The Family Background Report discriminates women due to their gender, age and marital status, said Women’s Activist and Human Rights Activist Priyadharshani Ariyarathna.
She filed a public interest litigation earlier last month seeking an order to suspend the Family Background Report circular, which is a requirement for all women migrant workers.
FBR should be a common requirement for both genders if made compulsory or it has to be abolished,claimed Ariyarathna.
It currently applies only to women and excludes men, depriving the equal rights of women, she added.
Ariyaratna further said any woman migrant worker having children under the age of 5 years could not leave the country nor be recommended for registration and they need to get the consent of the spouse for proper care of the children, Women with disabled children too are unable to migrant, while women from the Plantation sector need their employers’ consent which clearly shows that women are deprived of their equal rights.
She stated that the entire section of the Maintenance Act states that, responsibility lies with the spouse and not only the woman, yet the Family Background Report currently applies only to women and it excludes men.
If the FBR is not applicable to males, it shows that there is no responsibility for men to look after or give proper care for children under 5 years, where love and care of both parents are very much necessary, added Ariyarathne.
She said if the country had to face immense issues by sending women as migrant workers, the government need to find other mechanisms to provide them with job opportunities with in the country.
The move taken by the Foreign Employment Ministry to ban women with children younger than five years from migrating abroad for work and the requirement to furnish the ‘Family Back Ground Report’ (FBR) has come under severe criticism. Critics point out that the move is a serious infringement on freedom to engage in chosen fields of work is also bias and heavily discriminatory towards women. The policy slaps further restrictions on already limited options available for female members of some of the most economically vulnerable communities in the country. Regulations have not only stirred up the rights activists in the country, but had reached international levels where the policy had come under scrutiny for the violation of fundamental rights of women.
The Sri Lanka Bureau of Foreign Employment (SLBFE) made it mandatory for all female workers to submit a report on their family background before leaving for overseas jobs from August 1, 2015. This was an enactment of a Cabinet paper which was approved in 2007, the circular issued by the ministry stated. However, the regulation was implemented only selectively from the time it received Cabinet approval. Since 2012, FBR has been compulsory for only female workers leaving Sri Lanka to work as domestic hands abroad.
Women hoping to migrate for jobs are required to obtain the FBR form from their job agent or ministry, fill in all their personal details, including their marital status, number of children and guardian for the children in her absence, obtain the signature of her husband – if married, stating that he had no objections, get it certified by the Grama Sevaka and submit it to the Divisional Secretariat office.
The development officer appointed to each divisional secretariat is required to carry out an ‘inspection visit’ to the applicant’s home to verify the details and to ensure the details furnished are true and accurate. If needed, the officer would speak to neighbours and other individuals to determine the validity of the information furnished. The development officer’s report recommending or not recommending the applicant is sent to the relevant Divisional Secretary. The Divisional Secretary then notifies the SLBFE through SMS. No woman is allowed to proceed abroad unless this relevant SMS is received by the Bureau.
Females with children under the age of 5 years are not “recommended” for foreign employment, while females with children above 5 years would only be recommended for migration if satisfactory alternative care arrangements are in place to ensure the protection of the children.
The procedure had been heavily criticized by different rights groups for its discriminatory nature. Faced with such criticism and a fundamental rights petition, the ministry claims it plans to review its stance. Even six months after the implementation of the new regulation, corrective action is yet to be taken on the policy which affects one of the most economically vulnerable sections of society.
The Ministry of Foreign Employment claims that the Cabinet paper did not originate from their ministry, but was tabled from the Ministry of Women and Child Affairs Ministry. The recommendation was made to mitigate the occurrence of child abuse. When the Cabinet paper was approved, the SLFBE which was under the Ministry of Labour, disregarded it as they were not consulted in the process. The SLFBE first implemented a targeted regulation to affect only female domestic migrant workers in 2012. According to official sources, this was done taking into consideration the cost incurred by the ministry and the bureau. “The cost incurred in repatriations of female workers before completion of contract period due to child related issues is very high, similarly the incidents of departures without informing husband and or the children are high,” one officer not authorised to talk to the media explained.
“Furthermore, the majority of cases dealt by labour sections in relevant foreign missions, relate to these types of incidents. When you add the costs of these functions, the foreign exchange we spend is too much,” the officer said.
The regulation only targets women migrant workers. This is a violation of the basic rights of being treated equally, regardless of religion, ethnicity, gender and language, says Rights Lawyer Lakshan Dias.
“Article 12.1 states that every person is equal before law. Article 12.2 states that nobody should be discriminated on the basis of gender language. So there cannot be one law for men and one law for women. If the FBR has to be there, then it should be for both men and women,” Dias explained. His client, Priyadarshini Ariyarathne, a women’s rights activist challenged the current regulation in a Fundamental Rights Application in December 2015.
Dias himself filed a public interest litigation in appeal court regarding the issues faced by the migrant worker community, including that of the FBR.
“I have requested the Human Rights Commission to examine the issue and provide their opinion as they did on the death penalty on Monday,” he said, explaining details of the case he filed in the Appeal Court.
Women’s rights activists like Aryarathna have been protesting the regulation since its targeted implementation in 2012.
Highlighting the discriminatory nature of the restriction on labour migration of female migrant workers, Dr. Sepali Kottegoda, a renowned women’s rights activist, said it disfranchises women.
“The law takes away the rights of women to take decisions regarding her life independently. Her right to chose and engage in a preferred economic activity is taken away,” she explained.
These laws deprive them from earning for themselves and supplementing the household income. This shouldn’t be the case she added.
The official FBR form – Sinhala version issued by the SLFEB requires the signature of a ‘guardian.’ “A Sri Lankan woman does not need a guardian once they are recognized as adults after 18 years.
They can have their independent life and they are not required by law to have a guardian,” Dr. Kottegoda highlighted.
Agreeing Dias also highlighted that there is no clause in the Marital contract regarding wife needing permission to go abroad.
“These type of practices belong to the 18th century. Not to 21 century. The regulation sends Sri Lankan society back in time,” he highlighted.
A significant number of women also opt to go abroad to work for another number of reasons. Work migration is an escape route from domestic violence. “By requiring the husband’s signature, the regulation make it mandatory for the abuser to sign and let her go,” claims Dr. Kottegoda.
The regulation also effectively absolves men or fathers from any responsibility in child rearing, reinforcing a wrong social norm that it is the sole responsibility of women or mothers, she highlighted.
“It only requires women to report how the children are being looked after. The woman is not the only person responsible for family welfare and children.
The family background report takes away all the responsibilities of the father being accountable for the wellbeing of the children.”
The FBR had also opened up new avenues of abuse and exploitation of hopeful female migrants. Many fall prey to job agents who demand money to prepare bogus FBRs.
Rani* from an estate community in Kalutara is one of them. Her son was only months old when she was compelled to migrate to the Middle East for work. She had two reasons to make her decision, one was her family lacked an income; the second was to escape her husband’s daily beatings.
The local sub agent told her she could go, but she would not receive the initial payment of Rs. 200,000 given by her employer, instead she would only receive Rs.75,000 as she has a young child. With little knowledge concerning regulations, Rani had no choice but to agree.
Incidents where bribes have been taken to issue FBRs have been reported as well. In November, a group of 16 such development officers who resorted to this, have been suspended from service, while six others who formulated such false reports have been interdicted by the Ministry Secretary.
Foreign Employment Agencies have also registered their protest against the FBR.
“Since the FBR report was made mandatory, we objected it. We think it should be abolished,” claims President to the Association of License for Foreign Employment Agencies, Faizer Mackeen.
He claims that the government should create a well researched, evidence-based strategic mechanism to provide support to female and male migrant workers and their families who seek and ask for support and protection.
It is an act of discrimination against women, a restriction of their freedom of movement and the right to work, but the government should arrive at a reasonable classification to promote a more balanced view of all rights involved in the decision to migrate, taking into account the need to safeguard the family unit as the fundamental unit of society, said Faizer.
While he acknowledged the need to consider the well being of the children below 5 years, he highlighted that the government failed to understand the need of the female workers.
After the FBR report was made mandatory, there has been a huge decrease in the number of women with children under 5 years arriving at the agencies looking for jobs as domestic workers, said an employee of a foreign employment agency who requested to be anonymous.
Pointing out that the government was restricting the rights of women without showing them an alternate solution, Faizer added that calling out to agencies for information concerning migrant workers is not the right method.
The ministry acknowledges that the regulation is problematic and says that several individuals and as many organizations have expressed their objections over making the family background report mandatory to all migrant workers.
Secretary to the Ministry of Foreign Employment G. S. Withanage, however blamed the former administration for the blunder.
The ministry is planning to review on the new rules, he said. Withanage said the issue could not be handled narrowly, therefore a decision would be taken considering the suggestions of the individuals from different stake holders.