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Employees can fall into the abyss of restriction because of nothing more than mistaken identity

¨RESTRICTED¨

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Habib Shehada-Damascus:

Asharq Alawsaat – After his release from a Syrian detention center in mid-2016, secondary school teacher Saleh, 56, expected to return to the job he’d held for 22 years before being arrested. He was not allowed nor could he look for another similar job.

Saleh obtained a judicial ruling ending the restriction – or temporary suspension – put on him when he was arrested. The ruling supported his right to return to his job.  But his employers wanted a security clearance first —  and under terms adopted by the Syrian government in 2013 getting one is complicated.

On top of that, since he was officially still employed by the Ministry of Education, though not allowed back into a classroom, Saleh could not go looking for another real job.

He felt suspended between heaven and earth, and that is the status of 4,500 workers like him who have been restricted since the start of the Syrian crisis in 2011 through 2017. According to Judge Yahya Al-Ali of the State Council, workers have filed lawsuits with the administrative court in Damascus demanding restitution and the release of their suspended wages, although that court cannot really help.

Disciplinary court laws of 1990 regulate the process of restriction, but they don’t define the specific procedures or a time frame in which those temporarily suspended from work can return. The laws also do not demand compliance from employers. None of that helped Saleh, nor did a circular distributed by the special office of the Prime Minister to businesses in 2013 that bypassed the laws – and seemingly Article 51 of the Syrian Constitution which guarantees that citizens will be regarded as innocent until proven guilty by a court of law after a fair trial.

The Circular said instead that “employees arrested and subsequently released without prosecution for a duration not exceeding 15 days, and where no action was taken against them; do not require security clearance to be reinstated.” It added that people arrested and referred to the relevant judicial authority with administrative action taken against them (dismissal from service – termination – restriction) “require security clearance before they are reinstated to their position irrespective of the causes of their arrest whether it was a matter of security or related to current events.”

Saleh was arrested in April 2015 for “concealment of a felony and funding terrorism” on grounds that his brother, an accused member of the Syrian resistance, visited him at his home in the town of Babbila in Rif Dimashq.

Saleh tried in vain to prove to security agencies that his brother had been released from the “Palestine security branch” in Damascus on Feb. 24, 2015, had his passport renewed with the approval of authorities, and then traveled to the northeastern city of Qamishli via Damascus airport.

A year and three months after his arrest, Saleh was released and granted a non-prosecution affidavit by the Criminal Justice Court dated Oct. 24, 2016, due to the absence of evidence against him. He submitted a request to return to his job three days later. in turn, the Ministry submitted a request to the National Security Bureau for a security clearance. After a two-month wait, the request was denied.

Administrators turned over Saleh’s file to the Disciplinary Court in Damascus where legal proceedings went on for seven months, and on May 8, 2017, Saleh received a verdict endorsed by the State Council ruling the “absence of legal accountability and reversal of the restraint order.”

But when he tried again for his job, the Ministry did not act on the court’s decision and again requested a security clearance.

Judge Al-Ali said,  “The role of the administrative court ends as soon as a verdict is reached, decreed absolute, and the ruling announced by the State Council.”

With no money coming and his family forced by war to move eight times, Saleh took the only work he could —  working as a porter in a vegetable shop in a Damascus’s market. Carrying heavy loads caused a back injury and before long two sons, one in high school and another in university, had to drop out and help support the family.  He learned of a a possible job teaching with the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), but it required a “not currently employed” statement in  accordance with labor law. Since Saleh was still registered as an employee of the Ministry he lost out. He describes restriction as “a silent execution.”

Wedad Khalid, the clerk in charge of the restriction file at the legal department of the Ministry of Education in Rif Dimashq, said,  “We cannot reinstate employees to their position until they are granted a security clearance.” She said she sent a second and a third request for security approval for Saleh,  but all were denied.

The ministry where Saleh is employed, and the Damascus City Water Supply Authority, registered the highest percentage of restriction cases according to judge Yahya Al-Ali ,although he did not provide specific numbers.

The situation is not so different in other sectors according to 11 employees interviewed for this report who were also subject to restriction and deprived of employment after being arrested without cause. Four acquired irrevocable judicial rulings compelling their employers to reinstate them to their jobs – but like Saleh they could not get clearances needed to actually return.

At least Saleh’s employers tried to get him a clearanceIn another case, Heba worked at the Ministry of Local Affairs until her arrest on charges of “promoting terrorist activities.”  Those charges were dropped after she spent five months in detention for lack of evidence. She was granted a presidential pardon that came with a letter of “no opposition to reinstatement.” And her legal file was closed July 21, 2014.

In her 30s now and the sole support for her parents, she has been unable ever since to secure  her old job. The head of personal affairs at her place of employment, told her simply that her boss “refuses to reinstate any employee who was arrested, and refuses to apply to the National Security Bureau for security clearance on her behalf.”

Eleven Days of Incarceration Wiped Out 15 Years of Service 

Employees can fall into the abyss of restriction because of nothing more than mistaken identity.Wisam Al-Zoubie, 40, was taken to the civil police department at Bab Moussalla in Damascus because he has the same name as a wanted person. He was released after 11 days to find that he has been put under restriction by the Civil Affair Bureau in Damascus on Jan. 17, 2017.

“I was questioned and released when it was decided that I was not the wanted person and was referred to the judiciary and received a clearance of wrong doing by an irrevocable judicial order,” Wisam said.

Still, there was an order of restriction against him. He provided proof about the mistaken reason for his arrest and was told the bureau would apply for a security clearance for him. It was denied.

Wisam’s case does not even fall within the parameters of the 2013 circular rules on clearances, but the Civil Affair Bureau insisted on a clearance nonetheless.

The court ruling in his favor should also have gotten him his job back under Article 26 of the Court of Conduct Law that says: “if the criminal court issues a decision of acquittal or non-responsibility or dismissal of charges, or was charged with an infraction the order of restriction is void and the court will transfer the case file to the administration of the place of employment through the prosecutor’s office.”

Dating back to 2013, Shadi Ibrahim (alias) an employee in his 30s with the Damascus Municipality found a shortcut to lift the restriction order. After he was detained for 10 days then released in that year, he wrote  to the municipality and the prime minister’s office in vain asking for reinstatement. He spent three years unemployed, then discovered that volunteers with the Damascus Voluntary Troops, comprised of municipality employees, could get reinstated.

He applied for volunteer duty with the Damascus Municipality Personal Department in January 2016, and a month later got a document indicating that he was actively employed.

Husam Al-Sawaf, secretary of Decision Committee No. 1 at the Ministry of Social Affairs and Labor tasked with the interpreting labor law for public office, said the committee in 2014 aksed the Prime Minister’s office for an exemption from the rule about clearances in cases where the person was found not guilty, or was granted presidential pardon, or received a judicial order of non-responsibility or dismissal of all charges.

All 11 cases in this investigation were all denied security clearance despite being unlawfully detained.The law on restrictions is complex.

During the seven months when his case was winding through court, Saleh found that the process of restriction is governed by Disciplinary Court Law No. 7 of 1990 and by the Primary Labor Law No. 50 of 2004 regulating public office —  in addition to the opinion of the Decision Committee No.1) at the Ministry of Social Affairs and Labor a committee.

One section of the Disciplinary Court Law says: “An employee is considered under restriction for the duration of his arrest, and the restriction is considered void upon their release unless the authorities executes its right to uphold the restriction order if the restriction was a result of criminal conduct perpetrated during the course of his employment or as a result of it.”

Attorney Adnan Alrbye who specializing in administrative law says the two laws do not offer a legal description of the process of restriction as a result of detention due to security reasons, nor does it offer a timeframe for the procedure by which an employee is reinstated. He said , the disciplinary court laws do not compel employers to reinstate the employees after their release but instead gives them discretion about whether to reinstate.

Dr. Ukba Al-Ridaa, an expert in human resources and former dean of the National Institute for General Administration, says much of the confusion is retribution used to result purely from infractions at work. Security issues were added later – bringing in courts  which could decide to incriminate or acquit of wrongdoing.

The conflict in Syria led to huge increases in the number of arrests due to security reason, and employers prioritized implementation of the government circular of 2013 over the old labor laws.

Loss of Benefits 

Restriction doesn’t just mean difficulty working again. It results in loss of income, end of service bonuses, loss of back pay and loss of other benefits.

Sections of the Labor Law for Government Employees No. 50 are conflicting about whether those suspended and restricted, but then found to be wrongly detained, can collect pay they lost.

The Supreme Court weighed in on the subject in a 1994 case saying that a permanent employee arrested and subsequently released without being referred to the judiciary or without conviction was entitled to return to his job — unless he has been dismissed or exceeded the legal age. The court said in such a case the worker should get back pay and not suffer any lost time on his employment record.

However, employers have withheld back pay for restricted workers citing the minutes of the Supreme Council for Financial Oversight Session No. 7 for 1993 where it states, “The duration between the release of an employee from incarceration and reporting to the administration at the place of his employment and the date of issuance of a reinstatement order is not considered to be a period of active employment, therefore has no right for reimbursement for that period.”

Even if Saleh gave up hope on returning to his teaching job, with the age of retirement fast approaching he is at a loss on how he would be able to collect Social Security and benefits.

The Ministry of Labor at the end of 2017, took the position that restriction was not equivalent to such situations as reaching the sage of 60 or illness or even death that result in “end of service.”

In other words, once put on restriction workers cannot got back to their old jobs, or legally bet hired for similar positions – or retire and collect a pension or get Social Security, which is calculated as 21 percent of  basic salary multiplied by the number of years in service.

The Circular is Mightier Than the Law

Dr. Ukba Al-Ridaa, former dean of the National Institute for General Administration, said that the failure to execute judicial decisions in favor of reinstating employees “is due to weakness in the managerial process …or fear that this person is involved in a particular action.”

Haider Hassan, secretary general of labor affairs at the General Federation of Trade Unions, said “The issue of employees who were found not guilty, weighs heavily on the mind of the council, especially since the accused is innocent until proven guilty.”

He said the federation during its annual conference in December 2017 petitioned the head of state and public entities to reinstate employees if they are released, but this has not been applied in all cases.

Rakan Ibrahim, deputy minister of social affairs and labor, said; “Restriction is an incident and not a permanent state, which should be lifted as soon as the reason for restriction is resolved in accordance with the procedural regulations defined by the law.” He added in reference to the government circular, in addition to the law there are protocols which regulate public entities where reinstatement is conditional upon acquiring security clearance.

The Prime Minister’s Office had no comment. The press office refused to document the application for a response. And when we wrote to the e-mail address listed in the contact information on the official website for the prime minister, the message was not delivered and a response of technical failure was received.

Since 2012, attorney Adnan Alrbye has handled over 100 complaints filed by employees subjected to restriction trying to get their old jobs back.

He said circulars are sometimes issued out of necessity in the face of emergencies and they can take a different approach from the law. He stressed that now “without security clearance the employee will not be reinstated.”

Saleh knows that, though he still doesn’t understand why he is hefting boxes of vegetables in the market instead of teaching students in his classroom.

This investigation was completed with support from Arab Reporters for Investigative Journalism (ARIJ) www.arij.net and in partnership with Syrian Investigative Reporting for Accountability Journalism (SIRAJ) under the supervision of editor Mokhtar Alibrahim. 

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