FORUM -ASIA SOUTH ASIA JUDICIAL BAROMETER FORUM -ASIA © FORUM-ASIA and Law & Society Trust 2020 The Asian Forum for Human Rights and Development (FORUM-ASIA) is a Bangkok based regional network of 81 member organisations across 21 Asian countries, with consultative status with the United Nations Economic and Social Council, and consultative relationship with the ASEAN Intergovernmental Commission on Human Rights. Founded in 1991, FORUM-ASIA works to strengthen movements for human rights and sustainable development through research, advocacy, capacity development and solidarity actions in Asia and beyond. It has sub-regional offices in Geneva, Jakarta, and Kathmandu. www.forum-asia.org FORUM-ASIA Law & Society Trust 3rd Floor, S. P. D. Building 3, Kynsey Terrace 79/2 Krungthonburi Road Colombo 8 Khlong San Bangkok Sri Lanka 10600 Thailand Tel : +94 11 268 4845 Tel : + 66 (0) 2 1082643-45 : +94 11 269 1228 Fax : + 66 (0) 2108 2646 Fax : +94 11 268 6843 Web : www.forum-asia.org Web : lstlanka.org Email : [email protected] Email : [email protected] Facebook : www.fb.me/lstlanka Twitter : @lstlanka ISBN : 978-955-1302-94-8 Table of Contents Acknowledgements v Contributors vii Preface xi Introduction - Migrant Workers in South Asia: A Review of the 1 Challenges Faced and the Legal Protections Available - Sakuntala Kadirgamar 1. International Labour Migration from Bangladesh: Risk, 21 Protection, and Policy Mohammad Jalal Uddin Sikder 2. At the Mercy of the Law: Legal Protection for India’s 81 Migrant Workers Raghuram S. Godavarthi 3. Labour in The Maldives: A Snapshot of Discrimination 127 against Migrant Workers Shahindha Ismail 4. The Legal and Institutional Framework Governing 159 Foreign Labour Migration in Nepal: Concerns and Challenges Barun Ghimire 5. Labour Rights in Pakistan 221 Zulfiqar Shah 6. Organising for an Effective Legal Framework for Sri 271 Lankan Migrant Workers Devaka Gunawardena Abbreviations and Acronyms 299 iv South Asia Judicial Barometer v Acknowledgements We acknowledge the several organisations and individuals who supported and contributed in putting together the South Asia Judicial Barometer 2019. FORUM-ASIA and the Law & Society Trust for providing sustained support for the publication of the South Asia Judicial Barometer 2019. We would like to specifically thank the past Executive Director of Forum-Asia John Samuel, the interim Executive Director Mukunda Kattel, and Shamini Darshni Kaliemuthu, the present Executive Director, for their support. We also thank Sakuntala Kadirgamar, the Executive Director of the Law & Society Trust for her support. We thank FORUM-ASIA’s South Asia Programme team, especially Anjuman Ara Begum and Debendra Adhikari within the team. We also thank the team from the Law & Society Trust, especially Dilhara Pathirana, Editor and Amalini De Sayrah, Communications Officer who were closely associated with the project. We thank Gabrielle Philips for the cover design and Wits Originals for printing this publication. Special thanks are made to the writers for their contributions. Their views are their own and do not necessarily represent the views of FORUM-ASIA, the Law & Society Trust or their respective Boards of Directors, but they have shone a light on very important issues surrounding the rights and protection of migrant workers who are the backbone of South Asian economies. vi South Asia Judicial Barometer The writers draw on their rich associations with a variety of CSOs and we acknowledge their contributions to this subject. These organisations include: The Refugee and Migratory Movements Research Unit (RMMRU) (Bangladesh), Development and Justice Initiative (India), the Maldivian Democracy Network (MDN) (Maldives), and the Pakistan Institute of Labour Education and Research (Pakistan). We are indebted to the European Union for its support for this project. We think it is fitting that this report is dedicated to the millions of migrant workers from South Asia who live precarious lives in order to contribute to the welfare of their families, their communities and their countries. The COVID-19 pandemic shone a light on their vulnerability and the unpreparedness of their respective governments to support them in times of crisis. We hope that this report will contribute towards advancing their interests. vii Contributors Bangladesh Dr. Mohammad Jalal Uddin Sikder is an Associate Professor of Development Studies at the Daffodil International University (DIU), Bangladesh and an Adjunct Senior Research Fellow at the Refugee and Migratory Movements Research Unit (RMMRU). He has collaborated with the University of Sussex on The Migrating out of Poverty Research Programme Consortium and is a recipient of the NTS-Asia Research Fellowship from Nanyang Technological University, Singapore. His research interests include: labour migration recruitment processes and returnee reintegration; irregular cross-border migration, human smuggling and trafficking; forced migration and the plight of the Rohingya (Myanmar) refugees in Bangladesh; climate change induced migration; and urban resettlement and livelihood sustainability. He also focuses on technical and vocational education and training (TVET) skills for migration and employment. Sikder is the author of Remittance Income and Social Resilience of Migrant Households in Rural Bangladesh, published by Palgrave MacMillan, New York in 2017. India Raghuram S. Godavarthi is a poet-playwright turned rights activist working to understand the impact of technological interventions in law and policy on the lives and livelihoods of Indians. He was until recently co-chair of the Article 21 Trust, which seeks to affirm human rights at the intersection of technology and welfare governance. He is also a member of the Rethink Aadhaar collective, which seeks to widen the conversation around India’s ambitious biometrics-based identity project, Aadhaar. viii South Asia Judicial Barometer He has written and spoken widely on the need to re-contextualise rights frameworks, with particular focus on the right to food security and the right to work in the age of digitisation, datafication, and atomisation. Maldives Shahindha Ismail is the Executive Director of the Maldivian Democracy Network (MDN). She began her association with MDN in 2004 and has been working mainly on civil and political rights. She has a background in public relations and psychology. She co-authored the Dhivehi publication Asaasee haqqu thakaai minivankan (Fundamental rights and liberties) in 2010 and several institutions have used it as an educational guide. She enjoys teaching human rights to young people and works closely with victims of violence and torture survivors. Her personal interests and hobbies include the cinema, writing, and taking long walks. Nepal Barun Ghimire is a human rights lawyer based in Kathmandu, Nepal. He is involved in strategic litigation to protect the rights of migrant workers and their families. In recent years, he has led several landmark public interest cases in the Supreme Court of Nepal on issues relating to labour migration and governance. He also represents pro bono in Nepal and supports civil society organisations engaged in policy and legal reforms, strategic litigation, and other issues related to the protection of migrant workers. Contributors ix Pakistan Zulfiqar Shah is a human rights and labour rights activist based in Karachi, Pakistan. He is currently Joint Director of the Pakistan Institute of Labour Education and Research (PILER), where he has worked for the past 13 years. As a labour rights specialist, he has produced a number of research reports, delivered expert presentations, and leads policy advocacy initiatives to improve human rights and labour rights in Pakistan. He is a member of the Steering Committee of the Pakistan Human Rights Defenders Network. He holds a Master’s degree in International Relations and prior to joining PILER, was a journalist with a leading English newspaper in Pakistan. In January 2005, he received the “Lorenzo Natali Media Prize” awarded by the European Commission for writing on human rights and democracy. Sri Lanka Devaka Gunawardena is an independent researcher who obtained his PhD in Anthropology from the University of California, Los Angeles. His dissertation focused on the export manufacturing industry in Sri Lanka. He specialises in labour studies and has also worked as the Sri Lanka Coordinator for Industrial Global Union. Sakuntala Kadirgamar is the Executive Director of the Law & Society Trust. She is a constitutional lawyer and has a PhD in Jurisprudence from the University of Sydney, Australia. She focuses on the rights of marginalised communities. She has worked as a constitutional and gender expert with the United Nations in Nepal and Somalia and as an expert on the Standby Mediation Support Unit. x South Asia Judicial Barometer xi Preface The effective legal protection of migrant workers has emerged as a policy priority having substantial social, political and economic implications in South Asia. Labour migration has continued to advance over time, and the challenges that emerged have increased in complexity. Looking at the changing context around the issues of migrant workers, new approaches are needed. These approaches should ensure the advancement of a fair migration agenda and appropriate addressing of the wellbeing of migrant workers along with legal reform that would respond fairly to the interests of countries of destination and origin, to employers, and the employee. Efficient judicial measures