Human trafficking under the guise of labour migration has become one of the most severe problems faced by Nepali migrant workers in recent times.
By Anurag Devkota*
Cause and effects
One of the major concerns in this sector arises from the lack of accurate statistics, which makes it problematic to identify the actual extent of the problem. A significant factor in favour of traffickers has been the open border with India, providing ample opportunities for traffickers to transport victims either through or to India. Migrant workers in an irregular situation are particularly vulnerable and easily fall prey to traffickers, leaving behind no traces of records and registrations.
Although the two are intrinsically linked issues, completely different mechanisms govern these sectors from the ministerial to ground level. This is probably because labour exploitation is generally thought to be a violation of labour law standards but not as something that is to be criminalised. Unless this perception is changed, and a coordinated approach to the system of these two mechanisms is established, the problems in this sector are likely to intensify.
The governing actors in both domains remain largely silent regarding their interconnections. Foreign employment-governing legislation also fails to address concerns regarding human rights violations and rights-based aspects of migrant workers’ experiences. Meanwhile, trafficking-related law is primarily concerned with sex, child and organ trafficking, with no emphasis on labour-related issues. Therefore, an analysis of Nepal’s changing context of human trafficking under the guise of foreign employment requires a thorough exploration of the interconnections.
The definition of human trafficking under the Human Trafficking and Transportation Control Act (HTTCA) 2007 does not address the concept of labour exploitation. Consequently, victims of labour exploitation prefer to submit claims for restitution through the Foreign Employment Act (FEA) 2007 rather than pursue lengthy criminal prosecutions. This is often to avoid the stigma associated with being labelled as a trafficking victim and because the potential to be awarded restitution is higher. This has created an opportunity for offenders to get involved in severe trafficking offences and still evade punishment through out-of-court settlements. Mediation yields minor financial settlements for victims at times, while no compensation at others.
A more proactive approach
It is time that the government considers ratifying and domesticating the UN Trafficking Protocol. Nepal is still classified as a Tier 2 country by the 2018 Trafficking in Persons Report, meaning that government initiatives have not been utilised to their full efficacy and have not met the minimum standards. Both an appropriate amendment of the HTTCA and addressing the interrelated elements needs to be expedited, making the FEA more victim-centric and widening the scope of the HTTCA.
The courts of Nepal need to take a more proactive approach in bridging existing legal voids in order to untangle the migration and trafficking interconnection through influential judgments. Government of Nepal v Sitaram Theeng, a case from Makwanpur district, could serve as a reference where the judiciary has exemplarily stepped up in untangling the conflation between the two offences. In this case, Justice Tek Narayan Kunwar rightfully established the verdict that although the ‘victim was taken abroad [with]his/her consent for foreign employment, the injustices against him/her abroad consisted of elements of human trafficking, such as recruitment, transportation transfer, harbouring, receipt of the person and exploitation’, thereby situating the punishment under the offence of trafficking.
The court should hence replace the present attitude of ‘establishing the charge’ by challenging the very prima facie in interconnected offences like these. This shift in perspective, accompanied by adjustments in the existing normative and institutional framework, will break the chain of human trafficking and labour migration.
(*Anurag Devkota is a human rights lawyer based in Nepal. He is a regular contributor at Rights Corridor)