SAFE migration of Bangladeshi workers to foreign countries has become synonymous with prosperity of their families and growth of the national economy. In October 2012 alone, for example, remittance from migrants reached $1,453 million. Ironically, however, Bangladeshi migrants' rights continue to be violated. Over the past few years, some have even become victims of trafficking. The phenomenon of migration fraud is so pervasive that hundreds of men and women face serious exploitation overseas and/or return with nothing in their hands but nightmarish experiences.

Readers may recall recent cases where many Bangladeshi citizens were defrauded after having been promised lucrative jobs in Libya. The magnitude of economic contributions by Bangladeshi migrant workers is so high that it has overshadowed the gravity of violation of their rights. Making matters worse, the law continues to obstruct, in significant ways, victimised migrants' access to justice, which is the subject of the present article.

In August 2011, Bangladesh ratified the 1990 UN Convention on the "Protection of the Rights of All Migrant Workers and Members of Their Families." This is the most comprehensive international instrument dedicated to the cause of migrant workers. By ratifying it, Bangladesh has assumed obligations to implement the Convention by adopting necessary legislative, administrative and adjudicative measures and to ensure an effective remedy for the migrant workers whose rights are violated. The question, however, is to what extent do Bangladeshi laws and policies meet the requirements of this Convention? And, are existing remedies against migration fraud and offences effective?

The first law that independent Bangladesh enacted to regulate emigration for overseas work was the Emigration Ordinance 1982 (EO). Among other things, it criminalises a number of activities that endanger emigration of any person. For example, it is an offence to fraudulently induce any person to emigrate (s. 21). It will also be an offence if any recruiting agent charges any emigrant any fee in excess of the fees prescribed by the government, or if any person not being a recruiting agent demands or receives any money from any person for providing foreign employment (s. 23). For the trial of these and other offences, the Ordinance has provided for a special court to consist of the chairman of the competent Labour Court.

Unfortunately, however, the law by itself creates a block to the victim’s access to justice. A migrant worker — and this includes a potential migrant who has been defrauded — cannot directly initiate any criminal prosecution. Section 26(3) of the Ordinance provides that a special court shall have jurisdiction to try an offence "only upon a complaint in writing made by |a person authorised] by the government." In 1985, the government

authorised the Bureau of Manpower, Employment and Training (BMET) and the District Employment and Manpower Offices to initiate such a prosecution.

This obstructive provision has significantly limited victims' access to justice. This scenario is a clear negation of the constitutional equality clause and an affront to the principle of fairness and equal legal protection. When any person has been a victim of an offence, it is his or her right to initiate a criminal case and it is the duty of the state to ensure the trial. In case of offences under the EO, this very basic constitutional right has been breached.

Under current practice, when any person lodges a complaint with the BMET or with the District Employment Office, the complaint is inquired into by these authorities and then either a criminal case is filed or the complaint is resolved through arbitration. Another important question arises: can any government agency arbitrate or resolve a criminal allegation without the backing of any law authorising the compounding of the offence? No doubt, there is a great virtue in the settling of a claim of money by an unsuccessful migrant, but the vice of not prosecuting a clearly defined criminal offence is too acute. Put another way, the BMET does not seem to have any transparent and fixed criteria for determining when a criminal allegation has to be prosecuted under the EO and when not.

To gain an informed perspective with respect to the migration victims' access to justice, I recently filed an RTI application to BMET (in accordance with the Right to Information Act) with the assistance of BLAST. The BMET passed the petition to four District offices at Rajshahi, Jessore, Bogra and Dhaka. A question in the RTI application was: "on what basis does the BMET decide that a complaint shall or shall not be reported as a criminal offence?" All respondent offices replied that the question did not apply to them.

Thanks to the RTI and thanks to the BMET I received some information regarding the number of criminal cases filed under the EO 1982. As the RTI responses show, in Khulna, for example, thirty cases were filed from 1998 to 2012, and convictions were achieved in two cases. In Bogra, for the same period, twenty three cases were filed and acquittals resulted in eleven cases while convictions were achieved in 12 cases.

Apart from these data, we do not have any updated information regarding the cases in the dockets of the Special Courts. However, an old statistic is worth mentioning here. An IOM study in 2002 reports that, during 1985 to 2000, only 50 cases under the EO were filed in the three labour courts based in Dhaka. Undoubtedly, by any standard, this is a very low figure for case inflow. Besides, the above BMET statistics indicate that the rate of prosecution is extremely low vis-a-vis the huge number of fraud and offences with respect to emigration. Arguably, this dismal scenario of the access to justice for the migrants is attributable to the above restrictive legal provision that bars an affected citizen from lodging a criminal case directly.

On the other hand, although the BMET arbitrates migrants' complaints about fraud or cheating, it has no standard policies or rules to govern the arbitration. There is one exception, however. Rule 23 of the Emigration Rules 2002 provides that the registrar of emigrants (i.e., the DG of BMET) may dispose of any complaint against any recruiting agent and may hold any inquiry. The harsh reality is that when the BMET arbitrates it does not award a higher amount of money than is legally prescribed and documented. The maximum legal ceiling of fees collectible by any agent from emigrants is Tk.84,000 for male emigrants and Tk.20,000 for female emigrants. Ironically, this beneficial provision operates discriminatorily against women migrants as their claims against the recalcitrant agents cannot be more than Taka.20,000 under the Ordinance, although they invariably pay much more than this for their overseas migration.

To conclude, despite its remarkable progress in managing and controlling the emigration processes, Bangladesh continues to be failing in providing an effective remedy for the violations of migrants' rights. As a migrant-sending country ratifying the Migrants' Rights Convention, one of the important responsibilities of Bangladesh is to prevent abuses in recruitment practices by controlling the recruitment system through adequate criminal and administrative sanctions.

As the above discussion shows, there are certain legal rules that do not meet the standard of "effective remedy." If Bangladesh has to make its laws and policies compatible with the Convention, there is an immediate need to repeal s. 26(3) of the Ordinance that is an impediment to the migrants' access to justice and to adopt a policy for alternative settlement of disputes, keeping provisions for independent arbitration and power to award an adequate amount of compensation.

The writer is Associate Professor of Law, University of Dhaka.