Revamping the sponsorship system in the region according to Islamic jurisprudence will benefit both employers and employees.
Islam's evolving role in the protection of foreign workers
This summer Arab countries, and especially Gulf States, took a step towards labour equality when they supported an International Labour Organisation convention calling for the protection of migrant workers. Gulf contributions to the dialogue were welcome and overdue.
An important question going forward will be how Islam can best guide labour practices in the region. And in this regard there remain many open questions.
I was reminded of these facts during a recent event organised by Migrant Forum in Asia, in collaboration with Lawyers Beyond Borders, Human Rights and Development Foundation and the Open Society Justice Initiative.
The forum, held in Bangkok, brought together lawyers and practitioners in the field of migrant workers' rights. The participants were from countries of origin (including Bangladesh, the Philippines, India and Nepal) as well as destination countries (including Bahrain, Jordan, Lebanon, Oman, Qatar, Saudi Arabia and the UAE).
The three-day programme addressed a variety of issues and developed some steps to improve the rights of foreign workers. And most interestingly, one of the issues raised was Islamic jurisprudence and international migration law.
Justice, equality, safety, security and human dignity are indispensable values in Islam. However, there is not a detailed Islamic legal code or system for the protection of refugees, internationally displaced people and migrant workers according to contemporary understanding.
The main impetus behind bringing Islamic jurisprudence to the table was two-fold: first, Islam remains a source of legislation for the majority of Arab countries, so it is worth examining new Islamic paradigms to address challenges in migrant workers' employment and working conditions.
Second, Islamic discourse might be a useful tool in some advocacy contexts.
The most notable problematic area is the sponsorship system, kafala in Arabic.
Receiving countries see in the kafala system an essential means for gathering statistics, regulating entry and residency, managing the labour market in view of high rates of unemployment among youth, and capping cultural influence.
Kafala is based on an employer-employee model, which in a way provides one party (the employer) with authority over the other (the employee). But for migrant workers, theory and practice are often at odds. Given the gap that often exists between the code of responsibility and the practice of protecting workers, additional safeguards are needed.
Two potential models drawn from Islamic finance offer potential solutions: usufruct (or ijarah in Islamic finance) and mudharabah (a form of profit sharing).
Usufruct was historically associated with getting returns from leasing an asset or a privilege. The term in later years was confined to real estate or property contexts. In this case the asset or privilege is the ability to legally sponsor a migrant worker.
The contentious questions here are serious: can we or do we want to commoditise sponsorship? Are there associated risks? And can we develop some remuneration system to reflect the risks taken by the sponsor and determine the sharing of risks and benefits with the worker?
The mudharabah analogy raises other questions. This is a form of partnership where an investor puts in money and the worker invests effort to earn revenue. This formula is used in trade, and it seems to be useful in the employee-employer relationship, too, since it provides equal standing to both. It also moves the relationship from the prospect of abuse or uncertainty.
So might the kafala system be politically and socially morphed into a mudharabah-like structure?
Can we identify and quantify risks associated and link them to identifiable and quantifiable benefit? Would the already developed ratio system apply here?
Such questions and others pertaining to the working conditions and rights of migrant workers, and especially domestic staff, will need to be answered before Gulf states can build on ILO.
Ahmed Al Mukhaini is an Oman-based consultant in sociopolitical development and human rights.