For migrant workers in trouble, navigating Singapore’s legal system can be a challenge

SINGAPORE, Sep 12, 2020, TODAY. Ms Simpen, 49, who goes by one name and has worked as a domestic helper in Singapore for 13 years, was among those in the Indonesian community here who were cheered by the news of the acquittal of their compatriot, Ms Parti Liyani. “She did not do anything wrong so it is good she is not going to jail,” said Ms Simpen, Malay Mail reported.

Ms Parti, 46, had earlier been found guilty by a district judge of stealing S$34,000 (RM103,272) worth of items from her employer, former Changi Airport Group chairman Liew Mun Leong, and his family. She was sentenced to two years and two months’ jail.

But on appeal, her conviction and sentence for four counts of theft were overturned by the High Court on September 4, with Justice Chan Seng Onn ruling that the district court had failed to consider several points, and that Mr Liew and his son had an “improper motive” in accusing Ms Parti of theft back in 2016.

On Tuesday (September 8), Ms Parti’s case was formally concluded when she was given a discharge amounting to an acquittal on her last outstanding charge.

Reacting to the news, another Indonesian domestic helper, Ms Dewi Cahyani, 33, said she was not only happy for Ms Parti but also proud that a fellow Indonesian had stood up for herself. Ms Dewi added that she doubted that she would be able to do the same if she were in Ms Parti’s shoes.

Though they are from a different country, several Filipino domestic workers based in Singapore whom TODAY spoke to similarly applauded Ms Parti for her courage.

“I salute her,” said Ms Grecilda Capopez, 47, who has worked here for 21 years. “She is a very brave woman to fight for herself. I think some maids in her position will just give up.”

Apart from being an inspiration, Ms Parti’s protracted journey to clear her name also resonated with the foreign workers interviewed as they worry about the possibility of being accused of a crime they did not commit.

Earlier this week, Law and Home Affairs Minister K Shanmugam said Government agencies are looking into what “went wrong” in the chain of events that led to Ms Parti being found guilty of stealing.

Mr Shanmugam added: “We have to find out what happened, why it happened and then deal with it. And be accountable. That’s the best way to build trust in the system. To come out in public and say what steps we have taken once the reviews are done.”

Mr Bilal Khan, 28, who is a construction site supervisor, said it is very sad that a migrant worker has to go through such an ordeal.

“(Migrant workers) also have their own families. If something happens here, he or she suffers and the family suffers too,” he said.

Indeed, Ms Parti’s conviction and subsequent acquittal have also shone the spotlight on the challenges that migrant workers here could face in getting access to justice when they are in legal trouble.

TODAY’s checks with lawyers and non-governmental organisations (NGOs) revealed the same thorny issues: Migrant workers often face difficulties obtaining legal representation and struggle with language barriers when navigating the legal system. Compounding the situation, they have to cope with a loss of income — and the added anxiety — while waiting for their case to conclude, which could take years.

Sometimes, these workers also do not know who they can turn to for help, or what they are up against, as pointed out by Mr Anil Balchandani, Ms Parti’s defence lawyer, in a recent interview with migrant rights group Humanitarian Organisation for Migration Economics (Home). The NGO had provided support for Ms Parti during her trial, which stretched for four years.

When asked if they know who they could turn to for help should they be accused of a crime, most of the foreign workers whom TODAY interviewed said they will seek help from their respective foreign embassies, as that was what they had been told to do before they arrived to work in Singapore.

Otherwise, they said they would seek help from the local authorities — be it the police or the Ministry of Manpower — if they find themselves accused of a crime. Apart from these, most of them said they are not aware of any other channels that they can seek help from.

As of December last year, Singapore has about 261,800 foreign domestic workers and 293,300 foreign construction workers.

An issue that surfaced repeatedly in TODAY’s interviews with NGOs and lawyers is the difficulties migrant workers face in securing legal representation when they are accused of a crime.

As low-wage earners with limited means, these workers by and large can only afford to engage a lawyer on a pro bono basis.

Some workers can turn to their embassies to seek legal aid as such consular support is provided for them.

They can also turn to NGOs such as Home, TWC2 and the Foreign Domestic Worker Association for Social Support and Training (Fast), which can assist them in finding pro bono legal representation.

But the NGOs said that it is not always easy for them to find a lawyer who is willing to take on a case free of charge.

Usually, their first course of action is to help the migrant worker apply for the Law Society Pro Bono Services’ Criminal Legal Aid Scheme (CLAS), which provides assistance to individuals who are facing non-capital offences and are unable to afford a lawyer.

However, it is not guaranteed that a worker will be able to secure a lawyer through the scheme as CLAS only covers offences under certain statutes, and applicants have to undergo means-testing and merits-testing.

Means-testing involves a set of tests that government agencies use to see if someone applying for financial aid meets the criteria, such as their income and annual value of their homes.

Merits-testing assesses, among other things, whether the applicant has reasonable grounds for defending his or her case in court

Mr Alex Au, vice-president of migrant worker rights group TWC2, said in his experience, about half of the applications that the NGO helps workers to submit are rejected.

Similarly, Ms Seira Ong, a senior executive from Fast’s befrienders and volunteer management arm, said that quite a number of the domestic workers whom they helped to apply for the scheme had also been turned down.

She added that the paperwork needed also serves as a challenge for the workers, as some of them are unable to recall the annual value of their houses back in their homeland, for example.

In response to TODAY’s queries, the Law Society Pro Bono Services office said migrant workers who are unable to attain legal representation through CLAS may still seek help under its Ad Hoc Pro Bono Assistance Scheme (AHPBS).

However, AHPBS only accepts referrals and all applicants must still undergo means- and merits-testing.

About 15 to 20 per cent of the cases approved under CLAS and AHPBS involved migrant workers, said the Law Society Pro Bono Services office.

In 2018 and 2019, it received about 650 applications for CLAS from foreigners, of which 300 people were granted legal aid.

In 2019, the office said it received 98 referrals for AHPBS, of which 15 involved migrant workers. Assistance was granted to five workers.

For unsuccessful applicants, the NGOs would then try to secure legal representation for the workers through their own network of lawyers and law firms that they have worked with before.

Some of the foreign embassies would also step in to help the workers in finding a lawyer, said Ms Ong.

A spokesperson for the Indonesian Embassy said it provides legal assistance to Indonesian migrant workers. The type of help rendered — be it legal advice or finding a lawyer to represent the worker — is decided on a case-by-case basis, the spokesperson added.

A Philippine Embassy spokesperson said it works with the Law Society Pro Bono Services office and Singapore law firms to provide legal representation to Filipino nationals who face legal problems here.

For Filipino domestic workers who do not qualify for CLAS but are financially capable of hiring a private lawyer, the embassy may also assist in finding a private counsel to advise or represent them.

Still, Mr Au said there have been instances where even after exhausting all options, TWC2 is not able to find a lawyer to represent a worker, who would then have to face legal proceedings unrepresented.

“We treat everybody as equal which is how the justice system should work, but we fail to recognise the reality that in fact people are not economically equal,” Mr Au added.

Help is there, but ‘not enough lawyers’

There are adequate channels for migrant workers to seek legal assistance from, said criminal lawyer Mohamed Muzammil Mohamed from Muzammil & Company, but the problem lies with the fact that the pool of criminal lawyers in Singapore is small.

TODAY understands that there are 1,200 lawyers in Singapore who practice criminal law.

Lawyers interviewed said they also cannot take up every pro bono case that comes to them as they, too, face time constraints and have to consider the other cases that are on their plate.

“Just because it is a pro bono case does not mean we will pay less attention to the case and give more attention to the cases where we are paid,” said Mr Muzammil.

“Once you undertake a case, regardless of whether it’s pro bono or not, you have to give your heart and soul to it… You need someone who is prepared to go and do the work well.”

Ms Felicia Ong, a lawyer from Beacon Law Corporation, said a tremendous amount of work is involved in a criminal trial and appeal.

“Due to various constraints, not all lawyers, even if they are willing to take on a matter pro bono, would take on a trial or a case that is likely to take a couple of years to conclude,” said Ms Felicia Ong, who has assisted migrant workers in both civil and criminal cases.

When it comes to deciding whether to take on a pro bono case, Mr Sunil Sudheesan, who is the president of the Association of Criminal Lawyers of Singapore, said one major consideration for lawyers is whether the case will go to trial.

“‘Claim-trial’ cases inevitably involve a significant time commitment. Not everyone puts in the work that Anil (Ms Parti’s lawyer) did, pro bono or otherwise,” he said.

“So if a CLAS volunteer can afford the time, trial cases can be taken up. If not, the volunteer can help out in ‘plead-guilty’ cases where the time commitment is frequently less taxing.”

Ms Felicia Ong said her main considerations are whether she has experience in the area of work relating to the case and if she has the capacity to take it on.

“In my view, the same care and dedication given to the case of a paying client should be given to a pro bono one, so I would only take on a case which I am confident I can fully commit to,” she added.

While his firm takes on every case that an NGO refers to it, lawyer Melvin Chan from TSMP Law Corporation said the firm is particularly motivated to take on cases that will advance the law and have a multiplier effect.

“That way we not only help that one worker, but all the others that come after him or her,” said Mr Chan, who assists migrant workers with civil cases.

He cited a landmark case from 2018 involving Bangladeshi worker Hasan Shofiqul. Mr Hasan’s employer had inflated his job title in order to avoid paying him the overtime rates which he was entitled to.

The High Court had held that Mr Hasan, who was deployed as a site supervisor, is not an “executive” as defined under the Employment Act, and was therefore entitled to the pay rates for the rest days which he worked.

“The case brought to light the practice of mislabelling employees or giving employees titles that may not reflect the true nature of their job scope in order to circumvent employment laws and regulations,” said Mr Chan.

The case also prompted the amendments to the Employment Act in 2019, added Mr Chan, which extended the core protections in the Act to all employees regardless of their pay and title — be it managerial or executive positions.

When language becomes a barrier

Another challenge raised by NGOs and lawyers is the language barrier that migrant workers face when navigating a legal system that operates in English — a language many of these workers are not familiar with, or do not even understand.

Migrant workers would face the language problem even before their case reaches the court, such as when they are called to give a statement to the authorities.

While the police may have an interpreter present to assist the investigating officer with taking a statement from the worker, the interpreter may not always speak the same language or dialect as the worker. This could result in discrepancies in the statements.

For example, the NGOs and lawyers both raised cases where an Indonesian worker’s statement is taken in Malay, rather than Bahasa Indonesia.

While the similarity between the two languages means the officer and the worker can largely understand each other, some words have different meanings in the respective languages. As a consequence, the worker’s statements may be misrepresented.

The same goes for other languages such as Tamil, Hindi or Bengali.

TWC2’s Mr Au said very often, the Bengali translators in Singapore tend to speak Indian Bengali rather than Bangladeshi Bengali, which is slightly different.

Then, there are workers who speak languages where it is difficult to find an interpreter for.

Ms Seira Ong from Fast raised an example of a Sri Lankan worker who speaks Sinhalese and a limited amount of English.

When the investigating officer read her charges out to the worker in English, she “sort of knew but sort of did not know” what she was charged for. “She roughly gets the idea that she did something wrong, but she does not understand what each charge states because there are so many charges against her,” said Ms Seira Ong.

She added that it is important that migrant workers understand these minor details since a wrong interpretation or understanding of their charges and case proceedings will affect their course of action.

TSMP Law Corporation’s Mr Chan said the language barrier may also mean that the workers do not fully understand what they are being asked during an investigation. They may end up giving a confession even when they do not actually want to.

Agreeing, Mr Muzammil said it is vital that statements are taken accurately as they will invariably be used as evidence during a trial.

If the worker’s statements are poorly interpreted at this stage, the burden is then on the lawyer to prove during the trial what the worker had actually meant in his or her statement — and that is extremely challenging to do, he said.

These translation issues also persist in the courts, said Mr Muzammil, when the interpreters provided may not be skilled enough in either the worker’s native language or English to provide an accurate interpretation.

At times, this can come in the form of an interpreter either summarising or condensing what the worker says, rather than interpreting what he or she says word for word, he added.

It is therefore vital that the courts have certified language interpreters who are fluent in both the migrant worker’s native language and English, said Mr Muzammil, who stressed that a wrong interpretation could have an impact on the court’s decision.

In response to TODAY’s queries, the police said it will engage the services of an interpreter if the interviewee is unable to understand the language used by the interviewing officer or vice versa.

They added that interpretation services are available in the four official languages and other foreign languages including Bengali, Burmese, Bahasa Indonesia, Thai, Vietnamese and Tagalog.

Both the High Court and the State Courts said on their websites that they provide interpretation services to witnesses who do not understand or speak English upon request.

A digital handbook available on the High Court’s website states that individuals who do not speak English or the languages listed will have to engage a private interpreter. Fees may apply for civil cases while interpretation services are free for criminal cases.

In response to TODAY’s queries, a spokesperson for the State Courts said that it has a database of freelance foreign language interpreters to provide interpretation services to a witness or an accused person if required.

These are separate from the pool of in-house interpreters who provide interpretation services in the listed vernacular languages and common dialects.

It added that all court interpreters are “held to a high standard of proficiency”. Newly appointed interpreters are required to pass the Certification Examination for Professional Interpreters, which is conducted by the Singapore University of Social Sciences.

The foreign language interpreters engaged by the State Courts are also required to provide proof of their language certification and qualification before they can be appointed.

Grappling with loss of income

In a statement released after the High Court’s ruling on Ms Parti’s case, advocacy group Home said that migrant workers are often left waiting in Singapore while investigations are ongoing without any indication of how long the process might take.

Similarly, criminal proceedings also often take a long time to conclude, said Beacon Law Corporation’s Ms Felicia Ong.

During this period, the workers are not allowed to work. Without a source of income, they have to rely on NGOs to provide shelter, food and financial assistance.

In response to TODAY’s queries, a Home spokesperson said it assesses carefully the financial needs of all the workers who approach the group for help.

The advocacy group added that its fundraising efforts are driven by these financial needs which they aim to meet.

Home had earlier set up a fundraiser for Ms Parti to raise funds for her to set up a food business in Indonesia. In less than a day, it met its target by raising S$28,000.

Mr Shamsul Kamar, executive director of the Centre for Domestic Employees, said it supports these workers by providing them with shelter, food and by looking after their emotional well-being.

The centre also conducts regular activities and programmes such as basic literacy, tailoring and culinary courses so that the foreign domestic workers under their care remain engaged as they wait for their cases to conclude.

Home said that Ms Parti had spent almost four years at its shelter while waiting for the conclusion of her case. She was not able to work or return home to see her family.

Given the circumstances, some foreign workers may choose to plead guilty even if they believe that they are innocent.

This is because the time that it would take for them to serve their sentence may be shorter than the time it would take for them to dispute the charges through the criminal justice process, said Ms Felicia Ong.

“Often their homesickness and the pressing need to provide for their families back home far outweigh their desire to seek justice for themselves,” added the lawyer.

Echoing this, Ms Seira Ong from Fast said the loss of income is uppermost in the minds of many domestic workers when they are embroiled in criminal investigations.

She added that in her experience, the domestic workers often come from big families where they are the sole breadwinners and hence, there is immense stress — emotionally and financially — to keep providing for their families.

“It’s quite unfortunate but we do see their point that they cannot afford to just stay in Singapore for God knows how long just to fight for their rights,” she said.

‘Overwhelming’ legal process

Ms Felicia Ong said even when the workers are able to adequately overcome the language barriers, they may still struggle to grasp how the various proceedings fit into the whole legal process.

Many of them are easily overwhelmed by feelings of anxiety, confusion and helplessness when navigating the legal system.

A domestic worker whom the lawyer assisted a year ago cried at almost every meeting they had as the criminal justice process felt very foreign and daunting to her.

“Much time was spent reassuring her as well as explaining and repeating legal concepts and aspects of the criminal justice process to her,” Ms Felicia Ong said.

That is why she said pro bono lawyers like herself rely heavily on NGOs for the emotional, social and financial assistance that a worker may require during the process.

Emphasising the importance of the NGOs, Mr Balchandani said in his interview with Home that the “real work” is done by the people from these organisations.

“That’s the real jawbreaker, the back-breaking activity, meeting with (the workers) every week, every month, giving them that hope that something good can happen,” said Mr Balchandani, who himself was commended by Justice Chan for putting in “a lot of effort” and showing “a lot of dedication in his work”.

Chiming in, Mr Sudheesan, too, acknowledged Mr Balchandani’s hard work, but noted that there are many other unsung heroes whose efforts have gone unnoticed.

“We must not forget that there are many others who toil away who do not get the outcomes their efforts deserve,” he said.

“So while we rightly celebrate Anil’s efforts, let’s not forget the numerous volunteers who continue fighting for the accused persons in order to provide access to justice.”

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