Is the Human Trafficking Ordinance just another failed statute in Pakistan?

Published: August 1, 2015

Men claiming to be from Bangladesh react from inside a communal cell at Songkhla Immigration Detention Centre (IDC), where they are kept with some Myanmar Rohingya people also rescued from human traffickers near Thailand's border with Malaysia February 12, 2014. PHOTO: REUTERS

The situation of human rights in Pakistan as recorded by international rights organisations, bodies and agencies has always been grave and continues to exacerbate.

In similar news, Pakistan is on the Tier 2 Watch List of the US State Department’s Trafficking in Person report for a second consecutive year. The countries whose governments fail to comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards are placed on a tier, which is a clear indicator that there is apparently no political will to curb the menace of human trafficking.

According to International Labour Organisation’s (ILO) trafficking records, the profits from forced labour are estimated to be in the figure of $150 billion, with $99 billion from sexual exploitation alone. This human trafficking manifests itself in many disgusting forms such as children smuggled to the Middle East for camel jockeying, domestic servitude which can at times take form of bonded labour, prostitution, as drug-carrying mules in hands of drug cartels, organ-selling, kidnapping by militant groups to be used as spies and suicide bombers etc.

There are provisions in the Constitution of Pakistan which provide safeguards against slavery, trafficking and forced labour such as Article 11 of the Constitution which provides that ‘all forms of forced labour and human trafficking is prohibited and no child below the age of 14 years shall be engaged in any factory or mine or any other hazardous employment’.

However, it’s common knowledge that children are still being used as labour on minimum wages, in poor working environment without any health-related safeguards and in the form of bonded labour which perpetuates itself over generations.

Pakistan despite having passed the Prevention and Control of Human Trafficking Ordinance 2002 does not provide an adequate mechanism for preventing human trafficking from taking place. This act was followed by the National Action Plan (NAP) for combating human trafficking, but it failed to address the issue of prostitution altogether just as under international law there is no specific mention of human trafficking, though Article 8 of the International Covenant on Civil and Political Rights (ICCPR) does cater for modern day slavery in general. There is little clarity in law and it is the dire need of time to address each offence differently as each has its own particular dimensions which are too complex to be treated under a single, broad term.

An Inter-Ministerial Committee on human trafficking, smuggling and illegal immigration is charged with developing a comprehensive policy to combat trafficking but there is no comprehensive strategy to be found.

If we look at the trafficking of women as prostitutes, our society is so hateful of women involved in the business of prostitution that regardless of their circumstances they are treated as criminals as opposed to victims of social injustice. Another reason for their exploitation is that as prostitution is illegal, most of it is practiced secretly and they cannot report any abuses meted to them by their customers or even the law enforcement officials who extort money from red light areas to allow this illegal activity to continue.

However, to rebut the very presumption which I just gave, the US State Department in its Trafficking in Persons (TIP) Report of 2004 revealed that countries where prostitution is legal, female trafficking is higher. For instance, in Netherlands, a significant percentage of 25,000 women involved in prostitution were in fact victims of trafficking being used by Turkish and Moroccan pimps and coerced into sexual exploitation. This goes on to prove that trafficking is such a complex crime that it requires a holistic approach to be taken.

The TIP Report aims on 3 Ps – Protection, Prevention and Prosecution. In case of Pakistan, the prosecution is very slow and convictions are very low. The TIP 2004 mentions that according to the Federal Investigative Agency (FIA),

“416 trafficking cases were investigated under the new legislation, 350 arrests were made, 60 cases went to trial, and six convictions were handed down.”

Several cases remain pending in the courts. There is no distinction drawn between trafficking and smuggling, former can even take place nationally and is always non-consensual whereas smuggling only takes places across borders and usually with consent.

Under the Hudood laws, forced prostitution is most likely to be tantamount to adultery as the threshold of proving the burden of proof is very difficult to meet and with the entire social psyche having zero tolerance for prostitutes, there is little protection or safeguards to guarantee a free and fair trial. Matters are made worse by corruption of officials and this is a major impediment in any progress towards controlling and preventing trafficking.

In 2003, two FIA officials were prosecuted for corruption related to trafficking, and 15 others received disciplinary action. There are little resources to provide relief, compensation and rehabilitation to the victims from deportation as well as access to food, shelter and clothing as provided under the Human Trafficking Ordinance, 2000.

Victims once captured by the authorities are re-victimised by the judicial processes, many of them being officially detained with underlying offences related to their trafficking such as prostitution and violation of immigration rules. It is pertinent to control the root causes of this evil, to improve the social justice and change the public mind-set towards prostitutes. Not all of them are doing it out of free will but most of them are victims of injustice and fate and the abuses they suffer every day are hard to imagine.

Societies which condemn the vulnerable and the helpless, seldom progress. It is very important to kill the social causes leading to trafficking by investing on female education, eradication of sex-trade, child labour and domestic slavery, improving cooperation between transit and deportation countries, conducting DNA tests to verify whether the child which trafficker claims to be his biological one is true or not and this has helped in controlling child trafficking from Pakistan for camel-jockeying.

Similarly, greater protection should be provided to children and women who are trafficked and measures must be taken to ensure that they are not re-victimised. The corruption needs to be controlled and those involved in facilitating or sponsoring human trafficking be effectively prosecuted and be awarded strict punishment and overhauling of the system where victims are treated as criminals and a comprehensive strategy to be designed to cater for rehabilitation of these victims.

Pakistan is yet to sign and ratify the trafficking protocol to prevent, suppress and punish trafficking in persons which provides a better and broader theme for preventing trafficking, prosecuting traffickers and protecting the victims. All this is only possible if there is political will which is clearly not there as when the priorities of the state are not right, its citizens shall continue to suffer.

Ayesha Siddique Khan

Ayesha Siddique Khan

A barrister at law from Lincoln's Inn London and has LLM in International Protection of Human Rights Law from University of London.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.