CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT) BILL

Order for Second Reading read. 11.12 am.

The Second Minister for Law (Prof. S. Jayakumar) (for the Minister for Law): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, this Bill is a straightforward Bill which is exclusively consequential in nature for it makes amendments to the Constitution which are consequential to the recent amendments to the Parliament (Privileges, Immunities and Powers) (Amendment) Act, 1986. Members will recall that that Act, inter alia, confers on this House the power of expelling a Member in line with similar powers which are to be found in the UK House of Commons and other independent Commonwealth Parliaments. In view of this new power of expulsion, it is necessary to amend Article 46(2) of the Constitution to make it clear that the effect of an expulsion would be to create a vacancy in the seat of the Member who is expelled. Article 46(2) specifies the various circumstances whereby the seat of a Member will become vacant. Clause 3 of this Bill adds a new paragraph (f) in Article 46(2) to provide that the seat of a Member will become vacant if he is expelled from Parliament.

The other amendment, which is also consequential, relates to Article 9 of the Constitution. The Parliament (Privileges, Immunities and Powers) (Amendment) Act, 1986, which we recently enacted, now empowers the House to commit to prison a person who has committed contempt of Parliament. Under Article 9(3) and (4) of the Constitution, a person who is arrested is given the right to be represented by a legal practitioner of his choice and has the right to be produced before a magistrate within 48 hours.

That constitutional provision actually envisages situations of arrest by Police of offenders. It is, therefore, not appropriate that both these requirements should apply to a person who is arrested for contempt of Parliament. In the United Kingdom, persons accused of contempts of Parliament are not, as a rule, allowed to be defended by counsel and leave from the House must be obtained for counsel to be heard.

Parliament can, of course, give such leave in appropriate cases, as indeed we in this House did in the recent hearings of the Committee of Privileges. However, it is proposed that the strict legal requirement and position in the United Kingdom with regard to representation by counsel should also be made applicable here. As regards the production of a person arrested for contempt of Parliament before a magistrate, clearly this would not be apt. A magistrate would not be in a position to determine whether such a person is to be detained or released. Accordingly, clause 2 of this Bill will amend Article 9(5) of the Constitution so as to exclude the application of clauses (3) and (4) of that Article to any person arrested for contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.

Sir, as I said, this Bill is consequential and straightforward, and I beg to move.

Question proposed.

Mr Jeyaretnam: Mr Speaker, Sir, the Minister, in moving this Bill, says that it is consequential upon the passing of the Parliament (Privileges, Immunities and Powers) (Amendment) Act. I can understand that it is so when one looks at clause 3 of the proposed Bill which seeks to amend Article 46(2) of the Constitution to provide that a Member of Parliament shall vacate his seat when he is expelled from Parliament in the exercise of its power of expulsion.

What I do not understand is how clause 2 of the Bill is consequential on the passing of the earlier Act. Clause 2 seeks to deprive a Member of Parliament who has been expelled of a constitutional right which is accorded to every citizen in this country. It is spelt out in Article 9 (3) of the Constitution, and it reads:

'Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.'

It may be that he need not be informed as soon as may be of the grounds of his arrest because he should know the ground if he is arrested on the orders of the Speaker or Parliament for contempt of Parliament. But it is the second limb of that sub-article providing that he "shall be allowed to consult and be defended by a legal practitioner of his choice" that I am concerned with. As I said, it is an Article in the Constitution. But it is more than that. It is something which is now recognized universally in all countries which apply the rule of law - that anyone who is arrested shall have the right to consult a legal practitioner. Why is a Member of Parliament, albeit an expelled Member of Parliament, be denied this right which is accorded to every citizen? I can understand that perhaps he may not be able to challenge the expulsion in court. He may, in some cases, be able to challenge it if he is able to show that the expulsion is procedurally wrong. He may not be able to challenge it on the grounds of the merits or the reasons for the expulsion. But even if he is unable to challenge it, why should he be denied the right to consult with a legal practitioner? He may wish to present a petition to Parliament upon his expulsion and he may need a legal practitioner to help him with that petition. What is the great objection to him being allowed to consult a legal practitioner?

As I said, it violates this basic right which is recognized in all countries which observe the rule of law that a man should not be denied his right to legal advice. Perhaps the Minister might explain why we have sought to deny the expelled Member this basic right.

Prof. Jayakumar: Mr Speaker, Sir, in replying to the Member for Anson, much as I would like to avoid it, I would have to repeat some of the points which I mentioned in my statement, for the reasons were given.

First of all, Article 9, clauses (3) and (4) envisage cases of arrest by the Police in the normal arrest cases. Secondly, we are following the position which applies in the United Kingdom. Thirdly, Mr Speaker, Sir, the court will not be in a position to determine if the person should or should not be detained because Parliament, in exercise of its inherent powers, would have decided to punish a person for contempt.

As to the point made by the Member for Anson that this is a basic right which applies in all countries, I think he should do his homework. I would only refer him to the position in India where they also have a written Constitution. They also have a Parliament based on Westminster traditions, and I quote from a judicial decision in India which says:

'Where a person has been convicted and sentenced for contempt by the Legislative Assembly, his production before a Magistrate would be absolutely futile. The Magistrate would have no power either to release such a person on bail or to make any other order or provision regarding his custody. The Constitution makers ---

Mr Jeyaretnam: On a point of clarification.

Prof. Jayakumar: Mr Speaker, Sir, I would like to finish what I have to say.

Mr Jeyaretnam: All right.

Prof. Jayakumar: 'The Constitution makers could never have intended that an empty formality should be gone through which would serve no useful purpose.'

The provision of the Indian Constitution which was invoked in that case, according to the court, was not intended to apply to a case of detention following conviction and sentence by the Legislative Assembly. The court accordingly held that to be the case.

Mr Speaker, Sir, when Parliament exercises its prerogative and inherent rights of punishing persons for contempt, what is important is that the punishment of this Chamber must be implemented speedily and expeditiously to give effect to the decision of this House that there has been contempt.

Mr Jeyaretnam: Mr Speaker, Sir, it is really by way of clarification. I am afraid the Minister has completely missed the import of my objection. The Minister spends all his time, in replying, in referring to clause (4) of Article 9 where it requires the person arrested to be produced before a magistrate. I was not pleading for that. I was confining my speech to the protection in clause (3) that he shall be allowed to consult a legal practitioner of his choice. That is my question: why cannot he be allowed to consult? He may be in prison, I am not saying that he should be released, but why cannot he ask for the services of a lawyer to consult the matter of his expulsion? I think the Minister has completely missed the point of my objection and refers to production before a magistrate. That is not my point.

Secondly, he talked about the UK rule. May I, first of all say, I do not know why it is necessary for us to follow the UK rule even if there is such a rule. But is there a legislative enactment in the United Kingdom that any Member expelled by the House of Commons will not be allowed to consult a legal practitioner of his choice? Is there a legal enactment?

Prof. Jayakumar: Mr Speaker, Sir, I have made it clear that we are following the practice in the United Kingdom. If he now asks why we should follow the practice in the United Kingdom, perhaps he should ask his colleague, the Member for Potong Pasir who not long ago said, "Sir, if we cannot find a precedent here, we should look to the English precedent."

Mr Jeyaretnam: Is there a law?

Prof. Jayakumar: Mr Speaker, Sir, the Member for Anson must know that the law of privileges in Parliament is not codified in the Constitution or statutory enactment, and I have mentioned to him and to the House that in the law in the United Kingdom, in the implementation of any decision of the House of Commons on contempt, there is no prior right or inherent right to counsel ---

Mr Jeyaretnam: Is there a denial?

Prof. Jayakumar: The question is, Mr Speaker, Sir, whether in implementing the decision of this House there is a prior condition for right to counsel, and I have already stated what the position is.

Mr Speaker: The Question is, "That the Bill be now read a Second time."

A Division will be taken to ascertain that the Second Reading of the Bill is supported by the votes of not less than two-thirds of the total number of Members of Parliament, which is 53, pursuant to Article 5(2) of the Constitution. Ring the Division Bells.

Question put, "That the Bill be now read a Second time."

The House divided: Ayes, 61; Noes, 2; Abstention, 1. Ayes Ayes (cont.) Abbas Abu Amin Chng Hee Kok Abdullah Tarmugi Ch'ng Jit Koon Ahmad Mattar Fong Sip Chee Ang Kok Peng Goh Chok Tong Beng Kian Lam, Arthur Ho Kah Leong Chai Chong Yii Ho Tat Kin Chandra Das, S. Ibrahim Othman Cheong Yuen Chee, Eric Jayakumar, S. Chew Heng Ching Jek Yeun Thong Chin Harn Tong Koh Lam Son Koh Lip Lin Teo Chong Tee Lai Tha Chai Toh Chin Chye Lau Ping Sum Vasoo, S. Lau Teik Soon Wan Hussin bin Hj. Zoohri Lee Boon Yang Wan Soon Bee Lee Hsien Loong Wang Kai Yuen Lee Kuan Yew Wong, Aline K. Lee Yock Suan Wong Kan Seng Leong Horn Kee Wong Kwei Cheong Lim Boon Heng Yap Giau Cheng, Eugene Lim Chee Onn Yatiman Yusof Ng Kah Ting Yeo Cheow Tong Ong Pang Boon Yeo Choo Kok Ong Teng Cheong Yeo Toon Chia Othman bin Haron Eusofe Yu-Foo Yee Shoon Ow Chin Hock Zulkifli bin Mohammed Phua Bah Lee Sidek bin Saniff Noes Tan Cheng Bok Tan, Dixie Chiam See Tong Tan, Augustine H.H. Jeyaretnam, J.B. Tan Keng Yam, Tony Tan Soo Khoon Abstention Tang Guan Seng Teh Cheang Wan Yeoh Ghim Seng

Mr Speaker: The Second Reading of the Bill has been carried by the votes of not less than two-thirds of the total number of Members of Parliament.

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 and reported without amendment.

Third Reading

Mr Speaker: Third Reading, what day?

Prof. Jayakumar: Now, Sir. I beg to move, "That the Bill be now read a Third time."

Mr Speaker: The procedure at the Second Reading will again be adopted here. Ring the Division bells.

The House divided: Ayes, 61; Noes, 2; Abstention, 1. Ayes Ayes (cont.) Abbas Abu Amin Ch'ng Jit Koon Abdullah Tarmugi Fong Sip Chee Ahmad Mattar Goh Chok Tong Ang Kok Peng Ho Kah Leong Beng Kian Lam, Arthur Ho Tat Kin Chai Chong Yii Ibrahim Othman Chandra Das, S. Jayakumar, S. Cheong Yuen Chee, Eric Jek Yeun Thong Chew Heng Ching Koh Lam Son Chin Harn Tong Koh Lip Lin Chng Hee Kok Lai Tha Chai Lau Ping Sum Toh Chin Chye Lau Teik Soon Vasoo, S. Lee Boon Yang Wan Hussin bin Hj Zoohri Lee Hsien Loong Wan Soon Bee Lee Kuan Yew Wang Kai Yuen Lee Yock Suan Wong, Aline K. Leong Horn Kee Wong Kan Seng Lim Boon Heng Wong Kwei Cheong Lim Chee Onn Yap Giau Cheng, Eugene Ng Kah Ting Yatiman Yusof Ong Pang Boon Yeo Cheow Tong Ong Teng Cheong Yeo Choo Kok Othman bin Haron Eusofe Yeo Toon Chia Ow Chin Hock Yu-Foo Yee Shoon Phua Bah Lee Zulkifli bin Mohammed Sidek bin Saniff Tan Cheng Bok Noes Tan, Dixie Tan, Augustine H.H. Chiam See Tong Tan Keng Yam, Tony Jeyaretnam, J.B. Tan Soo Khoon Tang Guan Seng Abstention Teh Cheang Wan Teo Chong Tee Yeoh Ghim Seng

Mr Speaker: The Third Reading of the Bill has been carried by the votes of not less than two-thirds of the total number of Members of Parliament.

Bill accordingly read a Third time and passed.