Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 1(c) and (d) of the Convention. 1. Work imposed as a means of labour discipline and as a punishment for having participated in strikes. For a number of years, the Committee has been commenting on certain provisions of the Pakistan Essential Services (Maintenance) Act, 1952, and corresponding provincial Acts, under which employees are prohibited from leaving their employment without the consent of the employer or from striking, subject to penalties of imprisonment that may involve compulsory labour. The Committee previously noted the comments made under the Convention by the All Pakistan Federation of Trade Unions (APFTU), in which it stated that the provisions of the Essential Services Act apply, inter alia, to workers employed in various public utilities such as WAPDA, Railway, Telecommunication, Karachi Port Trust, Sui Gas, etc., and these workers cannot resign from their service and cannot go on strike. In its comments supplied in 2005, the APFTU reiterated its earlier statement that the Essential Services (Maintenance) Act continues to restrict the right to strike even in non-essential services. This view has been shared by the Pakistan Workers’ Federation (PWF) in its communication received in 2008.

The Committee previously noted the Government’s repeated statement in its reports that the application of the 1952 Act has been made very restrictive and it is extended only in cases of extreme nature, when peaceful and uninterrupted supply of goods and services to the general public appears to be disturbed. While having noted this indication, the Committee points out once again that 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 may be 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 addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it has observed that no penal sanction should be imposed against a worker for having carried out a peaceful strike, and therefore penalties of imprisonment should not be imposed on any account.

Referring to the explanations provided in paragraph 189 of its 2007 General Survey on the eradication of forced labour, the Committee trusts that the Pakistan Essential Services Act and corresponding provincial Acts will be either repealed or amended in the near future, so as to ensure that, in conformity with the Convention, no penal sanction involving compulsory labour can be imposed against workers for peaceful participation in a strike, and that the Government will report the progress achieved in this regard.

2. Penal sanctions applicable to seafarers for various breaches of labour discipline. For many years, the Committee has been referring to the provisions of the legislation concerning merchant shipping (Merchant Shipping Act, 1923, which was repealed and replaced by the Pakistan Merchant Shipping Ordinance, 2001 (No. LII of 2001)), 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. It noted, in particular, that under sections 204, 206, 207 and 208 of the Pakistan Merchant Shipping Ordinance, 2001, penalties of imprisonment, which may involve compulsory labour by virtue, inter alia, of section 3(26) of the General Clauses Act, 1897, may be imposed in respect of various breaches of labour discipline, such as absence without leave, wilful disobedience, or combining with the crew in “neglect” of duty, and seafarers may be forcibly conveyed on board ship.

While noting the Government’s statement in the report that penalties of imprisonment may only be awarded by a competent court of law after a trial, the Committee refers to the explanations in paragraph 144 of its 2007 General Survey, where it pointed out that, in the great majority of 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 (such as in the cases of the exaction of labour from common offenders convicted, for example, of robbery, kidnapping, acts of violence or various acts or omissions that have endangered the life or health of others). But if a person has to perform compulsory prison labour because that person 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, which prohibits the use “of any form” of forced or compulsory labour as a means of coercion, education or punishment for violation of labour discipline.

The Committee expresses the firm hope that, after several decades of comments addressed to the Government on this point, the necessary measures will at last be taken to repeal or amend these provisions of the 2001 Merchant Shipping Ordinance which prescribe penalties of imprisonment for breaches of labour discipline (e.g. by limiting their scope to offences committed in circumstances endangering the safety of the ship or the life or health of persons) and to repeal the provisions under which seafarers may be forcibly returned on board ship to perform their duties. The Committee asks the Government to provide, in its next report, information on the progress made in this regard.

Article 1(a). Penalties involving compulsory labour as a punishment for expressing political views. In comments made for many years, the Committee has referred to certain provisions in the Security of Pakistan Act, 1952 (sections 10–13), the Political Parties Act, 1962 (sections 2 and 7) and the West Pakistan Press and Publications Ordinance, 1963, which gave 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.

The Committee previously noted the adoption of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, which had repealed the West Pakistan Press and Publications Ordinance, 1963. It noted, in particular, the provisions of sections 5 and 28 of the 2002 Ordinance, under which a person who edits, prints, or publishes a newspaper in contravention of the Ordinance (for instance, without having made a declaration or without having a declaration authenticated by the District Coordination Officer) is liable to penalties of imprisonment (which may involve compulsory labour) for a term of up to six months.

The Committee hopes that the necessary measures will be taken with a view to bringing these provisions of the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, into conformity with Article 1(a) of the Convention, so that no penalty of imprisonment involving compulsory labour can be imposed as a punishment for expressing political views. Pending the adoption of such measures, the Committee asks the Government to provide information on the application of sections 5 and 28 in practice, indicating the penalties imposed and supplying sample copies of the relevant court decisions. Please also communicate a copy of any rules issued under section 44 of the 2002 Ordinance.

As regards the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, referred to above, the Committee previously noted that the Government’s Law and Justice Commission, in response to a Supreme Court ruling, had drafted legislative proposals for certain amendments to be made to the Security of Pakistan Act, 1952, and that proposals to amend other laws, including the Political Parties Act, 1962, were under consideration. Noting that the Government’s latest report contains no new information on this subject, the Committee reiterates its hope that the Committee’s concerns will be taken into account by the Law and Justice Commission and that the necessary measures will soon be taken to bring the abovementioned provisions of the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, into conformity with the Convention. Pending the adoption of such measures, the Committee again requests the Government to provide information on the practical application of these provisions, indicating the number of convictions and supplying sample copies of the relevant court decisions.

Article 1(e). Penalties involving compulsory labour as a means of religious discrimination. 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 punishable with penalties of imprisonment (which may involve compulsory labour) for a term of up to three years. The Committee previously noted the Government’s repeated statement 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 also stated that 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 further indicated 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.

While noting these indications, the Committee points out once again, referring to the explanations provided in paragraphs 154 and 190 of its 2007 General Survey, 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 reiterates the firm hope that 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 the adoption of such measures, the Committee again requests the Government to provide, in its next report, information on the application of these provisions in practice, including sample copies of the court decisions and indicating the penalties imposed.