In recent years the Supreme Court of Nepal has decided on several public interest litigations (PIL) relating to rights of labour migrants. The Court has laid down landmark jurisprudence and issued important directives in issues relating to the death of migrant workers, voting rights of migrant workers, implementation of ‘free visa free ticket’ (zero cost recruitment) policy, the appointment of labour attachés, decentralization of government agencies overseeing labour migration and other issues of significance to labour migration governance. Further, there are several ongoing PILs in the Court relating to the ban on women migrant workers, legal aid and sentence transfer, regulation of recruitment agencies, etc.
Civil Society Organizations (CSOs) working in labour migration issues are using strategic litigation as a tool to induce policy reform in labour migration governance and the Court has responded positively so far. The litigation led by CSOs has laid the foundation and created scope for several reforms in laws and policies relating to labour migration. This approach of resorting to the Supreme Court through strategic cases has created traction in broader issues relating to labour rights at home and destination countries. The Supreme Courts rationale on these judgments is based on Nepal’s constitutional obligation and obligation under international human rights law has expanded the realm of protection offered to labour migrants and legal apparatus.
The judiciary has played an exemplary role in cases concerning labour migrant workers, however, while the judgment paves way for actual reform it is only a ‘means’ to an ‘end’. The court orders and directives must be implemented and acted upon to be translated into policy and practice. There are ample of examples where court decision has led to significant policy reform and change, but on the flip side, there are ample of judgments that were never followed up for implementation or led to actual change.
Strategic litigation has yielded unprecedented results in institutionalizing human rights law in Nepal and addressing various human rights concerns in the last decade and the same prospect lies ahead of us in case of rights of migrant workers and their families. Thus, the Supreme Court judgment issued so far needs to be the locus of reform in ensuring the rights of migrant workers alongside constitutional commitment, international best practice, and international human rights law.
This paper will analyze the Supreme Court judgment relating to migrant workers’ rights and will dissect the underlying opportunities and challenges. The paper will also discuss how the judgment has opened scope for reform in migration governance and created a framework and content for legal reformulation and development. The paper upon analysis of the judgment will also make recommendations for the effective implementation of the court orders and directives.
