Explainer: Discrimination in Singapore

Hello!

Stay up to date with New Naratif’s latest stories and upcoming events with our weekly newsletter. No spam, just good content.

* indicates required

Your Email Address *

This Explainer is part of New Naratif’s coverage of the Singapore General election 2020. For more, please visit our Singapore General Election 2020 portal.

Non-discrimination is core to Singapore’s ideals. Diversity is often cited as a key positive feature of our society. The country’s National Pledge aspires to “equality”, “regardless of race, language or religion”. Despite growing criticisms of the notion of “meritocracy”,^[1] the concept of equality of opportunity resonates deeply with Singaporeans. Many readily agree that everyone should have a fair shake at realising their goals, whatever their background or identity.

Yet both anecdotal and formal evidence show that people in Singapore face various forms of discrimination.^[2] When seeking to participate in society, they may be treated unfairly or placed at a disadvantage because of personal characteristics such as race, ethnicity, religion or belief, nationality, national or regional origin, sex/gender, SOGIE (sexual orientation, gender identity and/or gender expression), disability, physical and mental health, sexual history (e.g. sex work), marital history, reproductive history and class background. Even concepts that seem outmoded, like caste or dialect group, may still exert a prejudicial pull.

This is not surprising. Every society grapples with bias and discrimination, and Singapore is an ordinary society susceptible to ordinary ills, not a unicorn magically immune. To examine discrimination comprehensively, including in informal social relations, would fill the pages of several books. This article, more limited in scope, looks at several key gaps in Singapore’s legal and institutional responses to discrimination in formal decision-making, with a particular focus on administrative and economic life. It considers:

• Public education and understanding: do we recognise discrimination?
• Constitutional limits: what if the government discriminates?
• Labour: what if employers discriminate?
• Goods and services: what if providers of goods and services discriminate?

Overall, despite an overt embrace of non-discrimination, many institutions reflect a state of denial about the problem, and consequently cannot consistently and effectively address it.

Public education and understanding

People are not born with knowledge of how discrimination manifests, or how to prevent and address it. Education is a necessary precondition for the proper functioning of anti-discrimination mechanisms. If people cannot recognise discrimination, they cannot address it. Furthermore, what good is a complaints procedure if people don’t know what to bring to it, or if those investigating a case don’t know what they’re trying to address and why? Logically, therefore, the first question to ask is: what is the state of education on discrimination in Singapore? Are there systematic efforts to inform the public about biases, stereotypes, discriminatory language, and the harm that they do? The answers to these questions will have implications for how effectively the other anti-discrimination mechanisms, examined later in this article, operate in practice.

Notably, no governmental department is dedicated to non-discrimination, nor is there an independent national human rights institution (NHRI) to investigate, promote and protect rights to non-discrimination. Elsewhere, NHRIs include Hong Kong’s Equal Opportunities Commission, Tunisia’s Individual Freedom and Equality Commission, and Australia’s Human Rights Commission. When urged by other nations and treaty bodies to establish an NHRI, Singapore has claimed that other arrangements suffice.^[3] Yet no anti-discrimination voice in Singapore combines focus, prominence, authority, and resourcing as would an NHRI.^[4] This in itself leaves a gap in visibility and thus public understanding of discrimination.

Recognition by authorities of discrimination is piecemeal. To some extent, some official initiatives recognise discrimination based on race, religion, disability, pregnancy, and age,^[5] but these seem focused around advertising “campaigns”—media theatrics rather than an interrogation of daily practice. Only very recently has a gender wage gap been explicitly acknowledged.^[6] Some forms of discrimination elicit official silence or worse: Minister for Education Ong Ye Kung flatly denied SOGIE-based discrimination takes place in schools, housing, or work at all.^[7] While legislation has subsequently acknowledged the possibility of religiously-motivated anti-LGBT violence,^[8] this is very far from a general governmental recognition of the reality of everyday and structural discrimination. Such an insistence on unevidenced and implausible exceptionalism—by the Minister of Education, no less!—not only implies that no education is forthcoming, the insistence itself arguably amounts to miseducation.

See: How Discrimination Kills Gay Men in Singapore

Where formal efforts to educate exist, are they sufficiently honest and detailed? A Singapore government report on racial discrimination states that schools emphasise “the unity and diversity of a multi-racial society, and harmonious living”, as well as specific cultural and traditional practices.^[9] Does this include information on, for example, common racist stereotypes about laziness or criminality, or the impact of racial slurs? However conditioned people might be to abstract ideals of equality, without information about the concrete forms that discrimination can take they will have limited ability to utilise anti-discrimination mechanisms. Similarly, when reporting on education and gender equality,^[10] the government has emphasised gender-neutral school courses and a lack of stereotypes in curricula. Yet this differs from presenting information to enable people to identify and respond to specific gender stereotypes, unfair norms, or biases around them. In 2019, when directly asked in Parliament about education in schools on gender stereotypes, the Ministry of Education did not confirm that any such education was provided.^[11]

Education also includes bottom-up efforts—whether organised or informal, institutional or individual—and mass media. But censorship can inhibit such work by stifling open discussion, whether through police action (e.g. in cases where minorities have discussed racism),^[12] redaction of media,^[13] or institutional cultures that shy away from frank representations of conflict. Information about LGBT experiences seems excluded from educational settings in particular.^[14]

Non-disclosure obligations applied to harassment or discrimination cases can also create an artificial appearance of rarity. When employers receive complaints of workplace harassment, they may ask employees to sign agreements contractually prohibiting them from formally reporting the incident.^[15] Low official or public numbers therefore cannot be taken as proof of low prevalence, where the surrounding institutions and attitudes do not encourage or elicit open discussion. Consider the example of Sweden, which has one of the highest official levels of rape in the world. This may not mean that sexual violence is more prevalent in Sweden than elsewhere, but rather that the issue is more openly addressed, and therefore public data more closely matches private experience. For instance, Swedish law defines rape more broadly than some other jurisdictions, records every incident of rape separately (where other countries might record multiple rapes against the same victim/survivor by the same perpetrator as one incident), and has higher rates of reporting of rape due to greater awareness of sexual crimes, a high confidence in the criminal justice system, and an effort by the Government to educate the public and decrease the number of unreported rapes.^[16]

Where public education and the free exchange of information about discrimination is limited, the effectiveness of other anti-discrimination mechanisms is correspondingly hindered. Other sections of this article should be read with this overarching limitation in mind.

Constitutional limits on discrimination

What legal mechanisms can be used against a discriminatory law or discriminatory acts by a public body? Legal limits on the government ultimately stem from the Constitution. Two key mechanisms are: (i) the Presidential Council for Minority Rights (PCMR); and (ii) Article 12.

The function of the PCMR is to scrutinise prospective laws for racially discriminatory impact. If such an impact is found, this can lead to the law being obstructed. Thus, in theory, the PCMR can restrain a sitting government from pursuing discriminatory goals. But PCMR members do not need to be independent from the government or political parties. Currently, several Cabinet ministers are members of the PCMR. It is difficult to expect robust opposition to a sitting government from such a body. Revealingly, the PCMR has not issued an “adverse report” against legislation.

Article 12 contains general statements pertaining to equality before the law, as follows:

• Article 12(1): All persons are equal before the law and entitled to the equal protection of the law.
• Article 12(2): Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
• Article 12(3): This Article does not invalidate or prohibit: (a) any provision regulating personal law; or (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion.

If challenged in court, a law or governmental act could be found in contravention of these provisions and thus unlawful. However, lawsuits can be costly and intimidating affairs. In other countries, an NHRI would have the standing and resources to pursue such claims in the public interest, but Singapore does not have one. Nevertheless, though difficult to access, redress in theory exists.

However, the scope of this Article is limited. The only explicit language on unlawful grounds for discrimination refers to “religion, race, descent or place of birth”. Challenges to the Penal Code’s anti-sodomy provision (section 377A) prompted the courts to clarify that these are “the only grounds of discrimination that are proscribed under the Singapore Constitution” [emphasis in original].^[17] The text of the Article also suggests that even discrimination on these grounds is only partly prohibited. It only prevents discrimination: (a) against citizens; and (b) of certain forms (law; certain appointments; administration of laws to do with property or trade/employment). If, for example, an executive policy denied healthcare subsidies to the foreign spouse of a citizen on racially discriminatory grounds, this could fall out of the scope of Article 12(2) on both those counts.

Discrimination on other grounds is probably constitutionally lawful. The court has made it clear that Article 12(1) scrutiny is very limited, serving only a “minimal threshold function of requiring logic and coherence”. The s377A judgment specifically preserves the possibility that a hypothetical ban on women driving would pass Article 12(1) scrutiny, even though substantively this is an obvious case of gender discrimination. Although the government at one point attempted to argue before a committee of United Nations gender equality experts that Article 12(1) allows women to challenge gender-discriminatory laws,^[18] in November 2019 the Attorney-General’s Chambers explicitly submitted to domestic courts that the Constitution does not prohibit discrimination on the grounds of sex or sexual orientation.^[19] It is logical to extrapolate that all other kinds of discrimination unspecified in Article 12(2) (e.g. on grounds of health, disability or marital status) are likewise constitutionally permissible.

Discrimination in the labour market

Employers may discriminate in interactions with workers, e.g. in hiring, assignment of responsibilities, pay and conditions, performance evaluation, and dismissal. Unlike some other jurisdictions, Singapore does not place any general legal obligation on employers to act in a non-discriminatory fashion. The government depicts such obligations as ineffective sources of unwanted labour market “rigidities”,^[20] though curiously, the Ministry of Manpower (MOM) also insists that there are effective legal and punitive measures against discriminatory dismissal.

See: Myths and Facts: Migrant Labour in Singapore

Enforceable legal protection against employment discrimination comes in the form of (once again) piecemeal coverage, involving discriminatory dismissal.

• Pregnancy: This attracts the clearest protection. Employers who retrench qualifying pregnant employees or dismiss them without sufficient cause must pay maternity leave benefits.
• Age, race, gender, religion, marital status and family responsibility or disability: From April 2019, the Employment Claims Tribunal has heard wrongful dismissal claims under the Employment Act and can order compensation as well as reinstatement. The content of “wrongful dismissal” is set out in Tripartite Guidelines issued by MOM. These state that “Dismissing an employee because of discrimination e.g. against the employee’s age, race, gender, religion, marital status and family responsibilities, or disability is wrongful.”^[21]

What about discriminatory dismissal on other grounds? Language in the Guidelines (“e.g.”) seems to imply that courts can interpret “discrimination” to include other grounds. Indeed the MOM has told media that there is protection against discrimination on grounds of HIV status,^[22] though the Guidelines are silent on health. But the MOM website^[23] contains less expansive language, with no indication that discriminatory dismissal goes beyond “age, race, gender, religion, marital status and family responsibilities or disability”. There is no mention of SOGIE in Tripartite Alliance for Fair Employment Practices (TAFEP)^[24] documents on workplace discrimination.^[25] A blithely confident declaration that LGBT individuals face no discrimination at work,^[26] offered by Minister for Education Ong Ye Kung during public discussion of the anti-sodomy law, suggests little institutional capability for handling the issue in a way that is sensitive to the realities of LGBT people’s experiences.

Employment discrimination does not only take the form of discriminatory dismissal. On other matters, where courts have no jurisdiction, complaints can instead be brought to TAFEP or MOM, who will investigate and decide on possible remedies including mediation or restricting the employer’s access to permits for hiring foreign workers, a mechanism used to punish errant employers. The effect of this on market practice is questionable. Relatively few complaints are brought, and even fewer findings of discrimination made.^[27] For instance, a five-year period saw only four complaints of disability discrimination, all ultimately deemed by MOM as unfounded, even as the Disabled People’s Association presents a troubling picture of Singapore’s workplaces.^[28] It is also unclear what is meant when complaints are deemed unfounded, given the lack of general public education on discrimination and official material exploring its realities. Taking low complaint numbers to mean low prevalence would be dangerously complacent; discrimination by nature rides on stigma and is under-reported. Consistent active signalling—such as through enacting legislation—is needed to heighten confidence and awareness of the process and thus elicit participation.

In this respect, the patchy and reactive enforcement of rather unclear processes and standards does not encourage optimism that this complaint mechanism is able to stamp out discrimination. Discriminatory advertising, for instance, continues even though it is among the illustrative examples of unfair practices in TAFEP guidelines^[29] and has faced highly publicised intervention.^[30] A casual search on a recruitment site easily generates listings specifying gender preferences with no obvious connection to the job requirement: in one case, for instance, an employer requested “females only” to make smoothies.^[31] The onus appears to be on aggrieved individuals to repeatedly make complaints, rather than on employers to proactively change their conduct.

Employers are also not subject to preventative duties imposed in some other countries. In Singapore, prospective employers may legally seek personal information from job candidates, even though there is often no purpose for this other than discrimination; this is in contrast to jurisdictions such as the UK^[32] or Australia^[33] where asking about certain personal characteristics is legally prohibited. While such questions are discouraged by TAFEP—with a recent focus on the declaration of mental health conditions making headlines^[34]—this does not amount to a legal prohibition and is subject to all the limitations of TAFEP enforcement discussed above. Moreover, there is no obligation of pay transparency that could help workers determine if they are unfairly paid. Germany, for instance, has granted employees the right to demand certain information to help them establish whether they are being paid a similar amount to comparable workers of another gender.^[35]

Overall, the regime appears curiously half-hearted. A legal obligation would surely focus employers’ minds more than occasionally making an unconvincing example of a handful of enterprises. Even the Careers@Gov website does not seem to contain any statement about being a non-discriminatory employer. If it exists, it was neither prominent nor clear when I searched for it at the time of writing.^[37]

Discrimination by providers of goods and services

In some other countries, providers of goods and services may not legally discriminate. For instance, in the UK, unlawful discrimination can include refusing to provide goods and services, or providing them on worse terms (e.g. charging more or taking longer), due to someone’s personal characteristics.^[38]

Singapore does not have an equivalent general prohibition. It is common to hear of premises excluding domestic workers or manual workers, for example.^[39] Underlying this discrimination against specific occupations is a host of prejudices pertaining to race, nationality, and class. For the purposes of a limited illustration of a piecemeal regulatory regime, this article will consider the example of private rental housing.

Most housing in Singapore is provided by a government agency (Housing Development Board), which is subject to any constitutional restrictions on discrimination discussed above, and all of their attendant limitations.^[40] However, the private market is largely unfettered. Private landlords treat tenants or prospective tenants in a discriminatory fashion without legal consequence. Race- and/or nationality-based discrimination is well-known;^[41] LGBT tenants^[42]also report discrimination. These dynamics, besides generating unpleasant social encounters, reduce the supply of housing available to groups that face discrimination.

In its ICERD report, the state addresses this by stating that the Council for Estate Agencies (CEA) has “introduced practice guidelines on property advertising, investigated racially discriminatory advertising complaints, and urged the public not to condone discrimination”. Agents are reminded to “be sensitive to the diverse and multi-racial nature of society and advise their clients against discriminatory advertising based on ethnicities and nationalities”, on penalty of “written warnings” or “the possibility of financial penalty, suspension and revocation of license or registration”.

All this busy text obscures the bottom line: Singapore society to a large extent permits landlords to rent in a racist way. It is legal to rent only to particular races. Landlords who don’t use licensed agents fall outside the universe of CEA regulation. While CEA guidelines state that advertising should not be “discriminatory, offensive or stereotyped in nature against any particular race, religion or group in society”,^[43] there appears to be no bar on taking race-based client instructions and filtering tenants accordingly. Moreover, it is hard to be convinced that the complaints regime is effective. Encountering an agent who said race was a “landlord’s requirement”, a complainant received a response stating that complaints would take four months to a year to resolve. Six months later, the complainant received an underwhelming update: the offending agent had received a written reminder of regulations.^[44]

Peculiarly, the state’s ICERD report highlights (as a positive development) an online platform which “gives prominence to racially neutral advertisements and has built-in filters… that allow tenants to easily identify advertisers that welcome all races”. Left unexamined is the logical implication that other advertisers, who do not “welcome all races”, benefit freely from the platform’s services. Another online portal is singled out as suspending or removing offensive advertisements—what does it mean that such a policy is as noteworthy as it is rare?

Conclusion

Discrimination is dealt with in Singapore in a piecemeal fashion which seems to reflect some level of denial about the reality of the problem. Of course, there is debate to be had about “hard cases”, where there may be argument over what constitutes discrimination as opposed to legitimate differentiation. But this debate would be better advanced within comprehensive anti-discrimination frameworks and well-resourced, systematic enforcement. As a first step towards setting up such mechanisms we must accept that, fond wishes notwithstanding, Singapore is not a magical or exceptional society, but an ordinary one facing ordinary challenges, including discrimination.

What readers can do

• Inform yourself: There are many ways to learn about discrimination: books, films, information put out by NGOs, social media etc. Begin with an understanding that other people may face difficulties or barriers that you don’t see in your own experience, and then seek out and listen to the stories of racial/religious minorities, migrants, women, LGBT people, disabled people and others who face discrimination.
• Inform those around you: Discuss that book with a friend; if you’re feeling ambitious, start a reading group. Share that account of discrimination that you read or watched on social media. Support and recommend cultural works which tackle discrimination. Proactively talk to your children about discrimination—don’t pretend to them that fairness has already been achieved.
• Change spaces around you: Does your employer, your educational institution or the place you volunteer have explicit anti-discrimination and anti-harassment policies? For example, in their recruitment processes, do they ensure that all questions are only relevant to the job requirements and do not relate to unnecessary personal information (e.g. the personal relationships or number of children of the candidate)? Is there a complaints mechanism for dealing with discriminatory conduct? Ask about these processes and push for internal change. If the organisation needs support to develop such policies, they can consult organisations such as AWARE.
• Lobby for national change: Support (donate or volunteer) the work of NGOs who are pushing for anti-discrimination laws, such as AWARE and Disabled People’s Association. Write to or visit your MP to tell them that you support measures such as a comprehensive anti-discrimination law and an educational curriculum which specifically addresses the historical and ongoing local and global struggles for racial, gender, sexuality, disability and other kinds of equality and justice.