July 14, 2008

IV. Legal Framework for Migrant Domestic Workers

Saudi Arabia's justice system falls far short of international standards and imposes particularly formidable obstacles to migrant domestic workers. Labor laws exclude domestic workers from key protections and immigration policies place migrants at risk through a highly restrictive kafala or sponsorship system. Labor-sending governments may have policies regulating minimum standards for their workers abroad, although neither the Philippines, Indonesia, nor Sri Lanka have been able to negotiate a bilateral labor agreement on domestic workers with Saudi Arabia.

Saudi Arabia applies its interpretation of Sharia (Islamic law) as the governing legal framework. The absence of codified Sharia laws and rules of precedent leaves the government and judiciary significant room for divergent interpretations of the law, and undermines equality before the law.[40] For a more detailed analysis of unfair trials, due process violations, and treatment of children in Saudi Arabia's criminal justice system, see the March 2008 Human Rights Watch reports "Precarious Justice: Arbitrary Detention and Unfair Trials in the Deficient Criminal Justice System of Saudi Arabia" and "Adults Before Their Time: Children in Saudi Arabia's Justice System."[41]

Saudi Arabia has recently begun to introduce administrative laws. In 1992 King Fahd instituted the Basic Law, a proto-constitution declaring Saudi Arabia an Islamic monarchy whose constitution is comprised of the Quran and the Sunna (traditions of the Prophet Muhammad).[42] Since 1992 the government has created news laws to address gaps left by the Basic Law, including a Civil Procedure Code in 2000 and a Criminal Procedure Code in 2002.

Exclusion from Labor Laws

Saudi Arabia amended its Labor Law through Royal Decree No. M/51 on September 27, 2005.[43] As it currently stands, Saudi Arabia excludes domestic workers from the provisions of the labor law, leaving them without the protections guaranteed to other workers.[44] These protections include limits to working hours, and restrictions on salary deductions, rest days, and mechanisms for resolving labor disputes.

The Saudi government has proposed an annex to the Labor Law to address migrant domestic workers. According to a memorandum that the Ministry of Labor gave to Human Rights Watch researchers, the draft annex on domestic workers consists of 49 articles covering definitions of work, employers' duties, domestic workers' duties, the work contract, an end of service award, working hours and leave, and violations of the contract. The Ministry of Labor memo states that employers would be required to pay all recruitment fees, treat the worker with respect, pay wages on time, provide suitable accommodation such as a furnished private bedroom with bathroom, and provide medical care. Furthermore, the new annex would require written, fixed-term contracts and provisions for overtime pay.[45]

These changes would represent a dramatic improvement over current regulations and reflect the recognition that "the employer needs to treat the employee like a human being."[46] However, it is unclear whether the annex will extend protections to domestic workers equal to those enjoyed by other workers in Saudi Arabia, or whether there would continue to be specific exclusions. For example, the current draft provides for a maximum of 12 hours of work per day or 72 hours per week for domestic workers, in comparison to 48 hours per week for other workers.[47] Furthermore, the Saudi authorities have not clarified how the rights and duties outlined in the annex will be enforced, for example, whether the primary mechanism will be through the labor courts as with other categories of workers.

The Kafala System

Migrant domestic workers are not only at risk due to their exclusion from labor laws, but also as a result of highly restrictive immigration policies that rely on sponsor-based visas. The kingdom has instituted policies to increase the Saudi component of its workforce that have to date largely failed. These Saudi-ization policies have attempted to limit and control the number of foreign workers and their distribution in various economic sectors. One main strategy has been the kafala, or visa sponsorship system, where a worker's visa and legal status is tied to her employer. This system creates a profound power imbalance between employers and workers and imposes tight restrictions on migrant workers' rights.

Most migrant workers arrive in Saudi Arabia on two-year contracts in which their visas are tied to their employer, or "sponsor." The sponsor bears responsibility for the worker's recruitment fees, completion of medical exams, and possession of an iqama, or national identity card. The worker must obtain the sponsor's consent to transfer employment or to leave the country (get an "exit visa"). This gives the employer an inordinate amount of power over the worker's ability to change jobs or to return to her country of origin.

As will be discussed later, some abusive employers exploit the kafala system and force domestic workers to continue working against their will and forbid them from returning to their countries of origin. This legal obstacle, which can result in the arbitrary and unlawful denial of a domestic workers' right to leave Saudi Arabia and return home, is clearly incompatible with article 13 of the Universal Declaration of Human Rights (UDHR), which provides for the right to freedom of movement and the right to return to one's country.[48] In addition to its legal basis under treaty law,[49] the right to return to one's own country has been recognized as a norm of customary international law.[50]

The Saudi Ministry of Labor and the Saudi Human Rights Commission have informed Human Rights Watch that the sponsorship system is under review, and that alternatives are being researched.[51] One proposal is to create three or four large recruitment agencies that would act as sponsors for all migrant workers in the country. This proposal would purportedly address the control that employers have over workers when they also act as immigration sponsors.

According to the Saudi Minister of Labor, Dr. Ghazi al-Qusaibi,

There are currently about 350 recruiting labor agencies. We will introduce radical reforms to reduce the number to three big agencies, with resources, supervised by the government. We keep closing the bad agencies but new ones come, and we close them. We want to have requirements that the agents must have a university education and a financial deposit. So many agencies have meager resources, they are small shops with one or two people working there. We will dissolve them and form big, private companies supervised by the government.[52]

If such a proposal was to move forward, these recruitment agencies would wield an enormous amount of power and money. The government would need to regulate and monitor such recruitment agencies rigorously, with clear standards for operating procedures, penalties in case of abuse, and provisions for independent monitoring. One official from a labor-sending country pointed out that a similar system is implemented in Kuwait with poor results. He said, "There are bad aspects. The girl is lost in the agency system. The sponsor may return her to the agency and the agency redeploys her. Why are agencies interested [in this proposal]? Because there is a big bracket of a high-income expat population. The agencies want to exploit that market."[53]

Employment Contracts and Recruitment Practices

In the absence of protection under labor laws, employment contracts are the primary mechanism for outlining both employers' and workers' rights and obligations. Recruitment practices, including initial fees charged to employers and payment of domestic workers' return tickets home, also define certain financial obligations and incentives.

Employment contracts typically stipulate a domestic worker's monthly wage, a two-year period of employment, and the employer's responsibility to provide the domestic worker's meals and accommodation in addition to her salary. These contracts often provide domestic workers a paid one-month vacation every two years. These contracts have many weaknesses. They rarely contain specific information on the conditions of work such as limits on working hours and a detailed description of work responsibilities. These contracts do not have the same types of enforcement mechanisms as protection under labor laws. Chapter VI, below, discusses problems with deceptive recruitment practices and situations in which migrant workers receive different contracts upon recruitment and actual employment.

Recruitment agencies broker a range of agreements with employers and domestic workers in regard to payment of return tickets. Employers must pay for a domestic worker's air ticket home if she successfully completes her two-year contract or in cases of mistreatment. If a domestic worker terminates her contract early, she may be responsible for paying for own ticket home. Many agencies, both in labor-sending countries and in Saudi Arabia, also offer probation periods in which they provide employers a "replacement maid" within three months if either the employer or the domestic worker decides the arrangement is a poor fit. In such cases, recruitment agencies may pay for the domestic worker's flight home or for a transfer to a new employer, while in other cases they renege on such promises. The ways in which some domestic workers struggle to obtain their ticket home is discussed later in the report.

Initial recruitment fees may also profoundly influence the working relationship and the conditions of work. Recruitment agencies charge Saudi employers between 5,000 and 9,000 riyals (US$1300-2340) to hire a domestic worker. When employers bear the responsibility for initial recruitment fees, domestic workers can ideally avoid incurring crushing debts when they migrate. At the same time, many employers feel they have made a significant financial investment and point to their initial payments to justify restrictive measures that prevent a domestic worker from "running away," such as taking her passport, withholding her wages, and physically confining her to the workplace.

One critical area of reform is to protect domestic workers' right to freedom of movement and decent work conditions. In addition to outlawing and punishing abusive practices, and educating employers that such treatment likely increases the possibility that a domestic worker will attempt to escape, the Saudi government should also address the concerns of employers who have not committed abuse, for example by introducing an insurance program to recover recruitment fees in cases where domestic workers leave their employment early.

International Agreements

In addition to its domestic legal system, Saudi Arabia has also acceded to five international human rights treaties obligating states to eliminate racial and gender discrimination, protect children's rights, prohibit torture, and prevent and punish trafficking in persons.[54] The duties outlined in the treaties commit Saudi Arabia to ensuring its policies prevent conditions leading to trafficking and protect domestic workers from discrimination and degrading treatment.

According to Saudi officials, these international treaties are automatically incorporated into domestic law. As a result, these international standards have the same legal status as domestic legislation and can be directly invoked in domestic court proceedings.[55] However, Saudi Arabia entered sweeping reservations to these treaties upon accession, stating in the case of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), "In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention." Reservations that are incompatible with the object and purpose of a treaty violate international law and are unacceptable precisely because they would render a basic international obligation meaningless.[56]

Migration transcends national borders, and both sending and receiving countries have increasingly relied on bilateral labor agreements or informal mechanisms to establish transnational recruitment policies. Labor-sending countries also initiate measures through labor-emigration regulations. For example, the Philippine Overseas Employment Administration (POEA) ruled that effective December 15, 2006, the salary of Filipina household workers would not be less than $400 per month and they would not be authorized to immigrate on work visas unless they receive this minimum salary.[57] Angered by reports of abuse against migrant domestic workers, Indonesia suspended migration of domestic workers for five months in 2005.[58]

In other cases, recruitment associations in labor-sending and labor-receiving countries agree on set wages for migrant workers but rarely address other conditions of employment. For example, in September 2007 the Chamber of Commerce in Saudi Arabia and counterparts in Indonesia agreed upon a minimum wage of 800 riyals ($208) per month for Indonesian domestic workers, and as of January 1, 2008, the Sri Lankan government and the Saudi Chamber of Commerce raised the minimum wage for Sri Lankan domestic workers from 400 riyals ($104) to 650 riyals ($169) per month.[59]

Given uneven bargaining power between labor-receiving and labor-sending countries, bilateral labor agreements tend to be weak. Unhealthy competition between labor-sending countries means that labor-sending governments have often been reluctant to push for labor standards such as weekly days off or higher salaries for fear of losing jobs to other countries' workers. Greater multilateral cooperation is essential for developing and enforcing sound, rights-based migration policy. The International Labour Organization (ILO) recommends that bilateral agreements be negotiated within the framework of multilateral and regional agreements.[60]

In January 2008 Saudi Arabia participated in the "Gulf Forum on Temporary Contractual Labor" (the "Abu Dhabi Dialogue"), which brought together for the first time 22 labor ministers from Asia and the Persian Gulf to discuss regional contract labor migration. Other emerging international initiatives include the Global Forum on Migration and Development and a proposed ILO Convention on Domestic Work. These have the potential to serve as vehicles for addressing migrant domestic workers' rights.

Recent Reforms

The Saudi government has begun to adopt reforms addressing labor exploitation and trafficking in persons. These include the decision of the Minister of Labor No. 738/1 dated 16/5/1425h (July 4, 2004) banning all forms of trafficking in persons and establishing a foreign workers' care department.[61] In another decision, migrant workers may now get an exemption from obtaining their employer's permission for an exit visa if they have not been paid for three months or cannot locate their employer.[62]

The Ministry of Labor has also created a guidebook in different languages for foreign workers advising them about their rights and resources for making complaints. The guidebook states that foreign workers have free movement as long as they hold valid residence permits and they can keep their passports with them.[63] The extent of distribution of these guidebooks remains unclear.

The Saudi minister of labor told Human Rights Watch that workers may now also take their cases directly to labor courts instead of being required to register them with the police first.[64]

In practice, these positive steps tend to focus on other types of migrant workers, and do not address the particular situation of domestic workers. For example, the foreign workers' care department, housed in the Ministry of Labor, does not have the specific mandate to deal with domestic workers.[65] The exemption from the requirement to obtain an employer's permission for an exit visa applies primarily to other migrant workers, since domestic workers in dispute with their employers are referred to the Ministry of Social Affairs (see Chapter X, below). There is no advice guide specifically for domestic workers, who confront a different regulatory framework than other migrants since they are not included in the labor law. However, the government did conduct a media campaign targeted toward employers in late 2007 about decent treatment of domestic workers.[66]

The Saudi government has yet to adopt the major reforms required to provide adequate protection to domestic workers, though some of these reforms are under consideration. These include the proposed annex to the 2005 Labor Law and the proposal to reform the kafala system so that all migrant workers are sponsored by three or four large recruitment agencies instead of by their employers. There is no clear timeline for adoption and implementation, and most of these proposals have been under discussion with little result for years.

[40] Saudi Arabia follows the Hanbali school of jurisprudence. Sunni Muslims generally follow one of four schools of thought, named after their founding scholars, Shafi'i, Hanafi, Maliki, or Hanbali. Hanbalis shun using precedents or derivative sources of law or scholarly consensus (ijma') to adjudicate any given issue. Other schools of thought give ijma' the force of legally binding opinion. Instead, Hanbali jurists prefer to employ their own original legal reasoning (ijtihad) to the Quran and Sunna to derive rulings for cases.

[41] Human Rights Watch, Precarious Justice: Arbitrary Detention and Unfair Trials in the Deficient Criminal Justice System of Saudi Arabia, vol. 20, no. 3(E), March 2008, http://hrw.org/reports/2008/saudijustice0308/, and Adults Before Their Time: Children in Saudi Arabia's Justice System, vol. 20, no. 4(E), March 2008, http://hrw.org/reports/2008/saudicrd0308/.

[42] The king also decreed a Law of the Provinces that set forth the division of powers between the provinces and the central government. Currently, all of the provincial governors are royal princes. The third administrative law concerned the Majlis al-Shura (Advisory Council). The king appointed its 60 members (now 150), who could "study" and "interpret," but not initiate, legislation.

[43]Saudi Arabia Labor Law, Royal Decree No. M/51, September 27, 2005, Part VI.

[44] Ibid., Part I, Chapter Two, Art. 7(2).

[45] Deputy Ministry for Planning and Development, Ministry of Labour, "A Short Note on the Draft of the Regulation for the Employment of 'Domestic Helpers and the Like,'" provided to Human Rights Watch, December 3, 2006. Human Rights Watch interview with Fawzi Al-Dahan, March 9, 2008.

[46] Human Rights Watch interview with Fawzi Al-Dahan, March 9, 2008.

[47] Ibid.

[48] Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948).

[49] See, for example, International Covenant on Civil and Political Rights(ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 12. The Migrant Workers Convention also protects the right of migrants to enter their country of origin. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force July 1, 2003, art. 8. Saudi Arabia is not party to either convention.

[50] See "Current Trends in the Right to Leave and Return," U.N. Doc. E/CN.4/Sub.2/1985.

[51] Human Rights Watch interview with Fawzi Al-Dahan, March 10, 2008.

[52] Human Rights Watch interview with Dr. Ghazi al-Qusaibi, minister of labor, Riyadh, December 3, 2006.

[53] Human Rights Watch interview with embassy official J from a labor-sending country, Riyadh, March 10, 2008.

[54] CEDAW, ratified by Saudi Arabia on September 7, 2000; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, acceded to by Saudi Arabia on October 23, 1997; Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, acceded to by Saudi Arabia on January 26, 1996; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, acceded to by Saudi Arabia on September 23, 1997; and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Trafficking Protocol), G.A. Res. 25, annex II, U.N. GAOR, 55th Sess. Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001), entered into force December 25, 2003, acceded to by Saudi Arabia on July 20, 2007.

[55] UN Committee on the Rights of the Child, "Summary Record of the 1114th Meeting (Chamber A)," U.N. Doc. CRC/C/SR.1114, January 30, 2006, http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/eeebbc1b779d9c72c12571070058b061/$FILE/G0640238.pdf (accessed July 26, 2007), para. 13.

[56]See Vienna Convention on the Law of Treaties, May 23, 1969, entered into force on 27 January 1980, art. 19,. United Nations, Treaty Series, vol. 1155, p. 331.

[57] Philippines Overseas Employment Administration (POEA), "Guidelines on the Implementation of the Reform Package Affecting Household Service Workers (HSWs)," http://www.poea.gov.ph/ (accessed April 9, 2008).

[58] Ali Al-Migbali, "Kingdom, Indonesia Iron Out Maid Flap," Al-Eqtisadiah/Arab News, August 1, 2005.

[59] Human Rights Watch interview with Fawzi Al-Dahan, March 10, 2008. See also Mariam Al Hakeem, "Sri Lankan maids' wages up by 65 percent," Gulf News, December 31, 2007.

[60] Piyasiri Wickramasekara, "Labour Migration in Asia: Role of Bilateral Agreements and MOUs," ILO presentation at the JIPLT workshop on International Migration and Labour Market in Asia, Tokyo, February 17, 2006.

[61] Decree, Ministry of Labor No. 738/1 dated 16/5/1425h.

[62] P.K. Abdul Ghafour, "New Measures to Help Workers," Arab News, February 1, 2007.

[63] Ministry of Labor, "Guidebook for Expatriates Recruited for Work in the Kingdom of Saudi Arabia," 2006.

[64] Human Rights Watch interview with Dr. Ghazi al-Qusaibi, December 3, 2006. Dr. Ghazi al-Qusaibi did not specify when this change was introduced or by what mechanism.

[65] Human Rights Watch interview with Mohamed Rashid Al-Suleiman, director, Expatriate Workers' Care Department, Ministry of Labor, Riyadh, December 13, 2006.

[66] "Be nice to your maids, Be kind to your guests," Manila Times, October 9, 2007, http://www.manilatimes.net/national/2007/oct/09/yehey/opinion/20071009opi1.html (accessed October 16, 2007).