Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Referring to its observations under the Convention, in which it noted the Government’s indication that the report of the National Labour Law Commission is still under examination, and in the absence of any other information concerning measures taken to repeal or amend the various provisions of the national legislation that are in conflict with the Convention, the Committee repeats its previous direct request on the following points.

Article 1(a) of the Convention. 1. The Committee previously noted that under sections 16-20 of the Special Powers Act, No. XIV of 1974, penalties of imprisonment may be imposed on persons who commit prejudicial acts or publish prejudicial reports, or who contravene orders for prior scrutiny and approval of certain publications or for the suspension or dissolution of certain associations, and that the punishment under these provisions may involve an obligation to perform prison labour by virtue of section 53 of the Penal Code and section 3(26) of the General Clauses Act. The Committee again refers to explanations given in paragraphs 102-109 and 138-140 of its 1979 General Survey on the abolition of forced labour where it pointed out that any penal sanctions involving an obligation to perform prison labour are contrary to the Convention when imposed on persons convicted for expressing political views or views opposed to the established political system, or having contravened a widely discretionary administrative decision depriving them of the right to publish their views or suspending or dissolving certain associations. The Committee noted the Government’s indications concerning the establishment of a law commission which was examining the existing laws and would submit recommendations. It reiterates its hope that the Government will take the necessary measures to repeal or amend sections 16-20 of the Special Powers Act of 5 February 1974 so as to ensure the observance of the Convention.

2. In its earlier comments, the Committee asked the Government to supply details concerning the practical application of the following provisions of the Penal Code (Act No. XLV of 1860) under which prison sentences involving compulsory labour may be imposed: section 124A (brings the Government into hatred or contempt or exciting disaffection towards it); sections 141-143 (unlawful assemblies); section 145, read together with sections 141 and 127 of the Code of Criminal Procedure (No. V of 1898) (joining or continuing in an unlawful assembly which has been ordered to disperse); section 151, read together with section 127 of the Code of Criminal Procedure (joining or continuing any assembly of five or more persons which being likely to cause a disturbance of public peace has been ordered to disperse); section 153 (promoting feelings of enmity or hatred between different classes of citizens); and section 153B (inducing students to take part in political activity).

The Committee noted the Government’s statement in its previous report that there were no compiled data on the issue and that it was not in a position to supply full information on the matter. The Committee again requests the Government to supply information on the application in practice of the above provisions, including copies of any court decisions defining or illustrating their scope, so as to enable the Committee to assess their conformity with the Convention.

Article 1(c.) 3. In its earlier comments, the Committee referred to the following provisions under which prison sentences may be imposed, which may, under section 3(26) of the General Clauses Act, 1897, involve compulsory labour:

-  Industrial Relations Ordinance, No. XXIII of 1969, sections 54 and 55 (failure to implement or breach of, any settlement, award, decision);

-  Control of Employment Ordinance, No. XXXII of 1965, sections 5(2)(h) and (i), 6(3) and 13(1) (prohibiting persons employed or engaged in "essential work" from leaving their work or absenting themselves from duty or slowing down or otherwise impeding their output, essential work being defined in section 2(3) as any work relating to the manufacture, production, maintenance or repair of arms, ammunition and equipment or other supplies and any other work which the Government may, by notification in the Official Gazette, declare to be essential work for the purposes of this Ordinance);

-  Post Office Act, No. VI of 1898, section 50 (postal employees who withdraw from the duties of their office without one month’s previous notice in writing).

As regards sections 54 and 55 of the Industrial Relations Ordinance, 1969, while noting the Government’s view that award, decision or settlement must have legally binding force for implementation in order to avoid disorder and disrespect of the courts, the Committee observes that the above provisions, in so far as applicable to breaches by a worker of the terms of employment established by such award, decision or settlement, permit the imposition of compulsory labour as a means of labour discipline within the meaning of Article 1(c) of the Convention.

The Committee previously noted that the Control of Employment Ordinance, although stated to have been enacted in circumstances arising out of the 1965 war, was not recommended for repeal by the National Law Commission, and that the Post Office Act was not even mentioned in the report of the National Law Commission, 1992. Recalling that the above provisions permit the imposition of sanctions involving compulsory labour as a punishment for breaches of labour discipline, contrary to Article 1(c) of the Convention, the Committee reiterates its hope that the Government will be in a position to indicate, in its next report, that the necessary steps have been taken to bring the abovementioned provisions into conformity with the Convention.

4. The Committee previously noted that no reference had been made in the report by the National Law Commission, 1992, to the provisions of the Essential Services (Maintenance) Act, 1952, and the Essential Services (Second Ordinance), 1958, under which termination of employment without the consent of the employer is a punishable offence. The Committee has taken note of the Government’s intention to examine both texts in the future and reiterates its hope that these provisions, which are contrary to Article 1(c) of the Convention and which have also been the subject of comments under Convention No. 29 for a considerable number of years, will at last be repealed.

Article 1(d). 5. In its earlier comments, the Committee noted that the Industrial Relations Ordinance, No. XXIII of 1969, as amended by the Industrial Relations (Amendment Act, 1980), prohibits strikes in public utility services and makes strikes illegal in various other circumstances, such as strikes by unorganized workers (sections 43 and 46(1)(b)), or where the Government has exercised its right to prohibit any strikes lasting more than 30 days or, before the expiry of 30 days, any strike whose continuance is considered prejudicial to the national interest (section 32(2)). Strikes are also illegal if they have not been consented upon by three-quarters of the members of the trade union or federation recognized as a collective bargaining agent (section 28 of the 1969 Ordinance, as amended by section 8 of the 1980 Act, read together with sections 22, 43 and 46(1)(b) of the Ordinance). By virtue of section 57 of the Ordinance, participation in any illegal strike may be punished with imprisonment (which, according to section 3(26) of the General Clauses Act, 1897, may involve an obligation to work).

The Committee previously noted that the abovementioned provisions of the Industrial Relations Ordinance had not been referred to in the report by the National Labour Law Commission, 1992. The Government has reiterated its view that the term "imprisonment" used in section 57 of the Ordinance means "simple imprisonment" and does not involve compulsory labour. The Committee previously observed in this connection, that under section 3(26) of the General Clauses Act, 1897, offences for which the relevant provisions merely prescribe a punishment of imprisonment, may be punished by the courts with either simple imprisonment or rigorous imprisonment (involving an obligation to work). Having noted also the Government’s repeated indication in its reports that no case of awarding rigorous imprisonment involving compulsory labour has come to its notice, the Committee reiterates its hope that the necessary measures will be taken to ensure the observance of the Convention both in law and in practice, either by removing the abovementioned restrictions on the right to strike, or by removing the penalties through which these restrictions are enforced and which may involve an obligation to perform labour. The Committee looks forward to learning of concrete action taken to this end. As regards the question raised by the Government concerning the application of section 28 of the 1969 Ordinance, the Committee refers to its comments on this subject addressed to the Government under Convention No. 87.

6. The Committee previously noted from the report of the National Labour Law Commission, 1992, that under the Communications and Transport Services Maintenance Ordinance, 1957 (XII of 1957), strikes may be prohibited for a period not exceeding six months, inter alia, in "post, ... railway services, ports and passenger transport services in the capital, loading and unloading of goods in ports, etc.". The Commission recommended that these provisions be integrated into those of the Services (Temporary Powers) Ordinance, 1963. The Committee points out once again that the above provisions, if enforceable with penalties involving an obligation to work, are incompatible with Article 1(d) of the Convention.

7. In its earlier comments, the Committee noted that under sections 2 and 3 of the Services (Temporary Powers) Ordinance, No. II of 1963, the Government may prohibit strikes by employees of the Government or of a local authority, inter alia, in the interest of public order, contraventions being punishable with rigorous imprisonment involving an obligation to work. In this respect, the National Labour Law Commission, 1992, noted in its report that it was not desirable to prohibit any such strike which falls in the purview of the Industrial Relations Ordinance by this law. Referring also to its comments on the Industrial Relations Ordinance in point 5 above, the Committee reiterates its hope that the Government will take the necessary measures to bring sections 2 and 3 of the Services (Temporary Powers) Ordinance into conformity with the Convention.

8. Regarding the Government’s view that there is no provision in labour laws imposing forced labour as a means of labour discipline or as a punishment for having participated in strikes, and that only prisoners undergoing rigorous imprisonment for a criminal offence are required to perform compulsory labour, the Committee recalls, referring to paragraph 105 of the 1979 General Survey on the abolition of forced labour, that, in most cases, labour imposed on persons as a consequence of a conviction in a court of law will have no relevance to the application of the Convention; but on the other hand, if a person is in any way forced to work because he holds or has expressed particular political views, has committed a breach of labour discipline or has participated in a strike, the situation is covered by the Convention.

The Committee reiterates its hope that, in connection with the work on a draft labour code, the necessary measures will at last be taken to eliminate or amend the abovementioned provisions of the legislation in force that are incompatible with the Convention, and that the Government will supply full information on the measures taken to this end.