Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee has noted with interest the information provided by the Government in its first and second reports on the application of the Convention, as well as the comments made in May 2007 by the Lanka Jathika Estate Workers’ Union. It requests the Government to respond to the workers’ comments in its next report and to provide additional information on the following points.

Article 1(a) of the Convention. Penal sanctions involving compulsory labour as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. Emergency regulations. The Committee draws the Government’s attention to its comments addressed to the Government under Convention No. 29, likewise ratified by Sri Lanka, in which it referred to the state of emergency declared on 20 June 1989 under the Public Security Ordinance, 1947, and the powers of the President under the Emergency (Miscellaneous Provisions and Powers) Regulations, adopted in 1989 and revised in 1994, 2000 and 2005. While taking due note of the Government’s repeated statement in its reports on Convention No. 29 that, in view of the ongoing civil war in the country, it was imperative that the provisions of the Emergency Regulations were in force in order to prevent any breakdown in the national security and to ensure the maintenance of essential services in the country, the Committee pointed out that recourse to compulsory labour under emergency powers should be limited to circumstances which would endanger the existence or well-being of the whole or part of the population, and that it should also be clear from the legislation itself that the power to exact labour is limited in extent and duration to what is strictly required to cope with the said circumstances.

As regards the application of the present Convention, the Committee has adopted a similar approach with regard to emergency measures, such as the suppression or limitation of fundamental rights and freedoms, which may have a bearing on the application of Article 1(a) of the Convention, if such measures are enforced by sanctions involving compulsory labour. Noting that the Emergency (Miscellaneous Provisions and Powers) Regulations referred to above contain various prohibitions concerning meetings, processions and publications, enforceable with sanctions of imprisonment (which involves compulsory prison labour in virtue of section 65 of the Prison Ordinance), the Committee refers to the explanations in paragraph 55 of its General Survey of 2007 on the eradication of forced labour, in which it pointed out that recourse to such exceptional powers should take place only in strict cases of emergency, and the nature and duration of the measures taken should be limited to what is strictly necessary to meet circumstances that would endanger the life, personal safety or health of the whole or part of the population. The Committee therefore hopes that, in the light of the above considerations, the Government will provide information on the measures taken or envisaged to give effect to the provisions of Article 1(a) of the Convention.

Article 1(c). Disciplinary measures applicable to seafarers. The Committee notes that, under section 127(1)(ii) of Merchant Shipping Act, No. 52 of 1971, the Minister may make regulations concerning the conditions of service of those serving on board ships, including regulations providing for disciplinary offences, discipline of officers and seafarers, imposition of penalties on persons committing offences and connected procedures. Under section 127(2) of the Act, such regulations may provide for the imposition of penalties of imprisonment for a term not exceeding two years. As the Committee has noted above, sanctions of imprisonment involve compulsory prison labour, in virtue of section 65 of the Prison Ordinance.

The Committee recalls that Article 1(c) expressly prohibits the use of any form of forced or compulsory labour as a means of labour discipline. As the Committee repeatedly pointed out, only acts which endanger the ship or the life or health of persons are excluded from the scope of the Convention (see, for example, paragraphs 179–181 of the General Survey of 2007 on the eradication of forced labour). The Committee therefore hopes that the necessary measures will be taken with a view to amending the above provisions, either by repealing sanctions involving compulsory labour or by restricting their application to situations where the ship or the life or health of persons are endangered. Please also provide a copy of the Regulations referred to in section 127(1)(ii) and (2) of the Merchant Shipping Act, as well as the information on their application in practice, indicating the penalties imposed.

Article 1(c) and (d). Sanctions for breaches of labour discipline and participation in strikes in essential services. The Committee notes that, under section 17(2) of the Public Security Ordinance 1947, and sections 2(2) and 4(1) of the Essential Public Services Act 1979, persons employed in essential services who fail or refuse to attend their place of work or perform such work or those who impede, obstruct, delay or restrict the carrying on of such services, are punishable with imprisonment for a term of up to five years (which involves compulsory prison labour). Section 6 of the Essential Public Services Act 1979, also restricts the right to strike, specifying that it shall not be a defence for such persons to prove that any act or omission constituting the offence was performed in furtherance of a strike commenced by a trade union to which they belong.

The Committee further notes, referring also to its comments addressed to the Government under Convention No. 87, likewise ratified by Sri Lanka, that the Industrial Disputes Act makes punishable with sanctions of imprisonment of up to six months (involving compulsory prison labour) the participation in strikes in essential industries in violation of procedural requirements to be observed in declaring strikes in such industries (sections 32(2) and 40(1)(n), read in conjunction with section 43(1) of the Act).

The Committee notes that the Public Security Ordinance 1947 (section 17(1)), empowers the President to declare essential any service which, in his opinion, is essential to the life of the community. The Essential Public Services Act 1979, gives to the President similar powers with regard to any government department or public corporation or local authority or cooperative society engaged in the provision of any services specified in the schedule to the Act, which refer to such services (e.g. supply and distribution of fuel, transport generally, postal and broadcasting services, services provided by all cooperative societies and unions) the interruption of which does not necessarily endanger the life, personal safety or health of the population.

The Committee draws the Government’s attention to the explanations in paragraphs 175–178 and 182–189 of its General Survey of 2007 on the eradication of forced labour, in which it recalled that punishment of disciplinary offences or offences related to violation of restrictions on the right to strike, with penal sanctions involving compulsory labour, is only possible in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population), or in circumstances where the life or health of persons are in danger, or in situations of force majeure. However, the provisions of the Public Security Ordinance, 1947, and the Essential Public Services Act 1979, referred to above provide for sanctions of imprisonment (involving compulsory labour) in a wider range of circumstances, which is not in conformity with the Convention.

The Committee therefore hopes that measures will be taken to ensure that the above provisions concerning labour discipline and imposing restrictions on the right to strike enforceable with sanctions involving compulsory prison labour are limited in scope to essential services in the strict sense of the term, or to circumstances where the life or health of persons are in danger, or to cases of force majeure, and that no sanctions involving compulsory labour can be imposed for disciplinary offences or participation in peaceful strikes in other services. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.