Tayyaba isn’t the first of her kind – and here’s why
“How can I hold that all men are created equal when here before me stands, stinking, the moral carcass of the gentleman from Ohio? Proof that some men are inferior, endowed by their maker with dim wits, impermeable to reason, with cold, pallid slime in their veins instead of hot, red blood! You are more reptile than man, George, so low and flat that the foot of man is incapable of crushing you”.
These words, it is commonly believed, were said by Thaddeus Stevens (Republican) to George Pendleton (a Democrat and ardent advocate of slavery) whilst he was delivering a speech in favour of the 13th Amendment (a constitutional amendment which abolished slavery in the United States in 1865) in Congress.
In Pakistan, every year for the thousands of children who are born, the lucky ones get opportunities in life to fulfill their dreams. However, for many, life is different and a constant struggle for survival, as acute financial constraints compel them to get employed as child labourers and support their families. Child labour exists in many forms e.g working automobile workshops, tuck shops and domestic servitude. Many of those who are engaged domestic servitude have lives which are no different from what slaves used to have in US before the 13th Amendment. They, like bonded labourers, are denied basic human rights, their movement is restricted, they are frequently subjected to severe beating and even torture on the most trivial mistakes.
The mindset of “George Pendleton” is deeply embedded in the moral fabric of our society. What’s dangerous is that this parochial and callous mindset has now penetrated into minds of those who are required by law to protect our constitutional rights and determine our legal liabilities.
A few days ago, our ever vigilant electronic media exposed the appalling incident of alleged torture on ten years old maid (Tayyaba) by the wife of Additional District and Session Judge (ADJS) Raja Khuram Ali, Islamabad. No sooner the issue started raising eye brows and receiving attention of the public, the the Chief Justice of Pakistan under Article 184(3) of the Constitution took Suo Moto notice of the incident and directed the Registrar, Islamabad High Court to submit a report within 24 hours. Perusal of the report submitted in the Supreme Court and other developments in relation to the said incident, in principle, must bow head of every sane mind in shame.
First: pursuant to the registration of FIR, the police raided the house of the accused Judge and recovered and produced Tayyaba before Assistant Commissioner (AC). The girl admitted before the AC that she was regularly subjected to abuse and torture by the wife of the accused judge and that she also burnt her hand on the stove as punishment for losing a broom.
Second: the next day wife of accused judge was granted pre-arrest bail from the court of another ADSJ in Islamabad. The challan report submitted before the trial court by the police was also incomplete.
Third: a lawyer on behalf of the parents filed a petition before another ADSJ for the custody of the child from the Women Crisis Centre. Within a few minutes (without proper inquiry, investigation and scrutiny), the said Judge passed an order in favour of the parents and handed the child to them.
Fourth: a lawyer submitted a compromise deed signed between the accused ADSJ, the parents and an aunt of the girl before another ADSJ, which was allowed by the said judge.
Fifth: after the settlement Tayyaba along with her alleged father inexplicably disappeared leaving police clueless about her whereabouts. However, due to active involvement of CJP, the girl was finally recovered from the outskirts of Islamabad.
Sixth: the medical examination of Tayyaba conducted at PIMS revealed that her body contains signs of torture, multiple injuries, blunt injuries, bruises on her face, and burn marks back on the left hand.
Lastly: the lawyer who represented Tayyaba’s parents in the custody petition, the lawyer who argued the bail petition of the wife of the accused ADSJ and the lawyer who filed the pardon affidavit, happens to be same Lawyer. When the CJP asked Tayyaba‘s alleged father, “Did you forgive the judge and his family”? He replied that he signed a paper with thumb impression on the instructions of the lawyer without knowing what was in it.
Tayyaba’s case is just a miniature version of the abominable child labour practices which are rampant in our society. Reports of children, employed in domestic servitude, being abused frequently surface on media, these reports are sufficient to assert with conviction the abuse of children in domestic service is a national predicament. It seems that the children are not only suffering at the hands of the feudal landlords but are also being exploited by those who call themselves educated, cultured and sophisticated.
The laws proscribing these detestable practices do exist but the problem lies with their implementation. Section 5 of the Bonded Labour System (Abolition) Act of 1992 (“Act”) stipulates that even a voluntary contract whereby any person is required to render services as a bonded labourer will be void and inoperative. Thus any agreement, whereby a person agrees to provide services without wage or for nominal wage, and such an agreement forfeits his freedom of movement, is void. Section 8 the Act forbids a creditor to accept any payment against a bonded debt and in case he does it will him liable to be punishable with imprisonment, which may extend to three years.
Article 11 of the Constitution prohibits all forms of forced labour (subject to the exception of compulsory service under punishment for an offence or for a public purpose under any law). Article 15 of the Constitution guarantees the freedom of movement and prohibits fetters on movement of any one. Thus, placing clogs on someone’s movement and consequently forcing him to work for settlement of a private debt would directly breach his fundamental rights guaranteed by Article 11 and 15 of the Constitution.
As per my humble understanding of law, apart from violating constitutional guarantees and a committing compoundable offence under Bonded Labour System Act 1992, actions of ASJ and his wife fall well within the ambit of offences defined under section 337-A, 337-B, 337-D, 339, 340, 341, 342 of Pakistan Penal Code. There is also need to inquire deep into the unacceptable roles played by the, Judge who allowed Tayyaba’s custody and admitted the pardon affidavit without reasonable inquiry, the lawyer who obstructed the process of court and violated the Legal Practitioners Code, the Investigation Officer who submitted an incomplete challan report in the trial court. Although I am not a die-hard optimist but due to keen and active involvement of the CJP in Tayyaba’s case, my hopes are high that the law will take its course and the culprits and their accomplices will be held accountable.
Our Constitution has a socialist nature – by virtue of Article 3 it obligates the state to eliminate all forms of exploitation, however, the practical manifestation of the said Article is yet to be seen. Tayyaba’s case also points towards the failure of the state in curbing poverty and economic disparities, instead of a welfare state (as envisaged by the Constitution) Pakistan has turned into sanctuary of capitalism where extreme level income inequalities are begetting other social evils. Child labourers are the product of abject poverty. Like Tayyaba, many children born into poverty are traded by their parents like commodities (slaves) and are thus left at the mercy of their masters. Her parents did what many others parents in Pakistan are forced by circumstance to do because the state has miserably failed to play the motherly role towards it subjects.