BONDED LABOUR By Barrister Zafarullah Khan Sequence a

BONDED LABOUR By Barrister Zafarullah Khan

Sequence a. b. c. d. e. f. g. h. i. Philosophical Basis Situational Analysis International Law National Law Sind Tenancy Laws FSC Judgment Court’s Behaviour Consequences of ignoring the issue Recommendations

a. Philosophical Basis

Freedom as Virtue l l 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 l l l 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 jurisdiction Nothing 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: l Peace and Security l Development l 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 l l l 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 l l l 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 l l • 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 l 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 l l l 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: l For political coercion/ education l for economic development l As a means of labour discipline l As a punishment for strikes l As a means of any discrimination

Significance of ILO Conventions l l l 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 • • • Article 184(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 l l 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 l l l 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 l l l 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 l • o No suit or other proceeding Decree for recovery of bonded debt shall be deemed satisfied Every attachment for recovery of any bonded debt shall stand vacated

Features o l l 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 l l 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 l l Magistrate First Class Summary trial Cognizable Bailable

Vigilance Committees l l 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 l l l advise DA on matters relating to effective implementation of law help in rehabilitation of freed BL provide assistance to BL

Establishment Of Fund shall be utilized for : l training institutes for freed BL l legal and financial assistance to BL l 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 l l Go. S, ADB 2000 REPORT: 1. 7 M HARIS THATHA, DADU, BADIN, MPK, OK Hindus Most debt bondage SHC, 10 -1 -2002 l l 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 l l 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 l. It is Islamic l. Objective of Act could not be achieved so far: daily reports of detentions l l No vigilance committee formed Factories Acts 1934 applies to BK

h. Consequences the issue of ignoring

Consequences of Ignoring § l l 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? l l l 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