Punitive measures against Qatar employers are needed to resolve recurring cases of abuse

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Dec 9 2014

Time, language and mobility are the key deterrents to migrants accessing justice in Qatar, according to a new report–Labour Migrants and Access to Justice in Contemporary Qatar–released today.

Andrew Gardner of University of Puget Sound, lead author of the report and an expert of labor migration in the GCC, spoke to Migrant-Rights.org on the systemic issues facing migrants and obstructing access to justice. “It is interesting, from what we see, that if they (migrant workers) can get to the finish line, justice seems to be delivered.” But, as the report reveals, only a small percentage those who seek justice do reach the finish line.

Screen Shot 2014-12-09 at 20.01.08Discussing the key deterrents, Gardner says, “Due to linguistic challenges (because most migrants speak neither Arabic nor English), the narrative is filled with misunderstandings and confusions. And the inability and incapacity of migrants to move about urban space should be conceptualised as a systemic impediment to justice.”

The report illustrates how Qatar's system for processing and adjudicating migrants’ grievances is extremely difficult for migrants to access and navigate; co-authored by Silvia Pessoa and Laura Harkness, the ethnographic study recounts the lived experiences of migrant workers who have sought legal redress.

Qatar certainly does not stand as a model of success in addressing these challenges, but I think we’re also looking at a very new and rapidly developing context."

The report identifies the three primary players in a migrant’s legal journey: the Department of Labour Relations, the Labor Court and the Ministry of Interior. Other institutions are also important, particularly embassies, which are usually the first points of contact for migrants in distress.

However, the embassy’s mandate is not always clear.

In an earlier report on Nepali workers’ access to justice, an embassy officially is quoted as saying: “There are no specific mandate[s] for embassies to work on migrant workers issues. The primary aim of all Nepali embassies in all the destination countries is ‘economic diplomacy’— how do you get the countries to invest more in Nepal. However, for countries like Qatar, where there are lots of Nepali migrant workers, you inevitably end up working on migrant workers’ issues just because of the sheer number of Nepali workers there.”

On this statement, Gardner doesn’t quite agree. “Embassies weren’t a central focus of our project, but they were an important element in many of the stories and experiences we collected from migrants seeking justice in the system provided by the state. I recognize the idea that embassies are largely concerned with ‘economic diplomacy’ to be generally true, but I think this reflects the geopolitical inequalities that characterize our contemporary world. And over the years, there have been several ambassadors and other diplomats who’ve certainly pushed the issues of rights and justice to the fore in Qatar.

“I think it’s noteworthy that, in the third chapter of the report, we contend that embassies basically underpin the Qatari state’s justice system. They are important junctions for information, advice, guidance, and then often the sort of material support that sometimes allows migrants to endure the long and difficult timelines to justice in the court system. I don’t think this vital role should be dismissed or subsumed under a singular critique centered on their economic diplomacy.”

The inability and incapacity of migrants to move about urban space should be conceptualised as a systemic impediment to justice."

In meetings with individuals in the judicial system, the research team found that some legal constraints result directly from the astonishing proportions and growth of the migrant population.  Gardner noted,  “They must seek to accommodate cases from migrants who speak dozens of different languages, some migrants who are illiterate, and migrants with a constellation of different cultural norms and behaviors. Qatar certainly does not stand as a model of success in addressing these challenges, but I think we’re also looking at a very new and rapidly developing context. Nowhere else in the world do we see these sorts of proportions of migrants present and resident. So while there is certainly room for Qatar to perform better in this realm, we should recognize the extraordinariness of these challenges.”

Qatar’s judicial system came under fire earlier this year, when Gbrelia Knaul, the UN Special Rapporteur, criticized the justice system for failing to uphold basic human rights. After meeting with senior government officials, judges and representatives of civil society. Knaul expressed concern over access to justice in Qatar for women, migrants, and domestic workers. Additionally, Knaul called for more transparency and less executive involvement in the judiciary, especially in high profile cases.

Physical, social and economic isolation of migrants

Summarising the legal pathway to adjudication, the report finds:

“The process potentially involves several steps, including a written complaint, mediation and arbitration or adjudication. In practice, the process usually starts with the worker filing a complaint with his/her embassy, which then refers the worker to the Department of Labour Relations of the Ministry of Labour. This office tries to resolve labour problems in-house by direct contact with the employer. If the employer fails to address the demands articulated by the Department of Labour Relations, the case is then referred to the Labour Court. Because almost all workers involved in this process are foreign migrants, the Ministry of Interior is also involved, especially in cases related to illegal workers and those involving changes of sponsorship.”

The report also highlights a problem faced by most migrant workers: extreme isolation. “This location (the labour court in West Bay) is also far away from where most low-income migrants live. The official language of the Labour Court in Qatar is Arabic and language interpreters are provided based upon necessity and availability. Interviews with migrants and experts portray the Labour Court system in Qatar as a financially costly process in which cases may take several months to a couple of years to reach conclusion. This makes workers very hesitant about filing lawsuits against their employers.

“According to Article 10 of the Labour Law, the registration of a case at the Labour Court is free. Hidden fees, however, are often involved. In the cases we surveyed, workers typically had to pay QR 500 (USD 135) for an auditor. Appointed by the judge, an auditor is a person who acts as a legal consultant, inspects the company’s records, discusses the case with the worker and the company, and ultimately writes a (non-binding) report to the court.”

Migrant-Rights.org spoke to members of Migrant Support-Qatar, a local voluntary group that assists migrant workers with relief and access to justice. Their experiences echo the report's findings:

“In the last few weeks we have been assisting an Indian migrant who hasn’t been paid a single riyal in the four months he has been in Qatar. Neither was his paperwork processed. He has been surviving on donations from the community. When he decided to go to court, the employer has asked him to vacate the accommodation.”

An embassy official quoted in Gardner’s report explains:

“One problem when workers go to Labour Court is that employers stop providing them with food and accommodation. The embassy is providing food to about 200 (...) workers who have cases in the Labour Court. The court takes the paperwork and tells the worker to come back in six months. How are the workers supposed to do this? No work! No money and they cannot pay the loans. Six months for one appointment and six months for another appointment and then one year is gone! What is the point of staying here?”

At present, there are no laws that oblige the Labor Court to require employers to pay subsistence money to workers for the period of the lawsuit.

“The interests of the state and that of the migrants overlap. It helps both to break the inefficient of the judicial system,” says Gardner who has suggested incremental changes that make a difference.

The business environment is fortified by the same people who develop and execute laws. So there is a conflict of interest.”

Criticism of the report and culpability of Kafala

The report was launched at a round table organised by Qatar University’s Centre for Gulf Studies. Over a couple of hours, experts and officials discussed the report under Chatham House rules.

Some experts felt the report glossed over the exploitative nature of the Kafala system. One local expert in particular felt the recommendations (see below) made were ‘weak and disappointing’ and failed to address the basic character of the justice system, which evolved in an era that does not reflect contemporary Qatar.

Some members of the round table added that sometimes diplomatic missions' political and economic interests override the interests of migrants, because of which embassies of sending countries do not forcefully represent the cases of migrant workers to host countries.

Another member argued the political economies of host countries are designed to maintain the imbalance of power and restrict any civil society activity on migrants' access to justice.  “The business environment is fortified by the same people who develop and execute laws. So there is a conflict of interest.”

An official at the discussion added that problems are not encountered with big companies, but only with the smaller ones. He also stressed the need to protect the interests of employers who invest a lot in recruitment and training.

The policy recommendations put forward in Labour Migrants and Access to Justice in Contemporary Qatar report include:

  • The Department of Labour Relations and the Labour Court should coordinate to implement a monitoring programme to generate an internal understanding of the issues that foreign migrants face in the justice system. This monitoring programme could track a portion of the cases or complaints filed in these typical entry points to the justice system, and thereby generate a better understanding of why many complaints and cases are dropped.
  • The Labour Court and the Department of Labour Relations should ensure that basic translation services are available at all important junctures in both the Labour Court and the Department of Labour Relations. The population of foreign labour migrants in Qatar speaks more than twenty different languages. Few speak English, even fewer speak Arabic, and a portion of these migrants are illiterate. While the comprehensive provision of translation services is a formidable logistical and bureaucratic challenge, it is a vital juncture in the carriage of migrant justice. At the current juncture, prioritization should be given to Hindi, Urdu, Nepali, Malayalam, Tamil, and Bengali.
  • The Labour Court, in coordination with the Ministry of Justice, should significantly increase the speed with which migrants’ cases are processed and adjudicated. Migrants interviewed for this project reported timelines to justice that often exceeded a year.  Facing a bureaucratic justice system, the process for informing sponsors and/or employers, time spent waiting for the sponsor and/or employer to attend hearings, and an understaffed court system, the justice system could be readily expedited in a variety of ways: these institutions could be expanded, the process migrants follow in the justice system could be restructured, and/or special dispensation for migrants to pursue other work while their cases are active could be established.
  • Migrants should have the ability to seek other remunerative work when they have active cases. In the kafala, labour migrants who file cases against their employers cannot legally work in a different job while their case is adjudicated or in process, except in those rare cases where the Ministry of the Interior grants a release (the common term for a no-objection certificate, or NOC). For migrants, filing a case often means attempting to survive in Qatar without income or finding illegal employment. This latter option exposes migrants to other vulnerabilities. Facing this dilemma, many migrants opt not to pursue justice because of the long timelines involved.
  • Both the Department of Labour Relations and the Labour Court need more punitive measures at their disposal, and both need to implement those measures. These punitive measures can potentially resolve several recurring problems in the justice system. Foremost, with these punitive measures, sponsors, employers, or their proxies would be strongly compelled to attend required hearings and negotiations. Additionally, settlements adjudicated by the Labour Court should include penalties that dissuade employers from continuing to withhold salary. Across the board, stronger punitive measures would ensure that more employers comply with the Labour Law.
  • Provisions in the Labour Law that deny labour rights to domestic workers should be removed and domestic workers should be able to utilize grievance mechanisms of the Labour Court and the Department of Labour Relations.

The report can be accessed here.

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