Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Abolition of Forced Labour Convention, 1957 (No. 105) - Sri Lanka (Ratification: 2003)

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. 1. Prevention of terrorism regulations. In its previous comments, the Committee noted that sanctions of imprisonment involved compulsory labour by virtue of section 65 of the Prison Ordinance. It noted that, pursuant to Prevention of Terrorism Regulations No. 1 (sections 3, 4 and 5) under the Prevention of Terrorism Act of 1979, penalties of imprisonment might be imposed for offenses defined broadly, such as taking part in meetings, promoting, encouraging, supporting, advising, assisting and causing the dissemination of information linked to the Sri Lanka Liberation Tigers of Tamil Eelam or any other organization presenting or acting on behalf of the said organization. The Prevention of Terrorism (Proscription of the Tamil Rehabilitation Organization) Regulations No. 2 of 2011 likewise provides for penalties of imprisonment for a range of activities linked to the Tamil Rehabilitation Organization, including attending meetings and the publication of material (sections 3, 4 and 5). Noting that the Government had initiated the drafting of new security laws to replace the Prevention of Terrorism Act and the Public Security Ordinance, the Committee requested the Government to report on the progress made in this regard, and to provide information on the application of the above-mentioned provisions of the Prevention of Terrorism Regulations Nos 1 and 2 of 2011 in practice.

The Government indicates in its report that the process of repealing and replacing the Prevention of Terrorism Act of 1979 has started and that the draft framework for a Counter Terrorism Act was approved by the Cabinet of Ministers in September 2018. In November 2018, the Supreme Court ruled on the constitutionality of the Bill, and recommended that some of its provisions be revised to ensure consistency with the Constitution. The Government specifies that the Bill is currently under review by a specialized committee of the Parliament. The Government further reports that trials are ongoing against 58 persons who have been charged under this Act, and three indictments are pending.

The Committee also notes that the United Nations Special Rapporteur on the rights of freedom of peaceful assembly and of association stated, in his report of 5 May 2020, that there were allegations regarding the use of the Prevention of Terrorism Act against participants in peaceful assemblies (A/HRC/44/50/Add.1, paragraph 40). The Committee recalls that Article 1(a) of the Convention prohibits the use of compulsory labour, including compulsory prison labour, as a punishment for expressing political views or views ideologically opposed to the established political, social or economic system. The Committee has emphasized that, while counter-terrorism legislation responds to the legitimate need to protect the security of the public against the use of violence, when drafted in general and broad terms it can become a means of punishing the peaceful exercise of civil rights and liberties, such as the freedom of expression and the right to assembly. The Committee requests the Government to provide information on the revision of the Prevention of Terrorism Act and its related Regulations and hopes that the Government will make every effort to ensure that the provisions of the legislation adopted will not be drafted in terms broad enough that they could be used to punish persons who peacefully opposed the established political, social or economic system, with sanctions involving compulsory labour. It also requests the Government to provide more detailed information on the facts underlying the charges and indictments brought by the competent authorities under the Prevention of Terrorism Act and its Regulations. It requests the Government to continue to provide information on the practical application of the above-mentioned provisions of this Act and its Regulations.

2. Penal Code. In its previous comments, the Committee requested the Government to provide information on the application in practice of section 120 of the Penal Code which provides that, whoever by words, signs or visible representations excites or attempts to excite feelings of disaffection to the President or the Government, or hatred towards or contempt of the administration of justice, or excites or attempts to excite people, or attempts to raise discontent or to promote feelings of ill will and hostility between different classes of people, shall be punished with imprisonment for up to two years (involving compulsory labour).

The Committee notes with regret the absence of information from the Government in this regard, despite its requests since 2012. The Committee trusts that the Government will not fail to indicate whether there have been any convictions under section 120 of the Penal Code, and if so, to provide information on the facts on the basis of which such convictions were handed down and on the specific penalties imposed.

The Committee notes that section 480 of the Penal Code provides for a sentence of imprisonment, a fine or both, for whoever defames another. In addition, pursuant to section 481, whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, may be punishable with a sentence of imprisonment. Section 482 also provides for the possibility of sentencing someone to imprisonment in case of selling or offering for sale any material containing defamatory matter. The Committee requests the Government to provide information on how the above-mentioned provisions of the Penal Code are applied in practice to enable it to examine their scope and ascertain that they are not applied under circumstances falling within Article 1(a) of the Convention. It requests the Government to provide information on the number of convictions issued by the courts, the nature of the offences, and the specific penalties imposed.

Article 1(c). Disciplinary measures applicable to seafarers. In its previous comments, the Committee noted that section 127(1)(ii) of the Merchant Shipping Act (No. 52 of 1971) provides that the competent 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. Section 127(2) of the Act sets out that such regulations may provide for the imposition of penalties of imprisonment for a term not exceeding two years (involving compulsory labour). The Committee noted the Government’s indication that the Department of Merchant Shipping was in the process of amending the Merchant Shipping Act to comply with the Maritime Labour Convention, 2006. The Committee therefore hoped that the Government would take into account its comments concerning disciplinary measures applicable to seafarers, within the framework of the law review process of the Merchant Shipping Act.

The Government indicates that it will communicate in due course the progress of the initiatives taken by the Ministry of Ports and Shipping. Recalling that the Convention prohibits the imposition of sanctions involving compulsory labour as a means of labour discipline, the Committee firmly hopes that the Government will take the necessary measures to amend the above provisions of the Merchant Shipping Act, 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. The Committee requests the Government to report on the progress made in this regard and, in the meantime, to provide information on the application in practice of the above-mentioned provisions.

Article 1(c) and (d). Sanctions for breaches of labour discipline and participation in strikes in essential services. In its previous comments, the Committee referred to sections 32(2) and 40(1)(n) of the Industrial Disputes Act, which provide for procedural requirements for the participation in strikes in essential industries. It noted that, according to section 43(1) of the Industrial Disputes Act, breaches of these provisions are punishable with imprisonment (involving compulsory labour). It further notes that section 17(2) of the Public Security Ordinance, 1947, and sections 2(2), 4(1) and 6 of the Essential Public Services Act, 1979, provide for certain restrictions on the right to strike, and that violations of these provisions are punishable with imprisonment for a term of up to five years. The Committee noted the Government’s information that discussions on the provisions concerned of the Industrial Disputes Act, the Essential Public Services Act and the Public Security Ordinance would be initiated with the competent authorities in order to fulfil the requirement highlighted by the Committee. The Committee accordingly requested the Government to take the necessary measures to amend the legislation, in order to ensure that no sanctions involving compulsory labour could be imposed for disciplinary offences or for peacefully participating in strikes, both in legislation and practice.

The Government indicates that no legal action was initiated for breaches of the above-mentioned sections of the Industrial Disputes Act in the year 2018. It states that the repeal of these sections is therefore not considered essential, and that it will report in due course on the progress made in this regard. The Government further points out that section 32(2) of the Industrial Disputes Act only stipulates that strikes in essential services are possible when written notice of intention to commence the strike is given to the employer 21 days prior to the commencement of the strike. The Committee, therefore, underlines that, in accordance with Article 1(d) of the Convention, no sanctions involving an obligation to perform labour (such as compulsory prison labour) should be imposed as a punishment for having peacefully participated in strikes, whether or not the strike has been carried out in contravention of legislative provisions establishing the requirements for the declaration or the conduct of the strikes. In this regard, the Committee also refers to its comments addressed to the Government under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee once again requests the Government to take the necessary measures to amend the national legislation, to ensure that the peaceful participation in strikes may not lead to the imposition of sanctions involving compulsory labour. It requests the Government to provide information in this regard.