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BONDED LABOUR

BONDED LABOUR. By Zafarullah Khan Barrister-at-Law Civil 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

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BONDED LABOUR

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  1. BONDED LABOUR By Zafarullah Khan Barrister-at-Law Civil Services Academy Lahore

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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. Constitution 1973 ARTICLE 11(2) All forms of forced labour are prohibited

  10. 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.

  11. 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’.

  12. 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

  13. 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

  14. 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

  15. 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

  16. Forced Labour Convention, (C No. 29) 1930 Forced or compulsory labourmeans: ‘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’.

  17. 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

  18. 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 restored • Every attachment for recovery of any bonded debt shall stand vacated

  19. Features • 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

  20. 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

  21. 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

  22. Procedure • Magistrate First Class • Summary trial provision • Offence Cognizable • Bailable

  23. 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

  24. UNHCR Sub-Commission: May 2002 • 1992 Act to override all laws • Amend 1950 ST Act Amended 22-9-2002

  25. 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

  26. 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

  27. 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

  28. 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

  29. General Observations • Objective of Act could not be achieved so far: • No vigilance committee formed • Factories Acts 1934 applies to BK

  30. Courts’ Behaviour

  31. 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

  32. 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

  33. Punjab: Sessions

  34. High Court Lahore • 2003: 137 cases • 2004: 171 cases • 2005: approximately 80 • sharp decline due to Sessions powers

  35. LHC: Relief wise • 66% cases, set at liberty • 18% cases, dismissal due to ‘not pressed’, ‘non prosecution’ or ‘withdrawal’ by the petitioner

  36. LHC: Relief wise

  37. 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.

  38. 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

  39. 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

  40. 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

  41. THANK YOU

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