Law opinion
Is the law enough to protect migrants?
Dr. Uttam Kumar Das
Bangladesh is a major source country for migrants. Majority of our migrants are going abroad to work as contract labour for a temporary period. Bangladeshi-origin professionals are comparatively small in number.
Labour migration has thus been emerging as a growing area and there is a demand to declare it as a thrusting sector given the volume of migrants and their contribution to the national economy.
It is now officially reported that there are more than seven million Bangladeshi-origin migrants who are working and living abroad. However, if we include “undocumented” migrants, then the number would be close to 10 million.
In 2009, Bangladesh earned nearly US$10 billion through out-migration of 475,000 people. In the previous year, the number of labour migrants were 875,000 and remittances were US$ 9.6 billion.
The remittance earned by migrants marks an average 17 percent growth since 2001. It is 13 percent of the GDP. It is contributing to reduce 6 percent of poverty each year.
The remittances are 12 and 6 times higher respectively than the Overseas Development Assistance (ODA) and Foreign Direct Investment (FDI) in Bangladesh.
There are prediction that by the year 2015, Bangladesh can earn an annually US$ 30 billion as remittances given the new job markets are explored, migrant workers' skills are enhanced, and remittances are sent through officials channels.
However, so far, there is no noticeable progress in this regard. According to a senior official at Bureau of Manpower, Employment and Training (BMET), the country would reach an amount of US$ 15 billion as remittances by 2015 if the existing trend of migration continues. At the same time, the labour migration has been facing a great number of problems, which include low skill of the majority of the migrant population, lack of capacity and resources in both public and private sectors in managing the sector, lack of good governance, ever growing trends of abuses and exploitations in the migration processes (at pre-departure and post-departure levels) etc.
This brief writing aims to look into how rights of the migrants can be protected and how the exploited can get justice.
Trends in migrants abuses
It has now been empirically proved that migrants vulnerability to exploitation corresponds to the level of skills (i.e., vocational, language, and other relevant skills). With higher level of skills, the chances of exploitations go down.
In case of Bangladesh, majority of the labour migrants (who are going abroad with menial jobs under temporary contracts or without any contract (deceived by the dalals or recruiting agencies) - 66 percents, are semi-skilled. (Where as in case of Philippines, nearly 60 percent are skilled and 10 percent are professionals; the rest are semi-skilled).
For Bangladeshi migrants, the types of exploitations include deception, coercion, arbitrary confinement, illegal detention, deprivation of right to life and personal security, deprivation of dignity, deprivation from right to work and earn, sexual exploitation, and deprivation of right to safe migration, as this writer documented interviewing nearly 300 returned migrants. Sufferings and experiences of some of victims include forced labour or similar practices, forced sex work-for young women; those experiences are similar to that of the victims of human trafficking. Especially in case of female migrants who went to Lebanon, U.A.E., or Jordan, the exploitations include formed prostitution for some of the victims. Some of the migrants are even sexually assaulted or abused at pre-departure stages by the so-called dalals or representatives of recruiting agencies. At the destination, the so-called dalals there, and employers and their allies etc abuse them.
How to bring justice
The migrants are Bangladeshi citizens; therefore, they are entitled to have full guarantee of the Constitutional rights and other legal and human rights.
Our Constitution guarantees for (fundamental rights) equality before law (Art. 27), right to be non-discriminated (Art. 28), protection of law (Art. 31), right to life and liberty (Art. 32), freedom from arbitrary arrest and detention (Art. 33), freedom from slavery and similar practices (Art. 34), and freedom of movement (Art. 36) etc.
The migrants are entitled to enjoy all those fundamental rights before departure. The State is responsible to protect those. If there is any breach of any of those rights it is the responsibility of relevant state organs to ensure justice.
Out of the country, Bangladeshi citizens are also entitled to get the protection from the state (i.e., through consular and other services as deemed necessary).
At the same time, migrants are entitled to have protection from the laws of the host countries concerned. This may vary from country to country. However, as foreigners, migrants are entitled to enjoy their human rights as set out by international human rights instruments like the Universal Declaration, International Covenant on Civil and Political Rights, 1966, and International Covenant on Economic, Social and Cultural Rights, 1966 among others.
In some cases, national laws and decisions from higher judiciary have bearing effects. For example, according to a Supreme Court of Malaysia, a migrant labour (whether regular or irregular) is entitled to enjoy all rights as prescribed by the respective labour laws.
If a destination country is a party to the International Convention on the Protection of the Rights of All Migrants Workers and Members of their Families, 1990, the host government will have more liability. Then, it is to: ensure liberty and security of person of migrant workers (Art 16)- in case of any deprivation to be treated with humanity and with respect for inherent dignity of the human persons (Art.17), avoid arbitrary deprivation of property (Art. 15), ensure safe working and living condition (Art.70), ensure equal status with regard to access to court and tribunals (Art 18), allow association and trade union activities (Art. 26), right to be recognised as a person before the law (Art. 24), and facilitate family reunification (Art.44); etc.
Now question will come, how to ensure all those rights. This is the prime responsibility of the government of the destination country.
However, the sending country like ours has a great role to play here. How and when we would achieve this that is a “million Taka question.”
Here comes the role of our government like other migrants' sending ones. It has to achieve and ensure through advocacy, negotiations, and bilateral agreements with the counter-parts at host governments.
The embassies and diplomats in the host countries have great roles in protecting rights and interests of respective migrant workers. The embassies of Sri Lanka, India, Philippines or Mexico are doing this in respective migrants receiving countries. Mexico keeps running 34 consulates only in the United States.
It is true that our embassies and consulates have crisis in terms of budgetary allocations and resources and other logistical facilities. However, this is not an excuse. We should bear in mind that in no circumstance we could compromise rights of the migrants.
They government is to arrange for protection activities for the migrants at the host countries in collaboration with its counterparts, through local rights groups or other agencies concerned. However, the approach might vary from country to country.
Here is a role for the NGOs and other agencies as well. They could find out their allies in respective destination countries and strategise activities to protect and promote rights of migrant workers. International human rights and other agencies have a big role to play. Our human rights organisations have to be strategic to set out allies with them.
I do find a very unacceptable logic among a section of our bureaucrats, lawmakers, and policy makers in line with the members from the recruiting agencies to justify abuses and exploitations of migrants referring to it as a “proportionately small number.” They try to estimate that the rate of exploitation is nearly one percent of total migrant population and we should not be worried on this provided remittance flow is in order.
This propaganda is totally against the Constitutional guarantee for individuals' fundamental rights as mentioned earlier. This type of arguments tantamount to violations of our very constitutional provisions which the respective governmental officials and lawmakers are obliged to respect and restore.
Number should not be an issue. Even violation of rights of an individual should be concerns for all. State machinery cannot ignore its due responsibility in this regard. How they will do that will be in their strategic plan for years.
Let's look at the migrants as human being and think of them as our beloved ones- brothers and sisters; then we would be able to come up with responsible ideas and actions.
Coming back to protection of rights of migrants within the country, the state also cannot avoid its responsibility.
Given the new trends of crimes in migration process (both at pre-departure and post-departure stages) we should look into our existing legal and administrative frameworks. If the existing laws and regulations do not work, their amendments should be initiated immediately. However, top most priority should be proper implementation and bring perpetrators to the justice.
Only adoption of a bunch of new law with prescription of “heavy-handed authority” and “layers within the judiciary” will not work.
We should avoid the habit of just adopting new laws; rather be serious with regards to implementing those which already exist. Government should get rid of “projects-bracket,” rather it should have its own goal, vision, strategy and actions plan to protect migrants' rights and arrange justice, in case of any violation of respective rights.
The writer is a Human Rights Lawyer specialising in migration issues.
