Observation (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

The Committee notes the information provided by the Government in its report. The Committee has also taken note of the discussion that took place in the Conference Committee in 1989.

Article 1(a) of the Convention.

1. In comments made for a number of years, the Committee has referred to certain provisions in the Security of Pakistan Act, 1952 (sections 10-13), the West Pakistan Press and Publications Ordinance, 1963 (sections 12, 36, 56, 59 and 23, 24, 27, 28 and 30) and the Political Parties Act, 1962 (sections 2 and 7) which give 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 notes with interest from the Government's report that the West Pakistan Press and Publications Ordinance, 1963 is being replaced by the Registration of Printing Presses and Publications Ordinance which is at present before the National Assembly and which will contain no provisions corresponding to sections 23, 24, 27, 28 and 30 of the West Pakistan Press and Publications Ordinance, 1963. The Committee requests the Government to provide a copy of the new Ordinance when adopted.

In relation to the Security of Pakistan Act and the Political Parties Act, the Government reiterates in its report its earlier indications that for offences under these Acts, rigorous imprisonment (involving an obligation to perform hard labour) is not a must and that offenders may be sentenced to detention or simple imprisonment, both of which do not entail any compulsory labour. The punishment can only be awarded after a regular trial before a court of law, giving the accused the right of defence and facility to prove his innocence. The courts judge the cases according to their merit and award sentences keeping in view the nature and gravity of the offence. The Government expresses the view that this does not involve any violation of the Convention.

The Committee takes due note of these indications concerning due process of law. It recalls the Government's indication in an earlier report that, by virtue of section 3(26) of the General Clauses Act, 1897, offences for which a penalty of "imprisonment" is laid down by law may be punished by the courts either by rigorous imprisonment (involving an obligation to perform hard labour) or by simple imprisonment. As pointed out by the Government, in awarding one form of imprisonment or the other, the courts keep in view the nature and gravity of the offence, but not necessarily its bearing on Article 1(a) of the Convention.

The Committee refers again to the explanations provided in paragraphs 102 to 109 of its 1979 General Survey on the Abolition of Forced Labour, where it indicated that compulsory labour in any form, including compulsory prison labour, falls within the scope of the Convention in so far as it is exacted in one of the five cases specified in Article 1 of the Convention and, in the case of persons convicted for expressing certain political views, an intention to educate them through labour would in itself be covered by the express terms of the Convention. The Committee again expresses the hope that the necessary measures will soon be taken to bring the above-mentioned provisions into conformity with the Convention.

Pending action to amend these provisions, the Committee once more requests the Government to supply information on their practical application including the number of convictions and copies of court decisions defining or illustrating the scope of the legislation.

The Committee also requests the Government to supply an updated copy of the provisions of the Jail Code governing prison labour.

Article 1(c).

2. In comments made for many years, the Committee has referred to sections 54 and 55 of the Industrial Relations Ordinance (No. XXIII of 1969) under which whoever commits any breach of any term of any settlement, award or decision or fails to implement any such term may be punished with imprisonment which may involve compulsory labour. The Committee expressed the hope that the Government would take the necessary measures to bring the Industrial Relations Ordinance into conformity with the Convention, by repealing sections 54 and 55 of the Ordinance or by repealing the penalties which may involve compulsory labour, or by limiting their scope to circumstances endangering the life, personal safety or health of the population.

The Committee notes with interest the statement by the Government in its report that the Government has presented a Bill to the National Assembly to amend the Industrial Relations Ordinance and that it is proposed to remove from the provisions of sections 54 and 55 the element of compulsory labour by replacing imprisonment with "simple imprisonment". The Committee hopes that the Government will soon be in a position to indicate that the Industrial Relations Ordinance has been brought into conformity with the Convention.

Article 1(c) and (d).

3. The Committee previously noted the Governments's statement that a Bill had been introduced in the National Assembly to amend sections 100 to 103 of the Merchant Shipping Act, under which various breaches of labour discipline by seamen may be punished with compulsory labour. The Committee notes with interest the Government's statement in its report that amendments are being made so as to remove the element of compulsory labour from the provisions of the Merchant Shipping Act. The Committee hopes that the amendments will soon be adopted so as to remove the penalties involving compulsory labour from sections 100 and 100(ii), (iii) and (v) of the Merchant Shipping Act (or limit their scope to offences committed in circumstances endangering the safety of the ship or the life, personal safety or health of persons) and to repeal the provisions of sections 101 and 102 of the Act under which seamen may be forcibly returned on board ship to perform their duties. The Committee looks forward to learning of the action taken in this regard.

Article 1(e).

4. In previous comments, the Committee has referred to sections 298B and C of the Penal Code, inserted by the Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984. Under section 298B(1), "any person of the Quadiani Group or the Lahori Group (who call themselves "Ahmadis" or by any other name) who by words, either spoken or written, or by visible representation - (a) refers to or addresses any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as "Ameer-ul-Mumineen", "Khalifa-tul-Mumineen", "Khalifa-tul-Muslimeen", "Sahaabi" or "Razi Allah Anho"; (b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as "Umul-Mumineen"; (c) refers to, or addresses, any person, other than a member of the family ("Ahle-bait") of the Holy Propet Muhammad (peace be upon him) as "Ahle-bait"; or (d) refers to, or names, or calls his place of worship as "Masjid" - shall be punished with imprisonment of either description for a term which may extend to three years".

Under section 298B(2), any persons of the same groups "who by words, either spoken or written, or by visible representation, refers to the mode or form of call to prayers followed by his faith as "Azan", or recites "Azan" as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years".

Under section 298C, any person of the same groups, "who, directly or indirectly, poses himself as a Muslim, or calls or refers to his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years".

The Government previously stated that religious discrimination does not exist and is forbidden under the Constitution and the laws of Pakistan and any law, custom or usage having the force of law, so far as it is inconsistent with the rights conferred by the Constitution, is void to the extent of the inconsistency.

The Committee notes the statement by the Government representative to the Conference Committee in 1989 that religious freedom exists as long as the feelings of another religious community are not injured and that anyone, regardless of his religious conviction, will be punished for professing his religion in a way that injures the feelings of another community. According to the Government the provisions of the Penal Code referred to were drafted so as to resolve the differences between the Muslim and Ahmadi practices of faith with a view to ensuring peace and tranquility, particularly in public places of worship. The Committee also notes that in its report the Government reiterates its earlier stand that forced labour as a result of religious discrimination does not exist in Pakistan, that all minorites enjoy all fundamental rights and that courts are free to uphold and safeguard the rights of minorities.

The Committee has taken note of the report presented to the United Nations Human Rights Commission by the Special Rapporteur on the application of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Conviction (document E/CN.4/1990/46 of 12 January 1990). In his report the Special Rapporteur refers to allegations according to which proceedings were engaged, on the basis of sections 298B and C of the Penal Code, in the districts of Guranwala, Shekhupura, Tharparkar and Attock against a number of persons having used specific greetings. The Committee again requests the Government to provide detailed information on the practical application of the provisions of sections 298B and C, including the number of persons convicted thereunder and copies of court decisions made thereunder in particular in the proceedings mentioned by the Special Rapporteur. The Government is also requested to supply copies of any court ruling that sections 298B and C are incompatible with constitutional requirements. [The Government is asked to supply full particulars to the Conference at its 77th Session and to report in detail for the period ending 30 June 1990.]