*All content shared are subjective to the diverse views of those who have been quoted, and should not be representative of Offbeat Perspective views towards the matter*
This post is a Part 2 follow-up post to Judicial review in Singapore (Part 1): Introduction, independence of judiciary system, 6 prominent cases.
“The ISA is an unjust law. Prisoners are not charged and tried in open court. There is no judicial review for ISA cases. Release of ISA prisoners depend on..the executive who may or may not rely on the reports of the ISD. The threat of indefinite imprisonment instils great fear in prisoners. Behind the four walls of the prison, they are quickly forgotten by the public.
In Singapore, we do not have human rights organisations or religious organisations who demand updates on the well-being of prisoners. Even the United Nations is not able to extract any information from the MHA. The Justices of Peace who allegedly visit prisoners at regular intervals are not answerable to the public. They merely play the role of do-gooders and do not check the excesses of the government.”
– Teo Soh lung – Releases and Arrests under the ISA (Function8, 28 May 2015)
1. More about preventive detention in Singapore’s current legislation
2. Examples of – exclusion of Judicial review / fair trial as observed in Singapore’s statues *MUST READ*
3. History of ISA and it’s judicial review
4. ISA and arbitrary power is mutually exclusive to one another? *Both sides of the coin*
5. Other relevant articles
[More about preventive detention in Singapore’s current legislation]
According to Chief Justice Chan Sek Keong speech in the article – A judicial view of preventive detention (CNA):
“Current legislation provides for three types of preventive detention, viz, the Internal Security Act (the ISA), the Criminal Law (Temporary Provisions) Act (the CLTP) and the Misuse of Drugs Act (the MDA), all of which have been constitutionalised. The ISA is concerned with national security, the CLTP with public order and the MDA with rehabilitation of drug addicts.
Preventive detention without trial is anathema to libertarian critics. Human rights proponents have routinely asserted that the ISA and the CLTP grant the Government: “virtually unlimited powers” to detain suspects without charge or judicial review using the Internal Security Act and the Criminal Law (Temporary Provisions) Act.
These laws have been used to incarcerate outspoken activists for prolonged periods without trial, as well as criminal suspects who should be charged under the penal code. In dealing with terrorism suspects, the Government should use the criminal code to prosecute in accordance with international due process standards.”
[Examples of – exclusion of Judicial review / fair trial as observed in Singapore’s statues]*Bolded in brown = exclusion of judicial review
149. —(1) If an Act recites that action has been taken or threatened by any substantial body of persons, whether inside or outside Singapore —
9. —(1) Where the Minister is satisfied that —
(a) any person is inciting, instigating or encouraging any religious group or religious institution or any person mentioned in subsection (1) of section 8 to commit any of the acts specified in that subsection;
(b) any person, other than persons mentioned in subsection (1) of section 8, has committed or is attempting to commit any of the acts specified in paragraph (a) of that subsection,he may make a restraining order against him..
(3) Any order made under this section shall be for such period, not exceeding 2 years, as may be specified therein.
..Decisions under Act not justiciable
Power to order detention
8.—(1) If the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore or any part thereof or to the maintenance of public order or essential services therein, it is necessary to do so, the Minister shall make an order —
(b) for all or any of the following purposes:
9. Whenever any person is detained under any order made under section 8(1)(a) he shall, in accordance with Article 151 of the Constitution, as soon as possible —
(2) For the purpose of enabling a person to make representations under subsection (1) he shall, within 14 days of the service on him of the order —
28. The Constitution is amended by inserting, immediately after Article 151, the following Article:
“Defence and security measures”
151A.—(1) Articles 22B(7), 22D(6), 148G(2) and (3) and 148H shall not apply to any defence and security measure.
[History of ISA and it’s judicial review]
Chng Suan Tze v Minister for Home Affairs, 1988 (SMU, 25 Jan 2014):
This was a landmark case because the courts held that they had the right to check if government authority has exercised its power correctly, including the government’s discretion to hold people without trial under the Internal Security Act. It resulted in a change to the ISA and the Constitution to limit the court’s power in reviewing this discretionary power of detention.
Parliament amended the ISA and the Constitution, stipulating, among other things, that judicial review of the ISA was limited to questions of procedural compliance. However, the principle from the court – of the judiciary’s power to review the exercise of governmental actions – remains current today.
According to Shared Responsibilities, Unshared Power: The Politics of Policy-Making in Singapore (Ho Khai Leong, Eastern Universities Press, 2003):
The important issue to note in this milestone case is that the Court of Appeal established the principle that government actions and discretions are subject to discipline by the judiciary.
In 1989, a constitutional amendment was passed to prohibit judicial review of the substantive grounds of detention under the ISA and anti-subversion laws. In effect, acts done or decisions made by the President of Singapore or Minister of Home Affairs pursuant to the ISA are not subject to judicial review.
This amendment greatly limits judicial power and reduces judicial independence..the power to check the Executive, as the Court initially understood it, was curtailed further by the amendment by the legislature. (Pg 307)
Additional read on saga: Wikipedia coverage
CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT) BILL
..in regards to restoring the law on judicial review, its review by our courts, of discretionary powers of the Executive under the Internal Security Act (ISA), to restore it to what it was before the recent Court of Appeal judgment on 8th December 1988. In effect, it is to restore and reaffirm that the subjective test should apply…to abolish appeals to the Privy Council in cases involving review of ISA cases, interpretation of the ISA or interpretation of provisions in the Constitution dealing with emergency powers or subversion, namely, the provisions in Part XII of the Constitution. (25 Jan 1989)
Some of the speakers who spoke on the above Amendment Bill included:
Mr Goh Chok Tong / Mr K. Shanmugam / Mr Ong Teng Cheong / Mr Lee Hsien Loong
Mr Davinder Singh / Mr Chiam See Tong[ISA and arbitrary power is mutually exclusive to one another?]
Quotes in disagreement with the purple question:
“Some of them, like Chia Thye Poh, Lim Hock Siew, and Said Zahari from Operation Coldstore were detained for 32 years (*23 years in prison, and 9 years in restricted detention), 19 years, and 17 years respectively. And many more were also imprisoned for decades or exiled. Can we even begin to imagine what that is like, to be banished from your own country, or to spend decades in prison without having been convicted of any crime?
Can we even begin to imagine what that is like, to be banished from your own country, or to spend decades in prison without having been convicted of any crime?
Many defenders of the ISA argue that there are safeguards such as the Advisory Board that is supposed to review detentions at least once every year. But note that this is called an “Advisory” Board. This Board can only make recommendations. It has no actual power to determine the fate of the detainees.
Second, how independent is the Advisory Board? Who appoints the 3 members of the Board? Is it the same people who rubber-stamped the arrests?
Third, what happens during these Advisory Board meetings? Ex-detainee Teo Soh Lungappeared three times before the Advisory Board during the 3 years of her detention. Go read her account in Beyond The Blue Gate: Recollections of a Political Prisoner and then decide for yourself whether it’s an adequate safeguard.”
“Detention without trial under the ISA is an affront to the Rule of Law and the basic right of citizens to a fair trial. The ISA prohibits judicial review. The ISA continues to be a real threat to political participation of members of civil society, human rights defenders and opposition political parties.”
Judicial review of preventive detention (Teo Soh Lung, 5 Mar 2012):
“..In December 1988, the court of appeal which comprised the Chief Justice and two other judges refused to adjudicate on the facts of my case. It ruled that the government did not comply with a technicality (which technicality was not even argued by my lawyers) and ordered my release together with my three friends. The appeal judges talked about the importance of judicial review and the rule of law but refused to make a ruling on the facts of my case. Needless to say, I was completely shattered shortly after because I was rearrested immediately after being tricked out of the prison gate.
The government then proceeded to amend the ISA and the Constitution..If the courts had wanted to protect their judicial power, it could have done so by agreeing with Lord Lester’s submission that parliament had no power to amend the Constitution in a manner which violates its basic structure by usurping judicial power which is vested solely in the judiciary. The courts for reasons that I will never know, failed to do so..”
The Judiciary and Us by Teo Soh Lung (Function8, 8 Dec 2014):
“On 8 Dec 1988, four ISA prisoners namely Kevin de Souza, Chng Suan Tze, Wong Souk Yee and I were jubilant for we had finally won our appeal. The Court of Appeal comprising Wee Chong Jin CJ, Chan Sek Keong and L P Thean JJ had ruled that we should be freed from detention. We thought we were going home, freed by our courts! That freedom however turned out to be short lived. Like the 1960s, when Dr Lim Hock Siew and his friends were released on a similar technical error by Wee Chong Jin CJ and promptly rearrested and thrown into deplorable filthy prison cells in Queenstown, we too were rearrested outside the gate of Whitley Prison.
The government’s justification for our rearrests was that the Court of Appeal did not rule on the merits of our case but merely on a technical irregularity found in the detention orders. That of course was true even though I felt much aggrieved because my lawyers did not raise any technical issues and I was prepared to fail in the appeal and proceed to the Privy Council, the highest court of appeal at that time.
Since 1988, I have not cease wondering why the Court of Appeal had, to put it bluntly, “done me in” with that Dec 8 judgement. It prevented me from proceeding to the Privy Council and compelled me to start my litigation all over again. It gave the opportunity to parliament to pass new laws and amend the Constitution, which abolished judicial review for ISA cases and appeals to the Privy Council.”
“..4 detainees (including me) took out habeas corpus proceedings against the government. The Court of Appeal in Chng Suan Tze and 2 Ors released us on a technical ground. Incidentally, my lawyers did not raise this technical ground but the judges thought they were doing me a favour by releasing me as well. The release was just for a few minutes for soon after we were driven out of the prison gate, ISD officers rearrested all of us.
Being a lawyer then and having great faith in the courts, I filed habeas proceedings once again. Parliament then proceeded to amend the ISA to abolish judicial review. I lost the case in the Court of Appeal. The judgement did not respond to the eloquent submissions on judicial review of Lord Alexander QC who acted for me in the appeal. I would have proceeded to the Privy Council had parliament not removed that avenue.
On the criticism that detainees could have sued the government for torture but did not, well, I did. Unfortunately, I had to abandon my claim for damages and paid cost in exchange for my release after the Court of Appeal dismissed my appeal. I could have chosen to stay in jail indefinitely though but I did not..”
Quotes in agreement with the purple statement:
According to Singapore Chronicles – Law (2015):
All powers have legal limits
..the US still detains accused terrorist in Guantanamo Bay without trial. The need for such laws, including the ISA, is perhaps more accepted now in the aftermath of 9/11.. the ISA requires the detainee to be served with the grounds of detention, which he can challenge. Also, a person may be detained only on grounds in relation to national security and where the President is subjectively satisfied that this is so. While the subjective belief of the President cannot be challenged, the factual grounds for that belief can be. The length of detention..must be discontinued once the detainee is no longer deemed a threat to national security. (Pg 89)
Panellists discuss LKY’s use of defamation lawsuits and ISA (TODAY, 17 Sept 2013):
Mr Chan..pointed out that the crux of criticisms of the ISA was that it allowed for arbitrary arrests and indefinite detention of the government’s political opponents and critics, and that the courts are powerless to intervene. Such criticism was “not justified” in his view, said Mr Chan, because the ISA allows detention without trial only on the grounds of national security and detainees are entitled to challenge allegations on fact..those who cite the ISA as intimidation for speaking up are likely doing so out of “self-induced fear”.
He added that the President cannot authorise an individual to be locked up “ipse dixit” — Latin for an unsupported statement that rests only on the authority of the person making it — and detentions expire as soon as the threat posed by the individual ceases.
Nevertheless, he noted that the Constitution was amended in 1988 such that the President’s satisfaction for an individual to be detained cannot be questioned and that judges had to follow the law.
Replacing ISA with a specific Terrorism Act
There have been suggestions to abolish the ISA and replace it with a specific Terrorism Act. A Terrorism Act would not allow pre-emptive action against those who have not yet committed overt deeds that warrant prosecution, but nevertheless belong to a wider terrorist network, unless the Act is very broad in scope and provides for preventive detention just like the ISA. For example, we now have a Terrorism (Suppression of Bombings) Act1 passed in Nov 2007. But, if it had existed in 2001, it could not have been used against most of the JI network.
Based on what was known at the point of arrest, only the cell involved in taking manifest action in pursuit of the Al-Qaeda bombing plot would be liable.
With the ISA, the Government was able to systematically uncover the network in Singapore even though not all of them were then actively engaged in terrorist operations.. A Terrorism Act drafted, say in 2002, would probably not have adequately anticipated new forms of the terror threat, like the self-radicalised lone-wolf which has emerged in recent years.
A case in point is the full-time NSman who was self-radicalised through the Internet. He had expressed intent to conduct jihad abroad and had already made on-line contact with a suspected Al-Qaeda recruiter and radical ideologue Anwar al-Awlaki. But that would not have been sufficient grounds to charge him in court, as under normal criminal legislation, he had not yet committed an offence.
..The ISA enabled the government to detain him preventively, while he was doing his NS, just before he embarked on demolition training in his course. We now have time to assess, counsel and rehabilitate him. This avoided exposing Singapore to a high, perhaps unacceptable degree of risk. The consequence may not just be loss of innocent lives, but also serious damage to inter-communal relations and trust.
There have been calls also to try the terrorism cases in court. Such trials would expose information which terrorists could use to pursue their agenda. Sometimes information that uncovers security threats comes from painstaking and dangerous efforts by our security personnel..highly secretive information may come from foreign security agencies, on the understanding that we will not disclose the sources and details.
The disclosure of such information, which reveals current sources and methods of intelligence gathering would compromise ongoing or future counter-terrorism operations. On the other hand, if the information is not disclosed in court, the case could be weakened because of evidentiary requirements in a court of law, the terrorist could be acquitted, and could walk free to pursue more terrorist activities.
..Where national security threats deal with issues of race, language or religion, the very airing of these incendiary issues in a public trial can further exacerbate an already volatile situation as in the Maria Hertogh communal riots in Singapore.
National Security: The Responsibility of the Elected Government
Let me now address the related issue of judicial review. The process of making a threat assessment is to anticipate, pre-empt and prevent security incidents in a timely and effective manner and this is different from our judicial processes. A judge in court is not equipped to investigate or decide whether there are suspicious circumstances warranting some restraint.
Mischief-makers engaged in conspiracies or other covert operations, do so in a clandestine, furtive manner, making it impossible or extremely difficult to get the kind of evidence that would enable a conviction in court on a specific charge.
This was the main reason why preventive detention was needed in the first place. The ISA allows an overall assessment of the threat to be made, based on the best possible information available, as distinct from proof or evidence in a court for a specific criminal charge.
..In Singapore, this responsibility and accountability to act to protect national security is placed in the hands of the government. This is in accord with long standing principles since Independence and going even further back to 1948, where the Executive alone has been responsible for decisions on national security, including arrests and detention. This matter has been debated in this House on a number of occasions and been re-affirmed.
..However, while the government makes the final assessment, it cannot act arbitrarily. It can only act within the powers provided to it by the ISA, and has to follow the procedures and abide by the safeguards specified – in particular an Advisory Board chaired by a Supreme Court Judge, and since 1991, the Elected President’s veto powers. Otherwise, the Government can be challenged in court. It is the Government’s view that this framework is unique and strikes an adequate balance in the present circumstances.
..Every country has to grapple with the issue of what legal powers its government needs to protect the security of its people, and how to balance the effectiveness of the powers against the need for safeguards and due process of law..The Americans too face this dilemma. The US government decided to build a detention facility at Guantanamo Bay in Cuba to house foreign terrorists outside their legal system.
..The difficult decisions that a Government has to make to protect its people must be made based on an individual country’s context and circumstances at the time. In Singapore, we have a law called the ISA, which empowers the government to act, but it comes with a system of safeguards, and provides the detainee certain rights which must be accorded to him.
Over the years, the Government has used the ISA in good faith, and in a measured way in the prevailing security situations it has had to face, keeping Singapore safe and our people secure.. The precise form the law takes may evolve with time and circumstances. But for the present, the ISA is a shield that we need that protects us against these threats, allowing us to deal with them swiftly and effectively before they cause us serious and possibly permanent harm.
Weighing on both sides of the issue
“The Government has consistently taken the stand that the ISA is a useful tool, though one to be used sparingly, that enables quick action to be taken against people who pose a risk to national security…On the other hand, there is no denying that since the ISA allows people to be detained indefinitely without trial, this is a serious violation of their fundamental liberties. As the courts can only exercise very limited judicial review over detention-related decisions, a potential for abuse of the law exists.
This has led to calls for the Act to be repealed in its entirety. It is argued that terrorism can be combatted using existing criminal offences, such as those established by the Penal Code (Chapter 224, 2008 Revised Edition) and the Terrorism (Suppression of Bombings) Act (Chapter 324A, 2008 Revised Edition). However, even though there is some evidence against a person indicating involvement in a terrorist activity, it may be insufficient to allow him or her to be put on trial.
Witnesses may also feel intimidated and refuse to testify against the accused. It is also said that criminal proceedings may have undesirable effects, such as stigmatizing a particular community or becoming a platform for the accused’s ideological views. Conversely, it might be said that procedures can be put in place during trials to protect the identities and safety of witnesses. Moreover, an open trial can rally communities against the extremist ideas and behaviour manifested by accused persons.
Another possibility is for the ISA to be modified to reverse the 1989 legislative changes. The objective test established by Chng Suan Tze can be brought back to enable the court to examine whether there is sufficient evidence for the President and Minister for Home Affairs to be satisfied that a detainee is a security risk.
The Government has argued, though, that the court does not have the necessary expertise to decide such matters. Alternatively, more limited additional safeguards can be introduced into the ISA regime, such as reducing the maximum period of each detention order; and allowing advisory board hearings to be held publicly, with discretion for a closed-door hearing if sensitive information may be disclosed.
It is clear that no decision about whether the ISA should be maintained, abolished or revised will be easy to make. Ultimately, it will need much discussion and thought, and the needs of national security on the one hand, and the public interest in a legal system that is transparent, fair and respectful of people’s rights on the other, will have to be carefully balanced.”
“Proponents for the abolition of the ISA argue that preventive detention can still be preserved under other legislation, such as an anti-terrorism act. My own sense is that if one accepts the principle of preventive detention, then whether we keep the ISA or replace it by a similar act, makes not much difference.
My primary concern is that preventive detention must not be unconstrained and must have checks and balances which serve the legitimate purposes of security agencies whilst making abuse more difficult, if not entirely impossible.
For example, the right to detain a person for an initial one year period – possibly reduced from the current two years — should remain unconditional and unconstrained.
However, subsequent detention periods could require a higher degree of external review than currently provided for – say, two high court justices rather than the current single judge and two persons appointed by the President. Failure to achieve unanimous approval for further detention would trigger a process of further review by for example, a non-partisan panel comprising members of the legislature. There could also be a cap on the maximum number of consecutive detention periods unless specifically approved by a similar legislative panel.
Such measures cannot fully prevent abuse by an all-powerful government, but in a parliamentary system with at least some opposition representation, truly national-security threats as opposed to opponents or critics of a ruling party, can be differentiated and abuses brought to public attention.”
– The next 50 years of Singapore’s security and how NS, ISA and caning need to change (ST, 6 Feb 2016) – Ho Kwon Ping
A future Part 3 of this post will touch on ISA and the Advisory Board…
Other relevant articles:
HIGH COURT RESERVES JUDGMENT IN HEARING ON DETAINEE VINCENT CHENG (UCA News, 3 Oct 1989)
Law allowing detention without trial extended (TODAY, 12 Nov 2013)
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