Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

1.  The Committee notes the Government’s report, as well as the attached comments of the Confederation of Turkish Employers’ Associations (TISK) and the Confederation of Turkish Trade Unions (TÜRK-IŞ).

2.  The TISK states that there has been a marked increase in the employment of women in the private sector, citing the Labour World Statistics issued by the Ministry of Labour and Social Security, copies of which were not received by the Office. The Committee notes, however, that the statistical information supplied by the Government in its report points to a decrease in the employment of women overall (from 34 per cent in 1990 to 27.9 per cent in 1998), with the rate of employment for urban women being even lower (10 per cent). Based upon the information contained in the report relative to the situation of women in education and employment, the Committee notes the extremely low level of education among women. The data provided indicate that, as of October 1998, almost four times as many women as men were illiterate. The Committee points out that, if parts of the population are not given the opportunity to attain the same level of education as others, these discrepancies will continue to extend to employment opportunities.

3.  Discrimination on the basis of sex and religion.  In a communication dated 9 May 1999, the Workers’ House of the Islamic Republic of Iran, a workers’ organization, alleged that the Government of Turkey had failed to observe the Convention, referring to discrimination on the basis of sex, religion and political opinion. The Workers’ House stated that a female legislator from the Pro-Islamic Virtue Party was treated in a discriminatory manner on these bases when she arrived for her swearing-in ceremony at the Grand National Assembly wearing a headscarf in the Islamic manner and that, as a result of protests from other legislators, she was forced to leave the hall without being sworn in. The Workers’ House also refers to a ban on the wearing of headscarves at universities, academic centres and by public servants as constituting discrimination in employment in violation of the Convention.

4.  In response to the Government’s request for clarification regarding the applicability of the Convention to Members of Parliament or legislators, the Committee refers the Government to paragraph 79 of its 1996 Special Survey on equality in employment and occupation, which discusses the meaning of the terms "occupation", "persons in employment" and "work" and makes it clear that the scope of the Convention is very broad, extending to all sectors of activity and covering employment in both public and private sectors (see also 1988 General Survey on equality in employment and occupation, paragraph 86, citing ILO: Discrimination in the Field of Employment and Occupation, Report IV(1), International Labour Conference (42nd Session, 1958), appendix). The Committee also notes that, pursuant to Article 3(d) of the Convention, ratifying States undertake, by methods appropriate to national conditions and practice, to pursue a national policy of equality of opportunity and treatment in respect of employment under the direct control of a national authority.

5.  The Government acknowledges in its report that the female legislator’s entrance into the general assembly hall in a headscarf gave rise to protests from certain Members of Parliament. The Government makes reference to the dress code for female and male legislators which requires female legislators to wear a jacket and skirt within the Hall, but states that the practice of wearing a headscarf does not prevent women from being elected to the position of legislator. In this context, the Government’s report refers to another female legislator who was sworn in without incident on the same day, who apparently was not wearing a headscarf, although she is known to wear one in her daily life. Noting that the dress code does not appear to preclude expressly the wearing of headscarves by female legislators, the Committee requests the Government to supply a copy of section 56 of the Standing Orders of the Turkish Grand National Assembly.

6.  The Committee notes that the Turkish Constitution provides that Turkey is a democratic, secular and social State, establishes the principle of secularism in regard to State affairs and politics, and provides for freedom from religious discrimination. In the context of the Workers’ House communication, the Committee recalls that religious considerations as the basis of distinctions in social and occupational life may vary in nature (see paragraph 41 of its 1996 Special Survey on equality in employment and occupation). The possibility of discrimination also often arises from the absence of religious belief or from belief in different ethical principles, from a lack of religious freedom or from intolerance, in particular where one religion has been established as the religion of the State, where the State is officially anti-religious, or where the dominant political doctrine is hostile to all religions (ibid.). The Convention’s aim is to provide protection against discrimination on the basis of religion affecting employment and occupation, which often results from a lack of religious freedom or from intolerance and which may arise in a number of situations. In some cases, discrimination may arise from an attitude of intolerance towards persons who profess a particular religion or particular religious beliefs. The free exercise of a religious practice may in certain circumstances be hindered by the constraints of an employment or occupation, notably in cases where the exercise of a religion requires a particular kind of clothing (see 1988 General Survey, paragraph 47). In this regard, the Committee points out that the protection afforded by the Convention, with regard to equality of opportunity and treatment without discrimination on the basis of religion would be void of substance, if it did not include at least the most important aspects of religious practice (see 1988 General Survey, paragraph 51).

7.  The Government’s report indicates, as do the Workers’ House comments, that public servants and students are required to uncover their heads while on duty or inside schools. This requirement would affect those persons - predominately women - who cover their heads in the exercise of a religious practice. The Committee points out that apparently neutral situations, regulations or practices which in fact result in unequal treatment of persons with certain characteristics could result in indirect discrimination on the grounds covered in Article 1(1)(a) of the Convention. Indirect discrimination can be said to occur when the same condition, treatment or criterion is applied to all persons, but its application results in a disproportionately harsh impact on some persons on the basis of characteristics such as sex or religion, and is not closely related to the inherent requirements of the job (see 1996 Special Survey on equality in employment and occupation, paragraphs 25 and 26). The requirement that public servants and students uncover their heads would in fact disproportionately affect Muslim women, possibly impairing or precluding altogether their right to equal access to education and employment under the Convention due to their religious practices.

8.  The potential discriminatory effect of the ban on headscarves takes on particular significance when viewed in the light of information supplied by the Government indicating that women’s level of education is very low in Turkey (one out of every two women jobseekers has only a primary school education), as is their level of participation in the work force. While the Committee has on other occasions expressed its concern over the impact of dress code requirements imposing the wearing of headscarves or other particular kinds of dress on all female public servants, it is equally concerned by the existence of requirements that prohibit anyone from dressing in accordance with their religious requirements, particularly when the wearing of headscarves, for example, would not in any way impair their ability to perform the tasks required in a specific job or occupation. In this regard, the Committee requests the Government to supply a copy of the regulations referred to in the report and to indicate any measures taken or contemplated to ensure that the regulations in question do not affect the right of Muslim women to pursue public sector employment or educational opportunities. The Committee also requests the Government to provide copies of the judgments issued by the Supreme Court of Appeals and Council of State (Supreme Administrative Court) to which reference is made in the Government’s report. The Committee also points to the need to promote respect, tolerance, understanding and acceptance among the various religious and ethnic groups as part of any policy to promote equal opportunity and treatment in employment. It requests the Government to indicate any measures it has taken to raise public awareness in this regard.

9.  Position of public servants dismissed or transferred during the period of martial law, 1980-87.  The Committee refers to its previous comments concerning the reinstatement of victims of discrimination based on political grounds under Martial Law Act No. 1402. Further to its previous observation requesting information on the reasons why 753 of the transferred civil servants and 202 of the transferred public employees who had applied for reinstatement had not been returned to their posts, the Committee notes the Government’s statement that those who were not reinstated either did not apply or no longer met the requirements of the job due to prison sentences handed down under the Penal Code. The Committee asks the Government to supply detailed information on the percentage of the 955 transferred employees that were not reinstated due to the imposition of prison sentences, indicating for each such employee the nature of the criminal charges brought and the penalties imposed. In respect of the reinstatement of military and civilian members of the armed forces and civilian members of the security forces under Act No. 4045, the Committee notes the Government’s statement that 148 personnel were reinstated to equivalent positions in other public institutions.

10.  Amendments to Martial Law Act No. 1402.  The Government’s report contains no reply to the Committee’s previous comments concerning the need to repeal or amend section 3(d) of Martial Law Act No. 1402, which vests martial law commanders with broad powers to dismiss workers and public servants or transfer them to other areas, a discretionary power which in the Committee’s view could lead to discrimination in employment on the basis of political opinion in contravention of the Convention. TÜRK-IŞ states that section 3(d) of Act No. 1402 continues to vest martial law commanders with discretionary authority to dismiss workers and public servants and send them to another region without any court ruling and without providing for the right to appeal established in Article 4 of the Convention. The Committee repeats its request that the Government provide statistical information on the number of appeals arising out of the application of section 3(d) of Act No. 1402 and their outcomes.

11.  Measures under the 1990 Security Investigation Regulations.  The Committee recalls its previous comments on the manner in which the Government is ensuring that the 1990 Regulations, which are very broad in definition and scope, are not being applied so as to prohibit employment in violation of the Convention. The Committee notes from the report that the provisions of the 1990 Regulations that do not conflict with the provisions of Act No. 4045 are still applicable and that the General Directorate of Security continues to carry out security investigations in accordance with both Act No. 4045 and those provisions of the 1990 Regulations that are in conformity with the Act. Recalling that, according to provisional section 7 of Act No. 4045, implementing regulations were to be adopted within six months of the entry into force of the Act on 2 November 1994, the Committee asks the Government to continue to provide information on the status of the enactment of the implementing regulations. The Committee further requests the Government to indicate the provisions of the 1990 Regulations that are applied by the General Directorate of Security in the course of security investigations as well as detailed information on the manner in which the provisions are applied in practice.

12.  The 1991 Anti-Terrorism Act.  Referring to its earlier comments concerning section 1 of the Anti-Terrorism Act, which defines acts of terrorism and imposes a sentence of imprisonment for such acts, the Committee notes the Government’s statement that section 1 limits the definition of terrorism to violent acts. The Committee notes that section 1 defines terrorism to include all acts instigated by one or more persons belonging to an organization aiming to change the characteristics and political, legal, social, secular or economic order of the country. In this connection, the United Nations Commission on Human Rights noted that several journalists have been convicted under the Anti-Terrorism Act for expressing their opinions and for reporting on sensitive matters, such as the so‑called Kurdish question (E/CN.4/1999/62/Add.2, 28 December 1998, paragraph 8). The Committee once again draws the Government’s attention to paragraph 45 of its 1996 Special Survey on equality in employment and occupation, which states that the protection afforded by the Convention against discrimination in employment and occupation extends to activities expressing or demonstrating opposition to the established political principles, or simply a different opinion. The protection of political opinion does not apply where violent methods are used to express those opinions. The Committee therefore once again asks the Government to consider restricting the scope of section 1 of the Act to ensure that persons are not deprived of their employment or occupation pursuant to the Act on the grounds of their political opinion.

13.  In respect of section 8 of the Anti-Terrorism Act (which contains a very broad definition of propaganda, carrying a sentence of imprisonment), the Committee notes that a new Bill to amend this provision was submitted to the Turkish Grand National Assembly, but that it has not yet been enacted. The Committee would be grateful if the Government would continue to keep it informed of the status of the Bill, and supply a copy once it is adopted. It would also appreciate receiving copies of any judicial or administrative decisions interpreting and applying sections 1 or 8 of the Act.

14.  Non-discrimination on other grounds.  The Committee notes the Government’s statement that all Turkish citizens are equal before the law regardless of language, race, colour, sex, political opinion, philosophical beliefs, religion, ethnic origin or other affiliations. The Committee recalls its previous direct request for information on the grounds of discrimination on the basis of race, national extraction and colour under Article 1(1)(a) of the Convention, and notes that the Government’s report does not respond to the Committee’s request for information on measures taken to promote equality of opportunity and treatment for minority groups such as the Kurds. It therefore repeats its request for concrete information on any measures taken to secure application of the principles of the Convention with regard to Turkish minority groups, including the Kurdish minority.

15.  The Committee is addressing a request directly to the Government on other points.