(Delivered in Parliament on 6 February 2018)
I declare my interest as a lawyer working in a firm that practices criminal law.
As my Workers’ Party colleagues have said before me, we are unable to support the Bill this time.
At each renewal of this Act, MPs are asked to consider whether the prevailing circumstances are such that we still need this law. On the one hand, we know that Singaporeans want Singapore to be a safe place to live in, for ourselves and our families. At the same time, we are very mindful of the trade-offs of giving the government too much power to detain people without a fair trial, as power can always be abused. This is all the more so when we are dealing with powers to deprive persons of their liberty for years.
During the past renewals of this Act, the Workers’ Party has accepted the uncomfortable compromise that this law entails on the Constitutional right to freedom. We did not delight in taking this position, but did so with a heavy heart. This time, however, our view is that the government has gone too far. How so?
My colleagues Pritam Singh and Dennis Tan have already set out grave concerns about the Bill’s apparent curtailment of judicial oversight. For my part, I will focus on three points: first, the timing of this renewal; secondly, the dangers of adding the Fourth Schedule to the Act; and thirdly, add my voice to the disapproval of Clause 3 making the Minister’s decision to detain final.
The Timing of this Renewal
I agree with the Honourable Mr Murali and am surprised that Parliament is being asked to extend the Act now, in February 2018, when the current Act only expires in October 2019, 20 months from now, towards the end of next year.
Past debates for renewals of the Act did not have such a long timeline. I have done my counting from the Second Reading debates unlike Mr Murali’s chart which counts from the First Reading of the Bill. The last debate for renewal was in November 2013, less than a year before its expiry date in October 2014. The previous two renewals, in 2009 and 2004, were debated even closer to the expiry date – between one month to eight months of the Act’s expiry.
Why is the timing of the renewal important? It is important because at each renewal, MPs are asked to consider the prevailing crime and order situation then, and to decide whether an extension of the Act is justified for another 5 years. The government itself has refrained from making the Act permanent, which means that at each renewal, MPs must satisfy themselves that the Act is needed for the next five years.
Today, Parliament is asked to assess that the circumstances justify the renewal of the Act, from October 2019 to October 2024. Notwithstanding that Minister earlier shared the current crime situation regionally, how do we know the situation next year? Things can always change. How will Parliament make a reasonable assessment of prevailing circumstances so far ahead of time? Does this not make a mockery of the careful consideration Parliament is to exercise, when assessing whether prevailing circumstances justify a renewal of this draconian law?
In my view, it is premature of MHA to come to Parliament now to ask for a renewal of the Act.
Inclusion of the new Fourth Schedule
Clause 8 introduces a new Fourth Schedule to include a list of offences which the Minister can detain a person for.
In MHA’s press release of 9 January, it is stated that the purpose of the new Fourth Schedule is to “Restrict the powers of the Minister by clarifying the scope of criminal activities under the Act”. But as I read the Bill, this is not true. My view is that the Bill in fact increases the Minister’s powers.
Why do I say that the Bill increases the Minister’s powers?
Yes, the current Act does not list which kinds of criminal activities would make a person liable to be detained. But that does not mean that the Minister currently has carte blanche to detain anyone he pleases. In the landmark decision of the Court of Appeal of Tan Seet Eng v Attorney General [2016] 1 SLR 779, the apex court made it very clear that the Minister’s powers under the current Act are quite limited.
In Dan Tan’s case, the Court of Appeal did a thorough examination of the origins and purposes of the Act, and also scrutinised Parliamentary debates on past renewals of the Act. The Court then came to some important conclusions.
First, the judges concluded that the CLTPA did not cover all offences but only criminal activities where trials in court could not proceed due to threats of harm against witnesses or their families. Secondly, the detainee must have been involved in a criminal activity of a sufficiently serious nature to justify detention without trial. Thirdly, the criminal activity must pose harm to the public order within Singapore.
In Dan Tan’s case, the Court found that the grounds of detention alleged that he was the mastermind of a global soccer match fixing syndicate, but the effect of his plans were felt in other countries and did not affect the public safety, peace and good order within Singapore. The Minister seems to be watering down the effect of the Dan Tan judgment, but I would like to share my observations about why the judgment is significant. The Courts did an objective assessment of the written Statement of Facts in the first detention order and found that the grounds stated there went beyond the legal power of the Minister under the Act. The Court clarified that it would not apply a subjective test and simply ask whether the Minister felt that the detention was correct; but the Court will ask objectively whether the grounds stated by the Minister was within the legal scope of the Act. The Court unanimously found that the CLTPA was not meant to apply to such a case and found the first detention order defective. The Court declared that his detention was illegal, and ordered that he be released.
Bearing in mind what the Court has said, will this Bill now restrict the Minister’s powers, as MHA says, or in fact expand them?
Let us examine the effect of the inclusion of the new Fourth Schedule. The Schedule will likely short-circuit the assessment process of cases suitable for detention. In other words, the inclusion of the Schedule may enable the Minister to by-pass answering questions as to whether a case is “serious enough” to justify detention, or why it is not possible to prosecute these persons in court. Concerns have already been raised publicly by several lawyers and academics, that the Bill potentially allows persons to be detained for alleged activities of a more minor nature, now that there is a list of defined activities in the Fourth Schedule.
Another striking feature of the activities listed in new Schedule is item 9 – participation in, or facilitating, any organised crime activity as defined in the Organised Crime Act 2015 (“OCA”). What will this mean if the Bill is passed? This will mean that the scope of the Act will be expanded to cover activities that are done overseas or that may not pose a threat to the public order within Singapore.
Earlier during his Second reading speech, the Minister was quite careful in dealing with this point. He stated that while the new Schedule covered many activities previously discussed as under the CLTPA, the Schedule was also bringing in the OCA, showing that he knows that this is new.
Under Section 48 of our OCA, actions done abroad are considered to be “organised crime activities”, so long as they are done by an organised group with local links. These activities could take place completely in countries far away.
In addition, by referring to the OCA in the Schedule, the government is importing into the CLTPA the concept of “serious crime” under the OCA. But the OCA considers to be “serious crime” a wide variety of offences, including many crimes that are fundamentally economic or financial in nature. The list of such crimes includes GST fraud, dealing in goods for which customs duty is not paid, illegal betting, computer misuse, and infringements of copyright and trade marks. Do such types of cases typically come up for detention orders under the CLTPA? I don’t think so. The OCA already has its own ways of dealing with organised crime, which MHA recommended and Parliament only recently adopted in 2015. By now linking the OCA to the CLTPA, enabling CL detention for OCA cases, is the new Schedule not expanding the Minister’s powers under the CLTPA?
The Court of Appeal in Dan Tan’s case has pronounced that the CLTPA is only meant to protect the public safety, peace and good order within Singapore. Contrary to what MHA has said, the inclusion of the Fourth Schedule under Clause 8 clearly expands the Minister’s powers to police criminal activities overseas and expands the kinds of activities that are subject to the Act. In effect, the Bill makes the Minister a global policeman, with no equal in the world! This is a position too arrogant for this House to support.
Making the Minister’s grounds of detention “Final”
The attempt to make the Minister all-powerful under Clause 8 is even more toxic when one looks at Clause 3, which states that “every decision” of the Minister to exercise detention powers under Section 30(1) “is final”.
Other MPs have raised their concerns about the Clause. I will only add a few points to the chorus of concern.
The Courts’ powers in judicial review are already very limited. As my party colleagues and others have said, the principles of judicial review are well-established. When a Court is asked to review a government decision, it will over-turn the government’s decision only if it finds that the decision was illegal, irrational or procedurally improper. Our Judges are well aware that they are not Ministers and should not be the ones exercising executive discretion. The Minister clearly understands these principles.
So what justification is there for the government to introduce Clause 3? The Minister has been saying over and over that nothing changes regarding judicial review. But one tenet of interpretation is that Parliament does not legislate in vain. Earlier if I heard Mr Christopher de Souza correctly, he said that Clause 3 merely clarified the existing law. But if I read the Explanatory Note to the Bill, it states that the Bill “amends the Criminal Law Temporary Provisions Act by providing that the Minister’s decision is final” on the three matters. If, as the Minister says, Clause 3 does not change anything, why do we need it? Why not just leave the status quo, instead of causing uncertainty?
It is quite clear that the government is not infallible and does make mistakes. Dan Tan’s detention illustrates this. Instead of welcoming the Court’s clarification, the government comes to Parliament with this finality clause.
As MPs, it is important for us to pause and ask: What is the public interest here? Why is Clause 3 necessary? Does the public interest not demand that we defend rigorously the Courts’ Constitutional duty to ensure that the government acts lawfully?
The CLTPA has been in force since 1955. For more than 60 years, no Minister has come forward to ask for a finality clause on his detention orders. We find this very troubling.
Conclusion
As I mentioned earlier, I have my reservations about the timing of this Bill, as I believe that to renew the Act now to take effect in October next year is premature.
More importantly, the Workers’ Party does not see any justification to introduce a finality clause as proposed by Clause 3. In addition, I find the insertion of the Fourth Schedule under Clause 8 to be dangerous, as it clearly expands the Minister’s powers rather than restricts them as claimed by MHA. This Bill will expand the scope of the CLTPA, beyond its original intention of safeguarding peace and good order in Singapore. These Clauses will repose in the Minister for Home Affairs too much discretion and power, not only at home but well beyond our shores. We find this proposal untenable.
For these reasons, the Workers’ Party opposes the Bill.