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DPRU Q&As: Anurag Devkota, human rights lawyer in Nepal
Author(s)
Anurag Devkota
Human rights lawyer, LAPSOJ
Nepal
Posted
25 May 2022
Time to read
4 Minutes
In the latest of the DPRU's series of Q&As with death penalty experts from around the world, Anurag Devkota, a human rights lawyer in Nepal
specialising in labour migration, tells DPRU Research Of]cer Jocelyn Hutton about his current work on sentence transfers for foreign nationals
on death row.
Can you tell us a little bit about what you do at the Law and Policy Forum for Social Justice?
I am a human rights lawyer at the Law and Policy Forum for Social Justice (LAPSOJ), a human rights organization in Nepal specialising in
research and strategic litigation. I am involved in jurisprudence-setting litigation at the Supreme Court of Nepal, currently focusing on Nepali
migrant workers and their access to justice. Our goal is to reform the legal system in line with international human rights and labour rights
laws. We have ]led various strategic litigation cases in the Supreme Court on issues such as the alarming rate of deaths of Nepali migrant
workers in the Gulf Cooperation Council (GCC) countries, ,[i] guaranteeing external voting rights for migrant workers, establishing a mechanism
to provide legal assistance and blood money to those on death row and allowing sentence transfers for those in prison abroad.
What led you to work on migrant workers and the death
penalty?
Every time I visit Kathmandu International Airport, the
devastating scene of the bodies of Nepali migrant workers
returning home in wooden boxes inspires me to do something to
help. Every day, more than 1,500 Nepali workers leave their
home in the pursuit of better employment opportunities, mainly
in the GCC or Malaysia, while hundreds return home having lost
their hopes and dreams, or even their lives. When I started
litigating for the rights of migrant workers, I found out that
hundreds of Nepali migrant workers are serving jail terms in
foreign jails, sometimes for crimes they did not even commit.
The constitution of Nepal provides a duty to offer citizens
assistance and resources if they are arrested, detained or
convicted overseas. However, the government has been
reluctant to provide such assistance, which is particularly galling
considering migrant remittances are Nepal’s largest revenue
generator, accounting for over 30% of GDP.
The Nepali Foreign Employment Board (FEB) has a fund
earmarked for the welfare of the migrant workers (collected
from migrant workers themselves before departure). Despite the
fact that the FEB currently has more than NPR 6 billion in the
fund, it is rarely spent on legal aid - most of it is spent on
compensation payments for bereaved families - and those
accused or convicted of certain crimes are considered unworthy
of government support. Undocumented migrants are also
excluded from government support or compensation payouts.
Why do you think foreign nationals are at special risk of
the death penalty?
Most destination countries’ justice systems are not designed to
Ghandruk, a Nepali village
accommodate the needs of migrant workers, and migrant
Photo credit: Giuseppe Mondi via Unsplash.
workers often lack the the necessary skills to navigate the
system in the host country. Moreover, they usually do not have
the ]nancial resources, language or education to access legal
services. These factors contribute to high migrant worker conviction rates, lack of mitigation allowance and excessively harsh sentences.
Nepal provides some pre-departure orientation training to migrants, but these courses have failed to improve migrant workers’ ability to
navigate foreign legal systems. Most Nepali migrant workers are from disadvantaged and vulnerable backgrounds, with higher rates of illiteracy
and lower education, and do not know the laws and legal system of their own country, let alone a foreign country. Furthermore, the death
penalty is outlawed in Nepal, meaning that migrants may not expect such a sentence abroad.
Can you tell us a bit more about the strategic litigation that you do in relation to sentence transfers? Why do you think
sentence transfer is so important for foreign nationals?
One reformative tool which may address many of the injustices affecting migrant workers is sentence transfer, whereby imprisoned migrant
workers are transferred to their home countries in order to serve the remainder of their sentence there.
This is especially important for migrant workers as non-citizen prisoners in some destination countries, such as in the GCC, are treated
extremely poorly. Therefore, sentence transfer becomes a critical tool for a country’s protection of its citizens around the world. This new
approach, under a newly approved legal framework in Nepal, could considerably raise the living standards of migrant workers sentenced
overseas. Sometimes, it also allows returning prisoners to work in their home country, providing wider social and economic bene]ts. For
Nepal, sentence transfer arrangements could have the added bene]t of reducing a death sentence in the host country to a life sentence at
home.
Through our litigation, we demanded that the government of Nepal begin to mitigate the damage caused by its failure to institute legal aid
programmes for migrant workers and ful]l its constitutional and international obligations by organising sentence transfers through domestic
legislation and treaties with destination countries to protect its citizens from death penalties.
In January 2022, due to our litigation, the Supreme Court issued a directive that the government establish mechanisms to provide legal
assistance to migrant workers imprisoned abroad, provide updates to detainees’ families, enact mutual legal assistance agreements with
foreign states to guarantee sentence transfers, arrange ‘blood money’ payments where possible and redesign the pre-departure orientation
course to include training on destination country crimes and sanctions.
In your experience, do the criminal justice systems in Nepal or abroad help or hinder migrants, and how?
The government of Nepal’s efforts to provide legal assistance and support abroad, or to arrange substantive bilateral labour migration
agreements, has been minimal. However, the more democratic and human rights-friendly normative system in Nepal has been a powerful tool
for advocates like us to urge for legal and policy improvements.
For example, Nepal's Criminal Procedure Code 2017 mandates that all fatalities under questionable circumstances be followed by post
mortems, with the government of Nepal covering all costs. Using litigation, we have demanded that the government conduct post-mortems on
migrant workers dying abroad to determine the cause of death, since so many Nepalis die in suspicious circumstances in the GCC, usually due
to overwork and abuse. The government have expressed a desire to do this but have yet to make the necessary next steps.
Which issues relating to foreign nationals and the death penalty need more work or research?
Personally, I believe that sentence transfer is one of the most important instruments for protecting the human rights of Nepali migrant workers
and other migrants detained overseas. However, there is a scarcity of research on this topic, mainly limited to UN handbooks. Sentence
transfers are a new concept for Nepal and other sending countries in the global south, so empirical research into this ]eld could yield tangible
bene]ts for migrants and allow states to develop new regulations and bilateral agreements on the subject.
Anurag Devkota is a human rights lawyer, specialising in labour migration. He works at the Law and Policy Forum for Social Justice (LAPSOJ) in
Kathmandu, Nepal. LAPSOJ are pioneers in strategic litigation in Nepal on human rights, migrant rights and constitutional issues. Anurag also
writes for the Kathmandu Post on migrant rights issues and teaches law at Purbanchal University and Chakrawarti Habi Academy College of
Law.
[i] The six member countries of the GCC are Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates.
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