the week: reservations and reserves

Parliament reads the Criminal Procedure (Miscellaneous Amendments) Bill 2024 a second time; Parliament discusses if it should review the policy on reserves (again)

When I first read that the Criminal Procedure (Miscellaneous Amendments) Bill 2024 would include expanding police powers to conduct more searches without a warrant and allow for use of reasonable force for forensic medical examinations, and a new sentencing regime which would allow for indefinite sentences with release subject to the approval from the Minister of Home Affairs, I was up in arms, and I was not alone. Further incursions on the rights of citizens? Indefinite detention subject to the Executive discretion (did someone say ISA)? I was ready to rip this bill a new one.

The biggest criticism one can level against these amendments is that there doesn’t seem to be any evidence for the need nor any pressing public wish to make these amendments at this point. When pressed for statistics of any kind in support of these amendments the ministers had come up empty. In fact, the two year recidivism rate has fallen from 2016 to 2020. It was hilarious (or incredibly sad, depending on your point of view) watching every PAP member begin their speech with how safe Singapore is, but yet still have this pressing need to pass these amendments to make us even safer. In fact listening to the speeches, it is hard to discern what the reasons for the amendments, particularly the introduction of the Sentence for Enhanced Public Protection (SEPP), really were. Minister Shanmugam by his own admission stated that there has been no increase in serious violent or sexual crimes. In fact, he gives no reason for having SEPP apart from having studied the laws of other countries, they had “decided that it made sense to have something similar”. Of course, this is a reason that many Singaporeans are familiar with: the amendments were born out of a feeling of kiasuism. Finally a sentiment all Singaporeans can get behind. Besides regaling truly heartbreaking cases of serious violent and sexual crimes, the PAP raised no other reasons for the amendments. The appeal to emotion is a powerful one, but is a fallacy nonetheless. The PAP provided nothing in the sorts of meaningful statistics despite repeated requests from the MPs through the sitting, and made no case as to why there was a need for the amendments.

Having said that, I do think that there is merit to some of these amendments, and even the amendments which I don’t care for I don’t think changes the status quo that much that it’s worth kicking a fuss over. If you’ve read any of my other articles you would know that I’m no PAP shill, but having read the bill and listened to the Parliamentary debate (so you don’t have to), I have come to the conclusion that there really isn’t much to be worked up about.

Codifying the Prosecutions Duty of Disclosure

The prosecution’s duty of disclosure in Singapore is currently a common law invention, meaning it has no basis in statutes passed in Parliament. There are pros and cons for maintaining certain legal principals in the common law, but when it comes to criminal procedure it is almost certainly mostly pros to codifying the law into statute. The codification of the duty of disclosure allows for more certainty, and clarifies areas which have previously not been brought before the court.

Searches Without Warrants

Now we venture into slightly more controversial ground. At present, the police already has powers to search without warrants in certain circumstances under s34 of the CPC. Where the officer has reason to believe that the suspect will not produce the document or thing requested under s20(1) the officer can perform a search without a warrant. In my view the amendment does not make the current law any more onerous than it already is, but it helps to clarify some of the present issues:

1. it is difficult for anyone to know if the suspect will comply with a search order, or if the suspect will destroy or remove the evidence. Allowing the police to search where they have reason to believe a suspect has evidence in their possession would remove the uncertainty on the ground;

2. there are still safeguards in place: the police still only has powers to search without a warrant if the person is reasonably suspected of committing an arrestable offence, which allows for a check on their powers to search without a warrant. Notably, this is not search and frisk as is practiced in New York City, the police cannot just stop anyone on the street and search them, there must be reasonable grounds for suspicion before they can conduct searches¹;

3. the amendment also places a limitation on where the police can search, limiting it to “where he or she has reason to believe the document or thing is located”.

I think that any expansion of police powers need to be considered in relation to our rights as private citizens, but given that this isn’t so much of an expansion as a clarification I don’t think that it is particularly worrying. One can make the argument that the police should never have the power to search without a warrant, but I think that might limit the powers of the police by too much.

Forensic Medical Examinations

The amendments introduce the power for police to use reasonable force to carry out FMEs under s40I. Note that consent is still needed from the victim before the police can conduct any FMEs on them, and s40I is only for accused persons. Again, the lack of need of consent for an FME to be conducted can be construed as a further erosion of our civil liberties. But in order for the police and the justice system to be effective, some civil liberties must be relinquished. The surrender of all force by the citizen to the state under our social contract is perhaps one of the greatest advancements in civilization our species has ever made. Allowing the state, and only the state, to mete out punishments and maintain order ensures that private citizens need not fear undeserved violence from their neighbour. When confronted by the police, the best course of action is to cooperate and seek remedies later. I don’t prescribe to the “if you’ve done nothing wrong you have nothing to hide” mantra which so many Singaporeans recite in response to the erosion of any civil liberties, but still a balance must be struck to allow for our police to do their duties.

Nominated MP Usha Chandradas asks how a person’s gender identity will be accounted for under s40G, where the FME will be conducted by a man if the victim or accused is a man, or by a woman where the victim or the accused is a woman. I have written before about gender dysphoria and the trouble society and the law has regarding the administration of people suffering from gender dysphoria, and I have every sympathy for people who suffer from gender dysphoria. But as I have written before, since 1973 it has been possible to change your legal gender on identity cards, and I have said before that self identification is not sufficient as a standard, especially not when it comes to the criminal justice system.² I’m glad that self-identification has not yet come to Singapore, and hopefully never will.

Sentence for Enhanced Public Protection

The name for the new sentencing regime could have come straight out of any dystopian sci fi novel or show. I had several initial concerns about this sentencing regime:

1. would it be subject to abuse, due to the fact that the length of the sentence is indefinite?

2. is the executive once again taking powers from the judiciary (as they did recently in the Significant Investments Review Bill passed in January, where they limited the powers of judicial review under s46) by having the Minister of Home Affairs decide when the prisoner is ready for release?

3. given that the SEPP is meant to be for criminals who are likely to reoffend, how is that determined given that the SEPP can be handed out to criminals who are on their first offence, as opposed to the previous regime of Preventative Detention (PD) which while similarly tasked with dealing with reoffenders can only be applied to actual reoffenders who have been convicted of the same crime at least 3 times?

The SEPP have controls which should prevent it from being abused. Under the seventh schedule, the SEPP can only be applied to certain crimes: culpable homicide, attempted murder, rape, sexual penetration of minors and causing death or grievous hurt. Whether to apply SEPP is also a question for the court, which in theory should maintain some level of the separation of powers. Under our current parole system, prisoners with life sentences are also subjected to receiving a Conditional Remission Order from the Minister of Home Affairs before they can be released, so having the Minister of Home Affairs decide on the release of prisoners under the SEPP regime does not seem all that different.

Having thought about the new sentencing regime I think it comes down to a matter of perspective. This is basically a life sentence by a backdoor. Put aside if you find life sentences palatable (personally I think they are worse than the death penalty, especially if there is no chance of parole), life sentences were already applicable for most of the crimes which SEPP can be applied to, sans the sexual crimes. If you view the SEPP like a life sentence with a minimum sentence of 5-20 years before parole, then the only question left is should a life sentence be imposed for the crimes listed in the seventh schedule?³ Of course that is more of a philosophical question, though it would be helpful to see statistical evidence that longer sentences prevented reoffending.

The main issue then is the criteria with which the court decides if the convicted person will reoffend, especially if it is their first conviction. According to Minister Shanmugam, the court will employ a variety of criteria including assessments from a panel of experts, but is this essentially declaring that they are likely to be reoffenders even before they had reoffended? Under the previous PD regime they had to be convicted at least 3 times before the increased sentence applied, whereas the SEPP can be applied on the first offence. That’s the plot of Minority Report where our judges now have powers to protect the public from crimes which have not yet occurred. The question is why not call a spade a spade and call it a life sentence with more flexibility?

After all a life sentence by any other name would suck the same.

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The real drama this week of course comes from PM Lee calling on members of the opposition to take their fight about the reserves and bring it to the ballot box. This was the culmination of the motion pushed by PSP MPs Leong Mun Wai and Hazel Poa: “That this House calls on the Government to review its current budget and reserve accumulation policies in order to help present-day Singaporeans reduce their financial burdens and improve their quality of life, while continuing to save for future generations of Singaporeans.”

The main thrust of the arguments and proposals from PSP were:

1. for the Government to reveal how much money is in the reserves to all Singaporeans, given that Singaporeans are the collective owners of the reserves;

2. in the alternative, if the Government does not want to disclose the amount to Singaporeans at least disclose the amount to MPs;

3. to combine the different endowment and trust funds into one giant Budget Surplus fund, and this fund will be used to fund all future long term expenditure;

4. to waive the land cost of public housing under the Affordable Homes Scheme, reducing the burden on HDB and freeing up more money for current spending.

In essence, the PSP wanted to free up more money from parts of the budget to increase current spending.

It seems to me that any debate the opposition has with the PAP on the reserves will always necessarily be a losing one, simply by virtue of the asymmetry of information. Further, I would wager that any calls to spend money from the reserves is going to be unpopular among Singaporeans. I myself dislike the idea of spending money from the reserves to fund current spending.

I do think however that the people of Singapore should know how much money is in the reserves. The common refrain from the PAP is that this poses a national security risk, and naturally every PAP MP needed to get up to tell everyone they remembered the 1997 Asian financial crisis where the Thai baht and the Indonesia rupiah fell prey to speculators which saw both currencies massively devalued and both countries economies in shambles. The counterpoints to this is: first, the defence against speculators should be in foreign reserves maintained by the MAS which is publicly available information anyway; and second, savvy speculators are likely able to guess the size of the reserves anyway.

Even if it were a matter of national security that the reserves not be made public, at the very least, MPs should know how much money is in the reserves, given that to even use money from the reserves Parliament needs to approve the spending. How can the MPs approve a bill to use the reserves if they do not know how much money is in the reserves? But in any case matters of the reserves have been debated to death in Parliament, and only with a non-administration (read: PAP) approved President or a non-PAP Parliamentary majority will anyone outside of the PAP leadership finally know how much is in our reserves. I see no point in belabouring and rehashing the same arguments.

The PAP attempted to be deliberately obtuse when faced with questions about the reserves, like when the Leader of the Opposition Pritam Singh asked multiple times that if the sale of a single piece of leasehold land can be sold repeatedly how can it be that it represents merely a conversion of assets (i.e. exchanging the land in the reserves for money to be put into the reserves), but instead subsequent sales would not merely represent a conversion of assets, but rather an accumulation of assets past the first sale. Of course the Leader of the House Indranee Rajah had no good answer for this so she merely repeats the points about conversion of assets while pretending not to understand Mr Singh, but the real insane answer comes from Prime Minister Lee: the sum of the money gotten from the repeated sale of leasehold land should in theory add up to the sum of money gotten from the sale of a plot of freehold land. Of course this is blatantly untrue, given that the same plot of leasehold land can be sold infinitely the price of freehold land would be infinite. Of course that is an absurd notion on its face, but since the Singapore Government does not sell freehold land we would never know the true value of freehold land. Current values of freehold land go for only at about a 10 to 15 percent mark up of a similarly sized plot of leasehold land in a comparable location. So what is the Prime Minister talking about? The truth is that there is an accumulation of wealth from the repeated sales of leasehold land, but the PAP can never come out and admit the point. And so they must pretend to be either obtuse or deliberately misunderstand the point.

And so the PM grandstands and blusters about irresponsible spending of the opposition, and accuses the opposition of wanting to abolish the second key. Of course the PAP would love to keep the second key around, for as long as the criteria for Presidency is made ever more stringent, the administration approved candidate will always be in power. So instead of talking about the reserves, which I think is a always a losing point for the opposition, perhaps they should figure out how to cut Government spending so they can spend on programs they like instead.⁴

1. Naturally this lead to MP Nadia Ahmad Samdin to note that the new powers are nothing like stop and frisk, and still make the comparisons anyway. She brought up statistics from the NYPD on stop and frisk where majority of stops did not lead to arrests. It was like watching a student who realized far too late they were making a point which was out of scope of their essay, but was far too invested and needed to plow on to finish the point in the hopes of scoring some pity marks. Where are the statistics that show that the SPF are prejudiced against minorities? Her reasoning was that the implementation of warrantless searches prejudices minorities, as if it were the implementation itself that leads to police departments becoming prejudiced, when really the question is whether the SPF is prejudiced to begin with. If she cannot produce any statistics or studies to back her points, then everything she’s said is baseless speculation. I’m of the opinion that as an elected representative, baseless speculation to the integrity of our police force especially with regard to the treatment of minorities should not be allowed.

2. There have been instances where men who identify as women have been placed into women’s jails, and subsequently raped the other inmates.

3. MP Gan Thiam Poh to his credit suggested that the government consider alternatives like chemical castration. After all, if you subscribe to determinism, the pedophile like the drug addict cannot control his impulses. The pedophile is punished as an act of deterrence, but what if they could be reintroduced to society neutered of all their criminal desires? I’m no expert on chemical castration, but the available literature seems be mixed, though it is an avenue that is worth exploring.

4. The CDC to me is a waste of an organisation, there are simply other redundant departments in other parts of Government that fulfils its role. Take for example the massive waste of the CDC voucher program: there already exists a means by which the Government can electronically credit money into our accounts, a la the GST vouchers. Why then is there a need to disburse another type of vouchers? In the case of the elderly, the Government also prints physical CDC vouchers for their use. How much is spent on administrating this program? Why is money even spent on the administration of this when another more efficient manner of getting cash handouts to Singaporeans already exists?