Friday, August 15, 2014

A Judicial Blow to Lebanon’s Sponsorship System: Employer Must Return Domestic Worker’s Passport



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.[1]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.[2] In 2000, one investigative judge had even gone as far as to accuse two migrant domestic workers of “stealing their own passports”.[3]

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