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

The Committee notes the information supplied by the Government in its reports in reply to the Committee's previous observation on the application of the Convention.

1. Article 1(a) of the Convention. In previous comments the Committee noted that the Public Order and Security Act, No. 20 of 1967, empowering the executive to restrict, independently of the commission of any offence, an individual's association or communication with others, subject to penalties involving compulsory labour appeared to have been repealed; the Committee requested the Government to indicate whether this Act had actually been repealed and to supply a copy of any text adopted to this effect. The Committee had also referred to measures to be taken to repeal or amend section 21A of the Newspaper and Publications Act (inserted by Decree No. 35 of 1972) under which the publication of any newspaper may be prohibited if the competent minister considers it to be in the public interest to do so and which is enforceable with imprisonment (involving an obligation to perform labour).

The Committee notes the Government's indication that the Public Order and Security Act is no longer being used in practice to detain people, but that the legislative revision is still going on, and that the Government will provide a report as soon as the revisions are approved by Parliament. The Committee further notes the Government's indication that section 21A of the Newspaper and Publications Act has not been invoked to prohibit publication of any newspaper in the public interest; it notes with interest that the Press Media Bill 1995 which is currently being debated in Parliament is to repeal the Newspaper and Publications Act as well as the Press Censorship and Convention Act. The Committee hopes that the Government will soon be in a position to indicate that the Newspaper and Publications Act, as well as the Public Order and Security Act, whose repeal was reported since 1981 as being under way, have actually been repealed.

2. In its previous comments, the Committee noted that sections 54(2)(c), 55, 56 and 56A of the Penal Code empower the competent minister to declare any combination of two or more persons to be an unlawful society (a power exercised in respect of various political, religious and student organizations by Statutory Instruments Nos. 12 of 1968, 153 of 1972 and 63 of 1973) and thus render any speech, publication or activity on behalf of or in support of any such association illegal and punishable with imprisonment (involving an obligation to perform labour). The Committee also noted that a number of orders made under these provisions between 1975 and 1977 were revoked by the Penal Code (Unlawful Society) (Revocation) Order, 1979, but that sections 54(2)(c), 55, 56, and 56A of the Penal Code appeared to remain in force and that by Statutory Instrument No. 15 of 1991 a society was declared unlawful under section 54(2) of the Penal Code. The Committee requested the Government to provide details on this case and any other cases of prohibition as well as on the measures adopted regarding the above provisions to ensure the observance of the Convention.

The Committee notes that no such details have been provided. It notes the Government's indication that sections 54(2)(c), 55 and 56A of the Penal Code are still in force, but that sentences or penalties under the Code provide for imprisonment only and do not involve an obligation to perform compulsory labour.

The Committee recalls that under section 46 of the Prisons Ordinance, 1958, every sentence of imprisonment passed upon any criminal prisoner shall subject the prisoner during the term of such sentence to be imprisoned and to work at such labour as may be directed by the officer in charge under the general approval of the Commissioner of Prisons. The Committee previously pointed out that the Convention does not prevent work from being made available to prisoners at their own request, to be performed on a voluntary basis. However, under the above-mentioned provisions, an obligation to perform labour is laid down as an essential incident of punishment in the specific circumstances enumerated in Article 1(a) of the Convention. Noting also the Government's indication in its reports that public rallies and campaigns remain suspended and that any illegal assembly is handled as a criminal offence under section 54(2) of the Penal Code, which provides for a penalty of imprisonment of up to three years, the Committee again expresses the hope that the necessary action will be taken regarding these provisions to ensure the observance of the Convention, and that the Government will soon report measures adopted to this end.

3. Article 1(c). In previous comments the Committee noted that, under section 16(1)(a) of the Trade Disputes (Arbitration and Settlement) Act, 1964, workers employed in "essential services" may be prohibited from terminating their contract of service, even by notice. The Committee notes the Government's statement in its report that the section in question concerns collective withdrawal of contract by a number of workmen as a result of a trade dispute and does not stop an individual who has fulfilled his/her obligations and given due notice to terminate his/her services in a normal manner, to do so. The Committee recalls, however, that, under section 16(1)(a) of the Act, any workman in an essential service who wilfully terminates his contract of service, knowing or having reasonable cause to believe that the probable consequences of his doing so, even alone, will be to deprive the public or any section of the public of that service or to diminish their enjoyment thereof, is subject to penal sanctions. The provisions for termination by notice contained in section 17 apply only "where any collective withdrawal of labour from an essential service is contemplated", and thus would appear not to cover the case of termination by individual workers in the absence of a collective dispute. The Committee accordingly hopes that section 16 of the Act will be suitably amended to ensure that individual workers in the services concerned may duly terminate their contracts by notice.

4. Article 1(d). In previous comments the Committee noted that, by virtue of sections 16, 17 and 20A of the Trade Disputes (Arbitration and Settlement) Act, 1964, strikes may be prohibited in various services that, while including those generally recognized as essential ones, also extend to other services, interruption of which would not necessarily endanger the life, personal safety or health of the whole or part of the population, and that contravention of these prohibitions may be punished with imprisonment (involving, as previously noted, an obligation to perform work). The Committee noted that the process to review the law was still under way.

In its latest report, the Government indicates that the tripartite labour legislation review committee discussed sections 16(a) and 17 of the Trade Disputes (Arbitration and Settlement) Act 1964 in the light of their implicit denial of the freedom of association to those individuals working in "essential services" in the interest of protecting the public against danger to their lives. Although the sections exist in the law, in reality, strikes have occurred in essential services and no one had ever been victimized because of engaging in strikes in essential services; the Government adds that nowhere is a penalty involving compulsory labour mentioned under these sections. Section 20 of the Act empowering the Minister to certify essential services in case of doubt has also been at the centre of the discussions for the law revision committee, which took into account the fears expressed by the Committee, in particular, the overstretching of the category of essential services. The Government concludes that it is not possible to provide a definitive response to the Committee's observations until the law revision process is finalized.

The Committee takes due note of these indications. Concerning the compulsory labour following from a sentence of imprisonment, the Committee refers to the explanations in point 2 above. The Committee hopes that the law revision process that has been referred to by the Government since 1979 will soon enable the Government to indicate measures taken to bring sections 16, 17 and 20A of the Trade Disputes (Arbitration and Settlement) Act, 1964, into conformity with the Convention, which prohibits the imposition of sanctions involving compulsory labour as a punishment for having participated in a strike.