On June 23, 2014, Summary Affairs Judge in Beirut Jad Maalouf issued an important decision deeming that employers who retain the passports of domestic workers are violating basic rights guaranteed in the international agreements that Lebanon has ratified, particularly freedom of movement.[1] The decision, rich with grounds and references, even deemed this widespread and “accepted” practice as racial discrimination, and therefore a violation of the International Convention on the Elimination of All Forms of Racial Discrimination. The decision also refuted some of the popular arguments justifying the practice, most importantly the fear of losing the funds invested in importing the worker. In this regard, the decision stated that the “deprivation of liberty cannot be a means of guaranteeing these rights”.

 

A recent study confirmed the prevalence of this practice. Approximately 94% of a representative sample of employers (1,200) stated that they retain the workers’ passports. The study also revealed that this phenomenon is coupled with not only the actual restriction of domestic workers’ freedom of movement, but also the deprivation of their right to rest and to privacy. Only 25% of employers stated that they allow the workers to go out alone on their weekly day off; more than 57% of them stated that the workers work seven days a week without any break; and, almost all of them reject the workers’ right to a private life on the basis that these workers came to Lebanon only to serve them.[2]

 

On July 27, 2016, the same judge issued a decision reiterating the grounds of his previous decision. The 2016 decision pertained to a case wherein a foreign [domestic] worker had filed to recover her passport from an employer for whom she had ceased working some time earlier. While the judge was, by issuing his second ruling, able to entrench his jurisprudence, the succession of rulings will hopefully help raise awareness of the gravity and the illegality of retaining domestic workers’ passports. The importance of raising awareness is underscored firstly by the fact that the aforementioned study found no basis to state that the practice is illegal, except for the 2014 court decision. Secondly, the study showed that more than 51% of employers wrongly believe that the contract imposed by the Ministry of Labor explicitly permits them to retain the passports, even though it is actually silent on the matter.

 

The 2016 decision also enriched the 2014 jurisprudence with two extremely important grounds.

 

The first relates to a defense that the defendant raised. The defendant stated that he had filed a complaint with the Public Prosecution after the plaintiff’s “flight” from his house. Allegedly, the Public Prosecution had left it up to the General Directorate of General Security to decide on the plaintiff’s residence status, and the General Directorate left her passport in his hands, thereby negating her right to receive it. Even though this defense remained unsubstantiated and could have therefore been ignored, the judge insisted on discussing the legality of such a practice had it occurred. Thus, the judge seemed to be exploiting the opportunity to confront this issue and to establish the rules and principles that must be followed in such cases.

 

What should the Public Prosecution and the General Security do when informed that a worker has left their work? Do they turn a blind eye to the possibility that the employer is retaining their passport despite the prevalence of this phenomenon? Do they enquire about it at the outset, and if they do find out, then what measures do they take? Can they decide to leave the passport in the employer’s care? Of course, these questions are not just theoretical; irrespective of what actually occurred in this case, there is much evidence that it is common practice for employers to retain the passports of workers who quit until they are arrested, and that authorities do not ask employers any questions in this regard. The decision established a fundamental point: “Passport retention, should there be justification for it, is done directly by the judiciary or the administration, not via individuals”. Of course, the importance of this legal ground transcends this case and raises a large question for the Public Prosecution and the General Security, about the measures and circulars that must be adopted to compel employers to surrender the passports of workers who cease working for them.

 

The second ground addressed what the decision called the defendants “query” about the capacity of a foreigner, in contravention of her residence status and employment contract has recourse to the courts. Once again, the judge was determined to discuss the “popular” defense raised before him –irrespective of their flimsiness and even if they were presented as mere queries– because they reflect a group of common conceptions underpinning racial discrimination, and they must be legally scrutinized so that they can be shed. In this regard, the decision was categorical: it stated that even if a crime was committed and the sponsor harmed, the foreigner still possesses their basic rights, and the Lebanese state is still obliged to guarantee their right to resort to a fair court to fulfill its commitment to the covenants. This legal ground opens a broad discussion about how this right can be guaranteed under the sponsorship system, wherein a worker who quits for any reason becomes an outlaw liable to be arrested and administratively deported before they can even appear before a judge.[3]

 

Finally, we salute the lawyers who have brought such cases to court, cases that –should they be made more frequent– will help dissect the sponsorship system and expose the flaws therein, and the problems that arise from it.

 

This article is an edited translation from Arabic.

 

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[1] See: Sarah Wansa’s, “A Judicial Blow to Lebanon’s Sponsorship System: Employer Must Return Domestic Worker’s Passport”, The Legal Agenda, Issue No. 19, August 14, 2014.

[2] See: Sawsan Abdulrahim’s, “Intertwined: A Study of Employers of Migrant Domestic Workers in Lebanon”, International Labour Organization and the American University of Beirut, published on the International Labour Organization’s website, 2016; For more information about the study, see: Nizar Saghieh’s, “Attention Lebanese Prosecutor: Yes, We Traffick Humans”, The Legal Agenda, Issue No. 43, November 2, 2016.

[3] See: Sarah Wansa’s, “’Amilat al-Manazil, al-Niyaba al-‘Amma wa al-Aman al-‘Amm: Hakadha Tunazzam al-Muhakama al-Ghiyabiyya”, The Legal Agenda, Issue No. 12, November 2013.