The full story of our recommendations for the Prevention of Human Trafficking bill (before it passes into law!)

The full text of the critique of the draft Prevention of Human Trafficking bill delivered at a press conference on 21 October 2014:

Prevention of Human Trafficking Bill

StopTraffickingSG Campaign recommendations

 About the campaign: The StopTraffickingSg campaign is a joint initiative of AWARE, HOME, MARUAH, Project X, the Singapore Committee for UN Women, and TWC2. The campaign advocates for the inclusion of victims’ rights in the proposed bill for prevention of trafficking to be debated in Parliament in November 2014.

 Executive Summary

StopTraffickingSG would like to applaud MP Christopher de Souza’s initiative in tabling a Bill against Human Trafficking. While the Bill covers many aspects, it is not comprehensive. In particular, the protection and assistance offered to victims by this Bill are not adequate. StopTraffickingSG believes that, to provide a strong basis for countering trafficking in Singapore, it is important to adopt a comprehensive Act.

Several of the organisations in the StopTraffickingSG campaign offer direct services to trafficked persons. It is this practical experience which informs these recommendations.

The table of recommendations lists the Clauses in the Bill, highlighting the inadequate provisions for the protection of victims of trafficking, prosecution of traffickers, and partnership with different organisations and agencies.

Taken as a whole, these are our main concerns:

Victims: First of all, clearer processes are needed to properly identify victims so that non-trafficked migrant workers are not inadvertently caught up in state responses to victims, and that state agents fail to recognise trafficked victims.

Secondly, the Bill should explicitly prohibit the detention of trafficked victims, as some existing shelters for trafficked victims are known to restrict victims’ freedom of movement.

Thirdly, the Bill should expand general protection granted to trafficked victims and witnesses, in particular strengthening protection for witnesses who may face intimidation and retaliation in Singapore and their home countries, expand court protections beyond those granted to sexually exploited victims, address particular protections that may be required by child victims, and strengthen mechanisms for the provision of information to victims about their cases.

Fourthly, victims require assistance as well as protection. Necessary forms of assistance include accommodation, medical care, confidential counselling, work opportunities, information, and translation and interpretation. Such services should be extended to trafficked victims’ dependants where appropriate. StopTraffickingSG would additionally like to query the role of the Director of Social Welfare in providing these services (where provided for in the Bill), given that her legal mandate currently extends only to persons under the age of 16.

Lastly, further clarifications are needed as to victims’ immigration status while their cases are being processed. Currently, trafficking victims are granted a Special Pass. However, there is a lot of discretion and uncertainty as to in which cases such passes are extended. Moreover, there is little provision for victims’ relocation and repatriation. Finally, it is suggested that victims be allowed to experience a period of recovery and reflection before having to decide if they do want to embark on the lengthy and strenuous process of pursuing their case through the criminal justice system.

Policing: StopTraffickingSG is concerned about the huge extension of discretionary powers to police and non-police enforcement officers. According to this Bill, police and non-police enforcement officers are able to arrest and forcibly gain entry to premises without warrant, and are to be armed with batons and accoutrements “as are necessary”. This may result in the secondary traumatisation of vulnerable victims of trafficking. StopTraffickingSG believes that Part 3 of the proposed Bill should be deleted altogether as the current provisions under the Criminal Procedures Code would suffice.

Definitions: Several key concepts in this Bill are not defined. For example, there is no definition of forced labour or deception in Part 1 of the Bill, although they are central to a thorough understanding of trafficking in persons.

Recommendations on the Prevention of Human Trafficking Bill

 Victim Protection and Assistance, as set out in Part 4 of the Bill

1.1. Identifying victims

The Bill does not provide a clause specifying how victims should be identified. It is suggested that

• The Inter-Agency Task Force on Trafficking in Persons shall establish national guidelines/procedures for identification of victims of trafficking in collaboration with relevant state and non-state victim assistance organisations.
• The Task Force shall develop and disseminate to professionals who are likely to encounter victims of trafficking information and materials concerning trafficking in persons, including, but not limited to, a procedural manual on the identification and referral of victims of trafficking in persons. Manuals should include hotlines run by relevant state and non-state victim assistance organisations, in order to acknowledge that victims do not often approach the authorities directly to report their cases for fear of reprisals and of being prosecuted as an undocumented migrant or for working illegally while they were being trafficked.
• With a view to the proper identification of victims of trafficking in persons, the [competent authorities] shall collaborate with relevant state and non-state victim assistance organizations.

1.2. Prohibition of detention of trafficked victims

The Bill does not currently specify the prohibition of detention of trafficked victims. It is suggested that the Bill include this clause: “Victims of trafficking in persons shall not be held in a detention centre, jail or prison at any time prior to, during or after all civil, criminal or other legal or administrative proceedings.”

Witness protection: the Bill does not provide that trafficking victims and witnesses be protected. It is suggested that the Bill include this clause:

• The [competent authority] shall take all appropriate measures to ensure that a victim or witness of trafficking in persons, and his or her family, is provided adequate protection if his or her safety is at risk, including measures to protect him or her from intimidation and retaliation by traffickers and their associates.
• Victims and witnesses of trafficking in persons shall have access to any existing witness protection measures or programmes.

Additionally, that special provisions be created for the protection of child victims and witnesses: “In addition to any other guarantees provided for in this Act:

• Child victims, especially infants, shall be given special care and attention;
• When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be treated as such, pending verification of his or her age;
• Assistance to child victims shall be provided by specially trained professionals and in accordance with their special needs, especially with regard to accommodation, education and care;
• If the victim is an unaccompanied minor the [competent authority] shall:
  1. Appoint a legal guardian to represent the interests of the child;
  2. Take all necessary steps to establish his or her identity and nationality;
  3. Make every effort to locate his or her family when this is in the best interest of the child
• Information may be provided to child victims through their legal guardian or, in case the legal guardian is the alleged offender, a support person;
• Child victims shall be provided with information in a language that they use and understand and in a manner that is understandable to them;
• In the case of child victims or witnesses, interviews, examinations and other forms of investigation shall be conducted by specially trained professionals in a suitable environment and in a language that the child uses and understands and in the presence of his or her parents, legal guardian or a support person;
• In the case of child victims and witnesses, court proceedings shall always be conducted in camera away from the presence of media and public. Child victims and witnesses shall always give evidence in court out of sight of the accused.”

1.3. General protection for trafficking victims

1.3.1. Identity protection

Clause 18 deals with the protection of the identity of sexually exploited trafficked victims, including hearings in camera and the prohibition of having their names, addresses and photographs published. Such protection should be extended to other trafficked victims so that they do not become blacklisted from seeking legitimate work in the destination country, and further to protect them from any social stigma they may face as a result of being trafficked. It is suggested that the clause replace all reference to “sexually exploited victims of trafficking” with the more general “trafficked victims”.

1.3.2. Provision of information to victims

Victims should have access to information on the court and administrative proceedings which relating to their cases. It is suggested that this clause be included:

• Victims shall be provided information on the nature of protection, assistance and support to which they are entitled and the possibilities of assistance and support by non-governmental organisations and other victim agencies, as well as information on any legal proceedings related to them.
• Information shall be provided in a language that the victim understands. If the victim cannot read, he or she shall be briefed by the competent authority.

1.4. Assistance to trafficking victims

1.4.1. Basic services

The StopTraffickingSG petition states: “Victims have the right to accommodation, food, counselling services, legal aid, medical treatment, compensation and social support while their case is ongoing.”

The forms of assistance provided under Clause 19 are inadequate. In some cases, the provisions raise more questions than they answer: the clause stipulating the provision of temporary shelter, for instance, is not specific. How long will such shelter be provided for? Will it be safe? Will the counselling provided be undertaken on a confidential basis?

The Bill makes no mention of legal aid, medical treatment, compensation and social support. There is no mention of whether the trafficked victim placed in a temporary shelter would have freedom of movement.  The Bill also makes no mention of two other rights stated in our petition:

• Victims are not prosecuted for being an undocumented immigrant or for working ‘illegally’ or for any illegal immigration infractions inadvertently committed while being trafficked; and
• Victims have the right to work and a decent income while their case is ongoing

This implies that trafficked victims will continue to be prosecuted for inadvertent infractions of immigration rules and that these victims will continue to have no right to work during the time their case is ongoing, which can take up to 2-3 years.

It is suggested that Clause 19 be edited to reflect these concerns:

• Competent authorities and victim service providers shall provide the basic benefits and services described below to victims of trafficking in persons in Singapore, without regard to the immigration status of such victims or the ability or willingness of the victim to participate in the investigation or prosecution of his or her alleged trafficker.
• Assistance shall include:

1. Safe and appropriate accommodation;
2. Health care and necessary medical treatment, including, where appropriate, free optional anonymous testing for HIV and other sexually transmitted diseases;
3. Counselling and psychological assistance, on a confidential basis and with full respect for the privacy of the person concerned, in a language that he or she understands;
4. Decent work opportunities;
5. Information regarding [free or low-cost] legal assistance to represent his or her interests in any criminal investigation, including the obtaining of compensation, [to pursue civil actions against his or her traffickers] and [where applicable, to assist with applications for regular immigration status];
6. Translation and interpretation services, where applicable.

• In appropriate cases and to the extent possible, assistance shall be provided to the accompanying dependents of the victim.
• Victims of trafficking in persons shall not be held in any detention facility as a result of their status as victims or their immigration status
• All assistance services shall be provided on a consensual and informed basis and while taking due account of the special needs of children and other persons in a vulnerable position.

1.4.2. Role of Director of Social Welfare

The role of Director of Social Welfare, referred to in Clause 19(1) in the provision of these basic services discussed above, is inappropriate and unclear. It is not clear what interaction there is between the Children and Young Persons Act and the Prevention of Human Trafficking Bill – to be enacted as an Act. The responsibilities the Director of Social Welfare under the Children and Young Persons Act, section 3 (1) do not cover trafficked victims.

It might be suggested that by making the Director of Social Welfare responsible for trafficked victims’ shelter and counselling, his or her responsibilities under the Children and Young Persons Act, 3 (1) should thereby be amended. However, this is not stated in the Prevention of Human Trafficking Bill. Silence on this matter implies an assumption that the Director’s current responsibilities sufficiently cover the needs of trafficked victims.

If there is any such assumption, it is not well founded. For example, it is stated in the Children and Young Persons Act, 3 (1):

(4)  The Director may appoint any suitably qualified person as an approved welfare officer to carry out any investigation, assessment, supervision, consultation or evaluation in relation to any child or young person or the parent, guardian or family members thereof for the purpose of determining the welfare and state of development of such child or young person or for any other purpose under this Act.

This implies that trafficked victims are children (below the age of 14) and young persons (14 years of age or above and below the age of 16 years).  This is not so in fact.

If the Director of Social Welfare is empowered to act in the interests of only children and young persons, he or she will have no legal authority to do so on behalf of trafficked victims above the age of 16. It is unclear what types of temporary shelters the Director of Social Welfare would be able to provide for trafficked victims above the age of 16.

1.4.3. Other entitlements

There is no provision for other entitlements that victims should have: participation in the criminal justice process, the protection of victims’ personal data and privacy (which the UN Office on Drugs and Crime argues is particularly important in trafficking cases, “as the misuse of information may directly endanger the life and safety of the victim and his or her relatives or lead to stigmatisation or social exclusion.”), the right to initiate civil action, compensation from convicted traffickers, or state-funded compensation.

1.5. Immigration

1.5.1. Immigration status

There are no clauses on immigration. How are victims of trafficking to be classified for the purposes of residence, during the period of their stay in Singapore? As the UNODC states, “Without the presence of the victim it will be impossible or very difficult to prosecute the suspects successfully. Moreover, the victim should be enabled to initiate a civil procedure for damages.”

It is suggested that Articles 31-34 of UNODC’s Model Law against Trafficking in Persons be adapted for inclusion in the Trafficking Bill. These include provisions relating to the issuance of temporary or permanent residence permits, return of victims of trafficking in persons to Singapore, repatriation of victims of trafficking in persons to another state, and the verification of legitimacy and validity of documents upon request. The right to meaningful and legal employment should be guaranteed for victims who are issued special passes and remain in Singapore as witnesses for the prosecution. This access to employment should not be limited to the current Temporary Job Scheme administered by the Ministry of Manpower.

1.5.2. Recovery and reflection

A period which would allow victims the time to “recover and reflect” prior to deciding whether or not to press charges against their trafficker is important for the protection of the human rights of trafficked persons. According to the UNODC, “If a victim is put under pressure to press charges immediately, the risk increases that he or she will withdraw the statement at a later stage. A recovery and reflection withdraw the statement at a later stage.” Therefore, designating a recovery and reflection period is in the interest of both victim and authorities.

It is suggested that the Bill include a clause providing for such a period in this manner:

• Any [natural] person who believes he or she is a victim of trafficking in persons shall have the right to submit a written request to the [competent immigration authority] to be granted a recovery and reflection period of not less than 90 days in order to make an informed decision on whether to cooperate with the competent authorities.
• The [competent immigration authority] shall grant a recovery and reflection period where it has established that there are reasonable grounds to believe a person is a victim of trafficking in persons.
• The decision of the competent immigration authority regarding the granting of a recovery and reflection period shall be appealable by the competent authority or any natural person who believes he or she has been a victim of trafficking in persons.
• Until the competent immigration authority decides whether to grant a recovery and reflection period, a victim of trafficking in persons shall not be deported from Singapore (and shall be entitled to the rights, benefits, services and protection measures set forth in chapter VII). Where deportation proceedings have been initiated, they shall be stayed, or where an order of deportation has been made, it shall be suspended.

1.5.3. Relocation

There is currently no clause providing for the relocation of trafficked victims to their country of origin. It is suggested that the Bill include this clause:

“When a victim of trafficking who is not a national of Singapore requests to return to his or her country of origin or the country in which he or she had the right of permanent residence at the time he or she was trafficked, the [competent authorities] shall facilitate such return, including arranging for the necessary travel documents, without undue delay and with due regard for his or her rights and safety [privacy, dignity and health].

When, upon the decision of [competent authority] a victim of trafficking in persons who is not a national of Singapore, is returned [deported] to the State of which he or she is a national or in which he or she had the right of permanent residence at the time he or she was trafficked, the [competent authority] shall ensure that such return shall be with due regard for his or her safety and for the status of any legal proceedings related to the fact that the person is a victim of trafficking.

Any decision to return a victim of trafficking in persons to his or her country shall be considered in the light of the principle of non-refoulement and of the prohibition of inhuman or degrading treatment.

When a victim of trafficking raises a substantial allegation that he or she or his or her family may face danger to life, health or personal liberty if he or she is returned to his or her country of origin, the competent authority [name authority] shall conduct a risk and security assessment before returning the victim.”

2. Definitions, as set out in Part 1 of the Bill

Several key concepts in this Bill are not defined. For example, there is no definition of forced labour or deception in Part 1 of the Bill, although they are central to a thorough understanding of trafficking in persons. In this section, StopTraffickingSG sets out those terms which are either not defined or would benefit from further clarification, and our recommendations. Further, other provisions found in Part 2 of the Bill, such as those relating to caning, are discussed.

2.1. Abuse of vulnerability

The definition of abuse of vulnerability is currently too limited. The Bill defines “abuse of the position of vulnerability” as taking advantage of the vulnerable position the individual is placed in as a result of

• Individual entering or remaining in Singapore illegally
• Individual’s pregnancy
• Individual’s physical or mental illness, infirmity or disability
• Impairment (permanently or temporarily) of the individual’s decision making ability by reason of the individual’s physical or mental illness, infirmity or disability

Instead, it is suggested that the Bill adopt the US State Department Model Law to Combat Trafficking in Persons, 2003:

“Abuse of a position of vulnerability means such abuse that the person believes he or she has no reasonable alternative but to submit to the labour or services demanded of the person, and includes but is not limited to taking advantage of the vulnerabilities resulting from

• The person having entered the country illegally or without proper documentation
• Pregnancy
• Any physical or mental disease or disability of the person, including addiction to the use of any substance, or
• Reduced capacity to form judgments by virtue of being a child.”

2.2. Coercion

The definition of coercion does not include a psychological element. It is recommended that psychological pressure be included within the definition of coercion.

2.3. Deception

There is no definition of deception in the bill. The recommended definition is: “Deception” shall mean any deception by words or by conduct as to

1. The nature of work or services to be provided;
2. The conditions of work;
3. The extent to which the person will be free to leave his or her place of residence; or
4. Any other circumstances involving exploitation of the person.

2.4. Reasonable value

Further clarification as to the meaning of “reasonable value”, in the definition of “debt bondage”, is required. This is suggested: “Debt bondage” means a status or condition arising from

1. The pledging by a debtor of the personal services of the debtor or an individual under the debtor’s control, as security for a debt; and
2. The reasonable value, assessed according to a living wage, of such services not being applied towards the discharge of the debt, or the length or nature of such services not being limited or defined, respectively
3. The imposition of agency fees may contribute to a finding of debt bondage if the reasonable value of such services are not applied towards the discharge of the debt, or the length or nature of such services are not limited or defined.

2.5 Exploitation

The definition of exploitation requires further clarification. Slavery, a concept which falls under the definition of exploitation in the Bill, itself requires further definition, and debt bondage should be used to define slavery. The recommended definition is: “exploitation” means sexual exploitation, forced labour, slavery or any practice similar to slavery, servitude or the removal of an organ;

…

“slavery” shall mean the status or condition of a person over whom control is exercised to the extent that the person is treated like property. Aforementioned control shall include but not be limited to

1. Unlawful detention;
2. Debt bondage”

2.6. Forced labour

There is currently no definition of forced labour. The recommendation definition is: “Forced labour” shall refer to all work or service that is exacted from any person under the threat of any penalty and for which the person concerned has not offered him- or herself voluntarily. Threats of penalty are defined, but not limited to the following:

1. Physical violence against worker, family or close associates
2. Sexual violence
3. Imprisonment or other forms of physical confinement
4. Financial penalties
5. Denunciation to authorities
6. Dismissal from work or exclusion from future employment
7. Exclusion from community and social life
8. Removal of rights or privileges
9. Deprivation of food, shelter, or other necessities
10. Shift to even worse working conditions

Offences relating to Trafficking in Persons, as set out in Part 2 of the Bill

3.1. Judicial caning

StopTraffickingSG is against the judicial caning that clauses 4(1)(a),(b) and 6(2)(a),(b) offer as punishment to the offences of trafficking, and receiving payments in connection with the exploitation of trafficked victims.

It is the stance of several member organisations of the StopTraffickingSG campaign, that practicing caning is tantamount to torture and thus a violation of human rights. Moreover, there is no evidence that caning will result in increased deterrence. In general, research casts doubt on any link between the severity of punishment and its deterrent effects.

Therefore, it is suggested that these clauses be removed.

2.8. Aggravating factors

Clause 4(2) lists several aggravating factors which if present in a trafficking case should increase the sentence given. More aggravating factors need to be listed, and some of those factors that are already listed need to be clarified.

Factors which need to be listed: Where the offence involves more than one victim; where the crime was committed as part of an activity of an organised criminal group; where a child has been adopted for the purpose of trafficking; where the offender has been previously convicted for the same or similar offences; where the offender is in a position of authority concerning the child victim.

Factors which should be clarified: HIV/AIDS should be explicitly named in the clause which would consider exposing the trafficked victim to a life threatening illness an aggravating factor. Where “the offence involved actual or threatened use of a weapon, drug”, the words “or medication” should be added.

Overall, the requirement that “offender was aware of the trafficked victim’s particular vulnerability” is problematic and should be removed, as traffickers may easily claim that they were not aware of the trafficked victim’s vulnerability.

3.2. Profiteering

Clause 6 of the Bill, which relates to receiving payment in connection with the exploitation of trafficking victims, by itself excludes traffickers who derive underhanded monetary gain from the actual or intended exploitation of a trafficked victim in various other ways, including underpayment, delayed payment, or even non-payment of salaries, no extra pay for overtime work, the unjustifiable and exorbitant deductions of salaries, payment of Government levies which are supposed to be paid by the employer, and the payment for safety equipment which is meant to be provided by the employer.

It is suggested that a new clause be inserted in order to criminalise those persons who profiteer without necessarily receiving payment in connection with the exploitation of trafficked victims.

3.3. Receiving payment in Singapore

Clause 6(1), which refers to receiving “… any payment in connection with the actual or intended exploitation in Singapore of a trafficked victim” is problematic, as trafficking is a cross-border issue, which Clause 3(4) recognises: “… it does not matter whether the act of trafficking in persons described [in 3(1) or (2)] is done partly in and partly outside Singapore”.

It is thus contradictory for Clause 6(1) to consider only “the actual or intended exploitation in Singapore of a trafficked victim.” It is recommended that the words “in Singapore” be removed from the clause.

3.4. Lack of clauses

Several clauses which would define important offenses relating to trafficking are missing.

3.4.1. Persons who employ forced labour and services

The following clause is suggested:

• Any person who makes use of the services or labour of a person or profits in any form from the services or labour of a person with the prior knowledge that such labour or services are performed or rendered under one or more of the conditions described in Section 3, shall be guilty of an offence.
• Any person who is guilty of an offence under subsection (1), upon conviction –

[sentencing provisions]

3.4.2. Unlawful handling of travel or identity documents

The following clause is suggested:

• Any person who without lawful authority makes, produces or alters any identity or travel document, whether actual or purported, in the course or furtherance of an offence under this Act, shall be guilty of an offence.
• Any person who obtains, procures, destroys, conceals, removes, confiscates, withholds, alters, replicates, possesses or facilitates the fraudulent use of another person’s travel or identity document, with the intent to commit or to facilitate the commission of an offence under this law, shall be guilty of an offence.
• [sentencing provisions]

3.4.3. Specifying non-liability of victims of trafficking

3.4.3. Specifying non-liability of victims of trafficking

The following clause is suggested:

• A victim of trafficking in persons shall not be held criminally or administratively liable for offences commited by them, to the extent that such involvement is a direct consequence of their situation as trafficked persons.
• A victim of trafficking in persons shall not be held criminally or administratively liable for immigration offences established under national law
• The provisions of this section shall be without prejudice to general defences available at law to the victim
• The provisions of this article shall not apply where the crime is of a particularly serious nature as defined under national law

Enforcement provisions, as set out in Part 3 of the Bill

4. Enforcement provisions, as set out in Part 3 of the Bill

StopTraffickingSG is concerned about the huge extension of discretionary powers to police and non-police enforcement officers. According to this Bill, police and non-police enforcement officers are able to arrest and forcibly gain entry to premises without warrant, and are to be armed with batons and accoutrements “as are necessary”. If these powers are exercised to their fullest extent, such raids and arrests may result in the secondary traumatisation of vulnerable victims of trafficking. StopTraffickingSG believes that Part 3 of the proposed Bill should be deleted altogether as the current provisions under the Criminal Procedures Code would suffice.

Firstly, the definition of enforcement officers (Clause 7(2)) is overly broad. It is not at all clear that enforcement officers, which include employment inspectors appointed under the Employment of Foreign Manpower Act, public officers appointed as inspectors under the Human Organ Transplant Act, and public officers “appointed by the Minister as enforcement officers for the purposes of this Act” are required to enforce the Trafficking Bill. In StopTraffickingSG’s opinion, police officers should be sufficient.

Secondly, it is somewhat understandable that employment inspectors should investigate premises for evidence of trafficking. However, according to this proposed Bill they would be given the powers to search premises without warrant, “break open any outer or inner door or window leading to the premises; forcibly enter the premises; remove by force any obstruction to such entry”, and arrest suspects without warrant. The latter two responsibilities should be solely within the remit of the police, and the powers to break into a premise should be governed by Article 30 of the Criminal Procedures Code.

Thirdly, the designation of public officers under Clause 7(2)(c) (“public officers appointed by the Minister as enforcement officers for the purposes of this Act”) is unacceptably vague. This is of concern especially given the high level of discretionary powers.

Fourthly, disproportionate powers are granted in Clause 15. It stipulates that enforcement officers are to be armed with “batons and accoutrements as may be necessary or the effective discharge of the enforcement officer’s duties.” In addition to being disproportionate, this is also an extremely vague provision.

There seems to be an undue emphasis on the rescue of trafficked victims. Instead, there should be an emphasis on safeguarding and upholding victims’ rights in order to empower them to report the crime against them. Furthermore, there is a need to acknowledge the fact that crucial to assisting victims to report their cases is to do outreach to potential victims and giving them information on hotlines and avenues for help.

A victim-centric law against trafficking in persons is above all critical in assuring trafficked victims that their rights are protected which will encourage them to report and testify against their traffickers, thus achieving the goal set out by the legislation to stem trafficking in Singapore. #stoptraffickingsg