DPRU Q&As: Anurag Devkota, human rights lawyer in Nepal

In the latest of the DPRU's series of Q&As with death penalty experts from around the world, Anurag Devkota, a human rights lawyer in Nepal specialising in labour migration, tells DPRU Research Officer Jocelyn Hutton about his current work on sentence transfers for foreign nationals on death row.

Can you tell us a little bit about what you do at the Law and Policy Forum for Social Justice?

I am a human rights lawyer at the Law and Policy Forum for Social Justice (LAPSOJ), a human rights organization in Nepal specialising in research and strategic litigation. I am involved in jurisprudence-setting litigation at the Supreme Court of Nepal, currently focusing on Nepali migrant workers and their access to justice. Our goal is to reform the legal system in line with international human rights and labour rights laws. We have filed various strategic litigation cases in the Supreme Court on issues such as the alarming rate of deaths of Nepali migrant workers in the Gulf Cooperation Council (GCC) countries, ,[i] guaranteeing external voting rights for migrant workers, establishing a mechanism to provide legal assistance and blood money to those on death row and allowing sentence transfers for those in prison abroad.

What led you to work on migrant workers and the death penalty?

Every time I visit Kathmandu International Airport, the devastating scene of the bodies of Nepali migrant workers returning home in wooden boxes inspires me to do something to help. Every day, more than 1,500 Nepali workers leave their home in the pursuit of better employment opportunities, mainly in the GCC or Malaysia, while hundreds return home having lost their hopes and dreams, or even their lives. When I started litigating for the rights of migrant workers, I found out that hundreds of Nepali migrant workers are serving jail terms in foreign jails, sometimes for crimes they did not even commit.

The constitution of Nepal provides a duty to offer citizens assistance and resources if they are arrested, detained or convicted overseas. However, the government has been reluctant to provide such assistance, which is particularly galling considering migrant remittances are Nepal’s largest revenue generator, accounting for over 30% of GDP.

The Nepali Foreign Employment Board (FEB) has a fund earmarked for the welfare of the migrant workers (collected from migrant workers themselves before departure). Despite the fact that the FEB currently has more than NPR 6 billion in the fund, it is rarely spent on legal aid - most of it is spent on compensation payments for bereaved families - and those accused or convicted of certain crimes are considered unworthy of government support. Undocumented migrants are also excluded from government support or compensation payouts.

Why do you think foreign nationals are at special risk of the death penalty?

Most destination countries’ justice systems are not designed to accommodate the needs of migrant workers, and migrant workers often lack the the necessary skills to navigate the system in the host country. Moreover, they usually do not have the financial resources, language or education to access legal services. These factors contribute to high migrant worker conviction rates, lack of mitigation allowance and excessively harsh sentences.

Nepal provides some pre-departure orientation training to migrants, but these courses have failed to improve migrant workers’ ability to navigate foreign legal systems. Most Nepali migrant workers are from disadvantaged and vulnerable backgrounds, with higher rates of illiteracy and lower education, and do not know the laws and legal system of their own country, let alone a foreign country. Furthermore, the death penalty is outlawed in Nepal, meaning that migrants may not expect such a sentence abroad.

Can you tell us a bit more about the strategic litigation that you do in relation to sentence transfers? Why do you think sentence transfer is so important for foreign nationals?

One reformative tool which may address many of the injustices affecting migrant workers is sentence transfer, whereby imprisoned migrant workers are transferred to their home countries in order to serve the remainder of their sentence there.

This is especially important for migrant workers as non-citizen prisoners in some destination countries, such as in the GCC, are treated extremely poorly. Therefore, sentence transfer becomes a critical tool for a country’s protection of its citizens around the world. This new approach, under a newly approved legal framework in Nepal, could considerably raise the living standards of migrant workers sentenced overseas. Sometimes, it also allows returning prisoners to work in their home country, providing wider social and economic benefits. For Nepal, sentence transfer arrangements could have the added benefit of reducing a death sentence in the host country to a life sentence at home.

Through our litigation, we demanded that the government of Nepal begin to mitigate the damage caused by its failure to institute legal aid programmes for migrant workers and fulfil its constitutional and international obligations by organising sentence transfers through domestic legislation and treaties with destination countries to protect its citizens from death penalties.

In January 2022, due to our litigation, the Supreme Court issued a directive that the government establish mechanisms to provide legal assistance to migrant workers imprisoned abroad, provide updates to detainees’ families, enact mutual legal assistance agreements with foreign states to guarantee sentence transfers, arrange ‘blood money’ payments where possible and redesign the pre-departure orientation course to include training on destination country crimes and sanctions. 

In your experience, do the criminal justice systems in Nepal or abroad help or hinder migrants, and how?

The government of Nepal’s efforts to provide legal assistance and support abroad, or to arrange substantive bilateral labour migration agreements, has been minimal. However, the more democratic and human rights-friendly normative system in Nepal has been a powerful tool for advocates like us to urge for legal and policy improvements.

For example, Nepal's Criminal Procedure Code 2017 mandates that all fatalities under questionable circumstances be followed by post mortems, with the government of Nepal covering all costs. Using litigation, we have demanded that the government conduct post-mortems on migrant workers dying abroad to determine the cause of death, since so many Nepalis die in suspicious circumstances in the GCC, usually due to overwork and abuse. The government have expressed a desire to do this but have yet to make the necessary next steps.

Which issues relating to foreign nationals and the death penalty need more work or research?

Personally, I believe that sentence transfer is one of the most important instruments for protecting the human rights of Nepali migrant workers and other migrants detained overseas. However, there is a scarcity of research on this topic, mainly limited to UN handbooks. Sentence transfers are a new concept for Nepal and other sending countries in the global south, so empirical research into this field could yield tangible benefits for migrants and allow states to develop new regulations and bilateral agreements on the subject.

Anurag Devkota is a human rights lawyer, specialising in labour migration. He works at the Law and Policy Forum for Social Justice (LAPSOJ) in Kathmandu, Nepal. LAPSOJ are pioneers in strategic litigation in Nepal on human rights, migrant rights and constitutional issues. Anurag also writes for the Kathmandu Post on migrant rights issues and teaches law at Purbanchal University and Chakrawarti Habi Academy College of Law.