Bring back for betterSentence transfer is a reformative justice tool that protects the rights of migrants
A large number of Nepali migrant workers have been languishing in jail in several prominent destination countries. Many are on death row or facing life imprisonment. Yet despite the gravity of their sentences, Nepali prisoners are frequently not informed of the offences with which they have been charged. The harsh reality is that these populations are particularly vulnerable to threats and abuses. The blatant disregard of foreign criminal justice systems for their fundamental human right to access to justice, or more specifically, their entitlement to legal aid and assistance, has sparked a huge outcry among Nepali migrant workers.
The recent amendment to the Foreign Employment Rules, followed by the government’s optimism towards advancing the right to legal assistance to those in foreign jails, is welcome and praiseworthy. As the Ministry of Labour, Employment and Social Security is actively exploring transformative, yet practical, possibilities vis-à-vis access to justice and legal assistance for migrant workers, the government should keep in mind recent developments and global best practices regarding justice modules.
One such development is the ‘transfer of sentenced prisoners’ or ‘sentence transfer’, a widely discussed, popular alternative to implementing prison terms abroad. Unlike extraditions, a sentence transfer is an international process that is only applicable after a foreign court returns a final verdict and declares a consequential punishment. Through sentence transfer, an inmate in a foreign jail is sent to a prison located in his or her native country to serve the remainder of the sentence.
Rationale of sentence transfer
The rapidly spreading wave of the idea of ‘reformation equals justice’ marks a paradigm shift in global conceptions of criminal justice, from viewing sentencing as a retributive or punitive measure to an educational or correctional tool. The decades-long struggle between healing and killing approaches to justice logically concludes with the majority of the modern world finding that killing is, and was never, the ultimate solution. Instead, criminal justice systems should approach crime as a disease, with criminals in need of holistic treatment.
Consequently, the international community has embraced this attitude by adopting the International Convention on Civil and Political Rights, especially the second optional protocol on abolition of death penalty. Many leading nations have been fighting to implement this correctional justice approach domestically by dismissing and reforming hardcore punitive approaches. Critically, such nations have meticulously sought to bring their nationals, who are facing criminal sentences in foreign countries, home with the aim of rehabilitating and re-socialising them and preparing them for reintegration into society. Against the backdrop of reformation and reintegration, sentence transfer has been a widely appreciated and important tool.
Almost all institutions and instruments that regulate international sentence transfers indicate that social rehabilitation is one of the primary grounds supporting such transfers. Research proves that social rehabilitation and reintegration success is correlated with and bolstered by the prisoners’ regular communication with family members and their opportunity to form social links and solidarity with fellow inmates who belong to similar religious, cultural and linguistic backgrounds.
When considering the diverse and distinctive legal structures worldwide, sentence transfer, with its positive impact on prisoner rehabilitation, is even more meaningful for Nepali citizens sentenced in regions of the world that commonly attract migrant workers. In certain destination countries, such as the Gulf countries, non-citizens are extremely at risk of being denied their basic fundamental rights to a fair trial and free legal assistance. As such, sentence transfer becomes an essential instrument for a country to protect its citizens’ rights across the globe.
Although it sounds like a new concept in Nepal, sentence transfer has been widely practiced around the world and is supported by various regional and international human rights instruments. The European Convention on the International Validity of Criminal Judgments, Inter-American Convention on Serving Criminal Sentences Abroad, and UN Conventions against Transnational Organised Crime, including the UN Model Agreement on the Transfer of Foreign Prisoners, are but a few international instruments approving and facilitating the transfer of sentences.
Taking into consideration international best practices, countries have been implementing sentence transfer through one of two methods. Some countries have adopted new legislation and accordingly signed a bilateral or multilateral treaty with other states based on the pertinent act. For example, India enacted the Repatriation of Prisoners Act 2003 and subsequently signed bilateral agreements with countries like Australia, among others, to govern transfers of sentenced persons between the two countries. The second method involves countries simply incorporating sentence transfer provisions into their international agreements. For example, in 1963, the Scandinavian governments created a multilateral arrangement whereby nationals of Denmark, Finland, Iceland, Norway and Sweden could be transferred with the consent of the prisoner.
In Nepal, the very recent Sentencing Act 2018, which is slated to become effective by mid-August, indicates that the country is progressing towards restorative justice goals by introducing new endeavours in the parole system to socialise prisoners. In this new system, potential sentence transfer mechanisms would significantly increase the likelihood that migrant workers sentenced abroad would have a realistic chance to reform and live productive lives. Beyond this individual opportunity, the system also provides avenues for prisoners to work for the benefit of their home communities, increasing multiplier effects to local areas and general social welfare.
In light of these facts, international practices and trends, and Nepal’s newly amended Foreign Employment Rules and upcoming Sentencing Act, the government of Nepal should duly consider the benefits and prospects of sentence transfer in the upcoming amended Foreign Employment Act and when signing new bilateral labour agreements with destination countries.
Devkota is an advocate specialising in the rule of law and human rights