CMNT_TITLE

Abolition of Forced Labour Convention, 1957 (No. 105) - Samoa (RATIFICATION: 2008)

Other comments on C105

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Article 1(a) of the Convention. Imposition of prison sentences involving the obligation to work as a punishment for expressing certain political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that the Crimes Act 2013 punishes the offence of unlawful assembly (section 42) and disorderly assembly (section 43) with penalties of imprisonment (involving compulsory labour, pursuant to section 47(1) of the Prisons Act 2013) of one year. Moreover, pursuant to section 41 of the Crimes Act 2013, a person who uses or speaks words, or publishes anything, with the intention of, inter alia, undermining the authority of the Government of Samoa or changing any matter affecting the laws, Government, or Constitution or any religious observance of Samoa, in circumstances where there is a present risk of lawlessness and disorder, may be subject to two years’ imprisonment. The Committee further noted the cases filed against young gangsters under sections 41–43 of the Crimes Act 2013 and requested the Government to indicate whether these young gangsters and other individuals had been involved in acts inciting to violence, civil strife or racial hatred.

The Committee notes from the Government’s indication in its report that the young gangsters and other individuals have not been prosecuted for acts inciting to violence, civil strife or racial hatred under the Crimes Act 2013. The Government also indicates that no cases have been filed in relation to unlawful assembly. The Committee further observes that the Crimes Amendment Act 2017 has introduced section 117A into the Crimes Act 2013, which establishes a penalty of a fine or imprisonment (involving compulsory labour) not exceeding three months for publishing by any means information about a person that is false with the intention to cause harm to that person’s reputation.

The Committee once again recalls that Article 1(a) of the Convention prohibits all recourse to compulsory labour, including compulsory prison labour, as a means of political coercion or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. In its 2012 General Survey on the fundamental Conventions, paragraph 302, the Committee indicates that the range of activities which must be protected, under this provision, from punishment involving forced or compulsory labour thus comprises the freedom to express political or ideological views (which may be exercised orally or through the press and other communications media), as well as various other generally recognized rights, such as the right of association and of assembly, through which citizens seek to secure the dissemination and acceptance of their views and which may also be affected by measures of political coercion. The Committee therefore requests the Government to ensure that no penalties involving compulsory labour, including compulsory prison labour, are imposed for the peaceful expression of political views or views ideologically opposed to the established political, social or economic system, for example by clearly restricting the scope of sections 41-43 and section 117A of the Crimes Act of 2013 to situations connected with the use of violence, or by repealing penalties involving compulsory labour. The Committee further requests the Government to continue to provide information on the application in practice of sections 41–43, and section 117A of the Crimes Act of 2013, supplying copies of the court decisions defining or illustrating their scope, as well as information on any arrests, prosecutions, convictions and penalties imposed.

Article 1(b). Mobilizing labour for purposes of economic development. The Committee previously noted that pursuant to section 5(2)(b) of the Village Fono Act 1990, every village fono (village council), shall have the power to make rules governing the development and use of village land for the economic betterment of the village, and pursuant to section 5(2)(c), shall have the power to direct any person or persons to do any work required in this regard. The Committee further noted that the Community Sector Plan (CSP) 2012–2021 had been adopted, of which one priority is the economic empowerment of vulnerable groups. The Government pointed out that the enactment of the Village Fono Act 1990 would benefit the vulnerable groups identified, such as through the provision of support to the establishment of small businesses.

The Committee observes from the Government’s indication that, in accordance with the Village Fono Amendment Act 2017, the village fono may adopt village regulations or by-laws (faiga fa’avae or i’ugafono) concerning its powers set out in section 5 of the Village Fono Act 1990. The Government further indicates that regulations or by-laws adopted by the village fono are registered within the Ministry of Women, Community and Social Development (MWCSD) and can be further amended, suspended, revoked and replaced. The Government also indicates that members of families are consulted before the performance of any economic empowerment activities undertaken in the village.

The Committee notes, however, that, pursuant to section 5(2)(b)(e) of the Village Fono Act 1990, the village fono still has the authority to order any person to undertake work to develop village land for the economic betterment of the village. The Committee further observes that as per sections 5(3) and 6 of the Village Fono Act 1990, in case of a failure to obey regulations or by-laws adopted by the village fono in this regard, a person may be punished with a fine, banishment or ostracism, or community work. The Committee once again recalls that Article 1(b) of the Convention prohibits the use of forced or compulsory labour as a method of mobilizing and using labour for purposes of economic development. In its 2007 General Survey on the fundamental Conventions, paragraph 148, the Committee notes that “minor communal services” can constitute an exception to this provision, as long as they are minor services and performed in the direct interest of the community and the members of the community, or their direct representatives must have the right to be consulted in regard to the need for such services (Article 2(2)(e) of the Forced Labour Convention, 1930 (No. 29)). The Committee therefore once again requests the Government to take the necessary measures to ensure that section 5(2)(b) and (e) of the Village Fono Act 1990 is amended by limiting its scope to the definition of minor communal services as provided for by Article 2(2)(e) of Convention No. 29. The Committee also requests the Government to indicate whether a person who has been consulted on any economic empowerment activities, pursuant to section 5(2)(b) and (e) of the Village Fono Act 1990, and who has refused to perform such activities, can be punished according to sections 5(3) and 6 of the Act.

Article 1(c). Disciplinary measures applicable to seafarers. The Committee previously noted that, pursuant to sections 127(e) and 128 of the Shipping Act 1998, a seaman who wilfully and persistently neglects his duty, disobeys any lawful command, or combines with other seamen for these purposes, or to impede the navigation of the vessel, may be subject to a fine or a term of imprisonment (involving compulsory labour) not exceeding two years, or both. The Committee further noted that consideration was being given to reviewing sections 127(e) and 128 of the Shipping Act 1998 and that there were no records of practical application of these sections.

The Committee notes the Government’s information that the Shipping Act 1998 is currently under revision with a view to bringing it into compliance with the Convention. In particular, the recommendations on the amendment of sections 127(e) and 128 of the Act concern the replacement of sanctions on imprisonment with revocation of a seafarer’s licence. The Government further indicates that the Samoa Shipping Corporation (SSC) is involved in the consultations with the Ministry of Works, Transport and Infrastructure regarding the revision of the Shipping Act 1998. The Committee firmly hopes that the Government will take the necessary measures to ensure the amendment of sections 127(e) and 128 of the Shipping Act 1998, so that any form of forced or compulsory labour is not used as a means of labour discipline. It requests the Government to provide information on any progress made in this regard.