BONDED LABOUR By Barrister Zafarullah Khan

BONDED LABOUR

By By

Barrister Zafarullah KhanBarrister Zafarullah Khan

Sequence

a. Philosophical Basis

b. Situational Analysis

c. International Law

d. National Law

e. Sind Tenancy Laws

f. FSC Judgment

g. Court’s Behaviour

h. Consequences of ignoring the issue

i. Recommendations

a. Philosophical Basis

Freedom as Virtue

Is Freedom a virtue? Islamic perspective: Omar Modern Civilization: Rousseau Iqbal

Bandagi mein ghut kay rahe jaati hay ek jooeye kam aab

Aour aazadi mein behr e beikaraan hay zindagi

Centrality of Human Rights

Post WWII Scenario Determination to prevent gross violations Universal Declaration of Human Rights 1948 Conventions Such as ICCPR, ICESCR, CAT,

CEDAW, ICC Consistency of domestic laws with

internationally agreed standards is an obligation

Domestic Jurisdiction?

• UN Charter: A (2); domestic jurisdictionNothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state

• No more ‘domestic jurisdiction’• ‘Responsibility to Protect’ is being used to

justify actions against states with bad HR record

Centrality Of Human Rights

Three pillars of IR:Peace and Security Development Human Rights

‘We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for HR SG UN Larger Freedom Report

b. Situational Analysis

Forced Labour in Pakistan

Ranges from 6-8 million: PILER Includes millions of children Main industries, brick kilns, share

croppers, carpet, glass factories, mines, leather, scavenging, domestic work

c. International Law

Issue of Forced Labour

Rated as most serious violations of HR Forced labour (bonded labour) equated to

slavery and slavery like practices One of earliest human rights issues tackled

by ILO specific instruments UN and ILO are involved

UN Regime on Bonded Labour

UDHR- 4: No one shall be held in slavery or servitude; prohibited in all forms

ICCPR -8: ditto• No one shall be required to perform

forced or compulsory labour

Slavery Convention 1926

Ratified by Pakistan on 30 September 1955

Defined Slavery as:– the status or condition of a person over

whom any or all of the powers attaching to the right of ownership are exercised

– Prohibits slavery

ILO Regime on Forced Labour

Two main Conventions– C 29 of 1930, ratified by 161 countries,

Pakistan (23-12-1957)– C 105 of 1957, ratified by 158 countries,

Pakistan (15-2- 1960)

Convention 29 Article 2 defines forced labour “all work or

service …exacted … under the menace of any penalty and for which the said person has not offered himself voluntarily”

Requires states parties to suppress the use of forced or compulsory labour in all its forms within the shortest possible period

Illegal extraction of forced labour shall be a penal offense (Article 25)

Convention 105

Member state to suppress and not to make use of any form of forced or compulsory labour:For political coercion/ educationfor economic developmentAs a means of labour disciplineAs a punishment for strikes As a means of any discrimination

Significance of ILO Conventions

Legally binding No space for reservations Monitoring procedure Monitoring is tri-partite and detailed Non-implementation can lead to serious

consequences Only international sanctions imposing

mechanism other than UN SC

d. National Law

Constitution 1973

ARTICLE 11(2)

All forms of forced labour are prohibited

Darshan Masih Case

Telegram: 30 July 1988

‘We plead for protection and bread for our family. we are brick kiln bonded labour. We have been set at liberty through the court and now three amongst us have been abducted by our owners. Our children and women are living in danger. We have filed complaint. No action taken.

We are hiding like animals without protection or food. We are afraid and hungry. Please help us. We can be contacted through counsel. Our state can be inspected. We want to live like human beings. The law gives no protection to us’.

Features Of Case

• Article184(3): (i) enforcement of Fundamental Rights (ii) public importance

• Public Interest Litigation• Article 9, 11, 14, 18, 25

PLD 1990 SC 513

Bonded Labour System (Abolition) Act 1992

Preamble

Article 11 (2) prohibits all forms of forced labour

to preventing economic and physical exploitation of labour class

Definition Of BL

System of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered into an agreement with creditor to the effect that

• in consideration of an advance or in pursuance of any customary or social obligation, or for any economic consideration received by debtor

Continued

would render, by himself, or through any member of his family, labour or service to creditor either without wages or for nominal wages; or

would forfeit freedom of employment or adopting other means of livelihood, or

forfeit right to appropriate or sell at market any of property or product

Features

BL system shall stand abolished Every BL shall stand freed No person shall make advance Any custom, tradition, practice, contract,

or other instrument for BL shall be void and inoperative

Liability to repay bonded debt extinguished

Features

No suit or other proceeding• Decree for recovery of bonded debt shall be

deemed satisfied o Every attachment for recovery of any bonded

debt shall stand vacated

Features

o Any sale, transfer or assignment of any property of a bonded labourer for recovery of bonded debt shall not be deemed to have created or transferred

Mortgage, charge, lien or other encumbrance for bonded debt shall stand discharged

Non Obstante Law

District Magistrate’s Role

DM shall try to promote welfare of freed bonded labourer

Mobilize Govt-NGOs to bring out cases To urge academic and vocation training To persuade philanthropists, SWO etc to

rehabilitate

Penalty

• 3 years imprisonment and fine• All directors/managers etc liable

Procedure

Magistrate First Class Summary trial Cognizable Bailable

Vigilance Committees

Vigilance Committees at District level Consisting, of representatives of area,

District Administration, Bar, press, recognized Social Services and Labour‑Departments of Federal and Provincial Government

Functions of VCs

advise DA on matters relating to effective implementation of law

help in rehabilitation of freed BL provide assistance to BL

Establishment Of Fund

Fund shall be utilized for :-training institutes for freed BLlegal and financial assistance to BL Rehabilitation, welfare of freed BL

Status of 1992 Act

• Rules 1995• VC Not formed• No meetings• Devolution: DM, new actors• Funds not utilized• No prosecution

e. Sind Tenancy Law

Sindh Tenancy Laws

GoS, ADB 2000 REPORT: 1.7 M HARIS THATHA, DADU, BADIN, MPK, OK Hindus Most debt bondage

SHC, 10-1-2002 94 Taqavi Loans petitions dismissed S 25 Sindh Tenancy Ac 1950

UNHCR Sub-Commission: May 2002

– 1992 Act to override all laws– Amend 1950 ST Act

Amended 22-9-2002

f. FSC Judgment

FSC on Bonded Labour

8 Shariat petition in 1992 and 1993 challenging Islamicity Act 1992

203 D: Jurisdiction to declare a law repugnant to the Quran and Sunnah

FSC Judgment on 10-10-2005

General Observations

It is IslamicObjective of Act could not be

achieved so far: daily reports of detentions

No vigilance committee formed Factories Acts 1934 applies to BK

h. Consequences of ignoring the issue

Consequences of Ignoring

Source of misery and suffering to millions of hardworking human beings

Brings bad name to country and religion Can trigger international sanctions Policies of donors and trade partners

influenced: e.g. GSP Buyers demands

i. Recommendations

What ought to be Done?

Review, amending laws: SC in Enayat Masih Case

Formulation of comprehensive national strategies to eradicate this scourge

Fund? Sensitization, capacity building of all

implementing officials at all levels Proper Prosecution of violators

Thanks