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December 28, 2018

Saeeda Khatoon’s story remains untold in Dortmund court

Karachi

December 28, 2018

On November 29, it was six degrees Celsius outside. An early morning shower had freshened up the faded maple leaves on trees, but a strong wind was causing them to fall to the ground.

Inside, the restlessness that had been a part of Saeeda Khatoon for the past three months — ever since she had learnt about the date of the first public hearing on her case against the German clothing retailer KiK — had left her despondent now that the day was finally here.

Saeeda had wrapped an embroidered blue shawl around her head. In the Landgericht Dortmund courthouse, she sat next to her lawyer Prof Dr Remo Klinger, who unceasingly argued before the three-judge bench to let his client speak, as she had travelled over 7,000 kilometres from Karachi just to attend the hearing of the blaze that had consumed her only son.

The leading judge didn’t entertain the request. He asked if she had something to say that wasn’t already in the piles of papers before him. He had testimonies of the witnesses, opinions of the claimants and the defendants, as well as an independent opinion.

The whole conversation took place in German. Though Saeeda didn’t understand a word of it, she could comprehend the situation through the expressions on the faces of the people, mostly young. And then an interpreter put all that she feared into words.

The court didn’t allow her to tell her story and sought more time to decide on the maintainability of the case, as the incident had occurred in Pakistan but attempts were being made to establish its link to Germany.

“It’s a complicated case and we need to be careful in passing a judgment on it,” said the judge, adjourning the case to a second hearing, which is expected to be in January.

With the help of labour and human rights NGOs, trade unions and political foundations, Saeeda and the heirs of three other victims, including a survivor, of the Ali Enterprises garment factory fire, commonly known as the Baldia factory fire, had in 2015 filed a civil suit against KiK for allegedly overlooking workers’ safety and sought 30,000 euros (approximately Rs4.8 million) each for the loss of relatives or for personal injuries.

It is said that the German clothing retailer procured around 70 per cent of the merchandise produced at Ali Enterprises. Therefore, according to the claimants, it virtually controlled the factory and was responsible for it.

On September 11, 2012, a fire ravaged the two-storey garment manufacturing facility, killing 260 workers and injuring around three dozen others. Initial investigations revealed loopholes in the factory structure and safety standards that led to this catastrophe. Later investigations pointed out that it was an act of arson by the Muttahida Qaumi Movement.

Having already paid around $6 million (approximately Rs839 million) in compensation to the victims, KiK said that it could not be held responsible for the fire because firstly, it had no legal obligation to ensure workers’ safety, but through a business relationship it had a code of conduct to create decent working conditions, and secondly, it was a terrorist incident in which extortionists set the factory on fire after they were not paid the demanded money, as Pakistan’s authorities say.

In a bid to overcome this challenge that changed the whole trajectory of the case, the claimants’ supporters made a computer simulation of the fire using the available knowledge of it and tried to assert that even if it was arson, the casualties multiplied because there had been no safety, no escape routes and hazardous flaws in the building design.

Pointing out the cracks, they explained that had there been adequate and proper measures, lives could have been saved. “We have submitted this as expert opinion,” said Dr Miriam Saage Maass, vice legal director of business and human rights at the European Center for Constitutional and Human Rights.

She and her colleagues are working on the case with Klinger. “It is admissible [as evidence], but we are not at the state of evidence yet.” She explained that the case currently struggles with the question if the claims are time-barred under Pakistani law. “We believe that this is not the case because the statute of limitations is interrupted through ongoing negotiations about the respective claims. During 2013 and 2014 KiK was in negotiations about ‘long-term compensation’, so the statute of limitations was interrupted.”

According to German law, the claims are undisputedly not statute-barred. “In November 2014, KiK agreed to a waiver of the statute of limitations and only declared it invalid two years after filing the suit in Dortmund. If a German lawyer agrees to a waiver of limitation with another German lawyer of a German company, which so far only exists in German law, then the parties have also agreed on the application of German law for the assessment of the question of limitation,” she said.

“The substantial question is if KiK owed the workers a duty of care, which means that KiK should have done more to improve the fire safety situation. We believe that we have good arguments to establish such a duty of care under common tort law. But if there was a clear provision of such a duty in German or Pakistani law, the case would be easier to win.”

Speaking of a better ratio of success in cases like these when the struggle is global, Dr Thomas Seibert, South Asia coordinator of Medico International, said: “The struggle against human and workers’ rights abuses by international corporate power cannot be fought only in countries like Pakistan. It cannot only be the struggle of Pakistani trade unions.”

In order to bring the global delivery chains under the rule of human and workers’ rights, he said that there was a need to create a global movement for justice and democracy.

“This movement cannot only be a workers’ movement; it has to bring together very different people: Pakistani workers and German consumers who don’t want to be part of the bloody business of German companies,” he said.

“The Ali Enterprises case shows that a lot of people over here don’t want to be involved in the fundamental injustices of global delivery chains. Yes, the people in countries like Pakistan are in need of foreign investment. But investors have to acknowledge human and workers’ rights. And because we know that they will not do this voluntarily, we need to force them by law. Therefore, we’re desperately in need of a global movement of workers and consumers fighting together.”

At the time of going to press, 11 days had passed since KiK was asked to comment on the matter. But the request remains unanswered.

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