Daily Times

It is very distressing to note that domestic workers doing household work are subjected to work for long hours in miserable conditions along with maltreatment — a stark reality in our country.

The Article 3 of the Constitution of Pakistan 1973 states:

‘Elimination of exploitation — The State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work.’

The interpretation of Article 3 of the Constitution has been given by honourable chief justice Mr Saqib Nisar in a reported case PLD 2015 SC 401 in para 20 of his separate opinion in the following words:

‘The principles, from each according to his ability, to each according to his work is, of course, a fundamental principle of Marxism-Leninism. (In fact, this language has been copied out from Article 12 of the constitution of the USSR, as it then was which is of course based on the writings of Karl Marx)’.

It is lamentable that even after two years, the Punjab government has not made any effort to comply with the court’s order to introduce a Domestic Workers’ Rights Bill

So in the opinion of honourable chief Justice Mr Saqib Nisar, the concept of exploitation has a technical meaning as used in Karl Marx’s theoretical work on economics. It refers not to every form of exploitation but also that form of exploitation which the capitalist class engages in against the interest of working class.

In December 2015, the Honourable Lahore High Court gave its verdict that there must be legislative measures adopted by the government of Punjab for the protection of the rights of domestic workers in the domestic household. The judgement was enunciated by the honourable Justice Syed Mansoor Ali Shah and is reported as PLJ (Pakistan Law Journal) 2018 Lahore at page 224.Appearing as a counsel, I argued before the Honourable Lahore High Court that after the 18th amendment and the abolition of concurrent list, the subject of labour has been devolved to the provinces and therefore it is the provincial legislature which must adopt legislative as well as administrative measures regarding the notification of wages of domestic workers at par with workers in the industrial establishments doing work of a similar nature.

Another important aspect of the case was that the vires of Minimum Wages Act 1961 was challenged on the basis that the provisions of the said Act apply to the workers doing domestic work in the industrial establishments, but it does not apply to the workers doing work of a similar nature in domestic households. When the Government of Punjab is notifying wages of workers doing domestic work in the industrial establishments then how come the wages of the domestic workers doing work of a similar nature in domestic households are not being notified.

The court also took cognisance of the Domestic Workers Convention 2011 which states that every state should notify the number of hours and wages and standardise the working conditions of the domestic workers. Unfortunately, the Government of Pakistan has not ratified the Domestic Workers Convention. An interesting question before the Honourable Lahore High Court was whether the said international convention has a binding nature despite not being ratified by the Government of Pakistan. Relying on the Supreme Court’s landmark judgment, PLD 2014 SC 305 (the famous missing persons’ case), the Court concluded that the international convention, although not ratified, can still be relied upon to meet the ends of justice.

At this juncture of proceedings, the provincial government gave an undertaking that it would initiate Domestic Workers Policy 2016 under which the wages of domestic workers would be notified. Moreover, it would take appropriate legislative as well as administrative measures to enforce the fundamental rights of the domestic workers. This is a major breakthrough because there are hundreds of thousands of domestic workers who are indulged into long working hours and are paid less than the workers doing work of a similar nature in industrial establishments. Years ago, a protest was also lodged by the Domestic Workers Union at Mall Road Lahore.

So this is a significant verdict by the Honourable Lahore High Court, because wages of domestic workers not being notified by the government, was against the dignity of domestic workers and was also in violation of Article 9 of the Constitution (which covers every aspect of life). Hence this petition in public interest has borne fruit and followed the principle laid down by the Supreme Court that international laws can be relied upon, even though not ratified, to meet the ends of justice. However, it is a lamentable fact that after the lapse of more than two years, the Punjab government has not made any strenuous effort to comply with the court’s order to introduce a Domestic Workers’ Rights Bill in the Punjab Assembly. The state must bear the fact that the power to regulate implies a power to foster, protect, control and restrain as observed by the learned US Chief Justice Hughes in a landmark case National Labour Relations Board vs Jones.

In my view, the only conflict in this world is of class conflict, apart from the conflict between states. Recently it has been witnessed that workers-class (proletariat) has launched massive protests in France against the liberalist agenda of French president Emmanuel Macaron. The gap amongst rich and poor has widened, and such demonstrations can have spill-over effects in entire Europe. It must not be forgotten that in France this is not the first time that such protests are taking place by the workers’ union. In 1789, it was the working class that brought a revolution against the despotic rule of King Louis XVI and Queen Marie Antoinette. In 1968, the same working class and strong labour unions revolted against the rule of Charles De Gaulle. It is pertinent to note that after the end of second world war, to counter the communist regime’s planned economic systems, the west European countries framed pro-poor economic welfare policies for the working class so not to face any rebellion. However, after the economic recession in 2008, the European states had undergone through the severe economic downturn and ultimately had to face economic slowdown and rising unemployment levels. With the drastic cut in economic productivity, the working class (proletariat) had to face wage-cuts which are resulting in rising tension, fuelling xenophobia and anti-immigration fervour across Europe, at present.

The writer is a human rights activist, a constitutional lawyer and a teacher; Email: sheraz.zaka@gmail.com

Published in Daily Times, April 11^th 2018.