(Delivered in Parliament on 21 March 2018)
In its media release of 27 February 2018, the Ministry of Home Affairs stated categorically that the Special Powers under this Bill would not be available for routine operations. Two weeks later, on 15 March, MHA repeated that the Bill would not apply to day-to-day policing; this second statement was made in response to concerns from civil society groups about the wide wording of the Bill. Today, the Minister has just repeated the assurance in her Second Reading Speech, when she said she hoped that the Special Powers would never need to be used.
Sir, the understanding that the Bill should only be invoked in exceptional circumstances is a critical underlying assumption for the debate on this Bill. Parliament is being asked to approve very draconian powers to be given to law enforcement and supporting forces, but only in situations where there is an imminent and grave danger to the safety and security of people in Singapore. As MHA has stated, the threshold for special powers to be activated in the Bill is “high”. The powers under this Bill must never be misused for situations that can be adequately dealt with under other laws.
This Bill serves to repeal the Public Order (Preservation) Act (POPA) enacted in 1958, but its aims are wider. While the Long Title of POPA states that the Act relates to the maintenance and restoration of public order, this Bill states that its aim is to “extend police powers to better prevent and respond to any incident or likely incident involving serious violence or large-scale public disorder in Singapore”. Thus this Bill envisages prevention, and response, not just to public disorder but serious violence as well. To this end, the Bill provides some new powers not contained in POPA, such as the ability of police to direct owners of buildings within incident areas to take actions like closing the building for a specified time, and for police to question individuals within a target area when conducting a manhunt.
I accept that the nature of the threats that Singapore faces today, especially from terrorism, is different from the problems that POPA was supposed to address when it was enacted in 1958. The government would need muscle as well as flexibility to respond quickly and effectively to those threats. I believe Singaporeans want that.
Under the Bill, the Minister can issue an Activation Order under Clause 8 if he is of the opinion that a serious incident has occurred, is occurring or is threatened, and that the use of the Special Powers under the Bill would be necessary to achieve the objectives of preventing the occurrence, reducing its impact, or controlling and restoring public order. According to Clause 9, the Minister’s Activation Order must specify the nature of the serious incident, the duration of the Activation Order and authorise the Commissioner of Police to exercise all or any of the Special Powers under the Bill.
It seems to me that the principle of proportionality should be a cardinal principle in exercising all the powers under the Bill. Not only must the Minister’s threshold for issuing an Activation Order be high, the decision of which Special Powers are really needed to deal with a particular scenario should be deliberately considered case by case. Earlier, Minister confirmed that for each incident, the Commissioner would consider the need for each Special Power, as commensurate with the nature of the incident.
What should also concern us today is whether any of the provisions in the Bill seem to be too wide or involve too much of a compromise on competing public interests such as public accountability. In this regard, I have two concerns to raise.
First, the definition of “serious incident” under Clause 3 of the Bill. Clause 3 defines “serious incident” to include not only terrorism-related offences and acts of serious violence, but also acts “causing large-scale public disorder”. There are five factual illustrations for the scope of Clause 3. The first three scenarios concern the use of explosives and firearms, and the forcible taking over of public transport, which to most of us warrant an exceptional response from the authorities. However, the last two illustrations which concern public disorder are more controversial. Illustration (d) covers a sit-down peaceful protest that grows in size such that there is impediment to paths, roads and normal business. Illustration (e) is about a group protesting in the street that grows in size and then starts to commit violent acts, which sounds to me like rioting, which is an arrestable offence under the Penal Code.
I would like Minister to explain why existing laws are not adequate to deal with such scenarios such as in illustrations (d) and (e). In addition, it seems to me that in these scenarios, any law enforcement operation would not be tactically sensitive to warrant the use of Special Powers such as Communications Stop Orders, a topic I shall deal with next.
Communications Stop Orders
Notwithstanding what the Minister has said about the Communications Stop Order, I am most concerned about Clause 30 and 31. It is stated that the Commissioner of Police can issue a Communications Stop Order (CSO) to ban the making of relevant films or pictures, and to ban exhibiting or communicating any relevant film or picture, or a relevant text or audio message. The Commissioner can issue a CSO if he is of the view that exhibiting or communicating such relevant films, pictures, texts or audio messages would prejudice ongoing law enforcement operations relating to serious incidents, or endanger the safety of the public or law enforcement officers during the law enforcement activity. The terms “relevant film or picture”, and “relevant text or audio message”, are defined in Clause 2, to generally mean those made while the Special Powers are activated and which are related to the target area or law enforcement activities in the target area.
Under Clause 31, a police officer can direct persons to stop making, exhibiting or communicating such relevant films, pictures, texts or audio messages. Police can also compel the deletion and surrender of such material, and require persons to provide information on the recipients of such communications.
I appreciate fully that when a tactical security operation is ongoing, the details of a target area and the deployment of law enforcement require secrecy for maximum efficacy. Past incidents such as the Mumbai attack in 2008 have shown that TV footage of ongoing operations had given perpetrators live information on the presence and tactics of law enforcement, enabling them to anticipate the actions of law enforcement forces.
However, on the other hand, it has also been proven in past incidents that footage or photographs taken at the scene of major incidents prevented fake news and enabled the truth to emerge, after the incidents were over. For instance, in 2009, a G-20 summit meeting was held in London and a police operation codenamed “Operation Glencoe” was mounted to manage protestors. While the operation was on, a man named Ian Tomlinson suddenly fell and died while in the vicinity. Police initially denied that they had any altercation with him, until a video taken by an American there on business showed Mr Tomlinson being pushed to the ground by police. This led to inquiries that uncovered the truth, which would not have happened had contemporaneous videos not been recorded.
While I can accept that the transmission of relevant films, pictures, texts and audio messages during a tactical operation may jeopardise the effectiveness of such operations, I do not accept that the making and storing of such films and pictures for later viewing will undermine such operations.
As regards how such films and pictures can guard against police abuse, MHA stated on 15 March that this was not required, as the police would always look into any feedback or complaint about any misconduct by its officers seriously. However, the reality is that in any investigation, evidence talks. If it is a case of “he-says-she-says”, the burden will fall on the complainant to prove the complaint. A ban on making relevant films and pictures does not promote fact-finding and accountability. I note what the Minister said earlier about the operational difficulties on the ground in deciding who is simply making a film and not contemporaneously transmitting it. As a former police officer, I can appreciate that difficulty fully. But even if the government believes that the offence of making a film is needed, I would hope that it would be slow to prosecute if a film or picture adds value to post-review investigations. I still have my concerns about the compromise we are making and ask that the government adopt a more constructive approach towards unofficial recordings of major incidents.