Observation (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes the recent Government report and response received respectively on 31 July 2000 and 6 November 2000.

Article 25 of the Convention

Penalties

1.  The Committee for some ten years has raised its concern about the failure of the Government to comply with Article 25 of the Convention, which requires that illegal exaction of forced labour shall be punishable as a penal offence. This comment has been made in respect of special problems involving migrant workers as discussed hereunder. The Government has consistently maintained that forced or compulsory labour would be regarded as a constraint or oppression under the Shari’a and that, if a case was brought to a tribunal, the judge in applying the Shari’a may subject the offender to penalties in the way of fines, jail or other sanctions at the discretion of the judge. In its reports, the Government maintains that this is sufficient to comply with the Convention as the secular law is thereby in conformity with the Convention.

2.  The Committee yet again indicates that the absence of a secular law, such as a code, which specifically provides for punishment of forced labour as a penal offence means that the provisions of the Convention are not fulfilled. Article 25 requires that a member State have a specific law which both describes the exaction of forced labour which is forbidden and also prescribes a penalty for its exaction. The broad and non-specific application of the Shari’a, coupled with a possible judicial sanction at the broad and unlimited discretion of the judge, does not fulfil the requirements and purpose of the Article. The purpose of Article 25 is to act overtly as a preventative measure and also as a punitive measure which is known and can be implemented.

3.  The Committee therefore again requests that the Government take measures in secular law, for example by way of a code, to provide for penal sanctions for the imposition of forced labour in order to ensure compliance with the Convention. In addition, to the extent that the Government indicates that such matters may be raised in a tribunal, the Committee asks the Government to provide details of any cases in which a tribunal has found a person responsible for forced labour, including any sanctions imposed by a judge, and also to transmit copies of such decisions.

  Migrant workers

4.  The Committee has raised for some years the problem of migrant workers and in particular agricultural and domestic workers. As indicated above, this problem is linked to the points made by the Committee in respect of the absence of a penalty provision as described above. The Committee has previously noted that the Labour Code does not extend to agricultural workers and domestic workers, which has particular significance for migrants who often work in those jobs. The lack of protection for such migrant workers exposes them to exploitation in their working conditions, such as retention of their passports by their employers which in turn deprives them of their freedom of movement to leave the country or change their employment.

5.  The Committee has previously noted that, according to information submitted by Anti-Slavery International to the United Nations Working Group on Contemporary Forms of Slavery, it was a common practice by employers to retain the passports of domestic workers in particular, and that such workers had to continue in the service of the employer, sometimes without remuneration, with excessive hours and occasionally subject to physical mistreatment or, for women, even sexual abuse. The Government indicated in an earlier report that it strongly refuted these allegations as going "beyond logic and reality". The Committee takes note of comments recently communicated by the International Confederation of Arab Trade Unions (ICATU) of 15 May 2000, in which reference is made again to the practice of retaining passports of migrant workers by employers which still continues. The Government in its response of 6 November 2000 indicates that, as the result of the previous comments made by the Committee on this topic, it adopted, through Decision No. 166 of 12 July 2000 of the Council of Ministers, a "Regulation governing the relationship between employers and migrant workers". The Committee notes with interest that according to section 3 of the Regulation, "migrant workers may keep their passports or the passports of members of their families and may be authorized to move within the Kingdom as long as they have a valid residence permit". The Committee also notes that section 6 provides for the creation of a rapid mechanism for the examination of conflicts which may arise and for their settlement by the competent authority.

6.  The Committee also takes note of the decision of the Government of Indonesia of January 1999 to suspend the migration of workers to Saudi Arabia which was linked to the number of reported cases of torture, rape, non-payment of wages and deprivation of liberty of Indonesian workers in Saudi Arabia.

7.  In a summary on the point, the Committee hopes that the Government will provide details regarding the sanctions which may be imposed in case of non-observance of the provisions of the Regulation governing the relationship between employers and migrant workers, and that it will communicate further information on the dispute settlement mechanism which is provided for in section 6 of the Regulation.