(Delivered in Parliament on 6 February 2018)
Mr Speaker, this is the 14th time this so called temporary Act in its various forms has come before Parliament or its predecessor for renewal of another 5 years. At the last and 13th renewal in 2013, this Act was extended for 5 years from 21 October 2014 which means that it is only due to lapse in October 2019.
The most controversial and draconian aspect of this Act is the fact that this law puts people behind bars without the usual due process. Like the Internal Security Act, it is a controversial exception to our legal justice system which usually requires every person to be charged, tried and convicted in court before he can be detained in prison. To take away someone’s liberty like this is not something we should ever take lightly to.
Under the existing Section 30, the minister can order the detention of a person for any period not exceeding 12 months if the minister is satisfied that it is necessary that the person be detained in the interest of public safety, peace and good order.
Under Section 30, the minister can also make an order for a person to be subject to the supervision of the police for any period not exceeding 3 years if he is satisfied that it is so necessary. We should also not regard supervision order lightly as such orders impose restrictions on a person’s movements and activities and may impact on his work and liberty.
The time limits for detention and supervision should also be viewed from the perspective that that each order can be renewed indefinitely. This must never be taken lightly.
Mr Speaker, in each of the previous occasions when Parliament debated the initial bill and the subsequent renewals of the Act, many members have spoken up about their concerns about the undesirability of this Act and how soon Singapore can mature to a society when we can do away with this Act. Many members have also spoken in agreement with the minister of the day, on variously the rationale for extending the Act to deal with the concerned crimes or criminal groups of the day. I read from ministers’ and MPs’ speeches in the Hansard that this ranged from secret societies, gangsterism, drug trafficking, murders, extortion and protection rackets, to, in more recent years, money laundering, loan shark syndicates, organised crimes and global match fixing. There was also mention of arguably activities which are traditionally not regarded as criminal such as prevention of strikes and lockouts, as well as communist domination.
Court’s powers of judicial review being taken away
Mr Speaker, today at the 14th renewal of the Act, we are not asked merely to consider the extension of the Act based on identical provisions. The ministry is proposing some important amendments.
My biggest concern with this Amendment Bill is with the proposed amendments in Section 30.
The Bill proposes to make every decision of the Minister on a matter in the current Section 30 final. The explanatory note to the Bill detailed three matters:
(i) That a person has been associated with activities of a criminal nature;
(ii) That it is necessary for a person to be detained in the interests of public safety, peace and order;
(iii) That it is necessary that a person be subject to the supervision of the police.
These are the applying criteria leading to the minister making a decision to make a detention or supervision order.
The proposed amendment is a disconcerting change to the existing provisions of the Act.
The proposed amendment will take away the existing rights of detainees under the current law to seek judicial review by our courts in respect of the appropriateness of the minister’s decision to order any detention or supervision. Specifically, whether the minister was correct in deciding that a person was appropriately associated with the type of criminal activities coming within the Act or whether the minister was correct in his decision that it was necessary for the person to be detained in the interests of public safety, peace and order or whether the minister was right in deciding that it was necessary to subject a person to the supervision of the police. I am concerned that, once passed, a minister’s decision on these aspects of his order can no longer be challenged in court, even if the minister’s decision exceeds the scope of his powers.
Until now, judicial review is available to detainees to challenge the minister’s order if, for example, the minister had not acted within the scope of his powers. An order can be scrutinized by the court if it is (i) illegal, (ii) irrational or (iii) if there is procedural impropriety. This was confirmed again by the Court of Appeal in the case of Tan Seet Eng v Attorney General and another matter [2016] 1 SLR 779 (I will refer this subsequently as the Dan Tan case). As the Court of Appeal held in that case (at paragraphs 129-130), the court’s power for review is not to review the truth of the allegations of fact found in the grounds given for detention but to scrutinise the grounds given to justify the detention to see whether the minister had acted within the scope of his powers. Let me attempt to summarise what the Court of Appeal had stated on the scope of the minister’s powers (at paragraphs 116-120 of the judgment) as it is a helpful reminder of the present principles governing the scope of the minister’s powers under the Act:
(1) The normal course for dealing with criminals would be by way of prosecution in court and recourse to CLTPA would be in limited circumstances where normal legal processes could not be relied upon due to threat of reprisals to witnesses.
(2) The court listed certain specific types of crimes and stated that the offences must have the following unifying characteristics:
(a) threat of violence and reprisals to intimidate witnesses;
(b) detainee is associated with a criminal activity of a serious nature, not just any criminal activity;
(c) the offences must pose harm to public order in Singapore. The Court of Appeal stated by way of an example that the activities of gangsters, secret societies and syndicated crime gangs involved in violent crimes all affect peace, safety and public order.
In the Dan Tan case, the Court of Appeal allowed Dan Tan’s appeal and quashed his detention order under the Act. The Court held that the facts and activities provided in the grounds were not sufficiently serious to fall within the scope of the Act and also that it was not clear whether the activities stated had a bearing on the public safety, peace and good order within Singapore. The Court of Appeal’s decisive judgment confirmed the importance of the court’s role in ensuring that the minister’s order must fall within the scope of his powers under the current law.
There is no doubt that the proposed amendment in Section 30 is a response to the Court’s decision in Dan Tan’s case. The Straits Times, has confirmed this too in their recent articles on 10 January and 3 February 2018.
Judicial review is an integral component of the rule of law. Chief Justice Sundaresh Menon said in his speech on the Rule of Law at the annual meeting of the American Law Institute in May 2016 when he commented on the Court’s judgment in the Dan Tan’s case (and I quote):
“Judicial Review is the sharp edge that keeps the government action within the form and substance of the law.”
Is this sharp edge going to be taken away from the existing Section 30 of CLTPA by our amendment today?
New Zealand High Court judge Justice Matthew Palmer in his speech touching on rule of law and judicial review as the Kwa Geok Choo Distinguished Visitor at the National University of Singapore on 20 January 2016 said (and I quote):
“…I consider that the availability of the law of judicial review to test the legality of exercises of public power is a direct manifestation of the rule of law. If a public body purports to exercise public power in a specific instance those concerned with that exercise must be able to ask an independent body – the courts – whether the exercise of public power accorded with law. If it did, no harm is done by testing the question and, indeed, public confidence in law and government is enhanced. If an exercise of public power were not made according to law, then the rule of law requires that be addressed, as it is when any other decision-maker acts inconsistently with law. To leave the decision to the executive branch, untested, is to leave the effective determination of the law – a judicial function – to the executive.”
I agree with what Justice Palmer has said.
So, is the change really necessary? Is it right or fair to dispose of such judicial safeguards now? After 13 renewals, is this not a step backward?
The newly announced measure of having judges to chair the advisory committees
The minister has announced that we will be having judges to chair the advisory committees. I note that this is different from the minister’s suggestion in his speech at the debate for the renewal of the Act in 1989. Let me read the relevant part of his speech from the Hansard (and I quote):
“…The Internal Security Act can be justified under our circumstances. For the CLTPA, there may be more questions And it has to be accepted that we cannot ever eliminate crime. We can only control it within acceptable tolerable limits. So the Minister has to focus on that and tell the House whether at the present stage the situation is such that secret societies, gangsters, the original justification continues to exist at the same level of seriousness which justifies powers of administrative detention. If he does so, then I would still ask that he considers one structural change to the existing provisions. This is to ensure that the CLTPA is not abused.
At present, the CLTPA is such that the Minister decides on the detention. The Advisory Committee advises the President and the President has ultimate powers. I would suggest that the Minister still decides on the detention but perhaps powers of review be given to the courts. The reason I say that is, if the Minister takes a reasonable view on the facts that a certain person poses a danger, then presumably the Act can be worded such that the courts can look at the facts, the reasons for the Minister’s decision and then come down on the side of the Minister. If the courts disagree, if the judges disagree, then again the Minister’s decision will be overturned. So remove it from the President to the Executive and give the power to the courts.
This is not to suggest that it has been abused but only to prevent CLTPA from being a convenient route where the police do not have sufficient evidence against common criminals to prosecute them in court and therefore use CLTPA. The Minister is a busy man. He has to rely on the reports that are put up to him by his Police Force. And the Police do not have the monopoly of virtue or morality more than any of us. So that is an important point and that particular provision worries me.”
I would like to ask the minister is there any reason why his latest proposal stopped short of what he proposed in 1989.
Suggestion for the reduction of reporting period to Advisory Committee
Currently, Section 31 requires the Minister to refer every order to an advisory committee within 28 days of making the order. I would like to ask the minister to review the timeline of 28 days. Why do we need 28 days? 28 days is a long time for such a referral. I am sure that when an order is made by the minister, the public prosecutor and the police would have or should have already carried out proper investigation and enquiries to reach the conclusion that an order is necessary. The paperwork should not need much time after the order has been given. I would like to propose that in the interest of justice this period should be reduced to 14 days. This will also be in line with the extended period of detention accorded for police investigation under Section 44(3) of the Act.
Changes to law and regulations on supervision orders
Finally, I read in the Straits Times’ report of 10 January 2018 that the obligations and restrictions under police supervision orders will be shifted to a subsidiary legislation and that this move will give the minister greater flexibility in imposing the necessary conditions and curbs. I would like to ask the minister what will be the changes in the conditions and curbs and the so-called flexibility that the minister is seeking.
Mr Speaker, in closing, I do not agree with the proposed amendment of Section 30 of the current Act and for that I am unable to support this Bill.