OAG drops prosecution of Kurdistan trafficking case of 8 Bhutanese women pointing to legal loopholes

NCWC still feels there is a case and feels dropping it will set a bad precedent. RBP also feels there is a case

The case first came into light in late 2017 when the relatives and parents of eight Bhutanese women working in Kurdistan, Iraq had approached Ministry of Labour and Human Resources (MoLHR) to lodge their complaints of women being mistreated at work.

They said the eight women had to work for more hours than agreed to, and their belongings were seized and locked in a room. They were also not allowed to meet with the other Bhutanese working in Kurdistan.

It was found that the overseas employment agent was not a registered agent with MoLHR and that the agent, a woman from Chukha, was responsible for sending the eight women to work as maids in Kurdistan.

Thereby, the ministry wrote to the Department of Bilateral Affairs, MoFA, seeking assistance in the matter.

The copy of the letter was also made out to the Chairperson of National Commission for Women and Children (NCWC), Lyonpo Dorji Choden, on 31st October 2017. A formal complaint was lodged to NCWC, and on 3rd November 2017, a case was registered with the Royal Bhutan Police (RBP).

RBP was able to bring home three of the eight women from Kurdistan on 12th December. The expenditure from Nepal to Bhutan was all borne by the government and NCWC. The case was later forwarded to Office of the Attorney General (OAG) under trafficking of a person.

However, OAG has returned the case of trafficking of person on 17th April 2018 as the OAG said there was no use of threat or force or deception and the women were sent for lawful purpose only.

According to RBP, though there was no deception, the eight women’s passports, mobile phones and belongings were seized from the airport on arrival. An official from RBP said that RBP did their best and submitted all the evidences to OAG.

“After a thorough investigation, we found that there was ingredient of human trafficking and we have submitted that to the OAG. Our responsibility is to protect a person from any sort of crime, but when this sort of thing happens, our own Bhutanese suffer and they are victimized,” the official added.

The RBP official also said, “The law itself is so weak in protecting our own people from getting victimized in the end.”

After the case has been returned by OAG, they have released the accused on bail. According to RBP, if the eight women wish to approach RBP for help again then the case can be re-opened.

An official from NCWC said that OAG has dropped the case based on Section 154 of the Penal Code (amendment) of Bhutan 2011, which states, “A defendant shall be guilty of the offence of trafficking a person if the defendant recruits, transports, sells or buys, harbours or receives a person through the use of threat or force or deception within, into or outside of Bhutan for any illegal purpose”.

He also said that the eight women went to work as housemaids on their own will and concerns, and thereby, the OAG said there is no illegal purpose.

However, he said that from NCWC’s side, they felt that it is a strong case, not by definition, but seeing the root cause and circumstantial evidence. In the first instance, he said, that the agent is not a legally registered agent with the MoLHR, making any act of the agent illegal.

He also said that the agent’s purpose itself is illegal. “The circumstance evidences are strong; nevertheless, they don’t have concrete evidence.” He said that OAG did not go with the circumstantial evidence, but they directly went with the definition.

“If we go by the definition then, yes, it’s not a trafficking case. But, when we talk about trafficking, it’s not about looking at the definition, but we should also look at the circumstances,” he added.

Human trafficking is an organized crime which is difficult to prove, he said, adding that, they need to focus on circumstantial evidence to prove the crime. “The police have generated the evidences, which are required but the OAG has the right to drop the case as per their act,” he added.

Agreements were signed by the eight women with the agent before leaving for Kurdistan. However, the agreements may not be legally binding as the agent is not a legal entity to begin with. “Now it’s about setting precedence on the case, otherwise people might take advantage of such kind of provision saying that even if we do a human trafficking, OAG will drop the case,” he said.

Thereby, rather than simply dropping and surrendering the case to the police, he said that, if OAG could clearly mention the requirements and what are the extra evidences they need to prove the case beyond a reasonable doubt.

“They should in fact guide the investigation agent rather than dropping the case directly because they know which evidence will work in the court being the prosecuting agency. If they guide the investigation agency then this kind of cases won’t be dropped,” he added.

He said that even if the police or NCWC want to pursue the same case, they cannot prosecute it in the court of law since the case is a fourth degree felony and they have no right to do so.

He said that they have dealt with all the relevant stakeholders of which the Department of Law and Order is the lead agency to deal with trafficking of persons.

From NCWC’s side, he said that they have proposed for an amendment of certain legal provisions on women and children to the Women and Children committee of the National Assembly and the National Council too.

In addition, he also said that Section 154 of the Penal Code (amendment) of Bhutan, the whole purpose of trafficking, itself, is defeated by the last sentence ‘for any illegal purpose’.

“We have proposed saying that Section 154 needs to be amended with the international definition of child trafficking. We will soon hear from the taskforce on whether they have amended it or not,” he added.

In addition, he also said that they have a standard operating procedure (SOP) on trafficking of persons, with different roles headed by different agencies. Likewise, NCWC has SOP on case management of woman and children in difficult circumstances.

OAG said, “All of them (the eight women) went with their own will and taking their own risks. The agent also informed the victims that the license is under process and that they will be going there as a housemaids.”

OAG also said that they dropped the case as it doesn’t fulfill the element of trafficking of person and they found no illegal purpose and there is no force, they were provided jobs and the accused did not deceive the women. OAG added that the main issue was the belongings of eight women being seized by the Kurdistan employers.

OAG said that the agent is not a registered agent with the labour ministry whereby the accused was liable for fines and penalties as per the Labour Act.

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