Constitution prohibits forced or bonded labor; including children- illustrate and explain.
This essay focuses on forced labor which occurs when all work or service which is exacted from any person under the menace of any penalty and for which they said person has not offered himself voluntarily. A crucial challenge is therefore to identify the circumstances exactly which practices constitute forced labor it is necessary to consider the circumstances of the enslavement. The circumstances, in which the degree of restriction of the individual’s inherent right to freedom of movement, the degree of control of the individual’s personal belongings, the existence of informed consent and a full understanding of the nature of the relationship between the parties. Furthermore, in some cases states that have agreed to the definitions of compulsory labor set forth by the conventions may be endorsing circumstances that enslave individuals within their jurisdiction- thus enforcing the abolitionist conventions becomes difficult and controversial. Prison systems, for example, are state sanctioned and often provide cheap (if not free) labor for corporations – all legal by the laws of some states. Although forced labor has been universally condemned by the international community since the 1930s, it remains widespread. Bangladeshi Constitution prohibits forced or bonded labor, including by children; however, the Government did not enforce this prohibition effectively.
Labor law, human rights law and criminal law all contain standards relevant to forced labor. This section summarizes the most important instruments: the ILO forced labor conventions; the UN slavery conventions; the UN Trafficking Protocol; and the statutes of the ICTY and the International Criminal Court (ICC). The Forced Labor Convention, 1930 (No. 29). Bangladesh being a member of the International Labor Organization ratifies this Convention and undertakes to suppress the use of forced or compulsory labor in all its forms within the shortest possible period.
Under the provisions of ILO and human rights treaties, the prohibition on forced labor is considered an obligation of States, but within the human rights context, freedom from compulsion to work is also viewed as a right of the individual. Thus, the International Covenant on Civil and Political Rights (Article 8) provides that “No one shall be required to perform forced or compulsory labor.”
The Factories Act and Shops and Establishments Act established inspection mechanisms to enforce laws against forced labor, but these laws were not enforced rigorously, partly because resources for enforcement were scarce. There was no bonded or forced labor in large-scale enterprises; nevertheless, numerous domestic servants, including many children, worked in conditions that resembled servitude and many suffered physical abuse, sometimes resulting in death. There continued to be numerous reports of violence against domestic workers. In the past, the Government brought criminal charges against employers who abused domestic servants. Many impoverished families settled instead for financial compensation. Trafficking of women and children was a problem (see Sections 5 and 6.f.).
THE DIVERSE PATTERN OF FORCED LABOR
After reviewing the historical background of the prohibition of forced labor, experts takes a closer look at its main forms as they exist today:
§ Slavery: A “physical abduction” followed by forced labor.
§ Compulsory participation in public works projects: People are required by law to work on public construction projects such as roads and bridges.
§ Forced labor in agriculture and remote rural areas (coercive recruitment systems): Workers see all their wages go to paying for transportation, food and shelter because they’ve been “locked into debt” by unscrupulous job recruiters and landowners – and they can’t leave because of force, threats or the remote location of the worksites.
§ Domestic workers in forced labor situations: Maids and other domestic servants are sold to their employers or bonded to them by debts.
§ Bonded labor: Another form of debt bondage, it often starts with the worker agreeing to provide labor in exchange for a loan, but quickly develops into bondage as the employer adds more and more “debt” to the bargain.
§ Forced labor imposed by the military: Civilians are forced to do work for government authorities or the military. Like in Myanmar.
§ Prison labor and rehabilitation: The contracting out of prison labor or forcing of prisoners to work for profit-making enterprises.
§ Forced labor in the trafficking persons: Individuals are forced or tricked into going somewhere by someone who will profit from selling them or forcing them to work against their will, most often in sexual trades. Many countries are both “origins” and “destinations” for victims.
Certain groups — such as women, ethnic or racial minorities, migrants, children, and above all the poor — are particularly vulnerable to these contemporary forms of forced labor. Situations of armed conflict can also compound the problem. Some patterns of forced labor will probably lend themselves more readily than others to ILO technical cooperation. This underscores the need for complementary work by a range of institutions and actors to address the policy failure that forced labor represents.
THE LEGAL & CONSTITUTIONAL FRAMEWORK
Bangladeshi legislation covers various aspects of trafficking in persons. While the Bangladeshi Penal Code does not directly address trafficking in persons, it does criminalize various aspects of trafficking, such as: forced labor, kidnapping or abduction, or the buying/selling of a minor girl for purposes of prostitution. The Government of Bangladesh directly addressed the trafficking of women and children with the enactment of the Prevention of Oppression against Women Act in 2000—providing more stringent penalties than the Penal Code.
Article 34 of the Constitution of the People’s Republic of Bangladesh addresses one aspect of human trafficking: “[a]ll forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.”3
Bangladesh’s Penal Code, (Act No. XLV of 1860), contains several sections, namely sections 359-374, which both criminalize and provide for the punishment of offenses related to kidnapping, abduction, slavery, and forced labor.4There is a vast disparity in punishments for such crimes, ranging from the payment of a fine to death. For example, the penalty for committing the crime of forced labor under the Penal Code is: “imprisonment of either description for a term which may extend to one year, or with fine, or with both.”5 This is a relatively lenient penalty as the perpetrator may get off with only having to pay a fine for forcing an individual to perform labor—seemingly undermining the importance of forced labor being the one aspect of human trafficking explicitly mentioned and prohibited by the Constitution.
When it comes to the kidnapping or abduction of a minor under the age of ten with the intent to subject such an individual to “slavery or to the lust of any person,” the perpetrator of such an act under section 364A of the Penal Code faces a maximum punishment of death and a minimum punishment of seven years of rigorous imprisonment. If someone other than a minor under the age of ten is involved, the maximum penalty of such a crime under section 369 of the Penal Code is imprisonment of ten years and a fine.
The kidnapping or abduction of a person from Bangladesh or lawful guardianship is a punishable offense under section 363 of the Penal Code, with a maximum punishment of seven years imprisonment and a fine.6Section 365 of the Penal code provides the same punishment for the kidnapping or abduction of a person “with intent to cause that person to be secretly and wrongfully confined.”
The Penal Code also addresses the prostitution of a minor by providing for a maximum punishment of ten years and a fine for either inducing a minor with the knowledge that she may be “forced or seduced to illicit intercourse,”8 or the buying or selling of a minor with the “purpose of prostitution of illicit intercourse.”9 Section 366A of the Penal code provides that “[w]hoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with the intent that such a girl may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to 10 years and shall also be liable to fine.”10
Bangladeshi legislation also contains the Suppression of Immoral Traffic Act of 1933, 11 which focuses on the suppression of brothels and trafficking of both women and girls. This act, under section 10, clause 1, provides a punishment for the importation of a female for the purpose of prostitution of either imprisonment for three years, a fine, or both, and if a male is the perpetrator then he is also liable for a whipping.12
The law that is currently most widely used in the context of human trafficking in Bangladesh is the Prevention of Oppression against Women and Children Act, (Act VIII of 2000), enacted in 2000 and amended as recently as 2003.13This Act deals with the trafficking of women and children for prostitution and other “immoral purposes.”14More stringent penalties are available for such offenses than what are provided for by other enacted legislation.15 For example, the punishment for either the trafficking of a woman, whether for the purpose of prostitution or other immoral acts, or keeping a woman in one’s possession for the purpose of “torturing her in rent or otherwise” is either death or rigorous imprisonment for a range of 10 to 20 years accompanied by a fine.16The punishment for the trafficking of a child ranges from “death or rigorous transportation for life and also a fine.”17
People affected by forced labor should be seen as workers, active players in the labor market, rather than passive victims. Workers that are vulnerable to forced labor should be empowered to act and supported by institutions through which they can claim their rights by lodging complaints. Besides, a labor market regulation approach needs to be embedded into responses and any regulations that create situations contributing to exploitation, such as the tying of work permits to a particular employer, reviewed. Finally, those who inspect workplaces should be empowered: Labor inspection should be extended and the mandate should include investigation and prosecution of forced labor. This should also include the extension of the remit of the Gang masters Licensing Authority and its mandate to prosecute forced labor.
1. Const. of the People’s Republic of Bangladesh, art. 34, § 1 (1972), available at http://bdlaws.minlaw.gov.bd/pdf_part.php?act_name=&vol=XV&id=367 (select “34. Prohibition of forced labor” hyperlink).
2. Penal Code, Act No. XLV of 1860, §§ 359-374 (1860), available at http://bdlaws.minlaw.gov.bd/pdf_part.php?id=11 (select relevant section number hyperlink) (Bangl.).
3. Id. § 374 (select “374. Unlawful compulsory labor” hyperlink).
4. Id. § 364A (select “364A. Kidnapping or abducting a person under the age of ten” hyperlink).
5. Id. § 367 (“select “367. Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc” hyperlink).
6. Id. § 363 (“select “363. Punishment for kidnapping” hyperlink).
7. Id. § 365 (select “365. Kidnapping or abducting with intent secretly and wrongfully to confine person” hyperlink).
8. Id. § 366A (select “366A. Procuration of minor girl” hyperlink).
9. Id. §§ 372-373 (select “372. Selling minor for purposes of prostitution, etc.” and “373. Buying minor for purposes of prostitution, etc.” hyperlinks).
10. Id. § 366A.
11. Suppression of Immoral Traffic Act, Act No. VI of 1933, (1933), available at http://bdlaws.minlaw.gov.bd/pdf_part.php?act_name=&vol=&id=159.
12. Id. § 10, cl. 1, (follow “10. Punishment of importing a female for prostitution” hyperlink).
13. Despite best efforts to obtain an official copy of the Prevention of Oppression against Women and Children Act of 2000, we were unable to obtain a current copy as of December 14, 2010. A link to an online but unverified version, accessed on December 14, 2010 is therefore provided. Harv. Sch. of Pub. Health, The Parliament of Bangladesh (Feb. 14, 2000), available at http://www.hsph.harvard.edu/population/trafficking/bangladesh.traf.00.pdf.
14. Harv. Sch. of Pub. Health, supra note 15; see also U.N. Office on Drugs & Crime & U.N. Global Initiative to Fight Human Trafficking, Global Report on Trafficking in Persons, at 192 (Feb. 2009), available at http://www.unodc.org/documents/human-trafficking/Global_Report_on_TIP.pdf.
15. See U.N. Asia & Far E. Instit. for the Prevention of Crime & Treatment of Offenders [UNAFEI], Resource Material Series No. 70: Protection of Victims of Crime and Victims of Abuse of Power: The Legal System in Bangladesh vis-à-vis the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power – An Overview, at 131 (Nov. 2006), available at http://www.unafei.or.jp/english/pdf/RS_No70/No70_00All.pdf (prepared by Sujayet Ullah).