Migrant rights and Bangladesh

The Ratification of the Migrant Rights Convention: Bangladesh Perspective
By DR. UTTAM KUMAR DAS

Bangladesh is a major country of origin for migrant workers. It is estimated that more than seven million Bangladeshis are now working and living abroad. Those migrant workers are also contributing hugely to our foreign exchange earnings. In 2009, the amount was reportedly 75,000 crore taka (about US$ 10 billion).

Though the sector has huge potential, given the demand for migrant workers in the Middle Eastern, West European, African and North American countries, there are challenges as well due to the low skills of the migrant workers, lack of capacity in both public and private sector in managing the migration sector, and lack of regulatory framework and other measures.

The existing institutions (i.e., Ministry of Expatriates Welfare and Overseas Employment, Bureau of Manpower and Training, and District Employment and Manpower Office etc) also have their own limitations with regard to manpower, capacity, technological, and other logistical aspects to better manage the sector. The State is yet to ratify the vital international instrument in this regard, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990.

THE CONVENTION

The Convention is considered as a human rights instrument. It creates new grounds by extending protection to migrant workers and members of their families globally.

The Convention came into force on 1 July 2003. The adoption of this instrument is viewed as “…how the international community conceives of the application of human rights in its provisions for equality of treatment between different groups of migrant workers: male and female, documented and undocumented, and also between the nationals and non-nationals,” as Dr. Refaat Ahmed (who is now a Justice at the High Court Division of the Supreme Court of Bangladesh) commented in his book, Forlorn Migrants: An International Legal Regime for Undocumented Migrant Workers (Dhaka: UPL, 2000, p. 36).

As of 10 October 2010, the number of signatories to the instrument stood at 31 (including Bangladesh) while number of ratifying State parties was 43. Bangladesh signed the instrument on 7 October 1998 though the Law Commission recommended its ratification.

RIGHTS IN THE CONVENTION

The human rights are applicable to all migrant workers irrespective of their legal status, while other rights are applicable only to migrant workers in a regular situation. However, the Convention does not exclude undocumented workers totally. It has provided provisions for the “just treatment” for those who are in an undocumented or irregular situation. At the same time, the instrument seeks to draw the attention of the international community to the growing trend of dehumanization of the migrant workers and members of their families as well.

The Convention provides following rights to migrant workers (and members of their families):

• Right to life;

• Freedom of movement (Art. 8); [except for those are provided by law for national security, public order, public health and public morals etc].

• Right to equality;

• Prohibition against cruel, inhuman or degrading treatment or punishment;

• Freedom from slavery or servitude and forced or compulsory labour;

• Freedom from arbitrary expulsion;

• Right to privacy; etc.


RESPONSIBILITIES ON STATE PARTIES

For the State Parties to the Convention, there are two types of responsibilities. For a State which is sending migrant workers, the responsibilities are:

1. Allow its citizens seeking employment abroad and their return to the country;

2. Pre-departure information on the working conditions and other requirements;

3. Facilitate the exercise of the political rights by the migrant workers in the country of origin;

4. Provide adequate consular services;

5. Regulate recruitment procedures, which includes prevention of abuse in the recruitment practices;

6. Facilitate return of migrant workers; etc.

For the receiving States (if a party to the Convention), the obligations are:

1. Ensure liberty and security of person of the migrant workers; if deprived of shall be treated with humanity and with respect for inherent dignity of the human persons;

2. Avoid arbitrary deprivation of property;

3. Ensure safe working and living condition;

4. Ensure equal status with regard to access to court and tribunals;

5. Allow association and trade union activities;

6. Right to be recognized as a person before the law;

7. Facilitate family reunification; etc.


BANGLADESH PERSPECTIVE

Almost a decade has passed since Bangladesh has signed the Convention; however, the State is yet to ratify it. Bangladesh also lacks a comprehensive legal framework to govern the migration sector. The ratification to the Convention by Bangladesh would contribute to streamlining the administrative and legal frameworks and measures and initiating related institutional mechanisms among others. However, ratification will bring no benefit if it is not adopted in the domestic legislation and implemented progressively.

There will be no additional obligations on Bangladesh, if it ratifies the Convention. The Constitution of Bangladesh guarantees the following rights for the citizens. Mentionable among these are:

1. Equal protection of law;

2. Right to life and liberty;

3. Safeguards as to arrest and detention;

4. Prohibition of forced labour;

5. Protection in respect of trial and punishment;

6. Freedom of thought, conscience and religion;

There is a remedial mechanism as well if one is deprived of those rights [i.e., Right to enforcement of these rights]. As a citizen of Bangladesh, wherever one goes (as a migrant worker) s/he is entitled to have the Constitutional protection of respective rights; the State (Bangladesh) has a role here to ensure and facilitate the enjoyment and protection of those rights.

There are misconceptions that ratification of the Convention might make the labour receiving countries unhappy. This is not the case and also not justifiable through empirical evidences. The experiences of major labour sending countries like Philippines and Sri Lanka do not support that. After ratification of the Convention those States have gone for gradual streamlining of the migration sector through adopting legislative frameworks, institutional arrangements, skill development of migrant workers,

bringing accountability and transparency in the management, and effective monitoring mechanisms among others.

A quarter is reportedly propagating that if Bangladesh ratifies the Convention it would bring “more obligations” to the State for the incoming migrant workers here in Bangladesh. They are saying that through the ratification the Convention, theState would have more obligation with regard to “… respect and ensure the rights to freedom of movement, freedom from torture, freedom of thought, expression, conscience and religion, right to property, right to join freely any trade union etc. without any distinction of any kind...,”...

Only documented migrant workers (and their families) are entitled to have right to liberty of movement in the territory of the State of employment. However, this freedom is again restricted by the relevant laws of the State to protect national security, public order, public health and morals. Those rights have bearing effects in the International Covenant on Civil and Political Rights, 1966 (ICCPR) which Bangladesh has already ratified.

Right to property will be regulated by the respective law of the State; however, migrant workers could not be arbitrarily deprived of their property rights, which is a rule of a civilized law.

Freedom from torture is prohibited in Art 7 of the ICCPR. Bangladesh is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 which obliged the State Parties to “… take effective legislative, administrative, judicial or other measures to prevent acts of torture…”

Freedom of thought, expression, conscience and religion is guaranteed for “everyone” in the ICCPR (Art. 18); [Bangladesh is a party to that instrument already]. As it has been explained earlier what are the obligations imposed by the Convention for a ratifying State; those are nothing more than the Constitutional and other obligations already in place in case of Bangladesh [i.e., equal protection of law for every other person(non-citizen), Art. 31 of the Constitution]. At the same time, nothing in the Convention shall have the effect of relieving migrant workers (and their families) from either the obligation to comply with laws and regulations of a State (of employment).

I argue for immediate ratification of the Convention by Bangladesh. This will boost the image of the State in international community and give a moral position to negotiate with counterparts to promote safe migration for its nationals and to protect rights of the Bangladeshi-origin migrant workers. At the same time we should immediately go for adoption of appropriate regulatory regime and their enforcement.

Bangladesh is now a major player in the United Nations system and its human rights mechanisms. Therefore, the ratification of the Convention will pave a way for showing its commitment and credibility for the cause of promoting and protecting rights of the migrant workers.

(This article was presented in a seminar in Dhaka organized by WARBE Development Foundation and its partners on 11 October 2010).

*Originally appeared in the PROBE News Magazine, Dhaka, 15-21 October 2010; link: http://www.probenewsmagazine.com/index.php?index=2&contentId=6432