EVIDENCE (AMENDMENT) BILL

Order for Second Reading read. 5.22 pm

The Senior Minister of State for Law (Assoc. Prof. Ho Peng Kee): Mdm Deputy Speaker, I beg to move, "That the Bill be now read a Second time."

Madam, section 126 of the Evidence Act safeguards confidential official communications from being disclosed, when disclosure would be detrimental to the public interest.

Currently, this protection is only applicable with respect to confidential official communications made to "public officers". The term "public officer" as used in the Evidence Act does not include officers and employees of statutory bodies, even when they are exercising official functions similar to those of Government agencies and receive confidential communications in the course of discharging their functions.

Section 126 was drafted at a time when almost all governmental functions were performed within the Government. Over the years, however, many governmental functions have increasingly been devolved to statutory bodies. There are merits to such devolution. A key benefit is the flexibility of statutory bodies to better harness their professional capabilities and concentrate on developing their core competencies. This ensures that the public sector continues to remain nimble and responsive to challenges of the future.

Madam, with the devolution of functions from Ministries to statutory bodies, officers in the statutory bodies would receive such confidential official information in the course of their work. They require such information in order to discharge their functions effectively.

Prior to conversion into a statutory body, the same information would have been protected by section 126 of the Evidence Act because the officer would have received such information as a Ministry official. With the conversion, these officers are no longer considered "public officers" within the scope of the Evidence Act. They will not be protected under the Evidence Act from disclosing confidential official communications in court proceedings even if this would be detrimental to the public interest. Madam, this is not satisfactory.

Hence, this Bill seeks to extend the protection of section 126 to confidential official communications made to officers in selected statutory bodies. In essence, the effect is to restore the position to what it was before the formation of the statutory body.

Madam, I would like to assure the House that safeguards are in place to ensure that this amendment will not lead to information being unduly withheld. Firstly, this protection is not extended to all statutory bodies, but only to those that are covered by the Official Secrets Act. Currently, there are 23 such listed entities out of about 70 statutory bodies. Hence, we have avoided a wide blunderbuss approach, adopting a focused and calibrated one instead. These statutory bodies that are listed handle official information vital to national security or national interest. Let me mention two examples as illustrations. The Monetary Authority of Singapore (MAS) handles information that can impact our economic security and that contain market sensitivities. The Defence Science and Technology Agency (DSTA) has access to information on the SAF's development infrastructure, defence plans and weapons capabilities. Therefore, the protection against disclosure of official communications, especially that between the Government and such organisations, is a logical extension of their coverage under the Official Secrets Act by virtue of the sensitive nature of the information they receive.

Secondly, the new section 126(2) will not be automatically invoked to prevent disclosure of all or any information or communications that is reposed in a listed statutory body. It will only be invoked when disclosure of the information or communication harms the public interest.

Here, the track record on the invoking of section 126 should give some assurance. The Government has invoked the existing section 126 sparingly thus far and only after careful consideration. We only do so if disclosure will harm the public interest. This will continue to be our approach under the expanded section 126.

Lastly, the courts will continue to play a role in ensuring that the privilege under section 126 will not be invoked to prevent all disclosures of information.

The amendment will ensure that official information continues to be properly safeguarded and managed for the overall interest of Singapore.

Madam, I beg to move.

Question proposed.

Assoc. Prof. Chin Tet Yung (Sembawang): Mdm Deputy Speaker, I rise in support of this Bill, but I have some concerns which I hope the Senior Minister of State can address.

It is a fundamental principle of justice that whenever evidence is required of a case in a court of law, such evidence should be provided unless it is protected by well established privileges. Such privileges include legal professional privilege and state privilege for affairs of state.

Madam, this Bill extends the privilege, as explained by the Senior Minister of State, to officers other than public officers. The Senior Minister of State says that it extends mainly to the statutory officers working in statutory bodies and that, currently, they are not covered under the original section 126(1). Does that mean that such officers are not to be regarded as public officers because of the devolution of statutory bodies? This is the first point I want to ask. And if it is the case then, obviously, there is a reason to extend the provision as suggested.

My second point is on the discretion given to such persons. It is quite obvious, listening to the Senior Minister of State, that there would be about 70 bodies that could be listed under the Official Secrets Act. Is it a good idea to provide such a wide discretion to such a large group of officers? If we look at the proposed provision, it says that the officer himself will decide whether it is in the public interest or not to disclose the information.

In many jurisdictions, this is not the case. The court usually has the authority to go behind the public officer's reasons or any officer's reasons, including a Minister's reasons, for disclosure. They can examine the official communications before they allow such evidence to be withheld or order for disclosure. So, I would like to ask whether it is intended, in this provision, to provide such officers with the absolute discretion to say whether a piece of evidence is or is not in the public interest to disclose. If so, I think the provision is far too wide.

Thirdly, the Senior Minister of State mentioned that there are important statutory bodies for which such provisions are very critical for the proper working of such statutory bodies, such as the MAS. But it has come to my notice that the schedule of the Official Secrets Act includes such bodies as the National Heritage Board. If such bodies are included in the Schedule, I wonder why should officers serving such bodies, firstly, be under the Official Secrets Act and, secondly, be allowed to decide whether disclosure of historical documents, for example, be regarded as detrimental to the public interest. So, the question that I have for the Senior Minister of State is: how do we ensure that when such an officer makes a claim, there will be a check on whether such a claim is valid or not?

My final point is that, as I look at the section, I would like to ask the Senior Minister of State to confirm that any officer within this provision actually can consent to give evidence of such official communications, and that even if the court were to disagree with him that public interest would suffer but if he decides that public interest would not suffer by such disclosure, he would be allowed to give the evidence. I think this is implicit in the section. Perhaps the Senior Minister of State can clarify on this matter.

Mr Steve Chia Kiah Hong: Thank you, Mdm Deputy Speaker, for allowing me to participate in this debate.

I read with concern the proposed amendment in the Evidence Bill. The Bill, in its original form and in the proposed amendment, gives too much discretion to the person called to give evidence in court. First, how can any person, whether a member, officer or an employee of, or is seconded to, any organisation under the Official Secrets Act or otherwise by his own consideration refuse to give evidence and not be compelled by the court to do so to give evidence? There must be a better determinant than the personal feeling and consideration from such a person. The law should provide for a clearer and more specific determinant than a subjective phrase "when he considers".

Second, the meaning of "public interest" is not defined, explained or elaborated. Who and what defines public interest? What is of interest and concern to the public may be pronounced as State secrets to the Government, and not in the interest of Singaporeans to know. Abuse of power and official positions could set in if anything that is not in the favour of the Government or officials is then classified as State secret and not publicly disclosed.

The current definition of "public interest", like the OB markers, is subjective, evasive and free floating. I hope the Senior Minister of State can give a more specific meaning and definition of "public interest" and, at the same time, give a better determinant to a person called to give evidence how and when not to give evidence.

Mr Low Thia Khiang: Mdm Deputy Speaker, the proposed amendment would allow more information to be withheld from the courts. This will have the effect of increasing secrecy and make more organisations less transparent to citizens.

Under the existing section 126, Government officials already have the right not to disclose official communication if they feel that it is not in the public interest to do so. "Public interest" is not defined and there is no requirement that the public official needs to be of any rank. Anyone in the public service can make this decision. It can be subjective and arbitrary. If a document is potentially embarrassing for the Government, could it be also under public interest to cover up, so that people will still have confidence in the Government? If releasing the document may result in the Government losing a case, should the Government be the one deciding whether it should be released?

The courts in Singapore have already said that under section 126, the public officer's assessment that public interest will suffer is conclusive, and the court will not question it. This already places a heavy burden for anyone who sues the Government and wants to get access to the documents.

Madam, by extending such a privilege now to 19 more organisations, some of which are statutory boards, we are putting more blindfolds on the eyes of the court. I am concerned that such an amendment may render the court not being able to ascertain the facts of the case and allow justice to slip away under the guise of public interest. For example, if an employee of the CPF Board believes that he was unfairly dismissed, CPF Board officials may be able to resist disclosing communications surrounding his dismissal, and he will be hampered in proving his case in court.

Another scenario could be that a death occurs at the premises of one of these organisations. At the Coroner's inquiry into the circumstances of the death, even the Coroner will not be able to compel production of official communications if the officials feel that it is not in the public interest to disclose it. This could lead to either an open verdict or even a verdict which is wrong.

Madam, staff of these organisations are already bound under the Official Secrets Act not to reveal official communications to unauthorised persons. However, what the Government wants to do by this amendment will deprive the courts of information which may be critical in order to come to a fair and just decision. We should protect the court's rights to have all relevant information, as its decision will affect the parties and also the public. Moreover, all these organisations are financed by public funds. Accountability to the public will be seriously compromised if we allow the officials to decide what is or is not in the public interest to disclose in court.

The Senior Minister of State, in his speech, said that there would be some safeguards on when to invoke the provision. May I know what safeguards are there, who decides when to invoke and when not to invoke the provision?

Mr Chiam See Tong (Potong Pasir): Mdm Deputy Speaker, I am not making a speech. I just want a clarification on a practical point. How does an employee, in a protected organisation, know which documents are subject to the protection of section 126(2) of the amended Evidence Act? There are so many documents floating around. And if it is by chance that an employee takes out a document from the office, he may be charged under the new section 126(1). In case an employee takes out a document, how does he know that the document is protected under the Act?

Assoc. Prof. Ho Peng Kee: Madam, first, I think I can deal quite quickly with Mr Chiam's point. If we look at the amendment under discussion, it is a situation where a person has been asked to participate in court proceedings to either give information on the stand, or through interrogatory or discovery, to produce documents before the court. But if, in his view, the disclosure would harm public interest, then he will say, "No, I can't do it." What the provision says is that the court would then not be able to compel him, because he is exercising a privilege. That is the context of the section.

There are three general points that I want to make first. The first point is that the thrust of the speeches of the Members who have spoken is that the section is too wide, either because public interest is not defined or on the question of who is to decide. But the backdrop to this whole amendment is that we are restoring the former position, before a Ministry or department is converted to a statutory board, eg, the Land Office in the Ministry of Law, which was converted into the Singapore Land Authority (SLA). The SLA is one of the bodies listed in the Schedule. Before the conversion, the officers who were part of the Ministry of Law would have handled confidential information as public officers. And in the case of the Land Office, it would be information that can impact, for example, market sensitivities and policy decisions on how we acquire land. After the conversion to a statutory board, these officers who join the statutory board would be doing the same thing. They would still have access to such information. So, we are saying, "No, this is not a satisfactory position." We have to continue to protect this information from compulsory disclosure in court if it is against public interest. That is the first point.

The second point is these 23 statutory bodies have been carefully selected. If you look at the list, which is set out in the Official Secrets Act, there are 23 bodies listed there. So it is not 70 bodies. I think Prof. Chin mentioned 70 bodies.

Assoc. Prof. Chin Tet Yung: You mentioned that there were 70 bodies. With the possibility of all of them on it, that would make 70.

Assoc. Prof. Ho Peng Kee: Correct. But to the Ministries' credit, a careful analysis has been done to ascertain which are the statutory bodies that handle information that is vital and disclosure of which, if it is not controlled, would be detrimental to the national interest. So, for example, you will see statutory bodies there such as MAS, Defence Science and Technology Agency, Singapore Land Authority, Urban Redevelopment Authority, Jurong Town Corporation and others. So it is a carefully selected list, showing that we have taken a targeted approach.

The approach we take in the new section 126(2) is really based on the existing approach in section 126(1) or the current section 126. That is an important point because we are basically taking an approach that has worked. The section has been there for many years, and how section 126 has been operated will give an indication as to how new section 126(2) will be operated.

Now we need section 126(2) because, and this is in answer to Prof. Chin's point, the officers in the statutory boards will no longer be public officers. So they are not covered under the current section 126 and that is why we have a new section 126(2).

Even though, prima facie, on the wording of the section, the officer himself decides - if you look at how section 126 has been operationalised over all these years - if and when an officer receives, as Prof. Chin will know, an application for interrogatories or discovery of documents or information, or subpoenaed to give evidence in court, or subpoenaed to produce documents, he will, of course, consult his superiors because he is doing it on behalf of his organisation. And he will then decide whether or not the disclosure will harm public interest, with the benefit of legal advice, which will include the advice of the Attorney-General's Chambers who after all is the custodian of public interest. So, that is how in practice this process will continue, both under section 126, as it has been for many years, and under the new section 126(2).

What is public interest? Mr Low Thia Khiang gave certain examples of whether or not if the officer feels that disclosure will harm his own interest, would he then say it is public interest? As I have described the process, this will never happen.

Public interest is certainly not the interest of the officer concerned. It is not even the interest of the organisation itself. It is not even the interest of the Government because public interest really means the national interest, ie, the interest of Singapore and Singaporeans, like you and me, and Singaporeans out there. So that is the context in which section 126 has operated for many years and as I have said, it has operated satisfactorily. It has not been invoked willy-nilly, but only after careful consideration, in good faith, and only with regard to information, disclosure of which will harm public interest. In other words, not all information that reposes in the 23 selected statutory boards will be subject to this section. There will be careful consideration whether or not this privilege will be invoked. So there are safeguards, both in the process as well as in the courts playing a role.

Prof. Chin mentioned the role of the courts in other countries. In Singapore, in fact, there have been cases where the courts have shown how they will play a role. For example, the court will decide whether or not the communication or information has been given to the officer in official confidence. That they will do. And, secondly, the determination of whether or not disclosure will harm public interest, as Prof. Chin rightly said, will be for the person to decide. But it must be made in good faith. I do not think Parliament should circumscribe how the courts will decide the application of the section. But from the decided cases, it shows that the courts do play a role.

One more point is that Prof. Chin mentioned the National Heritage Board. I am sure he knows the National Archives is part of the National Heritage Board. In the National Archives will be found many unpublished Government documents and other Government documents which need the protection. I think I have covered most of the points.

Mr Low Thia Khiang: A clarification from the Senior Minister of State. At what level would the decision be made whether to disclose a certain piece of information and to decide whether the piece of information, when it is disclosed, would be harmful to the public interest? At what level of the organisation would such decisions be made?

Assoc. Prof. Ho Peng Kee: Mr Low understands the process. The trial will take some time and so the officer involved will receive, like I say, an application for discovery of documents or interrogatories. When he receives that, of course, he will surface it to his superiors - head of department, probably the legal officer in the statutory body would be involved, and inputs would then be sought from the Attorney-General's Chambers.

Mr Low Thia Khiang: So it is the Attorney-General's Chambers that will decide whether to disclose, and not the organisation concerned. Is that so? The final decision will be made by the Attorney-General?

Assoc. Prof. Ho Peng Kee: With guidance and advice from AGC.

Mr Steve Chia Kiah Hong: Mdm Deputy Speaker, a point of clarification. The Senior Minister of State said that the current practice is that when the officer is being called, he will check with his superiors and officers whether he can give the information. But that is a practice and practice can change, and this practice is not documented in words. Should it not be better that the practice be put into words, in law, to make it clear that the determination in this case would be more concrete than the personal feelings of his consideration?

Assoc. Prof. Ho Peng Kee: Let me explain why the flexibility is needed as worded in section 126. In the vast majority of cases, there would be time to consult because there would be interrogatories and discovery. But section 126 is framed in this way - and new section 126(2) is based on the current section 126 which has been there for many years, and it works very well - to cater to a specific situation, rare though it may be, but it may happen, when an officer is actually in court, involved in a court case, and he is asked on the stand certain questions which may require him to disclose information which, in his view, may harm public interest. The section must be wide enough to allow him the flexibility to say "no". As far as I know, this has not happened, but I think in the wisdom of the drafters of the original section 126, and the section has worked well all these years, it is better to keep it like that.

Mr Steve Chia Kiah Hong: Mdm Deputy Speaker, what has worked in the past may not represent that it will work in the future. The Senior Minister of State said, on the one hand, that there is consultation with his officer, but on the other hand, if he is asked, then he has the flexibility. That is where I am contending. How much flexibility should we give to the person by his personal consideration? I think we have to be more specific in that determination. Would the Senior Minister of State agree with me that this original position that was crafted 30 years ago is already vague and unclear? And should any amendments be made, it should be made to be more specific than to make another amendment to restore the Government's power back to this original position.

Assoc. Prof. Ho Peng Kee: Madam, I thought I explained very clearly why we need to retain this flexibility. The track record speaks for itself. So, I am not just talking in vacuum. The practice has worked, as shown by all these cases that have come before the courts. I think we should retain it. But as I have explained, it is not a personal decision. I think that is his main concern. It is not a personal decision. It does not happen that way. When he receives an order from the court by the other party to produce documents, he just does not hide it himself. He will consult the other people I have mentioned. So I think Mr Chia should rest assured.

Mr Chiam See Tong: Can I get further clarification from the Senior Minister of State? I believe the practice in England is for the judge to decide which document is of national interest. I think that is a better practice. Because if you leave it to the head of the Government department and it goes to the AG to make a decision, it cannot be seen publicly that this is going to be an unbiased decision. What happens if there is a decision that is going to embarrass the Government if it goes in one way? Can the AG or the head of the department still decide with impartiality?

Assoc. Prof. Ho Peng Kee: First of all, let me say that different jurisdictions will have to find different approaches to questions like that, which involve national interest. We cannot just pluck examples from other countries and say they must apply in Singapore. Secondly, as I have said, the courts actually do have a role. It is not as though they do not play a role. And, indeed, there have been cases which show there is an established test as to how the courts would look at the question.

Let me just briefly say that, from the cases, the courts would apply a two-stage test to determine whether the privilege can be claimed. First, the court must be satisfied that the communication in question was, in fact, made in official confidence. And, second, while it is for the person claiming the privilege to determine whether the public interest would suffer by the disclosure, the court must be satisfied that such determination was, in fact, made in good faith. So ultimately it is not a matter of the court not having a role.

Assoc. Prof. Chin Tet Yung: Would the Senior Minister of State agree with me that if there was any claim that any party can think unjustified, their claim that public interest has suffered, was an unjustified claim, such a party can actually bring a constitutional action to say that the public officer or the officer in the statutory board had acted either capriciously in bad faith or otherwise? Is that not true? So there is actually a legal remedy for such instances even if the discretion is subjective.

Assoc. Prof. Ho Peng Kee: Of course, there are these administrative actions and judicial review. If you can satisfy the court that you have locus standi, as Prof. Chin says, there are other actions which you can pursue.

Mr Steve Chia Kiah Hong: Mdm Deputy Speaker, can the Senior Minister of State give us an assurance that such flexibility as required will not lead to an abuse of power or privileges? I just need an assurance.

Assoc. Prof. Ho Peng Kee: Madam, this Government stands on its record, as I have said. The integrity of the system is at stake. If the AGC is involved in the determination, why should I give an assurance here? There have been no accusations of bias or wrong-doing.

Mr Chiam See Tong: The Senior Minister of State has been talking about deciding whether a document is a secret document, but I think the more important issue now we are discussing is whether that document contains a public interest. So who is to decide what is public interest? I think that is the issue. The words "public interest" mean a lot of things to many people. For a defendant, if his life is at stake, this is an important issue, and you cannot go and get a manager of a statutory board or the AG to decide. I think the judge should be deciding.

Assoc. Prof. Ho Peng Kee: Madam, I think I have answered the points already. If Mr Chiam looks at the specific section, it is not a matter of the production of documents, the consideration is whether the disclosure of communications made to him in official confidence will be detrimental to public interest. And he decides not in isolation, but in consultation with his superiors in the organisation and the Attorney-General's Chambers. I think that is the best I can do in terms of assurances.

Question put, and agreed to.

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. - [Assoc. Prof. Ho Peng Kee].

Bill considered in Committee; reported without amendment; read a Third time and passed.