Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee has noted the observations received in September 2001 from the International Confederation of Free Trade Unions (ICFTU) concerning application of the Convention, which were transmitted to the Government in October 2001 for such comments as it might wish to make. The Committee also notes the communication dated 26 April 2005 from the All Pakistan Federation of Trade Unions (APFTU), which contains comments on the observance of the Convention, and which was forwarded to the Government in June 2005 for any comments it might wish to make on the matters raised therein. The Committee regrets that the Government has not referred to these observations in its latest report and hopes it will do so in its next report.

Article 1(c) and (d) of the Convention.

Forced or compulsory labour as punishment for breach of contract or participation in strikes in non-essential services. 2. In earlier comments made under the present Convention and the Forced Labour Convention, 1930 (No. 29), the Committee has noted that the Pakistan Essential Services (Maintenance) Act (ESA), 1952, and corresponding provincial Acts, prohibit employees from leaving their employment, even by giving notice, without the consent of the employer, as well as from striking, subject to penalties of imprisonment that may involve compulsory labour. The Committee has also noted previous comments, made under the Convention by the APFTU, according to which the Government has applied provisions of the ESA to workers employed in non-essential services, including various public utilities such as the Water and Power Distribution Authority (WAPDA), the Karachi Port Trust, and Sui Gas, as well as railways and telecommunications, and these workers cannot resign from their service and cannot go on strike.

3. The Committee notes the indication of the Worker member of Pakistan, in the Conference Committee at the 90th Session of the International Labour Conference in June 2002, that management in the Karachi Electric Supply Corporation, and in the telecommunications and railway industries generally, had been making use of the provisions of the ESA to prevent workers from presenting their legitimate demands and to refuse any type of social dialogue. He referred in particular to workers in Quetta who had gone on strike and been arrested. The Committee also notes, from the APFTU communication dated 26 April 2005, the indication that the provisions of the ESA continue to be applied to ban strikes in non-essential services.

4. The Committee notes the indications by the Government representative in the Conference Committee in June 2002 that, while that the Act has remained on the books, that most public sector organizations to which the ESA was applied were undergoing privatization, including WAPDA and the telecommunications and oil and gas sectors, and that the Act would therefore no longer be applicable when those organizations had been fully privatized. The Committee notes from its latest report the Government’s indication, which it has repeated for a number of years, that the provisions of the ESA are applied restrictively.

5. The Committee points out once again, with reference to the explanations provided in paragraphs 110 and 123 of its General Survey of 1979 on the abolition of forced labour, that the Convention does not protect persons responsible for breaches of labour discipline or strikes that impair the operation of essential services in the strict sense or in other circumstances where life and health are in danger; however, in such cases there must exist an effective danger, not mere inconvenience. Furthermore, all the workers concerned - whether in any employment under the federal and provincial governments and local authorities or in public utilities, including essential services - must remain free to terminate their employment by reasonable notice; otherwise, a contractual relationship based on the will of the parties is changed into service by compulsion of law, which is incompatible with both the present Convention and the Forced Labour Convention, 1930 (No. 29), likewise ratified by Pakistan. The Committee also recalls that, in its comments to the Government on its application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it has observed that the ESA includes services which cannot be considered essential in the strict sense of the term, including, among others, oil production, postal services, railways, airways, and ports, and it has for some time requested that the Government amend the ESA so as to ensure that its scope is limited to essential services in the strict sense of the term. The Committee refers the Government to its comments under Convention No. 87 on this point. It reiterates its firm hope that the ESA, and corresponding provincial Acts, will be repealed or amended in the near future so as to ensure the observance of the Convention, and that the Government will report on the action taken to this effect.

6. In comments made for many years, the Committee has referred to sections 54 and 55 of the Industrial Relations Ordinance (No. XXIII of 1969), under which, whoever commits any breach of any term of any settlement, award or decision or fails to implement any such term may be punished with imprisonment which may involve compulsory labour. The Committee notes the promulgation of the Industrial Relations Ordinance (IRO) of 2002, which has repealed the 1969 Ordinance (section 80). The Committee notes with interest, from the indications of the Government in its latest report, as well as the text of sections 65, 66, and 67 of the IRO, that the penalties of imprisonment have been eliminated.

Forcible return of seafarers on board ship. 7. The Committee has, from the time of the Government’s ratification of the Convention in 1960, referred to sections 100 to 103 of the Merchant Shipping Act, 1923, under which penalties involving compulsory labour may be imposed in relation to various breaches of labour discipline by seafarers, and seafarers may be forcibly returned on board ship to perform their duties. The Committee notes the promulgation of the Pakistan Merchant Shipping Ordinance (PMSO), 2001 (No. LII of 2001). It observes that the PMSO still contains provisions, particularly sections 204, 206, 207, and 208, which would permit, in respect of various breaches of labour discipline, such as absence without leave, wilful disobedience, or combining with the crew in "neglect" of duty, the imposition of sanctions involving the forcible conveyance of seafarers on board ship, as well as imprisonment (which may involve compulsory labour by virtue, inter alia, of section 3(26) of the General Clauses Act, 1897). The Committee regrets that, after decades of comments addressed to the Government on this point, the Government has promulgated new legislation without eliminating the divergences between its national legislation and the Convention. The Committee hopes that the Government will amend or repeal without delay those provisions of the 2001 Ordinance that prescribe penalties for breaches of labour discipline under which seafarers may be imprisoned or forcibly returned on board ship to perform their duties. The Committee asks the Government to provide information on the progress made in this regard. The Government is also asked to provide a copy of the implementing rules or regulations promulgated under section 603 of the 2001 Ordinance.

Article 1(a) and (e)

Forced labour as a means of political coercion. 8. In comments made for many years, the Committee has referred to certain provisions in the Security of Pakistan Act, 1952 (sections 10-13), the West Pakistan Press and Publications Ordinance, 1963 (sections 12, 23, 24, 27, 28, 30, 36, 56 and 59) and the Political Parties Act, 1962 (sections 2 and 7), which give the authorities wide discretionary powers to prohibit the publication of views and to order the dissolution of associations, subject to penalties of imprisonment which may involve compulsory labour.

9. The Committee notes the promulgation of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, which repeals the West Pakistan Press and Publications Ordinance, 1963 (section 45). Under the registration provisions of the 2002 Ordinance, a District Coordination Officer must deny authentication of a declaration, which must be made as a prerequisite for publication of a newspaper, in cases where the declaration has been filed by a person convicted of a criminal offence involving moral turpitude or for wilful default of public dues (section 10(2)(c)). Where the District Coordination Officer fails to take action to authenticate or to pass an order denying authentication of a declaration within a period of 30 days, the declaration is deemed to be authenticated (section 10(4)). Anyone who, among other things, edits, prints, or publishes a newspaper in contravention of the Ordinance - for instance, without having made a declaration or without having a declaration authenticated - is liable to punishment involving a sanction of imprisonment (which may involve compulsory labour) for a term of up to six months (sections 5 and 28). Referring to paragraph 133 of the General Survey of 1979 on the abolition of forced labour, the Committee asks the Government in its next report to indicate in relation to the abovementioned provisions of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, the measures taken or envisaged to ensure, in accordance with Article 1(a) of the Convention, that no form of forced or compulsory labour (including labour exacted as a consequence of a sentence of imprisonment) may be imposed as a means of political coercion or as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. The Committee also asks the Government to provide information on the application in practice of sections 5, 10(2)(c), 28 and 30 of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, including the number of persons arrested and convicted under these provisions, as well as the particulars of any judicial decisions which may serve to define or clarify the effect of the abovementioned provisions. The Government is also requested to supply a copy of the text of any rules promulgated under section 44 of the Ordinance to implement it.

10. As regards the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, the Committee notes the indications by the Government representative in the Conference Committee in June 2002 that the application of these statutes was extremely restrictive. The Committee also notes from the Annual Reports of 2003 and 2005 of the Government’s Law and Justice Commission, as well as its Report No. 56, that the Commission, in response to a Supreme Court ruling, had approved and drafted legislative proposals for certain amendments to be made to the Security of Pakistan Act, 1952, and that proposed reforms to other legislation, including the Political Parties Act, 1962, were under consideration. The Committee hopes that the concerns of the Committee will be taken into consideration in the work of the Law and Justice Commission. More generally, the Committee hopes that the Government will soon take the necessary measures to bring the abovementioned provisions of the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, into conformity with the Convention, and that it will report on progress achieved. Pending action to amend these provisions, the Government is requested to supply updated information on their practical application, including the cases registered, the number of convictions, and copies of any relevant court decisions.

11. The Committee notes that, in its latest report, the Government has indicated, with reference to the non-conformity with the Convention of the Pakistan Essential Services (Maintenance) Act, 1952, that "Pakistan is serving in the front line of the war against terrorism and in retaliation the unscrupulous elements off and on try to disrupt the supply chain of oil as well as natural gas to make stand still the whole economy of the country". It notes the similar indication by the representative of the Government in the Conference Committee in June 2002, with reference to the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, that Pakistan "was in the forefront of the fight against terrorism and faced very difficult political circumstances", and that under the present circumstances any change to the existing laws might not be feasible, particularly those related to the security of the country. The Committee observes that these laws, as well as the Merchant Shipping Act, 1923, have been the subject of comments by the Committee ever since the Government ratified the Convention in 1960, and that they have also been the subject of numerous discussions in the Conference Committee. The Committee would also like to point out that, if counter-terrorism legislation responds to the legitimate need to protect the security of the public against the use of violence, it can nevertheless become a means of political coercion and a means of punishing the peaceful exercise of civil rights and liberties, such as the freedom of expression and the right to organize. The Convention protects these rights and liberties against repression by means of sanctions involving compulsory work, and the limits which may be imposed on them by law need to be properly addressed.

12. The Committee hopes that, as a matter of urgency, the Government will at long last take the necessary measures to bring the provisions of the national legislation mentioned above into conformity with the Convention, and that it will report on progress achieved.

The use of forced or compulsory labour as a means of religious discrimination. 13. In its earlier comments, the Committee referred to sections 298B(1) and (2) and 298C of the Penal Code, inserted by the Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, No. XX of 1984, under which any person of these groups who uses Islamic epithets, nomenclature and titles is subject to punishment with imprisonment (which may involve compulsory labour) for a term that may extend to three years. The Committee has noted the report submitted to the United Nations Commission on Human Rights in 1996 by the Special Rapporteur on the Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (document E/CN.4/1996/95/Add.1 of 2 January 1996), which indicates that, according to many non-governmental sources, the religious activities of the Ahmadi community are seriously restricted, and that many Ahmadis are reported to be prosecuted under section 298C of the Penal Code (paragraph 41). The Committee has also noted the conclusion of the Special Rapporteur that the State laws related to religious minorities are likely to favour or foster intolerance in society, and that the law applied specifically to the Ahmadi minority is particularly questionable.

14. The Committee has noted the Government’s repeated statements in its reports that religious discrimination does not exist and is forbidden under the Constitution, which guarantees equal citizenship and fundamental rights to minorities living in the country. The Government states that subject to law, public order and morality, the minorities have the right to profess, propagate their religion and establish, maintain and manage their religious institutions. In the Government’s view, the Penal Code imposes equal obligations on all citizens, whatever their religion, to respect the religious sentiments of others, and an act that impinges upon the religious sentiments of other citizens is punishable under the Penal Code. The Government indicates that religious rituals referred to in Ordinance No. XX are prohibited only if exercised in public, whereas if they are performed in private without causing provocation to others, they do not fall under the prohibition.

15. While noting this information, the Committee points out once again, referring also to the explanations provided in paragraphs 133 and 141 of its General Survey of 1979 on the abolition of forced labour, that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. But where punishment involving compulsory labour is aimed at the peaceful expression of religious views, or where such punishment (for whatever offence) is meted out more severely, or even exclusively, to certain groups defined in social or religious terms, this falls within the scope of the Convention. The Committee therefore reiterates that it firmly hopes the necessary measures will be taken in relation to sections 298B and 298C of the Penal Code, so as to ensure the observance of the Convention. Pending action to amend these provisions, the Committee requests that in its next report the Government provide updated and detailed factual information on the practical application of the provisions of sections 298B and 298C of the Penal Code, including a record of cases registered, the number of persons convicted, and copies of court decisions.