Criminal Law (Temporary Provisions) (Amendment) Bill

Order for Second Reading read.

12.15 pm

The Minister for Home Affairs (Mr K Shanmugam): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The Criminal Law (Temporary Provisions) Act (CLTPA) was last extended in 2014. As Members know, it will lapse after five years unless extended. Let me, first, give some examples of how CLTPA has been used, before I go into the specific amendments.

In 2017, CLTPA was used to cripple two gangs operating in Singapore. The first comprised mainly young Indian gang members, most of them in their teens to the 20s, led by a headman in his 30s. They carried out armed attacks against rival gang members. They also attacked a fellow gang member as punishment for leaving the gang. A member wanted to leave. They ambushed him. At least 10 of them assaulted him. Then, the headman called up all the others and said, "If any of you dare to leave the gang, the same thing will happen to you. You will be attacked as well." The Police got on to the case. The members did not want to testify against the headman and CLTPA was used. They were prepared to give evidence; they were prepared to testify but they did not want to do so in public. They feared as to what would happen to them.

The second gang comprised Chinese males in their mid-20s to 30s. Many of them had antecedents for very serious criminal offences. They attacked others, used weapons to settle their disputes. They attacked innocent club patrons, including women. The attacks were quite brazen. They also openly threatened club staff.

Again, in both cases, the victims were unwilling or unable to identify the attackers. The gang members were prepared to give evidence but not in Court, for fear of reprisals. And really, without CLTPA, it would have been difficult to deal with the gangsters. So, that is, if you look at gangsters.

We also used the CLTPA again in the context of drugs. The Central Narcotics Bureau (CNB) uses it, and many drug trafficking syndicates have been crippled using CLTPA. Often, because they fear attacks on them and their families, the couriers will not want or refuse to testify in Court. And if we let that situation develop, it will affect our ability to deal with the leaders of the drug syndicates.

So, the use of CLTPA has helped us keep the drug situation under control. But, and I have given instructions on this, the approach has to be that, wherever we can, we must use the criminal justice system and not CLTPA. And that is the approach that is taken.

In fact, if Members look at the Detention Orders (DOs) that are issued under CLTPA against drug traffickers, in 1998, there were 192 such DOs. Last year, none. Zero. Sir, with your permission, can I put up the slides? I will just show two slides to Members.

Mr Speaker: Yes, please. [Slides were shown to hon Members.]

Mr K Shanmugam: The first one is on drugs. It is a very simple picture. But we want to retain the CLTPA as a tool of final resort, if necessary. It is useful to give Members a picture of the total number of detainees, not just for drugs but the total number.

In 2010, seven years ago, the number was 317. Members will see from the chart, it is now just about 103. Again, the approach is, where we can, we move to the criminal justice system and use CLTPA as sparingly as possible.

I have to tell the House, while the drug situation is under control, the challenges are significant and they remain. I have spoken at length over the last few years about drugs, the issues in the region, in the world and in Singapore. If you look at the World Drug Report, for this region, if you look at the sources of methamphetamine in East Asia and Southeast Asia in 2015, East Asia and Southeast Asia were amongst the highest globally among regions and we have achieved an unwelcome record in that we have overtaken North America for the first time as a source.

Southeast Asia, together with East Asia, is also the second-highest source of opium. The seizures of heroin and morphine related to the production of opium in Southeast Asia grew by nearly 90% in the five years between 2010 and 2015. We turn to ketamine. The seizure of ketamine, if you look at what was seized in the world and what proportion was seized in this region, 97% of all ketamine seized in the world was from this region in 2015. So, that is the nature of the problem that we face. I have shared with Members before that 50 million people passed through our airports. Another 150 million passed through our checkpoints. We have to be very, very serious about the drug situation. So, the Misuse of Drugs Act is very effective. But we have this CLTPA as a backup.

The third situation that I would share with Members is the unlicensed moneylenders (UML). CLTPA has also been used against persons involved in loansharking activities. We have been clear about that in this House. The Moneylenders Act was amended in 2010. It gave the Police broader powers to tackle the UML situation.

We attack the UML situation from different aspects and that has resulted in, again, a drop in the number of DOs issued for UML. If Members look at 2004 to 2010, on average, during that seven-year period, we issued about 20 DOs per year for UML. If Members look at 2011 to 2017, that has dropped to about two per year. Again, we have used the Court processes to prosecute UML offenders. But again, there will be cases where the runners will refuse to testify against the kingpins. The towkays, those higher up in the organisation, they operate behind the scenes, they do not have direct dealings with the debtors.

In 2015, for example, the Police arrested the mastermind of a loansharking syndicate. Many of the syndicate members were also arrested. The main operators were based in Malaysia and Thailand. They do so to avoid arrest and detection. The lowest tier – the harassers, runners and bank account holders – they operate out of Singapore out of necessity.

That syndicate alone was responsible for more than 600 cases of harassment since 2006. Members of Parliament (MPs) will know this; residents come to you. These people who harass would set fire to the residents' doors, they lock them up – serious safety issues; they splash paint, they break flowerpots, they scribble graffiti and, of course, they deliver "hell notes" as well. The whole idea is to frighten the debtor or whoever is in the house and, sometimes, it is somebody else who have moved in, and they frighten everyone around, innocent people as well. Again, the syndicate members were unwilling to testify against the leader and other more senior members.

Fourth, we also use the CLTPA sometimes to detain members of syndicates. There was a case: global match-fixing syndicate. The head made it known to his members that he would kill or harm any person who betrayed him and the syndicate. One person was, in fact, attacked on his orders. The syndicate members were quite unwilling to testify in Court against him. But his criminal activities were dangerous, detrimental to our public safety, peace and good order. So, we used the CLTPA.

Unlike other countries, our physical size, smallness, also makes it difficult for us to relocate witnesses in such a way as to assure them and their families of their physical safety. In bigger countries you can do that. So, given our local circumstances, our law enforcement agencies will not be able to totally satisfy witnesses that their concerns will not bear out.

That is a brief summary of the types of situations where we have used the CLTPA. Let me now take the House through the proposed amendments.

The Bill provides for the Minister to detain any person for a period not exceeding 12 months or place the person under a Police Supervision Order (PSO) for up to three years – we can it DOs and PSOs. This can be done if the Minister is satisfied that the person has been associated with activities of a criminal nature and it is necessary that the person be detained in the interest of public safety, peace and good order.

The Court of Appeal accepted, in the Dan Tan case, and I quote, "section 30 of the CLTPA is similar to sections 8(1) and 10 of the Internal Security Act (ISA) in that power has been given to the Minister, to make the decision as to whether the detention would be in the interest of public safety, peace and good order."

The Court of Appeal also said the phrase, I quote, "persons associated with activities of a criminal nature" is wider than persons who had committed a crime. So, the current approach gives a degree of latitude to the Minister on what activities could be the subject of a DO.

I have thought further about this. Should we continue to leave it as it is? Or would it be better to list the type of criminal activities in a Schedule to the Act? I have decided that we should actually just list it. That gives more clarity to the public and everyone on which types of activities could be the subject of a DO. So, clause 3 states that the Bill applies to "activities of a criminal nature" that will be specified in a new Fourth Schedule. Clause 8 of the Bill inserts this Fourth Schedule. The activities that are currently proposed to be listed have been either activities which have been previously dealt with under the Act or previously been mentioned in Parliament as being within the scope of the Act. Activities relating to participation in or facilitation of activities for Organised Criminal Groups are also included.

The new Fourth Schedule will also set out the powers of the Minister in respect of DOs and PSOs. It will list the types of criminal activity in relation to which the Minister can make DOs and PSOs under section 30 of the Bill. But, of course, section 30 sets out the fundamental requirements. In exercising the power, the Minister will thus have to be satisfied, which is the current position, that the facts satisfy the criteria set out in section 30. That is still necessary. In addition, it has to be criminal activities that are listed in the Schedule.

Let me now deal with clause 3. Clause 3 of the Bill inserts a new section 30(2) which states that every decision of the Minister on a matter under section 30(1) is final. There seems to be some misunderstanding on the effect of this proposed clause. There have been suggestions that this legislatively overrules the grounds for judicial review stated in Dan Tan. That is not the case. Let me make that clear, let me explain. Anyone who knows the law will know that that cannot be the case.

This Bill allows for a DO or PSO on the Minister's orders, and it sets out the grounds and processes for making such an order. It sets out the rights of the detainee and the supervisee, including the right to have his detention or PSO reviewed or considered by an Advisory Committee.

The Minister has to be satisfied that the grounds for DO or PSO exist. The application of the facts to the relevant orders, and whether the order should be made under the CLTPA, have always been for the Minister to decide. The Court of Appeal in Dan Tan pointed that out, accepted that. It said that Parliament may decide to entrust the power and the responsibility to make a decision to a particular decision-maker and, in the case of CLTPA, that is the Minister for Home Affairs.

The Courts are not to substitute their views of the facts or engage in the exercise of scrutinising the evidential basis of detention. As I have said, that has always been the position under the CLTPA and accepted to be so by our Courts. Clause 3 sets that position out.

Judicial review is a different matter. It will be available in respect of CLTPA on the traditional, well-established grounds – illegality, irrationality and procedural irregularity. Again, these classic principles for judicial review have been set out in case law and have been applied for many years. My views on the applicability of judicial review are restricted to CLTPA. I am not proposing here to make general pronouncements on the applicability of judicial review to other legislation because different pieces of legislation have different wordings. My views and comments are directed towards the current Bill and the Act.

Clause 3 does not seek to affect the right of judicial review on the three well-established grounds Even if I did not say all these, it cannot, anyway. Anybody who knows the law will know that. These principles were accepted in the Dan Tan case.

So, let me summarise. The Court of Appeal accepted that under the Act, the Minister had the power and the responsibility to make decisions as to what the facts were, apply those facts to the relevant rules and considerations and exercise his discretion consequently. The Court of Appeal also said that the scheme of the Act is such that the evidentiary basis for the detention is not scrutinised by the Courts.

Third, as long as the detention is within the ambit of the legislation, the Court of Appeal accepted that the power to determine the factual basis for detention, as well as whether this is warranted in the circumstances, lay with the Executive. However, the Courts retain the power to review the Minister's decisions under the Act based on the classic judicial review principles, and I have said what they are, the three grounds. That continues to be the position; it is unchanged. So, it crystallises the position as it stands now.

The third objective of these amendments is to set out in subsidiary legislation the obligations on a person subject to Police supervision. This is currently in the main legislation.

By clause 4, we are seeking to make amendments relating to these persons who could be subject to PSOs. We want to remove them from the main Act and set them out in rules under section 49. Why? Because these conditions need to be tailored to meet the needs of the specific individual. For example, how do you rehabilitate them? To what extent is counselling necessary? It is very difficult to have these in the main legislation. So, we put them in the conditions, to tailor it according to the needs of the individual persons.

Section 33(1) and (2), which are repealed and re-enacted by clause 4, enables the Minister to impose different prescribed condition on each supervisee based on the different risks and needs of each supervisee.

Clause 4 also states that a person subject to supervision – conditions are imposed on him but he cannot comply with them because he is in prison or he is under a Court order – then, obviously, he must be excused from having to comply with the conditions.

Clause 5 repeals section 36 of the Act. Section 36 will no longer be required. These restrictions will be set out under the rules to be made under section 49.

Next, let me move to the provision of powers to CNB. Currently, CLTPA supervisees report to both the Police and CNB. But where there are breaches of PSOs, the orders, only Police Officers have the powers to investigate. Clause 7 will now provide CNB officers with the powers to investigate breaches of PSOs.

The Bill also seeks to renew the Act for a further five years with effect from 21 October 2019. The Act was last extended in 2014. It will expire in 2019. It seeks to provide for extension for five years.

Sir, I had earlier explained why we continue to need the CLTPA in Singapore. I think it is useful to consider Malaysia's experience. In 2011, Malaysia repealed its "Emergency (Public Order and Crimes Prevention) Ordinance 1969". This law allowed for preventive detention of criminals in the interest of public order, the suppression of violence and the prevention of crimes of violence. They repealed it and then they faced significant problems. The Malaysian Parliament then introduced the Prevention of Crime Act 2013, which reinstated preventive detention. One of the Malaysian newspapers reported the Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi, as saying the following in the Second Reading in 2013:

"After the repeal of the Emergency Ordinance and Restricted Residence Act, 9,095 detainees from Simpang Renggam detention centre were released and assimilated with the society. This year alone, there were 109 shooting cases and all of them involved the secret societies."

That just illustrates that there is usually a tradeoff. We prefer not to give such powers to the Executive. Then we must be clear-eyed about the tradeoffs. I think it is difficult to say one approach or the other clearly must be followed, but we must be clear. Often, arguments proceed on the basis that we can have the current situation of law, order and security without any tradeoffs and yet we can do away with CLTPA. That is not possible. So, you must be prepared to face it after that. The tradeoff that the Government has taken, which Parliament has agreed for many years, is that we give these powers, we impose safeguards and we look at the situation every five years.

Let me now just touch on the safeguards in the Bill. There are six that I will share.

First, any proposal by the Police or CNB to detain a person under the Bill or to place him under Police supervision will be looked at carefully, by both senior officials in my Ministry, the Ministry of Home Affairs, as well as the Attorney-General's Chambers. The practice is that the Minister only issues a DO or a PSO after this process and upon considering the opinions of senior officials.

Second, the Minister must get the consent of the Public Prosecutor before making a DO or PSO.

Third, there is an independent Advisory Committee. It comprises prominent private citizens, including senior lawyers. They have to scrutinise the investigations and documentary evidence. The committee may examine detainees, supervisees, investigation officers (IOs), witnesses. They can also require further investigations of aspects of the case. Detainees and supervisees will have the opportunity to present their cases to the committee. They can be represented by legal counsel. The committee eventually makes their recommendations to the President, who may cancel or confirm the DO or SO. In exercising the powers, the President may also vary the order but the President acts on the advice of the Cabinet.

Fourth, DOs are reviewed annually by a different Advisory Committee.

Fifth, a different Advisory Committee yet again considers all cases of detention if they extend beyond 10 years. So, cases where persons are detained for more than 10 years are specially scrutinised to understand why such a period of detention continues to be necessary.

Sixth, of course, as I mentioned earlier, the Government has to come to Parliament once every five years to renew the Act. There have been calls in the past to make the Act permanent but we believe that the Act should be explicitly extended by Parliament every five years.

Now, in addition to the legislative amendments proposed, I would like to inform the House of another development. I mentioned the Advisory Committees (ACs) earlier. From March this year, 2018, the ACs will be chaired by sitting Judges of the Supreme Court of Singapore. This does not require legislative amendment. I have spoken with the Chief Justice on this and he is agreeable to have Judges chair the ACs. Why is this being done? This is something that I have been wanting for years and we are now doing it.

The Advisory Committee, as I mentioned above, is an essential safeguard for the system. The ACs being chaired by sitting Judges will make the process more robust. Sir, I beg to move.

Question proposed.

Mr Speaker: Mr Christopher de Souza.

12.44 pm

Mr Christopher de Souza (Holland-Bukit Timah): Mr Speaker, Sir, today we are debating the necessity and proposed refinements to CLTPA.

The CLTPA is a necessary tool for Singapore to dismantle criminal syndicates. Secret societies continue to make up the majority of the detainee population. In 2016, 91 of 109 detainees were detained because of secret society gang activity. This is not surprising as strong loyalties and the pervasive network easily intimidate witnesses, making it impossible for an open Court trial.

Projecting into the next five years, the CLTPA still remains a necessary tool for law enforcers. This is because there is still a need to be able to carry out actions even though witnesses are afraid to step forward and even when it is impossible to procure evidence without undermining the territorial integrity of another jurisdiction. While international collaboration and technology, such as forensics and video recording evidence, may allow us to do what was previously not possible in terms of evidence gathering, technology has a flip side. It also enables intimidation of witnesses and made it easier for crimes to take on a syndicated nature, multiplying the propensity of harm and intimidation like a sinister phalanx formation.

This not a figment of imagination out of a comic strip. This is real. So, we need an arsenal of laws to deploy to deter and overcome the morphing nature of criminal syndicates. I listened to what the Minister said quite carefully and I agree with the Minister's views that the fear of witnesses coming to Court does prejudice justice, does prejudice law enforcement and the rule of law. I agree with this because of my own experience.

When I started off in the Legal Service at the Attorney-General's Chambers (AGC), when you know the suspect is very likely to have done it and the only witness to corroborate fears for his life or his family's life, then he does not come to Court. Drugs under the Misuse of Drugs Act is a good example. The trafficker or the suspected trafficker may have drugs but who is he trying to traffic to? And, if the witness who is meant to have received the drugs so as to prove the trafficking case or the charge says "No, I don't want to come, I fear for my life and my safety", then it does prejudice the procedures.

Similarly, for the Prevention of Human Trafficking Act. A person could have trafficked the woman, abused her and she is very likely to have been someone from overseas and, therefore, fears for the life of her family overseas. What do we do with someone who, with all intelligence, shows very likely committed the crime but there is no witness to corroborate that? Do we just let him go without the facility of the CLTPA detention?

Also, when I sat as a junior judge and there was not a witness to corroborate the charge, then the burden of proof is not met, notwithstanding a lot of evidence against the person who has been charged.

And, even in private practice now, having a good witness is a real advantage to the case. So, from my perspective, I agree with the Minister that when you have situations where all the other facts and all the other evidence point to the conclusion that the person very likely did it and you do not have somebody who is willing to come forward because of fear of his life or the legitimate fear of his family's life, we need something like the CLTPA to plug that gap.

Of course, we need safeguards within CLTPA itself and, since the last time CLTPA was renewed, there has been a successful appeal on detention under CLTPA. This case impacts our debate on the Bill for two reasons: (a) it sheds light on the implications of clause 3 that says the Minister's decision is final, and (b) its observations birthed the new Fourth Schedule specifying the serious criminal activities as legitimate grounds for a detention under the Bill.

Newspapers have reported some concern raised over clause 3 of the Bill. However, in my view, those concerns can be ameliorated as the clause does not change the law. The Bill Supplement clearly says it is to "clarify" the law. What was reviewable in the past continues to be reviewable.

Clause 8 puts in the new Fourth Schedule which specifies the scope of criminal activities, the powers of detention and supervision orders may be exercised for. This promotes the rule of law as it delineates the parameters of the power clearly. It is necessarily wide so as to not remove the efficaciousness of the Act but allows for a more concrete understanding of the scope of power and what is sufficiently serious – an issue examined by the Court of Appeal in the Tan Seet Eng case.

One thing worth noting about the Fourth Schedule is the reference to section 48(1) of the Organised Crimes Act. It recognises the problems with syndicates and also provides the possibility for international activities with local links to be tackled, such as that of match-fixing in the situation of Tan Seet Eng. Nevertheless, it is important that this Act not be invoked merely because a criminal activity is specified in the list. For the interests of justice, the Act should still only be resorted to, not only in the most serious of those activities, but when an open Court trial is impracticable. A trial by the Court must still remain and continue to be the primary mechanism of law enforcement and judicial adjudication.

This Bill also makes some changes to the Police supervisory regime. One of them is regarding restrictions able to be imposed on a person under Police investigation or supervision. Currently, section 33(1) allows for the possibility to impose "all or any" of the restrictions, and subsection (2) provides for the Minister being able to vary, cancel or add restrictions specified under section 33(1). Clause 4 purports to make the regime more flexible by moving the restrictions placed on those on Police supervision from the main Act to subsidiary legislation. This seems to remove boundaries and categories on the kind of restrictions being imposed. As the previous structure also allows for some form of flexibility, would the Minister of Home Affairs kindly elaborate on the rationale behind this change?

Besides detention without trial and supervision orders, this Bill criminalises strikes for employees of essential services, something which drew public attention in 2012. Although the repercussions of that strike then may not have been as deeply felt, a protracted strike on essential services can be quite severe. Therefore, notwithstanding this Bill, it is important that channels of dialogue for amicable settlements of disputes between providers of essential services and their employees remain open and effective.

As this Bill continues to provide a necessary tool to maintain Singapore’s public safety, peace and good order, and the very fact that we need to deploy muscular laws to deter criminal syndicate activity on our shores and based on my own experience as a legal practitioner in the Government and in the private sector, I support this Bill.

Mr Speaker: Mr Pritam Singh.

12.54 pm

Mr Pritam Singh (Aljunied): Mr Speaker, the prospect of locking people up for an undetermined duration is incongruous with the rule of law. Should a state have such powers? Insofar as CLTPA is concerned, the answer has been yes for reasons that have been enunciated in this House over many decades, albeit not without significant soul-searching and qualified support.

One important reason that underpins the qualified support for the CLTPA in Singapore through the decades has been the prospect of judicial review, which operates as an important safety valve to check against any excesses of the government of the day. The importance of judicial review with regard to CLTPA was publicly expressed recently by the Court of Appeal judgment in the matter of the international match-fixer Tan Seet Eng or Dan Tan.

Unlike many extensions the Government has sought for this Act since then, the one before the House today includes a few fundamental amendments, which are very significant and extend new powers to the Government for an Act which was ostensibly temporary.

At the outset, Mr Speaker, is an amendment to the Act even necessary? To answer this question, it is helpful to look at what transpired in the aftermath of international match-fixer Dan Tan’s short-lived release under the CLTPA after the Court of Appeal ruled against the Government and in favour of Dan Tan. Government critics focused on Dan Tan's re-arrest six days after the Minister cured the deficiencies in the original Grounds of Detention (GD) with a more detailed GD describing how Dan Tan’s activities had a direct relevance to public safety, peace and good order in Singapore. As stressed by the Court, that was the crux of the CLTPA – the Government had to show how Dan Tan's activities prejudiced public safety, peace and good order in Singapore, something it had not sufficiently done in its original GD.

However, what was somewhat overlooked in the decision to re-arrest Dan Tan was the Minister's decision to revoke the DOs under CLTPA of three members of Dan Tan's global match-fixing syndicate. The Ministry of Home Affairs (MHA), in a statement on 18 January 2016, stated that "the evidence against the three persons and their roles in the syndicate were recently reviewed, after the Court of Appeal gave its decision in Dan Tan's case."

It would appear that in light of the judgment in Tan Seet Eng, the Government became aware of the poor case against them in law, putting the three detainees on supervision orders instead. To that end, the purpose of the Act and, more importantly, the separation of powers between the Executive and Judiciary as it currently stands, would appear to be operating effectively, giving the Minister enough leeway to take decisive action against individuals who, in his estimation, pose a threat to ensure public safety, peace and good order in Singapore, while being in a position to clarify and apply the Act lawfully even if it means revoking DOs in light of the clarification of laws by the Judiciary. Quite simply, the system is working as it should. If so, what is the impulse behind this amendment Bill and is it justified?

Secondly, the Bill introduces a new limb to section 30 of the Act, legislating that a decision of the Minister would be final. I seek the Minister’s clarification on how this new clause 3 will interact with the prospect of judicial review for individuals detained under CLTPA in future, in view of the Court of Appeal’s judgment in Tan Seet Eng.

While clause 3 does not explicitly exclude the prospects of judicial review, unlike section 8(2)(b) of the ISA, it is a fact that more, not fewer, judicial review cases are coming up for adjudication in our Courts, challenging the lawfulness of Government decisions. In recent years, these include questions on the legality of whether or when elections ought to be called in a Single Member Constituency or a Group Representation Constituency, the constitutionality of section 377A with regard to homosexuals, the constitutionality of the Government's decision to extend a loan to the International Monetary Fund, a challenge by some Hindu adherents on the banning of musical instruments during Thaipusam, and the challenge by a Sikh prison counsellor on prison policy covering Sikh inmates, amongst others.

In concert with a more educated population and a greater recognition of the critical role an independent Judiciary plays as a co-equal Organ alongside the Executive and Legislature, it is unsurprising that more Singaporeans are seeking the avenue afforded by judicial review for clarity on public law matters and for the Judiciary to have the final say on the legality of Government actions. I would hazard that even the front bench recognises and agrees with the critical role the Judiciary plays as a feature of a good government and good governance.

Mr Speaker, in a speech delivered at the American Law Institute in 2016, the Chief Justice referred to judicial review as, and I quote, "the sharp edge that keeps government action within the form and substance of the law." However, it is well established under Singapore law that judicial review only covers the process and legality of Government decisions, not the merits of a decision which are properly empowered to the Executive, who, having been lawfully voted in by Singaporeans at each General Election, make decisions by virtue of their electoral mandate. To that end, a policy question or decision of the government of the day can only be overturned by the Courts on grounds of irrationality, illegality or impropriety, thresholds which are exceedingly high to begin with.

However, the law covering judicial review has not stood still even if Singapore law does not recognise some of the newer heads and principles that define judicial review in the United Kingdom (UK), such as the proportionality principle, ostensibly because some of these new approaches risk substituting the Executive's decision for the Judiciary's, a concern which, in light of our separation of powers schema, is a legitimate one.

But even so, the Chief Justice, in his speech to the American Law Institute which I referred to earlier, found it appropriate to share the Singapore experience with regard to a new head of judicial review recognised under Singapore law – that of substantive legitimate expectation – which concerns Government action that is contrary to a promise or an expectation that it has created or encouraged.

For the man on the street and the average Singaporean, the knowledge of a continual evolution of the law on judicial review is a welcome development. Justice must be seen to be done, and the evolution of the law on judicial review has required judges to make more, not less, enquiries on the facts and circumstances of a matter at hand so as to be able to decide whether the Government has made a lawful or unlawful decision.

In and of itself, it would appear intuitively logical for judges to have maximum access to the Minister or the Executive's thought processes even if they cannot replace it with their own. However, clause 3 appears to be going against the grain, closing the door and further limiting the Judiciary’s scope for judicial review for CLTPA cases. At this juncture, it would be useful for me to recite a short paragraph of the Court of Appeal judgment in Tan Seet Eng which buttresses the point that even though the ambit of judicial review only covers the process and legality of how a decision is made, the role of the Courts is far from routine and administrative.

"In our judgment, while it is one thing to say that the Court must not substitute its view as to the way in which the discretion that is vested in the Minister should be exercised, it is quite another to say that the Minister's exercise of discretion may not be scrutinised by the Court at all. We asked (the Government’s lawyer) if he was contending that the function of the Court was confined to verifying, as a clerical matter, that the paperwork was in order and included at least a bare recitation by or on behalf of the Minister that formally complied with the statutory formula. The (Government’s lawyer) said that was not his position and, in our judgment, rightly so. We have already referred to the decision of this Court in Chng Suan Tze where an objective approach was laid down. This plainly runs counter to any suggestion that the Court is confined to so narrow a role. Indeed, this recognises that a Court may and, indeed, should examine whether the power that is vested in the Minister is being properly invoked."

On clause 3 per se, the explanatory note to the Bill states that the Minister’s decision being final applies in any of these three instances:

(a) that the person has been associated with activities of a criminal nature;

(b) that it is necessary for a person to be detained in the interests of public safety, peace and good order; and

(c) that it is necessary that a person be subject to the supervision of the Police.

Mr Speaker, all three instances operate to narrow the Judiciary's role with respect to judicial review. To this end, I would like to ask the Minister, in the event the Courts require the Minister to reveal detailed information on the background facts on any of the three instances to determine and assist the Court to decide on the lawfulness of a CLTPA detention for the purposes of judicial review, can the Minister confirm if the Courts will be able to do so? More fundamentally, would it not be more propitious for Parliament to extend real scope to the Judiciary to review the Minister's decision in the case of CLTPA detentions, particularly since detainees cannot challenge the evidence against them in an open Court, notwithstanding the Executive check available by way of the Advisory Committee under the Act?

I understand the Minister spoke about the constitution of the Advisory Committee in his Second Reading speech and the idea of including judges as part of the Advisory Committee. Just as a matter of clarification, does this not conflate the role of the Executive and the Judiciary? I would like the Minister's views on that.

The third point I wish to make extends to the inclusion of clause 8 which covers section 48(1) of the Organised Crime Act (OCA) in Schedule 4 of the Bill extends the reach of CLTPA, by way of legislation, to individuals who participate or facilitate a serious crime overseas. This is a significant shift in the reach and ambit of CLTPA and I do have some questions in this regard.

What is the threshold of participation or facilitation in a serious crime overseas as defined by section 48(1) of the OCA before the CLTPA can be employed against an individual? Does the Minister have any examples of criminals having facilitated or participated in crimes overseas only for the Government to be bereft of any legal options to bring such individuals to justice? More narrowly, would the detention of an individual arising from section 48(1) of the OCA under CLTPA require the Minister to include evidence or the results of investigations from a foreign counterpart in his GD or would some other standard apply and, if so, what would that standard be? Or would it be up to the Minister, in step with the amendment proposed in clause 3 that his decision is final and there is, for all practical purposes, very little scope for any enquiry into this matter, if any at all?

Finally, and in this context, does the Minister foresee the CLTPA to be employed against foreigners who commit crimes overseas and who may be members of or in the employ of a Singaporean or local criminal syndicate? Mr Speaker, the Workers’ Party opposes this Bill.

Mr Speaker: Asst Prof Mahdev Mohan.

1.06 pm

Asst Prof Mahdev Mohan (Nominated Member): Mr Speaker, Sir, despite being named the Criminal Law (Temporary Provisions) Act, the CLTPA has been renewed multiple times since it was first enacted as an ordinance in 1955 to deal with secret societies and gangsters, as the Minister has explained, at a time when these societies were rampant in Singapore and presented a real material threat to public safety, peace and good order.

Over the years, many Parliamentarians − backbenchers, Opposition MPs and Nominated MPs − have said in this House that the powers the CLTPA gives the Government to detain a suspect without trial may "nag" at their conscience. Yet, time and again, this House has affirmed the CLTPA as a blunt but necessary tool, a tool of final resort, to battle against organised criminals in all their forms, a tool to protect law-abiding citizens who might be deterred from reporting or testifying about crimes due to the threat of reprisal.

I note from the statistics that the Minister has shown today that the number of suspects detained under the Act has fallen from more than 300 to just 100 in the past 10 years. I support, Mr Speaker, Sir, the hard choice that has ultimately, and always been made over the past few years, and multiple years actually, to revive the CLTPA. However, the amendment Bill before us today is different in certain respects. Allow me to focus my speech just on clause 3.

At first glance, this clause has trouble. Yes, the proposed Fourth Schedule helpfully lists, for the first time, the "activities of a criminal nature" the CLTPA covers. But clause 3 makes "final" the Minister's decision as to whether a person has been associated with CLTPA criminal activities, whether it is necessary for a person to be subject to Police supervision and, importantly, whether it is necessary for a person to be detained. I was originally concerned for two broad reasons.

First, the amendment proposed in clause 3 could effectively liken CLTPA section 30 with section 8B(2) of ISA. The ISA's 8B(2) expressly ousts "judicial review in any Court of any act done or decision made by the … Minister". Judicial review, Mr Speaker, Sir, is an important check on a Minister’s administrative power in CLTPA and legislation as a whole. It is confined at common law to reviewing the illegality, procedural impropriety or irrationality of a decision-making process, Ministerial or otherwise.

It is thus reassuring that, today, the Minister has said that this judicial review will continue to be available. Without the Court's review, there is fear that investigators, however skilled they may be, may make errors, that they might prefer to proceed under the CLTPA where there is insufficient evidence to sustain charges under a host of other statutes. And Mr Speaker, Sir, I must say there are many. There is the OCA of 2015, the Misuse of Drugs Act, the Remote Gambling Act, the Common Gaming Houses Act, the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, the Terrorism (Suppression of Financing) Act, just to name a few. And, of course, there is the Penal Code.

All these pieces of legislation, read together with the Criminal Procedure Code (CPC), allows for judicial supervision and due process, the hallmarks of the administration of criminal justice in Singapore. Therefore, there was my concern that the judicial review process would have been removed from CLTPA by this clause.

Mr Speaker, Sir, safeguards must always be put in place to ensure that the investigative powers are not misused and to weed out mistakes that can happen from time to time.

It cannot be said, Mr Speaker, Sir, that the CLTPA's Criminal Law Advisory Committee can serve as a check on investigators' or the Minister's powers. After all, this particular body performs only an advisory function and has no decision-making powers of its own under CLTPA. I appreciate, Mr Speaker, that the Minister has clarified that, as of March this year, there will be a sitting judge who sits as the Chair of this Advisory Committee. But can I ask, for the purpose of clarification, whether the constitution of this committee and the purpose of this committee would change? Would it be transformed into a decision-making body? I do not suppose so, but I have that clarification. Nor should the onerous task of being a check on investigators fall on the President who confirms DOs under section 31 of the CLTPA. In these circumstances, what obligations can we expect to be imposed in due course on the Criminal Law Police Supervisees through subsidiary legislation?

Second, Mr Speaker, Sir, I was deeply concerned at first glance that history is repeating itself, when I first read the amendment Bill. I was reminded of the Court of Appeal's decision in 1988 in Chng Suan Tze vs Public Prosecutor where a case was legislatively overruled. I asked myself why should we wind the clock back 20 years to 1988? Why reverse the Courts when the Minister just yesterday so convincingly reminded us of the need to trust the Court’s wisdom, regardless of whether we agree with the decision?

Again, I am reassured today, that this is not the case. That the purpose of this amendment Bill is not to parliamentarily override the case of Dan Tan and the apex Court's decision. But if this is the case, may I just ask the Minister, Mr Speaker, Sir, as to why we are having the finality clause, or the words "final" to be included now, after all these years, within this statute? If it is not to reverse Dan Tan or other similar cases, why should we do so now? If the decision, as we know from the Court of Appeal case in Dan Tan, has always been for the Minister to decide, is it necessary to ensure that that decision is final in statute? Having the words, "it is final", why now? And why do we have this?

The apex Court's reasoning in Dan Tan at paragraph 74 bears mention, Mr Speaker, and let me just read out the most important sentences. The apex Court, or the Court of Appeal, said, in this case at paragraph 74, "The CLTPA vests a potentially draconian power in the Executive…Public safety, peace and good order can cover a wide spectrum of possible scenarios. … It is true that Parliament has vested this power in the Minister; but … the Court is to closely scrutinise the grounds put forward by the Minister and consider objectively whether, on the face of these grounds, the decision is open to challenge on the basis of illegality, irrationality or procedural impropriety".

In the face of what the apex Court describes as a "potentially draconian power", I fear, and I would like some reassurance, as to whether the proposed amendments may ultimately have the effect of limiting the scope of judicial check on the Executive.

As an example, on the of-chance if someone were to challenge a DO in Court, would the Court's role be confined to verifying almost as a clerical matter that the paper work is in order, that it includes a bare recitation by and on behalf of the Minister that his decision is such and, therefore, is final, and that he acts with the Public Prosecutor's consent? The apex Court in Dan Tan flatly rejected such a narrow role and held that the Court may and, indeed, should examine whether the power vested in the Minister is being properly invoked.

I ask, how would the public, Mr Speaker, Sir, be assured that the GD without trial or continuous Police supervision in a particular case is not procedurally improper, illegal and/or irrational? Given the Court of Appeal's reasoning, may I make one simple and humble recommendation? In addition to having, as we do now, as I have learnt just today, that there will be a sitting judge who chairs this Advisory Committee, may I suggest humbly that the written statement of the GD or Police supervision that is made under the CLTPA's section 31 and that is shown to the Advisory Committee be also made available to a judicial review Court if the case so arises? I ask for this because I know that, even in the case of Dan Tan, this particular written notice was not made available to the Court of Appeal.

Finally, let me end, Mr Speaker, Sir, with a word. Let me say that we should think of the fact that there will be others who will occupy the august office of the Minister. The Minister, as he reminded us even yesterday, is in a unique and special position, having been for many years a Senior Counsel and then a public servant. Should we be mindful of future Ministers of Law who may not have the same set of skills, who may not have had the benefit of doing criminal defence litigation work or even representing people who have been detained without trial? So, looking forward, if there could be any safeguards which limit this, that would be perfect.

Mr Speaker: Minister Shanmugam.

1.17 pm

Mr K Shanmugam: Thank you, Mr Speaker, Sir, for allowing me to intervene. I thought if I dealt with one or two points in Asst Prof Mohan's speech, it might help the other Members in the House in their speeches so that we do not go off tangent.

I think the crux of the Member's points is that: is judicial review available, and is clause 3 seeking to curtail that?

First, judicial review is available. Second, it is available on the grounds that the Dan Tan case sets out. Let us be clear about it. Third, I think Asst Prof Mohan would be aware, if you ask any half-decent constitutional lawyer, he will tell you that it is available, that such a clause does not oust judicial review. It cannot do so. I am more than happy to confirm it.

So, judicial review, on the grounds they have set, they are not clerks looking at our records, they are judges, and they are entitled to judicially review our decisions, and they have set out on what grounds. And the Government accepts those grounds. Clause 3 does not oust that jurisdiction. Clause 3 simply sets out the current position which they themselves set out in Dan Tan that they will not substitute their views for the Minister's views on the facts. That is all that clause 3 does – crystalise the position as set out in Dan Tan. So, I hope Members will be aware of this as they make their speeches, otherwise, we will be dealing with an issue, of judicial review, which is not the focus of these amendments.

Why is it necessary to set out that it is final? That is the current position; so, we set it out clearly. The Minister's position will not be looked at by the Courts. It is there in the Dan Tan case. It is there in the other cases. So, we set it out. And so, the passages that the Member read out from the Dan Tan case on judicial review continue to apply.

I also should tell Members that, prior to me, the Minister was not a lawyer – and one of his complaints was that none of his three officeholders was a lawyer – Minister for Home Affairs. And yet, if you saw the charts on the number of detentions, a fair number of the trend took place during his tenure.

Mr Speaker: Mr Pritam Singh. Keep it short.

Mr Pritam Singh: Mr Speaker, Sir, a point of order, when I made my speech just now, I did not declare that I was a lawyer in practice.

Mr Speaker: Mr Dennis Tan.

1.21 pm

Mr Dennis Tan Lip Fong (Non-Constituency Member): Mr Speaker, I declare my interest as a lawyer in private practice. Mr Speaker, this is the 14th time this so-called temporary Act in its various forms has come before Parliament, or its predecessor, for renewal for another five years. At the last renewal in 2013, this Act was extended for five years from 21 October 2014, which means that it is only due to lapse in October 2019.

The most controversial and draconian aspect of this Act is the fact that this law puts people behind bars without the usual due process. Like the ISA, it is a controversial exception to our legal justice system which usually requires every person to be charged, tried and convicted in Court before he can be detained in prison. To take away someone's liberty like this is not something we should ever take lightly to.

Under the existing section 30, the Minister can order detention of a person for any period not exceeding 12 months if the Minister is satisfied that it is necessary that the person be detained in the interest of public safety, peace and good order. Under section 30, the Minister can also make an order for a person to be subject to this supervision of the Police for any period not exceeding three years if he is satisfied that it is still necessary. We should also not regard supervision order lightly as such orders impose restrictions on a person's movements and activities, and they impact on his work and liberty.

The time limits for detention and supervision should also be viewed from the perspective that each order can be renewed indefinitely. This must never be taken lightly.

Mr Speaker, in each of the previous occasions when Parliament debated the initial Bill and the subsequent renewals of the Act, many Members had spoken about their concerns about the undesirability of this Act and how soon Singapore can mature into a society where we can do away with this Act.

Many Members have also spoken in agreement with the Minister of the day on variously the rationale for extending the Act to deal with the concerned crimes of criminal groups of the day. I read from Ministers' and MPs' speeches in the Hansard that these range from secret societies, gangsterism, drug trafficking, murders, extortion and protection rackets, to, in more recent years, money laundering, loan shark syndicates, organised crimes and global match-fixing. There was also mention of arguably activities which are traditionally not regarded as criminal, such as prevention of strikes and lockouts as well as communist domination.

Mr Speaker, today, at the 14th renewal of the Act, we are not asked merely to consider the extension of the Act based on identical provisions. The Ministry is proposing some important amendments. My biggest concern with this Bill is with the proposed amendments in section 30. The Bill proposes to make every decision of the Minister on the matter in the current section 35 final. The explanatory note to this Bill details three matters: (a) that a person has been associated with activities of a criminal nature; (b) that it is necessary for a person to be detained in the interest of public safety, peace and order; and (c) that it is necessary that a person be subject to the supervision of the Police.

These are the applying criteria leading to the Minister making a decision to make a detention or supervision order. The proposed amendment is a disconcerting change to the existing provisions of the Act. I take the view that the proposed amendment will take away the existing rights of detainees under the current law to seek judicial review by our Courts in respect of the appropriateness of the Minister's decision to order any detention or supervision, specifically whether the Minister was correct in deciding that the person was appropriately associated with the type of criminal activities coming within the Act, or whether the Minister was correct in his decision that it was necessary for the person to be detained in the interest of public safety, peace and order, or whether the Minister was right in deciding that it was necessary to subject the person to the supervision of the Police. I am concerned that, if passed, the Minister's decision on these aspects of his order can no longer be challenged even if the Minister's decision exceeds the scope of his powers.

In respect of the Minister's clarifications and his comments earlier, may I seek the Minister's clarification whether the amendment that the Government is seeking would bar the Courts from objectively reviewing the matters that the amendment wants to now declare the Minister's decision as final?

Until now, judicial review is available to detainees to challenge the Minister's order if, for example, the Minister had not acted in his scope of powers. An order can be scrutinised by the Courts if it is illegal, irrational or if there is procedural impropriety. This is confirmed again by the Court of Appeal case of Tan Seet Eng vs Attorney-General. As the Court of Appeal held in that case, the Courts' power for review is not to review the truth of the allegations of fact found in the grounds given for the detention, but to scrutinise the grounds given to justify the detention to see whether the Minister acted within the scope of his powers.

Let me attempt to summarise what the Court of Appeal has stated on the scope of the Minister's powers as it is a helpful reminder of the present principles governing the scope of the Minister's powers under the Act.

One, the normal course of dealing with the criminals will be by way of prosecution in Court and recourse to CLTPA will be in limited circumstances where normal legal processes could not be relied upon due to reprisals to witnesses.

Two, the Court listed certain specific types of crimes and stated that the offences must have the following unifying characteristics: threat of violence and reprisal to intimidate witnesses; detainees associated with criminal activities of a serious nature, not just any criminal activity; the offences must pose harm to public order in Singapore. The Court of Appeal stated, by way of example, the activities of gangsters, secret societies and syndicated crime gangs involved in violent crimes all affect peace, safety and public order.

In the Dan Tan case, the Court of Appeal allowed his appeal and quashed his DO under the Act. The Court held that the facts and activities provided in the grounds were not sufficiently serious to fall within the scope of the Act, and also that it was not clear whether the activity stated had a bearing on the public safety, peace and good order within Singapore. The Court of Appeal's decisive judgment confirmed the importance of the Court's role in ensuring that the Minister's order must fall within the scope of his powers under the current law. There is no doubt that the proposed amendment is a response to the Court's decision in Dan Tan's case.

Judicial review is an integral component of the rule of law. Chief Justice Sundaresh Menon said in his speech on the rule of law at the annual meeting of the American Law Institute in May 2016 when he commented on the Court's judgment in Dan Tan's case, and I quote, "Judicial review is the sharp edge that keeps the government action within the form and substance of the law". Is this sharp edge going to be taken away from the existing section 30 of CLTPA by our amendments today?

New Zealand high court judge, Justice Matthew Palmer, in his speech touching on the rule of law and judicial review as the Kwa Geok Choo distinguished visitor at the National University of Singapore on 20 January 2016 said, "I consider that the availability of the law of judicial review to test the legality of exercises of public power is a direct manifestation of the rule of law. If a public body purports to exercise public power in a specific instance, those concerned with the exercise must be able to ask an independent body – the Courts – whether the exercise of public power accorded with law. If it did, no harm is done by testing the question and, indeed, public confidence in law and government is enhanced. If an exercise of public power were not made according to law, then the rule of law requires that be addressed, as it is when any other decision-maker acts inconsistently with law. To leave the decision to the Executive branch, untested, is to leave the effective determination of the law – a judicial function – to the Executive." I agree with what Justice Palmer had said.

Is the change in section 30 really necessary? Is it right or fair to dispose of such safeguards now? After 13 renewals, is this not a step backward? I will leave this point on this note.

I next have a clarification for the Minister. I note that the Minister has told us earlier about the latest development that judges would be chairing the Advisory Committee. But I seem to recall that what the Minister has said may be different from his suggestion in Parliament in 1989. Under the present system, the advisory committee, with the judges as the chair, will still have to report to the Cabinet, which will advise the President. That is what I understand the present system is. And, for ease of understanding, may I just quote the Minister's remarks in his speech in 1989, at the Second Reading of the renewal Bill then.

"The ISA can be justified under our circumstances. But the CLTPA, there may be more questions, and it has to be accepted that we cannot ever eliminate crime. We can only control it within acceptable tolerable limits.

So, the Minister has to focus on that and tell the House whether, at the present stage, the situation is such that secret societies, gangsters, the original justification, continues to exist at the same level of seriousness which justifies powers of administrative detention. If it does so, then I will still ask that the Minister consider one structural change to the existing provision. This is to ensure that CLTPA is not abused.

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 Courts disagree and the judges disagree, then again, the Minister's decision will be overturned. So, remove it from the President to the Executive and give the power to the Courts. This is not to suggest that it has been abused but only to prevent CLTPA from being a convenient route where the Police do not have sufficient evidence against common criminals to prosecute them in Court and, therefore, use CLTPA. The Minister is a busy man. He has to rely on the reports that are put up to him by his Police Force. And the Police do not have the monopoly of virtue and morality more than any of us. So, that is an important point and that particular provision worries me."

So, I would like to seek the Minister's clarification whether what the Minister has in mind, as he introduced a short while ago, is similar to what he had said in his speech in 1989. But it seems to me to be slightly different. And, if it is different, perhaps I would like the Minister to share with the House why does he not propose to the House that we go the whole hog to what he suggested in 1989.

I next move on to the suggestion for the reduction of reporting period to the Advisory Committee.

Mr Speaker, currently, section 31 requires the Minister to refer every order to an Advisory Committee within 28 days of making the order. I would like to ask the Minister to review the timeline of 28 days. Why do we need 28 days? It seems like a long time for such a referral. I am sure that when an order is made by the Minister, the Public Prosecutor and the Police would have and should have already carried out proper investigation and inquiries to reach the conclusion that an order is necessary. So, the paperwork should not need much more time after the order has been given. I would like to propose that in the interest of justice, this period should be reduced to 14 days. This will also be in line with the extended period of detention accorded for a Police investigation under section 44(3) of the Act.

Finally, I read in The Straits Times' report of 10 January 2018 that the obligations and restrictions under PSOs will be shifted to subsidiary legislation and that this move will give the Minister greater flexibility in imposing the necessary conditions and curbs. I would like to ask the Minister what will be the changes in the conditions and curbs and the so-called flexibility that the Minister is seeking.

Mr Speaker, in closing, I do not agree with the proposed amendments in section 30 of the current Act. And for that, I am unable to support this Bill.

Mr Speaker: Mr Murali Pillai.

1.34 pm

Mr Murali Pillai (Bukit Batok): Mr Speaker, I declare my interest as a disputes lawyer occasionally dealing with criminal cases, including matters involving CLTPA.

The CLTPA was enacted in 1955 for an initial period of five years to make temporary provisions for the maintenance of public order. As highlighted in the title of the Act itself, the provisions of the Act were meant to be temporary to address threats to public safety and order in Singapore as necessary. In 1955, this was to address threats posed by secret societies and gangsters. Since then, the nature of the threats has expanded and evolved to include criminal activities, such as drug trafficking, murder, gang rape, robbery with firearms, syndicated crime organisations, unlicensed moneylending and human trafficking. These are all serious criminal activities that have been mentioned during the Second Reading of earlier amendment Bills to extend the Act. Because of this, Parliament has deemed it necessary to extend the Act for a further successive period of five years each time, which is now due to expire on 20 October 2019.

Whilst the extension of the Act continues to allow for preventive detention without trial, that concept itself nags my conscience, to use the words of Parliamentarians in the House before. In light of the hard facts that the threat of such serious crimes continues to exist to seriously threaten our public order and safety in Singapore, I feel compelled to support this Bill.

In arriving at this conclusion, I am aware that the statistics show that DOs are on the downtrend principally because the CLTPA is used as a matter of last resort.

My assessment though is that the current situation is reversible. The hon Minister's narration of how, just in 2017, two gangs were crippled using the CLTPA, is evidence of this. The elements that promote secret societies and gang-related crimes are far from being "licked". They have been around for decades. Their roots are deeply embedded within our society. We also need to be mindful about the crime and drug environment just outside our borders, too. In my assessment, there is a danger that secret society activities and gang-related crimes in Singapore may proliferate in Singapore if we were to allow these exceptional measures to deal with such problems to expire at this point in time. For this reason, I support the extension of the Bill for another five years.

Notwithstanding my position, I have a few queries for the Minister. This Bill seeks to amend the Act to extend the operation of the Act for a further five years beginning on 21 October 2019. Given that this Act is only due to expire on 20 October 2019, it appears rather early to seek an extension of the Act approximately 20 months before it is due to expire. This amounts to about one-third of the five-year extension period.

Mr Speaker, with your leave, may I be allowed to distribute a handout to hon Members of the House?

Mr Speaker: Yes, please. [A handout was distributed to hon Members.]

Mr Murali Pillai: Mr Speaker, Sir, hon Members of the House would note from the table the length of time between the First Reading of the amendment Bill and the expiry date of the Act for the period 1969 to 2013. It is apparent from the table that this is the earliest time before the expiry of the Act that an extension has been sought.

The sunset clause in the Act is a safeguard to ensure periodic scrutiny by Parliament. This allows Parliament to be apprised of the prevailing landscape, in particular, to consider the prevalence of serious crimes and weigh it against the need for public safety and order, so as to decide if the original justification and basis for the Act continue. Seeking an extension too early before expiry of the Act thus reduces the effect of the safeguard, as Parliament would not have the benefit of being apprised of the most current crime, security and drug situation in Singapore close to the expiry of the Act, to decide whether or not to extend it.

I recognise that the present Bill also seeks to make amendments to other provisions of the Act. However, these other amendments may be dealt with separately within the five-year period the Act is in force, so that such amendments would not take away from the issue of whether there is a basis for Parliament to extend the operation of the Act. This was done before on several occasions in this House. For example, in 1981, before extension was sought in 1984, the Act was amended to enable detainees to be temporarily released from custody so that they could engage in outside employment to facilitate their rehabilitation.

I would be grateful if the hon Minister could please explain why the Government has decided to seek an extension of the Act at this point in time, which is quite some time far away from the expiry of the Act. Recognising that Parliament would need to be apprised of the latest security landscape in order to consider the case for extension of the Act, what is the Government's policy framework that determines when Parliamentary approval to extend the Act would be sought?

I seek further clarifications on the proposed amendments to section 30 of the Act and hon Members have spoken about this, in particular, the decision to make the Minister's decision final. On the issue of whether or not a person has been associated with activities of a criminal nature, I understand from the Minister's clarification that the proposed amendment was meant to, if I could use the word, "codify" the approach taken by the Court of Appeal in Tan Seet Eng, in that the Court recognised that the Minister is competent to determine whether a person's detention would be in the interests of public safety, peace and good order. Is it also meant to "codify" the judicial review approach taken by the Court of Appeal, meaning to employ what is known as the traditional test of illegality, irrational or procedural impropriety on an objective plane? If so, would it not run the danger of the Court not being able to update its approach to judicial review of Executive action in the future as our society develops?

Another proposed amendment to section 30 is to define "activities of a criminal nature" to a list of activities specified in the Fourth Schedule. This is a departure from the previously taken position opting not to specify a list of offences or criminal activities for which the Act would be deployed. I understand from the hon Minister that this is to promote clarity on what kind of activities are contemplated.

In specifying a list of "activities of a criminal nature", I am concerned that this would unduly tie down the Minister's hands. As the then Second Minister for Home Affairs Mr S Iswaran said in this House in 2013, "criminal groups reorganise and rework themselves constantly" and "new forms of serious criminal activities evolve in a borderless world, assisted by advances in technology". Recognising this, specifying a list of the type of criminal activities may instead inhibit our ability to keep pace with creative criminals and possibly dampen the deterrent effect of the Act.

For example, it is very possible that illegal betting activities may entail activities of a sufficiently serious criminal nature to fall within the Act. As has been said in this House on a number of occasions, and which has been distilled by the Court of Appeal in the Tan Seet Eng's case, the main unifying features for offences for which this Act was meant to apply are: first, they feature situations where witnesses fear to testify because of reprisal against them; second, they are of a sufficiently serious nature; and third, they pose a threat to the public order in Singapore. In this context, the amendment to restrict the type or categories of criminal activity may cause us to be less nimble in tackling the evolving types of criminal activities. I would be grateful for the Minister's clarification on this point.

One last point. I am heartened to note the Minister's confirmation that even in respect of the specified types of criminal activities listed in the proposed Fourth Schedule, the activities must still be one of sufficiently serious nature and involve issues concerning public safety, peace and good order of Singapore to fall within the ambit of section 30 to warrant detention. This is important to ensure that the powers are used sparingly and only in exceptional cases.

Mr Speaker: Minister Shanmugam.

1.44 pm

Mr K Shanmugam: Again, just to be clear, section 30, clause 3, is not intended to deal with judicial review. It is to deal with the Minister's position being final, which is the position today – final in the sense that you cannot appeal on the facts for a different view of the facts to another body. That is what it is meant. And if you look at the cases, that is the legal position. It is not intended to touch on judicial review, on the classic principles that had been set out. As to why we have set out in the Schedule, it is precisely for the reason that the Member has said, to put some constraint and put it out clearly which legislation. It may act as a constraint but it is also clear and it is better.

Mr Speaker: Ms Sylvia Lim.

1.45 pm

Ms Sylvia Lim (Aljunied): Mr Speaker, Sir, I declare my interest as a lawyer working in a firm that practises criminal law. Sir, as my Workers' Party colleagues have said before me, we are unable to support the Bill this time.

Sir, at each renewal of the Act, Members of Parliament are asked to consider whether the prevailing circumstances are such that we still need this law.

On the one hand, we know that Singaporeans want Singapore to be a safe place to live in for ourselves and our families. At the same time, we are very mindful of the tradeoffs of giving the Government too much power to detain people without a fair trial as power can always be abused. This is all the more so when we are dealing with powers that deprive people of their liberty for years.

During the past renewals of this Act, the Workers' Party has accepted the uncomfortable compromise that this law entails on the Constitutional right to freedom. We did not delight in taking this position but did so with a heavy heart. This time, however, our view is that the Government has gone too far. How so?

My colleagues Mr Pritam Singh and Mr Dennis Tan have already set out grave concerns about the Bill's apparent curtailment of judicial oversight. For my part, I will focus on three points: first, the timing of this renewal; secondly, the dangers of adding the Fourth Schedule to the Act; and thirdly, add my voice to the disapproval of clause 3 making the Minister's decision to detain final.

First, the timing of this renewal. I agree totally with the hon Member Mr Murali Pillai and am surprised that Parliament is being asked to extend the Act now, in February 2018, when the current Act only expires in October 2019, 20 months from now, towards the end of next year.

Past debates for renewals of this Act did not have such a long timeline. The hon Member Mr Murali Pillai produced a table. For my part, I did the counting from the Second Reading of the Bill, not the First Reading, which is in Mr Murali Pillai's chart. And from my counting, the last debate for renewal was in November 2013, less than a year before its expiry date in October 2014. The previous two renewals, in 2009 and 2004, were debated even closer to the expiry date – between one month and eight months of the Act's expiry.

Why is the timing of the renewal important? It is important because, at each renewal, Members are asked to consider the prevailing crime and order situation then, and to decide whether an extension of the Act is justified for another five years. The Government itself has refrained from making the Act permanent, which means that, at each renewal, Members must satisfy themselves that the Act is needed for the next five years.

Today, Parliament is asked to assess that the circumstances justify the renewal of the Act, from October 2019 to October 2024. Notwithstanding that the Minister earlier shared with the House on the crime situation both here and regionally, how do we know what the situation will be like towards the end of next year? Things can always change. How will Parliament make a reasonable assessment of prevailing circumstances so far ahead of time? Does this not make a mockery of the careful consideration Parliament is to exercise when assessing whether prevailing circumstances justify a renewal of this draconian law? In my view, it is premature of MHA to come to Parliament now to ask for a renewal of the Act.

Next, I move on to the inclusion of the new Fourth Schedule. Clause 8 introduces a new Fourth Schedule to include a list of offences which the Minister can detain a person for. In MHA's press release of 9 January, it is stated that the purpose of the new Fourth Schedule is to “restrict the powers of the Minister by clarifying the scope of criminal activities under the Act”. But as I read the Bill, this is not true. The Bill, in fact, increases the Minister’s powers.

Why do I say that the Bill increases the Minister’s powers? Yes, the current Act does not list which kinds of criminal activities would make a person liable to be detained. But that does not mean that the Minister currently has carte blanche to detain anyone he pleases. In the landmark decision of the Court of Appeal of Tan Seet Eng vs Attorney General [2016] 1 SLR 779 referred to earlier, the apex Court made it very clear that the Minister’s powers under the current Act are quite limited. In Dan Tan's case, the Court of Appeal did a thorough examination of the origins and purposes of the Act and also scrutinised Parliamentary debates on past renewals of the Act. The Court then came to some important conclusions.

First, the judges concluded that the CLTPA did not cover all offences but only criminal activities where trials in Court could not proceed due to threats of harm against witnesses or their families. Secondly, the detainee must have been involved in a criminal activity of a sufficiently serious nature to justify detention without trial. Thirdly, the criminal activity must pose harm to the public order within Singapore.

In Dan Tan’s case, the Court found that the GD alleged that he was the mastermind of a global soccer match-fixing syndicate, but the effect of his plans was felt in other countries and did not affect the public safety, peace and good order within Singapore. Earlier, in the Minister's speech and interventions, he appeared to be somewhat watering down the effect of the Dan Tan judgment.

But if I may be permitted to make my own assessment of the significance of the judgment, the Courts made it very clear that it had a duty to objectively assess whether the Minister's Statement of Facts is coherent and within the legal scope of the Act giving him those powers. The Court stated very clearly that its role was not limited to applying a subjective test as to whether the Minister believes that he is making the correct DO, but it was much more than that. The Court had to look at the legal framework provided by the Act, what the Act is set out to achieve, the mischief it seeks to cure and whether the case made out by the Government on its face furthers that purpose. And because the Court was not satisfied that the first DO against Dan Tan furthered the purpose of CLTPA, the Court found that the Act could not apply to such a case and declared the first detention illegal, ordering him to be released.

Sir, bearing in mind what the Court has said, will this Bill now restrict the Minister’s powers, as MHA says, or, in fact, expand them?

Let us examine the effect of the inclusion of the new Fourth Schedule. The Schedule will likely short-circuit the assessment process of cases suitable for detention. In other words, the inclusion of the Schedule may enable the Minister to bypass answering questions as to whether a case is “serious enough” to justify detention, or why it is not possible to prosecute these persons in Court. Concerns have already been raised publicly by several lawyers and academics that the Bill potentially allows persons to be detained for alleged activities of a more minor nature, now that there is a list of defined activities in the Fourth Schedule.

Another striking feature of the activities listed in the new Schedule is item 9, participation in, or facilitating, any organised crime activity as defined in the OCA 2015. What will this mean if the Bill is passed? This will mean that the scope of the CLTPA will be expanded to cover activities that are done overseas or that may not pose a threat to the public order within Singapore.

Earlier in the Minister's Second Reading speech, I noted that he was very careful to say the Schedule consisted of crimes or activities that have been previously mentioned in the House and it also brings in the OCA, which I take to mean he recognises that the inclusion of the OCA is something new, not discussed or contemplated by the previous discussions on the CLTPA.

Sir, under section 48 of our OCA, actions done abroad are considered to be “organised crime activities”, so long as they are done by an organised group with local links. These activities could take place completely in countries far away.

In addition, by referring to OCA in the CLPTA Schedule, the Government is importing into the CLTPA the concept of “serious crime” under OCA. But the OCA considers to be “serious crime” a wide variety of offences, including many crimes that are fundamentally economic or financial in nature. The list of such crimes includes Goods and Services Tax (GST) fraud, dealing in goods for which customs duty is not paid, illegal betting, computer misuse and infringements of copyright and trademarks. Do such types of cases typically come up for DOs under CLTPA? I do not think so.

Sir, the OCA already has its own ways of dealing with organised crime, which MHA recommended and Parliament only recently adopted in 2015. By now linking the OCA to CLTPA, enabling criminal law detention for OCA cases, is the new Schedule not expanding the Minister’s powers under CLTPA?

The Court of Appeal in Dan Tan’s case has pronounced that the CLTPA is only meant to protect the public safety, peace and good order within Singapore. Contrary to what MHA has said, the inclusion of the Fourth Schedule under clause 8 clearly expands the Minister’s powers to police criminal activities overseas and expands the kinds of activities that are subject to the Act. In effect, the Bill makes the Minister a global policeman, with no equal in the world. This is a position too arrogant for this House to support.

Sir, next, I move on to clause 3, which purports to make the Minister's GD "final". Sir, the attempt to make the Minister all-powerful under clause 8 is even more toxic when one looks at clause 3, which states that "every decision" of the Minister to exercise detention powers under section 30(1) "is final". Other Members have raised their concerns about the clause. I will only add a few points to the chorus of concern.

Sir, the Courts' powers in judicial review are already very limited. As my Workers' Party colleagues and other Members have said, the principles of judicial review are well-established. When a Court is asked to review a Government decision, it will overturn the Government's decision only if it finds that the decision was illegal, irrational or procedurally improper. Our judges are well aware that they are not Ministers and should not be the ones exercising executive discretion. Earlier in his speech, I believe the Minister clearly understands these principles.

So, what is the justification for the Government to introduce clause 3? The Minister keeps saying and saying that it is not intended to change the legal position, it is meant to preserve judicial review. But it is a tenet of interpretation that Parliament does not legislate in vain.

Earlier, if I heard Mr Christopher de Souza correctly, he attempted to suggest that clause 3 was merely meant to clarify the current position. But if one looks at the Explanatory Statement to the Bill, it does not say as such. The Explanatory Statement to the Bill says that this Bill seeks to amend the CLTPA for the following purposes and the first purpose is to provide that the Minister’s decision would be final on these points.

This is very troubling. If what the Minister is saying is correct, that is, clause 3 is not meant to change anything, then why introduce it at all? Why not leave it as the status quo, instead of causing confusion and possible problems down the road about what this clause is meant to cover?

Sir, it is quite clear that the Government is not infallible and does make mistakes. Dan Tan's detention illustrates this. Instead of welcoming the Court's clarification, the Government comes to Parliament with this finality clause. As MPs, it is important for us to pause and ask: what is the public interest here? Why is clause 3 necessary? Does the public interest not demand that we defend rigorously the Courts' Constitutional duty to ensure that the Government acts lawfully?

Sir, the CLTPA has been in force since 1955. And for more than 60 years, no Minister has come forward to ask for a finality clause on his DOs. We find this very troubling.

Sir, let me summarise. As I mentioned earlier, I have my reservations about the timing of this Bill, as I believe that to renew the Act now to take effect in October next year is premature.

More importantly, the Workers' Party does not see any justification to introduce a finality clause as proposed in clause 3. In addition, I find the insertion of the Fourth Schedule under clause 8 to be dangerous, as it clearly expands the Minister’s powers rather than restricts them as claimed by MHA.

The Bill will expand the scope of the CLTPA beyond its original intention of safeguarding peace and good order in Singapore. These clauses will repose in the Minister of Home Affairs too much discretion and power, not only at home, but well beyond our shores. We find this proposal untenable. For these reasons, the Workers' Party opposes the Bill.

Mr Speaker: Mr Kok Heng Leun.

2.01 pm

Mr Kok Heng Leun (Nominated Member): Mr Speaker, unlike speakers before me, they are all lawyers. I am addressing this Bill from a layman's view, as someone who does feel uncomfortable with detention without trial.

In the 2017 and 2018 Rule of Law Index compiled by the World Justice Project, Singapore was ranked 13th globally for the Rule of Law, which I think is a good ranking on the state of our judicial system and how much we have upheld the principle of Rule of Law.

Today, we are here debating on this very difficult and important Bill, the extension of the operation of the CLTPA.

Mr Speaker, I recognise the tensions between wanting to balance protection of the rights of an accused and to ensure that our society is protected against serious crimes and to keep crime rates low. This provision, however, departs from two fundamental principles of the Rule of Law – the right to a fair trial and that individuals should be governed largely by the law and not by discretion.

It is true that the crimes which the CLTPA seeks to prevent are no doubt serious and involves complex considerations. But are there other options and measures that might be less intrusive than detention without trial, yet equally effective to address the problem which the CLTPA seeks to achieve? Has the Government, before taking the decision to extend the operation of the CLTPA, considered these options? Can the Government share with the House what these options are and an evaluation of their strengths and weaknesses?

Mr Speaker, my point is that if there are security measures that impose less deprivation of the accused's rights and at the same time are as effective as detention without trial in addressing the security issue, then such options that intrude less on the rights of an accused should always be preferred.

While the threats which the CLTPA address involve a severe nature, it does not lead to an automatic conclusion that the only way to deal with these serious threats is by detaining individuals without trial. It is a policy choice that we make and one that requires robust justification backed by concrete evidence.

Mr Speaker, as this House debates the extension of the operation of the CLTPA for the 14th time, I hope that as we continue to justify its existence and relevance to today’s context, we do not forget about having a meaningful debate on the reduction of our reliance on the CLTPA. I note from the Minister's statement that the number of people detained under CLTPA has gone low. However, as its name suggests, this Bill was meant to be temporary.

One of the justifications for the retention of this Bill is that there are difficulties with prosecuting those detained, as involved witnesses fear reprisals should they testify in Court. This is a legitimate concern that must be addressed. But it points to a larger discussion as to whether there is sufficient protection of witnesses in general under our laws rather than the continuing existence of the CLTPA. There have been proposed amendments to the Evidence Act and the Criminal Procedure Code to enhance protection of witnesses recently. The Cybersecurity Bill, which was passed yesterday in this same House, contains a provision to protect informants.

We should re-evaluate the necessity of the CLTPA in light of these new measures to protect witnesses and consider tweaking witness protection methods to better protect witnesses to offences which the CLTPA are applicable, rather than to continue relying on detaining individuals without trial as part of the overall security strategy.

Mr Speaker, detention without trial is by all means an exceptional measure which I principally disagree with. By further extending the CLTPA, I worry that it normalises and desensitises society to its extreme nature and further entrenches the necessity of the CLTPA. All in all, I hope we keep with the spirit of the CLTPA, which was originally set out only to be of a temporary nature meant to address a unique set of problems arising from a specific period of time.

Mr Speaker, I turn now to discuss the proposed amendments to the CLTPA.

One of the amendments, clause 3, states that the Minister's decision to detain an individual or subject him to a supervisory order is final. Many Members have talked about it, and the Minister has clarified. However, after going back and forth, I wonder if perhaps this particular change could be reworded or be removed to avoid any more misrepresentations, because we can hear that so many people, and they are all lawyers, who have been asking for clarifications and we do not want in future that it be misread.

Mr Speaker, the Minister has unequivocally said that the Judiciary is a co-equal and important branch of the Government. Its constitutional duty in reviewing the legality of the acts of the Executive must be respected and protected by other branches of the Government.

Each time the approval from Parliament to extend the operation of CLTPA is sought, the question of the sufficiency of safeguard of this Bill remains in the forefront. We have heard the Minister outlining the six steps of safeguarding. My position is that the safeguards to prevent an abuse of powers under the CLTPA is not sufficiently robust as the checks and balances are largely undertaken by the Executive, save for the consent of the Public Prosecutor and not by another independent arm of the Government.

Let me explain. Under section 30 of the CLTPA, while there is an Advisory Committee that will submit a report with recommendations on the Minister’s order to the President, the Advisory Committee's recommendation remains non-binding. As such, even if the Advisory Committee recommends that the individual not be detained, the Minister is not legally obliged to follow the Advisory Committee’s recommendations.

Further, while the President may confirm, vary or cancel the Minister’s orders, the President acts on the advice of the Cabinet which also comprises the Minister who made that order. This seems almost like a case of the Executive checking on itself. So, if and when the Cabinet’s advice contradicts that of the Advisory Committee, how does the President make her decision? What if the President is of the same view as the Advisory Committee, but different from that of the Cabinet, what would happen next?

Mr Speaker, while there is no evidence that the powers of the CLTPA have been abused, the commitment to ensure sufficient independent safeguards is not to question the integrity of the decision-maker but precisely to prevent such an abuse and to refine decision-making. Given that detention without trial involves a serious deprivation of one’s liberty, should there not be more oversight rather than less?

Moreover, the introduction of the Fourth Schedule to limit the types of offences which the CLTPA is applicable is an implicit recognition that all powers must have legal limits. Consistent with the fundamental rule of law principle that all powers have legal limits, scrutiny of the Minister’s decision by another independent arm of the Government − the Judiciary − is an important check and balance.

With this, Mr Speaker, and at this moment through this debate, I find myself not able to support the terms that are proposed in these amendments.

Mr Speaker: Order. I propose to take a break now and suspend the Sitting for 20 minutes. I will take the Chair at 2.30 pm.

Sitting accordingly suspended

at 2.10 pm until 2.30 pm.

Sitting resumed at 2.30 pm

[Mr Speaker in the Chair]

Criminal Law (Temporary Provisions) (Amendment) Bill

Debate resumed.

Mr Louis Ng Kok Kwang (Nee Soon): Sir, the need to extend the CLTPA every five years is an important safeguard which ensures Parliamentary scrutiny to ensure there is 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 Act 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 S 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 four points for clarification, many of which come directly from members of the public.

The first point was about the judicial review and I am glad that the Minister has clarified this in his speech. That will allay a lot of the concerns on the ground.

My second point is on the Advisory Committee. Can the Minister provide information on the number of cases over the past five years in which the Advisory Committees make a recommendation not to detain but this recommendation was not accepted? 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 decision be made against adopting recommendations of the Committee which would have made its recommendation after scrutinising the investigations and documentary evidence, hearing the detainees present their case, and examining the detainees, 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 reasons be publicly made for such a decision?

Another question raised is why there is a need for the CLTPA to cover the offences under the Fourth Schedule when these are already dealt with under their respective legislation? During the last renewal of the CLTPA, Minister S Iswaran, and today Minister Shanmugan as well, had explained that the CLTPA is intended to complement the other legislation like the OCA 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?

Next, the current sections 33 and 34 set out the restrictions on persons subject to a PSO. 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 criminal law Police supervision. Given how intrusive some of these measures may be, it would be more desirable for these restrictions to remain under 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 required?

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 Immigration and Checkpoints Authority (ICA) officers and now CNB officers are an 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?

Sir, 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 GDs, to take into account recommendations of the Advisory Committees, and to also provide reasons when recommendations are not accepted.

Mr Speaker: Mr Ang Wei Neng.

2.35 pm

Mr Ang Wei Neng (Jurong) (In Mandarin): [Please refer to Vernacular Speech.] The CLTPA should be, going by its name, a temporary one. However, in reality, the Act is not temporary at all. It has lasted for 63 years. Hence, many so-called human rights activists and organisations have called for repealing of the Act. Just last week, I received one such email.

However, I do not think we should be influenced by these human rights organisations. We should objectively study the benefits and shortcomings of this Act. Detention without trial is not unique to Singapore. After 9/11, the UK introduced the Anti-Terrorism, Crime and Security Act to allow the Government to arrest people who are suspected of international terrorism and to detain them indefinitely without trial or sentencing by the Court.

In fact, according to a 2014 study by the International Centre for Prison Studies, globally, there are as many as 2.5 million people who are detained without trial. There are more than 200 countries involved, including western countries, such as the United States (US), France, Denmark and Italy. In other words, the practice of detention without trial is not yet ready to be repealed completely at the moment. It is a bit sad. I am not trying to put in good words for bad guys. If the Act is still useful, we have the duty to provide certain safeguards for Singaporeans who are detained without trial.

First, I would like to ask the Minister whether MHA has observed a trend that there are more and more people who are unwilling to come forward to testify in today’s Singapore.

Second, can MHA consider publishing the number of Singaporeans detained under the Act, the reason, the length of detention, and how many have been detained repeatedly.

Third, can MHA consider strengthening the power, influence and responsibility of the Advisory Committee and publish the names of the Committee Members to increase transparency? Please allow me to continue in English.

(In English): Mr Speaker, Sir, we note that MHA has been judicious in exercising the powers under the CLTPA. There were 1,260 detainees in 1988 and it dropped more than half 10 years later in 1998 to 463, and, by 2008, the number has gone down to 290.

In 2013, MHA kindly accepted my suggestion to publish the number of CLTPA detainees and the type of criminal activities the detainees were associated with on an annual basis. In 2013, the figure dropped to 200 and it has been dropping yearly since then and reaching a record low of 109 in 2016. In 2017, it was even lower.

The declining numbers reflect what former MHA Minister Wong Kan Seng said in 2009 that CLTPA is "only used as a last resort when a serious crime has been committed and a Court prosecution is not possible because witnesses are not willing or afraid to testify in Court." And a while ago, Minister Shanmugam has also given the same assurance.

As observed in the annual report of the Singapore Prison Service (SPS) between 2013 and 2016, the types of criminal activities associated with CLTPA detainees were mainly drug trafficking, secret societies, unlicensed moneylending and a few others. However, the current CTPLA amendment Bill, amongst others, adopted a Fourth Schedule where a sizeable list of other crimes was also added.

I would like to clarify with the Minister whether MHA has the intention to use CLTPA for crimes like murder, gang rape, kidnapping, robbery with arms and other organised crimes. Is MHA observing that more and more witnesses are not willing or afraid to testify in open Court?

What are the additional principles that will guide MHA to decide when to prosecute the accused persons in open Court or dealt with under CLTPA? Taking the example of the high-profile murder of Kim Jong Nam in Kuala Lumpur, would this be an instance when CLTPA would be used, rather than an open Court trial?

I also note that under section 28 of CLTPA, the Minister has the power to amend any schedule, and correct me if I am wrong, that the Minister also has the power to amend the new Fourth Schedule by notification in the Gazette without going through Parliament. Does MHA have plans to amend the Fourth Schedule from time to time? For better accountability, could the Minister consider providing an explanation and rationale as and when the Fourth Schedule is amended?

In my early days with the Singapore Police Force, I had investigated a gang rape case involving teenagers, which would today fall under the CLTPA if the Bill is passed. There were challenges in gathering evidence as some of the accused persons and witnesses went into hiding outside of Singapore. Eventually, the case was resolved and the culprits pleaded guilty in Court. If they had been detained under CLTPA, the investigator would have an easier time, but it might have led to concerns by their parents and others over the lack of transparency.

According to the Singapore Prison Annual Report 2016, the number of detainees under CLTPA who were less than 21 years of age were two in 2016, five in 2015 and seven in 2014. Given the declining birth rate in Singapore, each child is getting more precious. Hence, would the Minister be able to clarify why was CLTPA used against such youths rather than charging them in Court? Do these youths have the means, influence and connection to intimidate the witnesses? Of course, the Minister's decision to appoint a senior judge as the Chairman of the Advisory Committee would enhance the standing of the Advisory Committee. However, the process is also important. Could the Minister elaborate more on the process of the hearing by the Advisory Committee?

If a detainee cannot afford to hire a lawyer to defend himself, would MHA consider assigning him a defending lawyer? Yesterday, the Minister said that even a child rapist is entitled to his day in Court and to be defended. So, what more can we deny a CLTPA detainee a lawyer just because he could not afford to pay? Can the family members attend the hearing? How long does it take for the detainee and family members to be informed of the outcome of the hearing? I understand from the family member of the detainee that they may take up to six months before the hearing is made known to them. It is a pretty long period, given that the order is 12 months.

In addition, will MHA consider publishing the names of the esteemed Advisory Committee members for better transparency? In order for Singaporeans to trust the CLTPA processes and legalities, it is important that Singaporeans are kept well-informed.

The CLTPA is a tool which has clearly helped us to ensure the safety, peace and security of Singaporeans over the years. This five-year Parliamentary review is a check and balance for us to periodically ask ourselves if the Act is still relevant, and I support the extension of the CLTPA for another five years. However, it is necessary for us to reassure Singaporeans that safeguards are in place that the amended CLTPA is not abused. With this, I support the Bill.

Mr Speaker: Ms Rahayu Mahzam.

2.44 pm

Ms Rahayu Mahzam (Jurong): Mr Speaker, I declare my interest as a lawyer in private practice.

Mr Speaker, the obvious questions that arise in respect of this Bill include: (a) Is CLTPA still necessary? (b) Does the Act and the extension of the same give the Minister for Home Affairs unfettered powers to detain a person? And (c) Does this amendment seek to extend the Minister’s powers further?

The CLTPA provides the avenue to allow for the detention of persons involved in serious criminal activities where the normal criminal process is found not to be adequate or sufficiently robust to deal with them because of the threat of harm to witnesses or their families. Such situations would continue to occur, as organised and syndicated crimes as well as occurrence of violent crimes continue to exist. We need to be able to deal with such situations effectively to maintain public safety, peace and good order.

Although the legislation grants powers to the Minister, these powers are circumscribed by its provisions. The proposed amendments seek to define these powers further.

Firstly, section 30 of CLTPA provides for the Minister to make DOs or PSOs if the Minister is satisfied that a person is associated with activities of a criminal nature. It is relevant to note that the Court of Appeal, in the much-quoted Tan Seet Eng case, said that it did not accept that the CLTPA "has a loose or open-ended remit". The new Fourth Schedule will list the types of criminal activities in relation to which the Minister for Home Affairs can make orders for detention or Police supervision under the above-mentioned section 30. This list would make it clear to members of the public the specific criminal activities that the CLTPA can be used for.

Secondly, the proposed amendments codify the current case law on the finality of the Minister’s decisions on DOs and PSOs. The Act is an Executive regime and the Court of Appeal in the Tan Seet Eng case has held that Parliament can decide to entrust the power to the Minister to establish the facts of a case, apply those facts to the relevant rules and exercise his discretion accordingly. The finality clause that is proposed in this Bill, therefore, reflects Parliament’s intent to entrust all relevant fact-finding powers under the Act to the Minister and clarifies the current position of the Courts.

The amendment puts in statutes the Common Law position which has been the position all along. What is important to re-emphasise is that the judicial review process is still available. I, therefore, accept that there are safeguards in place to prevent unfettered use of these powers. Mr Speaker, for the foregoing reasons, I support this Bill.

Mr Speaker: Mr Gan Thiam Poh.

2.47 pm

Mr Gan Thiam Poh (Ang Mo Kio): Mr Speaker, Sir, the Ministry proposes to extend the Act for another five years with effect from 21 October 2019. The rationale provided was that it is necessary and relevant for the maintenance of public safety, peace and good order in Singapore.

Various studies rank Singapore as one of the top, if not the top, city in the world for safety and security. In the Gallup Global Law and Order Report 2017, Singapore was ranked top in the "Law and Order Index", ahead of other countries and cities like Iceland, Norway, Switzerland, Hong Kong and Japan. The Economist's Safe Cities Index 2017 also mentioned that Singapore was ranked top for "infrastructure security" and "personal security", and overall second, behind Tokyo. When ranked by population size, Singapore is ranked top among cities with five to 10 million population, ahead of Toronto and Hong Kong. Interestingly, World Justice Project (WJP) Rule of Law Index 2016 also ranked Singapore first for "Order and Security" globally.

The question is whether we can maintain such a high level of security and safety without the extension. Can the Minister share instances in recent years where the powers provided under this Act had been proven necessary? I would also like to know if there had been cases where those involved in the defined criminal activities had continued to be members of triads or secret societies and committed offences repeatedly after their release.

I hope the Minister would also address concerns that permitting indefinite detention without evidence in Court or proof of criminal responsibility can be subjected to abuse of power, as mentioned by other Members in the House. Also mentioned by other Members, one area of concern is that the final decision lies in the hands of the Minister for Home Affairs. There are suggestions that it would be better to leave the decision to the Courts.

As a safeguard, every DO and PSO has to be reviewed by an independent Advisory Committee. After the Advisory Committee gives its recommendation, the Bill proposes that the President’s decision for the order depends upon the advice of the Cabinet. That is why there are questions as to why the President cannot act upon the independent committee’s recommendation without the Cabinet. Perhaps the Minister can provide clarification and share his views regarding these questions.

Sir, I believe all Members in this House, including Members from the Workers' Party, will agree that prevention is better than cure. I believe that they, too, received residents' appeals in the Meet-the-People sessions or house visits or whatever occasion that calls upon us to not wait until things happen for the Government to take action because it will be too late. I believe the Members will not disagree on the good intentions of the Bill which has earned us the reputation as one of the safest cities in the world. With adequate measures in place, all Members can agree or disagree on how to ensure and prevent abuse of power. Once again, I call upon the House, do not wait for things to happen. It will be too late.

Mr Speaker: Mr Christopher de Souza.

2.52 pm

Mr Christopher de Souza: Mr Speaker, a point of clarification. Ms Sylvia Lim had asked me what my view on clause 3 is. I think my view of clause 3 was clear in my speech. I said, since the last time the CLTPA was renewed, there has been a successful appeal on detention under the CLTPA. This case impacts our debate on the Bill for two reasons. One, it sheds light on the implications of clause 3 that says the Minister's decision is final. I have also said that newspapers have reported some concern raised over clause 3 of the Bill. However, this concern can be ameliorated as the clause does not change the law. The Bill supplement clearly says it is to "clarify" the law.

Following Ms Sylvia Lim's clarification of me, I have studied the Dan Tan judgment and my position remains that just because clause 3 inserts subsection (2) to say that the Minister's decision is final, it does not change the law. And the Court of Appeal in Tan Seet Eng, at paragraph 91 of the judgment, it was recognised, and I quote, "there is a fine line between assessment of the merits of the decision that is an evaluation of fact and policy and the assessment of whether the principles of just administrative action had been met."

At paragraph 97 of the judgment, it goes on to say, "In our judgment, while it is one thing to say that the Court must not substitute its view as to the way in which the discretion that is vested in the Minister should be exercised, it is quite another to say the Minister's exercise of discretion may not be scrutinised by the Court at all."

And here is the nub that the Court recognised, at paragraph 73 of the judgment, that "the correct scope of judicial review for this purpose in the context of the Order for Review of Detention (ORD) applications concerned with the detention under the CLTPA is a traditional test. What an applicant must show is that his detention is unlawful on the grounds of illegality, irrationality or procedural impropriety."

Therefore, my conclusion, which is also evident in the first speech that I gave prior to the clarification, is that this inclusion of clause 3 only clarifies that the Court is not to substitute its own decision or look into the substantive merits of the decision. It does not change the judicial review ability of such an order.

Mr Speaker: Minister for Home Affairs.

2.54 pm

Mr K Shanmugam: Mr Speaker, Sir, I thank the Members who have spoken.

First, let me deal with the need for the Act. Mr Gan Thiam Poh has cited several surveys which tell us that we are among near the top for the "safe cities" index in the world, and we are right at the top in terms of law and order.

I have shared with Members the findings of another survey. Here, 93% of our residents say they feel safe when they walk in their neighbourhood at night; 92% say that they rate safety and security in Singapore as good or very good.

The reason is not just the CLTPA. It is the entire criminal justice system. Mr Kok Heng Leun, Nominated MP, cited the Rule of Law index, pointed out and said we were ranked 13th globally. But he left out the fact that, in that ranking, we were ranked first in the world for order and security; and fifth in the world for criminal justice.

He says we can borrow legislation from the UK to replace CLTPA. The UK is ranked 21st in the world for order and security, and 11th for criminal justice. But let us not get carried away with these rankings. They are not the gold standard, the Holy Grail, by which we should automatically judge ourselves. They are only indicative and, sometimes, some of the surveys, the methodologies are highly questionable. So, in the end, we really have to use our commonsense, the facts, as we can see them, what is in front of our eyes, the lived reality in the UK, Singapore and other countries.

As Members, many of us, in fact, all of us, should be on the ground regularly, we know what our residents want, we know what they feel. Will we be happy to have the same situation as the UK?

According to the British Broadcasting Corporation (BBC), a knife or blade was used in a crime every 16 minutes, on average, in the UK in 2016. The number of incidents involving machetes has risen more than 60% in recent years. The Metropolitan Police Commissioner has said the menace of knife crime caused by London street gangs is a "significant issue". They are dealing or trying to deal with problems that we have kept at bay.

And if we look at America – people compare us sometimes – though you have got to look at city for city. In the Gallup Poll in 2017, Americans with a great deal or quite a lot of confidence in the Police stands at 57%, compared with our percentages in excess of 90%. Thirty percent of Americans said they were afraid to walk alone at night in an area within a mile of where they live. These are broad trends. They are not attributable to a specific factor or specific legislation.

But really, we have to think of what works for us and think carefully before we try to cut and paste systems from other countries and, frankly, not be colonised in our thinking. If something works well outside, sure, we should copy it and we do. But we do not copy it simply because it is somewhere else without giving due consideration as to whether it has worked well. And we need the self-confidence to ignore it when others shout loudly that they have the best systems in the world if the facts do not bear that out.

In terms of the timing of extension, Mr Murali Pillai asked: why are we extending the Act now? We are making a number of amendments and I am taking the opportunity to also extend the life of the Act at the same time. I think Ms Sylvia Lim also asked this question. The last debate was in November 2013. That is about four years and three months since the last debate.

We are putting it in a Schedule. I have explained why and I will explain why again. We are putting in more flexibility in terms of our PSOs, as I have explained. You want to tailor the conditions imposed on individuals for rehabilitation, for counselling and so on, it cannot be or it is difficult to have it in the main legislation.

So, since we are making those amendments, we are seeking an extension by explaining it clearly in Parliament. Otherwise, we would have waited. I agree, normally it should be nearer the renewal date, not right at the door but nearer. But since we are doing these other amendments, we are coming with a request for extension as well.

I will now deal with three main issues that Members have brought up. First, the finality clause; second the listing in the Schedule; and third, the safeguards in the Bill.

Several Members have spoken about the finality clause in the Bill. Mr Dennis Tan asked whether the finality clause was intended to exclude judicial review. Mr Kok Heng Leun worried that the amendments removed judicial oversight over the legality of the Minister's decision. Mr Gan Thiam Poh also suggested we need independent Court oversight in the system. I think Mr Pritam Singh, Ms Sylvia Lim and Mr Dennis Tan also had questions.

Let us take a step back. Let me explain this by reference to some broader points and then I will deal with the specific points.

In a criminal justice system, you have trials, you have verdict: guilty/not guilty. For those who are guilty, the penal system provides for punishments. It generally works well in Singapore. It works well because people know that if you commit an offence, you are likely to be picked up. If you are guilty, you are likely to be found guilty in Court. And if you are found guilty, you will face penalties, and all of these will take place fairly quickly.

The exceptions to this process – ISA, CLTPA and, of course, provisions in the Maintenance of Religious Harmony Act (MRHA). It is a deliberate decision by Parliament to make those exceptions. Why? For ISA, the reasons have been explained. For the CLTPA, Ministers for Home Affairs have explained it regularly in this House and I have sought to do so earlier.

The real world comprises gangsters, kingpins, UML attacks, threatening of witnesses, what I said here about the UK. Let me read this out about Sydney. This is from the Sydney Morning Herald, about an incident, it is just one indication, one incident, but it tells you what happens, and why we do not have such things in Singapore. This is 30 January 2012, six years ago, an article: "The leader of Comanchero, an outlaw bikie gang, is refusing to cooperate with police after surviving another attempt on his life, a shooting that also killed his son. Vincenzo Focarelli is in hospital with gunshot wounds, refusing to tell police who shot him and killed his son, Giovanni, 22, at Dry Creek in Adelaide Northwest last night. It was the fourth attempt on Vincenzo's life. He was shot in the leg in December, was also the target of a failed bomb attack by two men linked to the Hells Angels, who both died when the device exploded early. He reportedly taunted his rivals on Facebook a day after surviving the third attempt on his life, including boasting that he had nine lives. He can be seen dancing in a YouTube clip that appears to be promoting life in the Comanchero gang in Adelaide. Detective Superintendent Grant Moyle said, "Police will do everything they could to prevent retaliation", and this is after four times. The detective superintendent was quoted as saying, "I would suggest it was a very planned, targeted attempt on his life", he told reporters that day at an overnight press conference. "It is a concern to us that retribution might take place, but we will do what we can to talk sense into these people.' "

You can just imagine trying to talk sense into them. "He (Vincenzo) has declined to provide us any information that might assist us in identifying the offender. That is a difficulty we face in these particular cases. The people that do know the information are often reluctant to assist the investigation".

So, here you have a man who is publicly known as being part of a gang, whose life has been attempted on four times. His son has been killed, he is in hospital, he is refusing to talk. The police feared that there will be retaliation. The police say, "We will try and prevent it". But we know in the real world what happens.

The article goes on: "South Australian Police Minister Jennifer Rankine will be briefed on the shooting by Police Commissioner. She said police are doing their best to deal with the scourge of outlaw gangs and South Australia had very tough anti-bikie laws. Hundreds of them have been arrested and charged. Hundreds of their associates have been arrested and charged. The frustration is these people have absolutely no regard for the law or, it would appear, for their safety or the safety of the community." The reporter points out that his son also had been attacked before but had refused to cooperate with police investigating the attempted murder. So, police then were going on a door-knocking exercise to try and get evidence.

We do not have these things for one simple reason. It is not that we are automatically different but we have become different. If there are gangs, and there are, we intervene very early and we break them up. We do not allow them to get to this situation. So, this is the tradeoff I talked about. There is no right and wrong approach but you have to be very clear about what the tradeoffs are. Supposing we remove the CLTPA, we are not immediately going to get to Sydney's situation straightaway; we have tough gun control laws as well, but you must expect a different law and order situation.

Some Members might recall, I think it was 2010, seven years now, over a period of three weeks, a series of young boys went on a rampage, different groups. I think one was in Downtown East, a young man was knifed to death, gang attack. And then at Bukit Panjang the following week, there was another attack. Three weeks in a row and people got upset, and they said "What is happening? Do something about it".

The Police took a number of steps, did something about it, but the CLTPA is an essential tool in the arsenal of doing something about these things. Otherwise, every MP will have to answer to your residents because our people value law and order and security very highly. And 93% of the people are not going to say in a survey they feel safe walking in their neighbourhoods.

Our people get upset with UML cases. When paint gets splashed, MPs would have to face them. When their doors get padlocked, when their doors get set on fire, they will come to the MPs and demand that action be taken. And the Government has got to be able to respond.

So, right or wrong, as I have been upfront about it, you can choose either path, as long as you are clear about the tradeoffs. Society, as a whole, must be prepared to accept the tradeoffs. I have come to accept that the path we are taking is probably better for Singapore and for society.

Let me again make a larger point. It is possible to make grand statements about liberty and security if you do not have to deal with real world problems.

Let me go to the US as an example. President Obama, when he was candidate Obama, he thundered "Choice between liberty and security is a false choice", meaning you can both have security and a full set of rights, including due process for all in the Courts in all cases.

Sounds very good, it is very noble. And he promised to close Guantanamo, signed an Executive Order in 2009 to close Gitmo, in fact. But then the US was having trouble finding anyone else who was willing to take all these people in Gitmo. Prisoners there were indefinitely detained without charge; citizens from 49 nations. Youngest detainee was 14, oldest was 89. The President then tried to move them into centres in the United States; there was a big outcry. Senators did not want Gitmo closed and they certainly did not want these prisoners on US soil for all the rhetoric from the US. Majority of the Americans also oppose bringing the detainees to American soil.

So, the President recognised the difficulty almost immediately after he took office. He is a constitutional law professor. So, he said in a 2009 speech after he became President, "There remains the question of the Gitmo detainees who cannot be prosecuted and yet who pose a clear danger to the American people. And I have to be honest here – this is the toughest single issue that we will face". And he said, even after the process is complete, there will be some who cannot be prosecuted because there will be lack of evidence but who, nevertheless, will pose a threat to the security of the US. And he said he is not going to release those individuals. So, that is where reality meets rhetoric.

If you look at Eric Holder, the former Attorney-General of the US, he was giving evidence in Congress about one of the masterminds of 9/11. He was asked what will happen if they tried the man and he was acquitted by the courts? His answer, "We would like the courts to convict him but if for some reason he is acquitted, we will detain him." Again, the reality of the situation.

Members know, for years, we have been lectured about the ISA, particularly by the Americans. But when they faced 9/11, suddenly the situation is different. Of course, CLTPA is not in the same league as ISA. It deals with different situations. It is very different from ISA. The principle behind CLTPA is that there will be some types of criminals where due process will not get them to justice, considering the nature of their duties. Is it better for society to leave them out, or have the CLTPA and use it? Our current approach has led to the current levels of safety and security.

Safeguards, I have mentioned several, including the Advisory Committees, the structure of how we proceed. Now, in this context, let us turn to clause 3. Mr Pritam Singh said clause 3 operates to narrow the judiciary's role. How so? How does it narrow the judiciary's role? He asserts but does not explain. And I have said – I think by now I have said it about four, five times – there is no exclusion of judicial review.

The traditional grounds of judicial review remain. So, here we are. I have explained by reference to, first, logic, in that clause 3 deals with the factual basis for the Minister's decision. Judicial review is separate.

Second, I have explained that a half-decent –and I do not mean it in an insulting way – my basic point is, any lawyer ought to know that, regardless of what I say, clause 3 cannot oust judicial review. That is a fairly basic, fundamental point. Any lawyer ought to know.

So, I have explained it and I have given reasons. I am faced with an assertion from Mr Pritam Singh; and this is the best I can deal with it, unless there are some reasons given to me as to why he thinks, or Ms Sylvia Lim thinks or anyone else thinks that this narrows the judiciary's role.

The Court of Appeal itself says – I have repeatedly made that point; I even read out to Members the various passages – they made the points quite carefully. They set out the grounds for judicial review and we accept it, and nothing here affects those grounds. The Hansard can be referred to in Courts. And I am saying that as a Law Minister. Second, I say it as a matter of law, people will know it.

Third, the Court also said they will accept the Minister's decision on the facts. That is intended to be the structure of the CLTPA, and that is the right approach. That is all that clause 3 does. The Minister's decision is final. What does that mean? You cannot go and appeal to somebody else and say, "Minister made these decisions. His findings of facts are wrong". You can judicially review it on the grounds for judicial review.

The Courts are not to substitute their views of the facts or engage in an exercise of scrutinising the evidential basis for detention. This is all in the Court of Appeal judgment. That is not affected. This is, and has always been, the law.

Mr Pritam Singh asked whether the Courts can go behind the Minister's decision and review the background facts behind the decision for the DO. The Courts are not to substitute their views on the facts for the Minister's views. This is the current position. Read the Court of Appeal's judgment in Dan Tan. As Mr Christopher de Souza and Ms Rahayu Mahzam have pointed out, the amendments are in line with the Court of Appeal’s decision.

Mr Murali Pillai had some questions on the judicial review point. I have explained the approach, the philosophy behind the CLTPA, and that the facts are for the Minister to decide upon.

On safeguards, Mr Louis Ng asked for assurance that the amendments will not dilute the requirement that the Minister has to provide the full GD. It will not.

Mr Ang Wei Neng, Mr Gan Thiam Poh and Mr Mahdev Mohan have asked about abuse of powers. I have talked about the inbuilt procedural requirements, the parties involved and the processes. In the end, when you have given such a power to the Executive, there is a concern that there is some scope for abuse. You try and cut it down. Philosophically, you can say I do not want to have those powers and I am prepared to take the tradeoffs. That is for Members to decide. But you should decide by accepting that if you do not have the CLTPA, then your law and order situation will get worse. How much worse? It is not possible to say, but it will get worse; and whether you are prepared to justify that and take that kind of society.

Let me move on to the Fourth Schedule. Ms Slyvia Lim asked whether having a list will reduce pressure on the Executive to explain and justify each decision. I do not see how this will be so, and again, a misunderstanding. The current requirements under the Act set out under section 30 what the GDs are. Those grounds remain. So, again, I scratch my head when people complain about the Schedule; those grounds remain. All that is being done is that, on top of that, in addition to those grounds, the Minister has got to show that the offence or the nature of the activities are also listed in the Schedule.

Previously, there was one requirement, you show that the facts or requirements of section 30 are satisfied. Now, there are two requirements, you got to show that the requirements of section 30 are satisfied and, in addition, that it has been listed in the Schedule. It is not the case that if it is listed in the Schedule, the person can automatically be detained. It has got to be shown that it was necessary to detain a person in the interests of public safety, peace and good order.

Ms Sylvia Lim had some points and I tried listening very carefully. I have to say I found the points a little difficult to follow. What I got out of the points under here was that: it increases the powers of the Minister. I think these statements are difficult to deal with because they have got to be backed by some reasoning and some logic.

So, I come back to this simple point: you have section 30. It says what the grounds are. That is the situation today. The Court of Appeal pointed out it is not unlimited powers for the Minister; it is not open-ended, but it gives a level of discretion. After the amendments, assuming they are made into law, what is the situation? You continue to need to satisfy the requirements in section 30. So, the detainee is no worse off, the Minister is no better off. The same requirements continue.

In addition, the Minister has got to show that it is listed in the Schedule. So, how does it increase the powers? I think rhetoric has got to match reality. And it is useful to read the clauses carefully before making speeches.

Previously, when there was no list, some Members rose up – at least one rose up – to say, "Why don't we have a list?" Now that we have a list, people say, "Why are we having a list?"

Mr Ang Wei Neng asked how the list is drawn up. Mr Louis Ng asked for the rationale behind the organised crime offences. The activities in the list include criminal activities that have previously been dealt with under the Act, as I have said, or which had been mentioned in Parliament as being within the scope of the Act.

Let us do a bit of thinking. Supposing the Minister lists shoplifting as an offence, and then, based on that, he goes and detains a 12-year-old on the basis that this is contrary to the safety and preservation of public order in Singapore. Do you think that will pass muster on any judicial review? So, one has got to be sensible about these things. It would not pass muster an hour before the legislation is amended, and it would not pass muster after tomorrow.

We included organised crime but it does not mean everything in the organised crime comes within the CLTPA. It cannot do so. But we wanted to pre-emptively, decisively prevent organised criminal groups from establishing a foothold in Singapore. Mr Christopher de Souza is correct to say that this recognises the problems associated with transnational criminal syndicates.

Let me deal with some of the other clarifications that have been raised. Mr Pritam Singh asked whether the Act will be used against foreigners who dabble in organised criminal activities that have an effect in Singapore. The CLTPA can be used to detain a person if he is associated with criminal activities, as stated in the Fourth Schedule, if detention is necessary in the interest of public safety, peace and good order in Singapore. That does not depend on the person's nationality. So, action can be taken against foreigners, if the conditions are met.

Ms Sylvia Lim says, again, in another rhetorical flourish, I will become a global policeman with the Bill. It makes a good sound bite. But it is useful for Members to read the Bill before they make speeches because we are dealing with serious matters involving the safety and security of Singaporeans.

I will repeat again. Not only must criminal activities fall within the list, a DO cannot be issued just because an offence under the OCA is disclosed. It must be brought back into Singapore in the sense that the Minister must find it necessary that the person is detained in the interest of public safety, peace and good order within Singapore. Within Singapore.

I do not know where this global policeman comes, except perhaps it makes for good reading on a website where one can put out these things, sound bites, without reference to the legislation, the Bill or the clarifications.

If, and only if, the criminal activities, wherever conducted, impact within Singapore in the way set out in section 30, we should ask.

Mr Pritam Singh asked what is the threshold of evidence for OCA crimes to fall under the CLTPA. The OCA does not provide for detention without trial. It requires witnesses to give evidence in Court. Where witnesses are not willing to do so for fear of reprisals, the CLTPA can be used as a last resort tool, provided section 30 is satisfied. That is the position today.

Mr Mahdev Mohan, Mr Louis Ng and Mr Christopher de Souza asked about the PSO obligations and why we are moving the list of obligations to a subsidiary legislation. The obligations, as I explained, you will want to look each supervisee and you will want to tailor the conditions according to the supervisee. Some people may need counselling, just as an example, some people may need rehabilitation. These are not detainees. There are conditions imposed on them to come back for urine tests and to be under general supervision.

If it is in the main legislation, we will need to amend the Act each time we want to add conditions in, based on evolving needs. These are all largely operational in nature and it makes sense to put them in the Schedule.

Mr Louis Ng asked about the extension of Police powers to CNB officers. Currently, both the Police and CNB supervise the supervisees but, as I explained earlier, only the Police have the power to investigate breaches of PSO obligations. The amendments will streamline the process, so that we would not need both the Police and CNB officers to be deployed to investigate breach of PSOs involving persons detained by CNB for drug trafficking.

Mr Ang Wei Neng also asked if the Government will publish the names of the Advisory Committee members. I think the members can choose to identify themselves if they wish, and some have done so. But the Government respects some of the members' wishes not to have their identities published. Sometimes, they are also concerned about the people they have to deal with and what might happen to their families.

Mr Gan Thiam Poh and Mr Kok Heng Leun asked about the President's role. Matters relating to the CLTPA do not fall within the President's discretionary powers. The President acts on the advice of the Cabinet.

Mr Louis Ng and Mr Kok Heng Leun also asked whether other legislation could be amended to address the difficulty in securing witness testimony in open Court. The general approach, I have said, where we can, we want to move towards trials. So, these and other suggestions have been considered and are not workable, we have found, because the nature of the trial process is such that it is difficult to have a secret testimony from one witness who cannot be cross-examined and whom the judge can talk to but no one else can talk. It is not the normal trial process. We pretty much have something similar now through the Advisory Committees. But we will review them.

Mr Ang Wei Neng also spoke about persons under 21 who were detained and said each child was precious. I wish to assure the Member that we only act when the risk of reprisals is there. Then, we act against these persons. And the persons detained are not quite innocent children. They used deadly weapons, they recruit other members, they attack people and, in a way, you need to remove them from society so that other people of similar age are not influenced by them. That is how you keep the problem under control. But, where possible, charge them in Court. If not possible, then use the criminal law, if it is necessary to do so.

Mr Gan Thiam Poh wanted to know if there had been cases where those involved in criminal activities had contributed to the numbers of secret societies and whether they committed offences repeatedly. Of those currently under detention, about 17% have been placed under detention previously.

Mr Louis Ng asked about the number of cases over the last five years in which the Advisory Committees made a recommendation to detain but this was not accepted. I can say this: Advisory Committees do, have done so, do recommend against DOs and, in the vast significant majority of these cases, the Government then accepts that advice and instead imposes PSOs. But there have been a small number of cases where the Government disagrees.

Asst Prof Mahdev Mohan asked about the Constitution and the task of the Independent Advisory Committee (IAC), and do they change by reason of these amendments. No, they do not. And they do not change by reason of the appointment of judges. In the past, our approach had been to appoint a very senior lawyer or retired judges. But I felt it would be good to appoint serving judges, but it does not change the nature of the Advisory Committee.

Mr Speaker: Leader.

Debate resumed.

3.35 pm

Mr K Shanmugam: Mr Speaker, as regards the points made by Mr Pritam Singh, so the question is, since I have explained what finality means, we cannot appeal against the Minister's decision on the facts, which is the current position, really, then, Mr Pritam Singh, as well as the other Members from the Workers' Party, and all Members, must ask themselves some questions.

First, what is the current position? Do Members agree that in the current position, there cannot be an appeal against the Minister's decision on the facts? These are fairly basic questions of law. Do you agree or do you disagree? The Court of Appeal has said you cannot appeal against the Minister's decision. The Minister's decision is not to be substituted. It is fairly clear. If that is so, then why do you disagree with the clause which sets that out? So, again, there has got to be some connection between rhetoric and reality.

Mr Pritam Singh also asked whether having Judges sit on Advisory Committees conflates the roles of the Judges and that of the Executive. No. Not at all. The Judges sit as part of the Advisory Committee, they give their views, look at the evidence. If they feel that some things need to be checked further, they can do so. They can call up the investigation officers, they can call for the files, they review these. I think we should welcome what the Government is doing. But if Mr Pritam Singh or anybody else feels that we should not do so, I would like to hear that. Please stand up clearly and say, "No, we do not want Judges in there". Say so and put it on record, if you mean what you say.

Separately, if the detainee feels that the grounds are not adequate and he wants to go for a judicial review, it is open for him to go for judicial review. And, of course, different Judges will hear that application, not the Judges who sat on the Advisory Committee. So, having Judges who are independent adds considerably to the robustness of the process.

Mr Dennis Tan referred to my speeches in 1989. But I think he conflated the 1989 and 1994 speeches. I made two speeches. I have not looked them up recently, but from my recollection, what we are proposing today to have Judges chair the Advisory Committees is similar to what I have suggested in, I believe, 1994. That is 23 and some years ago. I do not think I made that suggestion in 1989; I stand corrected.

At the same time, I think I suggested some additional appointees to the Advisory Committee. That we are not proceeding with.

Mr Dennis Tan also said this is a step back. I would welcome him to clarify why he says that. How is any of this a step back? Again, it is an assertion which is not being substantiated. I am standing here and saying that this does not oust judicial review. I am saying any lawyer would know that. I am referring to the judgments of the Court of Appeal. I am saying that the finality clause refers to the Minister's decisions on the facts, which the Court of Appeal acknowledged, and saying it is crystallising the current position. So, why is this a step back? It sets out clearly. It is better as we go forward.

Mr Dennis Tan also made this suggestion ‒ this is quite a radical suggestion ‒ remove the role of the President, give it to the Courts to review. Essentially, I think you need to be very clear about what is being suggested. Is the suggestion that then we do away with the CLTPA altogether? Because the Courts, as I told Members, is a trial process. Is that what you want? There is a fundamental difference from the CLTPA process which is why I took some time to explain how CLTPA and ISA are processes which stand outside the usual trial process. So, if you say substitute and bring the Courts back in, effectively, you are saying remove the CLTPA, just have the trial process. You are entitled to say it. But that looks to me the suggestion which, philosophically, is very different.

Ms Sylvia Lim made some other points on the finality and timing. Timing I have dealt with; finality I have dealt with. And I have said, on the Schedule, I do not see how it increases the Minister's powers.

Mr Ang Wei Neng also asked about the process of hearing by the Advisory Committee. In accordance with the CLTPA provisions, all orders made by the Minister for Home Affairs must be referred to the Advisory Committee within 28 days from its issuance. The persons issued with the orders will be informed of the GD. They will then appear before the Advisory Committee and could be legally represented. The Advisory Committee will consider and submit to the President a written report on the making of the orders and the recommendations. The President will consider the report once it is received and can cancel, confirm or vary the order, but acting on the advice of Cabinet. That is a very technical, clear meaning. Family members of the accused are informed by my Ministry on the outcome of the hearing once this process is carried out.

I should add this in answer to Mr Pritam Singh's question as to whether there is a conflation of the roles of the Executive and the Judiciary in introducing sitting Judges to the Advisory Committee; I think Ms Sylvia Lim said this in 2013. If I am wrong, I will be corrected. She made what was, in essence, a similar proposal that we have a sitting Judge review the merits of a DO in camera. She said, "If I heard him correctly, he was actually suggesting that a current sitting Judge who was from the judicial branch actually be involved in the Advisory Committee which is also, in a way, what I suggested earlier, except that it was in relation to the Judge sitting alone. Sir, I would like the Minister's comment on that, whether the Government is considering getting a sitting Judge currently in the High Court to be involved in this process, looking at the merits of the DO." I said something like this in 1994 or 1989; Ms Sylvia Lim said something like this in 2013.

Mr Ang Wei Neng asked about the provision of legal counsel to detainees. While the CLTPA is not covered by the Criminal Legal Aid Scheme (CLAS), detainees who cannot afford a lawyer can be referred to the Law Society and they will assist. They have pro bono services and the Ad Hoc Pro Bono Referral Scheme. So, the Law Society Pro Bono Services Office will assess the case and arrange for pro bono legal representation as appropriate.

Sir, I think I have dealt with all the points that Members have brought up. Given that some of the Members appear to have proceeded on a completely erroneous set of assumptions of law, and perhaps a misreading of the Bill, I wonder if they will now change their position when it comes to voting. Because, otherwise, they will be voting on a mistaken basis as well.

Mr Speaker: I will open the time for points of clarification. Ms Sylvia Lim.

3.45 pm

Ms Sylvia Lim: Mr Speaker, three clarifications I wish to make. In relation to clause 3, which introduces explicitly a finality clause into the Bill, the Minister keeps insisting over and over again that there is no change to the law, there is no intention to, he said, "oust" judicial view and so on and so forth.

But if the Government's intention is really to preserve matters as they are and, by that, I mean the extent of judicial review will remain the same as what it was in Dan Tan's case, why bother to legislate at all? Why not leave things just as they are so that everyone is clear that there is no curtailment or even a slight limitation or a change in the scope of judicial review? That would be the simplest solution I think the Government should adopt.

The second clarification, and this in relation to the Schedule, again, the Minister is saying that everything still relates back to section 30. In other words, we have a Schedule there but no matter which activity is being picked, the Minister will still have to be satisfied that section 30 is complied with. In other words, the activity affects the peace, good order and so on in Singapore.

But the fact is that the Fourth Schedule, by importing the OCA now, explicitly has an external focus, meaning that if you look at the OCA, section 48, it defines organised criminal activity to include activities that are primarily conducted overseas. So, this is where my "global policeman" phrase comes in.

In other words, the Minister can now look at activities done overseas and he would simply have to make a statement to say that he is concerned it will take root in Singapore and that would justify a DO under CLTPA now.

Once again, the same question will come up. If the concern of CLTPA remains the same, in other words, the primary rationale is to protect peace, safety and good order within Singapore, there is no need to make all these changes. The law already provides for the Minister to safeguard peace, safety and good order within Singapore under the current provisions.

Despite my own reservations about the timing of the renewal being premature, the Workers' Party would have been prepared to support a renewal of the Act if not for these two changes in clause 3 and clause 8.

So, it would be good if the Minister would clarify whether he is prepared to actually just go back to the status quo, ask for a renewal of the Act for five years, and then we can all support it because we all want Singapore to be a safe place.

Mr Speaker: Minister.

Mr K Shanmugam: 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: Mr Pritam Singh.

Mr Pritam Singh: 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?

Mr K Shanmugam: 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.

Mr Speaker: Mr Pritam Singh.

Mr Pritam Singh: 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?

Mr K Shanmugam: 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.

Mr Speaker: Mr Dennis Tan.

Mr Dennis Tan Lip Fong: Mr Speaker, just a clarification to the Minister. Just now the Minister firstly suggested that I may have conflated his speeches between 1994 and 1989. I have here downloaded from the Hansard, sitting date 4 August 1989.

Mr K Shanmugam: As I said, I have not read them recently. I said I stand corrected.

Mr Dennis Tan Lip Fong: Because that suggestion seems rather unfair to me.

Mr K Shanmugam: No, no, no, what I said is, I think I made the suggestion in 1994, but I heard you saying I said it in 1989. I do not recall saying it in 1989, I thought I said it in 1994, but I will stand corrected.

Mr Dennis Tan Lip Fong: 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?

Mr K Shanmugam: 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: Asst Prof Mahdev Mohan.

Asst Prof Mahdev Mohan: 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?

Mr K Shanmugam: On the first point, is the Member asking whether we will hand over everything that was discussed over to the Courts?

Asst Prof Mahdev Mohan: To clarify, I am asking whether the written statement that is required under section 31 and given to the Advisory Committee – so, whether that written statement, as well as the Advisory Committee's report, will be given to them?

Mr K Shanmugam: 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."

Mr Speaker: Any final clarifications? Mr Dennis Tan.

Mr Dennis Tan Lip Fong: I am sorry, Minister, to belabour this. I am just trying to understand, as a follow-up to the clarification just now on the proposed system for the Judges to chair the Advisory Committee, I know the Minister mentioned tradeoffs. But I do not think he quite explained why did he shift from one position to the other. The way I look at it is that it could be the same one or two Judges sitting there, making a decision either in their capacity as Supreme Court Judges, or as chair of the advisory committee. They could be using the same legal reasoning and all that. But the Minister correctly observed that between 1989 and 1994, he had changed this position and explained that there are tradeoffs. Could the Minister explain why is one preferred to the other?

Mr K Shanmugam: Sorry, is the Member asking me why I changed my mind between 1989 and 1994?

Mr Dennis Tan Lip Fong: Yes, you explained that by 1994, you had changed your mind and that you recommended it, as what you are going to do now – that Judges chair the Advisory Committee. So, my question again is: what made you change your mind? What made you prefer one over the other because, as I have said, if it is the same one or two Judges sitting there using the same experience and training and making the same decision, is the Government concerned that the decision stops there – it overrules the Minister's and it ends there? On the other hand, in the Advisory Committee, there is a further process of presenting it to the President and the President acting on the advice of the Cabinet? I just need to know the reason for preferring one to the other now.

Mr K Shanmugam: 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: Alright, one last one. Mr Low Thia Khiang. Last clarification.

Mr Low Thia Khiang (Aljunied): 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?

Mr K Shanmugam: Mr Speaker, Sir, I think I have gone into some length.

Mr Speaker: Yes, you have, Minister. The Question is, "That the Bill be now read a Second time." As many as are of that opinion say, "Aye".

Hon Members say "Aye".

Mr Speaker: To the contrary say "No".

Some hon Members say "No".

Mr Speaker: I think the "Ayes" have it.

Ms Sylvia Lim: Sir, I call for a Division.

Mr Speaker: Would you like to record your dissent?

Ms Sylvia Lim: Sir, I call for a Division.

Mr Speaker: Will hon Members who support the Division please rise in their places?

More than five hon Members rose.

Mr Speaker: Clerk of Parliament, ring the Division bells.

After two minutes —

Mr Speaker: Serjeant-at-Arms, lock the doors, please.

Question put, "That the Bill be now read a Second time."

Mr Speaker: Ms Sylvia Lim, you have claimed a Division, would you like to proceed with the Division?

Ms Sylvia Lim: Yes, Speaker, I call for a Division to be taken.

Mr Speaker: May I remind Members to please sit at your designated seats. And you should only start to vote when the voting buttons on your armrests start to blink, and please press the correct button.

Members are advised to check that your names are registered according to the vote indication when the voting results are shown on the display screens.

Before I proceed to declare the results of the vote, are there any Members who wish to claim that his vote or her vote has not been displayed, or displayed incorrectly on the screen?

The Senior Parliamentary Secretary to the Ministers for Education and Minister for Social and Family Development (Assoc Prof Dr Muhammad Faishal Ibrahim): Mr Speaker, I believe my name and that of Mr Muhamad Faisal Bin Abdul Manap have been reversed.

Mr Speaker: For record purposes, we shall amend it.

Assoc Prof Dr Muhammad Faishal Ibrahim: Distinctly, I pressed "Yes".

Mr Speaker: So, you distinctly pressed "Yes". And Mr Muhamad Faisal Bin Abdul Manap, I assume you pressed "No"?

Mr Muhamad Faisal Bin Abdul Manap (Aljunied): That is right.

Mr Speaker: We will amend it for record purposes.

Mr Speaker: I will proceed to declare the voting results now. There are 77 "Ayes", 10 "Noes", and two "Abstentions". So, the "Ayes" have it.

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. – [Mr K Shanmugam.]

Bill considered in Committee, reported without amendment.

Mr Speaker: The Question is, "That the Bill be now read a Third time." As many as are of the opinion say "Aye".

Hon Members say "Aye".

Mr Speaker: To the contrary say "No".

Some hon Members say "No".

Mr Speaker: I think the "Ayes" have it.

Ms Sylvia Lim: Sir, I call for a Division.

Mr Speaker: Will hon Members who support the Division, please rise in their places?

More than five hon Members rose.

Mr Speaker: Clerk, ring the Division bells.

After one minute –

Mr Speaker: Serjeant-at-Arms, lock the doors.

Question put, “That the Bill be now read a Third time.”

[Mr Speaker in the Chair]

The Chairman: Ms Sylvia Lim, you have claimed a Division. Would you like to proceed with the Division?

Ms Sylvia Lim: Yes, Mr Chairman, I call for a Division to be taken.

The Chairman: Again, I trust Members have not shifted from your seats. Do remain in your designated seats, and only start to vote when the voting buttons on your armrests start to blink.

As before, Members are advised to check that your names are registered according to their vote indication when the voting results are shown on the display screens.

The Deputy Prime Minister (Mr Tharman Shanmugaratnam): Mr Chairman, sorry, I had meant to record my vote as "Yes".

The Chairman: Duly noted. Senior Parliamentary Secretary Assoc Prof Dr Muhammad Faishal Ibrahim, we will duly make the adjustments between your name and Mr Muhamad Faisal Bin Abdul Manap's.

Before I proceed to declare the votes, do any other Member wish to claim that your vote has not been displayed or is displayed incorrectly on the screens? I have taken note of the adjustments from before, on the two Mr Faisals. I have also taken note of the Deputy Prime Minister Tharman's vote.

The Chairman: I will proceed to declare the voting results now. There are 77 "Ayes", 10 "Noes" and two "Abstentions". The "Ayes" have it.

Bill accordingly read a Third time and passed.