Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Criminal Law (Temporary Provisions) Amendment Bill [Bill No. 5/2018]
Introduction
Sir, the title of the Criminal Law (Temporary Provisions) (Amendment) Bill belies the fact that the Act is far from temporary – Parliament has extended the CLTPA 13 times since it was first enacted in 1955 for 5 year terms at a time.
The need to extend the CLTPA every five years is an important safeguard, which ensures Parliamentary scrutiny to ensure that there is a continuing need for the Executive to exercise the exceptional powers under the CLTPA.
It bears reminding that the power to detain without trial under the CLTPA is a significant exception to the fundamental rule of law principle enshrined under Article 9 of our Constitution that no person should be deprived of liberty without a fair trial.
Indeed, during the Second Reading debate in 2013 when the Act was last renewed, Minister Iswaran provided the guarantee that “the Government will always make a rigorous case based on a thorough assessment of all circumstances and the criminal landscape each time we seek Parliament’s approval to extend the CLTPA”.
While I understand the continuing public order and security pressures that justify the exercise of these powers, we should never forget the extraordinary nature of the CLTPA and closely examine the grounds for the Act every time it comes up for renewal.
My Facebook post seeking public feedback on the Bill has generated a fair bit of comments. These amendments clearly concern many Singaporeans and I would like to raise 4 points for clarification, many of which come directly from members of the public.
Effect on judicial review
Can the Minister clarify the intended effect of section 30(2) on the judiciary’s ability to review detention decisions? In the case of Tan Seet Eng v AG, the Court of Appeal had interpreted Section 30 to mean that the Court will take an objective approach in reviewing the exercise of Executive discretion based on the usual grounds of judicial review – illegality, irrationality, and procedural impropriety. Is the proposed section 30(2) intended to exclude all or any of these grounds of review?
If so, can the Minister elaborate on the need to take such an extensive approach in ousting the jurisdiction of the court as has been done for the Internal Security Act?
This is significant as already the CLTPA puts individuals detained under the Act beyond judicial oversight, save the limited grounds for judicial review.
Edward Eng has highlighted to me over Facebook the worry that this amendment has the effect of granting the Minister powers that do not require any justification on his part.
Aakash Sardana raised a related point that having a list of offences may reduce the pressure on the Executive to explain and justify each decision. The Minister may simply be tempted to point at the list of offences as the basis for the decision.
Can the Minister thus provide assurance that the finality of the Minister’s decision and the listing of offences under Schedule Four will not dilute the requirement under Section 31(1) to provide the full grounds of detention in a written statement?
While there are multiple safeguards in place in addition to the Act’s sunset provision, such as review of new and existing cases by advisory committees and the need to seek the Attorney-General’s consent to issue detention orders, some of the feedback I have received from the public is that that these safeguards are not sufficient substitute for independent court oversight. As such I hope the Minister can clarify the effect and need for such an amendment to assuage any concerns.
Criminal Law Advisory Committee
Next, can the Minister provide information on the number of cases over the past five years in which the Advisory Committees made a recommendation not to detain but this recommendation was not accepted by the Minister?
If this has happened several times, my concern is that the objective of an independent advisory committee is undermined if a significant number of recommendations not to detain are ignored.
Why might the Minister decide against adopting recommendations of the Committee which would have made its recommendation after scrutinising the investigations and documentary evidence, hearing the detainee present their case, and examining the detainee, investigating officers and witnesses? Can the Minister provide some examples as to why a recommendation is not accepted?
Also, where its recommendations are not accepted, can the Minister consider providing reasons for the decision?
Offences covered by CLTPA
Another question raised is why there is a need for the CLTPA to cover the offences under Schedule Four when these are already dealt with under their respective legislations.
During the last renewal of the CLTPA, Minister Iswaran had explained that the CLTPA is intended to complement the other legislation like the Organised Crime Act and Misuse of Drugs Act by addressing situations where it is not possible to prosecute persons in Court because witnesses are fearful or unwilling to testify.
One suggestion put to me is whether the other legislation can be amended to address the difficulty in securing witness testimony in open court. Has the Ministry studied other solutions for addressing this problem, which will lessen the need to rely on the powers under the CLTPA?
Rationale for moving obligations and restrictions on a Criminal Law Police Supervisee into subsidiary legislation
Next, the current Section 33 and 34 set out the restrictions on persons subject to a Police Supervision Order. The Bill amendments will have the effect of moving these restrictions into subsidiary legislation.
Many of these restrictions involve significant limitations on an individual’s personal liberty and freedom of movement. These include restrictions on place of residence, reporting requirements, restrictions on leaving Singapore, and curfew requirements.
The rationale provided is that this provides the Minister more flexibility to impose obligations and restrictions on CLPS. Given how intrusive some of these measures may be, it would be more desirable for these restrictions to remain within the principal Act where it can be subject to legislative scrutiny.
Can the Minister elaborate on the circumstances that have prompted the move of these restrictions into subsidiary legislation? Are there specific situations in which these powers have proven to be inadequate in providing supervision and what are some examples of further powers that may additionally be needed?
Extending police powers to CNB officers
Lastly, the new section 47(5A) will extend police powers to investigate an arrestable offence under section 33(3) to CNB officers. As I raised during the Second Reading of the Immigration (Amendment) Bill last month, extending police powers to ICA officers and now CNB officers are expansion of executive powers that should always be done cautiously.
Can the Minister clarify if these amendments were prompted by challenges faced by the police in responding adequately to Section 33(3) offences?
Conclusion
Sir, the wide scope of the Act, the provisions which can be generously interpreted, and the sufficiency of checks is causing some public concern.
I note with appreciation the Government’s repeated assertions that the powers under the Act will be exercised judiciously.
In the spirit of “public safety, peace and good order”, I stand in support of this Bill but I urge the Government to exercise its powers under the CLTPA with great restraint, to provide full grounds for detentions, to take into account recommendations of the Advisory Committees, and to also provide reasons when recommendations are not accepted.