“Theft” Alone Grants Domestic Workers an Audience with a Judge

2018-09-14    |   

During the first half of 2017, we monitored 195 rulings issued by the criminal judiciary in Beirut, Baabda, and Jdeideh in cases involving foreign domestic workers. Remarkably, 178 of these rulings – approximately 91% – were issued in absentia. The reason for this high percentage is not just that convicted workers go into hiding [when charged], but also – and primarily – due to the prevalent practice of arresting workers in violation of foreigners’ residency conditions and investigating and deporting them before their files are even referred to the judiciary. We previously labeled this practice – which prevents the workers from appearing before the judiciary – “manufacturing trials in absentia”. We argued that this high percentage of trials conducted in absentia marginalizes the judiciary’s role restoring balance to these labor relations. The judiciary is further marginalized by the fact that most of these problematic labor cases go without any trial – whether in absentia or in the presence of the accused (i.e. adversarial) – in the first place because of the sponsorship system.

In many instances, the sponsorship system compels the worker to remain in the job however harsh its conditions may be for fear of losing her legal residency status and, by extension, the chance to stay and work in Lebanon. Moreover, this system compels any worker who does end up filing a complaint against the employer to subsequently abandon the complaint so that the employer relinquishes their sponsorship of her to someone else, which is a precondition for remaining in Lebanon. Even in instances where the worker wants to return to her country, she might abandon her complaint to obtain a small fraction of her dues because she is convinced she has little legal protection.

In this article, we shall examine the other, less prevalent cases: those in which the worker is able to appear before the court. Which type of trials are conducted in domestic workers’ presence rather than in absentia? What procedures are followed during these trials? Do they allow the worker to confront the employer on equal footing as part of a trade-off between rights and responsibilities? Do they allow judges to document the conditions of domestic work and the abuse that might pervade it? Do they allow judges to restore some balance to these conditions? Or do the prevailing practices that marginalize the workers also apply, for one reason or another, to these cases such that they have no effect if not a negative one? Before answering these questions based on the study sample, we must point out that the defendant workers attended court – and therefore met judges – only in cases where theft complaints were filed against them and where it was possible to arrest them before or during the trial (13 cases). In other words, “adversariality” is only realized in cases of alleged theft.

The Right of Defense: No Lawyer, No Interpreter, and Adversariality Without Confrontation

Do the workers enjoy defense rights in the cases where they are able to appear? Can they access a lawyer? Is an interpreter brought in to ensure they understand the questions posed to them and can express themselves freely? Most importantly, does adversariality mean that the worker can confront and question the employer?

From the 13 cases, the following is evident:

• The workers were able to bring a lawyer with them in only two cases, and neither lawyer submitted a written or oral pleading. The head of the Beirut Bar Association charged one lawyer with defending a worker appearing before the investigating judge, but the lawyer took no subsequent action, neither accompanying her to the hearings or defending her.

• There was no interpreter in court to help the workers in any of these cases. Only in two of the seven cases whose files we possess did the record of proceedings state that the worker was proficient in Arabic.

In one of the cases of theft and “flight”, the accused worker who understands little Arabic agreed to have her employer act as an interpreter for her before the judicial police. The worker then had no interpreter before the court. Rather, the judge merely recorded that she attended, repeated her statements, and claimed the broadest of mitigating factors.

Worse, in one case, the advocate-general decided to skip taking the workers’ statements because they were not proficient in Arabic. Hence, instead of securing an interpreter, he used ignorance of the language to leave the defendants’ testimonies unknown. Contradictions also appear in some cases, the first being the same case just mentioned. After the advocate-general requested that interviewing the workers be skipped, one of the workers stated during her interrogation that she did not want an interpreter appointed because she speaks Arabic well.

The same is evident in another case: the military police indicated in one of the reports that they could not record the names of the workers arrested because they do not know Arabic, but one of the workers later stated in another investigation report that she is proficient in Arabic. She was then interviewed without an interpreter.

These contradictions raise the following question: did the single judge verify the worker’s language ability rather than contenting himself with the worker’s statements and what had been recorded in the preliminary investigation reports? We encountered this in one of the cases we were able to attend: the single judge asked the worker in two hearings whether she was proficient in Arabic. He verified by asking her to repeat what had been explained to her, and she then did so in detail.

• In five cases, the plaintiff employers appeared before the judge in person. In another five cases they were represented by a lawyer. Even when the plaintiffs appeared in person, the defendant workers were not able to question them, and the judges did not confront them with statements the workers made in the responses they gave before him. Hence, even in the rare instances where confrontation occurred, it seemed pro forma.

In one case, the judge insisted that the employer attend so that he could conduct a meeting between the employer and the defendant. Four hearings then occurred before the trial concluded. The first two were attended by the employer’s lawyer without the employer, and the defendant was not transported to them. In the third hearing, the lawyer sought an adjournment so that his client could attend. In the fourth hearing, forty days after the judge’s decision to conduct the meeting (during which the worker remained under arrest), the lawyer justified his client’s absence by arguing that “he [the client] wants to waive his personal rights regarding the defendant, who pledged to pay her travel expenses in a previous hearing”. Hence, the trial concluded without the employer attending and without him actually waiving those rights.

In other cases, lawyers expressed personal convictions about the case facts. For example, in the record of one hearing, one lawyer affirms that, “I am content that [the worker] ventured to steal”.

Except in a case where the judge justified dismissing the claim for theft damages on the basis of the plaintiff’s absence, judges did not impose any consequences for such absences.

• In many of the cases (for which we possess the single criminal judge’s record or the ruling recorded the number of hearings convened), the workers were not transported to their trial hearings. The rate at which workers were not brought to the trial remains very high, as shown by the seven cases whose files we obtained. In these cases, the defendant workers were only brought to 12 of the 21 hearings, or 43%.

Additionally, in two cases (for which we do not possess the single criminal judge’s reports and the number of hearings convened was not mentioned), it was mentioned that the worker was brought only to the closing hearing.

Making matters worse, on no occasion did the judge inquire into the reasons the worker was not brought to the hearing. We found no traces of the justifications in the files studied. One of the records stated that the registry had noted that “the worker would not be transported to the hearing”, without mentioning why.

This prolongs the workers’ arrest and subsequently prompts the judges to hand down harsher punishments to cover the period of remand. In some cases, the remand period exceeded the period [of imprisonment] handed down.

This article is an edited translation from Arabic.

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