Singapore’s Constitution does not explicitly mention a right to human dignity. But that does not mean that no such right is recognised in Singapore law. To the contrary, the Singapore courts have invoked the concept of a right to dignity in a series of cases involving offences against foreign domestic workers (workers who live in their employers’ homes and perform domestic work). In a previous post on this blog, I discussed one such case: the 2017 case of Lim Choon Hong and Chong Sui Foon, in which the High Court of Singapore emphatically stated that foreign domestic workers have a right to “basic human dignity”.

A recent case study demonstrates how not only the Judiciary, but also the Executive, has contributed to the development of the concept of a right to dignity in Singapore law in the context of foreign domestic workers.

Since 1958, employment agencies in Singapore must be licensed. In 1984, the relevant legislation (the Employment Agencies Act) was amended to state specifically that an employment agency’s licence can be revoked if the agency acts “in a manner likely to be detrimental to the interests of [its] clients”.  However, the legislation does not specify exactly what this means.

In the face of this legislative omission, the Ministry of Manpower has taken it upon itself to interpret the phrase “detrimental to the interests of [an employment agency’s] clients”. In 2014, the Ministry issued a statement interpreting this phrase as including “insensitive advertising”, such as “giv[ing] the impression that [foreign domestic workers] are being marketed as merchandise”. The Ministry’s justification for this view was that such advertising would fail to “accord [foreign domestic workers] basic respect and human dignity”.

Notably, the Ministry chose to give these views the force of law by stating them in the form of an ‘Alert’. Compliance with an ‘Alert’ is a compulsory condition of an employment agency’s licence. A breach of this condition is not only grounds for the suspension of an employment agency’s licence, but also a criminal offence.

The ‘Alert’ was the subject of a recent incident. In September 2018, the Ministry took notice of advertisements put up by an employment agency, SRC Recruitment LLP, on Carousell (an online marketplace which allows users to buy and sell items and services). These advertisements displayed the faces and personal information of Indonesian domestic workers, and described the workers using terms such as “fresh” and “sold”.

In response, the Ministry, citing the ‘Alert’, suspended SRC Recruitment’s licence and prosecuted SRC Recruitment and Erleena Mohd Ali, the employee who put up the advertisements. The case against SRC Recruitment is pending. Erleena has pleaded guilty and has been fined 20,000 Singapore dollars (£11,470) for various offences relating to the advertisements.

In her submissions to the court in Erleena’s case, the prosecutor from the Ministry invoked the concept of “human dignity” again, saying: “Every foreign worker who comes to Singapore for work expects to be treated decently, and accorded the sort of guarantees of human dignity that we would accord to any human being.” This quotation echoes language used in the judgment in Lim Choon Hong and Chong Sui Foon. This reference to Lim and Chong’s case situates Erleena’s case within the burgeoning line of case law on human dignity.

This case study is noteworthy for four reasons. First, it reflects the ongoing, sustained development of a concept of human dignity in Singaporean jurisprudence. Second, it demonstrates the Government’s role as an active participant in this development: in particular, the Government recognises that the idea of workers’ “interests” includes not only economic interests, but also the right to human dignity.  Third, it suggests that the concept of dignity is wide enough to include not only physical health and well-being, but also matters such as the protection of personal data and the manner in which human beings are portrayed in public fora. Fourth, it makes clear that not only employers, but also employment agencies, may be found to be guilty of violations of workers’ rights to dignity.

In Singapore, foreign domestic workers live in their employers’ homes, have little time off, and depend on their employers for food and lodging.  In Public Prosecutor v Lim Choon Hong and Chong Sui Foon, such a vulnerable worker was subjected to a “bizarre feeding regime where she was fed a fixed number of slices of bread and packets of instant noodles at two specified times of the day”. This treatment caused her weight to drop from 49 kg to just 29 kg.  Because these acts involved “systematic cruelty and the denial of her basic human dignity”, Chief Justice Sundaresh Menon increased the employers’ sentences to 10 months’ imprisonment each (from, respectively, 3 weeks’ imprisonment and a fine; and 3 months’ imprisonment) following the prosecution’s appeal.

Due to what the court called a “misstep in the prosecution”, the employers had been charged with a breach of a condition of a work pass (that they be “responsible for… the upkeep and maintenance of the foreign employee… including the provision of adequate food…”), rather than the offence of “voluntarily causing hurt” under the general criminal law. The latter carries a much heavier sentence, especially if the offence is committed against a domestic helper.

The court was constrained to pass a sentence based on the former, more lenient, charge.  Hearteningly, however, instead of treating the offence as a mere regulatory offence, the court recognised that this was, in substance, a case of denial of the victim’s dignity, which warranted a heavier sentence.  Nonetheless, in my opinion, the attack on the victim’s dignity would have been better recognised, and her dignity better re-asserted, had the employers been charged with voluntarily causing hurt – this would have been a fairer label of their acts.

First, a charge of voluntarily causing hurt would have better recognised the specific rights infringed. Such a charge would focus not only on the fact that a condition of employment had been broken, but also on the employers’ culpability in injuring the victim and exploiting the victim’s vulnerable situation in breach of her right to “due dignity and respect”.

This is because the definition of voluntarily causing hurt would have focused on the employers having knowingly inflicted “bodily pain, disease or infirmity”.  It would also have focused on the fact that the employers were the cause of the injuries, thus foreclosing arguments that the victim was to blame for not going out to obtain food herself (which she was unable to).

By contrast, the wording of the charge brought against the accused suggests that the harm done was merely economic in nature, namely, a failure to pay for the employee’s food.  This is technically true, but hardly an accurate description of the true state of affairs.

Second, if the employers had not pleaded guilty, the harm done to the victim would have received more detailed emphasis at trial if the charge had been one of voluntarily causing hurt.  This emphasis would allow the court to reach a better-informed decision on the appropriate amount of monetary compensation which it would “as a matter of course” have ordered the employers to pay to the victim if they had not voluntarily paid compensation.

In this case, no such order was made as the offenders had already paid compensation under a voluntary settlement agreement. However, unlike court-ordered compensation, the agreement precluded further civil claims for damages by the victim. Was it an affront to her dignity that the offenders paid “at least in part to avoid a harsher sentence” and to prevent further litigation against them?  To the contrary, perhaps it is the ultimate vindication of her right to dignity that she was free to decide on the form of recompense she considered most appropriate.

The High Court (the lower division of Singapore’s Supreme Court) heard and dismissed the application at first instance on the grounds that the public order proviso to freedom of religion was made out, and the differential treatment was justified by a reasonable nexus to the objective of public order. The applicants withdrew their appeal. The judgment may have important ramifications for freedom of religion in Singapore for the following reasons.

First, the Court implicitly accepted that the Constitution covers not just freedom of religious thought, but also particular religious actions (e.g. the procession itself, and the act of playing live music in particular). This stands in sharp contrast to a previous decision that a restriction on freedom of religion was not unconstitutional because it merely restricted the “manner” of religious practice rather than religious practice itself.

Second, the Court declined to inquire searchingly into the content of the religious beliefs (as in past Malaysian and Indian cases). Instead, the Court only asked whether the applicants “firmly believed that the playing of musical instruments is essential to the Thaipusam procession”. While the applicants produced a foreign religious expert’s report to try to show authoritatively that live music is crucial to Thaipusam, what the court took from the report was that some followers (including the expert) believed that it was. This approach, centring on the devotees’ subjective beliefs rather than an expert’s credentials or reasoning process, is unlike the approach of other jurisdictions that look to religious leaders’ authoritative statements of doctrine.

Third, the Court rejected possible approaches adopted in England and Wales that would have required that the religious practices in question be widespread, compulsory, or exceptionally important to the religion. Instead, the threshold was low: as the applicants’ beliefs were firmly held and not “totally foreign to the religion”, it did not matter that there were just four proven believers in the practice in question (the three applicants and the expert). Neither did the Court take a parochial approach: it explicitly accepted that “[r]eligious practices and rituals do vary from place to place and among different groups of believers in the same faith”, and accepted evidence from the foreign expert. Thus, the Court balanced the need to prevent the freedom of religion from becoming a charter for “ charlatan[s] pretending to profess a certain religion for ulterior purposes” with the need for sensitivity to diversity of beliefs and practices among religious groups and sub-groups, even small ones.

Fourth, the Court hinted at a turn away from the previously expressed view that proportionality is a European import and not part of Singapore’s law. Rather than merely asking whether public order concerns existed, the Court reasoned that public order had been taken into account in a “nuanced” and “calibrated” manner while giving “due regard” to the applicants’ rights.

The importance of the Court’s judgment is best appreciated in its wider context. In its balancing exercise, the Court noted that the police had always been in “dialogue with the Hindu community” and hence had gradually relaxed the restrictions over time, from banning music over time, to allowing singing and then electric speakers. Thus, even as it dismissed the application, the Court tacitly suggested that litigation is not the only means of resolving constitutional disputes. This is seen in the aftermath of the case: the applicants withdrew their appeal against the Court’s decision after the police, following more such dialogue, agreed to allow live music at the next Thaipusam procession.

The judgment in Vijaya Kumar is to be commended for recognising the subtleties inherent in the nature of religion and the freedom of religion. It would have been ideal if these had been made more explicit, and it remains to be seen what Singaporean courts will make of them in future.