Domestic Worker in Lebanon Fights Racism: Time for Judiciary to Listen

2020-03-17    |   

Domestic Worker in Lebanon Fights Racism: Time for Judiciary to Listen

In early September, a Filipino domestic worker filed a countersuit for calumny (i.e. the filing of false accusations) with the single criminal judge in Beirut against her previous employer. The case centered on the theft complaint that the employer had filed against her, which ended with the worker’s acquittal on the grounds of insufficient evidence.

In her suit, the worker explained that for more than three years, she had raised the employer’s two children, and she left Lebanon for an unpaid vacation in her own country with the approval of the employer (who took her to the airport) and on the basis that she would return afterward. The worker testified during the case against her that the main motive behind the theft accusation was not a desire to recover money (falsely alleged to be stolen) but to prevent her from returning to Lebanon. She drew this claim from the employer’s effort to obtain a General Security order preventing her from entering Lebanon. She also testified that this motive stems not from her or anything she did or did not do, but from a plan the employer hatched to improve the conditions of her separation from her husband. While the husband obtained custody of their children, the employer sought to banish the worker (the person who had raised them and to whom they had grown accustomed) in order to make it difficult for them to stay with him.

Note that the wife’s calumnious scheme produced its effects for almost eight months, during which the worker was prevented from returning to Lebanon, though the worker subsequently managed to put an end to it. For after General Security decided, based on the employer’s complaint, to ban the worker from entry, the Public Prosecution issued a search and investigation warrant against her. It then charged her with the crimes of theft and violating residency conditions before the investigating judge, who ultimately issued an arrest warrant in absentia against her. The worker would never have been able to stop the wife’s transgression against her had the husband not commissioned a lawyer for her to rectify the situation that his wife had concocted.

Hence, while this calumny suit may constitute the first response of its kind to a large number of calumnious theft cases whose plaintiffs for decades went unprosecuted, the theft accusation against the worker and how the judiciary handled it constitutes additional telling evidence of the faults in the Lebanese system (specifically in the Public Prosecution and the investigating judiciary), which has allowed this practice to develop. The practice continues virtually daily, with all the injustices it produces in terms of the workers’ deprivation of their rights and their arrest and deportation without a chance to access the judiciary.

A Case Exposing the Bias of General Security and the Judiciary Against Domestic Workers

It is no secret that there is a social and legal bias against domestic workers. This bias is reflected by all the practices and regulations to which they are subject, from their exclusion from the Labor Code’s protection to the sponsorship [kafala] system and the injustices and impunity it permits. This we have previously explained at length. What this case adds, in particular, is the bias of the public administration (General Security) and the judiciary against the workers, which further weakens their legal protection and, moreover, exposes them to more injustices.

This bias appears clearly in three places:

The first is the employer’s acquisition of an order from General Security to ban the worker from entering the country. The bases upon which General Security relied to issue such an order are not clear from the case documents, especially as they indicate that the employer filed the theft claim with the Public Prosecution after obtaining the entry ban, and the aim was to thwart her husband’s attempts to compel General Security to rescind its decision. This is evident from the text message that the employer sent her attorney and that she revealed during her divorce case. In the message, she stated clearly that her husband “wants to bring [the worker] into Beirut at any cost within 24 hours. He will call upon all his connections with General Security despite the entry ban that I obtained on Thursday, October 29. Note that she was under my name… Before I decided not to bring her back, he was prepared to do anything to bring her back in order to toy with my nerves later with my children”. Hence, clearly, she managed to obtain a General Security order prohibiting entry by making a request to General Security in her capacity as sponsor without presenting any judicial ruling or decision. This reveals that an employer who recruits a worker from abroad “under [their] name” (i.e. the sponsor) controls, by virtue of General Security’s application of the sponsorship system, not only the legality of her residence in Lebanon but also the legality of her return to the country. Just as they can deport her, they can prevent her from returning. All this occurs in accordance with practices that General Security perpetrates (or improvises) in the absence of any legal text and in conflict with all legal principles. Besides the fact that these principles do not give any person prerogatives of this kind over another person, even a foreigner, they also disallow any public administration (General Security) from issuing such administrative punishments (a ban from entering Lebanon) without citing a judicial ruling or relevant legal text or even enabling the person concerned to defend themselves. The best evidence of the ill of these practices is that they are generally based on the sponsor’s requests in the absence of any standards, as revealed by the wife’s appeal to her lawyer (who, by the way, is currently a minister and was one at the time the complaint was filed) for help to overcome her husband’s clout and connections with General Security.

The second place is the Public Prosecution’s instigation of charges on the basis of the complaint presented to it, which contained no evidence of theft or even any violation of residency conditions except for the statements of the plaintiff herself. Moreover, the Public Prosecution in Beirut apparently issued a search and investigation warrant, ensuring that the worker would be arrested if she returned to Lebanon. Because such a warrant cannot be extended, the Public Prosecution later charged the worker before the investigating judge with misdemeanor theft, as well as provisions related to flight and violating residency conditions (none of which are applicable in this case). This prosecution (along with dozens of other public prosecutions documented by The Legal Agenda) reveals the Public Prosecution’s utmost imprudence in approaching cases of this type, imprudence that reaches the point of identification with the employers’ demands irrespective of the law’s contents.

The third place is the investigating judge’s stance. On his part, he went as far as to issue an arrest warrant in absentia and indict the worker for the misdemeanors alleged by the Public Prosecution without attaching any evidence to his decision. The subsequent acquittal seemed to justify the stances of the Public Prosecution and investigating judge on the basis that their decisions may be issued based on mere “suspicions”, unlike trial judges, whose rulings must be based on complete certainty underpinned by conclusive evidence that leaves no room for doubt. Yet an examination of the case evidence refutes any statement that suspicion (or at least serious suspicion) existed as there was no evidence besides the employer’s word. In general, the actions of the Public Prosecution and investigating judges reveal clear discrimination among litigants based on social status in particular, with the weight of the poof that Public Prosecution and investigating judges require for charging or indictment increasing and decreasing in proportion to the litigants’ social status. Hence, while the employer’s word constitutes sufficient suspicion for charging and indictment in theft cases against domestic workers, very strong evidence, verging on certain, is required to prosecute a banker or influential person.

Additionally, while I commend the acquittal that the trial judge issued, it also records that he took no measure to inform the Public Prosecution that a crime (the crime of calumny and fabricating evidence) may have occurred during the examination of a case, as the law requires him to do whenever evidence emerges of a crime not encompassed by the Public Prosecution’s allegation. Rather, the trial judge seemed to exonerate the Public Prosecution and investigating judiciary by explaining that they are judges who determine suspicion and justifying the acquittal on the basis not that there was no evidence or the allegation had been proven false but that the evidence was insufficient.

This the worker’s attorney expressed in the opening of her countersuit: “This case is one of thousands in Lebanon that document before the judicial authorities the injustice against the foreign worker who is compelled to leave her country and family and endure the harshness of alienating emigration only to get, to her misfortune, an unjust employer who has no conscience or care for her feelings or dignity and feels entitled to take that dignity away and falsely accuse her”.

A Calumny Suit: A Chance for a Trial on Equal Footing

While the case gives us a clear idea of the norms of theft accusation and the factors perpetuating them, the countersuit that the worker filed distinguishes it from all the other cases in two equally important ways:

The first is that it is the first countersuit of its kind. This the worker’s attorney also expressed in her opening. After mentioning that this is the first such suit to emerge from thousands of similar cases, she stated, “The plaintiff [the worker] refused to endure and submit to the defendant’s [the employer’s] injustice. She refused to remain in her country after she was banned from entering Lebanon because of the defendant’s theft accusation. She exercised her right to defend herself and pursued her case on equal footing to prove her innocence, reclaim her right, and shed the injustice. That’s because she knows that, like many of her counterparts, she is subject to the arrogance and injustice of an employer trying to achieve her personal ends while flouting the most basic principles of humanity”. The suit’s exceptionality stems from a range of factors, some of which I mentioned above. The most prominent is the neglect on the part of judges and Public Prosecution offices to take the necessary measures when evidence emerges of a crime of calumny. Making this matter worse is the fact that in most theft cases, the workers are arrested, questioned, and perhaps deported before the case ends, and rarely is legal help for defending themselves against the employers available. During our monitoring of the work of the courts in this regard, we recorded a limited number of cases brought against employers (an employer was fined for abusing theft allegations after the worker’s acquittal, and a sham sponsor was convicted when she falsely alleged that the worker had fled her home and was subsequently deemed complicit with the worker in the violation of residency conditions), and none led to the worker’s compensation for the grave damage that she may have sustained.

The second is the chance for the worker to appear before the judge directly and on equal footing with the employer to prove her claim and the damage she sustained and, most importantly, to document her personal account of her relationship with the employer in the court records. This aspect is no less important than the previous, as the monitoring of judicial work has established that most criminal rulings against the workers are issued in absentia. In other words, they are issued without the judge being able to question or even see the worker, either because she was deported before the case file was referred to the judge or because she went into hiding to work in the black market for fear of deportation. The same tendency is found in labor cases, where the worker is the plaintiff: in all the cases monitored, we found that lawyers (generally from Caritas) filed the cases with the Labor Arbitration Councils at the workers’ requests after General Security had deported them before they could collect their overdue wages. On the other hand, the only cases in which the worker is able to appear before the judge are those in which she has been accused of theft. In such cases, she attends court on the defense and bearing the stigma of theft, and the trial rarely allows her to go beyond denying or confessing in order to present any justifying or mitigating factor. Hence the exceptionality of this suit: the worker currently resides in Lebanon and possesses legal papers because she works for the husband, and, having proved her innocence of any charge, she can appear before the judge and dedicate her pleadings to proving the gravity of the transgression committed against her or the damage it did to her. The initial case filing included key phrases underscoring this damage, which consisted of her inability to return to work and make a living for eight months and the subsequent damages to her dependent family members (she supports sick parents and pays the university fees of her brother, who was prevented from studying). However, it is hoped in particular that the judge will handle this suit in a manner that suits its exceptionality and the exceptionality of the opportunity before the worker to present her defense and her narrative, on behalf of thousands of domestic workers who were charged with theft without a chance to defend themselves on equal footing, such that she is granted sufficient time to do so via the questioning or pleadings. By virtue of this exceptionalism and, in particular, the judiciary’s proper handling of it, this countersuit could not only deter employers from this practice but also – and no less importantly – hold a mirror up to judges and prompt them to reconsider their methods in these cases. It could thereby constitute a turn towards a less bleak and unjust future. So let’s keep watching…

This article is an edited translation from Arabic.

Keywords: Lebanon, Domestic worker, Public Prosecution, Calumny, Judiciary

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