by Teo Soh Lung
Most people do not pay attention to laws that are passed in our parliament. We trust our government to enact laws only to protect our interest. Lengthy documents containing loads of legal jargon are boring. I too pay little attention to the making of laws. We leave it to our responsible law makers.
The recent Criminal Law (Temporary Provisions) (Amendment) Bill was no exception. It was only after a member of Function 8 drew my attention to the bill that I checked it.
As I read the bill, I was horrified. How could our government present such a bill to parliament? Not only did it seek the extension of the life of a law that was not meant to last more than 3 years, it seeks to extend its ambit and exclude the judiciary from reviewing any detention order made by the minister for home affairs.
The bill seeks to insert this clause regarding the minister's detention order:
“Every decision of the Minister on a matter in subsection (1) [the detention order and police supervision] is FINAL”. [Emphasis mine].
I was immediately reminded of the time the Internal Security Act (ISA) was amended to exclude judicial review for ISA cases in Jan 1989. The amendment to section 8(b)(2) of the ISA read:
“There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.”
Just a month before the amendment, four ISA detainees had won a landmark victory in the Court of Appeal. The court held that there must be a limit to the exercise of power i.e. the court has the power to review the orders of detention signed by the minister.
The government was exceedingly unhappy with the verdict and immediately rushed the above amendment through parliament of which 80 out of 81 were PAP members.
Is there a difference between “Every decision of the Minister on a matter in subsection (1) is FINAL” and “There shall be no judicial review in any court of any act done or decision made by the President or the Minister ...”
My suspicion as to why the government wants to include the finality clause in the CLTPA which like the ISA allows indefinite detention without trial is this. In Nov 2015, Dan Tan who had challenged his detention under the CLTPA was ordered to be released by the Court of Appeal which ruled:
“While...these acts are reprehensible and should not be condoned, there is nothing to suggest whether, or how, these activities could be thought to have a bearing on the public safety, peace and good order within Singapore.” (My Paper, 26 Nov 2015).
Dan Tan was re-arrested shortly after and I believe is still in prison today.
If the amendment bill is passed, it is likely that judicial review will no longer be available for CLTPA cases. That will not be the end of the matter for Singaporeans. I can envisage more and more laws to contain this finality clause. Our judiciary will be rendered powerless and unable to protect the people against injustice.
In my earlier article, I gave instances of people being unreasonably detained without trial by the executive and why the 14th extension of the CLTPA should be stopped. Let me conclude my opposition to this amendment bill with a case I handled as a young lawyer in the 1970s.
One day, a well built man who spoke only the Hokkien dialect came to see me. He was charged for armed robbery with a gun. He told me that he and his accomplices were approached by the owner of a jewellery shop to rob his shop with toy guns so that he could claim money from his insurers. He instructed me that he wished to plead guilty to the charge which carried a term of imprisonment and mandatory caning.
I was shocked that he wanted to plead guilty to an offence that he did not commit and was willing to accept caning. I advised him to claim trial but he begged that he wanted to plead guilty. He said his accomplices also wanted to plead guilty. He told me that the investigating officer had threatened him with indefinite detention under the CLTPA if he did not plead guilty or dared to instruct a lawyer. He didn't want to be detained indefinitely under the CLTPA.
When I persisted that he should claim trial, he finally told me that he had a 2-month-old baby and he wanted to be with his child and did not want to be imprisoned indefinitely. If he pleaded guilty, imprisonment would be for a fixed term. But under the CLTPA he would never be able to be with his child.
All persuasion to get him to claim trial failed. Finally, I told him that he should at least let me write a letter of representation to the attorney general, to reduce the charge in view of the facts of the case. And if the attorney general refused to amend the charge to something less than armed robbery, then he can discharge me and plead guilty himself. He reluctantly agreed.
I recall that a few days later, I read in the newspapers that the District Judge, Mr Michael Khoo had chided some lawyers for pleading guilty on behalf of their clients for armed robbery of a jewellery shop. Their clients' plea of guilt was rejected and they were told that as lawyers, they should know that from the facts of the case, their clients were not guilty of armed robbery!
The fear of indefinite detention under the CLTPA is real. The threat of its use by a police officer is sufficient to instill fear in an accused person and cause him to plead guilty to an offence he did not commit. Can we be sure that the minister has never detained innocent people under the CLTPA? The detention of the late Subhas Anandan has proven how dangerous such a law is.
Under the law, the minister signs the detention order. He relies on the public prosecutor, who in turn receives information from police officers. In all likelihood, it will be a case of trust – the minister trusting the public prosecutor to do his work diligently and the public prosecutor trusting his police officers to be honest and conscientious in their work. If everyone in the chain is honest and conscientious, we may be safe. But the problem is that we are human and we cannot assume every person to be honest and conscientious. One wrongful detention is sufficient to shake our confidence in the law and damage the good name of the entire police force. We need independent oversight of the executive. The judiciary is best suited for this task.
The CLTPA like the ISA terrorises ordinary people. They know that under these laws, imprisonment is indefinite. I have acted for clients under the CLTPA and appeared before the advisory committee. I know the futility of appearing before such committees. Just before my first release from detention under the ISA, I was asked if I would like to be appointed as a member of an advisory committee. My response was “I don't lend credibility to such a committee.”
Advisory committees will never be a substitute for the judiciary and a full and open trial. If we really believe in the rule of law, we should ensure that the executive never usurp the role of our judiciary. The power to decide guilt or innocence and the imposition of sentences belong to the judiciary. Detention without trial has no place in our country which claims to belong to the first world.