Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the Government's reports covering the periods from 1 July 1992 to 30 June 1993 and from 1 July 1993 to 30 June 1994, as well as supplementary material received in November 1995 from the Government "on the latest development in tackling the problem of child/bonded labour".

The Committee also has noted the observations on the application of the Convention made by the All Pakistan Federation of Trade Unions in a communication dated 13 October 1994, which was transmitted for comments to the Government on 11 November 1994. The Government has not replied to these observations.

I. Child labour under the Forced Labour Convention

2. In its previous observations, the Committee referred in some detail to the problems of bonded labour and of children in bondage. In the supplementary material received in November 1995, the Government, addressing the extent of the problem of bonded child labour, indicates that: "There is a large difference between child labour and bonded child labour. The problem of child labour does exist in Pakistan but to a limited extent. This problem is both visible as well as invisible. The visible child labour is present mostly in small industrial units, workshops, restaurants, etc. The invisible child labour possibly exists as family helpers in home-based industries and agriculture sector. The cases of bonded child labour also are not visible."

3. The Committee takes due note of these indications. Before considering further the question of visibility as a key issue in dealing with the problem of bonded labour, the Committee wishes to dwell, from a more conceptual angle, on the difference between child labour and bonded child labour for the purposes of the Convention.

4. Forced labour, bonded labour, children in bondage. Under the Convention, the Government has undertaken to suppress the use of forced or compulsory labour, which is defined in Article 2(1) as "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." Bonded labour, as defined in section 2(e) of the Bonded Labour System (Abolition) Act, No. III of 1992 of Pakistan, is but one form of forced labour coming under Article 2(1) of the Convention. Bonded child labour is an intrinsic and typical part of the bonded labour system, as recognized in section 2(e) of the Act, which refers to labour imposed on any family member of, or dependant on, the "debtor" or presumed debtor. Bonded labour, including children in bondage, will be further considered in Part II below.

5. Child labour other than bonded labour. For forms of child labour other than bonded labour, the question arises, with regard to Article 2(1) of the Convention, whether, and if so, under what circumstances a minor can be considered to have offered himself "voluntarily" for work or service, whether or when the consent of the parents is needed or even sufficient in this regard, and what are the sanctions for refusal. In this connection, it should also be borne in mind that, in regulating recourse to compulsory labour during a transitional period following the entry into force of the Convention (1 May 1932), the Conference specifically excluded in Article 11 the call-up of any persons below the age of 18.

6. In its reports on the application of the Convention and the supplementary material on the latest developments, the Government has forwarded information on a range of activities and programmes related to child labour, including the signing of a Memorandum of Understanding with the ILO in June 1994 to eliminate child labour from the country and the launching of 14 IPEC (International Programme for the Elimination of Child Labour) action programmes; the setting up of a "National Committee on the Rights of the Child" and "Special Child Labour Cells" in the Ministry of Labour, Manpower and Overseas Pakistanis and in the Labour Departments of the provincial governments; and the conducting of nearly 3,000 inspections during the past year, resulting in prosecutions in about 1,000 cases, under the Employment of Children Act, 1991, which prohibits the employment of persons who have not completed 14 years of age in a limited range of occupations (related to railways, ports and the sale of fireworks) and in 14 listed work processes (including manufacturing processes using toxic metals and substances), except in family undertakings or government-recognized schools. The Act is enforceable by imprisonment or fine. The Committee observes that the Factories Act 1934, as amended 1977, had already prohibited more generally the work of children who have not completed their 14th year in any factory where ten or more persons are working or any mine, but no enforcement data have been given for that Act.

7. The Committee notes from the "Consolidated position of implementation of the Employment of Children Act, 1991, and the Bonded Labour System (Abolition) Act, 1992" received from the Government in November 1995, that under the Employment of Children Act, 1991, in Punjab 1,351 inspections led to 699 prosecutions with, provisionally, 48 convictions; in Sindh, 407 inspections were followed by 47 prosecutions with no convictions so far reported; in the North-West Frontier Province, through 1,576 inspections 270 irregularities were detected, 16 cases were decided; in Baluchistan, measures concerning 1,921 children below 14 years working in different establishments are about to be taken. The Committee appreciates the Government's efforts to remove children from a range of the more dangerous or harmful occupations. But in the absence of further details about the cases referred to by the Government, which were raised under the Employment of Children Act, 1991, the Committee is not in a position to evaluate their bearing on the implementation of the Forced Labour Convention, nor what remains to be done to protect children more generally from the exploitation of their labour. It would, however, clearly appear to the Committee that efforts so far undertaken in practice have not come to grips with the problem of children in bondage, nor indeed with bonded labour as such.

II. Bonded labour

8. Magnitude of the problem. In earlier comments, the Committee noted allegations brought before the United Nations that 20 million persons worked as bonded labourers, 7 million of which were children. The Committee noted the Government's indication that these figures were unrealistic, an appreciation shared by the All Pakistan Federation of Trade Unions. While comparing the alleged numbers with statistical data concerning the labour force and total population of Pakistan, the Government has not put forth any figures of its own concerning the numbers of bonded labourers. However, the Committee notes from the country paper submitted by the Government to the Asian Regional Seminar on Children in Bondage (Islamabad, November 1992) that in Pakistan child labour mostly persists because of poverty, lack of public awareness, lack of education facilities and parents' debt bondage. In areas where parents (being peasants/labourers) are forced to provide labour services to landlords/employers, their children are frequently trapped in debt bondage. Often, the parents are given a loan to meet some urgent needs. The debtor has then to repay by working. In practice, the debt does not decrease; it climbs even upwards. The whole family becomes permanently enslaved and the money-lender claims repayment from succeeding generations. Thus children are usually pledged as workers in part payment of debt. Children can also be enslaved on their own. Parents may send them to work in the houses of a landlord or moneylender. These children may stay for many years, not knowing how long they must work, or even the size of the debt they are paying off. The Committee further notes the observation by the All Pakistan Federation of Trade Unions in its communication dated 13 October 1994 that persons are subjected to forced labour under the bonded labour system in rural and less developed areas by the feudal lords but also in some coal mines and brick kilns.

9. Fact-finding and law enforcement practice. In its reports for 1992-94 on the application of the Convention, the Government indicates that only one case of bonded labour was found, in the Punjab Province, and that the management was stated to have been prosecuted. In the "Consolidated position of the implementation of the Employment of Children Act, 1991, and the Bonded Labour System (Abolition) Act, 1992", received from the Government in November 1995 and already referred to in paragraph 7 above, the numbers of inspections, prosecutions and convictions given for the Bonded Labour System (Abolition) Act, 1992, are all nil for each of the four provinces. It is stated by way of explanation that reports furnished by district magistrates from Baluchistan show no instance of bonded labour in the province and that vigilance committees headed by the deputy commissioners in the districts of NWFP and Sindh have detected no case of bonded labour; for Punjab, it is explained that in accordance with section 15 of the Act, vigilance committees have been formed in almost all the districts of Punjab, that the Act mainly envisages an advisory and supervisory role for the vigilance committees, and "that it is a matter of general observation that aggrieved persons do not approach the vigilance committees but instead they prefer to invoke the jurisdiction of the High Court for prompt relief".

10. Visibility and perception of the problem. In its statement noted in paragraph 2 above, the Government, assessing the extent of the problem of bonded child labour, has pointed out that the cases of bonded child labour are not visible. Lack of visibility or of perception appears to be more generally a difficulty in dealing with the problem of bonded labour, a difficulty not so far overcome by established machinery except in the singular case where bonded labourers were able to organize and on their own initiative invoke the jurisdiction of the High Court.

11. The role of district magistrates and vigilance committees. The Committee recalls that under section 9 of the Bonded Labour System (Abolition) Act, 1992, the provincial government may confer such powers and impose such duties on a district magistrate as may be necessary to ensure that the provisions of this Act are properly carried out; furthermore, under section 15 of the Act, vigilance committees to be set up at the district level are not only to advise the district administration on matters relating to the effective implementation of the law, but also to ensure its implementation in a proper manner and to provide the bonded labourers such assistance as may be necessary to achieve the objectives of the law. It would not appear that this has so far been done.

12. Trade union observations. The Committee recalls the observations on the application of the Convention made by the All Pakistan Federation of United Trade Unions in a communication dated 31 December 1993 which was transmitted to the Government for comments on 21 January 1994. In its observations, the Federation, referring to the composition of the vigilance committees, stated that the feudals of the country had a strong hold over the administrative machinery, which was always used for the protection of the bonded labour system, and whenever any effort was made to eliminate this system, it was strongly resisted. The Federation requested that representation of the trade unions - not so far envisaged by the Act - be made compulsory in the vigilance committees. The Committee notes that the Government has not replied to these observations.

13. Action to be taken. The Committee hopes that the necessary measures will now be taken to ensure the effective enforcement of the Bonded Labour System (Abolition) Act, 1992, as regards the identification, release and rehabilitation of bonded labourers as well as the strict punishment of offenders, including, as provided for under section 14 of the Act and section 107 of the Penal Code, the punishment of any public officer or other person who, by any act, illegal omission or wilful concealment of a material fact which he is bound to disclose, voluntarily aids or procures an offence to be committed under the Act. The Committee requests the Government to supply full details on the action taken to this effect, on any measures taken or envisaged to include representatives of trade unions and employers' associations in the machinery, as well as representatives of the National Human Rights Commission and any other non-governmental organizations engaged in the task of assisting the bonded labourers, and on the results obtained, including the numbers of bonded labourers identified, freed and rehabilitated, and details concerning the prosecution, conviction and punishment of offenders.

III. Restrictions on termination of employment

14. The Committee has been commenting for a considerable number of years on the provisions of the Pakistan Essential Services (Maintenance) Act, 1952, rendering punishable with imprisonment of up to one year a person in employment of whatever nature under the federal Government who terminates his employment without the consent of his employer, notwithstanding any express or implied term in his contract providing for termination with notice. These provisions may be extended to other classes of employment (sections 2, 3(1)(b) and explanation 2, section 7(1); section 3). Similar provisions are contained in the West Pakistan Essential Services (Maintenance) Act, 1958, as in force in Baluchistan and the North-West Frontier Province, and in the corresponding Punjab and Sindh Essential Services (Maintenance) Acts of 1958.

15. The Government has repeatedly indicated its intention to amend the provisions of the Pakistan Essential Services (Maintenance) Act so that an employee may terminate his employment in accordance with the express or implied terms of his contract. In its latest report, the Government states that the Act is made applicable temporarily to essential employments only for the purpose of securing the defence or security of the country and for the maintenance of supplies and services, essential to the life of the community. While the right of association in such cases remains intact, only strikes and lockouts are prohibited because the Government feels that if essential services are disrupted, the life of the community as a whole will be in danger. However, in all circumstances, the workers' right to resort to "an appropriate forum (NIRC) for redressal of their grievances" is available to them. The Government adds that the list of essential employments covered under the law is minimum. The Government has adopted the policy of constant review and check of this list. It has also deliberated to amend the provisions of this law in order to enable an employee to terminate his employment in accordance with expressed or implied terms of employment, but reiterates that the application of this law to some industries is inevitable in view of the sensitivity of their employments. Moreover, this has been done because national interest demands suitable checks and balances in these cases. The Government nevertheless has decided that the law in question should not in future be extended to any industry unless it is fully warranted and justified. However, the possibility for employees covered by the Essential Services (Maintenance) Act, 1952, to unilaterally terminate their employment and the exclusion of some of the establishments from the application of the Act have been considered by the tripartite Task Force on Labour, which submitted its report to the Cabinet in the light of the views expressed by the workers' and employers' groups. The Cabinet constituted a Cabinet Committee to further examine the report, and the ILO will be informed of developments in the matter.

16. The Committee has taken due note of these various explanations. As regards the Government's repeated statement that the Act is made applicable temporarily to essential employments only, the Committee is bound to point out once more that the Essential Services Acts apply permanently to all employment of whatever nature under the federal Government, and to all employment under a provincial government or any agency set up by it or a local authority or any service relating to transport or civil defence; in addition, they may be applied, by notification of a provincial government, to employment in any educational autonomous body, and by notification of the federal Government for specified and renewable periods of six months each to other employment or classes of employment which the Government considers essential.

17. As regards the Government's indication that the right of association remains intact and only strikes and lockouts are prohibited, the Committee, referring also to point 4 of its observation on Pakistan under the Abolition of Forced Labour Convention, 1957 (No. 105), must once again point out that even in truly essential services, whose interruption might endanger the life, personal safety or health of persons, the freedom of individual workers to terminate their employment by giving notice of reasonable length remains an inalienable right; under the federal and provincial Essential Services Acts, this right is being denied to a far wider group of employees.

18. As regards the Government's indication that the possibility of restoring the right of employees covered by the Essential Services (Maintenance) Act, 1952, to unilaterally terminate their employment is being further examined by a Cabinet Committee on the basis of a report by the tripartite Task Force on Labour, the Committee also notes the observation by the All Pakistan Federation of Trade Unions, in its communication dated 13 October 1994, that these laws are required to be abolished in the light of Conventions Nos. 105 and 29, ratified by Pakistan. Recalling that the Essential Services Acts have been the subject of comments for a great number of years under the Convention, ratified by Pakistan in 1957, and that the Government had assured the Conference Committee in 1989 that the Government had already decided to meet the requirements of the Convention by amending the 1952 Act, and that the proposed amendment was to be submitted to the National Assembly, the Committee trusts that this will now be done, that similar action will be taken for the corresponding provincial Acts, and that the Government will report on the provisions adopted to this end.