Observación (CEACR) - Adopción: 1991, Publicación: 78ª reunión CIT (1991)

The Committee notes that no report has been received from the Government. The Committee has however taken note of the discussion that took place in the Conference Committee in 1990 on the application of the Convention by Pakistan.

Bonded labour. 1. In its previous comments the Committee referred to the alleged use of bonded labour by contractors known as "Kharkars" in the construction of dams and irrigation canals and noted in the Report to the Government of Pakistan submitted by an ILO Sectoral Review Mission (July-August 1986) a reference to the employment of illegally bonded children in "Kharkar" camps working at night in irrigation tunnels in remote rural areas. Recalling the Government's statement to the Conference Committee in 1987 that the Prime Minister's Five-Point Programme was committed to the complete elimination of all types of exploitation of labour, such as forced labour, the Committee had requested the Government to supply detailed information on the actual measures taken or envisaged in this regard.

The Commmittee noted that in his statement to the Conference Commmittee in 1989 the Government representative denied the existence of any "Kharkar" camp as well as the existence of any bonded labour in the country. Similarly, in its report on the Convention received in March 1990, the Government stated that no "Kharkar" camps are in the knowledge of the Government and no child labour is allowed to exist; in order to dispel apprehension in this regard the Government indicated that it proposed to introduce a law in the Parliament whereby exploitation of labour in all its forms, including bonded labour, would be an offence punishable under the law and that the draft Bill on abolition of bonded labour was under preparation.

The Committee notes the information provided by the Government to the Conference Committee in 1990 that it has decided to abolish bonded labour through a law which would ensure complete freedom of bonded labourers. The proposed law had been approved by Cabinet and was soon expected to be enacted. Under this law, bonded labourers would be freed from any obligation to render any labour; the law would make void and inoperative all customs, traditions, practices, contracts or agreements obliging bonded labourers or their families, whether they were entered into or in operation before or after its entering into force. Under the law, every obligation of the bonded labourer to repay any bonded debt or part thereof would be extinguished and unenforceable. Those who violated the law would be punished with substantial fines and penal sanctions. Bonded labourers working after the commencement of the law would be paid at the prescribed rates and application of the law would be monitored by local vigilance committees.

The Committee notes these indications with interest. It hopes that the Government will provide information on action taken in this regard.

2. The Committee recalls that it noted the discussion in the Working Group on Contemporary Forms of Slavery of the United Nations Subcommission on Prevention of Discrimination and Protection of Minorities at its 14th Session which took place in August 1989. The Committee noted that the Report of the Working Group (doc. E/CN.4/Sub.2/1989/39 of 28 August 1989) referred to information provided by Anti-Slavery International concerning child labour related to debt bondage in the South Asian countries. This information is set out in the report of the South Asian Seminar on Child Servitude held in June-July 1989 and attended by representatives of non-governmental organisations from five countries. Referring to Pakistan, the report indicated that large-scale exploitation of bonded labourers was to be found in brick-making, carpet weaving, fish cleaning and packing, shoemaking, bidi making, auto-repair, agriculture, mining, quarrying and stone-crushing industries.

In a further report on the practice of bonded labour in Pakistan submitted to the Working Group, a representative of Anti-Slavery International referred to the brick-kiln labourers who are considered bonded labourers in an order of the Supreme Court of Pakistan of 18 September 1988. The representative, President of the Bhatta Mazdoor Mahaz (Brick Kiln Labourers' Front) and of the Bonded Labour Liberation Front of Pakistan created after the adoption of the Supreme Court Order, estimated that about 20 million people, among them 7.5 million children, fell in the category of "bonded labourers", of which 2 million families alone were working at the brick kilns as virtual slaves. The majority of these people did not exist in the government records, either in the census - hence no right to vote, or in the national registration - hence no identity cards. A child born in a family of "Bhatta Mazdoor" (brick kiln labourers) was forced to start working before he learned to play. His meagre work might help his family to repay the "Peshgi" (advance bonded money) which his father and forefathers had allegedly received from the Bhatta owner for their survival. Even a woman in her pregnancy and maternity period was bound to work to clear the "Peshgi". But the system was so devised that in spite of his best efforts the labourer was unable to clear the "Peshgi", which kept on increasing. To recover the "Peshgi" the Bhatta owner got forced labour from the entire family, paying them only a nominal amount of money as subsistence allowance, which kept the labourer and his family alive on a subhuman level. If a labourer demanded his full wages or desired to quit the job, the owner would give him a severe beating and torture, which might also extend to his wife and children. The abduction of womenfolk and putting the labourer in private confinement or implicating him in false criminal cases was not uncommon.

After the Supreme Court Order of 18 September 1988 identifying "Bhatta Mazdoors" as bonded labourers, thousands of families left the Bhatta for areas of their liking in search of better employment. The liberty afforded to brick-kiln workers by the decision of the Supreme Court provided a ray of hope to other bonded labourers working in carpet, fisheries, stone crushing, shoe-making, power loom, paper picking, agriculture, etc., who joined the Brick Kiln Labourers' Front in forming the "Bonded Labour Liberation Front of Pakistan" (BLLFP). The BLLFP has established branches throughout the country and is making sustained efforts to solve the problems of bonded labour and to rehabilitate the workers with its meagre resources. Three thousand agricultural labourers, 1,000 stone crushers, 500 from the carpet industry and 500 from power looms, fisheries and the paper-picking industry had been released.

The BLLFP had already approached the Government for legislation to abolish the bonded labour system and to take immediate measures for the rehabilitation of bonded labourers.

The Committee also noted that during the discussion in the United Nations Working Group on Contemporary Forms of Slavery, the observer for Pakistan, referring to the existence of bonded labour in his country, declared that the Government was fully aware of these social ills and determined to root them out. He underlined the strong commitment by the Government to eliminate bonded labour in all its forms and stated that forced labour or "Kharkari" would not be allowed. He stressed that Pakistan was bound to conform to international labour standards and underlined that under article 11 of the Constitution slavery and all forms of forced labour and traffic in human beings are prohibited as is child labour under the age of 14 years in any factory or mine or any other hazardous employment; the illegal hiring of child labour is punishable with strict penalties under the Children (Pledging of Labour) Act, 1933 and the Employment of Children Act No. 26 of 1988. In cases of violation of the Constitution and the laws of the country the aggrieved had access to the judiciary, as shown in the Supreme Court of Pakistan judgement of 18 September 1988 on bonded labour in the brick-kiln industry.

The Committee also took note of three decisions made by the Supreme Court of Pakistan on the Constitution Case No. 1 of 1988 (in the matter of enforcement of fundamental rights regarding bonded labour in the brick kiln industry): the Order dated 18 September 1988 which was not final, the interim Order of 23 November 1988 and the Final Bench Order of 22 March 1989. These provide, inter alia, the following:

(i) Peshgi. The peshgi system (advance bonded money) is to be discontinued forthwith, except that up to one week's estimated wages may be paid by the owner to the worker as advance against proper receipt. Past unreturned peshgis given to the labourers by brick-kiln owners, for the time being shall not be treated as void and irrecoverable. Labourers are legally bound to return all such peshgis, and the owners are authorised to recover the same by legal means but not through coercive methods or use of police. A maximum of Rs.5,000 per household granted to labourers by the owners in the past in the form of formal loans or grants for marriages, religious festivals, medical treatment and death ceremonies shall not be recoverable and shall be treated as donations; this concession shall only be available to those labourers who return and resume their work voluntarily. According to the Order dated 18 September 1988, the question whether recoveries of past peshgis would be abolished altogether and whether legislation should be made on the lines as done in India, was deferred for the time being for six months. This aspect was to be reviewed in the light of the working of the above arrangements.

(ii) Return to work. A notice/direction is to be issued to all the labourers to come for work and report to their respective Bhatta owners, who will give them assurances in writing that they will not use any coercive methods or police powers to bring them back or to retain them. However, in case a labourer does not want to come back or, having returned, wants to leave his work in the Bhatta of an existing owner, or to get a job elsewhere in the Bhatta of another owner, he shall not be retained forcibly provided he, on application to be made to the concerned District Judge/Civil Judge, gets a certificate for the purpose.

(iii) Payment of wages and exclusion of intermediaries. Payment of wages shall be made to the labourers on a daily/weekly/fortnightly/monthly basis as agreed upon; no deductions are to be made for damage/losses to bricks caused on account of rain; the existing Jamadar/Jamadarni system is to cease forthwith, no payments on behalf of the labourers shall be made to them nor recoverable/adjustable. According to the Order dated 18 September 1988, the payment of wages was to be made in cash and a receipt issued in duplicate - one to be retained by each side.

(iv) Use of force against workers' family members. The owners shall not directly or indirectly ask or pressurise any labourer for employing women or children. However, if the workers do so at their own risk, no complaint shall be made against the Bhatta owners on their behalf. "The head of the household who employs any of their womenfolk against her wishes and/or children might in proper cases be proceeded against."

(v) Reporting. According to the Order dated 18 September 1988, every case registered anywhere in Punjab by the police, which deals directly or indirectly with any of the constituents of the practice of bonded labour in the brick-kiln industry was to be reported to the Advocate-General with a First Information Report (FIR) within 24 hours. The Advocate-General was to submit a photocopy of the FIR and other documents, if any, with his own comments, within a further 24 hours, to the Supreme Court.

The Committee expressed the hope that, further to the Supreme Court Orders on bonded labour in the brick-kiln industry, the necessary measures would be taken to eradicate forced and bonded labour in practice as well as in law both in the brick-kiln industry and in other spheres of activity, and that the Government would supply detailed indications on the action taken or envisaged to this end. In particular, the Committee requested information on the following:

(a) measures taken towards the adoption of legislation to abolish the recovery of past peshgis and, more generally, to eradicate the bonded labour system and to provide for the rehabilitation of bonded labourers both in the brick-kiln industry and elsewhere;

(b) the implementation of the Supreme Court Orders on bonded labour in the brick-kiln industry, including the following details:

(i) the application in practice of the requirement that workers wishing to leave their respective Bhatta owners must make an application to the District Judge/Civil Judge to get a certificate for the purpose, and the implications for the freedom of the workers concerned;

(ii) the situation in law and practice regarding the requirement, included in the Order of 18 September 1988 but omitted later, that wages be paid in cash and receipts issued in duplicate;

(iii) the situation in law and practice regarding the "proper cases" in which persons who employ women against their wishes and/or children are proceeded against;

(iv) enforcement measures, including copies of documents submitted to the Advocate-General and the Supreme Court in accordance with the reporting requirements laid down in the Order of 18 September 1988 but omitted later;

(c) details on subsequent follow-up action by the police, the Advocate-General, the courts and the labour inspection to enforce the prohibition of forced labour both in the brick-kiln industry and elsewhere, including copies of the latest reports of the Commission of Human Rights dealing with bonded labour.

The Committee hopes that the Government will provide the information in question.

Restrictions on termination of employment. 3. The Pakistan Essential Services (Maintenance) Act 1952 and the West Pakistan Essential Services (Maintenance) Act 1958, have been the subject of comments by the Committee and of discussions at the Conference Committee for a considerable number of years. Under sections 2, 3(1)(b) and explanation 2 and section 7(1) of the Pakistan Essential Services (Maintenance) Act, it is an offence punishable with imprisonment for up to one year for any person in employment of whatever nature under the central Government to terminate his employment without the consent of his employer, notwithstanding any express or implied term in his contract providing for termination by notice. Pursuant to section 3 of the same Act, these provisions may be extended to other classes of employment. Similar provisions are contained in the West Pakistan Act as regards persons in employment under the West Pakistan Government or any agency set up by it or a local authority or any service relating to transport or civil defence.

The Committee noted the Government's indication to the Conference Committee in 1989 that the Government had decided to meet the requirements of the Convention by amending the Pakistan Essential Services (Maintenance) Act, 1952, so that an employee of an establishment covered under the Act may terminate his employment in accordance with the express or implied terms of the contract of employment and that the proposed amendment was to be submitted to the National Assembly. The Committee noted the Government's indication in its report for the period ending June 1989 as well as to the Conference Committee in 1990 that the Act is being so amended.

The Committee firmly hopes that the necessary measures will soon be adopted to bring the Pakistan Essential Services (Maintenance) Act, 1952, as well as the West Pakistan Essential Services (Maintenance) Act, 1958, into conformity with the Convention, and that the Government will indicate the action taken.