Second Reading Speech by Second Minister for Law, Mr Edwin Tong, on the Extradition (Amendment) Bill

04 Apr 2022 Posted in Parliamentary speeches and responses

Mr Speaker, Sir,

1. I beg to move, “That the Bill be now read a second time”.

Introduction

2. This Bill updates the Extradition Act 1968 (“the Act”). The Act provides for the extradition of fugitives – in other words, the surrender of a fugitive by one State to another in which he or she is liable to be prosecuted or punished.

3. It is invoked when the fugitive flees from the State that he or she has been charged or sentenced to another State.

4. As then-Minister for Law and National Development Mr E.W. Barker said when the Act was first passed in Parliament in 1968 – “It is not in States’ interest to afford refuge to criminals from other countries. On the contrary, it is in States’ interests to return fugitives for trial and punishment to the State in which the offence was committed or in which the criminal was convicted.”

5. It is therefore important for us to review the Act to ensure that our extradition framework remains robust. As such, the policy objective of the proposed amendments in the Bill is the modernisation of our extradition regime.

6. This will enhance Singapore’s credibility as a responsible international citizen to:

a) strengthen our ability to combat crime through international cooperation;

b) ensure that Singapore is better able to facilitate extradition where justified; and

c) secure the return of fugitives who have committed offences in Singapore.

7. Whilst many of the concepts in the Act remain relevant and applicable today, apart from minor amendments in 1970 and 1998 , the Act has remained largely unchanged.

8. My Ministry conducted an extensive comparative study of various common law and civil law jurisdictions. These jurisdictions include Australia, Brunei, Canada, Malaysia, France, Japan and the United States of America (“the US”), amongst others.

9. To keep pace with current needs, it is timely to introduce modern concepts, taking into account global developments and international practice.

10. There are five key amendments in this Bill:

a) Two areas of substantive reform; and

b) Three areas of procedural reform.

11. There are several other amendments in the Bill, which are technical or consequential in nature. I will explain a few of the more material amendments but as the Explanatory Note to the Bill describes in some detail the nature of the various provisions in the Bill, and I will not elaborate on all of them.

Overview of Singapore’s extradition arrangements

12. Sir, before I outline the material amendments, it is important to set out a general overview of Singapore’s extradition framework.

13. There is no general obligation under international law to surrender a fugitive to a foreign State. This is due to the principle of State sovereignty. A mutual arrangement or treaty between States is usually required.

14. At present, Singapore can extradite fugitives to:

a) 40 declared Commonwealth territories under the London Scheme for Extradition within the Commonwealth and I will refer to this as the London Scheme – the territories within the Commonwealth include Australia, Canada and the United Kingdom (“the UK”).

b) Singapore can also extradite fugitives to Germany, the US and Hong Kong – jurisdictions with which an extradition treaty or agreement is in force.

c) State Parties to multilateral treaties which Singapore is a party to – such as the International Convention against the Taking of Hostages and the International Convention for the Suppression of Terrorist Bombings.

d) Finally, Malaysia and Brunei – based on the reciprocal arrangements for the endorsement of arrest warrants.

15. We have also signed a treaty with Indonesia. When it enters into force, we will be able to extradite fugitives to and from Indonesia on the terms as set out in that treaty.

Proposed amendments

16. The proposed amendments seek to strike the right balance between international cooperation and individual liberty. As a responsible global citizen, we must contribute to the fight against crime, by empowering our authorities to facilitate extradition requests, where justified.

17. However, recognising that extradition is a coercive process, we must also ensure that there are robust safeguards in place. This Bill seeks to introduce amendments that would enhance:

a) our ability to facilitate extradition requests; and

b) the protection for persons who are wanted by foreign jurisdictions.

First Substantive Reform: Threshold approach

18. Let me start, Sir, with the first substantive reform, on the threshold approach. We will adopt a threshold approach for determining whether an offence is extraditable, also known as an “extradition offence”. This would be subject to an exclusionary list.

19. Currently, the Act provides for a positive list approach, where only offences which are on the list would be extraditable. At the time the Act was first introduced, the list approach was the norm. The offences listed in our Act were aligned with the negotiated approach in the 1966 London Scheme.

20. However, since that time, international practice is moving away from the list approach in favour of the threshold approach. For instance, the London Scheme itself, was amended to adopt the threshold approach in 2002.

21. Many other common law jurisdictions, such as Australia, Canada, Malaysia, New Zealand, and the UK, as well as jurisdictions in France, Germany, Japan, and the Republic of Korea, have since adopted the threshold approach.

22. So in this case, under Clause 2 of the Bill, Section 2 now provides that an offence is extraditable as long as it has a maximum punishment of 2 years’ imprisonment or more, and is not on the list of excluded offences.

23. The threshold of a maximum punishment of 2 years’ imprisonment or more is commonly adopted internationally.

24. We will exclude some offences which, despite crossing that threshold, are regulatory in nature, and do not warrant the use of State resources for extradition. These are reflected in the list of excluded offences in the new First Schedule to the Act.

25. Members can have a look at the Schedule and will see –

a) offences such as the prohibition of import or transhipment of fresh fruits and vegetables without a licence under the Control of Plants Act 1993. That is excluded from extradition.

b) Another example – the production of false evidence on the register of trade marks under the Trade Marks Act 1998, and some other form of building control offences of that nature.

26. The threshold approach will make it easier to determine when an offence is extraditable. If it attracts a maximum punishment of 2 years’ imprisonment or more, it is extraditable, so long as it is not on the list of excluded offences.

27. We do not expect this amendment to result in an undue increase in incoming extradition requests.

a) From our experience, our extradition partners have made requests in respect of relatively serious offences.

b) The principle of dual criminality, which requires that extraditable offences be punishable under the laws of both Singapore and the requesting State, will also be preserved in this Act.

c) At the same time, we are expanding the safeguards under which a fugitive’s extradition may be refused, a point which I will touch on in a moment.

Second Substantive Reform: Expand restrictions on surrender

28. The second substantive reform deals with the expansion of restrictions on surrender. We are seeking to update and expand the restrictions on the surrender of fugitives in the Act.

29. A request for extradition may be refused in certain circumstances. These are referred to as restrictions on surrender and there are several restrictions under the current Act.

30. Clause 6 of the Bill inserts four new restrictions under new Sections 8 and 9:

a) First, where the fugitive was convicted in his or her absence:

i) Conviction in the fugitive’s absence is generally considered a denial of natural justice and leaves the fugitive unable to contest allegations against him or her.

ii) This restriction is consistent with our own domestic legislation, Section 156 of the Criminal Procedure Code 2010 (“the CPC”).

iii) This mandatory restriction, however, does not apply if the fugitive had deliberately absented himself or herself, or if there is opportunity for retrial.

b) Where the prosecution of the fugitive is barred in the requesting State by its limitation period:

i) For example, if the limitation period for the prosecution of an offence is 15 years, and the extradition of the fugitive is requested 20 years after the offence was committed, then the requesting State would not be able to prosecute the fugitive by virtue of its own limitation period.

ii) That being the case, it would not be appropriate for Singapore to facilitate that extradition, since the requesting State would not be able to prosecute the fugitive upon his or her return.

c) The restrictions also apply where the offence committed is for a military offence which is not punishable under criminal law:

i) As a tool in international criminal cooperation, extradition is meant to combat crimes as opposed to disciplinary offences within a military organisation.

ii) This is also consistent with the London Scheme, as well as the approach which we have taken under our Mutual Assistance in Criminal Matters Act 2000 (“the MACMA”). This is a mandatory restriction.

d) The next category, is where the remaining imprisonment term for the fugitive is de minimus in nature:

i) This applies to a fugitive who has been convicted and sentenced for a crime in the requesting State.

ii) This does not apply to a fugitive who has been charged with but not yet convicted and sentenced in the requesting State.

iii) Singapore may reject the request if the remaining imprisonment term which the fugitive has to serve is less than 6 months. This is the default minimal remaining imprisonment term, unless otherwise stated in the relevant extradition treaty between Singapore and the requesting State.

iv) We have introduced this restriction as it may not be appropriate to extradite a fugitive where the remaining imprisonment term may be shorter than the time required to complete the extradition process itself.

v) This, however, is a discretionary restriction. Because there may be instances where surrender of the fugitive is nevertheless warranted, despite having met the requirement for the discretionary restriction.

31. The updated and expanded restrictions on surrender will provide more robust safeguards for individuals who are subjects of extradition requests.

First Procedural Reform: Consent to extradition

32. Let me move on to the first procedural reform, this deals with consent to extradition. Clause 6 of the Bill introduces a mechanism for fugitives to consent to their extradition under the new Sections 16 and 21. At present, the Act does not allow a fugitive to consent to extradition, and all fugitives must undergo the full extradition proceedings. This leads to cases where extradition proceedings continue, even though the fugitive has indicated that he or she would not contest the proceedings.

33. Further, when a Magistrate has committed a fugitive to be surrendered to the requesting State, the fugitive cannot be surrendered until 15 days have elapsed since the committal order, even if the fugitive does not intend to apply for an order for review of the Magistrate’s order.

34. The amendments therefore allow a fugitive to indicate to the Magistrate that he or she wishes to consent to his or her surrender at any time after the arrest. A fugitive may also waive his or her right to apply for a review of the Magistrate’s order.

35. This saves State resources, and prevents the fugitive from being detained longer than necessary in Singapore, as there is no need for a full extradition hearing to be carried out if there is consent. The fugitive will then be surrendered as soon as practicable.

36. In this case, there are also safeguards –

a) The Court has to ascertain that the fugitive’s consent is voluntary and inform the fugitive of the consequences of that consent.

b) A specialty undertaking would be obtained from the requesting State, unless the fugitive waives such an undertaking.

i) This means that the fugitive will only be prosecuted for the offences stated in the extradition request, and not for additional offences.

ii) This will ensure the fugitive does not lose an important protection simply because he or she consents to extradition.

iii) It also ensures the fugitive understands the full scope of offences for which he or she will be prosecuted for.

37. This will align Singapore with many other jurisdictions - such as Australia, Canada, Germany, Malaysia, New Zealand, the UK and the US - that allow fugitives to consent to their extradition.

Second Procedural Reform: Centralise review procedures for extradition proceedings

38. Next, I will touch on amendments which seek to centralise review procedures for extradition proceedings. The Bill consolidates the applicable procedures for review of a Magistrate’s order. After a fugitive is apprehended, a Magistrate will hear evidence as to whether the fugitive ought to be committed to prison to await surrender to the requesting State.

39. The Magistrate will then make an order to either commit or discharge the fugitive. A fugitive who has been ordered to be detained may apply for an order for a review of detention under the CPC.

40. However, the Act does not at present provide for the Attorney-General, on behalf of the requesting State, to similarly apply for a review of a Magistrate’s decision to release the fugitive.

41. We have therefore consolidated the applicable procedures for a review of a Magistrate’s order in the new Section 17.

a) First, it incorporates the fugitive’s right to apply to the High Court under the CPC for an order for review of detention.

b) Second, it introduces a new mechanism to allow the Attorney-General, on behalf of the requesting State, to apply to the High Court to review a Magistrate’s decision to release the fugitive.

42. A review of a Magistrate’s order does not require permission of the court and can be on a question of fact or law. The High Court may make an order or direction as it thinks fit upon the review, and the High Court’s decision is final. This is to ensure that there will be finality to the proceedings.

43. We have provided for the possibility of the fugitive being released on bail, pending the determination of the High Court’s review of the Attorney-General’s application. This balances the rights of the individual with the State’s international obligations.

44. The new Section 18 provides that either party may refer a question of law of public interest which arose during a review by the High Court to the Court of Appeal. This is based on Section 397 of the CPC.

45. We have made these changes to clarify the extradition process. The ability of the Attorney-General to apply for a review of an order to release the fugitive will also remove the need to process extradition applications afresh or re-arrest the fugitive following his or her discharge.

46. This aligns Singapore’s extradition framework with international practice, and the provisions of the London Scheme.

Third Procedural Reform: Update evidential procedures for extradition proceedings

47. Next, let me touch on the amendments which update evidential procedures for extradition proceedings. In deciding whether a fugitive should be committed to await extradition to the requesting State, the court must consider whether there is sufficient evidence to warrant the extradition. Usually, this evidence is presented by way of affidavits, which can sometimes be voluminous. This includes affidavits of potential witnesses.

48. Clause 15 of the Bill introduces a record of the case mechanism under a new Section 44, which will simplify the procedure for admission of evidence to justify the extradition of a fugitive.

49. A record of the case summarises the evidence acquired by a requesting State or territory in support of its extradition request.

50. The record of the case must be certified by a judicial or prosecuting authority of the requesting State, who must state that the evidence summarised or contained in the record of the case is:

a) available to be produced at the person’s trial, and

b) sufficient under the law of the requesting State to justify prosecution of the person.

51. The Court retains discretion in determining the weight to be given to the evidence admitted by way of a record of the case.

52. The record of the case is only permissible if there is a treaty or arrangement allowing for such a mechanism to be used. This ensures that there will be reciprocity between Singapore and the extradition partner, and that Singapore will also receive similar treatment when making the extradition request to the foreign party.

53. The record of the case mechanism facilitates extradition proceedings by simplifying procedures. It is aligned with international practice and is employed by some of our extradition partners such as Canada and New Zealand.

Other Amendments

54. Before I conclude, let me just briefly touch on some other amendments.

55. We have clarified that the bail and bond provisions under the CPC apply with certain modifications to persons released on bail or bond under the Act.

56. We have also codified the powers of an authorised officer under the Act to search and seize property in the possession of the fugitive at the time of his or her arrest. Such property would be confined to physical items.

57. Clause 18 of the Bill inserts a new Fourth Schedule to the Act which lists the extradition offences arising from Singapore’s international obligations, that are currently found in other statutes. This makes the Act self-contained by housing all the extradition offences, which are currently disparate, under a single piece of legislation.

58. These other statutes implement and give effect to the various multilateral conventions which Singapore is a party to, including extradition provisions contained in conventions such as:

a) Terrorism (Suppression of Financing) Act 2002 which implements Singapore’s obligations under the International Convention for the Suppression of the Financing of Terrorism; and

b) Terrorism (Suppression of Bombings) Act 2007 which implements our obligations under the International Convention for the Suppression of Terrorist Bombings.

59. The Bill consolidates the extradition framework for foreign States and declared Commonwealth territories into a single framework. These frameworks were previously separate due to the historical fact that the provisions were derived from:

a) the Extradition Act 1870 for foreign States, and

b) the Fugitive Offenders Act 1881 for declared Commonwealth territories respectively.

60. Over time, the relevant considerations and safeguards applied similarly across foreign States or Commonwealth territories, regardless of where the request was made. We have therefore streamlined and combined the frameworks for clarity. The Bill provides for a new Part 3 for “Extradition From Singapore” and a new Part 4 for “Extradition To Singapore”. So, simplifying it into two buckets – to Singapore, and from Singapore.

61. For completeness, I should add that aside from minor updating of the language, we have preserved the Part on “Extradition To and From Malaysia”, by way of endorsement of arrest warrants. We recognise that this Part provides a simple and expeditious procedure that has worked well in the past, and in practice, for the return of fugitive offenders from Singapore to Malaysia and also vice versa.

Conclusion

62. Mr Speaker, let me now conclude.

63. The amendments in this Bill form a comprehensive update to the Act, taking into account developments in international practice.

64. Extradition is an essential component of international law enforcement and plays a key role in upholding the rule of law.

65. With these amendments, Singapore will enhance its ability to combat crime through international cooperation.

66. Mr Speaker, I beg to move.

Last updated on 04 Apr 2022