Friday, November 27, 2015

Dan Tan case: 'Groundbreaking' judgment raises question about Act

Nov 27, 2015.

Ng Huiwen

Groundbreaking - that is how legal experts and lawyers here have described the decision by Singapore's highest court to declare that alleged match-fixer Dan Tan Seet Eng's detention without trial was unlawful.

They agreed that it showed how the courts were ready to scrutinise the reasons behind the Home Affairs Minister's decision to detain a person under the Criminal Law (Temporary Provisions) Act (CLTPA), and ensure that the state does not overstep the powers granted by the Act.

But the case has also led to another debate - on whether the CLTPA, first introduced in 1955 to fight secret societies, should be tweaked to take into account the global nature of organised crime today.

On Wednesday, Chief Justice Sundaresh Menon, delivering the judgment on behalf of a three-judge panel, said the key purpose of the Act was to prevent violence or cases in which witness intimidation made prosecution impossible.

But Tan's alleged match-fixing activities "all took place beyond our shores" in countries such as Egypt, South Africa and Nigeria, said CJ Menon. That meant there was little risk to "public safety, peace and good order" here. He added that no evidence was presented to show that potential witnesses were being intimidated.

Said National University of Singapore (NUS) law professor and former Nominated Member of Parliament Thio Li-Ann: "Simply put, the exercise of power under the CLTPA (by the Minister in Tan's case) was not for a CLTPA stipulated purpose.

"The courts will not accept as conclusive the executive's assessment that a person needs to be detained under the CLTPA. It will independently review the exercise of power and ensure it falls within the terms of the statute."

Criminal lawyer Prasad Karunakarn added: "It shows us clearly that any law should be judiciously applied."

Another criminal lawyer, Mr Shashi Nathan, described the detention without trial as a "draconian measure because you are denying a person the chance to have his defence heard". And the courts have made it clear that "if the authorities want to invoke this Act, they must be clear and transparent".

Singapore Management University law professor Eugene Tan said the case has revealed how courts and law enforcement agencies here could sometimes have a different understanding of what is required to maintain public safety, peace and good order.

And while he welcomed the decision, he remained cautious of its implications. He raised the possibility that Singapore could be seen as a "convenient" place for those engaged in transnational criminal activities to operate from.

[Stupid scenario. If Singapore cannot use detention without trial, it will become a convenient place for transnational criminal activities? Excuse me, how many countries DO NOT HAVE detention without trial? US? UK? European countries? Australia? New Zealand? So they are ALL "convenient places for transnational criminal activities?]

He felt that a review of the Act and its scope could be due.

"We should not be surprised if Parliament will seek to enhance the CLTPA as a result of this particular case, so as to deal with cases of cross-border crime, even if it is committed outside of Singapore."

However, constitutional law expert Kevin Tan, who teaches at NUS, disagreed. He said the CLTPA, which was instituted as a temporary law 60 years ago, was never intended to deal with transboundary crime. "It was enacted at a time of gangsterism and secret societies."

[I do not know if his view will prevail, but I am of the opinion that this is the correct perspective and understanding. It was intended as a temporary provision. I would like to see parliament review these temporary provision at least every 5 years if not more regularly, to re-justify the need for such a draconian law.]

In 2013, Mr S. Iswaran , the then Second Minister for Home Affairs, justified the use of the CLTPA against match-fixing syndicates.

He said: "The underlying nature of these match-fixing activities was no different to those of other criminal activities that have necessitated the use of the Act.

"Such criminal activities are often carried out by organised syndicates with complex and layered structures, and extensive networks which make full use of technology. Also, where cross-border illegal activities are involved, the difficulties of securing witnesses who are willing to co-operate and testify in open court are amplified."

[I will not dispute the difficulty in securing witnesses who are willing to cooperate and testify in court. What I would challenge is the reason for the difficulty. For the gang-related offences of the 50s and 60s Singapore, it is the intimidation from the secret society members.

For match-fixing, I would imagine it would be self-incrimination by the witnesses, perhaps?

I am sure, once the authorities had decided to use the CLTP in 2013 against Dan Tan, they would be able to find plausible justification for the use of the provisions. Whether those justification are legally pertinent and valid is for the court to decide.

The Minister may well believe the above rationalisation, but it is for the court to decide if the rationalisation is valid and legal.

There may be similarities between the two types of syndicates, but there is a fundamental difference - violence and the threat of violence. And this is a crucial difference that undermines the justification of the CLTP for such white collar, non-violent crime.]

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