Reflections on the Future of the Dhaka Principle 4 - No Migrant Workers' Identity Documents Are Retained
20 June 2022
Throughout 2022, IHRB is marking ten years of the Dhaka Principles for Migration with Dignity with guest commentaries from representatives of business, trade unions, civil society organisations, and the UN system that reflect on the continuing importance of each of the twelve individual Principles. These experts are exploring challenges relating to each Principle in turn and discussing how faster progress can be made.
Introduction
The Dhaka Principles, as a voluntary framework on migrant workers’ rights, recognised that a transnational phenomenon like people leaving for work abroad needed a systemic understanding rather than a piecemeal approach. Their development added an awareness regarding worker welfare at all stages of the migration cycle, including in the country of origin and the destination. The 10th anniversary of their launch provides the right moment to reflect, acknowledge, celebrate, and take stock of their tangible impact. The North South Initiative engages and supports migrant workers from five countries – Bangladesh, Nepal, Indonesia, Pakistan, and Myanmar – who are working in Malaysia. This praxis has helped us understand the importance of the Dhaka Principles and the benefits the framework brings to all stakeholders. In our view, we see one key shortcoming: the framework’s primary focus is on documented workers. The next decade, we hope, should see the framework expand to better consider refugees and undocumented workers as well.
Why Dhaka Principle 4 – No Migrant Workers' passports or identity documents are retained – Must Be Taken Seriously but with caution.
The migrant worker community in Malaysia comprises over 20% of the labour force and these workers are the backbone of several crucial economic sectors. Whilst official Government estimates of documented migrant workers number nearly two million, possibly the same number are also working in the country unofficially. The documentation, or lack of it, of many migrant workers in the country, is difficult to assess due to a variety of processes and enforcement mechanisms being in place. Furthermore, the borders are porous and Malaysia’s geography is divided between the peninsula to the east and Sabah and Sarawak to the west on the island of Borneo, which sees migrants assimilated into both formal and informal workforces across a range of sectors and locations.
The Dhaka Principles, as a voluntary framework on migrant workers’ rights, recognised that a transnational phenomenon like people leaving for work abroad needed a systemic understanding rather than a piecemeal approach.
At every stage of the migrant worker’s cycle, from recruitment to return or onward employment, documentation plays a very important role. From ensuring the preservation of identity to enabling formalities and legalities, migrants’ rights are often determined by a simple document. As rights-based actors, whilst we champion the workers’ right to retain their own documents as enshrined in Principle 4, we should remember that they are merely records of various data, and not the full embodiment of the migrants’ consciousness and being. We should strive to ensure that the dignity of migrants and the respect they are accorded is not determined simply by the documentation they possess. In practice, this means that even if workers lack documentation, or have lost their papers, they should not be put in conditions that dehumanize and degrade them. In Malaysia as elsewhere, the immigration laws have been constantly weaponized to punish severely those migrants who are without papers – even when the migrants are not at fault of their own. The punishment of workers without documents in the supply chain may have been the result of an over-emphasis on linking the migration rights to documentation. And hence, the discourse around documentation must be dealt with in a way that does not cross the line to imply that only workers with documentation should be protected.
Digital Documentation
Officials at visa centres and labour attachés at embassies play an important role in ensuring responsible practices and to mitigate and reduce problems abroad for migrant workers. However, accessing their services can be difficult, bureaucratic, and subject to corruption. Advances in digital technology and the digitization of migrants ID documents may play a vital role in eliminating some of the difficulties presented by existing paper-based systems and the vulnerability of workers when they are not able to safely access or retain these documents. Digital applications, signatures, and biometrics, coupled with blockchain technology could help ensure better protections for migrant workers and the businesses that employ them. However, aggregation of such data can itself pose problems, and there must be strict protocol governing who uses the data, who stores it, with whom is it shared, and the time limit when it should be destroyed. Furthermore, it must not be monetised and it should not be shared with other bodies – governmental or private – without explicit authorisation and where human rights safeguards are put in place, including a robust law protecting privacy rights.
The discourse around documentation must be dealt with in a way that does not cross the line to imply that only workers with documentation should be protected.
On the positive side, migrants’ IDs and documentation can be included in the blockchain, with minimal possibility that the data can be manipulated and exploited by traffickers and smugglers. This would also help enforcement agencies and civil society trace the digital trail of trafficked and smuggled migrants, provided sufficient safeguards are in place to prevent the misuse of data. Fintech could also incorporate digital documentation and IDs to assist in the records of salaries, payments across borders, remittances, insurance schemes, and other services which rely on the migrants’ IDs and documentation. Fintech could be made a mechanism to circumvent the constraints of methodological nationalism by riding the wave of technology, to make it work for the worker. We must also be conscious that digitizing ID and documentation may pose a risk to violations of Personal Data Protection. In Malaysia, we have seen how migrants are trafficked openly on social media with all their private information used to haggle for the right buyer. The dawn of Digital Health Solutions will also raise issues of privacy and data protection of migrant workers' information.
On the other hand, the digital divide currently excludes many migrants from basic digital services due to the poor management of documentation processes, especially in the previous governance of migration. For instance, to register for many services or jobs in the gig economy, migrants are required to register into the apps with their passports or ID cards, which have either been kept by their employers or lost in the migration cycle.
Worldwide, there is an increasing reliance on phone-based ‘apps’ to fix complex problems, and Asia is no exception. Indeed, we have observed the “App Wars” where every actor in the supply chain assumes that producing an App or an online tool will be the “be all and end all” of resolving forced labour. Sadly, these donor-driven initiatives are seldom designed with the workers’ voices included from the inception stages, and hence, many end up as “White Electronic-Elephants” with millions of dollars wasted.
Advances in digital technology and the digitization of migrants ID documents may play a vital role in eliminating some of the difficulties presented by existing paper-based systems and the vulnerability of workers when they are not able to safely access or retain these documents.
Certification and Qualificationn
A further vital data that would benefit migrant workers is evidence of the upskilling and training received. This form of documentation is almost missing from the Dhaka Principles narrative. The “passport” is seen as the primary documentation to ensure migrants' rights are not violated. But we should put value on the documentation of the workers’ experience, testimonials, certifications, references, or other documentation. These can help elevate the worker from low-income work to middle-income and so forth. This documentation will play a vital role in the elimination of the notion of “low-skilled” labels.
The Future of Principle 4
One of the main challenges of operationalizing Principle 4 with respect to rights is for employers to find a balance between ensuring justice and protections which can be obtained via securing documentation without creating an environment where dignified treatment of the migrant is dependent exclusively on that documentation. And for this to happen in a holistic manner, the 10 Dhaka Principles must be read as a whole, with their intersectionality underpinning new solutions, such as through technology. And for the solutions to work, we must bring back the workers’ voice and their right to bargain collectively to the centre of the discourse.
This month’s co-authors are Adriann Pereira and Manishankar Pasad from the North South Initiative (NSI), a Human Rights and Social Justice orientated organisation based in Malaysia. NSI’s mission is to build a society that prioritises social justice via solidarity building. The range of tools and methods NSI utilises with the business sector include helpline systems, smartphone applications, remediations, hostel inspections, social audits & dialogues, strategic litigation, worker empowerment, community organising, middle management training, data collection and evidence-driven digital systems.
