(Delivered in Parliament on 6 February 2018)
Mr Speaker, the prospect of locking people up for an undetermined duration is incongruous with the rule of law. Should a state have such powers? Insofar as the Criminal Law (Temporary Provisions) Act (CLTPA) is concerned, the answer has been yes for reasons that have been enunciated in this House over many decades, albeit not without significant soul-searching and qualified support. One important reason that underpins the qualified support for the CLTPA in Singapore through the decades has been the prospect of judicial review, which operates as an important safety valve to check against any excesses of the Government of day. The importance of judicial review with regard to the CLTPA was publicly expressed recently by the Court of Appeal judgment in the matter of the international match-fixer Tan Seet Eng or Dan Tan.
Unlike many extensions the Government has sought for this Act since then, the one before the House today includes a few fundamental amendments, which are very significant and extend new powers to the Government for an Act which was ostensibly temporary.
Why change the law?
At the outset Mr Speaker, is an amendment to the Act even necessary?
To answer this question, it is helpful to look at what transpired in the aftermath of international match-fixer Dan Tan’s short-lived release under the CLTPA after the Court of Appeal ruled against the Government and in favour of Dan Tan. Government critics focused on Dan Tan’s re-arrest six days after the Minister cured the deficiencies in the original Grounds of Detention (or GD) with a more detailed GD describing how Dan Tan’s activities had a direct relevance to public safety, peace and good order in Singapore. As stressed by the Court, that was the crux of the CLTPA – the Government had to show how Dan Tan’s activities prejudiced public safety, peace and good order in Singapore, something it had not sufficiently done in its original grounds of detention.
However, what was somewhat overlooked in the decision to re-arrest Dan Tan was the Minister’s decision to revoke the detention orders under the CLTPA of three members of Dan Tan’s global match-fixing syndicate. The Ministry of Home Affairs in a statement on 18th of January 2016 stated that “the evidence against the three persons, and their roles in the syndicate were recently reviewed, after the Court of Appeal gave its decision in Dan Tan’s case.”
It would appear that in light of the judgment in Tan Seet Eng, the Government became aware of the poor case against them in law, putting the three detainees on supervision orders instead. To that end, the purpose of the Act and more importantly, the separation of powers between the Executive and Judiciary as it currently stands would appear to be operating effectively, giving the Minister enough leeway to take decisive action against individuals who in his estimation pose a threat to ensure public safety, peace and good order in Singapore, while being in a position to apply the Act lawfully even it means revoking detention orders in light of the clarification of laws by the Judiciary. Quite simply, the system is working as it should. If so, what is the impulse behind this amendment bill and is it justified?
The Minister’s decision is Final: A lesser role for the Judiciary?
Secondly, the Bill introduces a new limb to Section 30 of the Act, legislating that a decision of the Minister would be final. I seek the Minister’s clarification on how this new clause 3 will interact with the prospect of judicial review for individuals detained under the CLTPA in future, in view of the Court of Appeal’s judgment in Tan Seet Eng.
While clause 3 does not explicitly exclude the prospects of judicial review unlike section 8(2)(b) of the Internal Security Act, it is a fact that more, not fewer judicial review cases are coming up for adjudication in our Courts, challenging the lawfulness of government decisions. In recent years, these include questions on the legality of whether or when elections ought to be called in a Single Member Constituency and a Group Representation Constituency, the constitutionality of 377A with regard to homosexuals, the constitutionality of the Government’s decision to extend a loan to the International Monetary Fund, a challenge by some Hindu adherents on the banning of musical instruments during Thaipusam and the challenge by a Sikh prison counsellor on prison policy covering Sikh inmates, amongst others.
In concert with a more educated population and a greater recognition of the critical role an independent Judiciary plays as a co-equal organ alongside the Executive and Legislature, it is unsurprising that more Singaporeans are seeking the avenue afforded by judicial review for clarity on public law matters and for the Judiciary to have the final say on the legality of government actions. I would hazard that even the front bench recognizes and agrees with the critical role the Judiciary plays as a feature of a good government and good governance.
Judicial Review: The Sharp Edge
Mr Speaker, in a speech delivered at the American Law Institute in 2016, the Chief Justice referred to judicial review as (and I quote) “the sharp edge that keeps government action within the form and substance of the law.” (unquote) However, it is well established under Singapore law that judicial review only covers the process and legality of Government decisions, not the merits of a decision which are properly empowered to the Executive, who having been lawfully voted in by Singaporeans at each General Elections take decisions by virtue of their electoral mandate. To that end, a policy question or decision of the Government of the day can only be overturned by the Courts on grounds of irrationality, illegality, or impropriety – thresholds which are exceedingly high to begin with.
However, the law covering judicial review has not stood still even if Singapore law does not recognize some of the newer heads and principles that define judicial review in the UK such as the proportionality principle – ostensibly because some of these new approaches risk substituting the judiciary’s decision for the executive – a concern which is in light of our separation of powers schema is a legitimate one. But even so, the Chief Justice in his speech to the American Law Institute which I referred to earlier, found it appropriate to share the Singapore experience with regard to a new head of judicial review recognized under Singapore law – that of substantive legitimate expectation – which concerns government action that is contrary to a promise or an expectation that it has created or encouraged.
For the man on the street and the average Singaporean, the knowledge of a continual evolution of the law on judicial review is a welcome development. Justice must be seen to be done, and the evolution of the law on judicial review has required judges to make more not less enquiries on the facts and circumstances of a matter at hand so as to be able to decide whether the government has made a lawful or unlawful decision. In and of itself, it would appear intuitively logical for judges to have maximum access to the Minister or the Executive’s thought processes even if they cannot replace it with their own. However, clause 3 appears to be going against the grain, closing the door and further limiting the judiciary’s scope for judicial review for CLTPA cases. At this juncture, it would be useful for me to recite a a short paragraph of the Court of Appeal judgment in Tan Seet Eng which buttress the point that even though the ambit of judicial review only covers the process and legality of how a decision is made, the role of the courts is far from routine and administrative.
“In our judgment, while it is one thing to say that the court must not substitute its view as to the way in which the discretion that is vested in the Minister should be exercised, it is quite another to say that the Minister’s exercise of discretion may not be scrutinised by the court at all. We asked (the Government’s lawyer) if he was contending that the function of the court was confined to verifying, as a clerical matter, that the paperwork was in order and included at least a bare recitation by or on behalf of the Minister that formally complied with the statutory formula. The (Government’s lawyer) said that was not his position, and in our judgment, rightly so. We have already referred to the decision of this court in Chng Suan Tze where an objective approach was laid down. This plainly runs counter to any suggestion that the court is confined to so narrow a role. Indeed, this recognises that a court may and indeed should examine whether the power that is vested in the Minister is being properly invoked (unquote).”
On clause 3 per se, the explanatory note to the Bill states that the Minister’s decision being final applies in any of these three instances:
(a) That the person has been associated with activities of a criminal nature;
(b) That it is necessary for a person to be detained in the interests of public safety, peace and good order; and
(c) That it is necessary that a person be subject to the supervision of the police.
Mr Speaker, all three instances operate to narrow the judiciary’s role with respect to judicial review. To this end, I would like to ask the Minister, in the event the Courts require the Minister to reveal detailed information on the background facts on any of the three instances to determine and assist the Court to decide on the lawfulness of a CLTPA detention for the purposes of judicial review, can the Minister confirm if the Courts will be able to do so? More fundamentally, would it not be more propitious for Parliament to extend real scope to the Judiciary to review the Minister’s decision in the case of CLTPA detentions particularly since detainees cannot challenge the evidence against them in an open court, notwithstanding the Executive check available by way of the Advisory Committee under the Act?
Extending the CLTPA to crimes committed outside Singapore
The third point I wish to make extends to the inclusion of clause 8 which covers section 48(1) of the Organised Crime Act in Schedule 4 of the Bill extends the reach of the CLTPA – by way of legislation – to individuals who participate or facilitate a serious crime overseas. This is a significant shift in the reach and ambit of the CLTPA and I have some questions in this regard.
What is the threshold of participation or facilitation in a serious crime overseas as defined by section 48(1) of the Organised Crime Act before the CLTPA can be employed against an individual? Does the Minister have any examples of criminals having facilitated or participated in crimes overseas only for the Government to be bereft of any legal options to bring such individuals to justice? More narrowly, would the detention of an individual arising from Section 48(1) of the Organised Crime Act under the CLTPA require the Minister to include evidence or the results of investigations from a foreign counterpart in his Grounds of Detention or would some other standard apply – and if so, what would that standard be? Or would it be up to the Minister in step with the amendment proposed in clause 3 that his decision is final and there is for all practical purposes, no scope for enquiry into this matter? Finally, and in this context, does the Minister foresee the CLTPA to be employed against foreigners who commit crimes overseas and who may be members of or in the employ of a Singaporean or local criminal syndicate?
Mr Speaker, the Workers’ Party opposes this Bill.