Workers’ Party (WP) MP Gerald Giam spoke up for migrant workers and how the justice system can be made fairer for them, as he rose to speak in support of party chairman Sylvia Lim’s “Justice For All: Enhancing Equity In The Criminal Justice System” motion in Parliament on Wednesday (4 Nov).
Ms Lim had called on the House to affirm that “fairness, access and independence are cornerstones of Singapore’s justice system.” It also urged the government to “recognize and remedy its shortcomings” to enhance the justice system and facilitate a review of the system.
Mr Giam, who serves at Aljunied GRC alongside Ms Lim, set out the challenges faced by migrant workers and offered several suggestions on how the justice system can be improved to be more fair to this segment of Singapore’s workforce. Read his speech in full here:
“Mr Speaker, Migrant workers face a unique set of challenges when navigating the justice system, due largely to the low socio-economic status in our society. Many of the problems they face will be in addition to those faced by low income Singaporeans, which my Workers’ Party colleagues in this House have highlighted.
Challenges faced by victims
First, I would like to discuss the challenges faced by migrant workers who are victims of abuse, salary non-payment or other offences.
Migrant workers face steep power imbalances when dealing with employers and government authorities. They are in a foreign land and many don’t speak our local languages well. They are far from their families and friends back home. Some migrant domestic workers don’t even have a local support network because they have limited interaction with peers outside of their employers’ homes. They are unfamiliar with our local laws and customs, and often do not know their rights.
When faced with a situation where they are mistreated or are denied their salaries, they may hesitate to make reports to the authorities. This was the case for Ms Khanifah, a maid from Indonesia who endured six months of horrific abuse at the hands of her employers in 2012.
She was sent back to Indonesia just as she was due for a medical check-up, and chose not to tell immigration officers of the abuse, as she was happy to finally escape it. It was only when she returned to her village in Indonesia that her family discovered her injuries and made a report.
Migrant workers in these situations are often caught between a rock and a hard place: If they choose not to report the wrongdoing, it may continue or their perpetrators may get away scot free.
If they choose to report the offence and their case is taken up by the authorities, they will have to remain in Singapore to assist in the investigations and cannot immediately return home to their loved ones.
The legal process takes time. For maid abuse cases that go to court, the investigations alone can take at least a year, while the trial could take another year, not to mention appeals. By the time the final sentence is passed, the entire process may have taken two years or more.
In the meantime, the worker may not be able to work to earn a living. This can be financially ruinous, as they are often the sole breadwinners of large families back home.
While victims who are assisting in investigations are issued with a Special Pass to remain in Singapore, this does not grant them an automatic right to work. They are still required to seek permission from the investigating authorities before working. Fortunately, in most cases, permission is granted for victims.
However, this work may not come easily. Many employers are hesitant to employ domestic workers who are assisting in police investigations. Some victims may be so traumatised by the abuse that they do not wish to risk being in such dangerous situations again.
They also have to look for a place to stay. The burden of sheltering them currently falls mainly on non-government organisations (NGOs).
Taking a step back, there are other factors which may give migrant workers great pause before they make a brave move to report the abuse.
First, many come from countries where corruption and abuse of authority is rife. This could make them inherently distrustful of the authorities. Some may even need to be assured that police officers in Singapore will not demand a bribe to take up their case.
Second, their employers sometimes make—or threaten to make—counter- accusations against them, for example accusing them of theft or damaging company property.
Third, in cases where there is no physical abuse but strong elements of coercion or psychological abuse, the investigation might end with a warning but no punishment for the employers.
In all these cases, the end result for the worker will likely be termination of their current employment and repatriation to their home countries.
The cost of premature repatriation is tremendous for these workers. To find work in Singapore, they would have incurred thousands of dollars of debts owed to recruitment agents in their home countries, which they would spend months— sometimes years—paying off on the back of their low salaries in Singapore. Being terminated and sent home will saddle them with huge debts, not to mention a loss of income and embarrassment for their families.
At the end of the whole trial, even if the perpetrator is convicted, the victim may not be financially compensated to the full extent of what they have suffered. While it is good that there is now a compensation framework for victims, this is not guaranteed, as the perpetrator can escape payment of compensation by serving a jail term in lieu or claiming bankruptcy.
Challenges faced by the accused
I will now move on to the challenges faced by migrant workers accused of crimes while in Singapore.
The same language hurdles encountered by victims are also faced by those accused of crimes. This was the case for Ms Parti Liyani, who, according to the High court judgment, was interviewed for some of her statements by investigators in a mix of English and Bahasa Melayu, while she spoke Bahasa Indonesia.
Her recorded statements were read back to her in English, and translated into Bahasa Melayu by the investigation officer (IO). No Bahasa Indonesian interpreter was present for the recording of four of her statements.
During cross examination in court, the IO conceded that there was a difference between Bahasa Melayu and Bahasa Indonesia, and admitted that he could have understood Ms Parti’s statements in Bahasa Indonesia differently from what she had meant.
Justice Chan Seng Onn, in his judgment, also said that the likelihood similarly existed that Ms Liyani could have understood the IO’s questions during the interview and the recorded statements read back to her differently from what the IO had meant. He was thus satisfied that there was a reasonable doubt in relation to the accuracy of the translation for two of the statements.
Accused workers also need to remain in Singapore to assist with investigations. Ms Liyani was arrested on 2 December 2016 and spent almost four years in a shelter managed by the NGO, HOME, while waiting for her case to be concluded. She was fortunate that HOME was able to find someone to post bail of $15,000 for her. Most migrant workers accused of crimes may not able to secure such a bailor.
They face a similar dilemma as victims when deciding whether to plead guilty or claim trial. Should they plead guilty, the time it takes for them to serve their sentence may be shorter than the time it takes to go through the court process if they claimed trial. Ms Liyani was sentenced by the State Court to 26 months in prison, which was less than the four years she spent waiting for the outcome of her case.
This presents an invidious choice for them, even if they know they are innocent. Bizarrely, it is actually expedient for the migrant worker to plead guilty even if they did no wrong— but is justice served this way?
Should they claim trial, they may not find a lawyer and will certainly not be able to afford one. The Minister for Law has mentioned that Ms Liyani’s fees would have come up to $150,000. Criminal legal aid is available but not by default, as they need to pass means and merits tests.
Even if they do, they still may not find a lawyer willing to take up their case pro bono. Ms Liyani was very fortunate to have a Singaporean lawyer, Mr Anil Balchandani, representing her pro bono at the trial and the appeal. Justice Chan commended Mr Anil for showing much skill and dedication in his work for this case.
Improving the system
I would now like to share some proposals on how we can make the justice system fairer for migrant workers who have to go through it, either as victims or accused persons.
First, we have to tackle the upstream problems which severely hamper their bargaining power vis-à-vis their employers, and contribute to their unwillingness to report abuse.
We must find ways to reduce the high recruitment fees that migrant workers need to pay agents to find a job in Singapore. If workers don’t feel such a sense of obligation to their employer because of a need to pay back exorbitant fees to recruiters, they will be more likely to report abuse when it happens.
I shared one solution to this during September’s debate on the President’s address: To create a jobs portal that advertises all open positions for migrant workers. The positions should be open to only Singaporeans for a period of say two weeks, before being extended to foreigners.
With increasing IT savviness, migrant workers can even search for such positions from their home countries and apply directly. This move towards jobs transparency will cut out the middle-man and reduce the need to pay exploitative fees to recruitment agents.
Second, support services should be provided for all workers who choose to make complaints against employers and find themselves without a home and a job. It should not be left entirely to NGOs and their limited resources. This support should include the provision of basic needs like food and shelter, counselling services and help on understanding their rights.
Third, every individual, local or foreign, should have access to legal representation. If they cannot afford a lawyer, legal aid should be made available to them. To prevent abuse, means testing could be done so that only those who are in genuine need will have their legal fees covered. I note that Minister said earlier that a Public Defender’s Office is under consideration. I welcome this and hope this will be pursued further.
And fourth, once the court orders a payment of compensation to the victim, the system must ensure that the victim receives their payment. Victims should not be left high and dry just because the convicted person is unable to pay. If necessary, a fund could be set up to ensure that victims are guaranteed to receive the compensation amount ordered by the court.
In 2014, the AGC announced that it had formed an internal working group to focus on improving court processes involving abused migrant workers. It mentioned several areas it was looking at, including:
One, exploring how to help more foreign maids get compensation for the losses they incur after they stop work because of abuse. Two, improving court processes involving abused foreign workers. Three, securing medical reports and witness statements more quickly.
Four, persuading the courts to fix early hearing dates. And five, expanding the use of compensation orders, to help more maids obtain compensation for losses resulting from a criminal offence committed against them.
It has been six years since this announcement. What is the outcome of this working group? What were their final proposals and which of them have been implemented?
Conclusion
Mr Speaker, migrant workers are among the most disadvantaged members of our society. Even though they are foreigners, they are an integral part of our society— looking after our children and elderly, and building our skyscrapers and roads. As a developed country, it is our duty to ensure that they have equal access to justice if they suffer abuse or are accused of wrongdoing.
Sir, I support the motion standing in the name of Ms Sylvia Lim.”