Ensuring the Rights of Women Migrant Workers of Nepal; Need of Integrated Approach Beyond the Protectionist Ban.

Author : Barun Ghimire

Abstract

The participation of women in foreign employment has increased considerably in recent years. The trend analysis of labour migration for foreign employment clearly indicates the sharp rise in the number of Women Migrant Workers (WMW) in last decade. Despite the significant rise of WMW in recent years, data of WMW on a yearly basis is fluctuating. The flux in the number of WMW is mainly attributable to the government policies as it highly regulates the labour migration of women.

The government of Nepal has imposed various forms of Ban on WMW citing the need to protect the women from exploitation and abuse in the destination country. The ban imposed by the government has been in various form and nature from partial ban to complete ban. The effectiveness and legitimacy of such ban are yet to be tested, and there is no reliable data to back up the claim that the ban has in fact protected the women. On the flipside, it is argued that these bans make things worse for WMW as they choose an irregular channel for migration as it leaves them more vulnerable. The international practice has also shown that similar type of ban based on protectionist approach has not yielded the desired result.

The domestic legal regime and the international law also provides equal rights for WMW and does not foresee ban as effective or even legitimate ways to protect WMW. The ban of various nature instead a proper regulating mechanism intensifies the problem rather than solving them. Thus, the ban government of Nepal has been imposing time and again regarding WMW is not just ineffective and unthoughtful but also illegitimate. The government must address the issue of WMW keeping the best interest of women in the center without undermining any legal rights entitled to women under the domestic and international law, including but not limited to the right to equality, the right to employment equal protection and treatment under law and mobility rights.

The exploitation and abuse of Nepali WMWs in destination country is a significant problem and government is under obligation to address the concerns and ensure the rights of women. The returnee WMWs also faces significant problems upon arrival in Nepal. The concerns of WMWs in the destination country and the home country is an alarming human rights concern, but the way our government is handling the situation might make things worst and leave WMWs more vulnerable. The government must take an integrated approach to deal with the concerns of WMWs and regulate the foreign labour migration rather than imposing ban under the protectionist rhetoric.

Women in Foreign Labour Migration

The quest for foreign labour migration is a social reality of Nepali society. It is estimated that more than 3 million Nepali are working in a foreign land. Every day more than 1500 workers leave Nepal in search of employment of Nepal. As per the official record, the number of women migrants is still small compared to that of the male counterpart as it – amounts to just over 6 percent of all migrant workers leaving Nepal. The trend analysis in obtaining labour permits from 2008/09-2014/15 shows that the number of females migrating for work has increased from 8594 to 21421 in the period.[1] However, the actual number can be higher than the official estimates as a large number of WMWs use the irregular channel for migration. The government is aware that the WMWs are leaving the country to irregular channels to seek employment despite the various bans to work as domestic workers in various Gulf countries.[2]

WMWs participant in foreign employment has increased considerably in the past decade. The number of WMWs opting for foreign labour migration is in the sharp rise and is gradually shifting the overall employment trend of Nepal. The growing number of WMWs has also increased the risk and vulnerability for them is home and destination country as most women wanting to migrate are limited to ‘low-skill’ and low-wage jobs such as domestic work. Women are particularly vulnerable to serious abuse for reasons of gender discrimination, the isolated nature of their work in private homes, and irregular status. In some cases, abuses amount to labor trafficking, forced labor, and debt bondage. Few low-wage migrant workers can access compensation or other remedies for these violations while working in the Middle East.[3]

The increase in the WMWs seeking work abroad in infused with both opportunities and challenges. It creates employment opportunity for women in one hand. On the other hand, there are challenges associated with abuse and exploitation of WMWs due to nature of the job they are engaged in. Particularly, Nepali WMWs working as domestic workers has the distinct experience of human rights and labour rights abuses. As the jobs are confined in private households makes it more difficult for monitoring of working conditions. They are excluded from labor laws which can provide them full coverage of labor rights protection and facilitate access to justice.[4] Considering the plight of WMWs concern in home and destination country related legislation and policy require careful consideration by the government to ensure the rights of WMWs. The holistic understanding of the issue, underlying factor and impact of any policy must be evaluated before imposing any decision in the matter. Further, the legality of the decision must also be assessed to ensure that the decision complies with the domestic and international legal norms.

The Protectionist Rhetoric

It is an undeniable fact and alarming concern that WMWs are facing abuse and exploitation in both home and destination country. The National Human Rights Commission (NHRC) in its report have shed light on the nexus of foreign labour migration and trafficking in persons.[5] It has been revealed that many Nepalese workers end up in forced labour situation or are trafficked for labour exploitation. Despite the fact that the number of WMWs is less compared to men the plight of exploitation and abuse reflects perilous situation for Nepalese WMWs. However, if we look into the plight of migrant workers without gender lens, the problem of exploitation and abuse is a generic problem for Nepal. On average three dead bodies of migrant workers arriving each day back home reflect the plight of migrant workers is generic and not specific gender orientation.[6]

The government of Nepal has been actively regulating the participation of WMWs. The government initially prohibited women to leave the country without the consent of their guardian through the legislative arrangement.[7] The government has frequently been using various restrictive arrangements and bans under the argument of ‘protecting women from abuse and exploitation.’ In the period 1985-1998 women required the consent of a guardian (i.e. parent, husband or other relatives) to go on foreign employment. The government decided to allow foreign employment of females in the organized sector on 16th May 1997. Immediately followed by the death of WMW the ban was imposed on female workers for foreign employment in 1998. The ban was then lifted by security guarantee from Nepalese Mission on destination countries except for foreign employment to Gulf Countries on November 16, 2000. Later in 2003, the ban was lifted by full security guarantee duly certified by Nepalese Embassy or Consulate in Gulf countries. The period of 1998-2003 can be seen as a period of complete ban on the migration of female workers to a Gulf country. The period of 2003-2010 has seen a partial ban on female workers to Gulf Country. Further, in 2005 government banned female migration for foreign employment to Malaysia imposing various conditions which were later lifted in 2007.

Further, a complete ban was imposed on female domestic workers going to Lebanon during January 2009-May 2009. This was followed by age-based restriction as from 2012-May 2014 government prohibited women younger than 30 to work as a domestic worker in a Gulf country. The government again imposed a complete ban on female migrant of all ages to be recruited for domestic work in a Gulf country from May 2014-April 2015. On the same line, from 2015 April onwards women younger than 25 has been restricted to work as domestic workers in a Gulf Country. In 2016, the government decided to allow the women to work abroad as housemaid after signing separate labour agreements with the host country.[8] Recently, in March 2017, the Parliament’s International Relations and Labour Committee directed the Council of Ministers to completely ban sending Nepali workers to the Gulf countries.[9] This decision was taken after a government officials visit to find the status of Nepali migrant workers in various Gulf countries.

The government has often relied on the protectionist rhetoric for imposing such bans and claimed that it aims at the better protection of the women. This ‘Protectionist Approach’ places central importance on differences between men and women. Recognising gender differences, and the disadvantaged position of women, this approach seeks to treat women differently to protect their rights. The problem with this approach is that its methods of coping with gender difference fail to address the structural or systemic causes of gender inequalities. The protectionist approach is inherently limiting as it focuses on the ways in which women need to be subjected to ‘special’ treatment compared to men. In doing so, it reinforces existing cycles of gender difference and disadvantage.[10] The protectionist approach followed by the government of Nepal raised two basic questions. First, does the restrictive practice in the form of ban work? Moreover, Secondly, Is the restrictive practice and different form of bans consistent with Nepal’s domestic and international legal obligation?

On Question of Effectiveness

Considering the plight of WMWs, there is need to establish clear regulations and monitoring systems to protect women migrants, including to ensure that recruitment agencies protect women migrant workers’ rights, as well as legal sanctions for breaches of the law by recruitment agencies.[11] The NHRC also recognizes that is challenging to ensure the rights to the mobility of women by granting the rights to the mobility of women at par with the men. However, protection of women from violence, abuse, and exploitation in the destination countries can be possible through proper intervention programs at home and in the destination countries. Further, the government shall conclude Memorandum of Understanding (MoU) and bilateral labor agreement with the major destination countries and extend bilateral and multilateral relations to the countries of destination using the international forum of migration such as Colombo Process and Abu Dabi Dialogue and mobilization of Non- Residence Nepali (NRN) Association across the countries, especially in Gulf and South East Asia.[12]

Particularly regarding the bans and restrictive practices, these regulations although may seem as well-intentioned does not actually protect the rights of WMWs but discriminates and makes them vulnerable to exploitation, irregular migration and labor trafficking. Rogue recruitment agencies facilitate irregular movement and have on recorded account forged documentation of women migrant workers to evade the travel ban. In the case of Nepal, this facilitates irregular migration through the open border with India.[13] The study carried out by ILO on the migration ban in Nepal has concluded that the bans reviewed did not prevent people from migrating and discriminated somewhat arbitrarily based on gender, class and age. The ban placed women at greater risk of abuse during the migration journey. Further, the study suggests that to be effective, protective policies must be introduced transparently, be well-publicized, and take a comprehensive and empowering approach. [14]

The restrictive rules and bans, in reality, create more problem than it solves. The study shows that the age ban or total ban on labour migration would lead to the use of the irregular channel for migration using neighboring countries, India and Bangladesh. Further, the irregular migration is found to be associated with more dangerous and circuitous routes, lack of information, lack of choice regarding the destination country, and in some cases trafficking.[15] This increases the vulnerability of WMWs for abuse and exploitation waiving the available legal protection at home and abroad.

The use of restrictive rules and ban has been used by other migrant-sending countries too. Indonesia since 2015 has banned women from going to 21 Middle East countries following a series of abuse cases, but a high-demand of maids has encouraged traffickers to find ways around the curbs. The government imposed the ban claiming it was adopted to defend the ban on the ground of protecting the women. However, in March 2017 the revoked such ban as the pan pushed more poor Indonesians desperate for jobs into illegal migration. The decision to revoke the ban has been welcomed the decision by the migrant activists as a positive decision.[16] Similarly, the Ugandan government has banned Ugandan women from going to work as maids in Saudi Arabia, following reports of employer abuse and poor working conditions. The decision came after several young Ugandan women were known to be tortured while employed as domestic workers in Saudi Arabia.[17]

The government of Myanmar after a number of high profile cases of worker abuse prompted the government in September 2014 to put a temporary ban on women going abroad to find work as maids. However, with few economic opportunities at home, the number of women leaving to get jobs abroad as domestic workers have not abated, and more do so illegally, the government had to revoke its decision.[18]Further, the different ban and restriction have also been used by the government of Bangladesh, Cambodia, Ethiopia, Madagascar and Philippines.

The domestic experience and international practice of restrictive policy and bans clearly indicate that the bans are not as effective as the government considers it to be. The reliance of a government on various forms of bans can lead to the more complex problem of abuse and exploitation rather than merely ‘protecting women’s.’ Thus, government’s reliance on bans and restrictive practice regarding WMWs as the protective measure does not yield desired results rather have a damaging impact for WMWs.  

On Question of Legality

The restrictive practice or various forms of the ban on WMWs to seek a job abroad also invokes a legal question. The domestic and international legal instruments make it unlawful to adopt gender discriminatory laws and policy. The Constitution of Nepal (2015) under the right to freedom: Article 17 (2) (f) states that “freedom to practice any profession, carry on any occupation, and establish and operate any industry, trade, and business in any part of Nepal.”[19] Similarly, recognizing the right to equality: Article 18 (2) it has been stated that “No discrimination shall be made in the application of general laws on the grounds of origin, religion, race, caste, tribe, sex, physical condition, condition of health, marital status, pregnancy, economic condition, language or region, ideology or on similar other grounds”.[20]Further, recognizing the right to employment as fundamental right Article 33 (2) provides that, “Every citizen shall have the right to choose employment.”[21]

Beyond the fundamental rights chapter in its directive principles: Article 50 constitution has stated that “(1) The political objective of the State shall be to establish a public welfare system of governance, by establishing a just system in all aspects of the national life through the rule of law, values and norms of fundamental rights and human rights, gender equality …”[22] Further, Article 51 (i) (5) of the Constitution in Policies relating to labour and employment it has been stated that government has an obligation “to regulate and manage the sector in order to make foreign employment free from exploitation, safe and systematic and to guarantee employment and rights of the labours”.[23] The plain reading of the above-mentioned provisions of the Constitution establishes that the Constitution generally call for the gender neutral policy and practice by the State.

The primary legislation governing the foreign labour employment has dedicated two sections to ensure non-discrimination in foreign employment on the basis of gender. Foreign Employment Act, 2064 (2007) Section 8 has made provision relating to the prohibition on gender discrimination. The provision reads, “No gender discrimination shall be made while sending workers for foreign employment pursuant to this Act. Provided that where an employer institution makes a demand for either male or female workers, nothing shall prevent the sending of workers for foreign employment according to that demand.”[24] Further, Section 9 of the same act requires “to provide special facility and reservation: (1) The Government of Nepal may provide special facility to the women, Dalit, indigenous nationalities, oppressed, victims of natural calamities and people of remote areas who go for foreign employment.”[25]

In the context of international instrument relevant to Nepal, the Convention on the Elimination of All Forms of Discrimination against Women (1976) and its General Recommendation (GR) No. 26 is relevant to Nepal as a State party. The GR 26 also specifically calls on origin countries to ensure the ‘lifting of discriminatory bans or restrictions on migration: States parties should repeal sex-specific bans and discriminatory restrictions on women’s migration on the basis of age, marital status, pregnancy or maternity status. They should lift restrictions that require women to get permission from their spouse or male guardian to obtain a passport or to travel (Article 2 (f)).’[26]Similarly, Nepal is also party to the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which requires the government to ensure “equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination” and “repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy”.[27]

In light of the domestic and international legal provisions relating to the restrictive practice and bans on WMWs to work abroad seem out of place and against the basic value of the legal provisions. This claim is further aided by the governments’ participation and commitment in the consultative forums while discussing issues and agendas related to WMWs, which includes Colombo Process, Abu Dhabi Dialogue, Asia-EU Dialogue, UN High-Level Dialogue on Migration and Development and Global Forum for Migration and Development.

Thus, it can be argued that the ban imposed by the government of Nepal on time to time basis not be in line with the domestic and international obligations. The restrictive practice and bans particular violate the constitutional provisions, foreign employment act. Further, the practice is in conflict with the provision of CEDAW and ILO Convention No. 111. This claim is further strengthened by findings that the bans and restrictions are in fact damaging and increases the vulnerability of WMWs.

Thinking Beyond the Restrictive Practice

The plight of WMWs both home and abroad is alarming and the government needs to come up with effective ways to address it. The WMWs are not only facing abuse and exploitation in large number but also lack access to justice both at home and abroad. The aspirant WMWs and returnees WMWs face challenges in access to justice. The Research Report prepared by Nepal Judicial Academy has shown that there are various concerns that hinder women’s access to justice. The study has identified the associated financial costs, general perception towards court proceedings, lack of proper information, the behavior of service provider, geographic limitations, lack of trust in the institution, procedural aspect and time frame for formal proceedings as major factors hindering the women’s access to justice.[28] As there is a generic concern of women’s access to justice in Nepal the access to justice for WMWs against the fraud, exploitation and abuse faced at home is an uphill task. The access to justice for Nepalese WMWs in destination country is out of the question as they do have various constraints such as language constraints, financial constraints, information constraints, etc. Further, both at home and destination country WMWs get very little or no assistance to seek justice against any form of abuse or exploitation.

The issue of WMWs is significant for Nepal as it is migrant sending country. The government must come up with a proper plan of action and policy to ensure the rights of women to seek employment and at the mean time protect them from abuse and exploitation. From its experience and the international practice, the government must learn its lesson that restriction on WMWs to seek a job abroad and generic ban are not the solutions to the problem as they are neither effective in protecting the rights of women nor are in line with the legal obligation of Nepal. The government must come up with strategic plans to protect the rights of WMWs at home and abroad. In doing so, the government can consider following measures:

Legislative arrangement in line with international legal obligation, particularly under CEDAW.

Bilateral and Multilateral MoU with destination country to better protect WMWs.

Increase WMWs access to necessary information relating to migration cycle and related issues.

Enhance access to justice at home for aspirant and returnee WMWs.

Give weight to international best practice and evidence-based research while implementing policy or decision relating to WMWs.

Rethink the impact of restrictive practice and policy ban based on empirical findings before implementing such decisions.

Address the cause of abuse and exploitation of WMWs and address the root causes rather can restrict women to seek jobs abroad.

Recognize and address the concerns relating to irregular migration. Also, evaluate if the government’s policy is the factor which pushes WMWs to use irregular migration channel.

Move beyond the protective rhetoric and ensure the equal treatment of women in the context of the labour migration.

In closing, the number of WMWs is in rising and will tend to increase considering the growth of migration phenomenon in Nepal. In this context, the government of Nepal should play a constructive role to facilitate the migration process and seek to ensure the rights of WMWs both at home and abroad. The government must come up with comprehensive plan to protect WMWs at home and abroad. The restrictive approach and bans are citing the protection of women rhetoric are neither efficient nor lawful for a State to pursue. Thus, the government should not rely on bans and restriction in the name of protecting WMWs. These restrictive practices and bans negatively impact the WMWs and create woes for them in the home country and destination country.

Migration restrictions have been controversial in Nepal, and while they reduce female migration, they do not prevent it. This also increases vulnerability of WMWs as they seek irregular migration as an option. As expressed in CEDAW, GR No. 26, Nepal needs to Facilitate women’s access to safe, low cost, legal migration channels including by: removing bans and restrictions on women’s out-migration on the basis of sex, gender, and intersecting forms of discrimination; providing comprehensive gender- and rights-based pre-departure information and services for prospective women migrant workers; regulating recruitment agencies, employers, and private sector agents involved in labour migration; training, monitoring and supervising government agents involved in the migration process, especially in transit, and holding those who abandon or abuse women in transit accountable; removing indirect discrimination against women via visa schemes that tie women to feminized jobs; and enforcing family reunification schemes. It is re-emphasized that, the concerns of WMWs and related legislation and policy require a careful consideration by the government. The holistic understanding of the issue, underlying factor, impact of any policy and its lawfulness must be evaluated before imposing any decision or policy.

References:

[1] Government of Nepal, ‘Labour Migration for Employment A status Report for Nepal: 2014/15’, 2016, Pg. 7.

[2] RSS, ‘Ban Sending Nepalis to Gulf as domestic workers: House panel, 2nd April, 2017, available at: https://thehimalayantimes.com/nepal/ban-sending-nepalis-gulf-domestic-workers-house-panel-govt/ accessed on: 5th April, 2017.

[3] Sarah Paoletti et al, ‘Migrant Workers’ Access to Justice at Home: Nepal’, Migrant Workers’ Access to Justice Series, , Open Society Foundation: 2014, Pg. 18.

[4] Migrant Forum Asia, Universal Periodic Review on Nepal, ‘Written submission of the Migrant Forum in Asia network for the 23rd session of the Universal Periodic Review’, 2015, pg. 5.

[5] National Human Rights Commission, “Trafficking in Persons”, National Report, 2013-15, Pg. 48-50.

[6]Anil Bhattarai, ‘Lost in Numbers’, TheKathmanduPost, available at: http://kathmandupost.ekantipur.com/news/2017-01-13/lost-in-numbers.html, accessed on 10th April, 2017.

[7] Foreign Employment Act (1985).

[8] The Kathmandu Post, ‘Ban on women going for domestic jobs lifted’, 13th May, 2016, available at: http://kathmandupost.ekantipur.com/news/2016-05-13/ban-on-women-going-for-domestic-jobs-lifted.html accessed on: 5th April, 2017.

[9] RSS, ‘Ban Sending Nepalis to Gulf as domestic workers: House panel, 2nd April, 2017, available at: https://thehimalayantimes.com/nepal/ban-sending-nepalis-gulf-domestic-workers-house-panel-govt/ accessed on: 5th April, 2017.

[10] Participant’s Handbook, Introduction to theUnited Nations Convention on the Elimination of All Forms of Discrimination Against Women, Pg. 14, available at: http://crc-and-cedaw-reporting.weebly.com/uploads/9/6/6/8/96685952/module_1.pdf accessed on: 13th April, 2017.

[11] Sarah Paoletti et al, ‘Migrant Workers’ Access to Justice at Home: Nepal’, Migrant Workers’ Access to Justice Series, , Open Society Foundation: 2014, Pg. 31.

[12] National Human Rights Commission, “Trafficking in Persons”, National Report, 2013-15, Pg. 68.

[13] Migrant Forum Asia, Universal Periodic Review on Nepal, ‘Written submission of the Migrant Forum in Asia network for the 23rd session of the Universal Periodic Review’, 2015, pg. 3.

[14] International Labour Organization, ‘No easy exit – Migration bans affecting women from Nepal’, Fundamental Principles and Rights at Work (FUNDAMENTALS); Labour Migration Branch (MIGRANT) – Geneva: ILO, 2015, Pg. ix.

[15] International Labour Organization, ‘No easy exit – Migration bans affecting women from Nepal’, Fundamental Principles and Rights at Work (FUNDAMENTALS); Labour Migration Branch (MIGRANT) – Geneva: ILO, 2015, Pg. x-xi.

[16] Beh Lih Yi, ‘In U-turn, Indonesia says will continue to send maids abroad’, Reuters, 20th March, 2017, available at: http://www.reuters.com/article/us-indonesia-labour-trafficking-idUSKBN16R18C accessed on: 7th April, 2017.

[17] Brenna Daldorph, ‘Uganda bans maids from working in Saudi Arabia’, RFI English, 27th January, 2016, available at: http://en.rfi.fr/africa/20160127-uganda-bans-maids-working-saudi-arabia accessed on 7th April, 2017.

[18] https://www.theguardian.com/global-development/2016/jun/06/myanmar-women-put-in-danger-by-ban-on-maids-working-overseas accessed on 7th April, 2017.

[19] Constitution of Nepal (2015), Article 17.

[20] Constitution of Nepal (2015), Article 18.

[21] Constitution of Nepal (2015), Article 33.

[22] Constitution of Nepal (2015), Article 50.

[23] Constitution of Nepal (2015), Article 51.

[24] Foreign Employment Act, 2064 (2007), Section 8.

[25] Foreign Employment Act, 2064 (2007) Section 9.

[26] CEDAW, General Recommendation 26.

[27] ILO Convention 111, Article 2 and 3 (c).

[28] राष्ट्रिय न्यायिक प्रतिष्ठान, “महिलाको न्यायमा पहुँचसम्बन्धी अध्यान प्रतिवेदन”, २०७२, पृष्ठ १२-१५.