Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

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

The Committee notes the Government's reports received in March and December 1996.

I. Article 1(a) of the Convention. 1. 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.

In its reports received in March and December 1996, the Government repeats its earlier indications that punishment under the Security of Pakistan Act, 1953, and the Political Parties Act, 1962, would be inflicted after fair trial by a court of law and the accused would be given full opportunity to defend and prove his innocence.

The Committee refers again to the explanations provided in paragraphs 102 to 109 of its General Survey of 1979 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 not merely the requirement of due process of law but rather the substance of penal provisions aimed at the punishment of political dissent with sanctions involving compulsory labour which is covered by Article 1(a) of the Convention.

The Committee notes the Government's indication in the report received in December 1996 that the Registration of Printing Press and Publications Ordinance, 1996, has been promulgated, and that efforts have been made in this Ordinance to fulfil the obligations under the Convention. The Committee understands that an Ordinance promulgated under article 89(2) of the Constitution is required to be laid before the National Assembly and shall be considered repealed at the expiration of four months from its promulgation if not approved by the Assembly. The Committee hopes that the Government will 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.

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 more requests the Government to supply an updated copy of the provisions of the Jail Code governing prison labour.

2. Article 1(a) and (e). 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 shall be punished with imprisonment of either description for a term which may extend to three years.

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 any law, custom or usage having the force of law, 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 his religious conviction, will be punished for professing his 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.

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

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 thereunder and copies of court decisions made thereunder in particular in the proceedings mentioned by the Special Rapporteur, as well as copies of any court ruling that sections 298B and 298C are incompatible with constitutional requirements.

The Committee notes that the Government has not supplied the information requested on court practice to disprove the allegations noted by the Special Rapporteur. In its latest report, the Government indicates that the Quadianis were prohibited under sections 298B and 298C of the Pakistan Penal Code to use epithets, description and titles reserved for certain Holy Personages or places or posing themselves as Muslims, and that the main purpose of this restriction was to differentiate them and to prohibit them to preach the religion/faith as Islam after they were declared as 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.

The Government further states in its latest report that the Ahmadis have 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 considers that it had to take certain legislative and administrative measures so as to maintain sectarian peace.

The Committee takes due note of these indications. Referring to the explanations provided in paragraphs 133 and 141 of its General Survey of 1979 on the abolition of forced labour, the Committee recalls 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.

The Committee therefore hopes 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.

3. Article 1(d). In its earlier comments, the Committee noted that under the Pakistan Essential Services (Maintenance) Act, 1952, and corresponding provincial Acts, which apply permanently to employment of whatever nature under the federal Government and provincial governments and any agency set up by the latter or a local authority and, inter alia, to any service related to transport, and which may in addition be applied by notification, inter alia, to employment in any educational autonomous body, employees are prohibited from striking, subject to penalties of imprisonment that may involve compulsory labour.

The Government states in its report received in December 1996 that the Act of 1952 is applicable to essential employments only for the purpose of securing the defence or security of the country and for the uninterrupted supplies and services essential to the life of the community, and that strikes are prohibited because the Government feels that if essential services are disrupted, the life of the community as a whole will be in danger. It also indicates that the list of essential services covered by the Act is minimum, and that the Government has adopted the policy of constant review and check of this list.

The Committee takes due note of these indications. It recalls that the Convention in Article 1(d) prohibits the imposition of sanctions involving compulsory labour as a punishment for having participated in strikes. None the less, the Committee has considered that Article 1(d) would not apply where the sanction is not imposed for the participation in a strike as such, but for the fact of endangering the life, personal safety or health of persons through a strike in a truly essential service. However, as recalled above, the scope of the Essential Services (Maintenance) Acts is far from being limited to services whose interruption would endanger the life, personal safety or health of persons. Referring also to Part III of its observation under the Forced Labour Convention, 1930 (No. 29), the Committee trusts that the Essential Services (Maintenance) Acts will be either repealed or amended so as to ensure the observance of the Convention, and that the Government will report on the action taken to this effect.

II. The Committee observes that the Government's reports received in March and December 1996 do not contain any new information on the following points already raised by the Committee in its previous observation.

4. Article 1(c). 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.

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 "simple imprisonment". This was confirmed by the Government representative to the Conference Committee in 1990. The Government has since indicated in its reports, up to the latest one received in December 1996, that the proposed amendment was under active consideration. The Committee trusts that the Government will soon be in a position to indicate that the Industrial Relations Ordinance has been brought into conformity with the Convention.

5. Article 1(c) and (d). The Committee notes the repeated assurances given by the Government up to its latest report that sections 100 to 103 of the Merchant Shipping Act, providing for the imposition of compulsory labour in relation with various breaches of labour discipline by seamen, will be amended. The Committee hopes 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 offenses 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 seamen may be forcibly returned on board ship to perform their duties. The Committee hopes that the Government will soon be in a position to provide information on action taken to this end.