Federal Shariat Court, Syed Shabbir Hussain Kazmi and others v. Government of Pakistan and others, 10 October 2005
Reference to international law to strengthen a decision based on domestic law
Forced labour/ Wages /Qur’an/ Reference to international law to strengthen a decision based on domestic law
According to the constitutional rights granted by article 23 D of the Constitution of Pakistan, the claimants, owners of kilns used to manufacture bricks, lodged a complaint regarding various provisions of the Bonded Labour System (Abolition) Act, 1992 since they considered these provisions as being repugnant to the injunctions of the Quran and Sunnah. In the claimants’ view, the definitions "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" referred to practices existing within the Peshgi3 system predominant in the brick industry. The claimants argued that since such practices were not contrary to Islam, they could not be defined as illegal by a law. The claimants also called for the abolition of the Jamadari system4 to be declared contrary to the Qur’an, since it was the only means available to brick kiln owners to keep watch over the performance of the workers with regard to the job of brick-making entrusted to them.
In the view of the Federal Shariat Court, the law as a whole was of vital importance, since it aimed to prevent and put an irreversible end to the institution of forced labour, not only in the brick industry but also in other sectors. The Court also found that the law was consistent with international legislation, in particular the Universal Declaration of Human Rights and ILO Convention No. 29.
“On 10th June, 1930 the General Conference of the International Labour Organization convened a conference at Geneva and adopted certain proposals to take the form of International Convention about Forced or Compulsory Labour. Pakistan ratified this Convention known as "29th Forced Labour Convention, 1930" on 23-12-1957. Two Articles of this convention are relevant in the context of the controversy involved in these cases. These are reproduced as under:
‘Article 4: 1) The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations. 2) Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member's ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member.
Article 5: 1) No concession granted to private individuals, companies or associations shall involve any form of forced or compulsory labour for the production or the collection of products which such private individuals, companies or associations utilise or in which they trade. 2. Where concessions exist containing provisions involving such forced or compulsory labour, such provisions shall be rescinded as soon as possible, in order to comply with Article 1 of this Convention.’”5
The Court went on to highlight that Islam has enshrined unequivocal respect for human rights. In this sense, the Court ruled that the definitions subject to the dispute did not violate any Islamic commandments; on the contrary, the definitions aimed to fulfil the ideals enshrined in the Qur’an and Sunnah related to the defence of human dignity in general and the protection of the fundamental rights of the working class in the society in particular. Finally, the Court stated that the law had done the right thing in abolishing the Peshgi and Jamadari systems, since these systems took advantage of the low level of education of workers in order to exploit them.
Based on the provisions of the Qur’an, Sunnah and ILO Convention No. 29, the Court concluded that the law on the abolition of forced labour did not constitute a breach of any Islamic commandment, and consequently the claimants’ case was dismissed.