Q&A with Advocate Shom Luitel about the Supreme Court of Nepal’s Order to Repatriate Migrant Workers
In the past ten years, over ten percent of Nepalis have worked abroad, mostly as guest workers in Malaysia and the Arabian Gulf in low-wage sectors. In light of COVID-19, March 22, Nepal closed its borders, at the same time as overseas employers were firing Nepali workers due to the economic downturn. In response, Nepal’s Supreme Court ordered Nepal’s current government to rescue Nepali workers stranded overseas and exercise oversight over health protections for those remaining overseas.
We spoke to Shom Luitel, Advocate at People’s Forum for Human Rights, who filed the case with the Supreme Court of Nepal.
Why did you decide to file this case?
We are an organization that provides free legal aid to migrant workers, and also files public interest litigation. During the lockdown in Nepal (which began on March 24), I was feeling really desperate because we could not do anything for the migrant workers, and that we should be doing something. The Supreme Court is closed except for COVID-19 related cases. So we went and filed the case, even in the middle of the lockdown.
Can you tell me how COVID-19 has affected the situation of Nepali migrant workers?
If they have been fired from their jobs, Nepali guest workers have lost the basis both for their work permits and their residency permits, so they have to be sent home. At the same time, many workers are facing problems getting paid and getting food from their employers, since the employer usually provides them food. So they are really in a bad situation (more on the situation of Nepalis in Malaysia and the Arabian Gulf here).
What did you allege in the complaint to the Court?
We asked for an order under the Foreign Employment Act, 2007 to bring workers back home. Section 75(2) of the Act requires if there is an epidemic, war or national disaster in a country where Nepalis are working, the Government of Nepal must “take necessary steps to bring such workers back home,” and this should be paid for in part by the Foreign Employment Welfare Fund, under Section 33 of the Act.
What did the court order?
The bench of Justice Sapana Pradhan Malla issued an interim order to address the immediate situation. She ordered the Government to prepare a report about the situation of the migrant workers. She also ordered the repatriation of stranded workers and to make sure their health is protected according to WHO standard while they are abroad.
Has the Government of Nepal acted on this order?
Not immediately, but now they feel pressure, especially because the media is covering this closely. (Note: Adv. Luitel wrote after our interview a “Roadmap” for repatriation and reintegration of migrant workers at The Himalayan Times, which lays out next steps he hopes the Government will take. As of May 14, a parliamentary committee has asked the Government to act as well).
How has civil society (such as trade unions and recruitment agencies) responded to the order?
We have not been in touch with them, but we hope they have welcomed the ruling. In our written brief we have also asked for the Government to support spending the Migrant Workers’ Welfare Fund on workers (Note: the Fund was introduced in the Foreign Employment Act, 2007 and supported widely by civil society including unions and recruitment agencies, but has been misappropriated in the past. It is paid for by contributions from migrant workers themselves). The National Human Rights Commission is also working to push the Government to act.
Does this ruling touch on the situation of workers coming into Nepal from India, who were stranded at the border, or internal migrants within Nepal?
No; it covers workers who migrated overseas on work visas (Nepalis can work in India without visas).
(Note: Nepali unions are working to support migrant workers within Nepal to travel within Nepal and to provide food packages to their families).