Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Abolition of Forced Labour Convention, 1957 (No. 105) - Pakistan (Ratification: 1960)

The Committee notes with regret that no report has been received from the Government. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the observations communicated by the All Pakistan Federation of Trade Unions (APFTU) in July 2003 and transmitted to the Government on 5 September 2003, as well as on the following matters raised in its previous observation:

The Committee has noted the observations received in September 2001 from the International Confederation of Free Trade Unions (ICFTU) concerning the application of the Convention, which were transmitted to the Government in October 2001 for such comments as might be considered appropriate. The Committee hopes that the Government will refer to these observations 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.

2. The Committee previously noted the comments made under the Convention in July 1999 by the All Pakistan Federation of Trade Unions (APFTU), in which it 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 as an essential service, so that the abovementioned restrictions applied to workers on the project.

3. The Committee has noted the Government’s repeated statement in its reports 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. The Government also indicated that all workers covered by the Act had joined service without force and the requirement to obey justifiable and lawful orders of the employer did not constitute forced labour. The Committee recalls that, during the discussion in the Conference Committee in 2000, the Government’s 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’s representative assured the Conference Committee that the application of the Act to this project was a temporary measure. The Government’s 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, and referring also to the explanations provided in paragraphs 110 and 123 of its General Survey of 1979 on the abolition of forced labour, the Committee points out once again 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 is 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 reiterates 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 reports received in 1997 and 1999 that the abovementioned sections of the Act had been reintroduced in the Merchant Shipping Bill, with some modifications. The Government indicated in its latest report that the Bill had been converted into Ordinance 2001, which was in the process of enactment. In the Government’s view, the new Ordinance would fulfil the requirements of the Convention. 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 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 necessary measures would be taken to bring the Industrial Relations Ordinance into conformity with the Convention, either 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. During the discussion in the Conference Committee in June 2000, the Government’s representative indicated that sections 54 and 55 were placed before the Tripartite Commission on Consolidation, Simplification and Rationalization of Labour Laws. The Committee noted the Government’s indication in its latest report that the Commission had finalized its recommendations, on the basis of which the draft labour laws were being prepared. It expresses firm hope that the Industrial Relations Ordinance will be brought 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)

7. 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, 23, 24, 27, 28, 30, 36, 56, and 59) 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.

8. As regards the West Pakistan Press and Publications Ordinance, 1963, the Committee previously noted the Government’s indication in its report, as well as the information provided by the Government’s representative to the Conference Committee in June 2000, according to which the Ordinance was repealed in 1988, and the Registration of Printing Press and Publication Ordinance was enacted. However, the Government indicated in its previous report that the latter Ordinance was allowed to lapse in 1997, and since then there had been no such law in force. The Committee noted the Government’s indication in its latest report that a new draft press law had been finalized, in consultation with the All Pakistan Newspapers Society (APNS) and the Council of Pakistan Newspapers’ Editors (CPNE); the Government indicated that the draft was at the vetting stage. The Committee requests the Government to supply a copy of the new press law, as soon as it is adopted.

9. As regards the Security of Pakistan Act, 1952, and the Political Parties Act, 1962, the Committee previously noted that during the discussion in the Conference Committee in June 2000, the Government’s representative indicated that both Acts had been brought to the attention of the competent authorities. It noted that the Government’s latest report contained no new information on this subject. The Committee expresses firm 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.

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, 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. According to the Government’s view, the Penal Code imposes equal obligations on all citizens, whatever their religion, to respect the religious sentiments of others; an act which impinges upon the religious sentiments of other citizens is punishable under the Penal Code. The Government indicates that religious rituals referred to in Ordinance No. XX are prohibited only if exercised in public, whereas if they are performed in private without causing provocation to others, they do not fall under the prohibition.

12. The Committee previously noted 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 298C 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.

13. The Committee 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 Government indicated in its latest report that five cases had been registered in the district of Attock against persons belonging to Ahmadis: four persons had been acquitted and the conviction of one person had been maintained by the High Court. The Committee also noted the information communicated by the Government on four cases registered against persons belonging to Quadiani group who had been professing and convincing other people to join the group, on the basis of section 298C of the Penal Code: two cases were reported for cancellation, two others were pending trial in the court. The Committee observes that no information has been supplied on court practice which would contradict the findings of the Special Rapporteur referred to above.

14. While noting this information, the Committee points out once again, referring also to the explanations provided in paragraphs 133 and 141 of its General Survey of 1979 on the abolition of forced labour, 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. 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. The Committee therefore reiterates its firm hope that the necessary measures will be taken in relation to sections 298B and 298C of the Penal Code, so as to ensure the observance of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action.