Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Articles 1 (paragraph 1) and 2 (paragraph 1), of the Convention. 
1. Obligation to maintain oneself by work enforceable with penalties of imprisonment. For a number of years, the Committee has been referring to section 4(1)(xxx) of the Summary Jurisdiction (Offences) Ordinance, read in conjunction with section 4(7) of the same Ordinance, under which every person who, being able wholly or in part to maintain himself or his family by work or other means, wilfully refuses or neglects to do so, shall be guilty of a petty offence and is liable to imprisonment. The Committee pointed out that a legal obligation to maintain oneself by work, in the absence of other means, falls within the scope of the Convention if enforced by any penalty.

The Government indicates in its report that section 4(1)(xxx) referred to above is now section 4(1)(xxix) in the revised Act, and the relevant provision is still in force. The Committee has noted the Government’s repeated indication that no prosecutions have been carried out under this provision. While noting also the Government statement that the Committee’s comments on the Summary Jurisdiction (Offences) Act will be forwarded to the relevant authorities, the Committee expresses the firm hope that measures will be taken to repeal or amend the above provision, so as to bring legislation into conformity with the Convention and the indicated practice. Pending the adoption of such measures, the Committee requests the Government to continue to supply information on any prosecutions made under this provision.

2. Freedom of career military personnel to leave their service. In its earlier comments, the Committee referred to section 13(1) of the Defence Act, under which an officer may resign his commission if permitted to do so by the Governor acting in his absolute discretion. It also referred to section 11 of the Defence (Officer) Regulations (Cap. 135), under which an officer may be permitted to resign his commission at his own request, having given at least six months’ notice, at the discretion of the Governor-General exercised after consultation with the Defence Commission. The Committee observed that, under the above provisions, the service is not automatically terminated after the expiration of the notice period, since a request for resignation can be either accepted or refused. Referring to the explanations contained in paragraphs 46 and 96–97 of its 2007 General Survey on the eradication of forced labour, the Committee pointed out that career members of the armed forces, who have voluntarily entered into an engagement, cannot be denied the right to leave the service in peacetime within a reasonable period, e.g. by means of notice of reasonable length. The Committee requested the Government to take the necessary measures in order to ensure complete conformity with the Convention on this point. It also asked the Government to indicate the criteria for acceptance or refusal of a resignation.

The Committee notes the Government’s indication in the report that the criterion for refusal of resignation is based on compliance with terms and conditions of contracts or bonds signed by officers; if the officer does not complete his contract or bond with the Government or refuses the alternative of paying off the bond, the resignation will be refused.

While noting these indications, the Committee requests the Government to provide clarifications as regards the application of the above criteria in practice, e.g. by giving examples of the grounds for refusal of the resignation. Noting also the Government’s statement that the Committee’s comments will be submitted to the Ministry of National Security, which is the authority responsible for the enforcement of the Defence Act, the Committee reiterates its hope that the necessary measures will be taken with a view to ensuring compliance with the Convention and requests the Government to provide, in its next report, information on the progress made in this regard.