Observation (CEACR) - adoptée 1999, publiée 88ème session CIT (2000)

I. The Committee notes the Government's report. It also notes the comments made in July 1999 by the All Pakistan Federation of Trade Unions (APFTU) on the application of a number of the ratified ILO Conventions, including Convention No. 105, which were transmitted to the Government in July 1999 for such comments as might be judged appropriate. The Committee hopes that the Government will refer to the APFTU's comments in its next report.

Article 1(c) and (d) of the Convention. 1. In its earlier comments made under the present Convention and the Forced Labour Convention, 1930 (No. 29), the Committee noted that the Pakistan Essential Services (Maintenance) Act, 1952, and corresponding provincial Acts, prohibit employees from leaving their employment, even by giving notice, without the consent of the employer, as well as from striking, subject to penalties of imprisonment that may involve compulsory labour. These restrictions apply permanently to all employment under the federal and provincial governments and local authorities and any service related to transport or civil defence and may in addition be applied, by notification, to employment in any autonomous educational body, as well as other employment that the Government considers essential. In its comments referred to above the APFTU states that the provisions of the Essential Services Act apply to workers employed in various public utilities such as WAPDA, Railway, Telecommunication, Karachi Port Trust, Sui Gas, etc., and these workers cannot resign from their service and cannot go on strike. The Committee also notes from a report by the ILO South Asia Multidisciplinary Advisory Team that the Ghazi Barotha Hydro Power Project (in which the World Bank is providing assistance for the construction of a power complex on the Indus river) has been declared by the Government an essential service, so that the abovementioned restrictions apply to workers on the project.

2. The Government indicated in its report of 1997 that the application of the 1952 Act had been further narrowed, and there were only six categories of establishments which were considered critical for the security of the country and the welfare of the community. This matter was also raised before the Conference Committee in 1999 on which occasion the representative of the Government indicated that the Government was "not proud of this piece of legislation" and that it was only resorted to when situations had reached an "extreme stage". The representative also repeated information previously given to this Committee to the effect that the scope of the Act had been progressively limited to five services. The representative also informed the Conference Committee that amendment of the Act would be considered by the newly established Tripartite Commission on the Consolidation, Simplification and Rationalization of Labour Laws and that the report of this Commission would be available in due course.

3. In its latest report on the Convention, the Government states that the 1952 Act has laid down specific objectives for its application for only a limited time, and the criteria for its application is to secure the defence or security of the country and the maintenance of such supplies or services as are essential to the life of the community. The Government concludes that it may not be possible to repeal the Act which serves to control the disruptive activity and industrial action.

4. While noting these indications, the Committee recalls that, as pointed out above, the essential services legislation applies permanently to all employment under federal, provincial and local authorities and has been applied by notification to a range of other activities whose interruption would not endanger the life, personal safety or health of persons and which are thus not essential services in the strict sense. Referring to the explanations provided in paragraphs 110 and 123 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that the Convention does not protect persons responsible for breaches of labour discipline or strikes that impair the operation of essential services in the strict sense or in other circumstances where life and health are in danger; however, in such cases there must exist an effective danger, not mere inconvenience. Furthermore, the workers concerned must remain free to terminate their employment by reasonable notice. The Committee further recalls that the effect of statutory provisions preventing termination of employment of indefinite duration by means of notice of reasonable length is to change a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with both the present Convention and the Forced Labour Convention, 1930 (No. 29), likewise ratified by Pakistan. The Committee trusts that the Pakistan Essential Services Act and corresponding provincial Acts will be either repealed or amended in the near future so as to ensure the observance of the Convention, and that the Government will report on the action taken to this effect.

5. In comments made for a number of years, the Committee has referred to sections 100 to 103 of the Merchant Shipping Act, under which penalties involving compulsory labour may be imposed in relation to various breaches of labour discipline by seafarers, and seafarers may be forcibly returned on board ship to perform their duties. The Government reaffirms its previous indications that the abovementioned sections of the Act have been reintroduced in the Merchant Shipping Bill, 1996, with some modifications. The Committee previously observed, however, that section 206 of the new Bill still contains provisions which would permit the imposition of penal sanctions of imprisonment (which may involve compulsory labour) in respect of various breaches of labour discipline, as well as provisions under which seafarers may be forcibly returned to their ships. Referring once again to paragraphs 117 to 119 of its 1979 General Survey on the abolition of forced labour, the Committee trusts that the necessary amendments will at last 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 seafarers may be forcibly returned on board ship to perform their duties. The Committee requests the Government to provide information on progress made in this regard.

II. The Committee observes that the Government's report does not contain any new information on the following points already raised by the Committee in its previous observation.

Article 1(a) and (e). 6. 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 Government has repeated that any punishment under the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, would be inflicted after fair trial by a court of law in which the accused would be given a full opportunity to defend and prove their innocence.

7. 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 both the requirement of due process of law and the substance of penal provisions aimed at the punishment of political dissent with sanctions involving compulsory labour which are covered by Article 1(a) of the Convention.

8. The Committee noted the Government's indication in the report received in December 1996 that the Registration of Printing Press and Publications Ordinance, 1996, had been promulgated, and that efforts had been made in this Ordinance to fulfil the obligations under the Convention. The Committee understood that an Ordinance promulgated under article 89(2) of the Constitution was required to be laid before the National Assembly and would be considered repealed at the expiration of four months from its promulgation if it was not approved by the Assembly. The Committee expressed the hope that the Government would soon provide a copy of the 1996 Ordinance, as well as information on action by the National Assembly to approve the Ordinance and on any measures taken to repeal the West Pakistan Press and Publications Ordinance, 1963.

9. In the absence of any new information concerning sections 10 to 13 of the Security of Pakistan Act, 1952, and sections 2 and 7 of the Political Parties Act, 1962, the Committee once again expresses the hope that the necessary measures will soon be taken also to bring these provisions into conformity with the Convention and that the Government will report on progress achieved. Pending action to amend these provisions, the Government is again requested to supply information on their practical application, including the number of convictions and copies of any court decisions defining or illustrating the scope of the legislation. The Committee also once again requests the Government to supply an updated copy of the provisions of the Jail Code governing prison labour.

10. In its earlier comments, the Committee 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 is punished with imprisonment for a term which may extend to three years.

11. The Committee has noted 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 that any law, custom or usage having the force of law, in 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 religious conviction, will be punished for professing 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. Forced labour as a result of religious discrimination does not exist in Pakistan; all minorities enjoy all fundamental rights and courts are free to uphold and safeguard the rights of minorities.

12. The Committee also took note of the report presented to the United Nations Commission on Human Rights 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.

13. The Committee further noted from the report by the Special Rapporteur presented to the Commission on Human Rights in 1992 (document E/CN.4/1992/52 of 18 December 1991) that nine persons were sentenced to two years' imprisonment for acting against Ordinance XX of 1984 in April 1990, and that another person was sentenced to one year of imprisonment in 1988 for wearing a badge, the sentence being upheld by the Court of Appeal. It is also stated that the Ahmadi daily newspaper had been banned during the past four years, its editor, publisher and printer indicted, and Ahmadi books and publications banned and confiscated. There is reference also to the sentencing under sections 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).

14. The Committee noted the Government's repeated indications in its reports that the report of the Special Rapporteur was not based on facts. The Committee therefore requested 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 and copies of court decisions, in particular in the proceedings mentioned by the Special Rapporteur, as well as of any court ruling that sections 298B and 298C are incompatible with constitutional requirements.

15. The Committee noted that the Government had not supplied the information requested on court practice to contradict the findings of the Special Rapporteur. In its report received in December 1996, the Government indicated that the Quadianis were prohibited under sections 298B and 298C of the Pakistan Penal Code from using epithets, descriptions and titles reserved for certain holy personages or places or posing as Muslims, and that the main purpose of this restriction was to differentiate them and prohibit them from preaching the religion as Islam after they have been declared non-Muslim. It would appear to the Committee that a restriction imposed for this main purpose and enforced with penalties involving compulsory labour falls within the scope of Article 1(a) and (e) of the Convention, which prohibits the imposition of penalties involving compulsory labour as a punishment for expressing views opposed to the established political or social system or as a means of social or religious discrimination.

16. The Government further stated in its report received in December 1996 that the Ahmadis had been accorded all rights and privileges guaranteed to non-Muslim minorities under the Constitution and laws of Pakistan, but that some religious practices of Ahmadis are similar to those of Muslims which arouse resentment among the latter and thus pose a threat to public order and safety. Consequently, the Government considered that it had to take certain legislative and administrative measures in order to maintain the peace.

17. The Committee took due note of these indications. Referring to the explanations provided in paragraphs 133 and 141 of its 1979 General Survey on the abolition of forced labour, the Committee recalled that, as provided in the Universal Declaration of Human Rights, limitations may be imposed by law on the rights and freedoms enumerated in it "for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society". Thus, the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. But where punishment involving compulsory labour is aimed at the peaceful expression of religious views, or where such punishment (for whatever offence) is meted out more severely, or even exclusively, to certain groups defined in social or religious terms, this falls within the scope of the Convention.

18. The Committee therefore reiterates its hope that the necessary measures will be taken in relation to sections 298B and 298C of the Penal Code to ensure the observance of the Convention.

Article 1(c). 19. 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.

20. The Government previously indicated that a Bill to amend the Industrial Relations Ordinance had 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 what was called "simple imprisonment". This was confirmed by the Government representative to the Conference Committee in 1990. The Government had since indicated in its reports, up to that received in December 1996, that the proposed amendment was under active consideration. The Committee expresses the 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.

(The Government is asked to supply full particulars to the Conference at its 88th Session and to report in detail in 2000.)