Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Abolition of Forced Labour Convention, 1957 (No. 105) - Sri Lanka (Ratification: 2003)

Other comments on C105

Observation

Direct Request

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The Committee notes the communication from the National Trade Union Federation (NTUF) dated 24 August 2013, as well as the Government’s report.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. Prevention of terrorism regulations. The Committee previously noted the entering into force of Prevention of Terrorism Regulations Nos 1–5 in 2011. In noted that section 3 of the Prevention of Terrorism (Proscription of the Liberation Tigers of Tamil Eelam) Regulations No. 1 of 2011 provides a broad definition of offences, including taking part in meetings, promoting, encouraging, supporting, advising, assisting, and causing the dissemination of information, within or outside Sri Lanka, linked to the Sri Lanka Liberation Tigers of Tamil Eelam or any other organization presenting or acting on behalf of the said organization. This definition also covers any person connected or concerned in or reasonably suspected of being connected with or concerned in any of such activities. The offences are punishable with imprisonment (involving compulsory prison labour) of up to 20 years (section 4), and conspiring to commit, attempt, abet, or engage in any conduct in preparation of such an offence is punishable with imprisonment up to ten years (section 5). Additionally, it noted that the Prevention of Terrorism (Proscription of the Tamil Rehabilitation Organization) Regulations No. 2 of 2011 likewise imposes penalties of imprisonment (involving compulsory prison labour) of up to 20 years for a range of activities linked to the Tamil Rehabilitation Organization including attending meetings and the publication of material (sections 3, 4 and 5).

The Committee notes the statement of the NTUF that it is possible that these regulations could be misused or misinterpreted to restrict civil rights and liberties such as freedom of expression and the right to organize. The Committee also notes the Government’s statement that no sanctions involving compulsory labour will be imposed on those holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Government indicates that these regulations are exclusively for the prevention of terrorism in the country, and that pursuant to the provisions of the Constitution, any affected party can file a human rights case with the Supreme Court.

With reference to paragraphs 302–307 of its General Survey of 2012 on the fundamental Conventions concerning rights at work, the Committee recalls that Article 1(a) of the Convention prohibits the use of forced or compulsory labour, including compulsory prison labour, as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. While 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, the Committee must emphasize that the protection conferred by the Convention is not limited to activities expressing or manifesting opinions diverging from established principles. Even if certain activities aim to bring about fundamental changes in state institutions, such activities are protected by the Convention, as long as they do not resort to or call for violent means to these ends. 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. Considering the broad definition of terrorist activities in the Prevention of Terrorism Regulations Nos 1 and 2, the Committee requests the Government to take the necessary measures to ensure that no sanctions involving compulsory labour can be imposed for the holding or expressing of political views or views ideologically opposed to the established political, social or economic system. The Committee requests the Government to provide information in its next report on the measures taken to bring its legislation and practice into conformity with the Convention in this respect. Pending the adoption of such measures, it requests the Government to provide information on the application of the abovementioned provisions in practice, including information on any prosecutions, convictions and penalties imposed, as well as copies of relevant court decisions.

Article 1(c). Disciplinary measures applicable to seafarers. The Committee previously noted that, under section 127(1)(ii) of the Merchant Shipping Act (No. 52 of 1971), the minister may make regulations concerning the conditions of service of those serving on board ships, including regulations providing for disciplinary offences, discipline of officers and seafarers, imposition of penalties on persons committing offences and connected procedures. Under section 127(2) of the Act, such regulations may provide for the imposition of penalties of imprisonment for a term not exceeding two years (involving compulsory prison labour by virtue of section 65 of the Prison Ordinance).

The Committee notes the Government’s statement that, in practice, any form of forced or compulsory labour as a means of labour discipline does not take place. It also indicates that the Merchant Shipping Authority is developing guidelines with regard to the Maritime Labour Convention, 2006. The Committee once again recalls that Article 1(c) of the Convention expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. The Committee accordingly requests the Government to take the necessary measures to amend section 127(2) of the Merchant Shipping Act, either by repealing the provisions permitting the imposition of sanctions of imprisonment involving compulsory labour or by restricting their application to situations where the ship or the life or health of persons are endangered.

Article 1(c) and (d). Sanctions for breaches of labour discipline and participation in strikes in essential services. The Committee previously noted that the Industrial Disputes Act penalizes the participation in strikes in essential industries in violation of procedural requirements to be observed in declaring strikes in such industries with sanctions of imprisonment from six up to 12 months (involving compulsory prison labour) (sections 32(2) and 40(1)(n), read in conjunction with section 43(1) of the Act). It also noted that pursuant to section 17(2) of the Public Security Ordinance, 1947 and sections 2(2) and 4(1) of the Essential Public Services Act, 1979, persons employed in essential services who fail or refuse to attend their place of work or perform such work, or those who impede, obstruct, delay or restrict the carrying on of such services, are punishable with imprisonment, involving compulsory prison labour, for a term of up to five years. Section 6 of the Essential Public Services Act, 1979, also restricts the right to strike, specifying that it shall not be a defence for such persons to prove that any act or omission constituting the offence was performed in furtherance of a strike commenced by a trade union to which they belong. It noted the Government’s statement that the Essential Public Services Act, 1979, applies to certain government departments, public corporations, local authorities, cooperative societies and essential public services declared as essential public services essential to the life of the community. The Government also indicated that section 2 of the Act could only be invoked by the President during an emergency situation, which was no longer in existence.

The Committee notes the Government’s statement that the Ministry of Labour and Labour Relations will discuss the Committee’s comments with the social partners, and provide information on any progress in this regard. The Committee also notes the statement by the NTUF that several pieces of legislation, including the Public Security Ordinance, have become obsolete and are not enforced. However, the NTUF states that the Government has failed to repeal or amend the provisions of legislation which contravene articles of the Convention. Referring to its comments addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee requests the Government to take the necessary measures in order to ensure, both in legislation and practice, that no sanctions involving compulsory labour can be imposed for disciplinary offences or for peacefully participating in strikes. The Committee therefore urges the Government to ensure that the abovementioned provisions of the Industrial Disputes Act are revised in order to bring legislation into conformity with the Convention, and to provide information on measures taken in this regard. Moreover, with reference to paragraph 314 of its General Survey of 2012 on the fundamental Conventions concerning rights at work, the Committee requests the Government to provide information on the application in practice of sections 2(2) and 4(1) of the Essential Public Services Act and section 17(2) of the Public Security Ordinance.