The Socio-Legal Implications of Women’s Work in the Informal Sector: A Case Study of Women Domestic Workers in Pakistan
Dr. Ayesha Shahid,
University of Hull
This is a refereed article published on: 5 March 2009
Citation: Shahid, A., ‘The Socio-Legal Implications of Women’s Work in the Informal Sector: A Case Study of Women Domestic Workers in Pakistan’, 2009(1) Law, Social Justice & Global Development Journal (LGD)
The informal sector of economy is a major source of employment in Developing countries such as Pakistan.1 Work opportunities in the informal sector play an important role in providing lively-hood to the poor, unskilled or semi-skilled, less educated and illiterate men and women workers in the society. There has been a significant change in the informal labour market with more women working for wages. However women remain amongst the lower earners of society, as despite performing the same tasks they are paid less compared to their male counterparts and are mostly engaged in part time jobs. Domestic service is one such category in the informal employment sector which provides jobs to women in large numbers. Yet of the eleven labour policies framed by various governments since the creation of Pakistan in 1947 none has addressed the issue of domestic workers, nor are domestic workers covered under the general labour laws of the country.2 In the light of this situation the paper attempts to deconstruct the role of law in empowering women domestic workers by exploring the relationship between law, gender and empowerment in a plural legal society.
I would like to express my gratitude to Professor Shaheen Sardar Ali for her continuous guidance and analysis of my work. I am also very grateful to Professor Abdul Paliwala for his comments on the draft paper.
Legal centralist approaches create an image that formal codified law is the only tool for enforcing rights and protecting the vulnerable.3 However this portrayal of law contradicts the ground realities. Law does not appear only in the form of a set of codified rules but also as informal rules such as customary norms and religious traditions which shape and influence the process of implementation of formal laws. This paper seeks to explore the limits of black letter law as an effective process and mechanism of empowerment for women domestic workers. I argue that recognition and implementation of equal rights for women domestic workers in the workplace would only be possible if we engage with both legal and non-legal strategies.
The first section provides an analytical overview of domestic service in Pakistan. The second section discusses in detail the conceptual framework of this paper, which is based on a non-essentialist perspective that questions the efficacy of law as a tool for empowering women domestic workers in Pakistan. It examines the feminist theories of law ‘as a process’ and law ‘as a socio-cultural construct’ combined with studies of legal pluralism and Islamic feminist perspectives on women’s work in the light of principal sources of Islamic law. This framework establishes the linkage between these discussions and my main research hypothesis i.e., deconstructing the role of law in empowering women domestic workers by exploring the relationship between law and gender in a plural legal society.
The information provided in this paper is drawn from empirical work carried out for my doctoral research in two urban settings in Pakistan.4 In the third section, based on the data collected, the paper attempts to establish linkages between findings from the field and the theoretical framework. It emphasises that the issue of women domestic workers can be addressed in a more effective way, by looking into the lived realities of women workers’ lives through listening to their voices and experiences.5 The section further considers some of the key issues that have emerged from interviews with women domestic workers, employers, activists, academics/researchers and government officials.
The conclusion suggests a way forward in the form of using both legal and non-legal strategies for improving the position of women domestic workers in Pakistan.
Domestic Workers in Pakistan: An Overview
Domestic work around the globe is considered as an under-valued and underpaid activity performed by the disadvantaged social groups of society. It is perceived as work with low economic value and an extension of unpaid household duties that hardly get any recognition for the work performed. Traditionally domestic work in others’ households has remained a principal way of earning a living for poor women. The vast literature on domestic work (Ehrenreich, B. and Hochschild, A. R., 2003; Silvera, M., 1989; Anderson, B., 1993;Parrenas, R.,2001;Sanjek, R. and Colen, S.,1990; Chang, G., 2000; Sotelo, P. H., 2001; Widge, A.,1995;Christine B. N., 1998; Jacklyn, C.,1989;Langewin, L. and Belleau, M. C., 2000) demonstrates that across the north-south divide it is mostly women who are involved in domestic service, and it is this gendered nature of the work, which underestimates domestic service as having no value at all. It also illustrates the roles of gender, class, race and ethnicity in placing domestic service at the bottom of the employment ladder. Women domestic workers (who migrate to these countries in search of jobs and better living) are employed by not only the affluent families in the developed world but they are also found in great numbers working in their home countries particularly in developing countries for the middle class and the upper echelons of society. It is interesting to note that all studies irrespective of the country of origin point to the inadequacy of a simple legal response to address the situation of women domestic workers. This appears to be the case even in the countries where legal systems are much well developed. Hence it can be argued that the problem is socio-legal, therefore all solutions must look beyond black letter law.
Pakistan is amongst those developing countries where most households employ women domestic workers. Domestic service is an unregulated, unorganised and undervalued form of employment. Domestic workers are not included in the definition of the ‘worker’ in labour legislation.6 There is no law to regulate the relationship between employer and the domestic worker in Pakistan, thus a domestic worker does not exist as a person in labour law. As a result domestic workers have no legal rights to a weekly rest day, maternity leave and public holidays. In theory they can bring a civil/criminal action but in the absence of adequate labour law they do not engage with the law or with the state on a daily basis in their lives, nor can they think of accessing courts due to their socio economic situation in the country. In the absence of any labour legislative framework, women domestic workers are not able to claim any rights against their employers. There is also no specific complaint procedure available under the labour law through which a domestic worker facing abuse could lodge a complaint. Domestic workers do not enjoy the same rights as the industrial workers, technical workers, sales persons and others in the informal employment sector, who are given protection under the labour laws of the country. In the absence of any legal framework there is hardly any case law available specifically on domestic workers in Pakistan. Only recently two cases of abuse of child domestic labour have been reported in the press.7 In both the cases two girl children became victim of abuse due to indebtedness of their families to landlords. Only one case has been filed in the Supreme Court of Pakistan with the support of a human rights organisation, the other family has not even been able to register a case with the police. These cases highlight the limits of law as a tool for empowerment.
Due to the existence of class hierarchies in the Pakistani society it is extremely difficult to challenge if both parties are not of the same socio economic status. As employers in comparison to women in domestic service are in a privileged position they easily flout the law by using their money and social status, thus a probable explanation for non-registration at the police station in one of the above cases. Such cases also draw attention to the need for support structures without which it is unlikely that law alone will provide any protection against exploitative conditions of work.
There are only oral agreements and no written contractual arrangements between the employer and the employee. Domestic service in Pakistan is also associated with bonded labour.8 Families who have debts to pay to landlords in rural areas are also engaged in domestic service, to pay off their family debts. In this form of service, workers not only surrender their labour but also all control over their lives. It is for the landlord to decide who is going to work for him and he may send the domestic worker to his relatives or to other members of the family. In such situations women domestic workers, especially young girls are in a dangerous situation as they often become victims of sexual abuse.
Jobs are mostly acquired through friends, community or family members working as domestics in other households. In the case of global/migrant domestic workers we find a network of employment agencies helping women find jobs, thus creating a labour market and some standardization of jobs with respect to wages, working hours and tasks. In Pakistan any such network of employment agencies is almost non-existent, therefore domestic workers have to find jobs on their own or depend on friends and kin to find jobs for them.
Women domestic workers are employed as full-time, part-time or live-in domestic workers. The wage structure varies according to the localities where they work, the economic status of the employer and the nature of jobs they perform. Those who work for upper class families are slightly better paid as compared to those who work for middle-class families. In Pakistan, hiring of women domestic workers also represents the reinforcement and replication of gender inequalities, for instance women domestic workers are given less than half the wages that male workers in the same occupation receive. A male cook, cleaner or a guard get a higher salary as compared to a woman domestic worker doing the same work. Similarly a male domestic worker would not do any extra work whereas a woman though hired for a single job, would be expected to undertake additional chores.
As domestic work includes the traditional female roles, it is also not recognised as a ‘job’. This gender bias and inequality of treatment has also been discussed by (Rollins 1985, p. 23) who argues that ‘the personal nature of this relationship partly develops from the fact that the work done by domestic is a work which could otherwise be done by the employer herself.’ The responsibilities assigned to domestic workers are always seen as ‘women's work’ that is passed on from a woman to a waged worker. This relationship between the employers and their working class domestic workers shows how these privileged women exploit their domestic servants. It clearly demonstrates that women from the upper or middle classes turn a blind eye towards a system that creates class hierarchies and reinforces patriarchy. By shifting their responsibilities to other women they reinforce gender stereo-types of housework and thus escape some of the challenges of patriarchy by using the labour of women who belong to the lowest rungs of society.
It is also interesting to note that domestic service stands at the boundary between the public and private sphere. The public sphere includes waged work, labour market and the institutions whereas the private consists of the home linked with kin and family. The domestic workers provide waged work but within the context of the household. For them the private territory of the employer counts as public domain. As domestics work within the privacy of a home, it has also become an excuse for the state to not interfere in the so-called ‘private sphere’. This division between the personal and the public adds to the vulnerability of women domestic workers because their work is a hidden form of employment performed within the four walls of other households, which leads to their isolation and invisibility. This dichotomy further leads to the devaluation of work performed within the private sphere.
In Pakistan there are various social classes and there is much disparity among these classes. The unequal treatment faced by women domestic workers is an outcome of class discrimination and an integral part of the patriarchal structures of the society. These women belong to the lower working class and are looked down upon in the society. They are expected to perform jobs that are considered menial. These workers are expected to work in a certain way and receive a certain type of treatment, which most people think is not wrong. Individually there may be many examples of charitable treatment, such as providing them with enough food or clothing, helping them to send their children to schools, and financial help in case of sickness, emergency or mishap. However, when it comes to their well-being in an organised manner (either in the form of formal job contracts or under any law) people are usually sceptical. An obvious reason is that the upper class does not want their workers to be aware of their rights or to be protected by law, because they fear that awareness about their rights and legal cover might encourage their uprising against the rich and the powerful. Secondly it is a matter of conflict of interest, because if this sector is regularised and legal protection is given to these workers, the upper classes will not be able to use their services by paying meagre salaries, nor would domestic workers be at the disposal of employers who could throw them out of jobs whenever they want.
Last but not the least there are no organisational support structures available for them and as a result their bargaining abilities are inadequate and they have a very limited or almost no choice but to work according to the terms and conditions as laid down by the employers. To empower women domestic workers in Pakistan collective action and more concerted efforts in terms of networking and organising them are needed. There are women organisations and unions in other employment sectors including unions of industrial workers, women in fisheries etc, therefore setting up organisations for women in domestic service would not be an exception.9
Feminist Theoretical Perspectives on Gender, Law and Empowerment
In this paper I attempt to engage in a theoretical discussion to critique law as a tool for empowering women domestic workers in Pakistan. In my work I take the position that law is not just a set of rules, it is a more complicated discourse and we need to reconsider the role of law to find out what factors are at play, which limit domestic workers’ scope for legal action, why women domestic workers labour is under-valued and unrecognised, what future strategies could be adopted for bringing social change in the case of women domestic workers and to what extent could law be an effective measure in bringing empowerment to women domestic workers in Pakistan? I have used Nancy Fraser’s ‘perspective dualism’, Carol Smart’s critique of law as a ‘site for discursive struggle’ and Martha Nussbaum’s ‘capabilities’ approach to address and analyse these questions.
Fraser (1997) in her perspectival dualism or theory of injustice10 classifies injustice into misrecognition or cultural/symbolic injustice and mal-distribution or socio- economic injustice. She argues that “cultural or symbolic injustice is rooted in patterns of cultural representation, interpretation and communication which could either be in the shape of cultural domination, non-recognition and disrespect being routinely maligned or disparaged in stereotypic public cultural representations and/or in every- day life interactions” (Fraser 1997, pp. 11-39). For her second classification of mal-distribution or socio-economic injustice she considers that it is present in the form of “exploitation of labour, economic marginalization and denial of an adequate material standard of living”. (Fraser 1997, p. 12). I use this classification of injustice in the context of misrecognition of women domestic workers’ work which does not receive any recognition by the law as well as by the society. As discussed in the previous section their work remains undervalued and underpaid because it is performed by women and considered to be an extension of unpaid domestic chores which in any case are associated with and considered to be the sole responsibility of women. Thus misrecognition reflects cultural stereotype of women’s work and its gendered nature. This further leads to injustice to women domestic workers who are deprived of not just the recognition of their contribution to family incomes but also the respect and dignity of their labour as domestic work is often associated with ‘dirty work’ or a menial job.
Fraser’s second classification of mal-distribution or socio- economic injustice can be applied the way women domestic workers’ labour is exploited in terms of poor wages they receive which are even below the minimum wage standard, long working hours, lack of job security and absence of any other protective measures such as social security , maternity leave etc. Socio-economic injustice is also clearly visible from their poor living conditions in which they are hardly able to provide a square meal to their children let alone proper housing, education and health facilities.
Smart (1989), considers law as a site for discursive struggle which must take into account the political, cultural, and economic aspects of a society that affect women’s lives. Smart argues that law is not the only and primary site of this discursive struggle, rather it is one of the many other sites where such struggle takes place over the meaning of equality and liberty, political agendas, and affirmative action in relation to the socio-legal status of women. Smart (1989) is of the view that law is gendered in its vision and practice. She critically examines how law constitutes gender and becomes a site in which gendered positions and identities are articulated.
Smart advises us to decentre law by not according so much power to it as in her words: ‘There are other power structures operating at the same time for which law alone is not sufficient. For example the issue of women’s low pay cannot be resolved by achieving equality provisions for equal wages in law unless we address this issue in a wider context of segregation in job markets, racism, division of public/ private and undervaluation of women’s work.’ (Smart 1989, p. 165) However she does not suggest a complete disengagement from law but wants us to look into ‘other non legal strategies and local struggles’ rather than simply focusing on law reform.
Nussbaum (2000) like Smart while developing her theory of ‘human capabilities’ 11argues that ‘all too often women are not treated as ends in their own right, persons with a dignity that deserves respect from laws and institutions. Instead they are treated as mere instruments of the ends of others- reproducers, care givers, sexual outlets and agents of a family’s general prosperity Sometimes this instrumental value is strongly positive; sometimes it may actually be negative’ (Nussbaum 2000, p. 2). However Nussbaum’s approach is criticized for its failure to address distributional issues and mechanisms for implementation as it focuses on only equality of capability and not equality of resources such as income and wealth.
In the context of Pakistan, feminist legal scholars such as (Ali 1997, pp198-223, Jilani 1998, pp 96-107 and Zia 1995, pp 73-82) have attempted to expose the limits of law. They are of the view that neither litigation nor legal reforms have been able to deliver gender justice. Ali (1997) assesses the limits of law as an effective tool for empowering women by using the example of a legal literacy course run for women in Pakistan. The course participants found the course to be useful in terms of raising awareness about laws, but at the same time they were conscious of the fact that despite having the knowledge and awareness of laws women still have to follow the status quo and were unable to use it for their empowerment. She is of the view that it could be gauged from the responses of the course participants that formal laws can only be effectively used for the advantage of women if a ‘multi-pronged hybrid’ approach is used. She further argues that the presence of religious and customary norms and the public/private dichotomy in a plural legal society like Pakistan hinders women’s access to justice through courts impairing the use of formal law as an effective mechanism for empowerment.
Jilani (1998) is of the view that law-making process and its implementation has been carried out through institutions that have always remained male dominated whether it is the legislature, police or judiciary. These institutions have always served the interests of men and protected patriarchal privilege, thus access to justice and implementation of laws has always been difficult for women in Pakistan. Despite the dramatic increase in the number of women in parliament and local government every effort is made to silence women’s voices in these law and policy making forums. The male face of law, Jilani insists, should not preclude women from using it and for the application of law social institutions need to be changed. She is of the view that if law is made to overcome injustice then social institutions should not be able to override it by appealing to social norms and values or religion.
Zia (1995) presents the view that as most of the legislators belong to the feudal, industrial, military and bureaucratic backgrounds they have the power to control and implement the law. Any attempt to ensure minorities’ rights is viewed by these powerful groups as a potential threat to the interests of the ruling elite. This situation raises further doubts about the effectiveness of law as a tool for empowerment because any effort to protect women domestic workers’ rights under the law would be considered in direct conflict with the interests of the powerful ruling elite.
In the light of above perspectives on law I would now discuss the Pakistan constitutional provisions. The 1973 constitution guarantees women’s legal equality with men. Article 25 of the constitution specifically lays down that all citizens are equal before law and are entitled to equal protection of law and that “There shall be no discrimination on grounds of sex alone.” The two phrases aim at prohibiting arbitrary distinctions. In addition to Article 25 there are other constitutional provisions that permit the state to adopt affirmative action measures that could help women in gaining meaningful equality with men. Article 34 provides that the state must take steps to ensure full participation of women in all spheres of life. Article 35 lays down responsibility on the state to protect the family, the marriage, the mother and the child. Article 37 (e) provides that the state shall make provisions for secure and humane conditions of work, ensuring that women and children are not employed in professions unsuited for their age and sex, and for maternity benefits for women in employment. Article 27 lays down that “no citizen otherwise qualified shall be discriminated in the services of Pakistan on the grounds of race, religion, caste, sex, residence or place of birth… and posts may be reserved to secure adequate representation in the services.”
It is interesting to note that the courts in Pakistan have given favourable decisions while deciding cases in which equality provisions on women’s rights in employment matters were invoked for instance Naseem Firdous v. Punjab Small Industries Corporation tested the application of the equality norm laid out in article 25 of the Constitution of Pakistan in conjunction with article 27 that safeguards against discrimination in services. The petitioner, an employee of Punjab Small Industries Corporation was promoted to the position of Assistant Director (Design).Later she was prevented from applying for the position of Director in the same department as the advertisement was restricted to ‘male only’ applicants. The plea of the employers was that the position of Director was essentially a ‘male’ job; this statement was made regardless of the fact that the petitioner, a woman was already performing that very job for close to a decade. The court declared the justification of article 27 as conflicting with the equality article of the constitution and hence invalid/illegal.12 Ali and Shahid (2006) are of the view that only a handful of women have been able to access courts whereas for the majority of women, due to low literacy rate, poverty, customs and cultural pressures and the complicated litigation process access to courts is not an easy route to secure their rights. Very few women come into direct contact with the legal system, as most of them neither have an awareness of their rights, nor do they have sufficient resources in terms of finances and time to invest in the existing legal system. In their view ‘the constitutional cases in which discriminatory practices were challenged in no way represent a norm followed by most women workers in Pakistan, but it does suggest that at least formal law is being used’. (Ali and Shahid 2006, p.186).
A perusal of Labour legislation in Pakistan also suggests that domestic workers are not given any protection under labour legislation. The four basic labour laws 1) The Payment of Wages Act 1936, 2) The Maternity Benefit Ordinance, 1958, 3) The Factories Act 1938, 4) The Shops and Establishment Ordinance 1961, 5) The West Pakistan Industrial and Commercial Employment (Standing Order) Amendment Act 1974 do not cover contract workers, casual workers, piece-rated workers, the self-employed (home-based or otherwise) workers in domestic service and agricultural workers.13 These categories are neither covered in the industrial or commercial sector nor counted in the services sector. Although the Wages Act 1937 uses the term “worker” which has a neutral meaning being defined as any person (without any reference to any particular sex) yet male and female workers in Pakistan still do not receive equal treatment. The remuneration is not based on evaluation of the content of work rather it is based on the sex that performs work. In other words the universal principle of equal remuneration for work of equal value is not followed in Pakistan.
The discussion thus far suggests that laws and policies on their own are not sufficient as legislation can be easily evaded by the powerful. Similarly apparently neutral legislation may have gendered implications. Law is present in theory, but when it comes to women we see that either it discriminates against women or simply ignores certain categories of employment by not including them in the definition of the ‘worker’ itself. The law generally covers direct discrimination however indirect discrimination also exists in the form of imposing such conditions that may appear to be gender neutral but could be discriminatory for one sex if applied.14 Any proposal for law reform therefore must move beyond the idea of merely incorporating equality provisions. We need to focus on law as a discourse in conjunction with other socio-economic and political interventions so that domestic workers in Pakistan can use this law as a tool for empowerment for protection of their rights.