Maintaining Public Confidence in the CLTPA

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Editor’s Note: Eugene K B Tan is associate professor of law at the School of Law, Singapore Management University. As a then Nominated Member of Parliament, he had participated in the 2013 parliamentary debate to extend the CLTPA for another five years.

Singapore’s no-nonsense approach towards crime has made public order and security defining features of our society. Singaporeans consistently rate the government highly in the sphere of law and order.

The comprehensive legislative arsenal to tackle the multi-faceted challenges in the fast-evolving criminal activity landscape includes the Criminal Law (Temporary Provisions) Act (CLTPA), which has been in the news recently over the detention of Tan Seet Eng. Interpol had named Tan as “the leader of the world’s most notorious match-fixing syndicate,” linked to match fixing across Europe, Egypt, South Africa, Nigeria, Turkey and Trinidad and Tobago.

Tan was detained for close to 26 months before his detention was adjudged on 25 November 2015 by Singapore’s apex court to be improper. Subsequently, on 5 December 2015, a fresh detention order was issued to Tan, rectifying the previous defective order issued in October 2013.

Much feared by criminal elements, the CLTPA provides the Home Affairs Minister with the discretionary power to detain individuals without trial for renewable one-year periods. The CLPTA has regularly been used in the fight against violent criminal activity such as secret societies, drug trafficking, and loan-sharking.

It is a cardinal rule of law principle that no person should be imprisoned without being charged and convicted in an open court trial. The Government’s consistent position is that the CLTPA is used only as a measure of last resort when an alleged serious crime has been committed and a successful court prosecution undermined because witnesses are not willing or afraid to testify in court.

In November 2013, Parliament approved the extension the lifespan of the CLTPA to October 2019. Notwithstanding Article 9(6)(a) of our Constitution, which provides constitutional protection for the CLTPA, the existence of the CLTPA potentially impinges upon the fundamental rights of all persons in Singapore. Although declining, the number of CLTPA detainees remains a valid concern. According to the Singapore Prisons Service 2014 annual report, 136 persons were detained under the CLPTA at the end of 2014. In 2013 and 2012, there were 200 and 241 detainees respectively.

The recent Court of Appeal’s ruling on the detention of alleged football match-fixing mastermind Tan Seet Eng is significant. The court’s exposition of the limits of the Executive’s powers under the CLTPA and its careful examination of whether the power to detain was properly exercised is to be welcomed. It indicates that the judiciary is alive to the imperative that we do not lose our sensitivity to the fact that such a law is an anomaly for any society that aspires towards the rule of law.

But care must be taken in interpreting the apex court’s decision. The court did not find that the Home Affairs Minister arbitrarily or capriciously ordered Tan’s detention.

In reviewing the exercise of the Minister’s discretionary power, the court took issue with the way Tan’s detention order was drafted. The court also did not find that match fixing was outside the scope of the CLTPA. Home Affairs and Law Minister K. Shanmugam added that there was nothing wrong with the CLTPA and that “a majority of Singaporeans support it”.

Fundamentally, Tan’s detention order was defective because it lacked sufficient grounds to reasonably establish that Tan seriously threatened to or undermined public safety, peace or good order in Singapore, the entire reason of the CLTPA.

The court noted that the detention order had stated that Tan’s alleged match-fixing syndicate activities took place outside of Singapore. But there was no indication that such activities of Tan were likely to take root in Singapore. Furthermore, Tan’s criminal acts had ceased almost two and a half years before he was served with a detention order. Neither was there any suggestion that witnesses were intimidated, resulting in their unwillingness to testify against Tan.

It is surprising that the detention order, which was reproduced in the court’s judgment, could have been so inadequately drafted. How did that happened? Was there complacency?

When the amendment Bill was introduced in Parliament in October 2013 to renew the CLTPA for another five years, I was surprised at the brevity of the amendment Bill. It comprised just two clauses, totaling no more than 50 words!

Given the ruling party’s parliamentary dominance, the renewal of the CLTPA has encountered a relatively easy passage through the legislative process. It is this predictable legislative renewal of the CLTPA that should remind us of the centrality of maintaining public support and their continued buy-in for this severe legislation. All it takes is one such case and public confidence will be severely undermined to the detriment of the public good.

Besides establishing that the law is still needed and that there are adequate and robust safeguards to ensure that the power is not abused, I have a few suggestions to maintain public confidence.

Beyond the Government’s consistent assurance, the legislation must keep up with the tenor of the times. For example, the scope of the CLTPA must also be seriously evaluated. Is the CLTPA too broad in its scope and application? As it stands, the CLTPA has probably too broad a reach. The law extends to the “prevention of strikes and lock-outs in essential services.”

Given the draconian powers under the CLTPA, the CLTPA’s remit should be kept as narrow as possible in its scope and application. For example, can deemed illegal strikes and lockouts in 28 broad essential services come under other legislation dealing with employment or the trade unions?

Secondly, notwithstanding that the majority of Singaporeans support the CLTPA, it is timely for the Government to re-articulate the circumstances and conditions by which the CLTPA will be abolished. While the utility and effectiveness of the CLTPA is an asset in the control of crime in Singapore, we must be very careful that the CLTPA does not become a legal crutch.

The Government believes that allowing the CLTPA to lapse could signal the softening of our tough stance and a weakening of our resolve or ability to deal with serious crimes. However, why should the doing away of the CLTPA be seen as going soft on crime? Is this the only way we can demonstrate our resolve?

Thirdly, renaming the Act should be seriously considered. This is not merely about form but as much about substance. As it stands, the seemingly innocuous sounding title of the CLTPA only invites and provokes an ambivalent response. The law has been anything but temporary. Why not rename the legislation as the “Criminal Law (Preventive Detention and Special Provisions) Act”, or the “Serious Crimes (Preventive Detention) Act”?

As the central pillar of the CLTPA is the power to preventively detain without trial, a name change and the continued provision of a sunset clause would much more accurately reflect the legislative intent and still achieve the policy objectives each time the Government seeks the CLTPA’s renewal.

This year marks sixty years since the colonial authorities first enacted the temporary law in 1955. Since then, the law has been extended thirteen times. We must not retain the CLTPA merely out of habit or convenience, or expedience, or fear that the authorities would be hobbled in their efforts to keep serious crime at bay. No efforts must be spared in the ongoing endeavour to ensure that the CLTPA continues to retain public trust, confidence and legitimacy.

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