CEDAW and Transformative Judicial Obligations: The Vulnerable Migrant Domestic Worker and Root Causes of Abuse

CEDAW’s transformative provisions, which require states to address root causes of injustice and discrimination, can be made more effective not only through legislation and policy, as commonly argued, but through the judiciary. This article highlights the need to develop the content and implementation of transformative judicial obligations under CEDAW through a comparative study of judicial decisions on the abuse of female MDWs in three key MDW destinations that are party to CEDAW—Hong Kong, Singapore, and Malaysia. By engaging with scholarship on CEDAW’s positive obligations, transformative equality, and theories of adjudication, this article argues that criminal law courts should not only ensure the accountability and punishment of perpetrators of MDW abuse, but should also ascertain and critique the laws, policies, and practices enabling such abuse. Courts in the MDW destination countries studied here have increasingly recognized MDWs’ vulnerabilities by discussing MDWs’ social isolation, financial precariousness, and dependence on employers for their basic needs. However, these judicial discussions generally have not recognized the underlying causes of MDWs’ vulnerabilities. By analyzing positive and negative examples of judicial decisions, this article demonstrates that criminal law courts can and should act as transformative agents by exercising their expressive or statement-making powers to address the causes of MDW vulnerabilities. Importantly, CEDAW requires courts to determine the root causes of MDW abuse, identify the necessary steps forward, target responsible state actors, and counter deep-seated prejudices by representing MDWs as dignified rights-bearing workers.