Law Update
Rationale of framing new
emigration law
Dr. Tasneem Siddiqui
Labour migration from Bangladesh is governed by the Emigration Ordinance 1982. This Ordinance was framed in a historical context when Gulf countries formally encouraged movement of workers through providing various incentives to the recruiting agencies as well as to the migrants. Decent wage, holidays, yearly vacations, overtime, commission to recruiting agencies were part of the labour recruitment deals. Over the years, Gulf and Southeast Asian labour market where the Bangladeshi migrants mostly participate became a buyers' market. Exploitation and fraudulence both within Bangladesh and the countries of destination became rules rather than exception. The complexities of current labour migration could no longer be attended by the 1982 Emigration Ordinance. Civil society organisations have been demanding for updating the law since 1998.
In 2009 the Ministry of Expatriates' Welfare and Overseas Employment (EWOE) decided to update the law and formed an inter-ministerial committee including civil society representation from Refugee and Migratory Movements Research Unit (RMMRU) and Manusher Jonno Foundation. The committee suggested revision of few selected section of the Ordinance. The Law Commission of Bangladesh initiated another review process. RMMRU is providing technical expertise to review the existing law. In 2009 a high level committee was formed comprised of government functionaries from Ministry of EWOE, BMET, Law Commission, legal and migration experts. In the meantime the government of Bangladesh has ratified the 1990 UN International Convention on Protection of Rights of All Migrant Workers and Members of Their Families. Therefore, it became expedient and necessary to reflect the Convention in national legislation. Keeping in mind the need for reflection of the 1990 Convention to national legislation, the committee thoroughly reviewed the existing Ordinance as well as Emigration Act of India, Nepal, Sri Lanka, Pakistan and the Philippines. The high level committee drafted a new law and in April 2011 it handed over the draft to the EWOE Ministry. The Ministry organised a civil society consultation and more or less accepted the new draft law. The draft is now ready to be placed before the Parliamentary Standing Committee and the Law Ministry.
Laws are framed with the understanding that it will govern future activities for at least 30 to 40 years. It is therefore, immensely important to get comments and analysis from a wider community. To generate such discussion main features of the law has been presented below.
Important features of the draft law
The committee suggested a new name of the law - 'Overseas Employment Act 2011' consisting of 32 sections.
The most important feature of the draft law is that it highlights the rights aspect of the migrants and designed to curb out fraudulent activities in labour recruitment process. It renamed the head of the implementing authority from 'Registrar' to 'Protector of Emigrants' and includes principle of non-discrimination.
In the preamble it takes into account all the ILO Conventions and the UN Convention 1990.
It introduces the concept of renewal of license of recruiting agencies on the basis of performance. Establishment of accountability of sub-agent is an important addition to the previous Act. The recruiting agencies can appoint sub-agents with prior approval of the government and is liable to provide ID to its sub-agents. On the other hand, in the section of cancellation of license recruiting agencies right to appeal has been ensured. The draft law in section 16 says: (1) No license or authority shall be used, directly or indirectly, by any person other than the person in whose favour it was issued or at any place other than the place mentioned in the license nor shall the license be transferred, conveyed or assigned to any person or entity. (2) No transfer of the business address or designation of any agent or sub-agent or representative mentioned in the license shall be made without prior approval of the Government.
In Lieu of provision for special court in seeking remedy, the proposed draft suggests the institution of a Protector of Emigrants, who would file cases on behalf of the migrants. If the Protector of Emigrants fails to do so within a stipulated period the migrant has the right to file a criminal case under Section 154 and 200 of the Criminal Procedure Code. Here is the relevant provision of the draft:
--S. 27. Special courts: Offences under the Act shall be tried in accordance with Criminal Procedure Code in the court of Judicial Magistrate. Provided that a criminal case against a recruiting agent for offences under this Act shall be filed by the Protector of Emigrants or an official authorized by him or by the concerned Ministry. Provided further that a complainant shall file a complaint to the Protector of Emigrants for offences committed against him and in case of failure to file a case by the Protector of Emigrants within the prescribed period, the complainant may file a criminal case under Section 154 and 200 of the CrPC.
--S. 28. Civil Suit: Nothing in this Act shall bar a complainant to file civil suits and such civil suits may proceed independently of criminal case, if any.
--S. 29. Alternative Dispute Resolution: Parties to a suit may settle their disputes through mediation and/or arbitration as per Section 89 (A) and (B) of CPC.
--The new draft reflects the interests of the migrants and provides for different avenues of remedy against malpractices. It is hoped that this piece of legislation would render food for thought to the concerned authorities and a new 'Overseas Employment Act 2011' would see the light of the day within a remarkably short time.
The writer teaches at Department of Political Science, University of Dhaka and works with RMMRU. RMMRU invites comments on the draft to: [email protected].
