Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

The Committee takes note of the information provided by the Government in reply to its earlier comments, as well as of the discussion that took place in the Conference Committee in June 2000.

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.

2.  In comments made under the Convention in July 1999, the All Pakistan Federation of Trade Unions (APFTU) stated that the provisions of the Essential Services Act apply inter alia 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 noted from a report by the ILO South Asia Multidisciplinary Advisory Team that the Ghazi Barotha Hydro Power Project (in which the World Bank was providing assistance for the construction of a power complex on the Indus river) had been declared by the Government an essential service, so that the abovementioned restrictions applied to workers on the project.

3.  The Government reiterates in its report its previous statement that the application of the 1952 Act has been made very restrictive and it is extended only in cases of extreme nature, when peaceful and uninterrupted supply of goods and services to the general public appears to be disturbed. During the discussion in the Conference Committee in 2000, the Government representative repeated indications previously given to this Committee to the effect that the Act applied to only six categories of establishments (a reduction from an initial list of ten categories) which were considered truly essential to the life of the community. As regards the Ghazi Barotha Hydro Power Project, which had been placed under the Act, the Government representative assured the Conference Committee that the application of the Act to this project was a temporary measure. The Government representative also informed the Conference Committee that the observations of the Committee of Experts concerning the Act had been placed before the Tripartite Commission on the Consolidation, Simplification and Rationalization of Labour Laws, and that the Commission’s recommendations would be provided to the ILO and to the social partners when finalized.

4.  While noting these indications, the Committee recalls that the abovementioned restrictions under the Pakistan Essential Services (Maintenance) Act, 1952, and corresponding provincial Acts, 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. Referring to the explanations provided in paragraphs 110 and 123 of its 1979 General Survey on the abolition of forced labour, the Committee once again points out 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, all the workers concerned - whether in any employment under the federal and provincial governments and local authorities or in public utilities, including essential services - must remain free to terminate their employment by reasonable notice; otherwise a contractual relationship based on the will of the parties may be changed into service by compulsion of law, which is incompatible with both the present Convention and the Forced Labour Convention, 1930 (No. 29), likewise ratified by Pakistan. The Committee therefore expresses the firm hope 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.  The Committee previously 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. It noted the Government’s indications in its previous report that the abovementioned sections of the Act had been reintroduced in the Merchant Shipping Bill, with some modifications. The Government indicates in its latest report that the Bill has been converted into Ordinance 2000, which is in the process of enactment. In the Government’s opinion, the new Ordinance fulfils the requirements of the Convention. The Committee expresses the firm hope that the necessary amendments will be adopted, in the near future, 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 asks the Government to provide information on the progress made in this regard.

6.  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.

7.  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" which does not involve compulsory labour. In its latest report, the Government confirms the statement made by the Government representative during the discussion in the Conference Committee in June 2000 that sections 54 and 55 were placed before the Tripartite Commission on Consolidation, Simplification and Rationalization of Labour Laws, which was due to finalize its recommendations by August 2000. The Committee reiterates its hope that measures will soon be taken to bring the Industrial Relations Ordinance into conformity with the Convention, and that the Government will supply full information on the provisions adopted to this end.

Article 1(a) and (e).  8.  In comments made for a number of years, the Committee has referred to certain provisions in the Security of Pakistan Act, 1952 (sections 10 to 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.

9.  The Committee notes that during the discussion of these matters in the Conference Committee in June 2000 the Government representative repeated the Government’s statement previously made in its report that any punishment under the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, would be imposed after a fair trial in a court of law, in which the accused would be given every opportunity to defend and prove their innocence. In this connection, 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 a 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.

10.  The Government representative also indicated that both Acts referred to above had been brought to the attention of the competent authorities. According to the Government’s latest report, the requisite information will be submitted by the end of 2000. The Committee reiterates its hope that the necessary measures will soon be taken in order to bring the abovementioned provisions of these Acts 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.

11.  As regards the West Pakistan Press and Publications Ordinance, 1963, the Committee notes with interest the Government’s indications in its latest report, as well as the information provided by the Government representative to the Conference Committee in June 2000, according to which it was repealed in 1988, and as a result of a dialogue initiated by the Government with the All Pakistan Newspapers Society (APNS) and the Council of Pakistan Newspapers Editors (CPNE), the Registration of Printing Press and Publication Ordinance, 1988, was enacted. The Government indicates that the 1988 Ordinance, which was repromulgated every 120 days as required under the law, was allowed to lapse in July 1997, as well as the Registration of Printing Press and Publications Ordinance, 1996, to which the Government referred in its report received in December 1996, so that at present there is no such law in force. The Government states that it endeavours to enact a new press law after a consensus has been reached on the matter with the newspaper industry, and that the process of consultations with the APNS and the CPNE is still going on. The Committee would be grateful if the Government would keep the ILO informed of the developments regarding the adoption of a new press law and requests the Government to supply a copy thereof, as soon as it is adopted.

12.  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.

13.  The Committee has noted the Government’s repeated statement in its reports that religious discrimination does not exist and is forbidden under the Constitution, which guarantees equal citizenship and fundamental rights to minorities living in the country. The Government states that subject to law, public order and morality, the minorities have the right to profess, propagate their religion and establish, maintain and manage their religious institution. The Government previously expressed the view that 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. According to the Government, the provisions of the Penal Code referred to above were drafted with a view to ensuring peace and tranquillity, and in order to save the country from grave communal riots.

14.  In its earlier comments, the Committee 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. The Committee also 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 was 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 was also reference 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).

15.  The Government repeatedly indicated in its earlier 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. The Committee observes that the information requested on court practice to contradict the findings of the Special Rapporteur has not been supplied.

16.  Referring to the explanations provided in paragraphs 133 and 141 of its 1979 General Survey on the abolition of forced labour, the Committee recalls once again that 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. However, 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. The Committee therefore expresses the firm 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.