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Protecting legal rights of migrant workers

Aminul Hoque Tushar | Published: March 29, 2019 20:24:10


As a state ratifying the International Convention on the Protection of Rights of All Migrant Workers and Members of Their Families, 1990, the government of Bangladesh should ensure the rights of migrants and families through different legal means. As a source country of international migrant workers, millions of Bangladeshis are living around the world. The demand for Bangladeshi workers in the Gulf and Middle-Eastern countries was at the peak in the last decade because of the availability of cheap labour. As a result of continuous migration either as skilled or semi-skilled workers, Bangladesh received a record amount of foreign currencies in remittances, which are almost 9.0 per cent of the national gross domestic product (GDP). As per the UN database up to January 2018, only 51 UN member states ratified this treaty whereas the majority of members are the source countries of workers. The government of Bangladesh as a source country signed the UN ICRMW 1990 on October 7 1998, but it took 13 years to ratify. Despite having different international and national laws, policies and treaties to protect the rights of migrants, labour, domestic workers, women and children, the violation of migrant workers' rights is still there. Last year Bangladeshi migrant workers along with other migrant workers from India, Pakistan, Sri Lanka and the Philippines experienced different violence and abuse in destination countries. In case of Bangladeshi workers, some research works and grassroots level NGOs (non-government organisations) found some facts which put the migrants in a vulnerable condition, like: less skilled workers' migration, involvement of illicit sub-agents or Dalal in migration recruitment process, sending workers on basis of simple state-to-state memorandum of understanding (MoU) and weak monitoring and coordination mechanism of government institutions. 

After ratification of the ICRMW 1990, Bangladesh government like other ratifying states became accountable to the UN and global platforms to protect the rights of migrants and families, for which it enacted Overseas Employment and Migrants Act 2013 replacing the Emigration Ordinance 1982. As per the commitment towards the international community, Bangladesh government also has taken some other initiatives for the welfare of the migrant workers such as: establishment of Migrants Welfare Bank (PKB), Expatriate Welfare and Overseas Employment Policy 2016, Expatriate Welfare and Overseas Employment Rules 2017, Expatriate Welfare Board Act 2017, Recruiting Agency License & Conduct Rule 2002, extension of training centres, decentralisation of overseas recruitment and registration process, and addressing the migration and migrant workers in the government's 7th Fifth Year Plan in line with the Sustainable Development Goals (SDGs). For the welfare of the migrants and their families, the government also has services like: Expatriate Welfare Desk at airport and district level, set-up of special cells at the Bureau of Manpower Employment and Training (BMET) to redress migration grievances, compensations for deceased migrant families, zero cost for women migration, lowering the cost of remittance transfer and encouraging facilities for diaspora investment. Bangladesh also took the opportunity to become a global leader for protection of the rights of migrant workers and chaired the Global Forum on Migration and Development (GFMD) summit in 2016. With the leadership of honorable Prime Minister Sheikh Hasina, the government of Bangladesh also proposed the comprehensive concept of Global Compact on Migration (GCM), which was applauded and accepted globally.

Earlier it has been mentioned that the Overseas Employment and Migrants Act 2013 of Bangladesh had been the immediate outcome and response from the government of Bangladesh since the ratification of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990 (ICRMW 1990). Considering both as worker and human, the migrant rights have been defined as human rights and both the host and source countries must ensure the rights of all migrants irrespective of gender, race and ethnicity. Besides protecting the rights of migrants at work place and with wages, the ICRMW also proposed to control the trafficking of workers in the name of migration and promote the regular channel of migration.

As of January 2018, a total of 51 countries ratified the convention, where majority are worker sending countries or source countries. Some countries (who are the migrant worker receiving counties) have signed the convention but not yet ratified it or did not signed, which means the governments of these countries are not bound by international laws to protect the rights of migrant workers. Therefore, it became clearer that the ratifying states are those states who have the interest to protect their overseas workers' rights, for which they choose the convention as an important legal tool. Hence, the Government of Bangladesh ratified the convention from its own interest and also has taken a number of initiatives like enacting a law.

The Overseas Employment and Migrants Act 2013 was approved on October 26 2013 by the honorable president of Bangladesh as the 48th act of 2013 of the country. It comprises a total of nine chapters and 49 clauses, where it has mentioned laws for the process of migration, overseas employment, rules of recruiting agencies, registration of workers and issuing smart cards by government institutions, job contract and its nature, functions of migrants' welfare wing, rights of migrant workers, and crime and punishment.

As the recruiting agencies played vital roles in overseas employment and workers' migration, the act has a separate chapter for it. The section number 16 under 3rd chapter of the act has mentions to classify, regulate and monitor the activities of the recruiting agencies. But the clause has not pointed out the roles of the sub-agents of the recruiters who are the major suppliers of migrants. Many grievances reported just because of the malpractices of these perpetrators and for which migrants suffer a lot. Therefore, the sub-agents need to recognise officially as a part of the recruiting agent within the migration process and make them accountable to ensure safe migration and reduce the fraudulence cases. The recruiting agents could also benefit from this recognition through practising a transparent recruitment process.

In the same chapter the section number 17 made recruiting agencies accountable to the government before changing office address. But it has also become important to mention some official management systems including the migrants' database and migrants or visitors' register book maintenance for making them more accountable. The government (here the BMET) could integrate the individual RAs' database within its national database for maintaining its system digitalisation (as per the section 4 of Overseas Employment and Migrants Rule 2017).

In case of section number 17, it is also not clear that if there needs to file a case under the public demand recovery act 1913- who will bear the cost for the court proceedings or lawyers. Therefore, there should have been a provision for providing pro-bono lawyers' services or legal aid from the government, as most of the migrants are poor. The offers could also be applicable to the section 8.2.a (i) of the Overseas Employment and Migrants Rule 2017.

The government kept the power to control the migration cost as per the Section 21 of the act, but it should also need to monitor the activities regarding this matter of the recruiting agencies and they should be bound to provide signed and sealed money receipts to migrants.

As per the Section 22, the recruiting agencies ought to maintain a job agreement /contract and must share with the migrants and the government. The job contracts are usually written in Arabic or in English so the migrant workers cannot understand the terms and conditions. So, there should be a provision to keep another (BMET attested) true translated (in Bengali) copy of the job contract/ agreement for the better understanding of the migrant workers in their own language. The contract should also mention the scope of visit to the home country on leave, scope to lodge complaints against employers and compensation for accident or deaths.

As per the Chapter Six, Section 24 (3-A), the labour welfare wing of Bangladesh High Commission has to report to the government and the ministry on the updated list of migrants with the information on category of jobs, working environment and problems. The welfare wing could also maintain the data of the skilled workers based on different categories and place an individual reintegration plan under the government development project while returning to Bangladesh. Though it has been mentioned in Section 8(2).a (vi) of Overseas Employment and Migrants Rules 2017 to identify the migrants' profession before return home, but no specific reintegration system or initiative has been mentioned.

The section number 26 under the seventh chapter of the act has given the scope for the migrant to have the rights to information (as per the RTI act 2009) before migration and beyond. But it has not mentioned to have the rights of the migrants or any migrants' organisations to know the existing bilateral agreements (BLAs) or memorandum of understanding (MoU). It is also a right of migrant workers to know on which conditions or cost the government of Bangladesh is committed to sending workers to other countries. Therefore, the government and the recruiting agencies are inevitable to supply the copy of the agreement or MoU made between the Bangladesh government and the destination countries.

Moreover, there should also be a sub-clause under the Section 38 (2) to keep punishment for delaying the cases by the offender (here the recruiting agencies or its sub-agents). From the experience of the sufferer migrants and civil societies, it has been recorded that in most of the cases the judicial process is overdue because of the customary process from judge court to High Court. Therefore, justice should be dispensed as quick as possible as per the six (6) months' timeframe of the act.

The act also has kept the provision (section 40) to access the Mobile Court Act 2009, but it has not clearly mentioned where to submit the complaint and how frequently the mobile court will deal with the cases. Though recently the government started the hearing sessions periodically to resolve migration complaints at the central level, very few migrant workers at the grassroots level rarely know that. Therefore, mass community awareness and arrangement of such hearing is a must.

However, the role of home ministry and the law enforcement force has also been mentioned in the act, whereas Section 42 stated the provision for law enforcement forces to search migrants. But it also should have to mention while searching, the law enforcement force could not cause any harassment to the migrants without any reason.

The migrant workers become vulnerable from the very beginning of the process, at the stage of preparing passport. Therefore, it strongly requires to encompass the authority of the Department of Immigration and Passport, Home Ministry to protect the rights of migrant workers through strong monitoring during conducting police verification and immigration clearance at airport.

Evaluating the Overseas Employment and Migrants Act 2013, we have identified following recommendations made by the migrant community, right activists and civil societies:

  1. a) All the sub-agents or so called Dalal must be recognised and registered by the government-affiliated or registered recruiting agencies (RAs).
  2. b) All the recruiting agencies (RAs) must maintain the demand and supply database of migrant workers and maintain the visitor register officially. They must recruit the migrants from the pre-listed migrants or database.
  3. c) All the RAs and the sub-agents must provide money receipts while taking migration cost from the migrants.
  4. d) The agency must provide Bangla translated and attested (from BMET) true copy of the job contract to the migrants and submit to the government.
  5. e) The labour wing of High Commission must keep the database of migrants working abroad as per skilled category and provide the list to the government for reintegration on return home.
  6. f) The government ought to disclose all BLAs and MoUs made between worker receiving countries and Bangladesh to public and supply to each agency, from where a copy could be collected by the migrants.
  7. g) The government must ensure the legal aid for migrants for dealing with legal cases abroad or either under OEMA 2013 or under the Public Demand Recovery Act 1913.
  8. h) The government should provide training to the law enforcement forces or Immigration Police for dealing with the migrant cases with sensitivity.

Aminul Hoque Tushar is Researcher and Consultant, WARBE Development Foundation, Dhaka, Bangladesh
Email: aminul_haque2000@yahoo.com

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