YOUR VIEW: Give authorities room to make decisions in repatriations

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Asking "What does it meant to be granted a discharge amounting to an acquittal by the courts?", Yahoo contributor Andrew Loh in his commentary "Why deport the acquitted in Little India riot?" objects to the deportation of an "innocent" Indian worker who was "acquitted" after the prosecution opted to discontinue the case against him.

In his Parliamentary speech in 2008 (which Loh had cited from) Law Minister K Shanmugam in fact explained what an acquittal means. Referring to a lecture by former Attorney-General (later Chief Justice) Chan Sek Keong, Min. Shanmugam noted that:

"... [AG Chan] pointed out that a person acquitted of a charge is legally innocent but may not be factually innocent [and that] the presumption of innocence is a presumption that an accused is legally innocent."

Min. Shanmugam then quoted the court in DPP v Shannon (a case from the highest court in England) as saying:

"... The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence."

In short, the acquittal of foreign workers essentially establishes nothing about whether the men were factually involved in the riot or not. Thus, the acquittals really should have no implications on whether deportation action ought to be taken.

The real question for deportation cases is what process should apply.

Some have argued that only a court process is "due" process but castigating all repatriations, taken after Ministers or officials have considered the facts, as inherently faulty or lacking "due" process is wrong. In fact, such actions are routine. In the past three years, there were some 13,000 repatriation cases annually. In this context, taking action upon due consideration by officials can be "due" process.

What is the best process?

In any case, the crux of the issue is not merely about "due" process (though that is important) but what process Singapore should adopt, all things considered, and whether the elected Government of the day should decide, or whether our courts should decide or oversee the process.

But first, what of existing law?

Loh referred to certain statements by lawyer M Ravi, purporting to rebut the Government’s statement that “a foreign national… has no right under our laws to challenge the repatriation order in court”. M Ravi argued that Section 39A of the Immigration Act allows the courts to review certain decisions by the Minster or Controller of Immigration.

In fact, Section 39A is entitled "Exclusion of judicial review" and prohibits judicial review of any actions or decisions of the Minister or Controller under the Immigration Act, excepting only questions relating to compliance with procedural requirement under the Act or regulations.

In short, substantive discretion on immigration matters clearly lies solely with the Government and any judicial review is thus very limited in scope.

Returning to the question of what repatriation process ought to apply, I believe that the Government should decide, for several reasons:

•    Most Singaporeans do not support deporting foreigners arbitrarily (i.e for no rational reason) but would also agree that foreigners have no rights to remain in Singapore – indeed, our courts have actually acknowledged in a 1988 case that rules of natural justice therefore do not even apply to foreigners in the context of immigration laws.

•    Repatriation should not be a criminal justice matter – criminal conviction requires proof of guilt beyond reasonable doubt but such a high minimum standard of proof would be too stringent for repatriation.

•    In the context of the riots, a vital public security consideration is at stake. Safety and security do not always trump considerations of justice or fairness but their importance must not be forgotten either.

This does not mean foreign workers facing repatriation by employers or the State should enjoy no safeguards. There should be safeguards, but these must not (a) make the repatriation process burdensome and protracted, as has happened elsewhere in the name of human rights; or (b) ignore other relevant national interests.

What then should be the approach, which strikes a fair balance among the competing values?

Foreign workers clearly have no right of permanent stay in Singapore. In my view, they should thus be prepared to leave upon the expiry of their passes or when their contracts are terminated -- although safeguards for foreign workers to change employers are appropriate in some situations, e.g. in cases of whistleblowing (to be assessed by MOM), or where the worker is awaiting compensation after injury and cannot perform his old job, or in cases of employer bankruptcy.

As for deportation by the State, as noted above, repatriations e.g. of illegal immigrants or vice workers happen on a routine basis, day-in-day-out. The State has wide powers, but has exercised them judiciously. There is hence no warrant or sense to change the existing procedure wholesale.

Mistakes possible, and how we should deal with this

So why should the alleged rioters be subject to a fundamentally different process altogether?

To me, there is no sufficient reason. I do acknowledge that amid the chaos of a riot, mistakes are a possibility. We should be open-minded enough to recognise that. However, the solution is not to make criminal conviction a pre-condition to repatriation, because proof beyond reasonable doubt is too stringent. Also, as many diverse policy considerations arise in deciding whether any foreigner should be permitted to stay in Singapore, the existing approach in the law whereby judges effectively cannot second-guess the calls of Ministers or officials remains the right general approach in my view.

Thus, the safeguard in repatriation cases should lie within the administrative process itself, i.e. with the authorities being lmindful, in exercising their powers, of the possibility for error. For example, assuming flight risk can be addressed, giving a foreign worker proposed to be deported time (e.g. a few days to a week) to make some formal representations if he wishes would have been no bad thing. Conversely, where the authorities assess that the evidence is clear, immediate repatriation should still be permitted. This is essentially no different from a vice worker arrested red-handed.

Ultimately, in my view the best way to protect our interests, all things considered, remains for Singaporeans to give the Government, whom we have elected, and the professional officers on the Home Team, room to make the necessary judgments on our behalf.

Yeoh Lian Chuan, 45
Lawyer