Debated in Parliament on 8 Jul 2014.
Order for Second Reading read.
Mdm Speaker, I beg to move, "That the Bill be now read a Second time."
Mdm Speaker, this Bill seeks to amend the Mutual Assistance in Criminal Matters Act (MACMA). The MACMA facilitates the provision and obtaining of international mutual legal assistance in criminal matters, and is an essential tool in Singapore's arsenal to combat transnational crime.
The MACMA was enacted 14 years ago against the backdrop of decreasing trade restrictions and rapid globalisation. There was and remains a need for effective international cooperation to guard against transnational crimes and criminal organisations that try to exploit the loopholes caused by national boundaries and differences between the enforcement jurisdictions of different countries. For instance, an individual hacking into a Singapore-based server from another part of the world may think that Singapore authorities will be unable to ascertain his identity because the Internet Service Provider possessing his user information is located outside of Singapore. The MACMA addresses these issues by creating a framework for cross-jurisdictional cooperation and legal assistance between States.
The MACMA sets out various forms of assistance that Singapore may request from a foreign country and vice versa. These forms of assistance range from arrangements for an individual to travel to a foreign country to give evidence – which is voluntary in nature – to assistance in search and seizure, which involves using a State's domestic enforcement powers.
The MACMA signals Singapore's commitment to combat crime on a global scale. This commitment is more relevant than ever today. With growing cross-border crime, the need for enhanced international criminal cooperation has also increased. Left unchecked, transnational crime will undermine the Rule of Law and global governance.
Mdm Speaker, the Ministry periodically reviews the MACMA to study how Singapore can be more facilitative as a mutual legal assistance partner and at the same time, to ensure that Singapore continues to be armed with effective tools to combat transnational crime. In 2006, the MACMA was amended to dispense with the requirement for a mutual legal
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assistance treaty before Singapore can render assistance to a foreign country's request when made appropriately. The legislative amendments tabled today represent further strides to enhance Singapore's mutual legal assistance framework.
The Bill introduces four changes.
First, it calibrates the conditions which must be fulfilled before mutual legal assistance can be rendered by removing the Dual Criminality requirement for selected types of assistance.
Second, it expands the types of offences in respect of which mutual legal assistance can be given or received under the MACMA by creating a standalone list of serious offences within the MACMA.
Third, it expands the scope of enforcement of foreign confiscation orders; and
Fourth, it aligns the MACMA with amendments made to the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Bill 2014.
I will now take the House through the main features of the Bill.
The first pertains to removing the Dual Criminality requirement for selected types of assistance. We have calibrated the conditions which must be fulfilled before mutual legal assistance is rendered. The current MACMA provisions impose a Dual Criminality requirement for all forms of mutual legal assistance. The proposed amendments remove the Dual Criminality requirement for those forms of mutual legal assistance which do not involve coercive forms of assistance. These are the types of assistance that neither attract penal consequences for non-compliance nor adversely affect the property rights of individuals. The Dual Criminality requirement will be retained for coercive forms of assistance.
Dual Criminality refers to a situation where the foreign offence involves conduct which, if it had occurred in Singapore, would have constituted a serious offence. If it concerns conduct that is not listed as a serious offence in Singapore, there will be no Dual Criminality requirement for such conduct.
The general rationale for the Dual Criminality requirement is that a State should not use its powers to promote aims that are at odds with that State's standards of acceptable behaviour and its view of what constitutes criminal conduct. It also protects individuals against the excessive exercise of power by one State in another sovereign State and this is one of the legal safeguards built into the MACMA. Under the existing MACMA, all foreign
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mutual legal assistance requests that do not satisfy the Dual Criminality requirement must automatically be rejected.
The international practice of the Dual Criminality requirement varies across States. Some States adopt an approach similar to Singapore's current regime while a few have dispensed with the requirement entirely. However, most leading jurisdictions, such as the United Kingdom, the United States and Canada, have moved towards a more calibrated application of the Dual Criminality requirement. In these States, the Dual Criminality requirement still applies but it is confined only to requests involving coercive forms of assistance, for example, search and seizure requests, or requests to confiscate assets. The requirement is removed for forms of assistance which do not involve the use of their enforcement powers.
The Ministry has studied the international trends and practices and we think that there is merit to this calibrated approach. For instance, if a person voluntarily consents to give evidence or provide assistance in a foreign court concerning a foreign offence even though it would not have constituted a serious offence in Singapore, that request can be considered and should not be automatically refused simply because it does not fulfil the Dual Criminality requirement. Singapore may not have any connection or interest in the case and there may be little reason for us to stand in the way of assisting in such requests. The Ministry has assessed that these forms of assistance no longer require Dual Criminality as a legal safeguard.
The Ministry will therefore not impose the Dual Criminality requirement for types of assistance that neither attract penal consequences for non-compliance nor adversely affect the property rights of individuals. This means that Singapore will be able to render assistance for foreign requests involving any foreign offence to:
(a) arrange the attendance of persons in the foreign state; or
(b) facilitate the custody of persons in transit through Singapore; or
(c) locate or identify persons; or
(d) assist in effecting the service of process.
The Dual Criminality requirement will continue to be maintained for the coercive forms of assistance under the MACMA. These are assistance in obtaining evidence, enforcement of foreign confiscation orders, and assistance in search and seizure.
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In addition, the Bill seeks to amend and clarify the application of the Dual Criminality requirement for coercive forms of assistance with respect to foreign tax evasion offences.
In respect of foreign requests for a court order to produce information or items, Dual Criminality will not apply if the act or omission underlying a tax evasion offence falls within the act or omission prescribed under the MACMA.
When Singapore designated tax evasion offences as money laundering predicate offences last year, the aim was to allow mutual legal assistance to be rendered in cases of wilful or fraudulent tax evasion. However, owing to the different types and names of taxes imposed in Singapore and overseas, there is some legal uncertainty about whether the dual criminality requirement would prevent Singapore from rendering assistance where there is clearly wilful or fraudulent tax evasion but the foreign tax evaded, for example, capital gains tax, is not a tax that is imposed in Singapore.
This amendment seeks to remove this uncertainty by expressly lifting the Dual Criminality requirement and making clear that Singapore can render assistance for foreign requests involving tax evasion offences, regardless of the type of tax evaded. This will help strengthen Singapore's ability to assist in bona fide cases of wilful or fraudulent tax evasion.
Dual Criminality will also no longer be required for the enforcement of foreign confiscation orders and for assistance in search and seizure orders in respect of foreign requests from jurisdictions that have Avoidance of Double Taxation Agreements (DTAs), Exchange of Information (EOI) arrangements or international tax compliance agreements with Singapore.
These changes demonstrate Singapore's commitment towards combating cross-border financial crimes and address any misperception that Singapore is a shelter for tax-illicit monies.
Second, the types of offences for which mutual legal assistance can be rendered under the MACMA will be expanded. A standalone list of offences will be introduced into the MACMA, and this list of offences will determine whether mutual legal assistance requests may be made by Singapore, or made to Singapore by a foreign country for a coercive form of assistance where the Dual Criminality requirement is applied. This will be done by amending the definitions of "drug trafficking offence" and "serious offence".
Under MACMA, as it currently stands, mutual legal assistance requests may be made or provided if the request concerns an offence that falls under two categories of offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act
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(CDSA). These are drug trafficking offences or serious offences as defined in the CDSA, which are generally money laundering offences. These CDSA Schedules also determine whether the Dual Criminality requirement is satisfied since the equivalent Singapore offence must be one that is listed under those two Schedules.
The present link between MACMA and the offences in the CDSA has existed since the MACMA was enacted in 2000. The CDSA lists serious offences, but generally excludes offences that are unlikely to be linked to money laundering. An example of a serious offence not covered by the CDSA would, for example, be the offence of causing death by a rash or negligent act.
The Bill will thus de-link from the CDSA the type of offences for which mutual legal assistance requests can be made or provided. It will create a standalone list of such offences within MACMA itself. This will allow offences which are not linked to money laundering, such as selected Road Traffic Act offences, to be added to the mutual legal assistance framework. All offences listed under the First and Second Schedules of the CDSA have been imported into the MACMA while some additional offences have been added to the MACMA Schedule of "serious offences".
Further, in order to ensure that all serious offences are covered by the MACMA, the Bill will introduce a "catch-all" provision whereby mutual legal assistance will be available for all Singapore offences carrying a maximum sentence of at least four years' imprisonment. This threshold is pegged to a similar level as that prescribed in the United Nations Convention Against Transnational Organised Crime, to which Singapore is party.
Both of these amendments will allow Singapore to provide and obtain international mutual legal assistance for a wider scope of serious offences.
The next set of amendments relate to instrumentalities for serious offences.
An instrumentality of an offence refers to the instrument or tool used in connection with the commission of an offence, for example, a car which is used to smuggle cigarettes into our borders.
Currently, Singapore can assist in the enforcement and satisfaction of a foreign confiscation order by confiscating instrumentalities relating to drug offences only. The Bill introduces an amendment to expand the scope of assistance to all serious offences and align the MACMA with the domestic confiscation order regime.
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Fourth, the Bill introduces amendments that were moved earlier by MHA for the CDSA that are equally applicable in the context of mutual legal assistance, such as extending the application of legal privilege to in-house counsel, amending the definition of a "financial institution", and removing the requirement for a certificate by a foreign authority to prove a foreign offence.
These amendments will enable Singapore to remain a responsible and effective member of the wider international cooperation network in the war against transnational crimes. Mdm Speaker, I beg to move.
Mdm Speaker, I support the Bill. Transnational crimes pose a unique problem. Since more than one country is involved in the planning, execution or impact of the crimes and house those who mastermind or execute them, individual countries often do not have the jurisdictional reach to effectively investigate and arrest criminals. Partnerships between countries are necessary. In this regard, a key tenet of Singapore's legal infrastructure in our fight against transnational crime is the Mutual Assistance in Criminal Matters Act (MACMA).
I support this Bill as it represents a step forward in international crime enforcement by significantly widening the scope for cooperation between Singapore and other countries.
One clear instance of this is the Bill's removal of the general requirement of dual criminality. Back in 2006, the MACMA provisions had been amended to remove the need for a Mutual Legal Assistance (MLA) treaty between Singapore and the foreign country as a pre-condition for legal assistance, so long there is an undertaking of reciprocity. Now, this Bill goes one step further. While section 20(1)(f) of the current MACMA imposes the requirement of dual criminality on every request by a foreign country for assistance in a criminal matter for coercive measures, clause 4 of this Bill deletes section 20(1)(f), and introduces the new section 20(3), which imposes the requirement for dual criminality only if the request relates to assistance in obtaining evidence, enforcement of confiscation orders, and assistance in search and seizures. Furthermore, the new sections 20(4) and (5) relax the requirement for dual criminality in the case of a request relating to foreign tax evasion, so that we can now give assistance in cases where the tax being evaded is not of a type imposed in Singapore.
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However, de facto reciprocity must continue to be a key tenet of this law. I would, therefore, like to ask the Senior Minister of State whether it is or will remain the Government's policy to exercise its discretion to offer assistance only to those countries which are likewise cooperative or receptive to our requests?
A second instance of this Bill's facilitation of international crime enforcement is evident in its removal of the requirement of a certificate when proving a foreign drug offence. This Bill removes the certificate requirement, allows for other forms of evidence to be adduced to prove the foreign drug offence. And of course, this is sensible.
Ultimately, this Bill heavily complements the amendments proposed in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) (Amendment) Bill, now act and goes towards further enhancing Singapore's global anti-money laundering and anti-terrorism financing initiatives.
I would, therefore, like to ask what steps the Ministry is taking to increase the network of countries we can cooperate with, so that those who commit crimes in our country will not be able to seek refuge elsewhere and, likewise, those who seek refuge here can be brought to justice.
Madam, I stand in support of this Bill. With the mutual legal assistance framework being strengthened, can I enquire a few clarifications? Do we have a list of legal representatives who can participate in this Act? Will they need strategic training, as well as an in-depth understanding of cross border, as well as global legal systems?
Secondly, once a request is received or put forth, how long does it take for approval and processing before the mutual assistance can be rendered in general?
Thirdly, do we have some regional understanding on this matter, for example, between ASEAN countries or do we have to rely on bilateral arrangements we have with each individual country.
Fourthly, Madam, in general, how does Singapore make a decision pertaining to a request? Do we consider if we have had similar assistance from that particular country before, that is, reciprocity, or have we ever encountered, or are likely to encounter, a case whereby a particular Country X has been unhelpful previously on a case and now we have to handle a case from that same country. Are we likely to decline a request if it is not in our
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interest to provide that assistance?
And finally, despite the expansion of coverage of the type of crimes and offences, what if there is a request for mutual assistance for one that is not on that new standalone expanded list? I would assume a case-by-case assessment would be done here and would apply but will there be other considerations as well? I support the Bill, Madam.
Mdm Speaker, I would like to thank the Members, Mr Hri Kumar and Assoc Prof Fatimah Lateef for their support of the Bill. They have raised a few questions which I will address in turn.
On the query raised by Assoc Prof Fatimah Lateef regarding the list of legal representatives who can participate in the Mutual Legal Assistance framework, such a list does not feature in this context. And perhaps I should explain how a mutual legal assistance request in Singapore is processed.
Mutual legal assistance is the process by which States seek and provide formal assistance in criminal matters at the government-to-government level for the purposes of investigation and judicial proceedings. In this regard, the mutual legal assistance requests are usually sent, received and processed by a central authority within the government.
In Singapore, the Attorney-General's Chambers is the central authority handling mutual legal assistance requests. If the Attorney-General's Chambers assesses that the request meets the legal requirements under MACMA, it will send a notice of the request to the Minister for Law. The Minister will assess each request before instructing the Attorney-General on the action to be taken.
If we are able to assist in a foreign request, our relevant agencies will be involved in providing the assistance sought. Examples of assistance include obtaining evidence for use in foreign court proceedings, arranging for the attendance of a person in the foreign state, or giving effect to a foreign court order to confiscate assets in Singapore.
Assoc Prof Fatimah Lateef also asked about the training and time required to process requests for mutual legal assistance. I would like to assure the Member that our agencies are adequately trained to handle the mutual legal assistance requests in a timely fashion.
Regarding the time taken to process and approve a foreign request made to Singapore, we act on each request as expeditiously as possible and prioritise urgent requests with time
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sensitivities. However, the actual time taken depends on several factors, such as the complexity of the request and the nature of the request. The time taken for the requesting State to respond to our clarifications is also an important factor and this can sometimes cause significant delays.
As for how Singapore decides whether to accede to a request for mutual legal assistance, our approach has always been to be as facilitative as possible within the framework of our laws. In this regard, MACMA sets out the legal conditions that need to be met before assistance can be provided. Each request received will be assessed based on its circumstances and merits.
I do not propose to detail all these conditions, but will cite some to illustrate the point. For example, we would decline to assist if a request is contrary to our public interest or if it could prejudice a criminal matter in Singapore. We may also decline a request if the assistance sought may prejudice the safety of any person or if it would impose an excessive burden on Singapore's resources. The Minister for Law can also decide not to assist in a request that would be against the interests of the sovereignty, security and public order of Singapore to do so.
Both Members raised questions relating to our regional and international networks on mutual legal assistance.
At the outset, I would reiterate the point made by Mr Hri Kumar, that under MACMA, there is no need for a treaty or arrangement to be in place before mutual legal assistance can be rendered. So long as an undertaking of reciprocity is provided by the foreign requesting state, mutual legal assistance can be provided even in the absence of a treaty.
Mr Hri Kumar had asked whether it remains our policy to offer assistance only to countries that reciprocate. We will continue to require from requesting States an undertaking of reciprocity in that it will comply with a future request from us for similar assistance. As to Assoc Prof Fatimah Lateef's question on handling a request from a country which had previously been unhelpful to our request, we have not come across such a situation thus far.
In terms of regional networks, at the ASEAN level, there is a Regional Treaty on Mutual Legal Assistance in Criminal Matters which all ASEAN Member States are party to. Singapore was the first to ratify this agreement in 2005. Where a request is received pursuant to this ASEAN agreement and the legal requirements are met, we would provide the assistance sought.
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Outside of the MACMA framework for formal assistance, assistance can also be sought by foreign states at a more informal level, such as between financial intelligence units in the early stages of an investigation.
Singapore has taken steps to boost our international network in cooperation in legal and law enforcement issues to combat transnational crime. We are party to various treaties and conventions related to crime and countering terrorism, such as the UN Convention Against Transnational Organised Crime and the UN Convention for the Suppression of the Financing of Terrorism. Singapore is also an active member of various international bodies, such as the INTERPOL.
These conventions and international bodies provide platforms for cooperation between states. Over the years, our agencies have built up a broad network with many countries to share expertise, render technical assistance, exchange information and collaborate in operational exercises.
Finally, our enhanced mutual legal assistance regime under the Bill will complement and add to our continuing efforts to contribute to the global fight against international crime.
I believe Assoc Prof Fatimah Lateef had an additional question about assistance for offences not on the list. The answer is that we would have to look at MACMA to see which are the offences that MACMA allows us to provide mutual legal assistance for. So long as it falls within the ambit of MACMA, we will provide the assistance. If it falls outside the ambit of MACMA, we will not be able to do so.
*Question put, and agreed to.*
*Bill accordingly read a Second time and committed to a Committee of the whole House.*
*The House immediately resolved itself into a Committee on the Bill. – [Ms Indranee Rajah].*
*Bill considered in Committee; reported without amendment; read a Third time and passed.*
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