A proposed Singapore law can keep serious offenders in prison indefinitely, but will it infringe on rights?

The bill, which is slated to be debated in parliament on Monday , will then allow for reviews by boards and for the home affairs minister to make the final decision on an offender’s release. While such processes are not new to the body of law in Singapore, activists have expressed concerns.

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Activist Rocky Howe, an anti-death penalty activist, said the yearly reviews for offenders under the proposed legislation were a “severe deprivation of liberty and curtailment of rights”.

“The operation of the review process and the decision around when to release a person is opaque and lacks public scrutiny. This undermines due process, and increases the risk of abuse,” Howe said, comparing it to the Internal Security Act.

Singapore’s Internal Security Act (ISA) gives the home affairs minister the power to detain individuals without trial for two-year terms that can be renewed at discretion. Each order must be reviewed by an advisory board headed by a Supreme Court judge and two citizens, appointed jointly by the president and chief justice.

In recent years, the colonial-era law has been used against suspected militants. It is also one of Singapore’s most controversial laws, with critics arguing its expansive powers may be invoked without oversight.

The government has defended the ISA, saying that it is a last-resort measure and necessary to preserve public order and safety.

Under the SEPP, only those who commit serious violent offences such as culpable homicide and attempted murder, or serious sexual offences such as rape and sexual penetration of a minor, can be sentenced.

If the courts decide that a serious offender is a suitable SEPP case, the individual will then have to serve a minimum period before being assessed by a range of experts, including psychiatrists, psychologists and a detention review board.

The case is then reviewed by the minister of home affairs, who will be able to decide whether the offender can be released or detained, and have the case reviewed yearly.

Singapore home affairs minister K Shanmugam stressed the law would only apply to a few dangerous offenders who had committed very serious crimes, to prevent them from inflicting further harm on society, government-owned newspaper The Straits Times reported.

He also sought to address concerns that the law could blur the line distinguishing the government and courts.

“When a person is first convicted, the court can choose to impose either a normal sentence or SEPP sentence. So it’s complete discretion with the court,” he was quoted in local media.

A joint press release by the Ministry of Home Affairs and Ministry of Law said the bill seeks to “better protect the public from dangerous offenders”, and cited examples of serial sex offenders that preyed on children and recalcitrant offenders who committed crimes again after being released from prison.

In one example, an offender was sentenced to 45 years’ imprisonment for sexually abusing eight children with learning or physical disabilities after offering to tutor them in 2022.

“Our current sentencing options are inadequate to deal with such egregious offending. For offences that do not attract life imprisonment, the available sentencing options all presently require an offender to be released automatically after a certain point, regardless of the threat they pose to others,” the statement said.

There are currently 200 to 300 cases of serious violent and sexual offences each year, according to the two ministries.

“There are obvious concerns regarding how the government will determine whether an offender no longer poses a threat to the public,” said Mark Yeo, director of legal firm Fortress Law.

“Any such law should provide avenues to raise the matter to the courts – apart from judicial review – as a check and balance on the exercise of executive power, and to involve an independent panel in determining whether an offender ought to be released.”

Meanwhile, Howe said that awarding the minister the power to decide whether an offender was considered ready to reintegrate into society infringed on “the concept of open justice”.

“Incarceration as a form of criminal punishment is already a severe deprivation of liberty and the curtailment of the rights of a person,” he said. “That the power to extend detention lies with the minister instead of the courts also flies in the face of the concept of open justice.”

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Gino Hardial Singh, managing director of Abbots Chambers LLC, suggested that greater clarity was needed on how decisions were made.

“I understand that his decision will be made after the minister has been advised by an expert panel including psychiatrists and psychologists, but the final decision lies with the minister,” he said. “Perhaps it would be better if the final decision be made by the experts instead of the minister.”

Singh also suggested including the offender’s lawyer in the deliberation process.

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Others cited concerns about how assessments of offenders would be conducted.

Siraj Shaik Aziz, director of Silvester Legal LLC, said: “Another concern is how does one actually assess rehabilitative potential of an offender to rejoin society when he is essentially assessed in an institutionalised environment.

“Would his behaviour in such a setting be a helpful indicator of how he will behave once he is released? Offenders have every incentive to behave while they are detained in the hopes of an early release.”

The new sentencing regime bears some similarities to Britain’s Imprisonment for Public Protection (IPP) programme, which was abolished in 2012, Shanmugam noted in parliament in 2022.

“The United Kingdom tried this approach, I have to say, with very mixed results, but I think we can make it work,” he argued then.

In 2020, a former justice of the UK Supreme Court described the IPP as the “greatest stain on our criminal justice system”.

Stefanie Yuen Thio, joint managing partner at TSMP Law Corporation, said the IPP sentences had a wider scope of application than the SEPP, with more than 90 offences to which it could be applied.

“The detention was potentially indefinite. The IPP was imposed for cases involving less serious offences with relatively short minimum terms. The UK prisons were also over-stretched with insufficient resources to undertake assessments,” she said, noting that Singapore’s SEPP was narrower and covered just 16 violent and sexual offences.

She also noted that the powers of the minister to decide when an offender should be released “are not novel”.

“For example, for life imprisonment, it is the minister who decides whether and when the offender should be released on remission,” she said. “Other countries also have similar regimes where it is a non-judicial body – for example a parole board – which decides on the release of offenders.”