The Book of Prof Shad.docx

Slavery in article 61 the federal constitution

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Slavery: In Article 6(1) the Federal Constitution ordains that “no person shall be held in slavery”. The prohibition is absolute. It applies to both the public and private sectors. It forbids Parliament and the executive from contemplating any measure that may amount to slavery. Unfortunately the term ‘slavery’ has nowhere been defined and one has to look to its earlier manifestations. Historically, slavery referred to an institution under which one or more human beings were the property of another. Slavery was a form of involuntary servitude or forced, free labour so that those in bondage toiled under coercion to satisfy the desires of their owners. Slaves could not marry, have a family, testify in court, own property or receive education. Fortunately, our legal system has never been shackled by such inhumanity. Forced labour: Article 6(2) prohibits all forms of “forced labour”. Presumably this means work otherwise than by contract. This prohibition is subject to three qualifications. 35
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First, Parliament may by law provide for compulsory service for national purposes: Article 6(2). State Assemblies have no such jurisdiction. The executive has no inherent power to require compulsory service except under the authority of law. Further, the work in question must be for ‘national purposes’. Admittedly, the words are open to a variety of interpretations but it does appear that compulsory military service, a Rukun Tetangga scheme, a Peace Corps type of programme, mandatory government service that is required of doctors (and perhaps could also be mandated for lawyers and engineers) are within the constitutional authorization but forced labour that is merely for the purposes of a statutory body or local authority is proscribed. Many universities wish to impose community service orders on their students in lieu of disciplinary punishments but are held back by the prohibition in Article 6(2). Second, work incidental to the serving of a judicial sentence of imprisonment shall not be taken to be forced labour: Article 6(3). It is noteworthy that the Constitution only permits work “as a consequence of a conviction or finding of guilt in a court of law”. This probably refers to work incidental to a sentence of penal servitude. Prisoners cannot be forced to work in mines, factories, sweatshops or construction sites without their consent and without payment. If they are exposed to hazardous labour or if the working conditions are so oppressive that human dignity is compromised, then a constitutional challenge could possibly be mounted under Article 5(1) and Article 8. This is because Article 5(1) requires that no person shall be deprived of life or liberty save in accordance with law. Article 8 requires equality before the law.
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