Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

1. The Committee notes the communication sent by the National Federation of Associations and Organizations of Public Servants (FENASEP), dated 18 May 2001, in which it alleges that the current Government has dismissed over 19,000 public servants, equivalent to 15 per cent of state employees, without giving justified reasons for their dismissal and without following the procedures set out in the law. FENASAEP states that 80 per cent of those dismissed are registered members of the political party called the Democratic Revolutionary Party (PRD) and alleges that the dismissals constitute discrimination on grounds of political opinion, in violation of Article 1 of the Convention.

2. In its response dated 24 October 2001, the Government states that during the period between June 1999 and September 1999, which was a transition period before the new Government took office, a total of 5,634 public servants were accredited, compared with a total of 4,512 during the period between June 1994 up to the general election held on 2 May 1999. According to the Government, during this three-month period there was an "arbitrary and indiscriminate recruitment of public servants" who were members of the coalition government of the time (PRD). The current government indicates that it took "corrective action with a view to ensuring that those who had been accredited complied with the minimum requirements set out in the relevant legal provisions" and it revised the system of entry into administrative careers in order to remedy the problems. The Government contends that the fact that a high percentage of the public servants who were dismissed were members of the PRD is due precisely to the fact that these public servants were accredited without complying with the legal requirements. The Government adds that Act No. 9 of 20 June 1994, regulating and establishing the administrative career, mandates the appointing authority in each institution to replace those public servants who are not included in the administrative career, including those of free appointment and removal, and those who are in office. The Government also affirms that Executive Decree No. 222 of 12 September 1997, issuing regulations under the Act respecting administrative careers, sets out the right of public servants to submit their cases for reconsideration by the appointing authority or the Board of Appeal and Conciliation of Administrative Careers, and where appropriate they may appeal the decision to the Supreme Court.

3. The Committee recalls that exclusion arising out of the inherent requirements of a particular job must be interpreted strictly so as not to give rise to undue limitations on the protection afforded by the Convention, inter alia, against discrimination on grounds of political opinion, which includes identification based on membership of political parties. While political affiliation or opinion may be taken into account for certain high-level posts directly related to government policy, the same does not apply to many positions in the public service in general. Thus, the reasons for terminating employment must be sufficiently clear to ensure that dismissal is not based on grounds of political opinion, in violation of the Convention.

4. In the light of the above, the Committee requests the Government to provide detailed information on the criteria used to determine the basis for the dismissals and the manner in which it has been ensured that political opinion has not been used as a basis for taking decisions. Furthermore, the Committee requests the Government to provide information on the public servants made redundant, including their grade, the type and date of contract, period of service and political affiliation, as well as the number of appeals which have been made to the courts, and those that have been taken to the Board and the Supreme Court, with copies of the relevant rulings and the number of public servants who have been reinstated.

The Committee is also raising other matters in a request addressed directly to the Government.