Ensuring that Singapore Plays its Part as a Responsible Global Citizen Efforts to Bring Fugitives to Justice

I had occasion to speak on the 2nd reading of the Extradition (Amendment) Bill in Parliament during its April sitting. The bill represents the most substantial effort to update the extradition framework in Singapore since it was enacted 54 years ago. The focus of my speech was to ensure there is clarity on the procedure and there is sufficient allocation of state and judicial resources to deal with extradition locally. I also drew attention to the historical complexities of our extradition framework owing to our unique journey as a state.

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Mr Speaker, Sir, I support the policy objectives underpinning the proposed amendments to the Extradition Act 1968.

As outlined by the Minister, the purpose of the Bill is to update and modernise our domestic extradition regime; ensure that there are mechanisms to ensure that resources of the state and judicial system are not over-used; and cement Singapore’s role as a responsible global citizen. As a result, this Bill proposes to make what I believe to be the most substantial amendments to the Act since it was enacted 54 years ago.

For legal practitioners and Government officers in the know, this is not an easy task. As will be seen from my speech, Singapore’s extradition framework is shaped by Singapore’s complex constitutional history and special relationship with several of our neighbouring states. I, therefore, appreciate the difficulties our legislative drafters faced in their attempt to simplify and modernise the Act. If they were to draft this Act from a clean slate, I suspect it would have been a much easier task to do. In my speech, I will cover five areas.

First, I seek clarification on the definition of “foreign state” that is proposed in the Bill.

Second, I seek clarification on two procedural issues. They are the need to retain the Magistrate’s independent jurisdiction to issue warrants of apprehension against fugitives, instead of doing so only when authorised by the Minister; and the absence of a provision that specifies who can make the applications to invoke the powers of the Court under the Extradition Act to issue warrants for apprehension of fugitives and commit the fugitive to be surrendered to the authorities of the requesting state.

Third, I seek a short clarification on how the threshold approach to determining an extraditable offence would apply in situations where the underlying treaty between Singapore and the foreign country specifies extraditable offences based on categories of offences listed.

Fourth, I seek a clarification on the issue of alignment between this Act and the existing extradition framework dealing with Malaysia and Brunei.

And, finally, I wish to explore whether a Singapore Court, in deciding whether or not to make the extradition order, may take into account Singapore’s public interest.

On the first area, I note that it is proposed that the definition of what constitutes a “foreign state” in the current Act to be retained. This includes a foreign state which had an extradition treaty with the British Empire at the time when Singapore was part of it, unless the Minister stipulates otherwise in a gazette notification. This is how the 1931 extradition treaty between the US and Singapore came into being. It was entered into between the US and UK when Singapore was a British colony. Singapore’s right to this extradition arose in her capacity as the successor by operation of law which was subsequently recognised by exchange of letters between the respective governments of the states in 1969.

As a result of this definition, there remains uncertainty as to which other foreign states may be held to be able to invoke the extradition processes under the Act. This is a point that Prof S Jayakumar, as an academic, made in 1970 in his published article entitled “Singapore and State Succession”. His point was echoed by an NUS law lecturer, Ms Janice Brabyn, in her 1985 published article entitled “Extradition in Singapore and Malaysia”. In her article, Ms Brabyn listed 14 more states that can potentially fulfill the definition of “Foreign States” arising from treaties entered into between 1898 and 1960 with the UK. They include Austria, Denmark, Hungary, Italy, Poland, Portugal, Luxembourg and Switzerland.

In my respectful view, the passage of 54 years since the enactment of the Act constitutes more than enough time for the Government to have ascertained which are the historical treaties that Singapore considers as bilaterally enforceable. This will promote certainty and remove the chance of any dispute on this issue arising in Court, something that Prof Jayakumar was concerned about in his article. He said: “The problem could arise in proceedings to extradite a fugitive to a foreign state on the basis of a pre-Independence Treaty concluded by the UK with that foreign state. The fugitive might challenge the proceedings on the ground that the extradition treaty is not one which ‘extends to and is binding on Singapore’.”

May I ask the hon Minister why he is proposing to still retain the original definition of “Foreign State” in these circumstances? Specifically, I wonder if he would consider listing them in a schedule to the Act or by way of subsidiary legislation in the near future.

Turning to the second area, in this Bill, it is proposed that two current mechanisms to commence extradition proceedings in Singapore be retained. Currently, a Magistrate may, by authorisation of the Minister through a notice, issue a warrant of apprehension of a fugitive. In addition, the Magistrate may issue a same warrant through an application made directly to him. My question is: why give the Magistrate the power to issue a warrant independently? Would it not be better to just require any state which wishes to invoke the Extradition Act to make a requisition first to the Minister or the Attorney-General’s Chambers on behalf of the Government through diplomatic channels? I would imagine this is the case for most cases, if not for all.

In my respectful view, it would be preferable for the Minister, or if it is perceived that there is a need to create extra bandwidth, a person or committee appointed by the Minister, to act as a filter to determine into the “bona fides” of the requesting state. This is not an easily justiciable question that a Court can decide.

Also, it is specifically provided in the proposed section 12(4) in the Bill that the Minister may direct a warrant issued by the Magistrate without the authorisation of the Minister to be cancelled. Having regard to the separation of powers in our Westminster-style Government, I am concerned about arrogating to the Minister a power to cancel a warrant issued by the Court, which is an independent pillar of our Government. To be fair, this is something which is already in place under the Act now.

Given that the policy intent is for the Minister to be satisfied there is ground to initiate or proceed with extradition proceedings, would it not be better to altogether remove the Magistrate’s jurisdiction to issue warrants against fugitives on his own?

This leads me to the next question as to who can make applications to invoke the powers of the Court under the Extradition Act.

Some provisions in the Mutual Assistance in Criminal Matters Act, or MACMA, as it is often referred to, overlap in purpose with the provisions of the Extradition Act. In both cases, Singapore is being asked to assist foreign states in criminal matters. MACMA deals with evidence needed for overseas criminal proceedings. The Extradition Act deals with persons accused or convicted of crime overseas.

Under section 22 of MACMA, it is specifically provided that it is the Attorney-General or a person duly appointed by the AG who may apply to the Court for production orders on behalf of the foreign country. Based on my checks, there is no equivalent section in the Extradition Act.

The Attorney-General’s role under the Act is specified only from the point after an order is made by the Magistrate on application for extradition. For example, he may make an application for a review of the order by the General Division of the High Court.

I do accept, in practice, officers of the AGC usually make the applications under the Act. But having regard to the point I made about the general jurisdiction of the Magistrate to issue warrants of apprehension against fugitives and the fact that the definition of “Foreign States” may be more expansive than currently thought, it seems to me open for a party which has interest in a matter to apply and invoke the general jurisdiction of the Court, thereby bypassing the AGC. Would it not be better to explicitly ensure that no other party other than the Attorney-General or someone appointed by him may invoke the powers of the Act to extradite a fugitive, just like in MACMA?

I now move to the third area, which is the proposed implementation of the threshold approach. As the hon Minister explained, this means that the offences which are punished by a maximum of two years’ imprisonment would automatically be considered extradition offences. This is a shift from the current model which maintains a list of offences which will require an update periodically. I support this move. It makes eminent sense.

I must point out we are enabled to make this move now because there has been, in the recent past, a massive rationalisation exercise to ensure that the maximum sentences for offences have been updated.

This move is also calibrated in that the double criminality principle, requiring the offences to be punishable by a maximum punishment of more than two years’ imprisonment in both the requesting and requested states, is retained.

My question is: how are we able to reconcile this approach with respect to treaties which list offences, as opposed to adopting the threshold approach?

Let us take the US, for example. Under the treaty between the US and Singapore, there are 27 categories of offences. Would the US be able to extradite from Singapore a fugitive wanted for an offence that is not in the list but satisfies the threshold requirements?

The next area I wish to deal with concerns Singapore’s special extradition arrangements with Malaysia and Brunei. This involves a considerably simplified process when it comes to extraditing a person in Singapore accused or convicted of an offence under the laws of Malaysia and Brunei. It is laid down in just one section of the Criminal Procedure Code, section 121, which has five subsections, and all in one page.

Under this arrangement, which, by the way, applies to Singapore reciprocally, too, when a warrant is issued by a Malaysian or Brunei Court, the Singapore Court may just endorse the said warrant and, thereafter, it is treated as a warrant issued by a Singapore Court. This simplified process reflects the special relationship between Singapore, Malaysia and Brunei and I fully support it.

Drawing from my personal experience as a former Police officer, I recall in the early 1990s, I was investigating a case of a girl alleged to have been kidnapped from lawful guardianship. The father of the girl provided information that the accused and his daughter were likely to be in Ulu Tiram, Johor. Within a matter of hours, a Malaysian police officer escorted my colleagues and I to the location identified by the father to look for the accused and the victim.

These special arrangements enable Police officers to pursue criminals even across borders as quickly as possible in an effort to bring them to justice.

Turning to the Act, I note that in the proposed Part 6, it deals only with the arrangement with Malaysia substantially as it is set out in the Act. The Act is, however, silent on the extradition arrangement with Brunei.

One of the objectives of the Bill, as I understand, is to collate extradition offences stated in other pieces of legislation into the proposed 4th schedule of the Act. In light of that intent, may I please ask why it is not felt that there is a part under the Act to deal with the special arrangement with Brunei?

May I also ask what is the legislative intent in relation to a Magistrate applying the powers under section 121 of the CPC to arrest a fugitive in Singapore wanted by the Malaysian authorities? Is he also to have regard to the requirements in Part 6 of the Extradition Act? I ask this because there is no reference in the provisions set out in the Extradition Act and the CPC to each other, even though the subject matter is the same.

My final area deals with the applicability of Singapore’s local public interest to extradition applications here and possible clashes with the policy of other countries. I will do this through an illustration.

Article 11 of our Constitution prohibits a person from being punished for an act or omission which is not punishable by law when it was done. This protection against retrospective criminal laws, however, does not apply universally. For example, Pakistan’s Ehtesab Act 1997, which focuses on corruption by politicians and public officers, has retrospective effect.

Let us consider a case of a country seeking to extradite a fugitive from Singapore for an offence of bribery which satisfies all the proposed criteria set out in the Bill. Does a Singapore Court have a discretion nonetheless not to order an order which goes against Singapore’s local public interest? Or is the Court supposed to ignore Singapore’s local public interest altogether? Would it be better to have reserved for the Singapore Court a residual discretion to take action that it deems fit, depending on the circumstances of the case?

In this regard, I wish to point out that under section 22(4)© of MACMA, it is specifically provided that a Court, before it issues a production order for the benefit of foreign criminal proceedings, should satisfy itself that the issuance of the production order is not contrary to Singapore’s public interest.

I am also aware that under the proposed section 10(2)(d) in the Bill, there is a discretion provided to the Minister not to order a fugitive to be arrested for “any other sufficient cause”. But based on my consideration of the proposed clause, this clause is not be intended to apply to Singapore’s public interest in the matter under consideration. Even if it does, my main point is that the Court should be given the judicial discretion to consider Singapore’s public interest, just like in the case for MACMA.

Sir, please allow me to conclude.

I had argued that there should be clarity on the identity of foreign states with whom Singapore has extradition treaties, given the complexities of her constitutional history. I argued that, for Malaysia and Brunei, with whom we have special extradition arrangements, there should be better alignment with this Act. I suggested that the AG be specifically appointed to invoke all the powers under the Act from the outset and not just from the point of review of an order.

Finally, I argued that, as a matter of calibration, a magistrate should not be given a discretion to issue a warrant of apprehension triggering extradition proceedings on his own accord without the Minister’s prior authorisation. On the other hand, for a magistrate deciding whether or not to order extradition, I argued the reverse: that he should be given more discretion to apply Singapore’s public interest.

In my respectful view, the proposals I have made are in line with the aims of the Bill.

Our role as legislators involves calibration of matters. Careful calibration is needed to achieve certainty, the judicious use of our state and judicial resources and ensuring that Singapore truly fulfils its role as a responsible global citizen in the arena of extradition of fugitives.