COMMITTEE ON THE RIGHTS OF MIGRANT WORKERS CONSIDERS MADAGASCAR’S INITIAL REPORT
The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families today concluded its consideration of the initial report of Madagascar on its implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
Introducing the report, Harimisa Noro Vololona, Minister of Justice of Madagascar, said that irregular migration for labour purposes led to the vulnerability of workers who became easy victims of exploitation and abuse. Accordingly, the Government of Madagascar was firmly committed to protecting human rights, including those of migrant workers, and to fighting against irregular migration and all types of exploitation. In that vein, it had taken important legislative, institutional and other measures. In 2013, the Government had decided to suspend the sending of workers to countries with high risk of abuse. In addition, Madagascar had also displayed willingness to fight against cross-border organized crime, such as terrorism, money laundering, and trafficking in persons. In order to control recruitment agencies, the suspension of their operation licenses was still in force. Equality of access to healthcare and to sanitary institutions was guaranteed to all individuals, without any distinction, including to migrant workers and their families. The authorities were currently working on a draft law on the situation of migrant workers.
In the ensuing discussion, Committee Experts inquired about the participation of civil society in the drafting the State party’s report, review of the 1962 Labour Law, inter-ministerial coordination of migration policies, dissemination of the Convention, mandate of the National Commission for Human Rights, migrants’ access to justice, legal remedies for migrants subject to refoulement, bilateral labour agreements with Saudi Arabia and Lebanon, especially concerning the nationals of Madagascar who worked as domestic workers in those countries, functioning of private recruitment agencies, trade union rights for migrant workers, the situation of irregular migrants, fight against trafficking in persons, forced labour and sexual exploitation, administrative detention of migrants, handling of remittances, fight against corruption, the achievements of the inter-ministerial committee on migrants, migrants’ access to healthcare, and the rights of migrant children.
In his concluding remarks, Ahmadou Tall, Committee Chairperson and Country Rapporteur for Madagascar, said that Madagascar still needed to clean up its legal texts for the benefit of its citizens working abroad and for the benefit of migrant workers in Madagascar, and he encouraged it to be particularly vigilant of the provisions of the Convention and of the Committee’s General Comments.
Ahmed Hassan El-Borai, Committee Expert and Country Rapporteur for Madagascar, underlined that the State party needed to ensure that all branches of the law were compatible, and work on collecting disaggregated data on migration.
On her part, Ms. Vololona noted that the Government of Madagascar would take heed of all of the Committee’s observations, and it was committed to safeguarding the rights of migrant workers. In that vein, she formally requested technical assistance from the Office of the High Commissioner for Human Rights.
Maria Landazuri De Mora, Committee Vice-Chairperson, thanked the delegation for the constructive dialogue and encouraged the State party to do everything in its power to improve the quality of life of all migrant workers.
The delegation of Madagascar consisted of representatives of the Ministry of Justice, the Ministry of National Defense, the Ministry of Foreign Affairs, the Ministry of Public Security, the Ministry of Public Administration, and the Permanent Mission of Madagascar to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. today in Room XVI at the Palais des Nations to hold a meeting with States.
Report
The initial report of Madagascar can be read here: CMW/C/MDG/1.
Presentation of the Report
HARIMISA NORO VOLOLONA, Minister of Justice of Madagascar, began her presentation by welcoming the new High Commissioner for Human Rights, Michelle Bachelet, and wishing her success during her mandate. She also thanked to national and international institutions that supported the nationals of Madagascar abroad, particularly migrant workers in difficult situations. Speaking of the late submission of the State party’s report, Ms. Vololona explained that Madagascar had recently come out of a socio-economic crisis which had slowed down the finalization of the report. The report had been elaborated by an inter-ministerial committee created in 2003 and reformed in 2017, under the auspices of the Ministry of Justice and the Ministry of Foreign Affairs. That committee had respected the participatory and consultative nature of the process of drafting, involving all relevant State and non-State actors, with technical assistance and financing of the Office of the High Commissioner for Human Rights in Madagascar.
Irregular migration for labour purposes led to the vulnerability of workers who became easy victims of exploitation and abuse. Accordingly, the Government of Madagascar was firmly committed to protecting human rights, including those of migrant workers, and to fighting against irregular migration and all types of exploitation. In that vein, it had taken important legislative, institutional and other measures. In 2013, the Government had decided to suspend the sending of workers to countries with a high risk of abuse. In addition, Madagascar had displayed willingness to fight against cross-border organized crime, such as terrorism, money laundering, and trafficking in persons by acceding to the International Convention against Transitional Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Palermo Protocol). Madagascar had also ratified 42 conventions of the International Labour Organizations with respect to labour, out of which 36 had entered into force. The Government was also negotiating bilateral agreements on labour migration with Mauritius, Lebanon, and Saudi Arabia.
On the political level, Madagascar had never stopped strengthening good governance and democracy, as exhibited by the reinstitution of the rule of law and the organization of regular, transparent and legitimate elections at all levels. The first round of the presidential elections would take place on 7 November 2018. The Government had also implemented a programme for the consolidation of peace and security. On the legislative level, since 2014 the Government had adopted laws on terrorism and transnational organized crime, communication with media, abolition of the death penalty, fight against trafficking in persons, children in conflict with the law, fight against corruption, fight against cybercrime, nationality, and international judicial cooperation in penal matters.
In 2015, Madagascar had established the National Independent Commission for Human Rights, in line with the Paris Principles. It had also created the National Bureau for the Fight against Trafficking in Persons in 2018. In order to control recruitment agencies, the suspension of their operation licenses was still in force. Equality of access to healthcare and to sanitary institutions was guaranteed to all individuals, without any distinction, including to migrant workers and their families. The authorities were currently working on a draft law on the situation of migrant workers. As for the collection of statistical data, the Government was currently preparing to carry out the third national census, which would allow the authorities to better evaluate its development programmes.
Questions by Country Rapporteurs
AHMADOU TALL, Committee Chairperson and Country Rapporteur for Madagascar, inquired about the process that had led to the drafting of the State party’s report. How many civil society organizations had participated in that process, and what was their level of participation and role? More information was requested on the relationship between the Government and civil society?
Turning to the national legal framework, Mr. Tall asked whether the State party planned to amend the 1962 Labour Law, which was not in line with the Convention.
How were migration policies of various ministries harmonized? Was there one umbrella agency coordinating such efforts? Was there an action plan to manage all migration-related affairs?
How would the national census address migration-related issues? Would it also cover the nationals of Madagascar living abroad?
What was the exact mandate of the National Commission for Human Rights? What were its human and financial resources? What had it done to date? Did it have a specific mandate to work on migration?
What activities had been organized in the country to disseminate knowledge about the Convention? Had civil servants been trained on its provisions? What was the State doing to prevent discrimination?
What had been specifically done to facilitate migrants’ access to justice? Had there been complaints filed by migrant workers? What were the existing legal remedies for migrant workers who could be subjected to refoulement?
AHMED HASSAN EL-BORAI, Committee Expert and Country Rapporteur for Madagascar, asked about the status of the Convention in the national legislation of Madagascar. Was the Labour Law of 1962 still applicable nowadays? That was the most acute problem that the Committee wanted to discuss with the delegation.
Considering the levels of unemployment, Madagascar was going to face greater migratory flows in the future, especially since a large portion of the country’s population was under the age of 15, Mr. El-Borai observed.
What were the main points of the bilateral agreements currently negotiated, in particular the one with Saudi Arabia? Why had the State party not yet ratified the International Labour Convention’s Convention No. 189 on domestic workers?
Who could be deported from the country? Could they appeal that decision? Did private recruitment agencies force workers to pay them commission? Did migrant workers enjoy trade union rights, and access to social security?
Questions by Other Committee Experts
An Expert inquired whether irregular migrant workers could join a trade union. Were there environmental reasons, other than economic ones, that had led Madagascar citizens to leave the country? Was gender-based violence also a push factor for emigration?
What measures had the State party taken to implement international human rights treaties in practice? Why had there been so many recruitment agencies prior to 2015 when the Ministry of Labour had revoked their licenses?
Had the National Commission for Human Rights visited places of detention for migrants? How often had the recommendations of the Ombudsman’s Office been used? Was there anti-discrimination legislation in place? What legal remedies were available to migrants?
Replies by the Delegation
HARIMISA NORO VOLOLONA, Minister of Justice of Madagascar, explained that international conventions prevailed over national legislation, and thus the authorities had always tried to align national laws with international conventions. Accordingly, the delegation would take into consideration the comments of the Committee Experts to modify the Labour Law of 1962.
Ms. Vololona stressed that there was no reason for migrant workers to be denied access to justice. They had access to the Court of Appeals under the Criminal Code or the Civil Code.
The delegation explained that the National Commission for Human Rights, in line with the Paris Principles, was mandated to protect and promote human rights, including the rights of migrant workers and their families. The Commission was independent, and its members were not controlled and could not be replaced by any Government body. Its members could not be detained or prosecuted because of their opinions or actions performed as part of their duties. The Commission had budgetary autonomy. It had already investigated violations of human rights, had carried out public awareness raising activities, and had submitted reports.
Civil society had participated in the drafting of the State party’s report. The national reporting mechanism, which was established in 2003 and reformed in 2017, was comprised of various experts and five members of civil society. Civil society representatives had participated in the drafting process since the beginning, as well as in the technical drafting of the report.
Madagascar had been working on a law on trafficking in persons and sex tourism. However, as some of the provisions of that law were not in line with the Palermo Protocol, the Government had moved to draft a very severe law. Since then, the authorities had drafted a national action plan against trafficking in persons, focusing on prevention, prohibition, prosecution, and partnership.
The national Constitution in article 6 enshrined the principle of non-discrimination, stipulating that all citizens were equal before the law. As for gender-based discrimination, polygamous marriages were not legal. The authorities had not registered any cases of emigration related to polygamy or sexist practices.
As for the training of judges, prosecutors, and police officers, it included a module on the rights of migrant workers and their families. The authorities also planned to include that module in basic training.
On appealing deportation decisions, the delegation reminded that the 1962 Labour Law stipulated that foreign citizens were notified of deportation decisions and they had the right to be heard. Escorting foreigners to the border (deportation) was undertaken when they committed a misdemeanour or crime.
The Government was speeding up the process of negotiating bilateral labour agreements with Saudi Arabia, Mauritius, and Lebanon. Madagascar was currently creating conditions for the ratification of all international conventions pertaining to migrant labour.
Gathering statistical data continued to be a problem for the Government, which was planning the establishment of a national statistics office. The authorities were planning to establish a national migration policy, and a coordination mechanism for migration.
Citizens of Madagascar left the country for economic and family reunification reasons. Health and religion were other important reasons for emigration. The Directorate for Diaspora had been set up in 2015 as part of the presidential commitment that the diaspora could take part in the economic life of the country. The Directorate did not replace consular services; on the contrary, it would strengthen them.
The Labour Law stipulated penalties for those who committed illegal and fraudulent acts in the process of recruitment, or who did not follow contractual obligations. The services of private recruitment agencies were free of charge and they did not receive any commission from workers. As for trade union rights, migrant workers all held those rights, as well as access to the social security system.
Follow-up Questions by Committee Experts
AHMADOU TALL, Committee Chairperson and Country Rapporteur for Madagascar, welcomed the commitment of the delegation to review the 1962 Labour Law and bring it in line with the Convention.
As for the criminalization of irregular migration, Mr. Tall reminded that there were many provisions to punish irregular migration, which was a paradox because Madagascar was a country with few migration problems. The national law did not really foresee how to go about deportation. Migrants should be aware of the possibility of being deported. Mr. Tall invited the State party to improve the lot of foreign workers.
Mr. Tall commended the clear political will of the State party to fight trafficking in persons. However, many countries faced the problem of trafficking on the basis of forged documents. What was being done with such cases of trafficking? Had any convictions been handed down and was assistance provided to victims?
Were irregular migrants held in detention? Were there administrative holding centres for irregular migrants, or were they held together with ordinary criminals?
What specific measures had the State party taken to ensure that all children born in Madagascar, as well as Madagascar children born abroad, had the right to nationality, in order to avoid statelessness?
How were money transfers (remittances) handled? Under what conditions were residence permits granted and revoked? What was the situation of irregular Chinese migrants? Could the delegation provide details on specific cases of migrants who had been sent back?
Speaking of Madagascar’s negotiations of bilateral agreements with Lebanon and Saudi Arabia, which had not ratified the Convention, Mr. Tall inquired about migrant workers from Madagascar in those countries, who were mostly domestic workers. What measures were being taken to ensure that they were not subjected to violations?
AHMED HASSAN EL-BORAI, Committee Expert and Country Rapporteur for Madagascar, inquired about interpreting services for migrants when accessing justice. Criminal sentences could not be handed to migrant workers because they were not criminals. Such sentences should be reviewed as soon as possible, Mr. El-Borai noted.
An Expert asked about measures taken to regularize the status of a vast number of irregular migrants in Madagascar. How close was Madagascar to accepting that the Committee receive individual communications?
Replies by the Delegation
HARIMISA NORO VOLOLONA, Minister of Justice of Madagascar, noted that so far Madagascar had not received any migrants who had been mistreated or denied access to justice because they were irregular migrants. Ms. Vololona reiterated that in 2013 the Government had suspended sending any migrant workers to countries with a high risk of abuse. In that sense, the Committee Experts were right to point out that Lebanon and Saudi Arabia had not ratified the Convention.
Migrants had the right to ask for interpretation if they had to appear before a court. However, due to limited resources, the authorities prioritized social protection for the nationals of Madagascar, 70 per cent of whom were in a very vulnerable situation.
Ms. Vololona said that any declaration with respect to the Committee receiving communications would have to be subject to a Cabinet decision. Within the framework of bilateral agreements, the Government had already regularized the situation of some irregular migrants, such as students from Comoros.
The delegation explained that the transfer of earnings of migrants to their countries of origin was regulated by the 2004 Law on Money Laundering. Some 60 per cent of migrant workers sent remittances, and 15 per cent of that transfer was done through banks. The Government was making efforts to facilitate the sending of remittances through the establishment of a one-stop shop on migration.
An act of 2014 foresaw a budgetary allocation to the National Commission for Human Rights. As for access to justice for migrant workers, the authorities had organized a public awareness raising campaign about legal proceedings. Legal aid was available in an office in the capital city of Antananarivo. Legal proceedings had to be conducted in a language understood by concerned foreign citizens.
On the effective implementation of all international human rights instruments, the Government ensured that the text of national laws was in line with those instruments, and that there was public dissemination about them and relevant training. The Ministry of Justice had conducted a study with a view to set up a statistical framework for legal cases.
Turning to migrant detention, the delegation clarified that migrants were not separated from other detainees. Embassies and consulates were informed about the reasons for the placement of migrant workers in detention. The judiciary police officers had to provide an attorney and an interpreter to charged migrant workers.
The inter-ministerial committee on migrants had so far established bilateral labour agreements, suspended sending of migrant workers to high risk countries, and repatriated female workers from those countries.
All children born on the territory of Madagascar had to be registered and had the right to nationality. As for the children of nationals of Madagascar born abroad, mothers now had the right to transfer nationality to their children.
The bilateral agreement with Comoros was being reviewed, including the chapter on migration. As for the bilateral agreements with Saudi Arabia and Lebanon, migrant workers from Madagascar were mainly female domestic workers. Those agreements would provide an opportunity to protect the rights of those domestic workers, since Saudi Arabia and Lebanon were not parties to the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The agreements covered placement agencies, appeal procedures, dispute settlement channels, arrangements for return to the country, family reunification, vocational training and education, living conditions, social security, remittances, and the return of deceased persons.
Madagascar issued two types of visas: non-migrant (tourist) visa up to 90 days, and immigrant visa for more than three months. On the expulsion measures against migrants, the delegation said that the authorities still used that administrative procedure whenever the Migrant Law was breached.
Second Round of Questions by Committee Experts
AHMADOU TALL, Committee Chairperson and Country Rapporteur for Madagascar, recognized the difficulties faced by Madagascar as a developing country. What was the level of corruption in the security forces and police with respect to the issuing of visas? Corruption adversely affected the rights of migrants and their families, and it could encourage trafficking in persons. Had there been any initiatives against corruption, and any legal cases against officials on the charges of corruption?
Turning to forced labour, Mr. Tall inquired about the sexual exploitation of children and domestic workers. What actions had the State party taken to eradicate such practices?
Were there any cooperation agreements to ensure that the administrative detention of migrants did not last long? Where were irregular migrants held? Did migrants have access to emergency medical services?
How was the policy on professional training and labour going to take into account migrant workers and the citizens of Madagascar already living abroad?
What measures had the State party taken to protect the rights of children of migrant workers accompanying their parents, and the children of citizens of Madagascar working abroad?
An Expert asked about religious migration and how large it was. What had happened when the Government had withdrawn all the licenses to recruitment agencies?
Replies by the Delegation
HARIMISA NORO VOLOLONA, Minister of Justice of Madagascar, said that Madagascar did not have a specific law on migrant children. However, the law adopted in 2007 stipulated guarantees for children in precarious situations or abuse. That law applied to all children living in Madagascar.
The delegation stated that the national police had taken measures to issue passports to minors, with a written permission from parents. When a child travelled with one of the parents, the authorities requested relevant authorization. Fighting forgery of documents was a priority for the authorities in order to prevent trafficking in persons and to prevent minors from being sent to third countries for work. When arrested by the police, migrant children could be detained for only 48 hours.
The Government had taken diplomatic measures with the Chinese authorities to exchange information on regular nationals of Madagascar in China and to address any cases of trafficking in persons.
The delegation explained that since 2004 there had been steadfast efforts by the State of Madagascar to fight corruption. Following the adoption of the relevant law in 2004, the authorities had prosecuted and sentenced dozens of officials for corruption. The Government had also established an anti-corruption unit in 2016, and 10 high-ranking officials were currently subject to coercive measures. The national police had also established in 2011 a general inspectorate to promote integrity, which was a priority of the Ministry of Public Security. Since 2017 that Ministry had been raising awareness among police officers about the importance of fighting corruption.
The one-stop shop for migration provided all migration services of various ministries in one place. The duration of the work visa would correspond to the duration of the work contract. Under the National Policy for Professional Training and Employment, training was offered to workers who wanted to emigrate, including on the language and culture of the country of destination.
Turning to the question of Madagascar nationals working as domestic workers abroad, the delegation clarified that due to the abuse and even death of some women, the Government had decided to revoke licenses of certain placement agencies, but also to all agencies that might be involved in clandestine activities.
The authorities had adopted policies and measures to ensure that all nationals and foreigners could fully enjoy their right to health, and access to health services. Recently, the President of Madagascar had launched the National Quest for Solidarity to ensure the universality of healthcare, including for migrant workers and their families. The judiciary police guaranteed access to a medical doctor to migrants in detention, as well as to emergency medical services.
The law of 2014 criminalized forced labour and sexual exploitation for commercial purposes as a crime related to trafficking in persons. The authorities had stepped up efforts to inform the public about those crimes, as well as to train judges, prosecutors and law enforcement officials on the use of legislative provisions on the matter. The Government had also improved cooperation with civil society to consider together measures to eradicate forced labour and sexual exploitation for commercial purposes.
Follow-up Questions by Committee Experts
An Expert asked for clarifications on the detention of undocumented migrants. Another Expert underlined that the regulatory and legislative mechanism on migration needed to be reviewed as it was not aligned with the Convention.
MARIA LANDAZURI DE MORA, Committee Vice-Chairperson, reminded that the State party had at its disposal various General Comments of the Committee, which could guide the Government in the reform of its legislative framework on migration.
Replies by the Delegation
The delegation clarified that detained undocumented migrants were kept at police stations because Madagascar did not have any detention centres for migrants. They were held there awaiting the administrative measure of expulsion/refoulement. The authorities informed relevant embassies and consulates about the pending expulsion.
Concluding Remarks
AHMADOU TALL, Committee Chairperson and Country Rapporteur for Madagascar, expressed satisfaction that the Committee had been able to conduct a harmonious and honest dialogue with the delegation. Madagascar still needed to clean up its legal texts for the benefit of its citizens working abroad and for the benefit of migrant workers in Madagascar. Mr. Tall encouraged the State party to be particularly vigilant of the provisions of the Convention and of the Committee’s General Comments. Another issue was the shortage of resources, which was why the Government should request technical assistance from the Office of the High Commissioner for Human Rights. Overall impression was that Madagascar was a harmonious country without many serious human rights abuses, which at the same time should motivate the State party to continuously raise the bar higher.
AHMED HASSAN EL-BORAI, Committee Expert and Country Rapporteur for Madagascar, extended gratitude to the delegation and said that he understood the difficulties faced by Madagascar. Nevertheless, he noted that the State party needed to ensure that all branches of law were compatible. Secondly, the Committee would appreciate more disaggregated data in order to better understand the situation on the ground. For example, the Committee needed statistical data on escorting undocumented migrants to borders. Finally, Mr. El-Borai noted that on several occasions the delegation’s answers had fallen short of expectations.
HARIMISA NORO VOLOLONA, Minister of Justice of Madagascar, thanked the Committee Experts for their remarks and constructive recommendations, adding that the dialogue was very engaging. The Government of Madagascar would take heed of all of the Committee’s observations, and it was committed to safeguarding the rights of migrant workers. Finally, Ms. Vololona formally requested technical assistance from the Office of the High Commissioner for Human Rights.
MARIA LANDAZURI DE MORA, Committee Vice-Chairperson, thanked the delegation for the constructive dialogue and encouraged the State party to do everything in its power to improve the quality of life of all migrant workers.
For use of the information media; not an official record
CMW18/09E