Singapore’s Prevention of Human Trafficking Act (PHTA) was passed in November 2014 and came into force on Ist March 2015.
When the Act was passed, the StopTraffickingSG coalition and a number of NGOs individually made critical comments that mainly focused on what they regarded as weaknesses in the Act’s victim protection provisions, but there was also some concern about whether the Act as it stands would enable the detection of trafficking, as the prelude to the prosecution of offenders and support for victims is to have a case.
The answer is: it might, it might not. Much will depend on how narrowly or broadly the relevant provisions are interpreted.
A critical weakness of the Act is the absence of definition of key concepts associated with human trafficking. “(F)raud or deception” are alluded to in clause 3(1)(c) as a mean of trafficking, but the terms are not defined even though this is a recurrent feature in trafficking cases.
Narrowly defined key concepts means that some cases that would otherwise be accepted as trafficking under international protocols (Palermo Protoccol) may not be accepted as such in Singapore.
“Coercion” is defined as physical threats or use of force, but other means may be used to put pressure upon and control an individual such as control of documents and emotional manipulation (psychological coercion).
Deception should be defined to include not only misleading an individual about the job s/he is to undertake (i.e., promising one job when the victim will actually do something different) but also giving a very false impression of the terms and conditions of an actual job, such as accommodation conditions, working hours, intensity of work and rate of remuneration according to international protoccols.
It is still rather early to assess how the implementation of the Act is going, but, based on past experience, it is possible to point to areas of difficulty that should be recognized and dealt with.
Migrant worker rights groups, the Humanitarian Organisation for Migration Economics (HOME) and Transient Workers Count Too (TWC2), have referred cases with elements of trafficking to the Inter-Agency Taskforce on Trafficking in Persons (hereafter, TIP Taskforce) which were either not accepted as trafficking cases or no assessment was given.
Reasons for the rejection were often fragmented descriptions like “no element of forced labour” or that testimonies given by victims are “inconsistent”. This is despite the fact that the cases have evidence that aligns with the ILO Indicators of Trafficking.
The cases referred to below are all pre-PHTA in date, but highlight problems NGOs have noted since the Act was passed. They illustrate some of the difficulties in determining whether a person may be a trafficking victim and the differences of understanding that may exist between the understanding of the NGOs concerned and the TIP Taskforce.
Names and identifying details have been altered to protect their identities, but all represent actual cases.
Gautam is a young Indian whose family badly needed more income, and he thought he found one with an agent who speaks well.
He got together the equivalent of S$1,400 and paid it to this individual who bought him a return airline ticket to Singapore and gave him a letter of invitation from a certain Gupta, who would obtain a job and work permit when he arrived.
A “temporary” hotel work was arranged for Gautam, while Gupta obtained a work permit for him. Meanwhile, he took a fee of S$2,000 for his efforts. Gautam did not think he could refuse to pay.
When Gautam did not get paid after working for a month, he complained, only to have Gupta referred to his family at home in a manner that Gautam found threatening. However, Gautam shortly after decided that he had enough. He found his way to TWC2 and asked for help.
Gautam says that he knew nothing of Singapore’s work permit system before he arrived; when told that legal employment could be arranged for him once he arrived in the country, he saw no reason to doubt it.
When his case was reported, Gautam was not considered to be a victim of human trafficking. He was lied to by his recruiter, which should surely count as an act of deception, his vulnerability was exploited (not simply through his need for money but later, the implied threat to his family) and his labour was exploited (he was not paid).
All these are features of trafficking, acknowledged in the Palermo Protocol, though not in the legislation in force in Singapore at the time. Gautam was seen as the victim of an illicit labour recruiter rather than as a trafficking victim.
Would the outcome for Gautam be different had his case come up since the PHTA came into force? His circumstances would appear to be covered by it. The PHTA refers to “fraud or deception” in identifying a person guilty of the crime of human trafficking in clause 3 (1)(c), to abuse of vulnerability in 3(1)(e) and concludes clause 3 by referring to these actions being taken “for the purpose of exploitation” of the individual concerned.
In another case, Yixuan, from China, was promised S$1,000 a month in her In Principle Approval (IPA) for doing bar work. On arrival, she was told that she was expected to have sex with customers. She would only be paid her salary and have time off if she made at least S$8000 a month for her employer, but in reality, even then she would have had nothing to show for her work, since she was made to pay S$750 for her levy each month and S$500 for rent, in addition to other charges for dresses, “entrance fee” and for any client’s payment by credit card.
She had borrowed money to obtain the job on the basis of the pay she was promised, and felt obliged to sign a contract containing adverse terms or risk being sent home with nothing – not realizing that that was exactly what was likely to happen anyway.
HOME referred this as a suspected trafficking case to the TIP Taskforce, which considered that it was not a trafficking case. It is not clear why, though one possibility is that she admitted to having provided sexual services in the past.
But this should not be relevant because a sex worker can be considered trafficked if she has not agreed to the working conditions but is coerced into continuing.
It may also be that it was considered that there were times when she could have refused to cooperate with her employers and left, but did not do so, or that she consented to an inaccurate statement being made on her IPA, but in either case, it should not have ruled her out as a trafficking case.
But how much choice did she have? She felt obliged to cooperate with her employer, who held her passport, could cancel her work permit at will and held a contract that she had been made to sign.
This worker had certainly been misled about the terms of her work before she left home. Having spent good money to obtain a job in Singapore and needing to earn, she felt obliged to agree to the demanding terms set by her employers. She was tied to her employer by her indebtedness and her dependent status in Singapore.
Would a different conclusion have been reached by the Taskforce if Yixuan’s case had been referred since the PHTA came into force? Clause 3(1)(c) would cover her deception and the pressure to which she was subjected through her indebtedness and sense of obligation ought to be covered by clauses 3(1)(a), (c) and (d).
These cases raise a number of questions about our understanding and interpretation of what constitutes trafficking.
The TIP Taskforce accepts that people who are trafficked may be obliged to break the law, and that, in such cases, they should not be held liable for what others forced them to do. This principle is well established in Singapore’s legal system.
Singapore as a society not only has a penal system that deters violence in the commission of crime, but a strong public consensus amounting to a social norm that it is completely unacceptable.
Violence has different forms: debt bondage and threats are as coercive as physical assaults. It is quite unreasonable to give undue weight to former and neglecting the latter.
It might finally be noted in passing that, in all the above cases, if victims are given a legal entitlement to change their employer, their vulnerability to trafficking will be significantly reduced.
Given these past experiences, the implementation of the PHTA should, in the view of HOME and TWC2, be kept under review to see whether it does mean that cases such as those cited are more likely to be evaluated as trafficking cases.
If this is not occurring, it would seem that there should either be a re-examination of how the act’s provisions relevant to victim identification are interpreted, to give greater weight to the possible impact of forms of coercion and control other than the use or threat of physical violence, or consideration should be given to amending the act after its first year of implementation.
The writer is head of research at the migrant workers’ group Transient Workers Count Too