One migrant domestic worker in Lebanon decided to fight the “kafala” system and escape her employers. She took her case to a Lebanese court, and, seven years on, has been rewarded by achieving a measure of justice, a feat that would have seemed impossible to achieve a mere decade ago.
BEIRUT (ILO News) – After witnessing war first-hand during the Israeli invasion of Lebanon in July 2006, Jennifer, who wishes to withhold her family name to protect her identity, did not want to renew her contract to work in Lebanon as a migrant domestic worker.
She said she no longer felt safe in Lebanon. And instead of the US$ 200 a month promised her by a Philippine recruitment agency, the family which employed her only payed her US$ 150. In addition, her employers kept a large part, on the understanding she would receive the full amount at the end of her two-year contract.
For many of the migrant domestic workers living and working in Lebanon and elsewhere in the region, employment, working and living conditions promised them in their home countries rarely match reality in the host country. The ILO estimates that there are 600,000 forced labour victims in the Middle East.
“I just wanted to go home,” Jennifer said. She decided that as soon as her contract finished early the following year, she would return home to the Philippines. When she told her employers she did not want to renew her contract, however, they insisted she had to remain.
The majority of migrant domestic workers in the Middle East are bound by the “kafala” system, which ties workers to their employers, restricting the workers’ ability to move freely, terminate their employment contracts or change employers.
“I told them I would to go to the Philippine embassy,” said Jennifer. Even then, they held on to her passport, a common practice in the Middle East, where the “kafeel,” or sponsor, takes all the migrant domestic worker’s identity documents.
“I went anyway. I went out and asked another domestic worker where I could find the embassy. She gave me directions, and I just walked and walked,” said Jennifer, speaking to the ILO by telephone from her hometown of Vintar in the north-western Philippines, where she now works as a teacher.
The Philippine embassy took Jennifer in for two weeks, and arranged for her flight back home. But after many months of arduous work in Lebanon, she was forced to leave without her unpaid wages.
Although this was the end of Jennifer’s ordeal as a migrant domestic worker in Lebanon, it was the start of her long journey to achieving justice through the Lebanese judicial system.
The ruling discussed in this commentary concerns the case of a female migrant domestic worker whose passport was withheld. The violation addressed in the lawsuit is, of course, no unique occurrence, but rather a very widespread one in Lebanon. This is a country where slavery has taken the form of a sponsorship system in which the “sponsor” is the “master”. Behavior such as that of employers withholding workers’ identification documents, or confining them to their homes, has thus become socially “acceptable” among broad segments of its population. Supported by a tremendous amount of preconceptions about migrant workers, social justifications for such violations become effective means to push them outside the scope of prosecution and accountability. What sets the worker party to this ruling apart from tens of thousands of others like her is that she was able to turn to the judiciary to get her passport back from her former employer. On June 23, 2014, following a petition submitted to him, Summary Affairs Judge Jad Maalouf issued a ruling that is, as far as we know the first of its kind, requiring an employer to return a migrant domestic worker’s passport.
A Judicial Ruling That Places the Issue in its General Social Context
The first noteworthy feature of this ruling is that Maalouf examined the case brought before him after placing it in its general social context. This can be seen in one of the points raised early on in his ruling, where he states that: “the present matter raises the problematic issue of the existing relationship between migrant domestic workers and their employers (…). This especially concerns the practice of limiting the freedom of movement of migrant workers.”
The issue of withholding the identification documents of migrant workers is only the result of a larger problem, namely, the nature of the working relationship between the two parties (the sponsorship system). According to the text of the ruling, such a relationship results in “some practices known to be widespread and accepted by many. This especially concerns the practice of limiting the freedom of movement of migrant workers through various means, the least grave of which is perhaps that of their employers withholding their passports”.
In his text, Maalouf made sure to mention Lebanese society’s most common justifications for employers restricting the freedom of female migrant domestic workers. Thus, the ruling literally states that “this practice is based on many justifications such as [that claim that withholding the passport] guarantees that domestic workers will not leave [their employer’s] home and continue to work [there] throughout the duration of their contract”. It also mentions the financial burdens incumbent on employers to bring migrant workers into their employ. Maalouf then proceeds to negate the notion that employers have the right to encroach upon the fundamental rights of domestic workers on the basis of such justifications. Any restriction of freedom of movement, he argues, “can only take place in exceptional cases, in accordance with a legal text, on the part of a public authority and under the supervision of a legal one”.
Freedom of Movement: A Fundamental Freedom of Constitutional Value
To build his argument, Maalouf begins by stressing the gravity of withholding migrant domestic workers’ identification documents. Their passport, he argues, is the document that allows individuals to leave their country of residence. It “represents the principal means of identification for foreigners. It is also the main document [needed] for official procedures, whether to obtain residency permits or health insurance, or to benefit from any basic services”.
Maalouf bases his ruling on United Nations covenants and international treaties ratified by Lebanon. Chief among these are the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination (which is rarely ever invoked). Mentioned in the Preamble to the Lebanese Constitution, these treaties supersede positive law and unanimously consecrate the fundamental right to freedom of movement, without discrimination between citizens and non-citizens.
Maalouf subsequently argues that the practice of employers withholding passports is discriminatory, being restricted to female migrant domestic workers, “as no case of a Lebanese passport having been withheld by an employer has ever come to light”.
He then invalidates the pretexts used by employers to justify withholding migrant workers’ passports, and most prominently that of the financial burden suffered to bring them to Lebanon. Such pretexts, he concludes, “cannot in any way justify infringing on the fundamental rights of migrant workers, and withholding passports as a form of guarantee. Restricting [workers’] freedom of movement cannot be used to guarantee such financial rights, and to guarantee that [workers] will not leave [their] employment”.
“Leaving One’s Employment Does Not Constitute a Criminal Act”
Perhaps no less important was Maalouf’s approach on the issue of migrant domestic workers leaving their employment. The prevalent view on such instances in the judiciary had been to consider them cases of “running away”, for which workers are punished with prison and a fine.In contrast, Maalouf asserts that migrant domestic workers leaving their employment merely constitutes “a contractual dispute or an unjustified breach of contract”, not a criminal act. He thus finds nothing to warrant referring the case to the Public Prosecution, as would be required if he were to discover a criminal act while examining a particular case.
With this ruling, Maalouf laid the groundwork for a precedent in cases involving female migrant domestic workers. Not only did he produce the first ruling ever issued by a Summary Affairs Judge to require an employer to return a migrant worker’s passport, he also made sure to assert the illegality of a number of practices resulting from the sponsorship system. This represents a major step forward for the Lebanese judiciary, which had in the past viewed such practices as self-evident, according to a 2010 Human Rights Watch (HRW) report. In 2000, one investigative judge had even gone as far as to accuse two migrant domestic workers of “stealing their own passports”.
Whereas the plaintiff, Ms. X, through her legal representative, Mr. Y, attorney at law, requests that her former sponsor be required to return her passport, which [the aforementioned sponsor] continues to unrightfully withhold;
Whereas the present matter raises the problematic issue of the existing relationship between migrant domestic workers and their employers, and of some practices known to be widespread and accepted by many. This especially concerns the practice of limiting the freedom of movement of migrant workers through various means, the least grave of which is perhaps that of their employers withholding their passports. This practice is based on many justifications such as [that claim that withholding the passport] guarantees that domestic workers will not leave [their employer’s] home and continue to work [there] throughout the duration of their contract;
Whereas a person’s passport is the document that allows them to travel and leave their country or the country in which they work, return to their country or go to any other; in a foreign country, their passport represents the principal means of identification for foreigners. It is also the main document [needed] for official procedures, whether to obtain residency permits or health insurance, or to benefit from any basic services;
Whereas the Preamble to the Lebanese Constitution states that Lebanon is “a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The Government shall embody these principles in all fields and areas without exception”. This Preamble represents an integral part of the Constitution and enjoys the same standing [as it does] in the hierarchy of laws. International treaties mentioned in the Preamble represent an integral part of the Constitution as well;
Whereas Article 13 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of movement and residence within the borders of each state”, and that “everyone has the right to leave any country, including his own, and to return to his country”;
Whereas Article 12 of the International Covenant on Civil and Political Rights – ratified in New York on December 16, 1966, and to which Lebanon is party under the law implemented in Decree No. 3855, dated September 1, 1972 – states that “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”, and that “everyone shall be free to leave any country, including his own”;
Whereas Article 26 of the aforementioned Covenant states that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”;
Whereas Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination states that “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination”;
Article 5 of the aforementioned Convention also states that “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of” a number of rights listed the aforementioned article. Such rights specifically include “other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one’s own, and to return to one’s country”;
Whereas it can be concluded from the abovementioned texts that freedom of movement constitutes a fundamental freedom – one which France’s Constitutional Council considered to represent a principle of constitutional value;
Whereas withholding a foreigner’s passport does not only lead to restricting their freedom to travel and leave the country, to return to their own country or go to any other; In addition, it prevents their safe movement within the country they are currently located in, by depriving them of their recognized official means of identification. It also deprives them of many of their other fundamental rights, as listed above – not least of which are the right to obtain a legal residency permit, and the right to legally benefit from [certain] services, especially health services. These are some of the most basic and fundamental rights enjoyed by migrant domestic workers, whether they remain employed or even in case they have left their employment;
Whereas the laws and regulations in effect, as well as current practices, impose financial burdens on employers in order to bring migrant domestic workers [into their employ]; [Such burdens] cannot in any way justify infringing on the fundamental rights of migrant workers, and withholding passports as a form of guarantee. Restricting [workers’] freedom of movement cannot be used to guarantee such financial rights, and to guarantee that [workers] will not leave [their] employment;
Whereas migrant [domestic] workers leaving their employer’s home does not in itself constitute a criminal act of any kind, but merely a contractual dispute or an unjustified breach of contract, and cannot justify withholding [their] passports; It should also be mentioned that the cases addressed usually result from passports being withheld by individuals, not by a public authority. This confirms the gravity and illegality of such a practice, as any restriction of freedom can only take place in exceptional cases, in accordance with a legal text, on the part of a public authority and under the supervision of a legal one;
Whereas it should be noted, in addition to all of the above, that the aforementioned practice also conceals unjustified discrimination between Lebanese and foreign workers, in breach of Lebanon’s international commitments; Indeed, it is usually restricted to female migrant domestic workers, as no case of a Lebanese passport having been withheld by an employer has ever come to light; Such discrimination has been expressly condemned, and not only in the abovementioned Convention; and
Whereas it is incumbent that the accused be required to return the plaintiff’s passport, in order to allow the latter to regularize her [legal] status and complete the procedures needed to leave the country. It should also be noted that [the plaintiff’s] lawyer has committed to completing [these] procedures at her own expense.
Therefore, [The court] rules that:
The accused should be required to return the plaintiff’s passport immediately.
Ruling effective immediately, issued in Beirut on June 23, 2014.
Judge Jad Maalouf
This article is an edited translation from Arabic. For a commentary on this ruling, click here _________________________________________________________________  Excerpts from the Lebanese Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination were not placed under quotation in the original text.
In recent years, some countries have banned their citizens from working in Lebanon due to lack of legal protection and chronic human rights abuses, among them Philippines, Ethiopia, Nepal, Madagascar and most recently Kenya.