BONDED LABOUR

By By

Zafarullah KhanZafarullah Khan Barrister-at-Law Barrister-at-Law

Civil Services Academy LahoreCivil Services Academy Lahore

Sequence

Philosophical Basis Situational Analysis Darshan Masih Case 1992 Law FSC Judgment Court’s Behaviour Recommendations

Freedom as Virtue

Freedom is a cardinal virtue Islamic: Omar Modern Civilization: Rousseau Iqbal

Bandagi mein ghut kay rahe jaati hay ek jooey e 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

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

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

Issue of Forced Labour

Rated as most serious violations of rights of a human beings

Forced labour (bonded labour) equated to slavery and slavery like practices

One of earliest human rights issues tackled by ILO with specific instruments

UN REGIME ON FORCED LABOUR

UDHR Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms

ICCPR -Article 8: No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited

• No one shall be held in servitude• No one shall be required to perform forced or

compulsory labour

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

Forced Labour Convention, (C No. 29) 1930

Forced or compulsory labour means: ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’.

Features

BL system shall stand abolished Every BL shall stand freed and discharged No person shall make advance or compel

any person to render any BL Any custom, tradition, practice, contract,

or other instrument for BL shall be void and inoperative

Features

Liability to repay bonded debt extinguished No suit or other proceeding• Decree for recovery of bonded debt shall be

deemed satisfied • Property shall be restoredo 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• If compels BL , shall not be less than two

years but not more than five years, or with fine which shall not be less than fifty thousand rupees, or with both

• 1 year if property is not restored• All directors/managers etc liable

Procedure

Magistrate First Class Summary trial provision Offence Cognizable Bailable

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

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

Points of Petitioners

• Definitions challenged• Liability to pay debt extinguished• Sale, transfer, charge etc illegal• Peshgi is based on lawful agreement:

pacta sund servanda SC considered in light of FR, not Islam

Judgment

It is beneficial statute to curb and to put to irreversible end BL

FR: life and liberty:9; safeguards to arrest and detention:10; 11; dignity of man: 14; freedom of movement: 15; freedom of profession: 18;

Quote articles 4, 5 of C 29 and UNDHR

Islam:

Rightful dues: hadith Subordinates like brother: hadith Who wrongs with servants, will not enter paradise Employer has to give even if labourer does not know

or ask rights Work but no legitimate wags is slavery: Asqalani on

Hadith Peshgi leads to exploitation as ad infinitem, no

writing, vague system Contract terms for job and wages be determined

General Observations

Objective of Act could not be achieved so far:

No vigilance committee formedFactories Acts 1934 applies to BK

Courts’ Behaviour

Punjab Session Court : Year wise Disposal

2000 2 cases 2001 3 cases

2002 22 cases 2003 38 cases 2004 56 cases 2005 66 cases * ( average)Increase due to amendment in 491 CrPC

Punjab Sessions Courts: Relief Wise

143 cases decided set at liberty in 123: 87% 6 were dismissed: 2 had technical problems: 4%. 12 were declared bogus: 8% cases; no action taken

Punjab: Sessions

Relief Disposal Session CourtTotal : 143

87%

8%

1%

1%

3%

set at libertyBogus petitionsDismissed-non prosecutionOthersDismissed-with drawn

High Court Lahore

2003: 137 cases 2004: 171 cases 2005: approximately 80 sharp decline due to Sessions powers

LHC: Relief wise

66% cases, set at liberty 18% cases, dismissal due to ‘not pressed’,

‘non prosecution’ or ‘withdrawal’ by the petitioner

LHC: Relief wise

Relief Wise Disposal (Lahore High Court) Total : 322

66%

2%

7%

7%

6%

5%

5%

2%

Not Recovered

Orders To Police

Not Pressed- Dismissed

Miscellaneous

Dismissed, Non-Prosecution

Bogus Petition

Dismissed as withdrawn

Set As Liberty

Sessions Judge Peshawar

Joint statement of respondents 1 and 2 recorded. According to them, the detenues are working with them as labourers. They are free where they want to go and they will not create hurdles in their way provided they pay the amount outstanding against them.

Detenues present in court also affirmed the said fact and undertaken that they will pay the outstanding amount due against each individual.

In view of the above situation, I direct Irshadullah, Baillif, to go to the spot and submit his report by releasing the detenues from the clutches of the respondents after payment of money due against them.

Laws Not Known

S 339-347 PPC : illegal restraint, confinement

374 PPC on unlawful compulsory labour S.100 CrPC: Search for person wrongfully

confined S. 552 CrPC: Power to compel restoration

of abducted females

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

What ought to be Done?

Review, amending laws: SC in Enayat Masih Case Formulation of comprehensive provincial strategies

to eradicate this scourge: Fund utilization/provincial funds Sensitization, capacity building of all implementing

officials at all levels: police Proper Prosecution of violators Pro-activity Instructions by the courts Supervision of subordinate courts

THANK YOU