Breaking the chain

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*

The fact that Nepal is heavily reliant on remittance and foreign employment is uncontested. Foreign employment constitutes nearly one-third of the national economy of the country. Forming the base of this sector are some of the most unrewarding, challenging and perilous jobs that are filled with cases of trafficking and exploitation. Studies have suggested that Nepali migrant workers are more prone to become victims of forced labour and trafficking in destination countries under the guise of foreign employment. Migrant workers comprise the vast majority of Nepali people who are trafficked, according to a report by Anti-Slavery International.

The supply chain of Nepali labourers that feeds trafficking networks in Gulf countries and beyond under the pretext of foreign employment is directly linked with the changing pattern of human trafficking in recent times. There is no shortage of material to shape the modern-day narration of trafficking under the guise of migration. Nearly every other day, Janak Raj Sapkota, a journalist for Kantipur Publications, chronicles the saga of the emotional and financial trauma imposed on Nepali migrant workers and the harrowing stories of unsuccessful escapes to the United States and European countries that often result in the workers being stranded along the way.

While there remains a clear distinction between the definitions of labour migration fraud and human trafficking, the line between them is blurred in many aspects, the patterns being a significant one. The close nexus between these two domains makes it difficult to make a sharp distinction, and the courts of Nepal have encountered this tremendous challenge many times. Similarly, the high number of unregistered agents and their shrouded involvement in the overall procedural cycle in Nepal makes it more arduous to link the recruitment agencies to trafficking offences. In most instances, the cases of trafficking are a result of fraudulent promises for foreign employment.

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)