Sunday, August 30, 2009

Detention by SLBFE ! Do they have Right to Arrest People ?

A Weekend Column for Migrants Workers
By G.S.L.J.S.Dias -AAL

My own experience can be a good beginning for this column. I used to work for an INGO in an Asian country and for many years I was not called to pay the Migrants levy at the Airport, in many occassions i was in good attire and therefore I was free to travel without checked by the SLBFE officials. One day in 2006 when I traveled with my mother they stopped me and asked my Levy and stamp by SLBFE. It went to nearly 30 minutes with arguments an counter arguments with SLBFE as they don’t have clear idea on under what category I can be charged. As I work for INGO, they didn’t had any clue on my category further there was no gazette notification displayed at the counters in this regard , neither they had it in their files. Since my feeble mother is waiting for me at the lobby I decided to pay basic amount and finally I agreed to pay 3500/= which is the lowest levy available and I attached a protest note to the authorities. I have been able to argue, question and challenge as I am a Lawyer, but a poor persons comes to Colombo for the first time may surrender them selves as they think this is the law of the country.

I made an official complain to the Airport authority seeking their explanation on what grounds they have allowed outside parties to maintain legal rights that only permitted to Civil Aviation Authority. The reply from the airport aviation authority informed me that the Airport Aviation Authority, authorized the presence of SLBFE at the airport but silent on the unlawful arrest and detentions. Civil Aviation Authority had no legal rights to deligate the Right of Detention or arrest to unlawful parties in this case SLBFE within the Airport. It’s not mentioned in the Civil Aviation laws neither SLBFE act. Specially to conduct it as general daily routine. We Sri Lankans believe and adhered only to the Rule of Law but not to any other powers.

Since then I used to question the presence of SLBFE officials at the airport and inquire about their legality of stop people ,question and prevent them moving. According to the Sri Lankan Law except for those who permitted to maintained law and order others cannot take any one in to custody unless an irreparable destruction happening. Prevention of movement at the Airport is a clear obstruction of freedom of movement and an unlawful arrest as described in the Sri Lankan Law. Therefore what’s happening at the Airport is an unlawful arrest and obstructing the freedom of movement. Other than Law enforcing Authorities Immigration is authorised to prevent Persons leaving the country. Even though its also questionable at least its legal. These days there are various Law enforcing officers are waiting at the Airport to prevent suspected persons leaving country. They also have authority to do so even though its also questionable.

Freedom of movement is guaranteed as a fundamental Right by the Sri Lankan Constitution. Therefore SLBFE act is a violation of Sri Lankan Constitution as well as continue to do so without a proper authority is an unlwfull act. I have received many complains form various parties that many migrant workers have been stopped at the Airport by the officials of the SLBFE and send them back as some of these people doesn’t have money to pay the levy. Some people were asked to pay even more than Rs.10,000 and some poor villages pawned their jewelries for unreasonable amounts to pay this levy. An official working inside the airport told me that one of his relations faced the same situations and he has witnessed many such unfortunate situations. According to the act all the persons are legally bound to pay the levy. But there is no legal authority to these unauthorized people (SLBFE Staff)to stop any one at the airport or detain or obstruct movement of people which is guaranteed by the constitution. There isn’t any clause that permitted officers or a person of SLBFE is permitted to obstruct people at the Air port or arrest or detain them.
I request all those who travel through Colombo Airport to go through the SLBFE counter and ask their legality and question their presenace at every point and ask themto show their authorisation documents.As Legitimate citizens of this country we can question and we have that Right.

I was not prevented by SLBFE for many years but suddenly checked as I was not in rich attire on the said day. So the rational for SLBFE is they obstruct only he poor and they don’t stop any good looking people. They don’t have systems that insist all Sri Lankans departure from Sri Lanka is compulsory to go through their check point at the Airport. I have seen many well dressed migrant workers are leavening the country with out any levy and without checked by SLBFE at the Airport. The unequal and discriminatory nature of checking must come to a holt and SLBFE needs to get the sanctions from the Sri Lankan Legislative for such action where Civil society can challenge before they enact, if the try to bring discriminatory laws.

By using this kind of screening they do violate another FR which is the Right to equal treatment. What SLBFE can argue will be they are not a state body but a company. My argument is then we can still challenge them on the basis that they have no authority to operate at the airport and unless state allowed them to operate, then the relevant ministry is violating the above Rights and by that they are violating our Rights.

Non benefiting Payment

Under the Sri Lanka Bureau of Foreign Employment Act No. 21 of 1985, it is a legal requirement for all workers leaving Sri Lanka for overseas employment to be registered with the Sri Lanka Bureau of Foreign Employment (SLBFE) prior to departure. The annual turn over of SLBFE will be Over 800 Million from the registered Migrant workers if we take 200,000 Departures per year and levy at a minimum rate of 4000. The numbers are higher than that and fees are also higher. The SLBFE other earnings such as License fees, fines etc will bring much higher additional revenue generation. SLBFE is a profit making company manage by the government and mainly maintained by the poor Migrant workers from their hard earn money. It’s their money as each migrant worker registered at the SLBFE pays levy between 3500- 12,000 or more based on their country and job.

Officially over 1.7 million people are working overseas at present. 80% of these placement have been to the middle -east mainly to Saudi Arabia, Kuwait, Qatar and the UAE. Out of these Saudi Arabia accounted for 33% of the market. Almost 95% of labour to Saudi Arabia has been as House-maids. There can be 250,000 others working as undocumented workers and those who unregistered at the SLBFE including direct hiring and various others.
In 2007 Rs. 276,814 Million received as foreign remittances by private parties against 35.75% of the total exports this is the second largest revenue generator in the Sri Lankan export sector. The government and their various other actors are highly benefiting by this remittances. Almost all banks involved in remittance business earns substantial amount of their income through the foreign remittance by the migrant workers. With all "Mahinda Chinthana" Says: that “Open new avenues for skilled labour in fields such as nursing, shipping, computer science , etc., to secure foreign employment. An English medium nursing college will be established, which is aimed at fulfilling the growing demand for nurses in European countries. Welfare projects will be introduced ay village level for the benefit of the children of those who are employed abroad. Special arrangements will be made to protect the female expatriate workers. Special housing loan schemes will be arranged through state and private banks, with a 30% contribution being made by the Government through a suitable mechanism.
A pension Scheme will be introduced for those who are employed abroad.
The duty free allowance presently available for returnees from employment abroad will be increased to US$ 5,000. Laws will be amended to allow the use of this facility during the first 6 months from date of returning to Sri Lanka.”
SLBFE web site says that the Bureau offer various services and benefits to the workers even though its questionable as the recipient are bare minimum and deaths and other disabilities comes as below;
Natural Deaths 2006- 100 male 72 female total 172 , 2007 – 112 male 87 female total 199
Accidental deaths 2006- 59 male 18 female total 77, 2007 – 48 male 18 female total 66
Suicide deaths 2006- 3 male 4 female total 7, 2007 – 3 male 6 female total 9
Static’s indicate that annually there can be maximum of 100 deaths comes under the compensation SLBFE schemes and these compensation will not exceed 30 million per year and disabilities compensations will be less than the above amount. What ever way the total welfare that migrants receive will be less than 100 million that includes grade 5 scholarships, and other offers. Most of the other benefits offered by the SLBFE are loans which they agreed with state banks. Even the death compensation are paid by the Sri Lanka insurance company which lamented that the amount paid by the SLBFE is not sufficient and they need to increase the amount. This reveals that even the death compensation are on an insurance scheme where SLBFE doesn’t directly pay the compensation.
The question comes then , where does the money that poor migrant workers pay will be utilize? This column will be email to the SLBFE and more than 20 of its officers and the ministry as well as to the minister. They should come out with the utilization details if it’s positive than what I propose. Also this is posted to many other Rights Organizations and international bodies for their information.
My argument is that

1) Firstly the levy doesn’t serve to the Sri Lankan migrant community and it’s a eye wash and money grab.
2) Secondly the levy shouldn’t use as a point to prevent people leave the country but can be taken as voluntary or non compulsory manner.
3) If levy is compulsory as it says in the act then the benefits must be more substantial and transparence and accountability need to be increase.
4) There is a basic principle in the law says that no one can become rich through other people money. SLBFE is a company and they have no rights become rich but to serve.
5) The other question is that under which jurisdiction that air port authority authorized private company (SLBFE) to run a detention facilities and jurisdiction of arrest passengers comes to airport.

This is a serious situation that Migrant Rights Organizations, Agencies, Lawyers and International institution must deal with the Sri Lankan Government who is a signatory for the International Covenant for Migrant Workers as well as Bound by Fundamental Rights of the Constitution.

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