MFA Press Statement: Speech by Senior Minister of State Zainul Abidin Rasheed on the Second Reading of the Internationally Protected Persons Bill [Bill No. 1/2008] and his reply to Parliamentary Questions, 6 March 2008

Mr Speaker, Sir, I beg to move, that the Bill be now read a second time.

Introduction

2 The war against terror is increasingly complex. Aided by sophisticated technology, terrorist groups are now able to extend their ideological reach and inflict harm beyond the immediate boundaries of countries or regions. In recognition of the globalised threat of terrorism, the international community has developed a series of 13 international counter-terrorism conventions within the framework of the United Nations to combat this threat. To date, Singapore has acceded to eight of them, the most recent being the International Convention on the Suppression of Terrorist Bombings in December 2007.

3 One such instrument is the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents. In a globalised world, it is imperative to protect officials of States and international organisations from being targeted by terrorists. This Convention focuses on such persons - called "Internationally Protected Persons", and provides a framework for international cooperation in the investigation, prosecution and extradition of people who engage in offences against Internationally Protected Persons.

4 The provisions of our Penal Code generally address our obligations under the Convention if such offences were to be committed domestically. However, for consistency with other Acts implementing other international counter-terrorism Conventions, this Bill extends Singapore's jurisdiction to deal with specific crimes against Internationally Protected Persons outside Singapore.

5 The Bill also enables us to provide mutual legal assistance and extradition procedures in relation to persons who are accused of committing or aiding in the commission of offences against Internationally Protected Persons. Coupled with extra-territorial jurisdiction, this will ensure that offenders will not escape punishment simply because they committed such offences overseas.

6 Sir, I will now touch on the key provisions of the Bill.

(A) Definition of Internationally Protected Person

7 Under Clause 3 of the Bill, the definition of the Internationally Protected Person follows that provided by Article 1 of the Convention. Under the Convention, an Internationally Protected Person could refer to two categories of persons. The first category of persons refers to Heads of State, Heads of Government and Ministers of Foreign Affairs as well as their family members. These persons are entitled to special protection as long as they are in a foreign country, regardless of whether their visit to the foreign country is official, unofficial or private. The second category refers to diplomatic officers, consular officers and officials of an international organisation, for example, the UN. It extends to the family members of this group of persons. Where there is doubt as to whether a particular person is an Internationally Protected Person, the Bill provides for the Minister for Foreign Affairs to give a written certificate stating whether a person was at any time an internationally protected person. This certificate is admissible as prima facie evidence in court proceedings to facilitate proof that the victim of an offence is indeed an Internationally Protected Person.

(B) Extra-Territorial Jurisdiction for Offences Against Internationally Protected Persons

8 Sir, a number of provisions in the Bill provide for extra-territorial jurisdiction in relation to certain offences against Internationally Protected Persons. Having this provision gives Singapore the ability and the flexibility to prosecute any offender found in our territory if he is not extradited. It will also ensure that the perpetrators do not escape punishment regardless of who they are and where the offence was committed, which is a key objective of this Convention.

9 Sir, in particular, clause 4 of the Bill confers extra-territorial jurisdiction in relation to offences listed in the First Schedule which are committed against Internationally Protected Persons. Clause 5 confers extra-territorial jurisdiction for offences listed in the Second Schedule which are committed against the official premises of, or a vehicle used by, an Internationally Protected Person. Clause 7 confers extra-territorial jurisdiction, for the abetment of, a conspiracy, or an attempt to commit an offence against an Internationally Protected Person.

10 Sir, clause 6 of the Bill makes it an offence, both within Singapore as well as outside, to threaten to commit an offence against an Internationally Protected Person, his official premises or place of residence or a vehicle used by him.

(C) Presumption of Knowledge

11 Persons who are charged for the offences specified in clauses 4 to 7 of this Bill, will be presumed to know that the target of his actions was an Internationally Protected Person. The presumption is rebuttable and only applies after the prosecution shows that the victim had the status of an Internationally Protected Person. Such a provision in criminal legislation is not unprecedented. Both the Misuse of Drugs Act as well as the Arms Offences Act have included provisions pertaining to the presumption of knowledge of the defendant. Many other leading jurisdictions such as Australia, the United Kingdom and Hong Kong have gone a step further in implementing the Convention by making it immaterial as to whether the accused had knowledge that the victim was an Internationally Protected Person. In providing that the accused can rebut this presumption, Singapore has not gone as far as these jurisdictions.

(D) Withholding Information

12 In order to make Singapore a safer place for Internationally Protected Persons, everyone must play their part. Having prior information of plans against Internationally Protected Persons enables the Government to act before these plans materialise. This is crucial as it can save lives. Hence, clause 9 of the Bill requires anyone who has information that can prevent an offence against an Internationally Protected Person, or which is useful to arrest, prosecute or convict the offender for crimes against Internationally Protected Persons to come forward and provide the information to the authorities. A person who provides the information in good faith will be protected against any civil or criminal proceedings. Conversely, failure to disclose such information renders a person liable to a fine not exceeding S$50,000 or to imprisonment for a term not exceeding 5 years or both.

(E) Extradition and Mutual Legal Assistance

13 Sir, the Convention requires States Parties to either extradite a Convention offender present in its territory or to submit him to the competent authorities for the purpose of prosecution. Under the Extradition Act, extradition to or from a declared Commonwealth country may be effected without an extradition treaty. But when an extradition request is received from a non Commonwealth State which is party to the Convention with no bilateral extradition treaty with Singapore, or if there is an existing bilateral extradition treaty with a State party to the Convention but the treaty does not provide for the extradition of persons accused of or convicted of offences against an Internationally Protected Person, clause 11 of the Bill provides that the Minister for Law may make a notification under section 4 of the Extradition Act to apply the Act.

14 To facilitate mutual legal assistance between State Parties to the Convention, Clause 10 of the Bill provides that assistance under Part III of the Mutual Assistance in Criminal Matters Act may be provided by Singapore to a State Party to the Convention with respect to offences against Internationally Protected Persons. An offence against an Internationally Protected Person shall be deemed not to be an offence of a political character. This also applies to an extradition request. This is to prevent anyone from blocking mutual legal assistance or extradition on the grounds that the offences in question were committed for a political motive

Conclusion

15 Acceding to the Convention and implementing the Internationally Protected Persons Bill will strengthen existing counter-terrorism cooperation between Singapore and like-minded countries. It ensures no safe haven for the terrorists and complements domestic legal instruments already in place to deal with terrorists. It will also reiterate our commitment to combat terrorism in whatever form and ensure that Internationally Protected Persons can conduct their work in a safe environment.

16 Sir, I beg to move.
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Prof Thio Li-Ann: Sir, the Internationally Protected Persons Bill seeks to give domestic effect to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons. This is one of a series of UN sponsored multilateral counter-terrorism instruments. The UN General Assembly adopted this treaty in December 1973, at a time when the international community was becoming painfully aware of threats to diplomats and individuals who were being taken hostage by terrorist groups. Indeed, a principal catalyst for the treaty was the kidnapping and murders in March 1973 by Palestinian terrorists of a US Ambassador and a Belgian diplomat in Khartoum, Sudan. States share a common interest in ensuring that Internationally Protected Persons or IPPs, including senior government officials and diplomats are protected against assaults, assassination and bombing and other forms of violence. These actors are part of the network designed to promote peace, communication and cooperation between States and peoples. The Convention contains legal rules designed to reinforce the atmosphere of personal security, to allow IPPs to perform their functions fearlessly and effectively. The Convention identifies certain acts as criminal offences. It facilitates the extradition of accused offenders to other States to stand trial. It covers actors directly involved or complicit in relation to actual or threatened murder, kidnapping, attacks on the person or liberty of IPPs, the official premises, private residence or means of transport. The Convention obliges States to criminalise such offences and also to establish jurisdiction over these offences and their perpetrators.

2 Sir, under international law, States are not subject to a general obligation to extradite a person to another State to stand trial for committing a crime. However, this is a widespread practice among States, often regulated by bilateral treaties. When an alleged criminal falls into the custodial hands of the State, which is party to the Convention, that State must follow one or two causes of action, either to prosecute or to extradite the offender to another country for trial. The intent behind this obligation to prosecute or extradite is to forge an international order that criminal offenders cannot find a safe haven where they may escape the clutches of justice. In giving effect to the Convention, Singapore is stepping up to the plate as a responsible member of the family of nations, to play its part in enforcing international law against those who commit offences against IPPs, which includes transnational terrorist activities. Extradition is essential to ensure respect for the international rule of law. If there was no legal procedure to facilitate the extradition of criminal offenders to States where they could be tried for their crimes, they will enjoy impunity for their anti-social or terrorist acts which makes a mockery of law. Extradition procedures seek to ensure that while criminals can run, they cannot hide from the reach of the law. Section 11 of the Bill addresses this issue. Offences against IPP are deemed extraditable crimes. Section 11 (3) effectively makes the Convention the legal basis for extradition between State Parties in the absence of an existing extradition treaty. If vigourously enforced, extradition may deter the commission of criminal or terrorist acts. This enhances the safety and security of IPPs.

3 Sir, the Convention allows State Parties to refer to domestic criminal law to flesh out the crime of attacking the person or liberty of an IPP or committing a violent attack against the IPP's official premises or her transportation services so as to endanger her person or liberty. Thus, offences against Internationally Protected Persons' premises or vehicles are settled in the First and Second Schedules of the Bill respectively. The First Schedules refers to various offences under statutes like the Explosive Substance Act, Kidnapping Act and the Penal Code. This includes offences relating to rape, murder, causing grievous hurt, kidnapping, abduction, wrongful confinement and interestingly, outraging modesty in certain circumstances, under Section 354A of the Penal Code.

4 Sir, I am uncertain about whether it is appropriate to include a crime like outraging modesty even in aggravated circumstances in the category of crimes against IPPs. At first blush, it appears not to rise to the same level of gravity as crimes like homicide, kidnapping or terrorist acts. A primary aim of the Convention is to require State Parties to criminalise acts which threaten the safety of diplomatic agents and other IPPs in a manner which also threatens the maintenance of normal, friendly international relationships between States and International Organisations or IGOs. In relation to including the crime of outraging modesty as a crime against IPPs, could the Minister shed light on what precedent this was based on?

5 Sir, Section 3 of the Bill largely follows the definition of Internationally Protected Persons in Article 1 of the Convention. A certain category of specifically identified IPPs who enjoy special protection are senior government officials like the Heads of States or Heads of Government and Foreign Affairs Ministers as Section 3(1)(a) [of the Bill] provides for. The Head of State symbolically embodies the State while government leaders wield the reins of executive power in their constitutional orders. Foreign Affairs Ministers often have to travel frequently in discharging their portfolio. It is evident why these officials enjoy IPP status. Notably, family members who accompany these officials are also IPPs under Section 3(1)(b). Section 3(1)(c) also extends IPP status to officials of a State or IGO in certain circumstances. This category of officials must, at the time and place of the alleged offence must be entitled, under international law to special protection against attacks on their persons, freedom or dignity. These could include special envoys, diplomats, or even judges and officials of bodies like the International Criminal Court. The beneficiary of this category of IPPs may not be that easy to identify. For example, would a diplomat whic protection, the cue will be taken from the standards in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. I understand that Singapore acceded to these treaties in April 05 without reservations.

6 Section 3 (1) (d) also covers members of the family forming part of the household of a person falling into this category of State or IGO officials. What guidance is available in defining "part of a person's household"? Would these include spouse, children, parents, second or third cousins? Where and how is the line drawn? Furthermore, must the presence of this family member, such as a child of school-going age, be connected with the presence of a relevant official with IPP status in the State where the official is posted? What if a crime is committed against a visiting relative? Notably, under the terms of the Convention and this Bill, officials of non-governmental International Organisations such as major humanitarian bodies like the Red Cross are not included and do not enjoy special protection. Given the vulnerability of NGO personnel who travel extensively to handle disaster relief and humanitarian aid in situations of civil strife, I hope that Singapore and other countries would consider extending protection to such important actors. Admittedly, this is beyond the purview of the Convention in question.

7 Sir, the Convention in this implementing Bill seeks to allow States to cooperate and render mutual assistance in relation to preventing and suppressing relevant criminal activities as Section 10 provides for. The Convention also provides the jurisdictional basis for State Parties to assume jurisdiction over criminal offenders who commit acts outside the territory of the State Party. Before such a person is prosecuted or extradited, it is essential to establish lawful jurisdiction over these criminal offences, and lawful custody of the criminal offender. Under international law, a State's criminal jurisdiction generally rests on the nexus between the crime and the State seeking to enforce criminal law. Such a nexus exists when the crime took place within the State based on the principle of territorial jurisdiction. A State can also assume jurisdiction when the offender is its citizen under the nationality principle. In other words, Singapore would seek to assert jurisdiction over crimes in Singapore or by Singaporeans abroad. In some cases, the State may exercise jurisdiction over crimes where the victim is its citizen based on the passive personality principle. There are certain crimes of such a heinous nature like piracy or genocide which attract international concern, even from States without obvious connections to the place of the crime, the criminal or the victims.

8 Under the principle of universal jurisdiction, States may exert extra-territorial jurisdiction over such crimes to indicate their shared interest in preserving international public order. The Convention in question seeks to establish a system of quasi-universal jurisdiction as reflected in Sections 4 and 5 of the Bill which relates to acts committed outside Singapore by any person. Such crimes may bear no immediate nexus to Singapore and not involving Singaporeans. Thus, Sections 4 and 5 provide for a broad exercise of extra-territorial jurisdiction. For example, an Englishman commits a crime by cutting the car brakes of a French diplomat based in Malaysia, causing a fatal accident. That Englishman subsequently flees across the Causeway to Singapore. Under the proposed Act, that Englishman may be tried and punished in Singapore since this would be a Second Schedule Offence if committed in Singapore. The Englishman may be dealt with as if the offence had been committed in Singapore, even though the offence was committed on Malaysian soil against a French diplomat. This insertion of broad jurisdiction is justified on the basis of the interest which Singapore shares with the international community in protecting IPPs. After gaining legal custody of the alleged offender, if Singapore chooses not to try the offender, it is then duty bound to extradite the offender to another State to face criminal prosecution. Conversely, if Singapore should decide to prosecute the alleged offender where there is no link to Singapore based on territory or nationality, this raises some issues of practical concern. Where an offence is committed abroad, problems and difficulties of evidence gathering inevitably arise. This may hinder the conduct of a successful prosecution. Further, I note that the express consent of the Public Prosecutor is required under Section 12 before any prosecutions may be instituted. Does the government have in mind a policy which will provide guidance as to when a case would actually be prosecuted in Singapore?

9 Sir, I have three further points. First, Section 8 provides for a presumption of knowledge whereby a person committing a Section 4 or 5 offence is presumed to know that the person in question was an IPP, or that the relevant premises or vehicle would be used by an IPP. This is important as Section 4 or 5 offences require that the perpetrator must act in the knowledge that the victim is an IPP. Knowledge is part of the mens rea or mental element of the offences. While a Head of State or Government like a visiting President or Prime Minister may be well-known public figures, it is worth noting that the definition of Internationally Protected Persons is very broad and includes their accompanying family members. Is it fair to presume that an accused person would know that the accompanying family members fell within the category of Internationally Protected Persons if such persons are relatively unknown to the public?

10 Second, Section 9 imposes the duty upon every person in Singapore to disclose information which that person has, in which he knows, or believes, may be of material assistance to prevent the commission of the relevant offence or to facilitate the arrest of the relevant offender who is in Singapore. This duty to inform reflects the grave nature of offences against IPPs under this Bill. Section 9 (1) imposes this duty on every person in Singapore who has information which he knows or believes may be of material assistance. How would such knowledge or belief be proven? Is Section 9 based on a person having actual knowledge or belief of this information, or may the possession of such knowledge be inferred from the surrounding circumstances? If so, it may be prudent to amend Section 9 (1) to read: "Every person in Singapore who has information which he knows or, has reasonable grounds to believe, may be of material assistance..".

11 Section 9(1) requires that a person with information must disclose this immediately to a police officer or face a maximum term of 5 years in imprisonment or a $50,000 fine, which seems pretty steep. What is the basis of these punishments? What benchmark was used? Furthermore, what is the failure to disclose information immediately, as Section 9 (1) requires, entail? Two minutes, two seconds, two hours? In practical terms, in what manner should the information be disclosed? Should the person simply tell the first police officer he comes across regardless of rank, or launch a first information report? Could the Minister elaborate?

12 Lastly, in dealing with serious criminal offences, I note that the Bill does not include a fair treatment clause, such as that contained in Article 9 of the Convention. The treaty clause requires that any apprehended person being dealt with in connection with a relevant crime "should be guaranteed fair treatment at all stages of the proceedings". While the efficient and effective prosecution of terrorists and others of similar ilk who commit crimes against diplomats and other IPPs is an important objective, the rule of law demands the observance of due process to safeguard the rights of the alleged offender from the moment he is found and his presence secured until a final decision is taken on the case. Is there any particular reason why a fair treatment treaty clause was not included in this Bill? Surely, incorporating the relevant fair treatment treaty clause would underscore our existing commitment to fair play in the administration of criminal justice. With that Sir, I support the Bill.

REPLY BY SMS ZAINUL:

1 On the question of outraging modesty, the offence of outraging of modesty simpliciter (by itself) is not included in the First Schedule. What is included here is the offence of outraging of modesty under aggravated circumstances under section 354A of the Penal Code i.e., that is, voluntarily causing or attempting to cause death, or hurt, or wrongful restraint, or fear of instant death, instant hurt or instant wrongful restraint in the process of, or to facilitate the outrage of modesty. It may not be outrage of modesty directly, but acts which would lead to more serious crime. We feel this offence is sufficiently serious to warrant inclusion in the First Schedule.

2 On the question of whether would a diplomat on holiday in a third State who is kidnapped would be recognised. The diplomat on holiday in a third state will not be entitled to protection as he is not accredited to that third state. There is no specific mention of the Vienna Conventions in the Convention or in the Bill, but it is understood that the protections accorded to diplomats and consular officials will be in accordance with the Vienna Conventions on Diplomatic and Consular Relations respectively.

3 On the question on how do we define a person's household, the term is actually taken from the Convention. It is not defined within the Convention. It would be given its normal and ordinary meaning and would not extend to a visiting relative as such persons are not ordinarily part of the person's household.

4 On the question of whether there is discretion to prosecute or what policy would Singapore follow in relation to whether to prosecute a case in Singapore or not. I think we will have to decide on a case-by-case basis, depending on factors such as the location of the accused, the availability of the evidence in Singapore and other facts and circumstances surrounding the case. That was an interesting case you brought about the diplomat in Malaysia and Singapore, but I think we can look at it on a case-by-case basis.

5 On the question of what if the person committing the crime does not know the family member is related to an IPP, there is a presumption under Clause 8 of the Bill that the accused would have known of the status of the accompanying family member as an IPP, but this presumption can be rebutted, I think that's the difference between us and other countries where we allow for the presumption to be rebutted. Therefore, if the accused person shows that he did not know that the family member was an IPP, then the offence would not be made out. So I think we have not gone to the full extent and have provided this clause to provide for that need.

6 On the question of withholding information and benchmark of the punishment. In fact, the offences and punishments are the same as those found in Section 4 of the Terrorism (Suppression of Bombings) Act and Section 10 of the Terrorism (Suppression of Financing) Act. If I remember correctly, the earlier Conventions were based on British benchmarks too.

7 On the question on how immediately information should be disclosed, I think to our understanding, "immediately" means "without delay'. In such things, there is wisdom in not trying to be too specific. If a person has information which he knows or believes may be of material assistance in preventing the commission of a Convention offence, for example, he knows that a bomb has been planted in an embassy, he has to report this immediately to the police, not take his own time to do so. He can make the report to any police officer, in person or by a 999 call.

8 On your question on whether there is no fair treatment clause as found in Article 9 of the Convention. In fact, this is a clause found in most counter terrorism Conventions. In enacting legislation to implement these Conventions, we have not found a need to specifically provide for this clause since persons prosecuted under the Act would be entitled to the rights of due process guaranteed under the Constitution and our other laws. In consulting the legislation of other countries in the process of drafting this Bill, we have also noticed that many other countries take a similar approach. So, we are not alone on this. In fact, a lot of countries have taken similar steps and we want to have this Bill because it would allow us to work closer with our neighbours in ASEAN and other international partners in combating terrorism which I think is a growing menace and which we need to move quickly.

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