By: Andrew Loh
In recent years, the actions of the enforcement agencies in Singapore have been called into question not just by the public, but also by the courts.
Such intervention by judges is welcome and is necessary to rein in the authorities’ sometimes over-enthusiastic application of the law.
Calls for the government to relook some of these legal provisions have been made consistently over the years, and in light of the courts’ recent decisions, it is worth looking at these again, and reiterate the need (and urgency) of putting them under the microscope of review.
Access to lawyers
The recent death of a 14-year old student has brought to the fore the need for access to lawyers to be granted to accused persons, and especially juveniles or minors. It is a call which have been made numerous times by various experts, including law professors and presidents of the Law Society, along with opposition political parties.
In brief, allowing accused persons access to lawyers upon arrest is an internationally accepted practice, and Singapore is an anomaly in this, even as it trumpets its first-world status among the developed countries.
It would be entirely repugnant if all that the death of the 14-year old student results in is another piecemeal tweaking of the law which would serve no one. And there is a danger that this would be so, given the police’s statement following the boy’s death – where the authorities said it was reviewing its interview procedures regarding “young persons” and if an “appropriate adult” could be present during such an interview.
This is, as feared, a sign that the authorities are not taking a wider view of things, and will only be doing patchwork to cover holes as and when they appear. In other words, it would be like a dog chasing its own tail.
The police should in fact be reviewing – and eventually allowing – accused persons immediate access to lawyers at the point of arrest.
Rights against self-incrimination
Many Singaporeans may not know that they have a right against self-incrimination. This, in fact, is provided for under the Constitution. The police should, therefore, be required to inform the accused or suspect that he has the right to remain silent, and that he also has a right to counsel.
Parliament should remove any other provisions which currently render such rights useless – such as the vague provisions allowing access to lawyers. Parliament should correct this and insert the word “immediate” into the law, so that there can be no ambiguity as to such rights.
Parliament should also remove provisions which render the right to self incrimination useless, as law professor Ho Hock Lai pointed out in his paper. (See here.) One of these is how an “adverse inference” may be drawn against the accused if he chose to exercise this right to protect himself.
The Singapore High Court has made it patently clear that “warnings” issued by the police are of no consequence in law. In the recent case involving activist Jolovan Wham, who was issued a warning by the police for an event he organised at Hong Lim Park in 2014, High Court judge Woo Bih Li said:
“[In] my view the warning is still no more than an expression of the opinion of the relevant authority that the recipient has committed an offence. It does not bind the recipient. It does not and cannot amount to a legally binding pronouncement of guilt or finding of fact. Only a court of law has the power to make such a pronouncement or finding and this is not disputed between the parties.”
The police and the AGC should therefore stop issuing such warnings, be they conditional or not. The practice should be that if there is enough evidence, the authorities should charge the suspect. If not, such warning should not be issued as they are not only wholly unfair but also could be ruinous to one’s reputation.
In past cases, the police would issue such “warning” or “stern warning” and this is made known to the media, which would then promptly and prominently report them in their broadcast and print channels.
This is patently unfair and verge on defamation, given that the suspect or accused has not been charged, much less be found guilty by any court.
And as Judge Woo said, only a court of law has the power to pronounce guilt or innocence.
Singapore must adhere to the very basis of all justice systems – that one is innocent unless and until proven guilty.
Neither the Singapore Police Force nor the Attorney General’s Chambers should circumvent this principle by issuing warning letters which are then circulated to the media, resulting in a public perception of guilt.
Criminal Law (Temporary Provisions) Act (CLTPA)
The CLTPA has been used in recent times to detain several individuals involved in match-fixing. The most notable case in recent times is that of Dan Tan, who had been held under the CLTPA for two years. He was only released in November 2015, after the Court of Appeal found that his detention was “illegal”.
“Delivering the 80-page judgment, CJ Menon said the detention was “beyond the scope of the power vested in the Minister, which was to detain persons in the circumstances where activities of a sufficiently serious criminal nature threatened to or did undermine public safety, peace or good order in Singapore”.”
Three other members of his ring were also subsequently released from detention but put under the CLTPA after the courts’ decision on Dan Tan’s case.
The problem with detaining them under the CLTPA is that they are being held without trial, and indefinitely.
According to Channel Newsasia:
“Section 30 of the CLTPA allows for a person to be detained for up to a year if such action is “in the interest of public safety, peace and good order” subject to yearly reviews, which may be extended. The law is typically used against criminals of organised crime and has historically been used against drug kingpins, loansharks and members of secret societies.”
TODAY reported that the Court of Appeal had found Tan’s detention “was unlawful and the Home Affairs Minister had overstepped his powers in locking Tan up without trial.”
Even so, Tan was held for two years without any access to the court to challenge his detention.
The police, however, re-arrested Tan a few days later after his release last November.
It would be good if the authorities could explain what exactly the CLTPA – which was formerly used to detain those involved in criminal gangs, organised crime, and drug trafficking – should be used for; and if there are no other provisions to deal with those such as Dan Tan.
Should they also not be given their fair day in court to defend themselves?
Hong Lim Park no foreigner rule
IN Mr Wham’s case mentioned above, the police had brought him for questioning over the alleged involvement of foreigners in the event at Hong Lim Park. The rule for use of the park prohibits such participation by non-Singaporeans and non-permanent residents. Mr Wham and his co-organiser, Rachel Zeng, had in fact made this rule known to the foreigners who were there.
Still, Mr Wham was hauled up and subsequently issued a “stern warning” for it.
There are many events held at Hong Lim Park to date, and the most notable would be Pink Dot, an annual gathering of pro-LGBT supporters. In the last edition, a reported 26,000 people turned up, with many of them foreigners, decked out in pink and participating enthusiastically in the festivities.
The question then is obvious: why has none of them (or the organiser) been hauled up similarly and questioned by the police?
Should not the enforcement of our laws be consistent and fair? Is it time to remove such stipulations in the rules for the park?
Protection from Harassment Act:
Finally, the High Court in December last year laid down that the “Government” does not constitute a “person” under the Protection from Harassment Act (PHA), and thus the “Government” cannot invoke the Act against a blog site.
Judicial Commissioner See Kee Oon, in making this ruling, overturned the earlier one by a district court which had ruled in favour of the government.
The Attorney General, representing the government, has filed an appeal to the Court of Appeal on JC See’s ruling; and the blog site is objecting to the appeal for leave.
Be that as it may, it is worth our time to ponder on what Parliament intended when it instituted the PHA – looking not only at the specific letters of the law but also (perhaps more importantly) the spirit with which that particular law was enacted.
I would argue that, from the readings of the parliamentary debates on the Bill, it is patently clear that the PHA was intended to protect the truly vulnerable from abuse; and not to allow the government or its agencies – which are publicly accountable ones – to use it for its own purpose.
It is time for Singapore to look seriously at some of these practices in its legal and justice system, and improve on them for the benefit of its people and those who practise within the system.
For sure, there are many more such shortcomings or questionable provisions which should be highlighted for possible changes. But for now, these mentioned above should provide some food for thought.
Republished with permission from: https://andrewlohhp.wordpress.com.