by Sylvia Lim, MP for Aljunied GRC and Chairman of Aljunied-Hougang-Punggol East Town Council
[Delivered in Parliament on 11 Nov 2013]
The Criminal Law Temporary Provisions Act is coming for extension for the 13th time since it was enacted in 1955. I am glad that the government has not sought to make its provisions permanent, as the historical records show that the government is well aware of the compromise we are making in continuing to have such a law. The Act allows the government to detain suspected criminals without trial if the Home Affairs Minister thinks that detention is “in the interests of public safety, peace and good order”. Not only is this a departure from the right to a fair trial; there is very limited review of the Minister’s order.
The serious reservations about the CLTPA were succinctly articulated by then Opposition Leader Mr Lee Kuan Yew, who spoke in 1955 at the Second Reading of the Bill as follows:
“If the Government feels that it is necessary to take this step, we shall not resist it, but we ask them to remember that it is not democratic, that it is not fair to blunt the strike instrument, and that all these extraordinarily stringent regulations should be set aside as soon as conditions permit.”
Mr Lee’s reservations still ring true today.
In past debates, Members had asked whether the circumstances since 1955 have changed, such that the Act has lost its relevance. Madam, the long title of the Act states that these provisions are meant for “the maintenance of public order”. Over the years, the government had justified the Act as necessary to suppress secret societies and drug trafficking, especially when trials in court could not go on with witnesses too scared to testify. The justification had been that the compromise on the right to a fair trial was needed for the greater good of public safety, peace and good order.
I look forward to the day when this Act can be thrown away. However, I am sad to note that the day has apparently not yet come. Several crime concerns loom. We have two casinos here, still in early stages of operation, which can become controlled by organized criminals if not policed well. We are also not blind to the recent experience of our neighbours across the Causeway. There, public safety and security deteriorated this year with deadly gun violence by organized criminals, which appeared to have been linked to the release of persons in preventive detention when the detention law was abolished two years ago. Last month, to restore order, the Malaysian government has since re-introduced detention of criminals without trial under amendments to its Prevention of Crimes Act. In Singapore, we should be concerned not to have spillover effects. Looking at the crime risks currently, I am unable to oppose the extension of the Act for another 5 years.
Madam, that does not mean that all is well with the Act. I have some serious concerns about the scope of the Act and the very limited safeguards, which I think need to and should be strengthened.
Scope of the Act – what are the limits?
Under Section 30 of the Act, the Minister can detain a person suspected of being involved in criminal activities, if his detention is in the interests of public safety, peace and good order. Over the years, the government has detained secret society members who were believed to have engaged in acts of violence, causing injuries and even death. Since 1974, suspected drug traffickers had been detained as well. Drug trafficking is a crime which feeds drug abuse, which can cause misery and death to many. It is a violent trade, and its proceeds have also been known to feed other criminal enterprises. More recently, the government has detained illegal moneylenders, whose tactics of intimidation and harassment have undermined safety in our HDB heartlands and increased fear of crime. In the above instances, one can see the risk to public safety, peace and good order, which required the government to resort to CL detention. In these instances, one could accept the need to prevent loss of life and limb.
Are there limits to the types of cases suitable for CL detention? Last month, the government used the Act to detain four suspects of a global soccer match fixing syndicate operating in Europe and elsewhere. I believe this is the first time the government has used the Act for corruption offences.
Many of us are understandably embarrassed about the global match fixing syndicate. Despite our efforts to portray Singapore as a country with zero tolerance for corruption, European police investigating massive soccer match fixing in various countries have identified Singaporeans as the masterminds or kingpins of an organized syndicate. International media such as the BBC then put out critical reports about the apparent lack of powers in the Singapore authorities to deal with the suspects such as Mr Dan Tan who were apparently moving about freely in Singapore (e.g. BBC report Mar 5, 2013). When the detentions under CL were announced last month, I could only speculate that the government wanted to take action and was also under some international pressure to act. However, it was not explained why soccer corruption was suitable for CL detention, when all along, the Act had been seen as a concession justified in the name of public safety.
In order to understand the government’s position on this, I filed a question at last month’s sitting asking for the rationale for the detentions. In answer, DPM Teo Chee Hean said that the detentions were made for the sake of “public safety, peace and good order” which is a phrase word for word from the Act. But the question remains: How exactly does soccer corruption in Europe threaten public safety, peace and good order to justify a detention here? At this juncture, I should state categorically that I in no way condone soccer corruption or any corruption, but I believe the government should reveal more of why the suspected activities justified detention without trial under CL.
In the Parliamentary answer, the government tried to draw a parallel between match fixing syndicates and drug trafficking and unlicensed moneylending, stating that they were all perpetrated by “organised criminal syndicates with complex and layered structures motivated by financial gain”. I would like some clarification on this. Does this mean that so long as there are complex and layered structures, the authorities find it more efficient to go for detention without trial, instead of trying to gather solid evidence to mount a prosecution?
The Ministry further mentioned in the Parliamentary answer that “where cross-border illegal activities are involved, the difficulties of securing evidence and witnesses willing to co-operate and testify against the syndicate in open court are amplified”. I am not sure whether the government saying that transnational crime is now a new frontier for which CL detentions will be handy. What if the transnational crime was simply a revenue offence (e.g. syndicate dealing in contraband goods) – would CL be used for that too?
To prosecute match fixers in court should be the usual route. One of our leading soccer match fixers, Wilson Raj Perumal, was tried and convicted in Finland for bribing soccer players and rigging matches. In Singapore, too, we have been pursuing soccer corruption cases in our courts, in the past and currently. Why could the four detainees not be prosecuted in court, either locally or in Europe? If the four had done any preparatory acts from Singapore, it is possible to pursue their cases in the local courts. If the acts were wholly committed overseas, Singapore citizens can still be prosecuted for their overseas acts under Section 37 of the Prevention of Corruption Act. Alternatively, they should be extradited to stand trial in the country where the crimes allegedly took place. What, then, was the difficulty? Were the European investigators slow to share with us the information they had, which was what Interpol’s Secretary-General told various media? Are there gaps in the cross-border process, preventing the suspects from being extradited to the appropriate jurisdiction for trial?
The fact that the soccer match fixing syndicate was working across borders should not be a justification for detention without trial. Indeed, in his Parliamentary answer to MP Alex Yam last month, DPM Teo Chee Hean revealed that our agencies vigorously pursued leads through INTERPOL, EUROPOL and European countries to share information and otherwise collaborate on curtailing the soccer syndicate. Would it not have been possible to work towards prosecution instead?
These latest detentions raise concerns about whether powers of CL detention are now being extended to cover gaps in the law or law enforcement processes to tackle crime across borders. It also makes one worry what other new offences will be covered under CL detentions in the future.
Accordingly, it is important for Minister to clarify three things:
1) Since the Act requires detentions to be in the interests of public safety, peace and good order, does the government agree that CL detentions should ordinarily be restricted to organized crimes which threaten life and limb;
2) Will the Minister confirm that the detention for soccer match fixing is unprecedented in the history of the Act, and explain further why the detentions furthered public safety, peace and good order;
3) Are our government and other governments working together on a better regime of international co-operation such that suspects of transnational crime can be investigated and extradited for trials in the appropriate jurisdictions?
Safeguards – Need Enhancement
Over the years, Members have debated whether the safeguards in the Act to guard against arbitrary detention are robust. Personally, I think they are not adequate and should be strengthened.
First, let me lay out what I understand are the existing safeguards and their limitations.
There is an avenue of judicial review of the detention order. In the 2007 case of Re Wong Sin Yee [2007] 4 SLR (R) 676, the High Court affirmed that it had jurisdiction to review the detention order, but only on the grounds of rationality, not merits. In other words, the Court had powers to quash the detention order if the Minister had not made the order on the grounds of public safety, peace and good order; however, the Court did not have the power to do its own risk/ threat analysis of the suspect’s activities to decide if the suspect should be detained in the interests of public safety, peace and good order. Therefore, if I may simplify, the Court’s jurisdiction is to look more at whether the government had acted rationally and not to weigh the information to decide if detention was justified.
Who, then, will supervise the decision on the merits, to see whether the detention was justified? Under Section 31 of the Act, the Minister’s decision to detain will be sent to an Advisory Committee together with a written statement of the grounds of detention. According to the Criminal Law (Advisory Committee) Rules, the Committee will meet to consider the case, with the suspect present. The Committee is to meet in private, and will read reports that the Minister has authorized be placed before the Committee. The suspect may be represented by a lawyer if leave is given by the Committee. The Advisory Committee may in its discretion call witnesses to adduce oral or documentary evidence. Whatever the case, the suspect and his lawyer are not privy to the reports and evidence the Advisory Committee refers to for its decision. The Advisory Committee will then send its report to the President, who will act on the advice of Cabinet to cancel or confirm the detention order.
It would be instructive to know how often Advisory Committees have called for additional evidence before putting up its recommendations.
Moreover, it can be seen in the scheme of things that the Advisory Committee is merely that – Advisory. Even if the Committee were to come to the conclusion that the person should not be detained, it can only give such advice in its secret report to the President. The President, who is the final gatekeeper, will read the Committee’s advice but will still decide based on the advice of Cabinet. Therefore, for a Minister’s decision to be overturned on the merits, the Cabinet must come to the conclusion that their Cabinet colleague, the Home Affairs Minister, was wrong. Could the government tell us how many times the Advisory Committee had recommended release and what the President did in those cases? Going further upstream, it would be useful to know how often recommendations for detention put up by police or CNB (Central Narcotics Bureau) had been turned down by the Public Prosecutor or the Minister.
Past debates in this House show that at renewals of this Act, Members had raised various concerns over the years about the review process.
Has the government considered the feasibility of enabling the merits of the detention order to be subject to judicial scrutiny? A scheme could be worked out where a judge scrutinizes all the relevant information in camera, away from the public eye, to ensure that at least an identifiable impartial person currently serving in the judicial branch of government has weighed the information before we lock a person up without trial, and can order his release if not satisfied. At least under such a regime, the decision to detain someone without trial would be subject to a check and balance system from two branches of government, rather than be a decision taken by the Executive branch alone. As a second alternative, a body other than the Minister or Cabinet could be given the powers to confirm or cancel the detention order. I note that in Malaysia, under the recent amendments to the Prevention of Crimes Act, the Malaysian government has decided to give the power to detain not to any Minister but to a Board comprising of 5 persons.
Madam, the review process is a crucial safeguard. I hope the government will not close its mind on this matter but will do a serious assessment of how it can be improved.
Conclusion
To summarise, I am not opposing the extension of the Act for another five years, as I do not think the current climate is the right time to abolish it in the interests of public safety. However, I am grappling with the rationale and justification for detaining the suspects of soccer match fixing under CL instead of working towards trying them in court. Some clarity on this is necessary for us to know where this is going. I am aware that the review process for the four detainees is still ongoing, so if Minister cannot say too much now, he should reveal more after the review. I also urge the government to look at how it can make the process for review of detention more rigorous.