A mechanism needs to be created to protect the legal aid rights of migrant workers

Anurag Devkota

Migrant workers suffer a wide range of human rights violations including abuse, exploitation and torture in the destination countries. Further, they become particularly susceptible to human rights violations when they encounter the criminal justice system. In countries that host large numbers of migrant workers, foreign nationals are vulnerable to discriminatory treatment and deprivation of due process resulting from linguistic and cultural barriers.

The justice systems are especially difficult for migrant workers to understand and navigate due to lack of command of the local language, financial resources and awareness regarding access to resources within the local legal system. For Nepali migrant workers, most of whom have no educational background orientation, the situation is even grimmer.

The predeparture orientation programmes mandated by the government do not provide adequate details about the foreign criminal justice system. Information about common barriers or risks for migrant workers, their rights in the destination countries and how they may exercise them should they be arrested is not provided during the training sessions. The government has a constitutional duty to implement legal aid programmes for its citizens residing and working abroad. According to Article 50 of the constitution, the state’s political objective ‘shall be to establish a public welfare system of governance’. Such a system requires policies designed to protect and promote citizens’ socio-economic status, opportunity and safety. The government has not made policies to ensure these three things.

By failing to provide formal legal aid programmes for its citizens arrested abroad, the government has violated Article 20(10) of the constitution which states, ‘Any indigent party shall have the right to free legal aid in accordance with law.’At the same time, it has violated other constitutional provisions including the right to live with dignity, personal liberty, non-discrimination and information.

The government has recently acknowledged its duty to protect Nepali migrant workers imprisoned or awaiting trial in foreign countries by agreeing to create legal aid programmes for those who cannot afford, or would otherwise be denied, legal assistance. On June 28, 2018, amid intense debate, the ministry issued the Guidelines to Provide Legal Protection to Migrant Workers, 2018. According to the guidelines, the government is required to provide free legal aid to indigent Nepali workers who migrated through legal channels. With regard to eligible recipients, Nepali government officials will investigate the criminal offence with which the worker has been charged, the legal aspects of the case specific to the destination country, and the judicial process. Embassy officials will then hire ‘a competent local lawyer with knowledge of the foreign country’s legal system to defend the migrant worker’s legal rights’.

However, a provision in the guidelines seems to be contradict international human rights norms and principles. It excludes undocumented migrant workers, stating that ‘they are not subject to protection and legal assistance’ from the government. The exclusionary provision contradicts universal principles like’ everyone shall have equal access to court and tribunal’ and ‘non-discriminationand equality without distinction of any kind or status’. The protection of citizens’ rights must not be contingent onhis or her status.

The UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, General Comment No 2 states that while irregular entry and stay may constitute an administrative offence, it is not a crime per se. The Special Rapporteur on the Human Rights of Migrants also says that irregular migration is not a crime. A new directive of the government identifying non-documentation as a crime, and freeing itself of the responsibility to protect its citizens’ right to life is unjust.

The government should not ignore the fact that precautionary failure on its part is what leads migrant workers to assume an undocumented status. Impractical bans, failure to implement zero-recruitment policies, failure to put unscrupulous intermediaries behind bars, and the centralised judicial structure perpetuate the undocumented status of many migrant workers. Ousting workers on the grounds of documentation is how the government evades its responsibility and remains hostile towards the plight of migrant workers.

It is imperative that the government address these challenges through measures that aid migrant workers in the navigation of foreign criminal justice systems. If the government hastily endorses new mechanisms and policies without considering the larger picture, the poor situation of migrant workers is going to worsen.

Potential solutions should necessarily be outside traditional approaches and encapsulate contemporary developments in the field of human rights and migration. Moving forward, the government is necessarily tasked with providing more practical and competent mandates that can ensure legal assistance to migrant workers languishing in inhumane conditions in foreign jails.

Published On: 17 January 2019 | The Kathmandu Post