Legal Essay by Malaika Ijaz
Legal Essay by Malaika Ijaz
ABUSE
51-FSL/LLB5Y/S20
2021
2 Ending child labour in domestic work and protecting young workers from abusive working conditions
3 CHILD DOMESTIC LABOUR IN PAKISTAN: OVERVIEW, ISSUES AND TESTABLE HYPOTHESIS
for working slowly or for doing a task badly or to be kept compliant for making mistakes. Girl
domestic labourers are at risk of sexual harassment and rape not only by the male members of
employer’s household but also by male visitors. Studies have shown that many child domestic
labourers are victims of physical and sexual abuse. Children may be abused or tortured, and not
only by the adult members11 of the family but by children in the family who see cruelty as a valid
relationship with ‘inferior’ members of the household, or by other domestic helpers trying to
impose a hierarchy even among those being exploited12 However it is a testable premise that
compared to resident child worker, the degree of exploitation, psychological costs and abuse to the
child is expected to be less as the child returns to his/her own home after 8-10 hours at the
workplace. If she/he accompanies her/his parent to the workplace, an implicit monitoring by the
parent may reduce the degree of all the above kinds of abuses. The degree of abuse is also a
function of the literacy level of the employer and as the literacy levels specially in urban areas
increase, it may come down towards the non-resident child domestic worker.
Right to Education
While not independently sufficient, education for children is the best medicine against child
domestic labour and child labour generally. The correlation between education and child labour is
most starkly shown by the fact that in Pakistan, a country with one of the highest population of
child workers, nearly six million children aged 5-9 remained out of school.29 The right to
education must be an integral part of the lawmaking initiative. Provisions on education must be
informed by the relevant international conventions. This right should be examined thoughtfully
and creatively to establish innovative non-discriminating laws and policies.
The Right to Health
A child’s access to health care should not be subordinated in the case of a child who works. Since
the right to health is affected in myriad ways when children are engaged in work in their own or
other people’s homes, the child who works needs special attention to his or her health.
The Right to Be Protected Against Exploitation
Trafficking, forced labour and slavery, sexual exploitation, involuntary servitude and prostitution
are all considered the worst forms of child labour. At the same time, the fact that few regulations
govern conditions of domestic work has resulted in exploitation and ultimately forced labour.
Child workers are on call all the time and are expected to be available at all times. In most
countries, very few regulations govern the world of domestic work. Even when regulations apply,
discriminatory laws exempting domestic workers from normal work hours may exist. Exceptions
to overtime and holiday pay also frequently apply to domestic workers. Domestic workers are
frequently exempted from the standard number of rest days available to other workers. In Haiti,
the minimum age for employment as it relates to child domestic workers is often lower that the
minimum age of employment in labour code. Poor work conditions and neglect often contribute
to the exploitation of the child worker both at home and in a third party’s home. Exploitative
working conditions include fetching water from streams and wells; chopping firewood; using
heavy or dangerous equipment, all of which pose a threat to the safety of the child.
A menu of legal laws, policies and interventions
In a manner similar to theoretical discussion, wherein the child domestic labour is subsumed in
child labour category, the legal framework in many countries including Pakistan, do not contain
separate specific laws for discouraging and regulating child domestic labour in the economy.
Although below mentioned legislations and action plans on child labour, do not include any clause
specifically on child domestic labour and they have often been excluded from the national
minimum age for work legislation, usually because of the difficulties in implementing, but the
reality is that the vast majority of children in domestic labour would find a place in one or more of
these categories, either because of the nature of the work they are required to perform, the treatment
they receive or the means by which they entered into the situation in which they find themselves.
It is important to understand the individual contexts in which domestic service occurs. The
Constitution of Pakistan 1973 prohibits employment of children of 14 years and younger in
factories, mines and other hazardous occupations. This provides a protection of children of
younger age to enter domestic service as well. The Employment of Children Act of 1991 and the
Bonded Labour System (Abolition) Act of 1992 aim to protect children from all forms of
exploitation including bondage. Implementation of such laws can also be effective in reducing the
debt bondage in domestic service. National Action Plan to Combat Child Labour emphasizes the
elimination of child labor in all sectors, eradication of worst form of child labor and ensuring
primary education18. This is a very useful strategy if its implementation can be strictly monitored
on a continuous basis.
In the framework of the Minimum Age Convention 138 and the Worst Forms of Child Labour
Convention 18219 the ILO recognizes three categories of child labour that must be abolished:
• All work done by children under the minimum legal age for that type of work, as defined by
national legislation in accordance with international standards
• Work that endangers the health, safety and morals of a child, either because of the nature of the
work or because of the conditions under which it is performed
• Unconditional worst forms of child labour, defined as slavery, trafficking, bonded labour, forced
recruitment into armed conflict, prostitution, pornography or illegal activities such as the sale and
trafficking of drugs.
Three conventions, Convention 138, the UN Convention on the Rights of the Child, and
Convention 182, form the basis for the protection of child domestic labour. The conditions set
forth in the three conventions are based on the effect of the work or activity on the child and the
child’s development. The work should not be hazardous or harmful to the child’s health or
physical, mental, moral, or social development. In addition, for children of primary-school age,
the work or activity should not interfere with the child’s education. Development planning for the
girl child is lagging behind due to ambiguity on the age definition of the girl child. The CRC
defines a child as one below 18 years, the Majority Act in Pakistan defines those below 18 as
minors but in laws dealing with child labour, anyone below the age of 15 is defined as a child.
Finally in some criminal matters (specifically sex-related crimes), females are defined as being
adult at puberty. The contradiction in definitions of adulthood under different laws denies the girl
child the rights available to a boy of the same age.
Challenges of Protecting the Rights of Child Domestic Workers
Articles 32 and 36 of the Convention on the Rights of the Child (CRC) United Nations Convention
on the Rights of the Child (1989) stipulate that children should be protected from work that is
dangerous or harmful to their health, education, welfare and development. Additionally, article 4
states that governments have a responsibility to take all available measures to make sure children’s
rights are respected, protected and fulfilled (UNICEF, 2009, pp. 79-80). More so, article 26 of the
United Nations Convention on the Rights of the Child (1989) stipulates that children have the right
to help from the government through social protection if they are poor or in need. In this regard,
the best interests of the child must be the primary concern in making policies, programmes, laws
or decisions that may affect children’s psychosocial needs and development. However, the results
of the current study revealed that the Zambian government and civil society organisations are faced
with challenges in their quest to protect children from child domestic work that is harmful to their
health, education, welfare, adequate standard of living, psychosocial wellbeing and development.
Financial support as well as skills training should be given to parents or guardians whose children
are engaged in domestic work so that they can be self-reliant and lead sustained livelihoods.
Relevant International Provisions
Although the CRC does not provide details as to the conditions and limitations of the hours of
child domestic labour, Article 32 places state parties under a duty to provide for appropriate hours
and conditions of work and to provide for penalties and sanctions when necessary. Article 32 (1)
enshrines a general provision of the right of the child to be protected from economic exploitation.
Under Article 32 (2)(c), if a state party has excluded a particular economic sector from outside the
scope of Convention No. 138, it will still be obliged to provide for penalties and other sanctions
for the economic exploitation under the CRC. Article 11 of the CEDAW guarantees the right to
equal remuneration, including benefits and to equal treatment in respect of work of equal value, as
well as equality of treatment in the evaluation of the quality of work. ILO Recommendation No.
146 Paragraph 12(1) recommends that the conditions under which those under the age of 18 are
employed should be supervised and maintained at a satisfactory standard.4
4 IMPACT OF CHILD DOMESTIC LABOUR ON CHILD POVERTY : A CASE STUDY OF LUSAKA CITY IN ZAMBIA Patrick
Chanda, M.Sc. University of Zambia,
“For so long we have suffered in silence. We need to put an end to this exploitation
and abuse.” (Joyce, 17 years, female, child domestic worker, The Philippines)
Recommendations
1. Developing statistical visibility and further enhancing knowledge on child domestic work
2. Awareness-raising and advocacy: Challenging assumptions that child domestic workers are
“like one of the family”
3. Promoting the ratification and implementation of Convention No. 138 and Convention
No. 182 on child labour and Convention No. 189 concerning decent work for domestic
workers
4. Taking legislative and policy action to end child labour and to protect young workers in
domestic work
5. Paying attention to child migrants vulnerability to abusive working conditions in domestic
work
6. Formalizing the employment relationship in domestic work
7. Enhancing the role of the social partners and extending freedom of association and effective
recognition of the right to collective bargaining in domestic work
8. Providing support to child domestic workers against child labour and for decent youth
employment
9. Supporting the worldwide movement against child labour
10. Better together: joining forces to promote decent work for all
Conclusion
Continued poverty; illiteracy and ignorance of poor parents; increase in population; inadequate
family income; large families; indebtedness; absence of social security schemes; and lack of strict
enforcement of the provisions for compulsory education; migration from rural areas to urban areas;
the cheap costs of child domestic labour all contribute to child domestic labour. Further, families
plagued by dysfunction, abandonment, violence, alcohol, drug abuse can push children early into
work. Economic transition both in and outside the home can contribute to the rise in child domestic
labour. When adults are struck by life threatening diseases like HIV/AIDS children are forced to
carry the burden of extra household work and or go out to work. Poverty is both causative and
consequential to the problem of child domestic labour. Child workers can perpetuate poverty
because child domestic labourers, deprived of education or healthy physical development, are
likely to become adults with low earning capacity. Poverty is most often intertwined with gender
inequalities. Not only are women more vulnerable to poverty, but in families where males occupy
dominant roles, gender defined roles carry low expectations for girls and women.
In conclusion, gender inequality is the thread that intertwines most of the major causes of child
domestic work and drives more girls than boys to work as domestic workers. Discrimination
against children occurs not only when there is discrimination between children and adults but
between different groups of children. Children and families living in rural communities, and
especially girl children, may have less access to essential resources which may drive them into
domestic work. That is why an anti-discrimination perspective is critical to the examination of
child domestic labour.