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

The Committee notes the Government's reports and the discussion which took place at the Conference Committee in 1992.

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 has taken note of Presidential Ordinance No. III of 1990 to regulate matters relating to publications and printing presses promulgated under article 89 of the Constitution. The Committee notes that under section 55, the West Pakistan Press and Publications Ordinance No. XXX of 1963 and the Registration of Printing Press and Publications Ordinance No. XIII of 1989 were repealed. The Committee observes that an Ordinance promulgated under article 89(2) of the Constitution is required to be laid before the National Assembly and shall be considered repealed at the expiration of four months from its promulgation if not approved by the Assembly. The Committee notes the indication in the Government's report covering the period ending 30 June 1994 that Ordinance No. III of 1990 had been placed before the National Assembly, but that it could not be passed and it was now being submitted again to the National Assembly. The Committee requests the Government to provide information on any action by the National Assembly in regard to Ordinance No. III of 1990 and to communicate the text of any law adopted by the Assembly in relation to publications and printing presses.

The Committee notes the Government's indication concerning the Security of Pakistan Act, 1953, and the Political Parties Act, 1962, that the punishment under these Acts would be inflicted after fair trial by a court of law and the accused would be given full opportunity to defend and prove his innocence.

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. It is not merely the requirement of due process of law but rather the substance of penal provisions aimed at the punishment of political dissent with sanctions involving compulsory labour which is covered by Article 1(a) of the Convention.

The Committee hopes that the necessary measures will soon be taken to bring the above-mentioned provisions on security and political parties into conformity with the Convention and that the Government will report on progress achieved.

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 once more 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 Government has previously indicated that a Bill to amend the Industrial Relations Ordinance has been presented to the National Assembly and that it was proposed to remove from the provisions of sections 54 and 55 the element of compulsory labour by replacing imprisonment with "simple imprisonment". This was confirmed by the Government representative to the Conference Committee in 1990. The Government has since indicated in its reports, the latest one of which was received in May 1995, that the proposed amendment was under active consideration. The Committee expresses the firm hope 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 notes that once more the Government assures that sections 100 to 103 of the Merchant Shipping Act, under which various breaches of labour discipline by seamen may be punished with compulsory labour, will be amended. The Committee hopes that the amendments will finally 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 offenses 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 requests the Government to provide information on the action taken in this regard.

Article 1(d). 4. Referring also to Part III of its observation on Pakistan under the Forced Labour Convention, 1930 (No. 29), the Committee notes that under the Pakistan Essential Services (Maintenance) Act, 1952 and corresponding provincial Acts, which apply permanently to employment of whatever nature under the federal Government and provincial governments and any agency set up by the latter or a local authority and, inter alia, to any service related to transport, and which may in addition be applied by notification, inter alia, to employment in any educational autonomous body, employees are prohibited from striking, subject to penalties of imprisonment that may involve compulsory labour. The Committee must point out that the Convention in Article 1(d) prohibits the imposition of sanctions involving compulsory labour as a punishment for having participated in strikes. While the Committee has considered that Article 1(d) would not apply where the sanction is not imposed for the participation in a strike as such but for the fact of endangering the life, personal safety or health of persons through a strike in a truly essential service, the scope of the Essential Services Acts is not limited to such services. The Committee accordingly hopes that these Acts will be either repealed or amended so as to ensure the observance of the Convention, and that the Government will report on the action taken to this effect.

Article 1(e). 5. In previous comments, the Committee has referred to sections 298B(1) and (2) and 298C of the Penal Code, inserted by the Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, No. XX of 1984, under which any person of these groups who uses Islamic epithets, nomenclature and titles shall be punished with imprisonment of either description for a term which may extend to three years.

The Committee notes the Government's repeated statement in its reports 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.

According to the Government, religious freedom exists as long as the feelings of another religious community are not injured and anyone, regardless of his religious conviction, will be punished for professing his religion in a way that injures the feelings of another community. The provisions of the Penal Code referred to were drafted with a view to ensuring peace and tranquillity, particularly in places of worship. The Committee also notes that the Government reiterates its earlier stand that forced labour as a result of religious discrimination does not exist in Pakistan, that all minorities enjoy all fundamental rights and that courts are free to uphold and safeguard the rights of minorities.

The Committee had taken note of the report presented to the United Nations Human Rights Commission in 1991 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) referring to allegations according to which proceedings were instituted, 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 notes from the report by the Special Rapporteur presented to the Human Rights Commission in 1992 (document E/CN.4/1992/52 of 18 December 1991) the allegations that nine persons were sentenced to two years' imprisonment for acting against Ordinance XX of 1984 in April 1990, that another person was sentenced to one year of imprisonment in 1988 for wearing a badge and that the sentence was upheld by the Court of Appeal. It is also alleged that the Ahmadi daily newspaper has been banned during the past four years and its editor, publisher and printer have been indicted; Ahmadi books and publications have been banned and confiscated. Allegations also refer to the sentencing under section 298B and 298C of the Penal Code of two Ahmadis to several years' imprisonment and a fine of 30,000 rupees (in the case of failure to pay the fine, imprisonment would be extended by 18 months).

The Committee notes the Government's indication in its latest report that the report of the Special Rapporteur is not based on facts. The Committee requests the Government to provide factual information on the practical application of the provisions of sections 298B and 298C of the Penal Code 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 298C are incompatible with constitutional requirements.