S Jayakumar
Singapore
“It is well and good for countries to announce various targets and emissions. But one vexing issue ultimately is: what will be the method for verifying compliance with each country's announced measures? Another vexing issue, of course, is the issue of financing.”
“I would appreciate it if she were to give me some specifics of the negative feedback. But the general feedback I have had about our judiciary, both of the Supreme Court and the Subordinate Courts, has been nothing but positive.”
“Mr Speaker, Sir, the information that I have is that there is always medical advice present when caning is administered and that if the medical opinion is that caning cannot proceed beyond a certain point, that medical opinion will be observed and the caning will not proceed.”
“Mr Liang Eng Hwa asked the Minister for Transport in view of the recent announcement to make immediate improvements to the public transport system (a) whether the Ministry has set a timeline for the increase in frequency of feeder bus services; and (b) whether the Ministry can immediately target such services that are currently running at…”
“SCDF will continue to work with HDB and other relevant agencies to ensure that such older buildings with one exit staircase meet the prevailing fire safety requirements when they undergo major renovation or upgrading works. CIVIL SERVICE PENSIONERS 3.”
“The Parliamentary Secretary to the Minister for Community Development, Youth and Sports (Mr Teo Ser Luck) (for the Minister for Community Development, Youth and Sports): Mr Speaker, Sir, with your permission, I would like to take Mrs Jessie Phua's and Dr Lim Wee Kiak's questions together as they both relate to the same issues.”
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“And I would like to know whether he denies saying this, stands by it, maintains the allegations or withdraws the allegations. Finally, Sir, Mr Chiam throws the quotations of the Prime Minister and myself on what we said about the Privy Council. I was wondering when these quotations were going to be thrown at us. Did I say this? Yes, I did. I always thought for sometime that it is good to have appeals to the Privy Council, provided (and that is a very important proviso) that the Privy Council remains relevant to the circumstancesand conditions of our time. I have shown at the previous sitting how United Kingdom laws, trends in judicial interpretation, have gone off in divergent trends unsuitable for our purposes. So it is really with some reluctance, if not sorrow, that we are cutting off appeals to the Privy Council. At our last sitting, I said that we are not just in security cases concerned about appeals to Privy Council but in other cases as well. Since the Member referred to this quotation, let me also for good measure ask him to look at what I said on 17th March 1981 when I was a Backbencher, a few months after my election. This was when the Prime Minister had spoken about the difficulty in getting judges and he remarked that we may have to employ expatriate judges. I then said: (Vol. 40, No. 8, col. 707). 'I wonder whether an expatriate judge would have that sense of appreciation of the policy underpinnings of certain laws which he might have to administer in cases appearing before him. I am thinking particularly of cases like Constitutional Law cases where this may impinge on important national interests and the judge ought to have an awareness of the social and political underpinnings of the laws.”
“I have indicated at a previous sitting what is the opinion of the Attorney-General on this case, how the Privy Council did not hear the Attorney-General, how important legal arguments were consequently not fully addressed. Although we are taking our time on the rest of the implications of appeals to Privy Council, there is no embarrassment in saying that certain decisions do cause us to crystallize our thoughts and act without delay. Then he talked about Francis Seow. I think after the revelations of Mr Francis Seow, residents in Eunos will know what a narrow escape they had, how close they came to electing a person like Mr Francis Seow and they must be very grateful that the result was what it was. Dr Lee Siew-Choh said these amendments are for Mr Francis Seow. But he did not tell us when Mr Francis Seow is coming back. That is important because Mr Chiam says the timing is wrong and that we should wait for Mr Francis Seow to come back. But supposing he does not come back. We do not move these amendments at all? It cannot be. When is the right timing then? Do we wait for Mr Francis Seow to come back? And Dr Lee Siew-Choh does not tell us when his colleague is coming back. We should hold this amendment in abeyance, indefinitely perhaps. We cannot do that. Sir, Mr Shanmugam has pointed out that Dr Lee Siew-Choh insinuated that Mr Jeyaretnam was struck off the rolls for political reasons. This is a very serious allegation, as Mr Shanmugan has pointed out. It is a very serious allegation because striking off is by a court of three judges. And to say that this is for political reasons is to make a very serious allegation and I like to remind him that his predecessor was subjected to a penalty and was chastised by this House for making similar allegations.”
“I have taken his point. We may indeed have to review the legislation for other professions and it will take us some time to do that. I want to thank him for the suggestion. Sir, let me now deal with the points raised by Dr Lee Siew-Choh and Mr Chiam. Dr Lee Siew-Choh, after a few sittings, I think if we close our eyes, we are under the impression that it is Mr Jeyaretnam talking! I know that he is, if I may borrow a phrase from Mr Jeyaretnam, beholden to Mr Jeyaretnam for many matters. But I hope that he will give us some refreshing views of his own instead of appearing to sound like Mr Jeyaretnam all the time. Sir, he asked: is this a knee-jerk reaction to the Privy Council decision? I have already spoken on this at length at the previous sitting and I explained that the whole question of appeals to the Privy Council has been under consideration for some time. I even revealed extracts of correspondence between the Prime Minister and one of the Law Lords dating back several years. And I pointed out that we are taking our time to consider the overall appeals to the Privy Council. But I am not in the least bit embarrassed or apologetic in saying that in certain areas such as this or on ISA appeals, some events or decisions do bring matters to a head. They crystalize our thoughts and we introduce amendments. In the ISA case, we have been concerned for some time, for instance, about appeals to Privy Council on security matters after the Spy Catcher case. But matters are brought to a head when our Court of Appeal expounded the principles and the cases in the Commonwealth and other countries which they are going to follow. So I came to the House and amendments to the Internal Security Act and to the Privy Council on security cases were tabled. So also here.”
“Likewise, as Mr Davinder Singh pointed out, if the disciplinary body answers that question in the affirmative - yes, it does imply a defect of character rendering him unfit for his profession - it is still open to the disciplinary body to look at the facts of the case in the surrounding circumstances to decide whether the penalty should be a reprimand, a fine, censure or a more extreme penalty such as suspension or striking off the rolls. And this amendment does not prevent a court of 3 judges or adisciplinary body from looking at the conviction for those purposes. Then what does the amendment seek to do? What the amendment seeks to do is that the disciplinary body, a court of 3 judges, cannot review the merits of the original criminal conviction and to inquire into the legal validity of that conviction. In other words, what this amendment seeks to do is to say that in the disciplinary process, the IC, the DC and the court of 3 judges, cannot go behind the conviction and to confer on themselves, either an appellate judicial function or a revisionary judicial function, of a court of appeal. In other words, we must keep distinct the appellate (or a revisionary power if there is one in a particular case) and the disciplinary process. That is all that the amendment seeks to do. If the disciplinary body and the court want to look at the conviction for purposes of determining what is the appropriate penalty or for the purpose of determining whether the conviction renders him unfit for practising his profession, it is open to do so. And those provisions of the Act have not been altered. The point has also been made, I think by Mr Davinder Singh, and others whether we should not look at the other professions, as far as the finality of the convictions is concerned.”
“Let me now, Sir, take up the points of Mr Shanmugam, Mr Davinder Singh and a few others who touched on the question of the provision of making the convictions final and conclusive. Mr Shanmugam expressed the view that the court should have the power to review the convictions in exceptional circumstances. The point to be borne in mind is that if we do not make this amendment, surely each lawyer who is on a disciplinary charge must be tempted to argue that his case is an "exceptional" case and soon "exceptional cases" will become the norm. The amendment on this point - to make the underlying convictions final and conclusive - does not mean that the court cannot look at the facts of the case under any circumstances. In fact, Sir, Mr Davinder Singh has explained this to some extent - the court not only is prevented but may have to look at the circumstances of the case because under the Act, section 80 provides that if a person is convicted of criminal offence implying a defect of character which makes him unfit for his profession, it must follow that the disciplinary body or the court of 3 judges can look at all the facts of the case, in other words the criminal conviction, to come to a decision whether this conviction of that offence does or does not imply a defect of character which makes him unfit for the profession. The amendment that is before the House does not prevent the disciplinary body or court of 3 judges from doing that.”
“The purpose of the 1DPM was to give an opportunity to the President and his Council colleagues to expand on their views and to convince 1DPM with good arguments that the amendments should not be proceeded with. He told them that he could understand the emotional reaction or natural reaction which lawyers would have to the removal of appeals to the Privy Council. This was understandable. However, as 1DPM also put it to the lawyers, the key issue was whether any serious injustice would be caused by these amendments. He noted that this was not the case as even after the amendments, the lawyers would have several tiers of appeal or disciplinary processes ending up in a court of 3 judges, a feature which no other profession had. Similarly, on the question of making the convictions final and conclusive, the Law Society argued against the amendments. But 1DPM explained that if we did not make these amendments, the disciplinary process could be converted into an unauthorized appeal on the convictions. On the third question of the composition of the Board of Legal Education, 1DPM and I informed them that the intention was that of the eight persons to be appointed, a good number would be advocates and solicitors. There was no intention not to do anything else. We took their point that the role of the Law Society should be given recognition and we informed them that this provision will be modified. Members will note that I have tabled an amendment which will be taken up during Committee stage. Sir, I think the meeting was useful in that it enabled them to put across their views to us, and at the same time for them to understand the Government's position on this matter.”
“Let me say that the Government will consider these suggestions but it will take some time, during which we will also study changes proposed in the United Kingdom Green Paper, mentioned by the Chairman of the GPC, to see if there is any proposal there which would be also useful to us. And if there is any merit to all these proposals, they can be taken up when we next amend the Legal Profession Act. Let me add that we are indeed examining other provisions of the Legal Profession Act such as the provision which restricts judges from practising law when they retire or leave the Bench. Sir, this provision has discouraged several good lawyers from accepting appointments as judges. This is a problem which Dr Wang Kai Yuen also raised in his speech. It is settled convention in Britain as well as the old Commonwealth countries that judges upon retirement do not re-appear as advocates in the courts over which they presided. But this should not prevent us from considering procedure where they can practise as solicitors without appearing in the Courts. So after considering the changes that have been made in other old as well as new Commonwealth countries, we will amend this section of the Legal Profession Act. The Chairman of the GPC also asked if I could give some information on the meeting which the First Deputy Prime Minister had with the Council's President and members of his Council. The President of the Law Society wrote to the Prime Minister asking for a meeting and the Prime Minister replied stating that as the 1DPM was in charge of matters such as this, First Deputy Prime Minister would meet with the President, Vice-President and five other representatives. The meeting took place on 9th February at which the Attorney-General and I were also present.”
“Other Members have also spoken that perhaps that there should be a permanent Court of Appeal or that there should be reference to a single High Court judge and then to a Court of Appeal. And the Chairman of the GPC asked if the Government would be receptive to his proposal. Let me say that the Government will be prepared to consider this or any other proposals which will improve, strengthen, or make more effective the existing disciplinary procedures. In fact, Mr Speaker, Sir, in the past few days I also received a proposal from a retired judge, Mr Choor Singh, who also serves as a Chairman of the Disciplinary Committee. He has asked us to consider several changes. For example, he has proposed that we consider conferring on the Disciplinary Committee additional powers - powers to impose a penalty of a fine, reprimand, censure, suspend and/or strike off lawyers from the rolls. His argument was that under the revamped procedures, we now have retired judges, very senior lawyers, serving the Disciplinary Committee and we can give the powers because at the moment the Disciplinary Committee does not have the power to impose a fine, suspend or strike off the rolls. He also asked to consider that from the Disciplinary Committee with such additional powers, there can be an appeal to a single High Court judge, and thence to the Court of Appeal. Some lawyers, like Members in this House, have also proposed that, as a consequence of abolition of appeals to the Privy Council, we also consider changes to the system so that instead of a reference to a court of 3 judges directly, it should be to a single High Court judge and then to a Court of Appeal.”
“The Inquiry Committee, for instance, makes a report to the Law Society Council on its findings, and the Council has to take a decision. So there is a decision. And if the Council determines that - there must be a reference to the Disciplinary Committee; in fact, the Law Society Council has no choice; it must refer to the Disciplinary Committee. So in that sense, the Inquiry Committee's decision is effective. Then take the Disciplinary Committee. Is it just an investigative body? It is almost like a full-blown trial. There is a prosecutor appointed to prosecute and the lawyer who is subject to disciplinary proceedings has counsel; in quite a number of cases, Queen's Counsel. True, the Disciplinary Committee can either make a finding that there is a cause of gravity or there is not sufficient cause of gravity for reference to aCourt of three judges, or it can reprimand. But its finding is effective. In other words, if it finds that it must be referred to a Court of three judges, that is binding and it goes to the Court of three judges. It is a decision. The second comment I want to make is that if that is the view being held that a Court of three judges is viewed as a first body that makes the decision - effective decision of striking off, censure - then of course it can be easily taken care of, couldn't it, by having it restored to the same position of the other professions. In other words, the Disciplinary Committee can be given the full panoply of powers - reprimand, fine, censure, and strike off the rolls, and an appeal to a court of 3 judges or a single High Court judge. The question is, which is the most appropriate solution?”
“Mr Speaker, Sir, I wish to thank Members for the views that they have expressed in the debate and for those who have supported the Bill. Let me now take up some of the points which were expressed. First, I will comment on the points raised by the Chairman of the GPC for Law and Home Affairs, Dr Arthur Beng, who supported the Bill. He also conveyed to this House a summary of the views, as he understood, which the lawyers had. I was familiar with some of the views that he recounted but I was not familiar with one particular view which I found rather surprising. It was this: that the lawyers want extra tiers of appeal because the other professionals, the doctors, accountants, architects, etc, who are subject to their disciplinary proceedings for misconduct are non-lawyers being defended by lawyers. In other words, doctors, accountants, and others, have lawyers, who are strangers to their profession, defending them. But as he put it, lawyers who are subject to disciplinary proceedings have the tragic misfortune of being represented by one of their own species. I hope the lawyers who express this view, are in the minority because they are expressing very little faith in their own brothers-at-law. The other view which several Members referred to is that lawyers are concerned or feel that the disciplinary bodies, like the Inquiry Committee and the Disciplinary Committee, are not decision-making bodies but investigative, fact-finding bodies. The real decision, according to their view, is made only by the Court of 3 judges, and therefore, there is a sense of unfairness that there is no further appeal. I have two comments on that. First, that is not really correct. It is not really correct to say that the disciplinary bodies only recommend or investigate.”
“These disciplinary bodies, as reconstituted in 1986, have been functioning satisfactorily and the amendments are based on the experience of the last two years and are intended to make changes for the better administration. These are really procedural matters concerning disciplinary proceedings and to expedite the work of these bodies. They provide for a larger number of advocates and solicitors and lay members to serve on the panels of Inquiry Committees in order to lighten the workload. The amendments will also improve the manner in which these committees will carry on the work and to carry out the work effectively. It really streamlines the procedures of these committees. For example, an Inquiry Committee will now be able to meet when they wish and also to dispense with the formal meeting where circumstances so warrant. Finally, Sir, another significant change introduced by this Amendment Bill is the introduction of provisions to give the Senate of the Academy of Law the power to appoint leading lawyers in private practice and in the Legal Service as Senior Counsel, ie, Senior Counsel of the legal profession. Only those lawyers who by virtue of their ability, standing at the Bar or special knowledge or experience of the law who deserve the distinction and the title of senior counsel will be appointed. Our Senior Counsel will, in effect, be the local equivalent of Queen's Counsel in England and it is hoped that these leaders at the Bar will provide the inspiration for the younger members of the profession to strive for excellence in their profession. Sir, I beg to move. Question proposed.”
“The amendment, in other words, makes it clear that the convictions, ie, the conviction on which the disciplinary proceedings are based, will be final and conclusive. Sir, it must be so, otherwise we will be confusing the judicial or appellate process with the disciplinary process and the two must be kept distinct and separate. Let me now, Sir, go on to the other amendments. The Academy of Law was established last year to bring the legal fraternity together. The Academy brings under one organization practising lawyers, judges, legal service officers, law lecturers, students and even non-practising lawyers. One of the functions of the Academy is the provision of training for lawyers who intend to practise, especially young lawyers and students. The Board of Legal Education already comprises representatives of the three branches of the profession. The purpose of the amendment is to make it clear that the Senate of the Academy will be in overall charge, the direct supervision of legal education of young lawyers will remain with the Board of Legal Education but the amendment makes it clear that the Senate of the Academy may give directions to the Board in the exercise of its functions. In other words, this will give the Academy the overall charge of matters pertaining to the provision of legal education. It also seeks to change the composition of the Board of Legal Education which will empower the Senate of the Academy to appoint members of the Board. Sir, in 1986 the Legal Profession Act was amended for legal officers and lay persons to also serve on the Inquiry Committees and Disciplinary Committees in dealing with complaints against lawyers on professional misconduct.”
“This, in fact, has opened a loophole for lawyers who have been convicted of criminal proceedings in the courts and then face disciplinary proceedings instituted by the Law Society. They can now try to re-litigate their convictions during the disciplinary proceedings in the Inquiry Committee, in the Disciplinary Committee or the Court of 3 judges, either by using the proceedings themselves as a further court of appeal or by obtaining an unauthorized criminal appeal to the Privy Council, as Mr Jeyaretnam did. As a result of that judgment, it means that the Law Society, the Inquiry Committee, the Disciplinary Committee and the Court of 3 judges will no longer be able to accept the criminal conviction as a given fact. Instead it will have to entertain arguments and to determine whether the courts had convicted him properly before taking disciplinary action. In effect, the Law Society and all those involved in the disciplinary process will have to sit in judgment over the courts which convict him. When the matter goes to the Court of 3 judges, they will in effect be sitting as a further appellate tribunal to review the merits of the underlying criminal convictions. Sir, these are absurd and totally unacceptable consequences which were never intended by the Legal Profession Act. So clause 9 of this Amendment Bill provides that disciplinary proceedings instituted against an advocate and solicitor in consequence of his conviction for a criminal offence, a Disciplinary Committee must accept that conviction as final and conclusive. This will prevent any attempt to turn the disciplinary proceedings into an appeal against a criminal conviction.”
“First, the judiciary is involved as an integral part of the disciplinary process. No other profession has this feature. Second, for the lawyers there are several tiers: Inquiry Committee, decision by the Council of the Law Society on the Inquiry Committee Report, Disciplinary Committee, then a Court of 3 judges. Thirdly, even in the initial stages where the Inquiry Committee recommends a formal investigation by the Disciplinary Committee and the Council agrees, the Council must apply to the Chief Justice to appoint a Disciplinary Committee. No other profession involves the head of our judiciary in this way. That is not changed. Then what happens after the Disciplinary Committee has heard the case? It reports to the Council but it must also report to the Chief Justice. And where the Council determines that there is cause for disciplinary action, it must apply to the court for the lawyer to be struck off, suspended or censured, and the matter is then heard, not by a single judge but by a Court of 3 judges. Therefore, I would say it is incorrect to claim that lawyers, as a result of this amendment, are worse off or are in a more inferior position compared to the other professions as their cases will still be heard by a Court of 3 judges. May I now turn to the other amendments on finality of convictions in disciplinary proceedings. Members will recall that when I answered Dr Lee Siew-Choh's Oral Question on Mr Jeyaretnam's case pardon, I pointed out that the Privy Council's judgment in that case in effect converted what was an appeal on disbarment into an unauthorized appeal on the criminal convictions.”
“And for barristers in England, I have told members what the procedure is. What is it that this amendment seeks to do? Under the existing provisions of the Legal Profession Act, section 95(6), it is provided that from the court of three judges there shall be no appeal except to the Privy Council. We are now deleting this wording which allows appeals to the Privy Council. Sir, let me at this stage also deal with a point which has been raised in the press by some lawyers, namely, that this amendment on removing appeals to the Privy Council is unfair because it singles out only the legal profession and that other professions such as doctors and accountants are not affected. Is this true? It is not. I have circulated for the information of Members extracts (Cols. 801 - 808) from the legislation relating to other professions: Accountants, Architects, Doctors, Dentists, Professional Engineers, Pharmacists, Land Surveyors. Members may wish to peruse these extracts. They will note that the law on disciplinary procedure for each of these professions is that, from the disciplinary body of a profession, an appeal lies to the High Court (which means a single judge) and it is expressly provided for each of the professions that the decision of that judge in the High Court is final. In other words, there is not even an appeal to the Court of Appeal, let alone the Privy Council. extracts - DISCIPLINARY PROCEEDINGS: OTHER PROFESSIONS (Cols. 801 - 808) Are the lawyers, therefore, as a result of this amendment, worse off than the other professions? On the contrary, Sir, even with these amendments, it can be said that the lawyers compared to the other professions are in a privileged position. Let me explain why.”
“Let me also add that those who are trained in the United Kingdom are not taught Singapore laws and therefore they are not conversant with Singapore laws. This might not have been of great consequence at the time when Singapore laws and United Kingdom laws were not very different. But as I have mentioned at the previous sitting, the United Kingdom law and the trends in judicial interpretation are taking divergent paths from our laws, as well as social and other policy considerations underpinning those laws are very different from those in the United Kingdom. Because of this, we may have to review the existing system because it is a matter of time before we have to require those trained in the United Kingdom, perhaps, to take and pass qualifying examinations in Singapore law before admission to practise. Sir, may I also say for Members' information, what is the position in the United Kingdom? There, serious complaints against barristers are handled by a disciplinary tribunal chaired by a judge with four other members including one lay member. This tribunal has the power to suspend or disbar barristers and appeals from that tribunal lie to at least three judges who are called Visitors of the High Court nominated by the Chief Justice after consulting the Lord Chancellor. There is no further appeal. I mention this because nearly all United Kingdom trained Singapore lawyers are barristers. 458 are barristers, only 15 solicitors. Most of them are barristers as it takes a much longer time really for a person with a university law degree to be admitted as a solicitor as he will have to undergo a 3-year course leading to a rigorous solicitor's final examinations followed by two years of articleship. So the majority of those who are trained in the United Kingdom are barristers.”
“At that time, most if not all the lawyers in Singapore were Britishers. The Colonial Government gave them this right of appeal which in the United Kingdom they themselves did not have. In fact, in Britain, their home base, a barrister would be disciplined and disbarred by his Inns of Court. And a solicitor would be disciplined and struck off the rolls of solicitors by a disciplinary tribunal established under the Solicitors Act. Perhaps one can say that appeals to the Privy Council in those early days might have been justified on the argument that in those days, lawyers who practised in Singapore could do so only on the basis of training and qualifications in the United Kingdom, either as a barrister or solicitor. But this is no longer the case. With the establishment of the Law Faculty in the National University of Singapore, only a small handful of lawyers are now trained in Britain. For example, out of a total of 1,558 lawyers admitted to the Bar from 1978 to 1988, 1,123 or 72% are Singapore trained and only about 22% are United Kingdom trained. Last year, for example, of the 207 persons who were admitted as Advocates and Solicitors, the overwhelming majority, 158 or 77% were locally trained compared to 38 who were trained in the United Kingdom. So the picture has changed. We are no longer a colonial situation where the majority of lawyers are United Kingdom trained or Britishers or expatriates. It has changed significantly. So we must develop our own admission standards and maintain our own high professional standards. So it must be the Singapore judges, not the British Law Lords in the United Kingdom, who must decide who is fit and not fit to practise.”
“But if as a result of being overruled by the Law Lords in the Privy Council, the Singapore judges cannot remove from practice lawyers who are unfit, then the courts in Singapore and the judges in Singapore will not be able to maintain discipline at the Bar. And they will not be able to exercise the control which the Act says that they must exercise over lawyers. The final decision on who can practise as a lawyer or who can be removed from practice must therefore be vested in the judges in Singapore. I may add that British Law Lords are not familiar with the nature of our legal profession in Singapore which unlike the United Kingdom is a fused profession. In other words, our lawyers in Singapore are both advocates and solicitors, whereas in the United Kingdom lawyers are either barristers or solicitors. Moreover, the Law Lords would lack local perspective when dealing with disciplinary cases which are essentially of a domestic or Singaporean character. Secondly, who is it who admit lawyers to practise in Singapore? It is not any foreign court. It is the Singapore Supreme Court which admits persons as advocates and solicitors in Singapore. It is not the Privy Council. It is therefore illogical that our judges who have the final say on who should be admitted should not have the final say on who should be disciplined or struck off the rolls. Thirdly, some words about the origins of the present provisions. I was interested to know when did we provide for appeals to the Privy Council. Was it just before Separation, after Separation, or what? Members will be interested to know that the existing provision on appeals to the Privy Council was inserted in the old Advocates and Solicitors Ordinance more than half a century ago, in 1935.”
“Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." Sir, this Bill seeks to amend the Legal Profession Act to make changes to the composition of the Board of Legal Education consequent to the establishment of the Academy of Law, and also to make several procedural changes to the method of disciplinary proceedings against lawyers for professional misconduct and also to make provision for the appointment of senior counsel. Before I come to those amendments, let me first deal with two amendments which have aroused some publicity and which have also been the subject of comment by the Law Society of Singapore. These are clause 13 and clause 9 of the Bill. Clause 13 will abolish appeals to the Privy Council in disciplinary cases, and clause 9 will make the underlying criminal convictions on which disciplinary proceedings may be based to be final and conclusive. Let me first deal with clause 13 which seeks to abolish appeals to the Privy Council in cases concerning disciplinary proceedings against lawyers. Sir, there are good reasons for this amendment. First of all, all lawyers are officers of our Supreme Court. This is specifically provided for in the Act. Section 79 of the Legal Profession Act says: 'Any person duly admitted as an Advocate and Solicitor shall be an officer of the Supreme Court.' Section 80 says: 'All Advocates and Solicitors shall be subject to the control of the Supreme Court ...' So they are officers of the Court. Which court? Not of any foreign court but of our Supreme Court. It follows then that it must be Singapore judges who should decide who amongst the lawyers are fit or unfit to practise on grounds of professional misconduct, moral turpitude or criminal convictions which imply a defect of character and so on.”
“Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." Sir, the various Acts referred to in the first column of the Schedule to the Bill empower statutory bodies named therein to compound offences. The Minister for Finance has decided to allow them to retain all sums collected from the composition of offences under those Acts as operating source of revenue and this Bill seeks to give effect to that decision. Sir, I beg to move. 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. - [Prof. S. Jayakumar]. Bill considered in Committee; reported without amendment; read a Third time and passed. IMMIGRATION (AMENDMENT) BILL Order for Second Reading read.”
“Sir, I just want to mention that since Mr Davinder Singh alluded to the possibility of subsection (2) being struck down by the court, I want to repeat again that all these provisions in this Act is an Act enacted pursuant to new clause (3) of Article 149 and because of the amendments to Article 149 itself it is provided that inconsistencies in this law with fundamental liberty provisions cannot be the basis of a challenge under Article 149. Secondly, I want to point out that since his amendment, in our view, does not alter the position that subsection (2) will be the overriding provision, we are able to accept the amendment. Amendment agreed to.”
“Sir, may I say that I have studied the amendments moved by Mr Davinder Singh and my comments apply to the other two amendments also. So I do not have to speak again. I have also discussed these amendments with the legal draftsman and I am glad to say that we welcome his contribution. It does not affect substance and we welcome his contribution and we will be able to accept the amendments. Amendment agreed to.”
“But, Sir, I realize that in my earlier presentation I omitted to comment on Mr Chandra Das's point as to whether we should have an extra Court of Appeal and this was made by some others like Dr Arthur Beng and Dr Ho Tat Kin. This, of course, can be looked into but if it is looked into it is quite distinct and separate from the measure to abolish appeals to the Privy Council because it assumes that there are so many cases each year going to the Privy Council that to cut off appeals to the Privy Council means that there is going to be a tremendous backlog. I do not think the figures bear this out because for the last 10 years there were 55 criminal cases which went up to the Privy Council, 65 were civil cases. So if there is a backlog or overload on our courts which he talked about, that is within the system before even any appeals go beyond the Privy Council. So the concern is expressed and the others have expressed, echoing the views they have heard from other lawyers, will have to be addressed whether by appointment of more judges or establishment of more courts or whatever. Of course, I think Members are aware that the Prime Minister has spoken on more than one occasion of the difficulties we have in getting the best of our legal minds in legal practice to come and serve as judges in our courts. But this is a point that has been made today by several Members and is a point that will be looked into.”
“Sir, first of all, I would not reply to all of Dr Lee Siew Choh's points because the answers to many of his points have, in fact, been covered by me in my earlier presentation because he is really arguing for the courts to have judicial review. But if I might just touch on one or two of his points. He talked about ISA being used as a tool for not tolerating criticism, arbitrary arrests. I might say this, Sir. That Dr Lee Siew Choh is a living example how scrupulous and careful the PAP has been in exercising the ISA powers. Even at the height of the Communist United Front activities when his colleagues in the Barisan Sosialis and others were detained, was he ever in danger of being arrested? Because the Government makes a clear distinction between those who are involved in subversion and conspiracy and those who are not. Mind you, Dr Lee's utterances, for those who have read them, were vociferous, almost bordering on the vile. But we made a distinction, the Government made a distinction. He was open. He was not a member of the Communist United Front. He was not in danger and he knew it. I think therefore he is a living example. He talks about views of Congressmen in Australia, in the United States. But we are talking about Singapore. And what really determines is the wishes of the people of Singapore and, as the First Deputy Prime Minister pointed out, we have been open about the ISA, the need for the ISA, and each time we have used the ISA we have not flinched from a debate and we have not flinched from making it an election issue. That is all I wish to say in response to what Dr Lee Siew-Choh has made.”
“It provides that there will be nevertheless no judicial review except for compliance with procedural requirements. Section 8C is a provision which abolishes appeals to the Privy Council in respect of proceedings which I have already mentioned in the other Bill. New section 8D: This is to make clear that these new provisions will apply to all proceedings instituted whether before or after the commencement of this Amendment Act. Sir, I beg to move. Question proposed.”
“Subsection (2) of Section 8B: Subsection (2) provides that nothwithstanding the pro- visions of subsection (1) there shall be no judicial review in any court of any act done or decision made by the President or the Minister save in regard to any procedural requirement of the ISA governing such act or decision. Why is subsection (2) necessary? Members will recall that the Government statement issued subsequent to the Court of Appeal judgment as well as the Explanatory Note to this Bill stated that the intention of the Government was to restore the status quo ante, ie the subjective test. Section 8B(1) sets out to achieve this because it states the general law to be applicable to be that at the date of Lee Mau Seng, thus reaffirming the subjective test. However, it is open to argument whether the subjective test has been restored beyond any question by section 8B(1). For example, the Court of Appeal, influenced by judgments of other countries, stated that the subjective test now may offend some of the fundamental liberties articles of the Constitution. Furthermore, Lee Mau Seng and Karam Singh cases did not lay down exhaustively all aspects of the law on judicial review. Those cases are precedents on the facts and arguments which were before those cases, and those cases dealt with detention orders. But there may be many other types of decisions which can arise in the courts. Other decisions made by the President or the Minister which are not detention orders, such as: - Restriction Orders (RO); - Suspension Directions (SD); - Conditions attached to Suspension Directions or conditions attached to Restriction Orders; - Decisions to suspend a Suspension Direction; etc. Therefore, to put these and other ambiguities beyond any question, section 8B(2) is necessary.”
“Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." In the debate we have just had on the Constitution (Amendment) Bill, I have already explained really the rationale for the broad purposes of both Bills. Therefore it is not really necessary for me to repeat what I have said. Let me, however, draw the attention of the House that this is a law which would be enacted pursuant to the new clause (3) of Article 149 of the Constitution. It expressly declares this fact in the long title. I shall not repeat the points but I shall instead take the House through the different provisions. Clause 2: Clause 2 sets out four new sections 8A, 8B, 8C and 8D which will be incorporated into the ISA. These new provisions will henceforth be an integral part of the ISA. New Section 8A: This is an interpretation section which defines "judicial review". New Section 8B: New Section 8B has two subsections. Subsection (1) is to reaffirm and restore the law as was laid down in the cases of Lee Mau Seng and Karam Singh, namely, that the subjective test applies in determining the proper exercise of discretionary power by the President or the Minister under the ISA. It is provided that in all such cases of judicial review, the law shall be the same as was applicable before any part of the law of the United Kingdom or of any other country in the Commonwealth was introduced. The significance of the date 13th July 1971 is that that is the date when the judgment in the case of Lee Mau Seng was delivered. In this way, therefore, the law on judicial review, including the principle of the subjective test, is restored to what it was when the case of Lee Mau Seng applied.”
“Mr Speaker, Sir, it would appear that the Member has forgotten that in 1988 we had a full, unrestricted, debate lasting five days on the Hendrickson affair, the arrest of Mr Francis Seow and the re-arrest. And I do not intend to repeat what we have said.”
“But he could not be charged with possession of offensive weapons because the parangs were not carried in a public place. They were kept in the house. That is not an offence. But we knew what was the purpose. Thirdly, the Government could not rely on the confessions of the four to secure conviction because these confessions were inadmissible under the strict rules of law. If we are to proceed in court against those odds, the prosecution would surely fail and the court would be duty bound to release them. The best evidence in such cases for successful prosecution is to catch them redhanded, in the act of committing a crime. But the question is: should the Government wait until they attack innocent people and foment racial strife? I cite this example to show that the Executive must take pre-emptive action, based on security assessment by the professionals in the ISD. It is not a judicial decision, nor does it lend itself to judicial process. Equally so, it is well nigh impossible, (just as it is impossible to prosecute) equally it does not lend itself to objective evaluation by the courts. Because these are security decisions taken on security grounds, not legal grounds, by the Executive based on the security experts whose job it is to watch, monitor, security threats and make security assessments. I leave this example to Members to ponder about because in real life, when we talk of the ISA, we are dealing with security threats which manifest themselves in many forms and the Executive has to act quickly. It is not amenable to the judicial process.”
“The word used by Mr Cheng is "relevance" and he said it is difficult to see how the court's responsibility over national security can be compromised if it is required to satisfy a court that its decisions arrived at after considering relevant evidence. Of course, the key question is "relevant". What is relevant? What is reasonable? And I go back to the central point in my speech, that if a court is to be entrusted with the power to decide that the Executive's decision is reasonable or based on relevant consideration, it must mean surely that it must have the power to review objectively all the circumstances leading to the exercise of the discretionary powers. And if you are giving this power to the court, it must mean that the court has the final say, and that is the crucial policy question for us to decide on matters of national security, who has the final say the courts or the Executive? If I might demonstrate this point, Sir, and I might close my remarks by taking an actual example because part of the difficulty in this exercise is talking in abstract terms. But let me take an actual example, and that is, the arrest of the silat group in 1987. I think Members are all familiar with the facts. And Members consider how this could have been amenable to the judicial process. In 1987, ISD arrested and detained four silat group members for spreading rumours of, and making, preparations for impending racial clashes. Consider this. First, the Government could not prosecute them in court because the information that they were up to mischief came from sources which could not be revealed without putting them at risk and jeopardizing other ongoing investigations. Secondly, one of them was found with parangs.”
“First, he asked me for my comments on Mr Cheng Shoong Tat's proposition that since we have made these amendments, there should be no reservations or difficulties in continuing with appeals to the Privy Council. What Mr Cheng says is that our amendments tabled today are so well drafted to use his words, "with such clarity", again unambiguously worded, "that there can be no harm in allowing appeals to Privy Council". Because all that the Privy Council will be doing is just to interpret these very beautifully drafted amendments. Sir, Mr Cheng is inconsistent because elsewhere in that same article, he tells us forcefully and persuasively that no matter how carefully the law is drafted, in the United Kingdom the courts have gone behind the legislative intent and, to use his words, "the judges stretch, at the slightest opportunity, the meaning of Acts of Parliament." There can be no such thing as antiseptic interpretation of laws. Laws have meaning in the context of social, economic and political circumstances of a given society. Likewise, judges who interpret the laws have a role not in vacuo, but have a role in the context of the society whose laws they are interpreting and applying. And therefore they must be knowledgeable of, and familiar with, these circumstances and society in which they are interpreting the laws. Then Mr Cheng mentioned, and Mr Shanmugam raised the point, that there can be no harm in the judges having a limited power, which Mr Shanmugam described as "residual power", to see whether the act of the Executive and invocation of the ISA is reasonable or not.”
“So that is why one must think again if one believes that to take care of that situation, the remedy is in giving the final say to the judiciary. It is highly illusory. As the First Deputy Prime Minister pointed out, this is something that we ourselves have also been giving thought to. Just as you can have a situation where a dishonest government can raid the reserves, and it is necessary to have a safeguard to protect the reserves and key appointments. So, also, we will have to consider and we will put in place similar safeguards to take care of the situation that Mr Shanmugam and other Members have mentioned. But such safeguards and checks cannot be judicial safeguards for the reasons I have given in my speech. Or, if the judiciary is to have the final say on matters concerning exercise of discretionary powers, particularly in the area of defence or national security, then surely it must lead, must it not, to friction and confrontation between the executive and the judiciary? Members have seen what is happening in Malaysia where the executive considered the judiciary has trodden on matters not within their purview. They react disciplinary proceedings, firing of the head of the judiciary, several other judges subject to disciplinary proceedings, foreign judges brought in to sit in those disciplinary proceedings. Do we want that to happen here? Then, Sir, Mr Chandra Das asked me for my comments on the newspaper articles by Mr Cheng Shoong Tat which he found, as a non-lawyer, not to make much sense, and which my colleague, Mr Shanmugam, thought make great sense. So is the non-lawyer right or the lawyer right?”
“Several colleagues have spoken about the need for these amendments to the ISA but have an expressed concern, and I think a genuine concern on their part, that down the road 10 years, 20 years, 30 years, we can never be sure that the PAP Government is going to be always in charge, that some freak result or other turn of events may bring into power, as Mr Shanmugam said, a minority government, hanging on threadbare power, and may be unscrupulous, dishonest to want to abuse these powers. If the question is: can the powers in the ISA be abused? Then the honest answer to that is, yes, with or without the amendments they can be abused. But then, Sir, it is not just the ISA but all government powers, all Government legislation which confer discretionary powers in the Government can be abused - Internal Security Act, Criminal Law (Temporary Provisions) Act, Misuse of Drugs, powers on immigration, citizenship, granting of licences, permits. Such powers can be abused. The best safeguard is what was mentioned by the First Deputy Prime Minister. The most important safeguard is for the people to ensure that the Government elected is composed of men of integrity, honesty and incorruptibility. Freak result the scenario painted by several Members, including Mr Shanmugam is not to be excluded. But I think it is highly illusory to imagine that in that kind of scenario which they have painted the solution is to vest the courts with the power of judicial review. Because once such a dishonest bunch of crooks comes into power, the first thing they are going to do is to pack the courts. Isn't it? And under our system there is no limit to the number of judges who can be appointed.”
“But since we have, as a matter of courtesy, to obtain the consent of that Law Lord, I am not in a position to reproduce the exact copy of the letter. But I might say that in his reply that Lord Justice said that he entirely agreed with the Prime Minister - that it was a pity that appellate judges in the Privy Council had little experience of the totally different social, economic and political conditions obtaining in the countries from which they hear appeals. He entirely agreed and he said also that there were many amongst his colleagues who felt that they had really missed a big opportunity to provide that the Privy Council should sit from time to time in the Commonwealth countries in which the cases emanate, to which the Prime Minister wrote again on 7th February. And the Prime Minister commented: 'A better solution to Singapore's need for talented advocates in her courts, especially in international commercial cases, is to widen admissions to able and experienced lawyers from the American and other Commonwealth bars.' My purpose, Sir, I am unfolding these extracts to respond to Dr Ho Tat Kin to show this is not a knee-jerk reaction. This is something we have been considering for many years. We have been monitoring the trends, observing, thinking of how it will have an impact on us. And now we have decided. May I then go on to another point, Sir.”
“] What I am circulating, Sir, are extracts from letters written by the Prime Minister in correspondence with a United Kingdom Law Lord who was a Queen's Counsel some 30 years ago, who had represented the Prime Minister in a case that many years ago. And the Prime Minister had kept in touch with him as a personal friend throughout these years and he is now elevated as a judge and indeed as a Law Lord and is, in fact, sitting as one of the Law Lords in the Privy Council. The correspondence involves some discussion concerning a matter relating to one of the Inns of Court. So I have just reproduced the relevant extracts from the Prime Minister's letter in reply to this Lord Justice's letter. I first refer to the Prime Minister's reply to an earlier letter from the Lord concerning the matter of one of the Inns of Court. And I think I should read it out, Sir. Prime Minister said: 'I hope the Privy Council will remain relevant to Singapore's judicial system indefinitely.' This is 9th January 1985. He said: 'The elevation of lawyers and judges from many parts of the Commonwealth to the Privy Council, with experience of conditions in different parts of the world, has ceased. I do not see how the flow can be resumed. It troubles me that appellate judges in the Privy Council have no experience of the totally different social, economic and political conditions obtaining in the countries they hear appeals from. However able the men who stay at the English Bar and later go on the Bench, they are unlikely to gain this exposure to conditions abroad in the Commonwealth, apart from the occasional brief.' This was a letter written in January 1985. To this letter, that particular Lord Justice replied.”
“Mr Speaker, Sir, I wish to thank Members who have spoken on the Bill, and I would only want to respond to some of the points made by hon. Members. First of all, in view of the comprehensive rebuttals given by my colleague Members in the House, Mr Davinder Singh and Mr Shanmugam, on the points raised by Dr Lee Siew-Choh concerning the Chief Justice's position, I think it is not necessary for me to spend any further time except to say that his arguments have no merit. And as both my colleagues have pointed out, the purpose of the amendment is to put the matter beyond any doubt. May I now go on, Sir, to the points raised by hon. Members on the Constitution (Amendment) Bill and the Internal Security (Amendment) Bill. I will not deal with all the points but only the major points which I think need addressing. First, Sir, the hon. Member, Dr Ho Tat Kin, said that he is concerned with the reactions or comments that he has heard that this amendment abolition of appeals to Privy Council, in particular is a reaction to the Privy Council's decision on Mr Jeyaretnam's appeal concerning disbarment. Sir, Members would have heard me saying in my speech that we have for some time been concerned with how long we can continue appeals to the Privy Council for the reasons that I have mentioned. Now that he has raised this point, I think I should disclose to this House that, in fact, we have been considering this matter for several years. I will ask the Clerk of Parliament to kindly distribute certain documents because these documents will show what I mean. [Copies of documents circulated to hon. Members.”
“And he has not told us how such an undertaking is to advance our national security. If the event does take place that Mr Chia Thye Poh resumes his subversive activities, then not only would we have another security problem, but we would have also lost an Opposition Member.”
“Mr Speaker, Sir, we have not seen his so-called undertaking. I look forward to reading it. But from what he read, I find it very significant that he has not referred anywhere to his undertaking that Chia Thye Poh will not resume his links at all with the CPM or the Communist United Front. And he must also tell us”
“Mr Speaker, Sir, the issue before the House is really the two Bills that have been tabled. And if the Member wishes to have a debate on the question of Chia Thye Poh, I think there can be another opportunity when he can raise it.”
“In other words, it enables Parliament to pass legislation to re-establish the rules of interpretation, which I just pointed out, have been long adhered to by our courts. Other amendments to Article 149(1) are the inclusion of references to Articles 11 and 12. The reference to Article 11 is necessary to ensure that the retrospective application of the Internal Security (Amendment) Bill is not challenged. The inclusion of the reference to Article 12 is also necessary because the Court of Appeal, influenced by judgments in other Commonwealth countries, commented that a subjective test may be inconsistent with Article 12. It is also provided that Article 149(1) which allows such inconsistencies also applies to a law amending Article 149(1) or a law enacted under new clause (3). As for the provisions of the Internal Security (Amendment) Bill, I will take them up during the Second Reading of that Bill. Sir, I beg to move. Question proposed. 1.08 pm”
“I might add that it is not just the security cases that we are concerned with. In fact, the Government has been concerned for some time over how long we can continue this system of appeals to the Privy Council. Some Members may know that during the British Empire, some of the judges who sat on the Privy Council had experience serving in the colonies or in the Commonwealth. That way, some of the judges in the privy council had valuable local perspective when overseas cases came up to the Privy Council. This was important. For example, in recent years before Australia abolished appeals, when Australian cases came up before the Privy Council, the then Chief Justice of Australia, Sir Garfield Barwick, was a Privy Councillor, made it a point to sit as a member of the Privy Council. But since the British Empire ended, there are no longer judges sitting on the Privy Council who have colonial or Commonwealth experience. I should therefore add that there are also other areas, particularly of administrative and public law, where our courts must also have the final say. This is because the political, social and economic circumstances of a country are crucial factors in interpreting and applying such law by the judges of that country. However, we shall decide on these matters after careful deliberation. May I now turn, Sir, to the specific provisions in the Constitution of the Republic of Singapore (Amendment) Bill. I have already dealt with clause 2. New clause 3 is an enabling provision to allow legislation to be passed in order to restore the status quo ante in regard to judicial attitudes towards such powers of the Executive under the ISA.”
“And questions which go to the courts must be decided by Singapore courts and Singapore judges. We felt no real urgency to rectify this anomaly so long as the trend of judicial thinking in the United Kingdom posed no serious problems for our national security. But the trends that I have described, the increasingly interventionist role of the UK courts in reviewing the UK Executive's actions, including on national security, has changed the outlook. Let me also inform Members that after Britain joined the EEC, it accepted the jurisdiction of the European Court of Justice and the European Court of Human Rights. And on several occasions, after the European Court of Human Rights ruled that British practices conflict with European Convention on Human Rights, British law had to be changed to conform to the Convention. Further, Sir, British legal practice and judicial attitudes have also incorporated elements of the European tradition of administrative law, especially in the area of public law. British judges, in other words, have entertained principles founded in European Community law as possible new grounds for judicial review of Ministerial decisions. But then all these developments connected with the European Community are contrary to Singapore's experience and irrelevant to our circumstances. Sir, if we do not cut off appeals to the Privy Council in security cases, what will be the result? The inevitable result will be either: (a) our courts will (as happened in the Court of Appeal judgment) follow the United Kingdom precedents which have established an interventionist role which is unacceptable; or (b) they ignore the United Kingdom trends, but will almost certainly be overruled by the Privy Council.”
“New Zealand, a country which is most akin to the United Kingdom in terms of culture, heritage, political system, is now considering abolishing appeals to Privy Council. Australia has already done so. No other Asian country, except Brunei, allows appeals to the Privy Council. India, Sri Lanka, Bangladesh, Malaysia have all abolished them. But, why are we now abolishing appeals to the Privy Council in security matters? There are two main reasons, although some of what I have said, it must be clear, is equally applicable on this question. First, Sir, we are an an independent country. We are very different from the United Kingdom. What will decide our future? It is not circumstances in United Kingdom or Europe but events in Asia which will affect our future. Economic, social and political conditions of Singapore and United Kingdom are in fact divergent, not convergent. Matters of public law, especially defence and security, are very crucial for the survival of any country. So not only must our laws meet our different circumstances but our laws must be interpreted by our own judges, people who are part of our society, judges who are aware of our history and of our conditions. Because no independent country, no independent government, can surrender its responsibility to uphold the security of the country. But as a carry-over from the colonial days, we have continued to allow the Privy Council as our final court, even on security matters up to today, a body of UK judges sitting in the United Kingdom, thousands of miles away, who really have no knowledge or experience of our own circumstances here. The Privy Council, Sir, cannot continue to be the final court of appeal in matters concerning the exercise of national security. National security must be decided by us.”
“This was the main reason why detention without trial was introduced in the first place. Sir, when I say that judges are not equipped, I think I can do no better than refer again to the extract from Lord Diplock on page 3. I just put it very succinctly. 'The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another, a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.' For these reasons then, Sir, the Government has therefore decided that our laws should expressly reaffirm that the established principles of review of preventive detention stated in the cases of Karam Singh and Lee Mau Seng is to be the applicable law in Singapore. May I now turn, Sir, to the other point concerning abolition of appeals to the Privy Council. The intention is to abolish appeals to the Privy Council in respect of judicial review of decisions under the ISA, of interpretation of the ISA and interpretation of any provisions in the Constitution relating to subversion and emergency powers contained in Part XII of the Constitution. Sir, I think we all know that after independence, Singapore continued to retain the Privy Council's right of appeal from our courts. Singapore, in fact, is one of the very few countries to have kept this link with Britain.”
“' Second, on principle, the responsibility for the detention or otherwise of a person under extraordinary powers such as these cannot rest with the judiciary. An Executive which shifts this responsibility to the judges ... is shirking its responsibility .... On principle, it is not the duty of the judiciary to act as administrative or executive officers of the Government, nor are they properly equipped to discharge such functions. In all civilised countries the responsibility for the security of the State rests with the elected government, not the judges .... Certainly they are not vested in our judiciary.' This is the Government's position on the role of judges articulated in October 1959. That has been a consistent position, and that is the position which forms the rationale for the amendments that are being moved today. The third reason, Sir, for restoring the subjective test is this. As the courts themselves have recognized, preventive detention by its very nature is a precautionary measure. The Government must act on the best possible security evaluation of information that is available, as distinct from proof or evidence in a court. Preventive detention consists in anticipating, pre-empting, preventing. It involves restraining someone from doing something injurious to our national security, preventing him from completing a scheme on which he may have already embarked. A judge in court is not equipped to investigate or decide whether there are suspicious circumstances warranting some restraint. In conspiracies or other covert operations, the mischief-maker or mischief-makers operate in a clandestine, furtive manner, making it impossible to get the kind of evidence that would enable a conviction in court.”
“It is the settled principles of the subjective test which have enabled the Government to deal effectively with Communists, communalists and other threats to security. It is these settled principles which have enabled us to handle security threats and to maintain stability. And they will remain essential to the security of Singapore and it is unwise to change the law. Our courts, Sir, should not therefore be involved in the exercise of these powers of detention. Let me add here, Sir, that this position which I have expounded is not some newfangled theory concocted by the Government. This has always been the position of the Government, and I would refer Members to the Hansard when the PAP Government took power shortly after it assumed office. I refer, if Members are interested, to Hansard, 14th October 1959, a speech by the Prime Minister where he moved amendments to the then Preservation of Public Security Ordinance. One of the amendments concerned the role of the judges. At that time the judges had a role sitting as an Appellate Tribunalon preventive detention. The judges had communicated with the Government, and the Acting Chief Justice had communicated with the Government to say [col. 669]: 'My brother judges and I are all of the opinion that it is extremely undesirable for members of the judiciary to constitute the Appeal Tribunal ... we think it was a mistake to have caused the judiciary to be associated with the work of the tribunal.' Then from the Prime Minister. These are some extracts from what the Prime Minister said. He said, first, in principle, it is wrong to use the judges in this way. 'First, by the very nature of the tribunal the judges are not presented with a justiciable issue.”
“I cite this for us to consider: if the courts in the United Kingdom take such a decision with regard to the United Kingdom government on a matter concerning national security of the United Kingdom, what more regard do we expect those judges to have with regard to national security of Singapore thousands of miles away? A second illustration, Sir. Members must have read recently that the European Court of Human Rights decided that the United Kingdom legislation which empowers their government to detain suspected terrorists violated the European Convention on Human Rights and declared it to be invalid. This is but one example of how United Kingdom laws, United Kingdom legal position, and eventually their judicial thinking, is being affected and will be affected by their entry into the European Community and decisions of the European Court which are factors totally alien to us. The European Court has no concern whatsoever to Singapore. But their law is binding on UK courts. It will influence the UK judges and those precedents will be then imported into Singapore. Second reason, Sir, as to why it is necessary to restore the subjective test is that if Singapore courts are allowed, because of all these foreign precedents, to review the discretion of the Executive on security matters, as expounded in the Court of Appeal judgment, then Singapore judges will in effect become responsible for and answerable to decisions affecting national security of Singapore because they would then have the final say. It must be so. But this was not, and never was, the intention of the Legislature as expressed in the ISA or the earlier predecessor legislation. It never was.”
“So in the recent Court of Appeal judgment, the Court departed from the long standing but settled law on subjective test and it has really given notice that in future it will follow these changes in judicial attitudes in the United Kingdom and also the judgment shows how our courts will be influenced by changes in the United Kingdom and indeed even of Europe, as I will show in a moment, changes which have been caused by factors totally unrelated to our society. The question can then be asked, "What is wrong with these foreign trends being imported into Singapore? Why should the subjective test be restored? Sir, there are good reasons why it is necessary to restore the subjective test in Lee Mau Seng case and to provide that foreign case law shall not apply. Let me give three reasons. First, Sir, if we do not restore the subjective test in Lee Mau Seng, and if we allow foreign case law and precedents to allow our courts to be involved in an interventionist role, then we will have an untenable position - clearly an untenable position - because our law on national security matters will be governed by cases decided abroad, in countries where conditions are totally different from ours. To illustrate, Sir, let me mention the Spycatcher case. In that case the United Kingdom government on national security grounds wanted to restrict newspaper publication of allegations made by a former member of the security service, in breach of his duty of secrecy. The United Kingdom courts rejected the evidence of the United Kingdom Cabinet Secretary that such publication would be damaging to the national security of United Kingdom. The courts rejected this.”
“" Sir, the Privy Council is the final Appellate Court in our legal system and cases decided in the UK and the Commonwealth, especially decisions of the Law Lords in the Privy Council, are "persuasive authority" in our courts. Because of developments in Britain and elsewhere in the Commonwealth, developments which are totally unconnected with our country and our society, courts in the United Kingdom over recent years have been adopting what I would call an interventionist approach, an interventionist role in reviewing the actions of the Executive. That is, they are willing to ignore or disregard the clear intent of the statutory provisions and go behind the decisions of the Executive. These trends are particularly marked when it comes to statutory provisions which are similar to our Internal Security Act and the British courts have interpreted such provisions to allow greater and greater judicial intervention and control of acts of the Executive, even when it comes to questions of national security, the most recent example being that of the Spycatcher case. The recent judgment of the Court of Appeal in December 1988 showed that the Singapore courts have accepted such United Kingdom and other precedents. Indeed they have to, they have no choice because, if our courts were to ignore such precedents, the Privy Council in the United Kingdom can and probably will overrule our Court of Appeal. So they have to follow these precedents.”
“and common sense itself dictates, a matter on which those on whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.' What did the Court of Appeal decide? What did the Court of Appeal decide in December? The Court of Appeal altered this principle of the subjective test which had been laid down by the Chief Justice in Lee Mau Seng's case. It has, in fact, said it will no longer follow the subjective test. In short, the Court of Appeal decided that the courts henceforth can question the decision to detain. It can examine whether the decision was reasonable and based on the evidence acceptable to the court. What will be the end result? The end result will be a substitution of the judgment of the courts for the judgment of the Executive. That is the end practical result. What was the Basis for Court of Appeal's judgment? On what basis did the Court of Appeal come to this decision and on what basis and on what reasons did the Court of Appeal abandon the long standing law as reflected in Lee Mau Seng? Quite frankly, Sir, the Court did so because of cases decided in the United Kingdom and other parts of the Commonwealth. In fact, the Court said so, and I quote from the Court's judgment: "We [ie, the Court of Appeal] respectfully say that we agree with judicial opinion expressed in other jurisdictions, to the effect that the Court can objectively review the President's exercise of discretion in the context of preventive detention on national security grounds.”