Demande directe (CEACR) - adoptée 1995, publiée 83ème session CIT (1996)

The Committee notes the Government's report.

Article 1(a) of the Convention. 1. In its earlier requests, the Committee observed that under sections 16 to 20 of the Special Powers Act of 5 February 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 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 noted the Government's indication in its previous report that the efficacy of the Special Powers Act, 1974, was questioned in political circles and that there was pressing demand in Parliament for its abolition. The Committee notes the Government's report which refers to the aforementioned indication in the previous report. The Committee hopes that the Government will soon be in a position to report on the repeal or modification of the said Act so as to ensure observance of the Convention on this point.

2. In its previous requests, 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 (bringing the Government into hatred or contempt or exciting disaffection towards it); 141 to 143 (unlawful assemblies); 145, read together with 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); 151, read together with section 127 of the Code of Criminal Procedure (joining or continuing in any assembly of five or more persons which being likely to cause a disturbance of the public peace has been ordered to disperse); 153 (promoting feelings of enmity or hatred between different classes of citizens); and 153B (inducing students to take part in political activity). In its previous reports the Government indicated that information on the practical application of these provisions was not compiled by any agency and, therefore, it was not possible to supply full information.

In the absence of any information in this regard in the Government's latest report, the Committee wishes to repeat its previous request for supply of information. It would appreciate receiving, at least, copies of court decisions and of any by-laws and instructions adopted under the above provisions.

Article 1(c). 3. In its previous comments, the Committee referred to a number of provisions of the Industrial Relations Ordinance, No. XXIII of 1969, the Control of Employment Ordinance, No. XXXII of 1965, and the Post Office Act, No. VI of 1898, under which various breaches of labour discipline are punishable with imprisonment. The Committee noted that any sentences under these laws take the form of simple imprisonment and no instance has come to the notice of the Government where the court has resorted to section 3(26) of the General Clauses Act, 1897, by virtue of which the court may impose either simple imprisonment or rigorous imprisonment, involving an obligation to work.

The Committee, recalling the Government's previous indication that in practice courts did not resort to section 3(26), expressed the hope that the Government would find no difficulty in bringing legislation on this point into conformity with the Convention and the indicated practice. The Committee notes the Government's indication in its report that it is committed to uphold basic human rights and dignity as enshrined in the Constitution and that the legitimate interest and rights of workers are fully protected by the labour laws.

The Committee hopes that the Government will be in a position to indicate in its next report that necessary steps have been taken to bring legislation on labour discipline into conformity with the Convention.

Article 1(d). 4. In its previous comments, the Committee noted that the Industrial Relations Ordinance, No. XXIII of 1969, as amended by the Industrial Relations (Amendment) Act, 1980, not only maintains those provisions which prohibit strikes in public utility services but also 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 strike lasting more than 30 days or, before the expiry of 30 days, any strike whose continuance is considered to be prejudicial to the national interest (section 32(2)). In addition, the Industrial Relations (Amendment) Act, 1980, makes illegal any strikes which have not been consented upon by three-quarters of the members of the trade union or federation recognized as 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, as previously noted, may involve compulsory labour).

The Committee notes the Government's indication in its report that the requirement of the consent of three-quarters of the members of the trade union for entering into strike has been made in the larger interest of workers as desired by them and that the workers feel that unless the opinion of the majority of the workers is obtained regarding the decision of strike, general workers may not participate in it which will ultimately create unfavourable situations to realize workers' demands. Referring to its earlier comments under Convention No. 87 (Report of the CEACR, 1995, page 153) and to its General Survey on freedom of association and collective bargaining, 1994, paragraph 170, the Committee wishes to point out that, for the purposes of Convention No. 105, where participation in an illegal strike may be punished with imprisonment involving compulsory labour, the majority required at the vote, and other conditions for entering legally into strike should not be such that the exercise of the right to strike becomes very difficult, or even impossible, in practice.

The Committee hopes that the Government will take the necessary measures to ensure the observance of the Convention.

5. In its previous 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).

The Committee notes the Government's indication in its report that a National Labour Laws Commission was established in 1992 and that it submitted a report to the Government with a view to updating the various laws adopted at different times and to maintaining harmonious industrial relations. Enactment of a Labour Code on the basis of the recommendations of the Commission is also expected.

The Committee expresses the hope that the forthcoming enactment of the Labour Code will contain provisions which bring sections 2 and 3 of the above-mentioned Ordinance into conformity with the Convention and, more generally, that it will be drafted in such a way as to take into account the other points raised in the Committee's comments on the Convention.

6. The Committee also requests the Government to forward a copy of the report of the National Labour Laws Commission mentioned in the Government's report.