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August 1, 2004

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Child Labour

Gaps in the existing legislation and weak enforcement mechanism

Sheikh Hafizur Rahman Karzon

Children constitute very significant part of a society and their future, if we say the least perhaps, is inextricably related to the future of a country. Vulnerable socio-economic situation of a country touches the condition of children extremely. Particularly poor family cannot provide their children with all basic necessities. Poverty compels the children to go outside for livelihood and subjects them to economic exploitation and other abuses. They require protective legislations and their proper implementation by effective state mechanism. Socio-economic anomalies, side by side with legislation, should be addressed to ameliorate the overall condition of children.

Child Rights and International Initiatives
The concept that children possess rights and are entitled to special benefits has been fortified in international legal arena. Children got a prominent face in international law by a number of declarations and conventions. In 1924 the Fifth Assembly of the League of Nations adopted the Declaration of the Rights of Child, which was the first international document to recognise the right of the child to work. The Declaration of the Rights of the Child, 1959 granted a series of benefits and entitlements and provided that every child shall be protected from all forms of neglect, cruelty, and exploitation. The rights granted in the 1959 Declaration were reaffirmed in the International Covenant on Economic, Social, and Cultural Rights adopted by the UN General Assembly in 1966. The UN Convention on the Rights of the Child (CRC) was adopted in 1989 and it is a comprehensive document, which covered major aspects of children's rights.
United Nations has hitherto laid down various standards for the protection of working children, but International Labour Organisation (ILO) has declared crusade against the practice and growth of child labour since its inception in 1919. ILO has adopted a number of conventions, supplemented by Recommendations that set standards for the employment of children in certain occupations. In course of time ILO has taken the international programme on the Elimination of Child Labour (IPEC), which was started to prevent and eliminate child labour worldwide. In 1999 the ILO adopted the Worst Forms of Child Labour Convention (No. 182) along with Recommendation on the Worst Forms of Child Labour (No.190).

Gaps in Existing Labour Legislation On WFCL
All the laws relating to child labour were enacted many years back. Those laws, on the one hand, have not been updated to cope with the changing needs and new laws are yet to be promulgated for protecting children working in formal and informal sector on the other.
On the basis of the nature of occupation different ILO Conventions set different age standards for admission to work. The same trend has been reflected in the existing laws, which have defined child varyingly.
Existing laws of Bangladesh have not followed a consistent pattern in defining a child. The Mines Act, 1923, the Children (Pledging of Labour) Act, 1933, and the Employment of Children Act, 1938 define a child as a person who has not completed his fifteenth year. The Tea Plantation Ordinance, 1962, and the Shops and Establishment Act, 1965 define a child as a person who is under 12 years of age. The Factories Act, 1965 has defined a child as a person who has not attained the age of 14 years. The Children Act, 1974 defines a child as a person who has not attained the age of 16 years.
On the basis of the nature of occupation different ILO Conventions set different age standards for admission to work. The same trend has been reflected in the existing laws, which have defined child varyingly. This variation creates confusion. Whether a person entitles to special protection and benefits that depends on whether s/he falls into the category of a child. If the definitions of a child were not consistent, it would be difficult to determine who are children, and who are not. The definition of child requires clarity and uniformity to promote the cause of children.
The Convention on WFCL identifies all forms of slavery and slavery-like practices as the first category of worst forms of child labour. It has been elaborated by a number of examples, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict. Among the existing laws only the Children (Pledging of Labour) Act, 1933 prohibits the pledging of the labour of children by way of an agreement. Persons involved in such agreement will be punished with a fine (fifty or two hundred taka) which is nominal and insufficient. Any law has not addressed the rest of the worst types of child labour elaborated by the first category.
The second category of worst form of child labour refers to the use, procuring or offering of a child for prostitution, for production of pornography or pornographic performances. Child prostitution is partly (thought not sufficiently) addressed by the Children Act, 1974, but there is no law to address child pornography.
The third category of worst form of child labour referes to the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drug as defined in the relevant international treaties. The Children Act, 1974 (Sections 34-47) covers the exposure of children to drug, and liquor, brothels, and seduction. But the penalties imposed by the Act are insufficient. The Suppression of the Women and Children Repression Act, 2000 (it is not a labour law) has covered trafficking, prostitution, and rape of child (Sections 5, 6, 7, and 32). It has provided death penalty, life imprisonment and monetary fine for the perpetrators.
The fourth category of worst form of child labour indicates any work, which is likely to harm the health, safety or morals of a child. The Mines Act, 1923, the Employment of Children Act, 1938, the Tea Plantation Ordinance, 1962, The Factories Act, 1965, and the Shops and Establishment Act, 1965 fall into this category. These laws have been enacted to prohibit the employment of children in certain occupations, which are likely to harm the health and safety of children.
Some of the existing laws relating to children have covered some worst forms of child labour. But they failed to address those types of child labour sufficiently, because the laws were enacted many years ago and those have not been updated. The penalties imposed by those laws are nominal and very much insufficient to penalise the law violators and to create any deterrence for potential violators.
Some types of worst child labour have not been addressed by any law. The gaps and insufficiency of existing labour legislations on WFCL are, therefore, evident from the anomalies revealed here. The old laws require to be updated and new laws to be enacted in line with ILO Convention to prohibit and eliminate the worst forms of child labour.

Effectiveness of present enforcement structure
For the effective regulation of child labour, enforcement of labour standard is important. Laws can give cluster of rights to children, may provide protective provisions for working children, but without any enforcement mechanism all those can be translated into a mock at the children. Difficulties of present enforcement structure are threefold:
-Difficulty in determining the age of a child.
- Difficulty in defining 'work' and 'labour'.
-Difficulty in determining the veracity of inspection report.
The absence of birth certificates is the reason because of which children remain inadequately protected by the laws. The law requires that the birth of every child to be registered compulsorily. But its practice is very rare in Bangladesh. Non-registration of birth makes it difficult to determine the actual age of a child with accuracy. For this reason children remain deprived of the benefits and protection of laws.
Second difficulty lies with defining 'work' or 'labour', because many children work in informal sector, which is totally outside the ambit of existing laws. Thousands of children are employed in lathe machine workshops, in selling flowers, carrying goods (Coolies), helping tempo drivers, in agricultural activities and brick-chipping. These types of works expose children to physical and psychological danger. But thousands of children, who work in informal sector to keep their flesh and bone together, are left without any legislative protection. Laws should be enacted to bring those children under the protective umbrella and help them in their struggle for survival.
In formal sector, employers may facilitate enforcement measures by maintaining a register of all working children. But maintenance of register is not enough, unless labour inspections have been effectively performed. Labour inspection mechanism provided by the existing laws is slack and insufficient giving rise to malpractice and corruption. Most of the existing laws provide standards for the employment of children and require regular inspection of the workplaces by inspector. There are provisions which require the employers to maintain register and record of working children and maintain child-friendly environment in the working place. But record and registers of working children are not properly maintained, medical facilities are unavailable, working environment is not convenient for children. Inspections are few and perfunctorily done. When inspection is made, the orderly nature of inspection report rouses the possibility of collusion between employer and inspector and preparing the report in the office room without going to the working place.
The law should provide strict penalties for the employers, who fail to maintain minimum standard in their workplace. The nominal fine and sentences provided by the existing laws are not sufficient to deter the employers from violating the law. Law should provide sufficient penalties and those should be implemented by effective state machinery, otherwise protection of working children will be sustaining the same fate as it is facing now.

Concluding Remark
Protective legislations and their proper implementation can safeguard the rights of working children. Sincerity and strictness of state forces can free children from worst forms of child labour. But complete elimination of child labour requires true socio-economic development of a country. The causes of child labour should be addressed by all possible means, which will help to stamp out the menace from the root.

Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, Dhaka University.

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