SINGAPORE: When the High Court overturned deterrent sentences for four young scam mules in September, opting instead for probation and community sentences, Senior Minister K Shanmugam said to parliament of the decision: “This is not the time to go soft.”
On Oct 6, Mr Shanmugam, who is also Coordinating Minister for National Security, noted that the verdict by a three-judge panel ran contrary to sentencing guidelines by the government calling for sterner penalties such as jail or reformative training.
The cases in question refer to the appeals made to the High Court by Mohamed Erzan Taib Zohri and six separate other scam-related offenders, six of whom were under the age of 21.
The three-judge coram, comprising Chief Justice Sundaresh Menon and Justice Ang Cheng Hock and Justice Hoo Sheau Peng, allowed the appeals for four cases and meted out probation and community-based sentences to them, and dismissed the remaining three.
To this end, Senior Minister Shanmugam, who is also Minister for Home Affairs, said his ministry will be tabling new legislation in parliament to give effect to its policy position on deterrent sentences for scam-related offenders, including youths.
The legislation will be "quite express" and make clear that the court's position in the September case is not to be followed, said Mr Shanmugam.
CNA looks at past instances where lawmakers stepped in after court decisions, and asks legal experts how the balance of power works in practice.
Why did the court depart from sentencing guidelines in this case?
The three-judge High Court coram in September heard the appeals of seven individuals convicted of giving scam syndicates access to their bank accounts or Singpass credentials.
In its judgment of Mohamed Erzan Taib Zohri v Public Prosecutor, the court states that "sentencing guidelines suggested by the SAP (sentencing advisory panel) are not binding on the court but are intended to offer some assistance in the sentencing process".
Among other things, the judgment also stated that it was "too blunt" to assume custodial sentence and reformative training as default for young offenders in such cases.
The parliament should also make clear if its intention was to take away particular sentencing options for an offence, the court noted.
Speaking in parliament earlier this month in response to a parliamentary question, Mr Shanmugam said that the government had made a deliberate policy judgment that deterrence and prevention must carry far greater weight when sentencing offenders.
Mr Shanmugam added that the court did not have before it "policy perspectives" nor "data on the scale of the problem of scams and scammers".
"We wanted this message to go out that every offender, young or old, will be very seriously dealt with. If a number of cases are dealt with in this way, seriously, many other would-be offenders would take reference,” said Mr Shanmugam.
The senior minister added: "The High Court said the legislation must be clear. We had proceeded on the basis that the legislation was clear. The guidelines were also clear. They are clear.
"However, the court has expressed a different view on the legislation. We respect the court's views."
What are the roles of the courts and parliament?
Experts pointed out that the ability of the government to announce plans for legislative amendments following a judicial ruling stems directly from the constitutional separation of powers.
"Parliament’s primary role is to debate and pass legislation, while the court’s role is to independently interpret and apply the law to resolve legal disputes," said Mr Faraaz Amzar, director at law firm Eugene Thuraisingam Asia LLC.
In drafting laws, the parliament specifies the range of possible punishments for certain offences, said the experts.
Among other ways, parliament can do so through sentencing advisory panel guidelines, which serve to provide greater clarity about possible sentencing outcomes and the relevant sentencing factors.
The guidelines are not legally binding on any court.
Referring to the sentencing guidelines in the Erzan case, Assistant Professor Benjamin Joshua Ong from the Singapore Management University (SMU) said the guidelines "provide for flexibility” by setting out that fines, probation and community sentences are "generally" not appropriate.
"The courts’ duty when a person is found guilty of the offence is to choose an appropriate sentence from within the range based on the specific facts of the individual case before it," said Asst Prof Ong.
"Parliament has the last word on what the text of legislation is. The courts have the last word on what that text means.
"This means that the courts have the power to authoritatively interpret legislation passed by parliament."
Why can court decisions differ from parliament's intention?
Discrepancies between judicial rulings and parliamentary intent can arise from several key factors, said law experts.
For one, SMU law don Eugene Tan said that it boils down to the issue of drafting of the law and the interpretation of it by the courts.
"Words and phrases in a legislation can be interpreted differently despite the best of legislative drafting," said the associate professor.
"Moreover, a legislation may not have succeeded in putting across parliament’s intention with adequate clarity."
Ms Stephanie Chew, partner at TSMP Law Corporation, said that when lawmakers craft legislation, they cannot anticipate every scenario that comes before the courts.
“So it’s parliament that makes the laws, but it's the courts' job to interpret those statutes, and apply them to real cases based on the facts,” she said.
As such, courts take into account both the purpose and wording of the law, she said.
Agreeing, SMU’s Asst Prof Ong said that in applying the law, the courts would firstly look at the text of the legislation.
"This is not an exercise in attempting to look into what intention parliament or individual MPs or ministers had at the back of their mind," he said.
"The courts will generally not look to other sources, such as the precise words of parliamentary debates, unless the words are ambiguous."
Dr Ben Chester Cheong from the Singapore University of Social Sciences (SUSS) said that even when a court identifies the purpose of a legislation, it is not allowed to "rewrite a provision to achieve a preferred policy outcome".
In the particular case of Erzan, he notes that the court had explained that parliament must make its intention clear if it wishes to remove particular sentencing options for a certain offence.
Asst Prof Ong said that there is a difference between interpretation and application of the law, and the scam-related appeal cases allowed by the High Court last month relates to the latter.
Interpretation is a question of what the words of the law mean, he said, and in this case the words are "not ambiguous".
"The meaning of the words is clear: the courts have a range of sentencing options, from probation to imprisonment to caning," said Asst Prof Ong.
"Mr Shanmugam’s view relates to the application of the law: in other words, when each option should be used."
When does parliament change the law after a court decision?
Whenever judicial decisions highlight an ambiguity in existing statutes, legislators will typically move to address and resolve the perceived gap in the law.
Asst Prof Ong of SMU said: "If parliament disagrees with what the courts say the legislative text means, parliament is free to amend the text, this time making its preferred interpretation clearer."
This has happened several times in the past, with parliament updating legislation after the court identified an ambiguity or a gap in policy.
This was the case for the 2023 repeal of Section 377A which had criminalised sex between men.
Following the Court of Appeal decision in 2022 that dismissed challenges to the law, then-Prime Minister Lee Hsien Loong said that the Minister for Law and the Attorney-General have advised of "a significant risk" of the law being struck down in a future court challenge.
Parliament subsequently repealed the law.
In this case, parliament was seen to be “resolving a wider policy issue against the background of litigation", said Dr Cheong from SUSS.
In 2013, match-fixing syndicate leader Tan Seet Eng, also known as Dan Tan, was handed a detention order under the Criminal Law (Temporary Provisions) Act (CLTPA).
Following an appeal, the apex court in 2015 ruled Tan's detention as "unlawful" as the grounds for locking him up did not sufficiently show how his activities threatened public safety and order in Singapore.
A week later, Tan was detained again under a new order that “expressly sets out the grounds which show the extent of Tan’s match-fixing activities from and within Singapore”, and why the detention order is necessary, said MHA at the time.
In 2018, parliament approved amendments to the CLTPA, explicitly setting out the list of criminal activities for which a person can be detained under the law.
Dr Cheong describes this as a "legislative codification and clarification following a judgment".
What happens when parliament or the government disagrees with the court's interpretation?
Should parliament disagree with how the law has been applied, the House can also move to amend the text such that the court will not interpret the case in the same way again.
Experts cited the Public Prosecutor v Lam Leng Hung case of 2018, in relation to the misuse of church building funds by the City Harvest Church leaders, as an example.
In this case, the Court of Appeal had upheld the reduced sentences of six former City Harvest Church leaders found guilty of criminal breach of trust.
"The Court of Appeal held that the 'agent' limb of the then Section 409 (of the Penal Code) concerned professional agents, rather than directors merely acting as agents of their organisations," said Dr Cheong.
This means that the “agent” limb did not apply to the six church leaders.
Under the law then, an agent convicted of the crime may face up to life imprisonment, while a normal conviction of criminal breach of trust comes with a maximum jail term of only seven years.
"It expressly recognised a gap concerning enhanced punishment, while concluding that reform should be left to parliament," Dr Cheong noted of the court's decision then.
Asst Prof Ong from SMU also added how the courts back then "described Section 409 as 'increasingly inadequate' and that a 'review is not only essential but it is also long overdue', and that parliament should undertake this review and further reform".
Following the appeal outcome, Mr Shanmugam, who was then Law and Home Affairs Minister, stated in parliament the government's disagreement with the court's decision.
“There can really be no question about this… The government believes that the sentences are too low,” he said then.
Section 409 was later broadened through the Criminal Law Reform Act 2019 to expressly cover directors, officers, partners, key executives and fiduciaries, he added.
Another noteworthy case is the detention of Chng Suan Tze and three others in 1987 under the Internal Security Act.
In 1988, the Court of Appeal released the detainees on appeal, based on the "technical" ground that the affidavit should have been signed by a minister or a cabinet secretary and not by a permanent secretary.
The court determined that the minister’s power to make a detention order depends on whether the President is satisfied that the order is necessary to stop actions prejudicial to national security.
The court said the affidavit by the permanent secretary constituted hearsay evidence of the President’s satisfaction, and was therefore insufficient.
Following this, the government re-detained Chng and the three others on the same day under fresh detention orders, noting that the court did not question the merits of the decision to detain them.
The following year, parliament approved changes to the Constitution and the ISA which, among other things, stated that the court can only review whether procedures under the ISA have been followed.
Assoc Prof Tan from SMU said: "(This) is one clear example of the political branches disagreeing with the judiciary and finding it necessary to legislatively overrule the apex court’s interpretation of certain provisions in the Internal Security Act 1960 (ISA)".
What can parliament do – and not do – when changing the law?
In summary, parliament may draft new legislation or amend existing statutes to eliminate ambiguity and align the law with intended public policy, provided all changes remain within constitutional boundaries.
Assoc Prof Tan said: "Legislative overruling is within the constitutional power of parliament, and this is done by enacting a new law or by amending the existing law to nullify, modify, or reverse the legal effect of the judicial decision in question."
However, he added that the parliament "cannot overturn a court's specific ruling regarding the parties in a specific case", adding that the legislative overruling usually has a prospective effect in criminal cases.
In other words, while parliament has the power to change the law for future cases, it cannot overturn a specific ruling for a concluded case. Offenders can only be sentenced according to the law that was in force when the crime was committed.
This is also prescribed in the Constitution, said SUSS’ Dr Cheong.
"In criminal matters, (the Constitution) protects against retrospective criminalisation and punishment greater than that prescribed when the offence was committed," he notes.
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Source: CNA/tq(nj)