How do we Recognize the Work and Human Rights of
Domestic Workers at International Level

It is true that countries of the Middle East desire to employ foreign domestic workers. They first preferred Arabs, then Muslims, and if there were further openings workers of other religions. Violations of basic human rights, abuse, harassment and exploitation is more common in countries of the Middle East than in countries of Europe or East Asia. Reasons for this situation may be seen in special Socio Political structures, cultural orientations, and lack of familiarity with core Labour Standards.
"Domestic servants working in household's abroad encounter treatment ranging from hostility, racism, or indifference to love and affection. Just as governments in GCC countries distance themselves from guest workers, so housemaids sponsors maintain a similar social distance within households. By separating the maid's living quarters from those of the family, limiting her mobility, curtailing her socializing, and imposing hard work and discipline, employers create and reinforce social separations. At the same time, many housemaids work in the same household for four, eight, or even twelve years at a stretch. Housemaids perform the most intimate of services for their employers, and some said with evident love and loyalty that their employers were like a second family. Ties of dependency, affection, and camaraderie develop despite carefully constructed boundaries and cultural differences separating sponsors and their employees. As intimate outsiders and marginal insiders, housemaids have a great deal of informal power to challenge many of the categories maintaining distance and hierarchy between employer and servant. "

(Michel Ruth Gam Burd - Female migration from Sri Lanka Cornel University …………1999/235-236)

Alien population employed in the Gulf as guest workers far exceeds total native population. Fear, insecurity and uncertainty prevails at the presence of such a large expatriate population. There is strict compliance of Islamic law as a guarantee against Social disorder. Middle East countries employ bulk of Sri Lankan domestic workers. There is a large concentration of Sri Lankans estimated at a stock of 705,000 persons. (Please see table) They have emigrated several times and form a predominant network of Sri Lankans happy with their employers and the working environment.

They are organised into Cultural Associations with the blessings of host Governments. They commemorate National festivals and form cheer squads at sports festivals. They are very supportive to offer Sri Lankans who face problems.

On closer analysis it appears that first timers face greatest difficulty in adjusting to a new culture, a new work ethic and a situation of social isolation. Sporadic attempts by Government of Sri Lanka to improve its Pre-departure Training, entice workers through insurance and welfare, fails to find an answer to problems for the uninitiated. Social Scientists of Sri Lanka and the Gulf countries have not delved into Psychosocial issues affecting migrant domestic workers as some problems go beyond rights issues.

The Estimated Stock of Sri Lankans Overseas Contract
Workers in Middle East in 1999

Source handbook of  statistics SLBFE 1999

This situation is complicated by the presence of Middle men who thrive on ignorance of migrants both at home and in the host country. The enormous costs of migration which have to be repaid with least delay causes much anxiety to the migrant. There is "little or no" prior knowledge of the rights, duties and expectations of employers; prevailing practices or social systems. It has been reported that some Migrant Domestic Workers are unaware of working conditions, adverse climatic conditions health hazards or Government rules in host country prior to migration. Most employers do not realize that when they recruit workers they are getting human beings.

There is no mechanism in place in any host country to receive, counsel and assure new entrants on benefits of early readjustment. At present interventions are arranged at Police Stations, hardly the ideal place for peaceful conciliation. The right awareness should be built at both ends of the migration process.

This is best undertaken through inter country accords or memoranda of understanding culminating in reaching Bilateral agreements between labour receiving countries and labour sending countries.

There is an urgent need for a conciliation service to resolve disputes or misunderstandings. Repatriation must be facilitated for those unable to survive within first six months of employment in every instance where a conciliatory approach fails. International Agencies like the UN and ILO have a large measure of responsibility to propose measures that will ease out differences, shed more light, bring transparency and make the migratory process meaningful to both parties.

Trade Unions being non profit making institutions have a stake in building bridges of friendship between domestic workers organizations and employers as well as other stakeholders like State regulatory agencies, manpower suppliers and labour recruiters. Trade Unions may help in organizing domestic workers and approach the subject by addressing themselves as a social movement. World Confederation of Labour (WCL) (Brussels) declared "immigration thus exist let us accept it as a fact and organize it".

To organize migrant workers, prospective migrants and returnee migrants the affiliate of WCL in Sri Lanka National Workers Congress (NWC) is now engaged in forming Associations of Migrant Workers at local level. 20 such Associations are active, The target is 100 Associations by year 2004. These Associations are informal voluntary organizations. Yet they form an effective network of support to migrant domestic workers and their families by providing information, support, counseling, advise, training in basic skills and promoting alternatives to migration.

With the ratification of UN Convention 1990 by Sri Lanka in 1996 a movement has commenced to use the provisions of the Convention as a model to demand Social Political and Economic rights provided by the Convention to Migrants.

Migrant Worker Associations have taken the lead to demand absentee voting rights to migrant workers while they are away. It is the belief of migrant workers; a majority being women domestic workers; that provision to exercise the franchise will strengthen their hands to demand a better deal through the Sri Lankan political system.

Such empowerment will caution state authorities of abandoning their regulatory functions in preference to promotion of overseas employment through over stretched supply strategies; unconcerned with ensuring rights of migrant workers in the overseas.

The constitution of Sri Lanka (1978) enshrines the guarantee of gender equality, freedom from discrimination on basis of sex and ensures fundamental rights. Sri Lankan Government has ratified the UN Convention on elimination of all forms of discrimination against women (CEDAW). However labour and employment rights of women active in the informal sector such as home based workers Agricultural Workers do not receive protection available to women in the formal sector. This is so with Migrant Women Workers exposed to exploitation without adequate safeguards to protect their rights.

Human rights of domestic workers should first be ensured in Sri Lanka by recognizing women in the labour force. Political will to recognize domestic work wherever it is performed becomes a key issue. Before receiving countries are canvassed to agree to contracts of employment between their citizens and Sri Lankan domestic workers local domestic workers and their work should be recognized. By enacting laws in Sri Lanka to enable domestic workers employed locally to be given contracts of employment.

The Women's Manifesto released by a group of women activists demanded that a national campaign be undertaken to promote more women in politics and in decision making positions.

The Manifesto noted that "the exploitation and Harsh treatment of migrant women workers mainly in the Middle East has been exposed but more needs to be done. Domestic servants and women in the informal sector have no organizations or laws to protect them." They recommended migrant women worker protection through bilateral agreements between the state and recipient countries; standardized contracts with minimum standards for recruitment, working conditions and repatriation; more labour and welfare officers as well as free legal assistance and counseling for migrant workers in recipient countries."

The manifesto also proposed "improved conditions and protection for domestic workers minimum and equal wages; monthly and annual holidays. Health care provisions, employees provident funds.

The women's campaign to place more women in politics coincided with the Parliamentary Elections of October 2000. First impressions were "encouraging with 117 women candidates in the fray. " Results were poor. 8 women were elected where last Parliament had 12 elected members. Women's Education and Research Centre recalls "They were swamped out by Muscle, money and mayhem" and commented "the call is for a much stronger campaign…..It must reverberate through the population and especially the complacent female sector till they are imbued with the spirit of women power" (Werc Newsletter vol 8 no 2)

Where lies the spirit of woman power? Nearly a million women migrant domestic workers in Sri Lanka are entitled to vote and stand for election are debarred from entering the electoral process as they are not resident in Sri Lanka at the time of voting.

Migrant domestic workers are increasingly demanding access to the Political process without further delay. It is futile to call on labour receiving countries to ensure human and labour rights to migrant domestic workers when sending countries do not ensure these very rights to their own Citizens.

Migrants are also demanding health rights and safe non-abusive work conditions. International Organization for Migration (IOM) in addressing the Commission on the status of women on the issue of gender and migration in the context of HIV/AIDS observed situations migrants face in their migration. like - Poverty, Exploitation, Separation from families and partners which divorce migrants from socio cultural norms that guide behaviour in stable communities. These constitute a risk factor for transmission of HIV. Trafficking in migrants is another vulnerability factor. Trafficked women are more often coerced into situations of sexual exploitation and HIV infection.

Queer circumstances of overseas employment undertaken for the benefit of society and State have disenfranchised Migrant Domestic Workers. Restoring voting rights as obligated by UN Convention 1990 may be a new opening for political recognition and exercise of political and human rights.

Race, Poverty, and Justice
Migrant Workers and the Death Sentence in Bahrain & Saudi Arabia

Nabeel Rajab - Bahrain Center for Human Right & CARAM Asia
4th World Congress against the Death Penalty, Geneva – 24 February, 2010

Introduction
The Gulf is a major destination for migrant workers, particularly those from Southern Asia and South East Asia. Gulf countries are also widely known for the consistent and endemic violations perpetrated against migrant workers. When it comes to the death penalty, the number of migrants who are killed by judicial execution is grossly disproportional to the size of their populations.
Discrimination on the basis of religion, nationality and ethnicity are common human rights violations in most Gulf States. Migrants from Bangladesh, India, Sri Lanka, Nepal, Pakistan, the Philippines, Indonesia, Sudan, Ethiopia, and numerous other countries travel to the Gulf States to work mainly in the domestic work or low-skilled labor sectors. These workers routinely experience restrictions on their freedom of expression, religion and religious practice, access to justice, access to healthcare, the withholding of passports, threats, physical, verbal or sexual abuse, non-payment of wages, as well as unsafe and unhygienic living and working conditions.

In countries with such systemic abuses and violations, migrant workers form an exceptionally vulnerable community. The legal system itself is skewed against migrants because of the restriction imposed by the kafala sponsorship system. In addition to this, low-income migrant workers have little or no access to legal aid, and in the vast majority of cases cannot afford to pay for legal representation or services. The legal systems in the Gulf can be described as “impossible to navigate” for non-Arabic speakers. Local laws are applied to migrants (including the government’s interpretation of Sharia law in Saudi Arabia) yet there are no provisions to ensure that migrants can understand the legal system or laws - even in cases where defendants could be given the death sentence.

Built upon a system of bias towards nationals, the legal systems in the Gulf countries reviewed in this report are deeply flawed in terms of fair and independent trials, presumption of innocence, and the right to question witnesses. In addition to legal and procedural failings, there is also a problem of corruption, to use of personal connections to ensure favorable judgments by nationals, and questionable judgments issued in secret trials.

The Kingdom of Saudi Arabia is the largest country in the Gulf, It has an estimated population of 28 million, of which 5.6 million are migrants. Migrant workers represent almost 35% of Saudi Arabia’s workforce, and make up approximately 88% of the workforce in the private sector. There are approximately1.5 million[1] foreign domestic workers in the country, most of whom are women. Saudi maintains a closed door policy towards human rights investigators. Requests to visit the country by five different UN human rights special rapporteurs or working groups dating from 2005 onwards remained unanswered at year's end.

The Saudi Legal and Social Quandary

1. Legal & Procedural Problems
The Saudi legal system is based on the government's interpretation of Shari'a (Islamic) law. Their jurisdiction extends to non Muslims for crimes committed in the country. In addition to this, according to the Criminal Procedure Law defendants do not enjoy a presumption of innocence.
Saudi law provides persons under investigation the right to a lawyer to present defense before a criminal court. However, an attorney is not provided at public expense if the defendant cannot afford to hire one. The law also fails to protect the defendant's right to consult with the lawyer upon arrest, and defendants do not have the right to question witnesses brought before them. In general, witnesses are questioned before the initiation of a trial by the investigative authorities, and not by the defendant or their legal representative before court.
Court proceedings in capital punishment cases are closed, making it impossible to determine whether the accused were allowed to present a defense or were denied basic due process. Many capital punishment cases proceed from trial to verdict and sentencing with no public notice, unless the verdict is reported in the media.

2. Lapses in Practice & implementation of Law
It is widely accepted that the tribal, social, economic, and religious status of local employers can influence the judgment made in a court case. Government officials and institutions tend to favor local employers, and show a strong bias towards members of the ruling family, or well-connected persons. The judicial system is known to be unresponsive to requests made by migrant workers[2].

Victims of abused or “runaway” migrant female domestic workers (often escaping from abusive sponsors) are treated as criminals by law enforcement institutions; they are often punished without being offered any protection from or compensation for the situation from which they have escaped. Female migrant workers arrested on charges of prostitution are not asked by police if they were forced into prostitution or not, but instead subjected to hard physical punishment under Saudi law. In a number of cases female migrant workers who have been raped by their local sponsors have been imprisoned or sentenced to a physical punishment.

Saudi officials have in the past made claims stating that legal services are provided to migrant workers who have suffered abuse. In reality the lack of translation services as well as lengthy and costly delays in court proceedings has often discouraged victims from seeking legal redress[3].

From the highest institutions to the lowest officials, the legal systems of Saudi Arabia and most of Gulf States do not encourage victims to pursue investigations against their local abusers. In reality law can be used against migrant workers, but it cannot be used by them.

There are regular impositions of punishments for legal violations committed by migrant workers. In contrast, we do not see that the legal system providing protections or justice for migrant workers seeking redress for violations committed against them.

3. Questionable Judgments
Another important issue is the reliability of judgments passed in judicial systems where torture and maltreatment have been identified as part of the interrogation process. In 2007 the Saudi National Society for Human Rights (a government-funded human rights organization) reported allegations of torture during the investigation process. A 2010 report issued by Human Rights Watch found that torture is again part of investigative proceedings in Bahrain. Additionally, in Saudi Arabia prisoners are routinely sentenced in secret and unfair trials.
Defendants, particularly poor migrant workers from countries in Africa and Asia, often cannot afford or access a defense lawyers, and are unable to follow court proceedings in Arabic. Because of these of seriously flawed and unfair judicial practices, rulings made are unreliable.

4. Lack of Extra-Judicial Means of Support and Assistance
Migrant Workers have little, if any access to support when it comes to navigating the legal system of their host countries. Government representatives of poor sending countries tend to show a reluctance to raise the issue of human rights violations faced by their own citizens in the wealthy Gulf countries. Either out of fear of angering host governments, or risk of jeopardizing the flow of remittances. Embassy and consular officials do not provide information, legal, translation, or advocacy services to the scope of which they are needed.
“… right to Life, Liberty, and Security of Person”[4]
Courts in Saudi Arabia continue to impose physical punishment, including amputation of hands and feet, and flogging for "sexual deviance", and drunkenness. Capital punishment is also practiced, and executions are carried out in public. According to the Saudi interpretation and application of Islamic law, crimes of murder, rape, drug trafficking and armed robbery are punished with beheading.

Saudi Arabia is also one of the few remaining countries to execute people for crimes committed as legal minors (under the age of 18), in breach of international law. In June 2007 Sri Lankan domestic worker Rizana Nafeek[5] faced execution after being found guilty of murder, in a case that highlights critical flaws in Saudi’s system of justice. Nafeek had no legal representation throughout the duration of the case. Because she was allegedly provided with false documentation in Sri Lanka, it is believed that she may have be 17 at the time of sentencing. An appeals hearing revealed that an interpreter used during the case may not have been qualified. Saudi Arabia remain one of the few countries with a high rate of executions for women

1. Disproportional Number of Death Sentences

This report has already outlined the way in which racial discrimination pervades the various levels in the decision-making process taken place prior to the death penalty. Sentencing and execution show further evidence of a racial bias in implementation of the death penalty.

In 2005 191 executions took place in Saudi Arabia. In 2006 there were 38, and in 2007 there were 153, and in 2008 there were 102[6], with an average rate of more than two executions every week according to Amnesty International. Almost half of those executed in Saudi were migrant workers from poor countries. Amnesty International claims today, with a Saudi citizen up to eight times more likely to escape execution through a "blood money". Migrants, mostly Asians and Africans, who face capital trials in the kingdom, are frequently unable to understand court proceedings in Arabic, are often not represented by a lawyer, and are routinely held for long periods in harsh conditions and forced into false confessions. The number of migrant workers from poor sending countries killed under the death penalty in Saudi Arabia is disproportionally high in relation to the total number of migrants in the country. The death penalty is applied discriminately against poor foreign workers. The Saudi authorities do not provide statistics on the death penalty but Amnesty recorded at least 1,695 executions between 1985 and May 2008. Of these, 830 were foreign nationals and 809 Saudis (with the nationality of 56 unknown). Foreigners make up about a quarter of the 28 million populations.

In the last five years it is believed that six people have been sentenced to death in Bahrain, all of them migrant workers from poor countries. In December 2006 three Bangladeshi nationals were executed. On 16 November 2009, the Court of Cassation in Bahrain upheld the death penalty against Jassim Abdulmanan, a male Bangladeshi national. He is facing execution by firing squad at any time. Prior to this, for many years Bahrain had observed a de facto suspension on the death penalty. With three executions in 2006 and the pending sentence for Jassim Abdulmanan, Bahrain appears to be moving against the international trend away from capital punishment.
Human rights groups have raised fears that the death penalty in Bahrain is discriminately used against migrant workers. In October 2009 a Bahraini national was given a life sentence for the attempted rape and murder of an Ethiopian domestic worker in his employ. This case raises serious questions about racial bias in judgments.[7]

Such judgments can be seen as part of a wider practice of discrimination, exemplified by the Bahraini Parliament’s 2008 attempt to ban all Bangladeshi workers following an incident in which a Bangladeshi mechanic killed a Bahraini client in a dispute over payment.[8] The Bahraini government temporarily froze visa issues to all Bangladeshi citizens in the wake of this incident. Both Saudi Arabia and Kuwait, in 2008 and 1999 respectively, also introduced bans on issuing work visas to Bangladeshi nationals, although Kuwait later retracted the ban. In both cases these bans were implemented based on similar prejudices – an entire people were criminalized based on the actions of certain individuals.

Such measures at the national level further perpetuate discriminatory conceptions and practices which play into the judicial process’ bias against migrant workers.

2. Poverty and the Death Penalty

Economic status is also an important factor in the likelihood of being sentenced to death, and its effect is the increased vulnerability of the vast majority of migrants, who work in low-paid jobs in the Gulf. Firstly, migrant workers have little or no access to influential figures such as Government authorities or tribal leaders, who could intercede in legal proceedings. Arbitration is an important judicial and social mechanism in Gulf States, and without a ‘wasta’ (connection), migrants have even less options when it comes to seeing justice.

Another important factor is migrant workers’ lack of access to money, which could be provided as ‘deya’ (blood money, agreed on by relatives of the deceased). Both access to influential figures and access to finances are crucial factors in securing clemency from execution, and the overwhelming majority of migrant workers have neither.

3. Current Status on Death Sentences

In both Bahrain and Saudi Arabia, final judgment on the death penalty comes in the form of ratification from the head of state. No death sentence is executed without ratification by the Bahraini King. The unfortunate trends detailed above show a lack of political will to introduce a suspension on the death penalty.

In December last year the Bahraini government abstained in the vote for a United Nations resolution calling for a moratorium on executions globally. The resolution which was passed by a vote of 106 in favor to 46 against, with 34 abstentions.

Conclusion
As this report shows, the weight of the executioner’s sword falls heaviest on those who are most vulnerable in Gulf societies. Legal and procedural problems, lapses in implementation of law, judgments of questionable validity, lack of access to support and assistance all contribute to the highly disproportional number of migrant’s killed using the death penalty by these states. Justice, as we have seen, is not blind – it knows nationality, race, language and money, and the harshest penalties in are reserved for those among the least able to defend themselves.

Recommendations
To the governments of Bahrain and Saudi Arabia;
• To declare a suspension on judicial executions.
• To uphold and ensure the implementation of the highest standards of judicial practice – including open, free and fair trials
• To ensure access to legal representation for all defendants facing the death penalty
• To provide access to information and translation services for migrants at all relevant legal and governmental institutions.
To representatives of sending countries;
• Sending countries should stop prioritizing remittances over the life, health, happiness, rights and safety of their nationals.
• To establish consular or embassy level presence in Gulf states
• To assign a legal envoy to deal with labour issues
• To provide legal information, assistance and representation to nationals who cannot afford it themselves
• To provide information to all migrants about their rights and the laws of the receiving country in own language

To Local NGO’s, social, and charitable organizations;
• To provide assistance to embassy staff in producing and disseminating informational material for migrant workers
• To provide assistance and follow-up support work to migrant workers involved in legal disputes

To media organizations in receiving countries;
• To cease media campaigns inciting racial hatred against migrant workers
• To provide consistent, fair and accurate coverage of migrant iss

ues