Practice Related to Rule 95. Forced Labour
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
DISCIPLINE OF PRISONERS
52. Due provision shall be made in every prison for the enforcement of hard labour in the cases of such prisoners as may be sentenced thereto[.]
EMPLOYMENT OF PRISONERS
64. The medical officer shall from time to time examine the labouring prisoners while they are employed, and shall enter in his journal the name of any prisoner whose health he thinks likely to be injured by a continuance of hard labour, and thereupon such prisoner shall not again be employed at such labour until the medical officer certifies that he is fit for such employment; but if the medical officer certifies that such prisoner may without detriment to his health be employed on some lighter kind of labour, it shall be lawful for the jailer so to employ him.
65. Every prisoner shall perform such labour, whether manual or otherwise, as may be assigned to him; and the nature and the amount of labour assigned to and exacted from each class of such prisoners shall be in accordance with such rules as may be made in that behalf under section 94:
Provided that unconvicted prisoners or civil prisoners shall not be required to perform any labour in excess of such labour as may, in the opinion of the Superintendent, be reasonably necessary for keeping in a clean and proper condition the prison or part of the prison in which they are confined and the clothing, bedding, furniture and utensils allotted to prisoners of the class to which they are assigned, and for preparing and serving the food of prisoners of that class.
OFFENCES IN RELATION TO PRISONS
78. A prisoner shall be guilty of an offence against prison discipline if he –
(ix) refuses to work, or willfully mismanages work, or fails to perform his allotted task, or is idle, careless or negligent at work;
(x) willfully evades labour by self-disablement or by refusing to take food or by feigning madness or illness or other incapacity for work …
82. (1) Where a prisoner, undergoing any sentence or punishment of any description duly imposed on him, is convicted, under section 79 or section 81 or under any other written law, of any of the following offences against prison discipline, namely –
(a) refusing to work,
(b) failing to perform his allotted task,
(c) willfully evading labour by self-disablement or by refusing to take food or by feigning madness or illness or other incapacity for work, he shall, after undergoing such sentence or punishment as may be imposed on him for that prison offence, undergo for an additional period equal to the period during which that prison offence may have been continued, the sentence or punishment which he was undergoing at the time the prison offence was committed.
(2) Where any new sentence of imprisonment is imposed on a prisoner after the date of his conviction of any of the offences specified in subsection (1), such new sentence shall commence only on the expiry of the additional period referred to in that subsection.
94. (1) The Minister may from time to time make all such rules, not inconsistent with this Ordinance or any other written law relating to prisons, as may be necessary for the administration of the prisons in Sri Lanka and for carrying out or giving effect to the provisions and principles of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing powers, the Minister may make rules for all or any of the following purposes or matters:–
(f) the kind of labour to be exacted from prisoners at the different stages of their imprisonment, the manner in which and the place or places at which such labour may be exacted.
These articles apply to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
TAKING INTO POSSESSION OF PREMISES AND REQUISITIONING OF VEHICLES AND OF PERSONAL SERVICES
10. The President may [by] order … require, or may delegate to any one or more authorities or officers specified in that behalf the power in like manner to require, any person to do any work or render any personal service in aid, or in connection with, national security or the maintenance of essential services.
Where any person contravenes or fails to comply with any order made under this regulation, he shall be guilty of an offence …
OFFENCES AND PENALTIES
40. (1) The President may by Order published in the Gazette … [declare] any service to be an essential service for the purpose of these regulations. Where any service is declared to be an essential service, any person who, on or after August 13, 2005 was engaged or employed in any work in connection with that service –
(a) fails or refuses after the lapse of one day from the date of such Order, to attend at his place of work or employment or such other place as may from time to time be designated by his employer or a person acting under the authority of his employer or fails or refuses to work or walks out or keeps away from work without working during the full period or any part of the normal working day as is required of him in accordance with the terms and conditions of his employment in such service; or
(b) fails or refuses after the lapse of one day from the date of such Order, to perform such work as he may from time to time be directed by his employer or a person acting under the authority of his employer to perform at such time or within such periods as may be specified by such employer or such person for the performance of such work (whether such time or period is within, or outside normal working hours or on holidays) he shall, notwithstanding that he has failed or refused to so attend or to so work in furtherance of a strike or other organized action –
(i) be deemed for all purposes to have forthwith terminated or vacated his employment, notwithstanding anything to the contrary in any other law or the terms and conditions o[f] any contract of employment; and
(ii) in addition, be guilty of an offence.
(2) Where the President by Order published in the Gazette declares any service to be an essential service any person employed or engaged in any work in connection with such service may be required to work outside normal working hours or on holidays.
(3) Where any service is declared by order made by the President to be an essential service –
(a) any person who, in any manner whatsoever –
(i) impedes, obstructs, delays or restricts the carrying on of that service, or
(ii) impedes, obstructs or prevents any other person employed in or in connection with the carrying on of that service to refrain from, attending at his place of work, or
(iii) incites, induces or encourages any other person employed in or in connection with the carrying on [of] that service to refrain from, attending at his place of work, or
(iv) compels, incites, induces or encourages the establishment or maintenance of any other service in lieu of, or parallel with, that service being a Government Department or branch thereof; or
(v) compels, incites, induces or encourages any other person employed in or in connection with the carrying on of that service to surrender or depart from his employment (whether or not such other person does so surrender of depart in consequence); or
(vi) prevents any other person from offering or accepting employment in or in connection with the carrying on of that service; or
(b) any person who, by any physical act or by any speech or writing incites, induces or encourages any other person to commit any act specified in Sub-paragraph (a) of this paragraph (whether or not such other person commits in consequence any act so specified), shall be guilty of an offence under … these regulations.
45. (1) If any person contravenes or fails to comply with any emergency regulation, or any order or rule made under any such regulation or any direction given or requirement imposed under any such regulation, he shall be guilty of an offence, and subject to any special provisions contained in such regulation, shall on conviction after trial before the High Court without a jury or before a Magistrate, be liable to rigorous imprisonment [with hard labour] for a term not less than three months and not exceeding five years …
(2) Where no punishment is prescribed in any emergency regulation for an offence under that regulation a person guilty of such offence shall, on conviction after trial without a jury before the High Court or before a Magistrate, be liable to the same punishment as that specified in paragraph (1) of this regulation.
Sri Lanka’s Penal Code (2006) provides:
Any person who –
(b) subjects or causes any person to be subjected to forced or compulsory labour;
shall be guilty of an offence.
“forced or compulsory labour” means all work or service which is exacted from a person under the threat of any penalty and for which such person has not offered himself voluntarily, except –
(a) any work or service exacted by virtue of any law for the time being relating to compulsory military service in relation to work or service of a purely military character;
(b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a punishment imposed by a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to be or placed, at the disposal of private individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic of epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population;
(e) minor services of a kind which, being performed by the members of the community in the direct interests of the said community, and thereby considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.
In 2008, in its combined third and fourth periodic reports to the Committee on the Rights of the Child, Sri Lanka stated:
Legislation was passed in a number of areas to strengthen children’s rights and enhance their protection. These included the following:
(c) The Penal Code (Amendment) Act No. 16 of 2006 strengthened the law against child trafficking … The new section 358A has criminalized outstanding worst forms of child labour as stipulated in the International Labour Organization (ILO)  Convention [on the Worst Forms of Child Labour] No. 182: [including] forced or compulsory labour.
In 2011, in its Humanitarian Operation Factual Analysis July 2006–May 2009, Sri Lanka’s Ministry of Defence stated:
184. The Humanitarian Operation that commenced in Mavil Aru, converted itself to a civilian rescue mission in the last phases of the war as the civilians were forcibly held against their will by the LTTE [Liberation Tigers of Tamil Eelam], in the areas of Putumattalan, Karayamullivaikkal and Vellamullivaikkal, where geographical location (between the lagoon and the sea) made it difficult to create safe passages for the civilians to cross over to the liberated areas.
187. … During this period, there was a considerable increase in the atrocities committed by the LTTE against the incarcerated civilian population, i.e.
… forced labour … and forced construction of large earth bunds by civilians coerced by armed guards.
The Ministry of Defence further stated: “On 18 May 2009, Sri Lanka defeated the LTTE, bringing to an end three decades of conflict and suffering.”
Sri Lanka’s Geneva Conventions Act (2006) includes the following grave breach as an indictable offence: “compelling a protected person to serve in the forces of a hostile Power”.