By Anees Jillani
It is no secret that child labor exists on an extensive scale in Pakistan. Eight to ten million children in the age-group of five to 14 years are estimated to be working here. There is thus an acute need to do everything possible to eliminate the possibility of employing children as an available option. Laws to prohibit, and regulate, child labor are accordingly important.
Article 11 (3) of Pakistan’s Constitution prohibits employment of children below the age of 14 years in any factory or mine or any other hazardous employment. The terms “factory”, and “mine” are not defined in the Constitution but are defined in the general Acts governing these establishments. However “hazardous employment” is not defined under any law in Pakistan.
A “factory” is defined under the Factories Act 1934 to mean “any premises, .. whereon ten or more workers are working,.. and in any part of which a manufacturing process is being carried on.” Thus if an establishment employs less than ten workers then it would not be considered a “factory” for purposes of this Act; and it can employ children unless not covered by another law.
The Mines Act 1923, however, has no such restriction.
The Shops & Establishments Ordinance 1969 prohibits employment of a below 14 years old child in any establishment. The term “establishment” is defined under this law to mean a shop, commercial establishment, industrial establishment, private dispensary, maternity home, hotel, restaurant, cinema, theater, circus, or other place of public entertainment; other establishments could be added by the Provincial Government to this definition through notification in the official Gazette.
The Merchant Shipping Act 1923 states that no child below 14 years of age be engaged or carried to sea to work in any capacity in any ship registered in Pakistan; or in any foreign ship except in a school, or training ship; or in a ship in which all persons employed are members of one family; or in a home-trade ship of a burden not exceeding 300 tons; or where the child is employed on nominal wages and is in the charge of his father or other adult near male relative. As can be seen from the provisions of this Act, there are several loopholes in this Act that can enable an employer to employ child labor.
Probably the only law in Pakistan that presently prohibits employment of children below the age of 18 years is the Road Transport Workers Ordinance 1961 which governs the conditions of employment of road transport workers. For employment of drivers, the minimum age is fixed at 21 years.
The Employment of Children Act 1991 (“ECA”) repealed the Employment of Children Act 1938 but basically is similar to it. Some salient new features of this law are its stricter penalties; and supersession of its definition of child over that contained in the Factories Act; the Mines Act and the Shops & Establishments Ordinance. In case of the former two, it has been to the detriment of children as the age has been lowered from 15 to 14 years.
ECA’s section 2 (iii) defines a `child’ to mean “a person who has not completed his fourteenth year of age.” Its section 3 then states that:
“No child shall be employed or permitted to work in any of the occupation set forth in Part I of the Schedule or in any workshop wherein any of the processes set forth in Part II of that Schedule is carried on:
Provided that nothing in this section shall apply to any establishment wherein such process is carried on by the occupier with the help of his family or to any school established, assisted or recognized by Government.”
The occupations listed in Schedule’s Part I are outdated; as a matter of fact, the list has been copied from the Employment of Children Act 1938 the law which the ECA repealed. PART II of the Schedule is again a reproduction of the 1938 law but it at least covers areas in which children are still employed in large numbers. The Federal Government is empowered to add any occupation or process to the Schedule but it has so far not found the time to add any in the Schedule. Or perhaps it seriously and sincerely believes that there is no child labor problem in the country.
The proviso cited in the above Section 3 is also exploited by employers as they can always use the defense that the child laborer is only assisting his family in the establishment. The fact that a school established, assisted or recognized by Government is exempted from ECA is also absurd as this gives an impression that children employed by the Government somehow are not children.
All establishments not listed in the Schedule of the ECA are covered by its Part III. This Part regulates working childrens’ hours and periods of work; weekly holidays; and health and safety. It also grants the concerned Governments the authority to prescribe by rules the maximum hours a child below the age of 18 years can be required or permitted to work in any specific establishment. Such hours have yet to be prescribed for any establishment.
The ECA, however, has set a general maximum ceiling of hours for all establishments. Thus the total daily hours cannot exceed seven hours, inclusive of the interval for rest, and the time spent in waiting for work on any day. It is obligatory for all employers to give every child an interval of at least one hour for rest after he or she has worked for more than three hours. In addition such a child cannot work between 7 p.m. and 8 a.m.; and cannot work overtime. He or she also cannot work in an establishment on a day on which he or she had already been working in another establishment.
Every under-14 working child is also required to be given a whole day of holiday every week. This requirement implies that if an establishment is not covered by another law requiring a similar holiday, then children above the age of 14 may be refused such a weekly day of rest as this ECA provision only covers children below the age of 14 years.
One of the major criticism of ECA is that it legitimizes child labor. Any Government basically has three options with regard to child labor. Either it ignores it, or it bans it altogether, or it regulates it like any other labor. The Government of Pakistan as well as the Provincial Governments till to date have basically been ignoring it but laws like the ECA at least exist on the statute books that give child labor a legitimacy which is non-existent in the Developed world. There is almost a universal ban on child labor in most of the countries in the world the nations in the South Asia being an exception.
Child labor in certain occupations, however, has remained prohibited in both India and Pakistan since 1938 when the Employment of Children Act was introduced by the British. Both countries have now replaced this law by their own legislations but have failed to expand the list contained in the 1938 law. As a result employment of children in sectors other than those mentioned in the schedules to these laws is legal and legitimate. Regularizing the hours of employment of these working children gives legitimacy by the State to their employment. Isn’t it about time that State Advisors and functionaries instead of devoting all their energies to sending their daughters and sons to Western institutions first find time to take concrete steps to abolish child labor from Pakistan?