Act;

-- section 45 of Act No. 67-29 of 14 July 1967 concerning the organization of the judiciary;

-- section 27 of Act No. 67-20 of 31 May 1967 issuing the general conditions of service of members of the armed forces.

The Committee noted the difficulties of resigning, in terms of the periods applied and the criteria used for accepting or rejecting resignation requests. The Committee notes the Government's general explanations on this matter. In particular, it notes that in accordance with legislation, resignation requests from civilian officials and military personnel come into effect only once they have been accepted by the head of the relevant administration. The period for acceptance of resignation in certain departments is fixed by their own internal rules. In the absence of any express provision, the period applied is two months, as specified in section 37 of Act No. 96-39 of 3 June 1996 concerning appeals on grounds of exceeding authority. In cases where the resignation request is rejected, the official concerned can bring a case before the Joint Administrative Committee which then transmits a reasoned opinion to the competent authorities. A new period of two months then begins at the end of which, in the absence of any reply from the administration, the resignation request is deemed to have been implicitly rejected. Express or tacit rejection of a request can give rise to an appeal to the administrative court on grounds of exceeding authority. The Government also indicates that in cases where a number of appeals are rejected, the official concerned is free to abandon his post, in which case the administration is obliged to dismiss him. Whatever the circumstances, an official cannot be forced to remain in post.

2. The Government explained that, in the public service, resignation requests are rejected only in the following exceptional cases:

-- if they are made by a large number of officials with the aim of paralysing the service;

-- if they are submitted in order to avoid disciplinary sanctions; or

-- if an official refuses, despite operational requirements, to defer the date of his resignation.

The Committee takes note of this detailed information, and asks the Government to provide a copy of Act No. 96-39 of 3 June 1996.

3. The Committee previously asked the Government for information on the criteria used in accepting resignation requests and the time-limits applied in the case of magistrates. The Committee notes the Government's statement to the effect that resignation requests submitted by magistrates are rare and are always accepted, the only condition being, in order to avoid any adverse effects on the functioning of the courts, that the decision should not take effect during the current year which begins on 16 September each year.

4. As regards military personnel, the Committee previously noted that the criterion of replacement applied for accepting a resignation request did not include any time-limit. The Committee again requests the Government to provide information on the measures taken to ensure that persons are not deprived of the right to leave the service in peace time within a reasonable period, either at regular intervals or on the condition of prior notice. The Committee also requested the Government to provide information, in relation to Decree No. 91-559 of 23 April 1991 concerning the organization of the air force, on the possibility for a trainee officer admitted to the Airforce Academy as a minor (section 32) to be released from his obligations after attaining his majority. The Committee requests the Government to indicate whether Act No. 96-39 of 3 June 1996 is applicable to military personnel or, if not, what remedies are available to such personnel for decisions that exceed lawful authority.

Article 2, paragraph 2. 5. The Committee previously asked the Government to provide information on the practical application of Decree No. 1232 of 1 August 1990 fixing the procedures for the detachment of national service conscripts, in particular on the total strength made available for two types of assignment (for public and private employers) each year by the Minister of National Defence (section 4 of the Decree). The Committee hopes that the information will be communicated in the next report.

Article 2, paragraph 2(a). 6. With regard to development work assigned to recruits in the context of military service, the Committee recalled that compulsory military service is excluded from the scope of the Convention only if it is effected for purely military work (see 1979 General Survey on the abolition of forced labour, paragraph 24). The Committee again requests the Government to indicate measures taken or envisaged to ensure that the Convention is respected in this regard.

Article 2, paragraph 2(d). 7. In its previous comments, the Committee noted that section 1(3) of Act No. 89-51 of 14 March 1989 respecting national service provides that "Citizens who are not subject to national service obligations may be called up individually as civilian conscripts ... to work in the administrative, economic, social and cultural services, if the need arises". In the Committee's view, such a provision does not appear to limit the power of conscription to the cases of extreme need. The Committee again requests the Government to take the necessary measures to amend section 1(3) of Act No. 89-51 so as to limit recourse to conscription strictly to cases of emergency, as provided for by the Convention.