Criminal Law (Temporary Provisions) (Amendment) Bill

The first point is that I kept insisting that there is no intent to "oust". I made two points: first, as a matter of law, this clause cannot oust judicial review and I buttress it by saying that, go ask any lawyer.

Second, and because I have been advised so, and I know so, and I want to be very open about it, I am prepared to stand up here and say so, as the Law Minister and Home Affairs Minister, that there is no intention to "oust", and this clause does not oust judicial review. There are tonnes of cases that will say that.

It is not binary, therefore, why amend? Why not just stay on with the current situation?

But I am making an amendment on something else. On the Minister's decision being final, that relates to non-appealability and not getting the Courts or anyone else to substitute their views for the Minister's views. Is that the current position? Yes, it is. There is a difference between judicial review and a normal trial process or an appeal from the Minister. The two are very different. So, to say, "I am worried that this is going to oust judicial review, so why are we making that amendment, I am worried that that amendment will oust judicial review." There has got to be a connection between the two.

What is the connection? I am dealing with the Minister's decision on the facts. Let me give an example. Go back to my example.

I sign an order detaining a 12-year-old who stole a can of beer, and say I am satisfied that this is necessary for the safety and preservation of good order, public order and safety and security. You think I can face any Court in Singapore and justify that? You think I can rely on the finality clause? The finality clause deals with something else. It deals with the decision on the facts. A 12-year-old, did they do these things? Judicial review is on illegality, irrationality, procedural irregularity. It does not save me from those. So, to say that "I am worried that these consequences might develop and, therefore, please do not amend", it does not seem to me a very logical argument.

Second, the Schedule. I think I spent a fair bit of time explaining. At present, there is one requirement. We require what is set out in section 30. We got to satisfy the conditions. Now, there are two requirements. We got to satisfy the conditions of section 30 and its conjunctive. You got to show that it is also listed in the Fourth Schedule.

I think whether you are a lawyer or not a lawyer, Members can understand that does not dilute the current position. It does not reduce. And I have explained why I am doing it. I feel it is good to set it out clearly. So, to come back and say why do you want to amend, why not leave the current situation? We think that this will improve the position, amongst others, of the detainees. Everyone is clear these are the offences, but you still got to satisfy section 30. So, come back to this example of OCA. Yes, OCA has many provisions. Some of them are external focus. But the Minister has to be satisfied. If he wants to charge somebody or he wants to proceed to investigate and the Police wants to proceed to investigate, and then the Attorney-General's Chambers (AGC) wants to charge, they have got to satisfy the elements set out in the OCA. Supposing we want to use the CLTPA, then you do not have to go and look at the elements of the OCA as such, but you got to show that section 30 is satisfied, that, in some way, it impacts on the good order, safety, public security in Singapore. That is clear. That is commonsense actually.

Mr Speaker, I would like to ask the Minister, on the finality clause, does it not crystalise the position in law today in Dan Tan such that the Courts will be closed to consider new heads of judicial review in the future, particularly if the high watermark of not displacing the Executive's decision with their own, requires some nuance. Does the finality clause not close that off for the Courts?

Again, assuming you accept my point that judicial review, as set out in Dan Tan's case, is not impacted by the finality clause, I have tried to explain my logic a number of times.

The finality clause deals with something else, which is, the grounds on which the Minister makes the order, the facts and evidentiary bases which the Court of Appeal has said it would not scrutinise. What it does is, the legislation makes clear that the Minister's decision on the facts should not be appealed from. That is what it does. So, it makes it clear that you cannot go, for example, to the Courts and say, "I disagree with the Minister's decision on the facts for these reasons and I am effectively appealing and I am asking you to substitute your views for that of the Minister". As to whether our Courts would go down the route eventually of saying, we will substitute our views for any views the Executive may have and we will disregard all existing law as to whether they could go down that route, I would be very surprised if they go down that route. And if they did, I think the government of the day will have a duty to come back to Parliament and talk to Members and say, is this a way we want the structure between the Courts, Parliament and the Executive? These are things for discussions for another day.

But so far, as you will read in the judgments, due respect is given by the Courts for the Executive and Parliament, and Parliament gives due respect for the Courts.

I thank the Minister for that. I do understand what the Minister is saying. But the point is: in the case of judicial review, because the common law continually develops, is this the appropriate time for us to legislatively say, "Okay, this is where we are closing off certain matters in so far as the facts of the GD are concerned"? If the judiciary moves judicial review along, should we not then come to Parliament, with the view, as the Minister suggested, to change the law even?

I think the question to ask is, are we comfortable with the current position, there is a right balance between Parliament and the Courts? The Minister makes a decision, there is a series of processes, Advisory Committee, the Supreme Court has the powers of judicial review over the Minister's decision. The framework of that, the appropriate balance, is today set out partly in the legislation, partly by decision of the Court of Appeal and previous decisions.

Are we comfortable with that? We are. That is why we are putting it in law. If we are not comfortable with that, I will be standing here, looking you in the eye, and saying we need to change it, as this Parliament did for the Internal Security Act.

Thank you, Minister. The Minister went on to say that I made the, if I remember correctly, "radical" suggestion that the Courts, the judges should replace the Advisory Committee. I think the Minister is mistaken. Actually, what I did as Members of the House may recall, is that I quoted from the Minister's speech in 1989, and if you were to bear with me, can I just read a small chunk of it here and it is very clear. And I will re-ask that question to the Minister again.

Let me quote Mr Shanmugam in 1989: "At present, the CLTPA is such that the Minister decides on the detention. The Advisory Committee advises the President and the President has ultimate powers. I would suggest that the Minister still decide on the detention, but perhaps powers of review be given to the Courts. The reason I say that is if the Minister takes a reasonable view on the facts that a certain person poses a danger, then, presumably, the Act can be worded such that the Courts can look at the facts, the reasons for the Minister's decision, and then come down on the side of the Minister. If the Courts disagree, if the Judges disagree, then again the Minister's decision would be overturned. So, remove it from the President to the Executive and give the powers to the Courts."

So, this is not my suggestion. I do not wish to take the credit. Actually, let me ask the question again. I asked the Minister because he brought up to the House that he has asked Judges to chair the Advisory Committee. And I recalled that the Minister had suggested this in 1989. So, I wanted to ask the Minister why did he stop short of not going towards what he had suggested in 1989, and instead he has asked the Judges to sit as chair of the Advisory Committee?

I was wondering which MP would refer to me and my speeches in 1989 and 1994. Thank you for that. But before we proceed, can I read this paragraph from the judgment of the Court of Appeal?

Paragraph 99: "Where the Executive is acting within the ambit of the powers that have been vested in it by Parliament, then the Court's concern is not with whether it agrees with the way in which the powers have been exercised. To suggest otherwise is to displace the choice that has been made by Parliament as to which branch of the Government is to be entrusted with the powers in question. The Court's role in judicial review which engages the manner in which the power is exercised will then be limited to such things as illegality, irrationality, procedural impropriety. This perspective is premised on a proper understanding of the role of the respective branches of Government, especially in this context of the Executive and the Judiciary in a democracy where the Constitution reigns supreme."

There are many other points but I think that encapsulates what I have been trying to say. I do not see how that is different from everything I have said. They have the power of judicial review on those grounds. But where it is within the province of the Executive, they will not intervene. And, as you see from other passages, they point out the decision on the facts it is for the Minister to make. That is why clause 3 is worded the way it is, and which is why I was somewhat confused with the arguments on judicial review from both sides – some of the PAP Members as well.

But I think it is good that we spoke about this because it helped me understand what the concerns were and helped me deal with it. To me, it was very clear. I was coming to deal with one set of issues and suddenly a different set of questions were raised.

Now, Mr Dennis Tan, I think we were speaking at cross purposes. In 1994, if I am not wrong, I suggested that the Advisory Committees have Judges but that is different from having a quasi-appeal process to the Judiciary which is in 1989. So, you were referring to what I said in 1989. I thought you were referring to what I said in 1994. What we are doing now, in terms of having Judges sit in the Advisory Committee, is similar to what I suggested in 1994. So, I misunderstood you because I thought you were referring to my suggestion today.

Now, I think the Member asked the broader question. The basic question is that I have said all these in 1989 when I was 30 years old. Why are we not going down that path today? One can give a short answer, which is, I am 30 years older today. I believe in the essence of what I said then – in criminal cases, the usual process is to be tried in Court and that the ISA and the CLTPA formed exceptions for the usual process and, really, it is best if we do not have such exceptions or restrict those exceptions. That is my view.

Over the years, I also realised another point that was not very central to my thinking, either in 1989 or 1994, but a bit of time spent in practice and on the ground brought home the reality of tradeoffs. If you are not dealing with people on the ground, dealing with day-to-day issues, one can get somewhat theoretical about these things. The law has got to work in a way where it delivers not just grand pronouncements, but actual results. The question of tradeoffs was not something I factored very strongly in my thinking in 1989 and 1994.

I suspect that for a lot of people who approached these pieces of legislation, the assumption is that we see Singapore as it is today, this is how it will be even if you make all these changes. Supposing we remove the CLTPA, nothing will happen. I am not saying that is your position, Mr Dennis Tan, but I am saying that, often, some of the people who approach these pieces of legislation approach it that way. I do not think you do and I do not think your fellow Members do because you have, in the past, supported the CLTPA. But I am explaining my position, the question of tradeoffs. The assumption is that nothing will change in the real world and you can change around with the CLTPA.

But in the real world, you have gangsters. I have read out to Members what happened in Sydney. I am sure that is not isolated. I am sure that is the lived reality on a very much regular basis for a lot of people around cities around the world. They threaten witnesses. The kingpins are quite untouchable by the normal process. So, question – and I make it plain in my first speech – you cannot say one route is right, one route wrong, but you can say there are these tradeoffs, are you willing to accept the tradeoffs?

The current situation of law and order that we have is based on the current legal framework and judicial and criminal legal system that we have. And if you remove the CLTPA or you tinker with it very substantially, you will get, I think, some tradeoffs. In terms of increased levels of criminal activity, whether they have increased, whether they will increase and how much they will increase by, that is something that one will only find out when you remove the legislation. But UML is a good example – you use it effectively, you use other legislation. I told Members now we are picking up two persons under CLTPA per year, compared with 20 or so before 2011.

The current structure is also a tradeoff in that society then accepts that there are some risks in vesting this power in the Executive, which is what we try to reduce, restrain by the safeguards. I have, for some time now, come to accept that the path we have taken is probably better for Singapore. But at the same time, I did feel that the Advisory Committees could be strengthened and they could be strengthened in the way I suggested in 1994, not in 1989, but 1994. That is why I spoke with the Chief Justice, whether he would be happy to agree to have three of his sitting Judges sit on the Advisory Committee, chair the Advisory Committees, and he agreed. We both felt it would be good for the process. So, from March this year, that will happen.

Mr Speaker, I thank the Minister for his very detailed responses to us. Can I just ask two points of clarification which I think are important for both the Hansard and my understanding?

First, it is a question I raised earlier in my speech but I just wanted to say it again. Where there is a judicial review proceeding under the CLTPA, will the written statement of the grounds upon which the Minister made the order – whether it is for supervision or for detention, and which is then referred to the Advisory Committee – as well as the Advisory Committee's report, be shared with the judicial review Court? I ask as this will be very useful for their review and I note that, in the Dan Tan case, it was not made available to the Court of Appeal at that point.

My second point of clarification is: many of us know that the CLTPA is relevant and necessary, Mr Speaker, but why not make the amendments that are currently envisaged later when the CLTPA is typically and periodically reviewed nearer its expiry date?

Well, our sense is this: the Advisory Committee reports, in a way, to the President and you can say the Executive branch, but you know the President, of course, stands a little apart from the Executive branch. Of course, the Minister also gets to see it. We felt that the discussions, the thinking of the Advisory Committee should be full and frank, and they should proceed as they wish. If people believe that these things can later on be put up in Court and challenged, I think that affects the quality of the discussions and it affects the way in which people might write out the report as well.

It is best that we keep the Advisory Committee as a process, put in good people, now put in Judges to chair them, let them look at it. The whole process is one where they can call for investigation officers (IOs) and if the IOs believe that this might ultimately end up in Court, whatever they say to the Advisory Committee, even with the best will in the world, everyone's behaviour might change.

So, you have that process. At the same time, in Court, I have said what the tests are. The Courts finally have the power to subpoena documents, to ask for documents. They use it judiciously. For example, if they believe that a certain document was necessary, it is within their power to tell the AGC to produce it. And to think that further, if we believe that the Courts are doing things in such a way that affects the fundamental structure of the CLTPA, then the government of the day will have to decide: is this acceptable, can we live with it, or do we have to come to Parliament and say we have to change that? But those are different discussions.

Whatever is necessary for the judicial review is put before the Courts. And the Courts, as I have said, I do not believe they felt constrained, but they can ask both sides – counsel and the AGC.

Now, why not make it later? I cannot give Members a different answer from what I have already said to Mr Murali Pillai and Ms Sylvia Lim. We have been thinking about this for a while. Some of these, for example, the changes to the supervising order, are really something that is quite close to my thinking. I have directed Prisons and CNB Drug Rehabilitation Centre (DRC) to go much further on the rehabilitation line. Even though we take a very tough line on drugs, my thinking is, in terms of the first-timers, the second-timers, is there a way of looking at them not just as criminals, but in way that they are impacted by this and to rehabilitate them? How can we get them back in the society? So, we are putting in a lot of resources into the front-end in terms of preventing them from getting into the system, and then rehabilitating them, working with them, spending a lot of money on that in terms of trying to rehabilitate them when they are in prison, and then handholding them when they are out. This is the general penal system.

So, likewise, for the supervisees. If you do not give them close attention – now, today, you make them report on a regular basis, that alone is not going to prevent them from getting back into bad company, going back into gangsterism. You need to do something more. So, my directions to the Ministry have been: can we do something more? Can we tailor the changes such that the Police can impose certain conditions? I can imagine you have to spend some time doing this; you have to come for counselling; you have to do these things; basically, it is to try and get you to break the habit.

So, that was the significant part of the change even though it has not been discussed today. But by moving it into the Schedule, it allows us to look at every individual. Today, when detainees come in, we actually do a risk analysis. Are you likely to be high-risk, medium-risk or low-risk? And if you are low-risk, can we do all these things to make sure that you do not become a permanent feature of the system? So, likewise, we want to do that with the PSO supervisees. We want to structure it such that we have the power to impose those sorts of tailored conditions. And in my mind, the sooner the better we move in line with everything else. So, we are making some other amendments and we put it all together. And because we are coming to Parliament for the amendments, we said, "Okay, let us ask for another five years at the same time."

It is this. Even in 1989 and 1994, I did not conflate the two because, conceptually, they are very different. Which is why in answer to the Member's points earlier, I said what he is suggesting is quite radical – radical in the sense that, "Look, it is either an Executive process or a judicial process."

So, we have to apply our minds. Is it something where you want the Minister to decide? Or is it something that you want the Courts to decide? If it goes to the Courts, you know the process – it has got to be through evidence; it has got to be through witnesses. When the Court sits in review, in open, then the other side will have the right to look at all of the testimony. You have got to give it to them. That undercuts the entire basis of the CLTPA because many of the witnesses do not want their evidence to come out. So, one has to be conceptually clear which route do we want.

By 1994, I came to the conclusion that if you agree to the CLTPA, then you would have to agree to a process where the information and the witnesses are protected. That is fundamental. Which is why then you have this Advisory Committee. They can receive evidence; they can choose to share some of it with the defence counsel; they may choose not to share some of it with the defence counsel; they have to look carefully to see what evidence they want; and they have got to be very careful that they do not expose some of the witnesses and their families to potential harm. You cannot do any of that in a normal Court process which is why I said that the Member's suggestion really means we do away with the CLTPA. You cannot have the cake and eat it. It is either one or the other, and you are to decide which one.

Mr Speaker, I am quite confused with all this explanation. It seems to me that the Minister is saying that the amendment before the House has no effect on the current legislation as it is. If there is no effect, then why amend something that is unnecessary?