Extradition (Amendment) Bill

Order for Second Reading read.

5.40 pm

The Second Minister for Law (Mr Edwin Tong Chun Fai): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

This Bill updates the Extradition Act 1968. The Act provides for the extradition of fugitives, in other words, the surrender of a fugitive by one state to another in which he or she is liable to be prosecuted or punished. It is invoked when the fugitive flees from the state that he or she has been charged or sentenced to another state.

As then-Minister for Law and National Development, Mr EW Barker, said when the Act was first passed in Parliament in 1968 – "It is not in states' interest to afford refuge to criminals from other countries. On the contrary, it is in states' interests to return fugitives for trial and punishment to the state in which the offence was committed or in which the criminal was convicted."

It is, therefore, important for us to review the Act to ensure that our extradition framework remains robust. As such, the policy objective of the proposed amendments in the Bill is the modernisation of our extradition regime. This will enhance Singapore's credibility as a responsible international citizen to strengthen our ability to combat crime through international cooperation; ensure that Singapore is better able to facilitate extradition where justified; and secure the return of fugitives who have committed offences in Singapore.

Whilst many of the concepts in the Act remain relevant and applicable today, apart from minor amendments in 1970 and 1998, the Act has remained largely unchanged.

My Ministry conducted an extensive comparative study of various common law and civil law jurisdictions. These jurisdictions include Australia, Brunei, Canada, Malaysia, France, Japan and the US, amongst others. To keep in pace with current needs, it is timely to introduce modern concepts, taking into account global developments and international practice.

There are five key amendments in this Bill – two areas of substantive reform and three areas of procedural reform.

There are several other amendments in the Bill which are technical or consequential in nature. I will explain a few of the more material amendments but the Explanatory Note to the Bill describes in some detail the nature of the various provisions in the Bill and I will not elaborate on all of them.

Sir, before I outline the material amendments, it is important to first set out a general overview of Singapore's extradition framework.

There is no general obligation under international law to surrender a fugitive to a foreign state. This is due to the principle of state sovereignty. A mutual arrangement or treaty between states is usually required.

At present, Singapore can extradite:

(a) Fugitives to 40 declared Commonwealth territories under the London Scheme for Extradition within the Commonwealth, and I will refer to this as the London Scheme. The territories within the Commonwealth include Australia, Canada and the United Kingdom.

(b) Singapore can also extradite fugitives to Germany, the US and Hong Kong – jurisdictions with which an extradition treaty or agreement is in force.

(c) State parties to multilateral treaties which Singapore is a party to – such as the International Convention against the Taking of Hostages and the International Convention for the Suppression of Terrorist Bombings.

(d) Finally, Malaysia and Brunei – based on the reciprocal arrangements for the endorsement of arrest warrants.

We have also signed a treaty with Indonesia. When it enters into force, we will be able to extradite fugitives to and from Indonesia on the terms as set out in that treaty.

The proposed amendments seek to strike the right balance between international cooperation and individual liberty. As a responsible global citizen, we must contribute to the fight against crime, by empowering our authorities to facilitate extradition requests, where justified.

However, recognising that extradition is a coercive process, we must also ensure that there are robust safeguards in place. And this Bill seeks to introduce amendments that would enhance: (a) our ability to facilitate extradition requests; and (b) the protection for persons who are wanted by foreign jurisdictions.

Let me start, Sir, with the first substantive reform on the threshold approach.

We will adopt a threshold approach for determining whether an offence is extraditable, also known as an "extradition offence". This would be subject to an exclusionary list. Currently, the Act provides for a positive list approach, where only offences which are on the list would be extraditable. At the time the Act was first introduced, the list approach was the norm. The offences listed in our Act were aligned with the negotiated approach in the 1966 London Scheme.

However, since that time, international practice is moving away from the list approach in favour of the threshold approach. For instance, the London Scheme itself was amended to adopt a threshold approach in 2002. Many other common law jurisdictions, such as Australia, Canada, Malaysia, New Zealand and the UK as well as jurisdictions in France, Germany, Japan and the Republic of Korea, have since adopted the threshold approach.

So, in this case, under clause 2 of the Bill, section 2 now provides that an offence is extraditable as long as it has a maximum punishment of two years' imprisonment or more and is not on the list of excluded offences. The threshold of a maximum punishment of two years' imprisonment or more is commonly adopted internationally. We will exclude some offences which, despite crossing that threshold, are regulatory in nature, and do not warrant the use of state resources for extradition. These are reflected in the list of excluded offences in the new First Schedule to the Act.

Members can have a look at the Schedule and will see offences, such as the prohibition of import or transhipment of fresh fruits and vegetables without a licence under the Control of Plants Act 1993. That is excluded from extradition. Another example – the production of false evidence on the register of trademarks under the Trade Marks Act 1998 and some forms of building control offences or of that nature.

The threshold approach will make it easier to determine when an offence is extraditable. If it attracts a maximum punishment of two years' imprisonment, or more, it is extraditable as long as it is not on the list of excluded offences.

We do not expect this amendment to result in an undue increase in incoming extradition requests. From our experience, our extradition partners have made requests in respect of relatively serious offences. The principle of dual criminality, which requires that extraditable offences be punishable under the laws of both Singapore and the requesting state, will also be preserved in this Act. At the same time, we are expanding the safeguards under which a fugitive's extradition may be refused, a point which I will touch on in a moment.

The second substantive reform deals with the expansion of restrictions on surrender.

We are seeking to update and expand restrictions on the surrender of fugitives in the Act. Sir, a request for extradition may be refused in certain circumstances. These are referred to as restrictions on surrender and there are several restrictions under the current Act.

Clause 6 of the Bill inserts four new restrictions under new sections 8 and 9.

First, where the fugitive was convicted in his or her absence. Conviction in the fugitive's absence is, generally, considered a denial of natural justice and leaves the fugitive unable to contest allegations against him or her. This restriction is consistent with our domestic legislation, section 156 of the Criminal Procedure Code 2010 (CPC). This mandatory restriction, however, does not apply if the fugitive had deliberately absented himself or herself, or if there is an opportunity for retrial.

Where the prosecution of the fugitive is barred in the requesting state by its limitation period. For example, if the limitation period for the prosecution of an offence is 15 years, and the extradition of the fugitive is requested 20 years after the offence was committed, then the requesting state would not be able to prosecute the fugitive by virtue of its own limitation period. That being the case, it would not be appropriate for Singapore to facilitate that extradition, since the requesting state would not be able to prosecute the fugitive upon his or her return.

The restrictions also apply where the offence committed is for a military offence which is not punishable under criminal law. As a tool in international criminal cooperation, extradition is meant to combat crimes, as opposed to disciplinary offences within a military organisation. This is also consistent with the London Scheme, as well as the approach which we have taken under our Mutual Assistance in Criminal Matters Act 2000 (MACMA). This is a mandatory restriction.

The next category is where the remaining imprisonment term for the fugitive is de minimus in nature. This applies to a fugitive who has been convicted and sentenced for a crime in the requesting state. This does not apply to a fugitive who has been charged with but not yet convicted and sentenced in the requesting state. Singapore may reject the request if the remaining imprisonment term which the fugitive has to serve is less than six months. This is the default minimal remaining imprisonment term, unless otherwise stated in the relevant extradition treaty between Singapore and the requesting state.

We have introduced this restriction as it may not be appropriate to extradite a fugitive where the remaining imprisonment term may be shorter than the time required to complete the extradition process itself. This, however, is a discretionary restriction because there may be instances where surrender of the fugitive is, nevertheless, warranted, despite having met the requirement for the discretionary restriction.

The updated and expanded restrictions on surrender will provide more robust safeguards for individuals who are subjects of extradition requests.

Let me move on to the first procedural reform and this deals with consent to extradition.

Clause 6 of the Bill introduces a mechanism for fugitives to consent to their extradition under the new sections 16 and 21. At present, the Act does not allow a fugitive to consent to extradition and all fugitives must undergo the full extradition proceedings. This leads to cases where extradition proceedings continue even though the fugitive has indicated that he or she would not contest the proceedings.

Further, when a Magistrate has committed a fugitive to be surrendered to the requesting state, the fugitive cannot be surrendered until 15 days have elapsed since the committal order, even if the fugitive does not intend to apply for an order for review of the Magistrate's order.

The amendments, therefore, allow a fugitive to indicate to the Magistrate that he or she wishes to consent to his or her surrender at any time after the arrest. A fugitive may also waive his or her right to apply for a review of the Magistrate's order.

This saves state resources and prevents the fugitive from being detained longer than necessary in Singapore as there is no need for a full extradition hearing to be carried out if there is consent. The fugitive will then be surrendered as soon as practicable.

In this case, there are also safeguards. The Court has to ascertain that the fugitive's consent is voluntary and inform the fugitive of the consequences of that consent. A specialty undertaking would be obtained from the requesting state, unless the fugitive waives such an undertaking. This means that the fugitive will only be prosecuted for the offences stated in the extradition request, and not for additional offences. This will ensure the fugitive does not lose an important protection simply because he or she consents to extradition. It also ensures the fugitive understands the full scope of offences for which he or she will be prosecuted for.

This will align Singapore with many other jurisdictions, such as Australia, Canada, Germany, Malaysia, New Zealand, the UK and the US, that allow fugitives to consent to their extradition.

Next, I will touch on amendments which seek to centralise review procedures for extradition proceedings.

The Bill consolidates the applicable procedures for review of a Magistrate's order. After a fugitive is apprehended, a Magistrate will hear evidence as to whether the fugitive ought to be committed to prison to await surrender to the requesting state. The Magistrate will then make an order to either commit or discharge the fugitive. A fugitive who has been ordered to be detained may apply for an order for review of detention under the Criminal Procedure Code (CPC).

However, the Act does not, at present, provide for the Attorney-General, on behalf of the requesting state, to similarly apply for a review of a Magistrate's decision to release the fugitive. We have, therefore, consolidated the applicable procedures for a review of a Magistrate's order in the new section 17.

First, it incorporates the fugitive's right to apply to the High Court under CPC for an order for review of detention. Second, it introduces a new mechanism to allow the Attorney-General, on behalf of the requesting state, to apply to the High Court to review a Magistrate's decision to release the fugitive.

A review of a Magistrate's order does not require permission of the Court and can be on a question of fact or law.

The High Court may make any order or direction as it thinks fit upon the review, and the High Court’s decision is final. This is to ensure that there will be finality to the proceedings.

We have provided for the possibility of the fugitive being released on bail pending the determination of the High Court's review of the Attorney-General's application. This balances the rights of the individual with the state's international obligations.

The new section 18 provides that either party may refer a question of law of public interest which arose during a review by the High Court to the Court of Appeal. This is based on section 397 of CPC.

Sir, we have made these changes to clarify the extradition process. The ability of the Attorney-General to apply for a review of an order to release the fugitive will also remove the need to process extradition applications afresh or re-arrest the fugitive following his or her discharge. This aligns Singapore's extradition framework with international practice and the provisions of the London Scheme.

Next, let me touch on the amendments which update evidential procedures for extradition proceedings.

In deciding whether a fugitive should be committed to await extradition to the requesting state, the Court must consider whether there is sufficient evidence to warrant the extradition. Usually, this evidence is presented by way of affidavits, which can sometimes be voluminous. This includes affidavits of potential witnesses.

Clause 15 of the Bill introduces a record of the case mechanism under a new section 44, which will simplify the procedure for admission of evidence to justify the extradition of a fugitive.

A record of the case summarises the evidence acquired by a requesting state or territory in support of its extradition request. The record of the case must be certified by a judicial or prosecuting authority of the requesting state, who must state that the evidence summarised or contained in the record of the case is available to be produced at the person's trial and sufficient under the law of the requesting state to justify prosecution of the person.

The Court retains discretion in determining the weight to be given to the evidence admitted by way of a record of the case. The record of the case is only permissible if there is a treaty or arrangement allowing for such mechanism to be used. This ensures that there will be reciprocity between Singapore and its extradition partner, and that Singapore will also receive similar treatment when making the extradition request to the foreign party.

The record of the case mechanism facilitates extradition proceedings by simplifying procedures. It is aligned with international practice and is employed by some of our extradition partners, such as Canada and New Zealand.

Sir, before I conclude, let me just briefly touch on some other amendments.

We have clarified that the bail and bond provisions under CPC apply with certain modifications to persons released on bail or bond under the Act. We have also codified the powers of an authorised officer under the Act to search and seize property in the possession of the fugitive at the time of his or her arrest. Such property would be confined to physical items.

Clause 18 of the Bill inserts a new Fourth Schedule to the Act which lists the extradition offences arising from Singapore's international obligations that are currently found in other statutes. This makes the Act self-contained by housing all the extradition offences, which are currently disparate, under a single piece of legislation.

These other statutes implement and give effect to the various multilateral conventions which Singapore is party to, including extradition provisions contained in conventions, such as the Terrorism (Suppression of Financing) Act 2002, which implements Singapore's obligations under the International Convention for the Suppression of the Financing of Terrorism; and the Terrorism (Suppression of Bombings) Act 2007, which implements our obligations under the International Convention for the Suppression of Terrorist Bombings.

The Bill consolidates the extradition framework for foreign states and declared Commonwealth territories into a single framework. These frameworks were previously separate due to the historical fact that the provisions were derived from the Extradition Act 1870 for foreign states and the Fugitive Offenders Act 1881 for declared Commonwealth territories respectively.

Over time, the relevant considerations and safeguards applied similarly across foreign states or Commonwealth territories, regardless of wherefrom the request was made.

We have, therefore, streamlined and combined the frameworks for clarity. The Bill provides for a new Part 3 for “Extradition From Singapore” and a new Part 4 for “Extradition To Singapore”, so, simplifying it into two buckets – to Singapore or from Singapore.

For completeness, Sir, I should add that, aside from minor updating of the language, we have preserved the Part on “Extradition To and From Malaysia”, by way of endorsements of arrest warrants. We recognise that this Part provides a simple and expeditious procedure that has worked well in the past and in practice for the return of fugitive offenders from Singapore to Malaysia and also vice versa.

Mr Speaker, let me now conclude. The amendments in this Bill form a comprehensive update to the Act, taking into account developments in international practice. Extradition is an essential component of international law enforcement and plays a key role in upholding the rule of law. With these amendments, Singapore will enhance its ability to combat crime through international cooperation. Mr Speaker, I beg to move.

Question proposed.

Mr Speaker: Mr Murali Pillai.

6.02 pm

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, I support the policy objectives underpinning the proposed amendments to the Extradition Act 1968.

As outlined by the Minister, the purpose of the Bill is to update and modernise our domestic extradition regime; ensure that there are mechanisms to ensure that resources of the state and judicial system are not over-used; and cement Singapore’s role as a responsible global citizen. As a result, this Bill proposes to make what I believe to be the most substantial amendments to the Act since it was enacted 54 years ago.

For legal practitioners and Government officers in the know, this is not an easy task. As will be seen from my speech, Singapore’s extradition framework is shaped by Singapore’s complex constitutional history and special relationship with several of our neighbouring states. I, therefore, appreciate the difficulties our legislative drafters faced in their attempt to simplify and modernise the Act. If they were to draft this Act from a clean slate, I suspect it would have been a much easier task to do. In my speech, I will cover five areas.

First, I seek clarification on the definition of “foreign state” that is proposed in the Bill.

Second, I seek clarification on two procedural issues. They are the need to retain the Magistrate’s independent jurisdiction to issue warrants of apprehension against fugitives, instead of doing so only when authorised by the Minister; and the absence of a provision that specifies who can make the applications to invoke the powers of the Court under the Extradition Act to issue warrants for apprehension of fugitives and commit the fugitive to be surrendered to the authorities of the requesting state.

Third, I seek a short clarification on how the threshold approach to determining an extraditable offence would apply in situations where the underlying treaty between Singapore and the foreign country specifies extraditable offences based on categories of offences listed.

Fourth, I seek a clarification on the issue of alignment between this Act and the existing extradition framework dealing with Malaysia and Brunei.

Finally, I wish to explore whether a Singapore Court, in deciding whether or not to make the extradition order, may take into account Singapore’s public interest.

On the first area, I note that it is proposed that the definition of what constitutes a “foreign state” in the current Act be retained. This includes a foreign state which had an extradition treaty with the British Empire at the time when Singapore was part of it, unless the Minister stipulates otherwise in a gazette notification. This is how the 1931 extradition treaty between the US and Singapore came into being. It was entered into between the US and UK when Singapore was a British colony. Singapore’s right to this extradition arose in her capacity as the successor by operation of law which was subsequently recognised by exchange of letters between the respective governments of the states in 1969.

As a result of this definition, there remains uncertainty as to which other foreign states may be held to be able to invoke the extradition processes under the Act. This is a point that Prof S Jayakumar, as an academic, made in 1970 in his published article entitled “Singapore and State Succession”. His point was echoed by NUS law lecturer, Ms Janice Brabyn, in her 1985 published article entitled, “Extradition in Singapore and Malaysia”. In her article, Ms Brabyn listed 14 more states that can potentially fulfil the definition of “Foreign States” arising from treaties entered into between 1898 and 1960 with the UK. They include Austria, Denmark, Hungary, Italy, Poland, Portugal, Luxembourg and Switzerland.

In my respectful view, the passage of 54 years since the enactment of the Act constitutes more than enough time for the Government to have ascertained which are the historical treaties that Singapore considers as bilaterally enforceable. This will promote certainty and remove the chance of any dispute on this issue arising in Court, something that Prof Jayakumar was concerned about in his article. He said: “The problem could arise in proceedings to extradite a fugitive to a foreign state on the basis of a pre-Independence Treaty concluded by the UK with that foreign state. The fugitive might challenge the proceedings on the ground that the extradition treaty is not one which 'extends to and is binding on Singapore'.”

May I ask the hon Minister why he is proposing to still retain the original definition of “Foreign State” in these circumstances? Specifically, I wonder if the Minister would consider listing them in a schedule to the Act or by way of subsidiary legislation in the near future.

Turning to the second area, in this Bill, it is proposed that two current mechanisms to commence extradition proceedings in Singapore be retained. Currently, a Magistrate may, by authorisation of the Minister through a notice, issue a warrant of apprehension of a fugitive. In addition, the Magistrate may issue a same warrant through an application made directly to him. My question is: why give the Magistrate the power to issue a warrant independently? Would it not be better to just require any state which wishes to invoke the Extradition Act to make a requisition first to the Minister or the Attorney-General’s Chambers on behalf of the Government through diplomatic channels? I would imagine this is the case for most cases, if not for all.

In my respectful view, it would be preferable for the Minister, or if it is perceived that there is a need to create extra bandwidth, a person or committee appointed by the Minister, to act as a filter to determine the “bona fides” of the requesting state. This is not an easily justiciable question that a Court can decide.

Also, it is specifically provided in the proposed section 12(4) of the Bill that the Minister may direct a warrant issued by the Magistrate without the authorisation of the Minister to be cancelled. Having regard to the separation of powers in our Westminster-style Government, I am concerned about arrogating to the Minister a power to cancel a warrant issued by the Court, which is an independent pillar of our Government. To be fair, this is something which is already in place under the Act now.

Given that the policy intent is for the Minister to be satisfied there is ground to initiate or proceed with extradition proceedings, would it not be better to altogether remove the Magistrate’s jurisdiction to issue warrants against fugitives on his own?

This leads me to the next question as to who can make applications to invoke the powers of the Court under the Extradition Act.

Some provisions in the Mutual Assistance in Criminal Matters Act, or MACMA, as it is often referred to, overlap in purpose with the provisions of the Extradition Act. In both cases, Singapore is being asked to assist foreign states in criminal matters. MACMA deals with evidence needed for overseas criminal proceedings. The Extradition Act deals with persons accused or convicted of crime overseas.

Under section 22 of MACMA, it is specifically provided that it is the Attorney-General (AG) or a person duly appointed by the AG who may apply to the Court for production orders on behalf of the foreign country. Based on my checks, there is no equivalent section in the Extradition Act.

The Attorney-General’s role under the Act is specified only from the point after an order is made by the Magistrate on application for extradition. For example, he may make an application for a review of the order by the General Division of the High Court.

I do accept, in practice, officers of the AGC usually make the applications under the Act. But having regard to the point I made about the general jurisdiction of the Magistrate to issue warrants of apprehension against fugitives and the fact that the definition of “Foreign States” may be more expansive than currently thought, it seems to me open for a party which has interest in a matter to apply and invoke the general jurisdiction of the Court, thereby bypassing AGC. Would it not be better to explicitly ensure that no other party other than the Attorney-General or someone appointed by him may invoke the powers of the Act to extradite a fugitive, just like in MACMA?

I now move to the third area, which is the proposed implementation of the threshold approach. As the hon Minister explained, this means that the offences which are punished by a maximum of two years' imprisonment would automatically be considered extradition offences. This is a shift from the current model which maintains a list of offences which will require an update periodically. I support this move. It makes eminent sense.

I must point out we are enabled to make this move now because there has been, in the recent past, a massive rationalisation exercise to ensure that the maximum sentences for offences have been updated.

This move is also calibrated in that the double criminality principle, requiring the offences to be punishable by a maximum punishment of more than two years’ imprisonment in both the requesting and requested states, is retained.

My question is: how are we able to reconcile this approach with respect to treaties which list offences, as opposed to adopting the threshold approach?

Let us take the US, for example. Under the treaty between the US and Singapore, there are 27 categories of offences. Would the US be able to extradite from Singapore a fugitive wanted for an offence that is not in the list but satisfies the threshold requirements?

The next area I wish to deal with concerns Singapore’s special extradition arrangements with Malaysia and Brunei. This involves a considerably simplified process when it comes to extraditing a person in Singapore accused or convicted of an offence under the laws of Malaysia and Brunei. It is laid down in just one section of the Criminal Procedure Code, section 121, which has five subsections, and all in one page.

Under this arrangement, which, by the way, applies to Singapore reciprocally, too, when a warrant is issued by a Malaysian or Brunei Court, the Singapore Court may just endorse the said warrant and, thereafter, it is treated as a warrant issued by a Singapore Court. This simplified process reflects the special relationship between Singapore, Malaysia and Brunei and I fully support it.

Drawing from my personal experience as a former Police officer, I recall in the early 1990s, I was investigating a case of a girl alleged to have been kidnapped from lawful guardianship. The father of the girl provided information that the accused and his daughter were likely to be in Ulu Tiram, Johor. Within a matter of hours, a Malaysian police officer escorted my colleagues and I to the location identified by the father to look for the accused and the victim.

These special arrangements enable Police officers to pursue criminals even across borders as quickly as possible in an effort to bring them to justice.

Turning to the Bill, I note that in the proposed Part 6, it deals only with the arrangement with Malaysia substantially as it is set out in the Bill. The Bill is, however, silent on the extradition arrangement with Brunei.

One of the objectives of the Bill, as I understand, is to collate extradition offences stated in other pieces of legislation into the proposed Fourth Schedule of the Act. In light of that intent, may I please ask why is it not felt that there is a part under the Act to deal with the special arrangement with Brunei?

May I also ask what is the legislative intent in relation to a Magistrate applying the powers under section 121 of CPC to arrest a fugitive in Singapore wanted by the Malaysian authorities? Is he also to have regard to the requirements in Part 6 of the Extradition Act? I ask this because there is no reference in the provisions set out in the Extradition Act and CPC to each other, even though the subject matter is the same.

My final area deals with the applicability of Singapore’s local public interest to extradition applications here and possible clashes with the policy of other countries. I will do this through an illustration.

Article 11 of our Constitution prohibits a person from being punished for an act or omission which is not punishable by law when it was done. This protection against retrospective criminal laws, however, does not apply universally. For example, Pakistan’s Ehtesab Act 1997, which focuses on corruption by politicians and public officers, has retrospective effect.

Let us consider a case of a country seeking to extradite a fugitive from Singapore for an offence of bribery which satisfies all the proposed criteria set out in the Bill. Does a Singapore Court have a discretion, nonetheless, not to order an order which goes against Singapore’s local public interest? Or is the Court supposed to ignore Singapore’s local public interest altogether? Would it be better to have reserved for the Singapore Court a residual discretion to take action that it deems fit, depending on the circumstances of the case?

In this regard, I wish to point out that under section 22(4)(c) of MACMA, it is specifically provided that a Court, before it issues a production order for the benefit of foreign criminal proceedings, should satisfy itself that the issuance of the production order is not contrary to Singapore’s public interest.

I am also aware that under the proposed section 10(2)(d) in the Bill, there is a discretion provided to the Minister not to order a fugitive to be arrested for “any other sufficient cause”. But based on my consideration of the proposed clause, this clause is not intended to apply to Singapore’s public interest in the matter under consideration. Even if it does, my main point is that the Court should be given the judicial discretion to consider Singapore’s public interest, just like in the case for MACMA.

Sir, please allow me to conclude.

I had argued that there should be clarity on the identity of foreign states with whom Singapore has extradition treaties, given the complexities of her constitutional history. I argued that, for Malaysia and Brunei, with whom we have special extradition arrangements, there should be better alignment with this Act. I suggested that the AG be specifically appointed to invoke all the powers under the Act from the outset and not just from the point of review of an order.

Finally, I argued that, as a matter of calibration, a magistrate should not be given a discretion to issue a warrant of apprehension triggering extradition proceedings on his own accord without the Minister's prior authorisation. On the other hand, for a magistrate deciding whether or not to order extradition, I argued the reverse: that he should be given more discretion to apply Singapore's public interest.

In my respectful view, the proposals I have made are in line with the aims of the Bill.

Our role as legislators involves calibration of matters. Careful calibration is needed to achieve certainty, the judicious use of our state and judicial resources and ensuring that Singapore truly fulfils its role as a responsible global citizen in the arena of extradition of fugitives.

Mr Speaker: Ms Sylvia Lim.

6.16 pm

Ms Sylvia Lim (Aljunied): Mr Speaker, according to MinLaw's press release on 7 March, this Bill seeks to amend the Extradition Act to update and modernise Singapore's statutory regime. It was further stated then that the amendments would "Cement Singapore's role as a responsible global citizen".

Sir, at the outset, it should be noted that the Bill preserves the simplified regime between Singapore and Malaysia for extradition based on mutual recognition of arrest warrants. Similar arrangements exist with Brunei as well, and I understand that these have worked well overall.

However, apart from Malaysia and Brunei, the Bill is proposing notable changes to the existing framework for extradition to and from declared Commonwealth countries and foreign states.

Overall, I find the changes in the Bill to be an improvement, being rational and less technical than the current scheme. In particular, I agree with the removal of the distinct parts of the Act covering declared Commonwealth countries and other foreign states in favour of many common provisions that will apply to all treaty countries.

The other change I support is the threshold approach to determine what offences are extraditable instead of the current scheme of looking at a positive list of extraditable crimes. Once the Bill is effective, the threshold for an extraditable offence will be simply set at offences attracting a maximum imprisonment of two years or more, subject to the list of exclusions. There is also a new provision to enable the fugitive to consent to extradition, saving time and cost. I am overall supportive of the Bill.

That said, I have some queries and an observation to make.

My speech today will cover whether the Government's general approach to extradition has changed; clarifications on safeguards for persons in Singapore against unjustifiable extradition requests; and, finally, an observation about why compromises to secure extradition are justifiable.

First, whether there has been any change in the Government's general approach to extradition. At a general level, I would like to clarify whether this Bill is a signal that the Government is changing its traditional somewhat guarded approach towards entering extradition treaties. Four years ago, during MinLaw's Committee of Supply (COS) debate, I had raised the COS cut on extradition. The specific case used for discussion was that of Mr David Roach who had committed robbery at a bank at Holland Village. Members may recall that Mr Roach could not be extradited to Singapore when he was in nearby Thailand, but only when he travelled through London on the way back to his home country, Canada.

The then-Senior Minister of State for Law, Ms Indranee Rajah, explained at the COS the Government's general approach to extradition. She said that while the Government was open to entering new extradition treaties, such negotiations were complex. Relevant considerations included whether such an arrangement would be mutually beneficial and whether any divergence in legal systems could be rationalised. She also highlighted that if there were inadequate protections, there would be risks to people in Singapore, including our citizens.

Sir, in this Bill, the provisions relating to extradition from non-Commonwealth countries are being brought closer to those available to Commonwealth countries. May I ask if the Government has evolved its thinking such that Singapore sees an interest in concluding more extradition treaties, including with non-Commonwealth countries?

Next, safeguards for persons in Singapore, including citizens. In terms of safeguards against unjustified extradition requests, the Bill provides more protections by enhancing the restrictions on the surrender of persons. Under clause 6 of the Bill, the new sections 8 to 10 set out the restrictions on the surrender of persons in Singapore to other countries, as well as restrictions on the Minister's powers to authorise the apprehension of fugitives in Singapore. There are, overall, more safeguards in this Bill than currently, such as not extraditing someone if he was convicted in a foreign state in his absence, or if the offence alleged is one which, under Singapore law, would only be an offence under military law. I agree that enhancing safeguards is prudent.

Sir, I have a specific query regarding the protections against extradition for offences that may have taken place many years prior to the request. For extradition from Malaysia and Brunei, my understanding is that there is no time bar. Hence, we read of persons wanted in Singapore who are apprehended in Malaysia three or four decades after the incident. As for countries other than Malaysia and Brunei, some protections already exist in the current Act for the Minister to refuse extradition to Commonwealth countries if there has been a passage of time. These protections are re-enacted and expanded in the Bill to apply to all treaty countries.

There will also now be a specific prohibition in the proposed section 8 against the extradition of a person if his alleged offence is time-barred based on the law of the foreign state – a point which the Minister touched on earlier.

Sir, the issue of the passage of time or time bar appeared to be a live issue in the negotiations of the recently concluded extradition treaty between Singapore and Indonesia.

Historically, we know that there has been strong interest from Indonesia to conclude a treaty with Singapore after the Asian Financial Crisis of 1997 to 1998. Shortly thereafter, in 1999, then Law Minister, Prof S Jayakumar, told Parliament that the Indonesians had made a request for such a treaty which Singapore was considering. It is widely known that the Indonesian government wishes to prosecute Indonesians who may have embezzled millions of dollars during the crisis and fled here thereafter. I can only assume that some of those who came to Singapore may have acquired Singapore citizenship by now. A prior bilateral extradition treaty was signed around 2007, but it was not implemented due to hurdles in the domestic approval process in Indonesia.

Sir, I recall reading in media reports that there was an 18-year time bar for criminal prosecutions under Indonesian law. In February this year, Senior Minister Teo Chee Hean told the House that the new extradition treaty contained a provision to allow for retrospective application to extradite fugitives for crimes committed 18 years ago.

I am still unclear about how this would operate. Eighteen years prior to this year would bring us back to the year 2004. Could the Minister explain how this year's treaty would facilitate the extradition of fugitives who fled here after the Asian Financial Crisis after a passage of 24 years? I am not knowledgeable about the requirements of Indonesian law and the Government's clarification of this will be useful for public understanding.

Earlier, the Minister mentioned in the Second Reading speech that when this year's bilateral treaty with Indonesia is in force, Indonesia and Singapore can extradite fugitives based on the terms of that treaty. Can the Minister confirm whether this Bill will affect those arrangements and, if so, how?

Sir, before I end, I wish to comment on a matter that has arisen in recent public discussions on extradition.

In the case of Mr Roach mentioned earlier, the Singapore Government has secured his extradition from the UK after giving an assurance to the UK government that he would not undergo the punishment of caning. After Mr Roach was duly convicted of robbery in Singapore and sentenced to the mandatory six strokes of the cane, the Government advised the President to exercise her constitutional powers to remit the sentence of caning so as to honour its assurance to the UK government.

Some members of the public did not find this to be a fair outcome as Mr Roach did not suffer the full punishment ordered by the Court. A similar situation had arisen in the earlier case of Mr Michael McCrae, who was extradited from Australia in 2005, to face trial here for murder, which carried the death penalty. In that case, the Singapore Government also had to assure the Australian government that the fugitive would not face the death penalty in order to secure his extradition to Singapore.

Sir, it is not wrong for members of the public to expect that anyone who commits an offence in Singapore faces the punishments prescribed by Singapore law even if he has absconded abroad. Nevertheless, a fundamental principle of sovereignty is that countries need not concern themselves with offences committed in other countries. After all, going after criminals on behalf of another country requires time and expense and burdens the country's legal system. If a country has entered an agreement for mutual extradition, it is entitled to set qualifications to its obligations.

This reality is, no doubt, a compromise on certain principles, but it is, certainly, better than letting offenders escape justice altogether.

Mr Speaker: Mr Louis Ng.

6.25 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, this Bill is a welcome reform of our extradition regime. It reduces bureaucracy for a whole slew of parties, including individuals facing possible extradition, jurisdictions requesting the extradition, and judges making decisions on extradition.

I have three points of clarification to raise.

My first point is on the surrender of persons to declared Commonwealth territories. Can the Minister clarify why the surrender of persons to Commonwealth territories is restricted in special ways? For example, section 28 categorises offences against the life of a political figure and their immediate family as non-political offences. What is the significance of this specific carve-out? And why, in general, do additional restrictions apply in cases where Commonwealth territories are the ones requesting the extradition?

My second point today is about Ministerial discretion. Multiple sections in the Bill empower the Minister to exercise his discretion to decide for or against extradition. In section 29, for instance, the Minister may refuse to extradite a person to a Commonwealth territory in multiple cases, including when a person's conviction was obtained in their absence. In section 8(8), the Minister may refuse to extradite a person to a foreign state when their remaining sentence is minimal. Can the Minister share scenarios on how discretion is meant to be exercised for such cases? For section 8(8), when might we choose to extradite someone even though their remaining sentence is minimal? This would seem to run against the intent of the subsection, which is to empower the Government to save resources.

My last point is about the use of summarised evidence. The Bill allows a foreign jurisdiction requesting extradition to provide evidence by, in essence, summarising it. Can the Minister share what mechanisms are in place to ensure that this summary of evidence is sufficient for the Minister to make the required determination under the Act? For instance, section 10 restricts the Minister's powers to order the surrender of persons if the Minister has substantial grounds for believing that the person would be persecuted for reasons of race, religion, sex, ethnic origin, nationality or political opinion. What mechanisms are in place to ensure this summary is sufficient for the Minister to ascertain if such substantial grounds exist?

Notwithstanding these clarifications, Sir, I stand in support of the Bill.

Mr Speaker: Mr Dennis Tan.

6.28 pm

Mr Dennis Tan Lip Fong (Hougang): Mr Speaker, I support the attempt to modernise our extradition regime through the Extradition (Amendment) Bill. I support the streamlining of provisions on extradition requests for declared Commonwealth countries and other non-Commonwealth foreign states into a single framework and also the enhancement of the review procedures for extradition proceedings.

I also welcome the introduction of the threshold approach for determining the extradition offences, which is a major change to the existing list approach. Instead of having to come within specific offences in a list under the existing approach, an offence will now be extraditable under the new threshold approach in this amendment Bill if it attracts a punishment of two or more years of imprisonment, subject to the list of excluded offences. This approach will make for easier applicability and also bring us in line with countries like the UK, Australia, Canada and Malaysia.

The Bill expands also on the restrictions on surrender. In other words, the Bill expands on the list of excluded offences or circumstances which preclude extradition. This also modernises our approach in this respect, adding to the circumstances seen in many extradition treaties.

Mr Speaker, I have a clarification on the prohibition of the situation of a request for extradition for prosecution of offences under military law. Do I understand correctly that the prohibition will apply as long as the fugitive is charged for actions which, if it had happened in Singapore, would constitute an offence under our Singapore Armed Forces Act (SAF Act) and any subsidiary legislation? And so, it should not extend to offences which, if under the requesting country's military laws, the acts leading to the offences might not have come within our SAF Act offences but under another statute, for example, our Enlistment Act offences.

Next, Mr Speaker, I welcome the new provisions under this Bill allowing a fugitive to consent to extradition. I agree that this may save state resources in otherwise having to proceed with a more lengthy extradition proceeding.

However, I would like to seek clarification from the Minister whether a consent by a fugitive will obviate the need for the Magistrate hearing the case to still examine and ensure that, prima facie, the proposed extradition comes within the requirements of the Extradition Act, regardless of and independent of the reasons or circumstances for him or her choosing to consent.

Next, I would like to seek clarification from the Minister whether the new requirements on search and seizure under clause 15, which provides for seizure of anything in the possession or control of a fugitive that may be material as evidence, will cover proceeds of fraud or offences relating to fraud, corruption or graft.

The Bill also introduces a record of the case mechanism. This is supposed to simplify existing requirements and procedures for the admission of evidence to support an application for extradition. Such a record of the case summarises the evidence presented by a requesting state or is to be certified by a judicial or prosecuting authority. While it is supposed to simplify and, while I note that the Bill does provide for the Court retaining discretion in determining the weight to be given to the evidence admitted by way of the record of the case, I would like to ask what are the safeguards against abuses, for example, where there are inaccuracies, deliberate or otherwise, or any inadequacies with regard to the record of the case.

Next, Mr Speaker, I have a point of clarification on clause 16(8)(c). This clause provides that pursuant to sub-clauses 8(a) to (c), the Magistrate is to commit the person to await the warrant of the Minister for the surrender but otherwise, subject to section 17, is to order that person be released. I am trying to understand this clause. May I know in what circumstances should the Magistrate order that this person be released?

Next, Mr Speaker, before I close, I actually wanted to ask the Minister, given the changes to our extradition laws under this Bill and including the provision allowing consent by fugitives, does the Government expect that the amended law will result in an increased number of people being now eligible for extradition for offences committed in home countries in the past. And if I heard the Minister correctly, I think the indication is no.

On a related note, I would also like to ask the Minister whether following the recent extradition treaty with Indonesia, does the Government expect to handle a spike in the number of fugitives being extradited and also whether it is making plans to handle such an increase in volume.

Mr Speaker, notwithstanding my questions and clarifications, I support this Bill.

Mr Speaker: Minister Edwin Tong.

6.33 pm

Mr Edwin Tong Chun Fai: Mr Speaker, I thank the Members for their support of this Bill. Overall, I have heard the Members' comments and some questions as to its operations and processes. But there has been overall support and I will address those questions in turn as best as I can.

Mr Murali Pillai asked why we have proposed to retain the definition of "foreign state" in the Extradition Act and whether we could consider listing the foreign states in a Schedule in the Act or by way of subsidiary legislation.

Sir, in every review, we must consider what is outdated, what ought to be changed and what still continues to work well. And, of course, making the changes and retaining those that continue to work well.

The definition of "foreign state" is one such instance which continues to work well for our present purposes, with slight adjustments. The definitions that we have retained had been updated previously in 1998.

Mr Murali Pillai mentioned that the definition of "foreign state" includes a foreign state which had a treaty with the British Empire at the time when Singapore was part of it and that this could cause uncertainty as to which foreign states may be held to be able to invoke the extradition processes under the Act.

Sir, let me clarify that this is not the case. It has been previously clarified in this House that whilst it is true that before Singapore's Independence, there were extradition treaties entered into by the United Kingdom and other foreign countries in which Singapore was listed in the scope of operations of these treaties, it does not follow that, today, all those arrangements automatically apply to Singapore. In fact, these pre-Independence treaties will only apply where the Government has considered that these treaties are binding on Singapore and where we have published this in subsidiary legislation, as Mr Murali Pillai has suggested. The short answer, therefore, to Mr Murali Pillai's question is that only our pre-Independence treaties with Germany, entered into in 1872, and the US, entered into in 1935, apply to Singapore. The relevant treaties are published as subsidiary legislation in the Federal Republic of Germany (Extradition) Order in Council and the United States of America (Extradition) Order in Council. None of the other pre-Independence extradition treaties entered into by the UK currently applies to Singapore.

Mr Louis Ng asked for clarification as to why there are special restrictions on surrender to declared Commonwealth territories and also why, in general, do additional restrictions apply in cases where Commonwealth countries request extradition. He has also asked about the significance of section 28, which provides that offences against the life or a person of a political figure or a member of the political figure's immediate family, are not offences of a political character. Let me give a brief explanation on how section 28 operates.

The Act contains an existing restriction on surrender in section 9(1), where a fugitive is not liable to be surrendered if the offence is of a political character. Section 28 provides exceptions to this restriction. In other words, the "political character" restriction does not apply in respect of an offence against the life or person of a political figure and his or her immediate family for declared Commonwealth territories. The fugitive may be extradited in such a scenario. This specific carve-out to the restriction on surrender is adapted from clause 12(2)(a) of the London Scheme, which, as I earlier mentioned, would only apply for declared Commonwealth territories.

For completeness, the Member also observed that there are additional restrictions that apply to Commonwealth territories and not to foreign states. These additional restrictions are where the offence was committed outside the requesting state and Singapore and is not an extraterritorial offence under the law of the requesting state; and where the person has become immune from prosecution. The reason that these additional restrictions apply for declared Commonwealth territories is because these are aligned with the London Scheme.

That said, it is not the case that where a request of such a nature is made by a non-Commonwealth territory, that such a carve-out to the restriction on surrender for offences of a political character would never apply.

For all foreign states and territories that are not part of the Commonwealth, the bilateral or multilateral treaty in place would be the primary source of our international obligations to each other in relation to extradition. And this also addresses Ms Sylvia Lim's point about what we do with the new treaties, including that with Indonesia. The treaty terms would prevail.

Some of our bilateral and multilateral treaties contain a similar provision. For example, I pointed out earlier that the International Convention for the Suppression of Terrorist Bombings makes it clear that a terrorist bombing offence is not an offence of a political character. Singapore would similarly be obliged not to restrict the surrender of a fugitive to the foreign state or territory in the event the offence was the bombing of a political figure's residence.

On this note, this brings me to Mr Murali Pillai's query on how the shift to the threshold approach for extraditable offences would be reconciled with our bilateral treaties which adopt the list approach. I think several Members also touched on the question of how you might reconcile this in the context of having a treaty and also the impact that this Bill might or might not have.

I mentioned that Singapore's existing extradition treaties would be the primary source for our international obligations to foreign states and territories. Saving provisions have been drafted in the Bill to preserve the status quo in our existing extradition treaties, which means that amendments would, generally, not apply to our extradition treaties.

Where applicable, however, the threshold approach could, in some cases, widen the scope of extraditable offences under our bilateral treaties and arrangements.

However, this is not the case for the example which Mr Murali Pillai cited vis-a-vis our bilateral treaty with the US. The US would not be able to rely on the bilateral treaty to request extradition of a fugitive wanted for an offence that is not within the categories of offences in the treaty.

This would respect the fundamental principle in international law that the ambit of the treaty governs the obligations between the states.

Mr Louis Ng asked whether we could share scenarios on how the Ministerial discretion is meant to be exercised in deciding to accede to or reject an extradition request. I think Mr Dennis Tan also touched on a question of when the Magistrate might order the release of the fugitive.

To deal with this point – for instance, when would the Minister choose to extradite a fugitive even when his or her remaining imprisonment term is minimal – I mentioned earlier in my opening speech that there may be instances where the surrender of the fugitive is, nevertheless, warranted, even if the remaining imprisonment term might be minimal. For example, there might be significant public interest in the requesting state or territory for the return of that fugitive. And in such a scenario, we might decide to accede to the extradition request even if the requirement for the discretionary restriction has been met.

Let me touch on Mr Louis Ng's queries on the use of summarised evidence and the record of the case mechanism, and what mechanisms are in place to ensure that the summary of evidence is sufficient for the Minister to make the required determinations under the Act.

I had explained earlier that the record of the case mechanism simplifies the procedure for admission of evidence to justify the extradition of a fugitive. For example, it may suffice for a prosecutor of the requesting state to summarise the circumstances of the fugitive's arrest, rather than to include numerous affidavits from each witness and every arresting officer to describe their individual roles and capacities in which the fugitive was apprehended. It provides an alternative means to presenting evidence but does not in any way mean that the bar or the standard of evidence that has to be reached for the threshold for assessment of committal for this fugitive is to be lowered.

There must still be sufficient evidence to prove a prima facie case, in other words, on the face of it, that there is sufficient corroborating evidence that the fugitive, indeed, committed such an offence. The Attorney-General's Chambers and my Ministry will ensure that every extradition request is sufficiently substantiated with such evidence before we accede to the extradition request and commence committal proceedings.

At the committal proceedings before a Magistrate, the Magistrate would similarly need to be satisfied of the prima facie evidence requirement, before the person can be committed to prison to await their surrender to the requesting state.

Mr Louis Ng raised, as an example, the restrictions of the Minister's power to order a person's surrender if the Minister has substantial grounds for believing that the person would be prosecuted for reasons of race, religion, sex, ethnic origin, nationality or political opinion, and what mechanisms would be in place to ensure the summary of evidence is sufficient for the Minister to ascertain that such grounds exist.

Sir, let me explain. Generally, if there is reason to believe that a person is going to be discriminated against, or prosecuted along one of these discrimination grounds, then you are unlikely to find that the evidence submitted by the requesting state would detail this.

On the contrary, if there is a dearth of credible evidence in the extradition request justifying the commission of the alleged offence by the fugitive, this could form a basis and contribute to the grounds for the Minister's belief that the fugitive is being discriminated against or that one of the restrictions on surrender might apply.

For completeness, we would add that Singapore has always required extradition requests from requesting states to also contain undertakings that the fugitive would not be prejudiced or otherwise punished for reason of race, religion, nationality or political opinions. This requirement will remain even with the introduction of the record of the case mechanism.

Mr Murali Pillai asked why the Magistrate's power to issue warrants of arrest by a Notice by the Minister is being retained. Let me explain what this contemplates.

Sir, the reason for the retention of this power is for provisional arrests. Provisional arrest is the procedure that applies for urgent cases where a requested person is deemed to be a flight risk and there is insufficient time for the requesting state to prepare a full extradition request.

As Mr Murali Pillai mentioned, it is preferable, and, indeed, required, for any foreign state or territory to request the extradition of a fugitive through a formal request via diplomatic channels. However, there are, sometimes, cases where there is information that the fugitive is a flight risk and there is an urgent need to detain the fugitive to prevent him or her from fleeing. This allows Singapore to fulfil our international obligations under our treaties.

In such cases, where the overriding concern is to ensure the detention of the fugitive, the quickest way would be for the Magistrate to have the power to issue warrants of arrest without being authorised by a Notice by the Minister. Subsequently, a full extradition request must be submitted by the requesting state within a fixed number of days – the number of days depends itself on the terms of the treaty – and in any event, within a reasonable time.

If, for example, the full extradition request and the supporting documents are not furnished by this time, or the documents are inadequate, or if any of the restrictions on surrender apply, the Minister can then direct the warrant to be cancelled. So, in this case, if after the initial arrest notice has been issued, it subsequently transpires that, upon review of the full set of extradition materials from the requesting state, these thresholds for committal are not met, then, in that scenario, the Minister can ask for the warrant to be cancelled.

To Mr Dennis Tan's point, it is also in that scenario, that if the Magistrate is of the view that the threshold has not been reached, has not been crossed, then, in such a situation, the Magistrate can order a release.

Mr Murali Pillai asked whether a Singapore Court has the discretion not to grant an order which goes against Singapore's public policy. Sir, the short answer to this question is no, but let me explain this.

Under the Act, a Magistrate is only entitled to commit the fugitive to prison if the Magistrate is satisfied that there is sufficient evidence to justify his or her extradition; or the Magistrate has to release the fugitive in all other circumstances. I made that point earlier.

In other words, as long as there is a prima facie case that would justify the trial of the fugitive, or sufficient evidence that the fugitive had been convicted of that offence, the Magistrate must order the committal of the fugitive.

Having said that, in the event that the extradition request from the requesting state does, indeed, go against Singapore's public policy, the Minister can consider if this would fall within any of the restrictions on surrender, which have been enhanced in this Bill. All of these would be grounds on which to refuse the request for extradition.

Mr Murali Pillai asked who can make applications to invoke the powers of the Court under the Extradition Act.

Since extradition requests are made solely at the government-to-government level, as Mr Murali Pillai alluded to, Court applications under the Extradition Act would be made by officers from the Attorney-General's Chambers.

The new section 50 provides that the Attorney-General may delegate to a public officer any of his or her powers under the Act and, in the Explanatory Statement, Members will see that it is elaborated upon that a public officer so empowered may act for the Attorney-General in Court proceedings.

Mr Murali Pillai asked about the arrangements with Malaysia and Brunei and why the reciprocal arrangements with Brunei for the endorsement of arrest warrants are not included in the amended Act; and also asked about the legislative intent in relation to a Magistrate's powers under section 121 of the CPC.

As I have mentioned earlier, aside from minor updating of the language, we have preserved the part on "Extradition To and From Malaysia". This is in Part 6 of the amended Act, by way of endorsement of arrest warrants.

In practice, the Singapore and Malaysian authorities have largely relied on the section 121 of the CPC procedure, which, as Mr Murali Pillai mentioned, covers the same subject matter of the reciprocal endorsement of arrest warrants.

Mr Murali Pillai spoke about the special relationship with Malaysia and Brunei and I think his own experience shows that the officers on all three sides are aware of this and use this procedure. It has been simple and expeditious. Our operational agencies and their counterparts have some history and share a good working relationship on the basis of this established procedure.

As I had earlier alluded to, time is often of the essence in such matters where the fugitive is a flight-risk and familiarity with this working process, the good working relationship on the basis of section 121 of CPC is being retained. Therefore, since the section 121 CPC procedure is used more often in practice, we decided that it was not necessary to replicate this procedure for our arrangement with Brunei in the Extradition Act.

On Mr Murali Pillai's ancillary question, a Magistrate's powers under section 121 of CPC are self-contained. In other words, the Magistrate would not need to have regard to Part 6 of the Extradition Act.

Ms Sylvia Lim raised, I think, two points and one comment, if I am not wrong, let me address them.

First, she asked if this represents a shift or a change in approach. The short answer is no. We have always been desirous of looking at countries which have a common desire to work with us to strengthen comity, international collaboration on apprehension of criminals and bilateral cooperation in combating crime. And to the extent that these arrangements are seen to be mutually beneficial, work for us and that we can overcome any issues related to the divergence of our respective legal systems, then we will be prepared to enter into treaties or arrangements with them.

On the second point concerning, I think it was restrictions, time-bar, if I am not wrong, if the position is such that the offence is time-barred in the sense that that foreign state is unable by reason of the time-bar to prosecute that fugitive in the foreign state, then we will not allow the extradition, on the basis that it would have been a futile extradition because you cannot prosecute that fugitive.

But as to why 18 years, that was the request for that treaty and we acceded to 18 years. It could have been some other period of time but this was the consensus agreed upon with Indonesia concerning that treaty.

Mr Dennis Tan asked several other questions, I will just deal with them quickly before I end off.

As far as the point on military law is concerned, if the offence that the requesting state seeks to extradite a fugitive for is only a military offence, then such a scenario would not result in the extradition being permitted. In the course of apprehending the fugitive, there are search and seizure provisions. These are, as I pointed out earlier, for physical items. But if this leads to other evidence, which suggests that there have been, as Mr Dennis Tan puts it, proceeds of a crime and so on, then the relevant investigations will entail on the evidence which follows such proceeds.

I think I have dealt with section 16 as to when the Magistrate will order the release.

Finally, in relation to the question of the spike, I think I have also dealt with that. We do not expect there to be an unusual or heavy spike. But, of course, with the provisions here, we will have to look at what the caseload might turn out to be. I do not think this will be something that is extraordinary or anomalous, but, as I mentioned in my opening speech, our experience has been that states will continue to seek extradition for the most serious of offences, cases in which there is a significance, for which the fugitive is to be apprehended for serious offences. So, on that basis, we do not expect there to be an extraordinary spike given these amendments. Sir, with that, I beg to move.

6.54 pm

Ms Sylvia Lim: Mr Speaker, I just have a clarification, please.

Mr Speaker: Ms Sylvia Lim.

Ms Sylvia Lim: Thank you, Speaker. Clarification for the Minister on his response regarding the extradition treaty with Indonesia. Basically, can I confirm that he is saying that as far as that is concerned, the terms of the bilateral treaty prevail over the Bill, in that sense? I mean, it is between the two countries to agree.

The second clarification is, as I mentioned in the past, the interest was always to pursue fugitives that fled Indonesia after the Asian Financial Crisis (AFC), which took place about 24 years ago. So, is he saying that the Indonesians are now happy with just going back 18 years and they will just sort out whatever they need to do? Can the Minister clarify that?

Mr Edwin Tong Chun Fai: I think 18 years is the agreed period of time with Indonesia in the treaty. As to how and to what end they want to use that and deal with fugitives arising from the AFC or otherwise, I think that is a call that they make. But on the terms of the treaty, it goes back 18 years.

To the Member's first point, the treaty contains the substantive obligations between the two states. I think I pointed out both in my opening speech as well as my reply to the Member that that is the principle – you look at the treaty and the terms of the treaty and that governs the relationship between the two parties as to the terms on which you extradite or not extradite, as the case might be.

I perhaps want to just clarify one point which I think the Member alluded to earlier in her speech. When I said in my opening speech that there are some cases where you could widen, that might apply, for example, if your treaty is worded in a way which allows you to piggyback on what laws might be amended to. So, if your treaty says all offences which the state might now, or, at some stage, revise their statutes to cover, then, of course, in such a scenario, because it is a moving definition in the extradition treaty, it moves along with any amendments or enhancements that the state might offer, like in this case. So, if what was previously agreed is fixed at just one year imprisonment, you can only extradite for one year, then that would be binding on the parties. But if one says, it is for a period of time, or whatever you might choose at some stage to amend your laws to, then the treaty would follow that provision. So, in that scenario, it might widen, but, otherwise, the principal point is that the treaty obligations between the parties will be binding on the parties.

Mr Speaker: Order. Leader, you might want to move for exempted business.

Debate resumed.

6.57 pm

Mr Speaker: Any other clarifications, please?

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee; reported without amendment; read a Third time and passed.