Judicial review in Singapore (Part 3): ISA and Advisory Board. Marxist Conspiracy. JI detainees.

*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 Part 3 post is a continuation from Judicial review in Singapore (Part 1): Introduction, independence of judiciary system, 6 prominent cases. & Judicial review in Singapore (Part 2): judicial review exclusions, and ISA’s arbitrary powers?.

1

Content Page

  1. Relevant statues on Advisory Board
  2. 3 quotes questioning the legitimacy of the advisory board 
  3. 3 quotes on the legitimate processes of the advisory board

1[Relevant statues on Advisory Board] 1

While the Emergency (Internal Security and Detention Orders) Regulations 1964 (L.N. 335/64) are in force, the below 3 sections does not apply in the case of any person in respect of whom a direction has been given under section 8(2) of this Act extending the period of an order made under section 8(1) in respect of that person.
 

1) Duty to inform person detained of grounds of detention, etc.

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 —

(a) be informed of the grounds of his detention;

(b) subject to clause (3) of that Article (which provides that no authority may be required to disclose facts whose disclosure would in its opinion be against the national interest) be informed of the allegations of fact on which the order is based; and

*(c) be given the opportunity of making representations against the order as soon as possible.

*11. —(1)  A copy of every order made by the Minister under section 8(1)(a) shall as soon as possible after the making thereof be served on the person to whom it relates, and every such person shall be entitled to make representations against the order to an advisory board.

(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 —

(a) be informed of his right to make representations to an advisory board under subsection (1); and 
(b) be furnished by the Minister with a statement in writing —
(i) of the grounds on which the order is made;
(ii) of the allegations of fact on which the order is based; and
(iii) of such other particulars, if any, as he may in the opinion of the Minister reasonably require in order to make his representations against the order to the advisory board.
(3)  The President may make rules as to the manner in which representations may be made under this section and for regulating the procedure of advisory boards.
 

3) Report of advisory board

*12. —(1)  Whenever any person has made any representations under section 11(1) to an advisory board, the advisory board shall, within 3 months of the date on which such person was detained, consider such representations and make recommendations thereon to the President.
(2)  Upon considering the recommendations of the advisory board under this section the President may give the Minister such directions, if any, as he thinks fit regarding the order made by the Minister; and every decision of the President thereon shall, subject to section 13, be final and shall not be called in question in any court.
 
Review

13.—(1)  Every order or direction made or given by the Minister under section 8 or 10 (including any order extended by direction of the President under section 8(2)) shall, so long as it remains in force, be reviewed by an advisory board at intervals of not more than 12 months, and the first of such reviews shall take place —

(a) in the case of a person who is detained in a place of detention, not more than 12 months from the date on which his representations against the order were considered by an advisory board under section 12(1) or, where no such representations have been made, not more than 15 months from the date on which that person was detained in pursuance of the order;
(b) in the case of a person who is not detained in a place of detention, where the order has been made under section 8(1), not more than 12 months from the date on which the order was served upon that person;
(c) in the case of a person who has been released from a place of detention in pursuance of a direction under section 10, not more than 12 months from the date of his release.
(2)  The advisory board shall on completing every review under subsection (1) forthwith submit to the Minister a written report of every such review, and may make therein such recommendations as it thinks fit.
 
Presidential concurrence

13A. Where any advisory board recommends the release of any person under section 12 or 13, the person shall not be detained or further detained without the President’s concurrence under Article 151(4) of the Constitution.

[Act 11/91 wef 30/11/1991]
 
Power to summon witnesses
14..
 
Member of advisory board deemed to be a public servant
15..
 
Disclosure of information
16.  Nothing in this Chapter or in any rules made thereunder shall require the Minister or any member of an advisory board or any public servant to disclose facts or to produce documents whose disclosure or production he considers to be against the national interest.
1
 

Restrictions on preventive detention

151.—(1)  Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention —

(a) the authority on whose order any person is detained under that law or ordinance shall as soon as may be, inform him of the grounds for his detention and, subject to clause (3), the allegations of fact on which the order is based, and shall give him the opportunity of making representations against the order as soon as may be; and
 
(b) no citizen of Singapore shall be detained under that law or ordinance for a period exceeding 3 months unless an advisory board constituted as mentioned in clause (2) has considered any representations made by him under paragraph (a) and made recommendations thereon to the President.
 
(2)  An advisory board constituted for the purposes of this Article shall consist of a chairman, who shall be appointed by the President and who shall be or have been, or be qualified to be, a Judge of the Supreme Court, and 2 other members, who shall be appointed by the President after consultation with the Chief Justice.
 
(3)  This Article does not require any authority to disclose facts the disclosure of which would, in its opinion, be against the national interest.
 
(4)  Where an advisory board constituted for the purposes of this Article recommends the release of any person under any law or ordinance made or promulgated in pursuance of this Part, the person shall not be detained or further detained without the concurrence of the President if the recommendations of the advisory board are not accepted by the authority on whose advice or order the person is detained.
 

*In other words, if the Advisory Board does not recommend a release, the President has no role in requesting for the release of a detainee. It is only when the Cabinet disagrees with the Advisory Board recommendations, the President is then granted his discretionary veto power on whether to block, or go through with the detainee’s release. 

1

INTERNAL SECURITY ACT (CHAPTER 143, SECTION 11(3))
Proceedings to be in camera
5.  All proceedings before an advisory board shall be dealt with in camera.
Notice that advisory board will sit to review order
6.—(1)  Before the review under section 13 of the Act of any order of detention under which any person is detained in a place of detention, the chairman of the advisory board which is to hold the review shall cause notice to be given to the person so detained of the time and place where the advisory board will sit for the purpose of reviewing the order of detention and the person so detained may appear before the advisory board either in person or by an agent authorised by him in writing and shall, whether he appears in person or not, be entitled to be represented by an advocate and solicitor.

(2)  The advisory board may by notice in writing addressed to an officer-in-charge of any place of detention require the production before it of any person detained therein under an order of detention and the aforesaid officer shall cause such person to be produced in accordance with the notice.

(3)  Any person taken outside a place of detention in pursuance of paragraph (2) shall, while outside such place of detention, be deemed to be in lawful custody for the purposes of the Penal Code (Cap. 224). 
Procedure at meeting of advisory board
7.  All questions before an advisory board shall be determined by a majority of votes of the chairman and of any member present and voting. In case of an equality of votes the chairman shall have a casting vote.

1[3 quotes questioning the legitimacy of the advisory board]1

Interview with Jason Soo, Director of 1987: Untracing The Conspiracy on the Marxist Conspiracy, and ISA (5 July 2016):

Some of them, like Chia Thye PohLim 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.

1.jpg

 *Click HERE to read the Interview with Jason Soo, Director of 1987: Untracing The Conspiracy on the Marxist Conspiracy, and ISA*1

Judicial review should replace advisory board – Letter to ST by Peter Cuthbert Low (ST, 23 Sept 2011):

Peter Cuthbert Low: ..The Government claims that the advisory board is a safeguard to prevent misuse of the ISA. Having appeared in the late 1980s before an advisory board, chaired by a now retired Supreme Court judge, as a lawyer for ISA detainees Vincent Cheng and Chng Suan Tze, and having recently reviewed the existing rules concerning the advisory board..

..a more sufficient safeguard is a judicial review of government detentions. Indeed, that was precisely the view the Court of Appeal pronounced when it ordered the release of my client Ms Chng, and three other detainees, one of whom was Ms Teo Soh Lung.  The four had challenged their detentions by way of judicial review. Alas, the Government overruled the highest judicial tribunal of the land, did away with judicial review and, for good measure, got rid of Privy Council appeals.

The Government allowed judicial review only for cases where it had made procedural mistakes in detaining a person. However, a forensic victory grounded on procedural mistakes can only be Pyrrhic; such a win in the courts would only result in re-arrest, as was the case of my client Ms Teo and the other two who challenged their detentions. And, as was the case in earlier years, of Dr Lim Hock Siew and four other detainees.

The bottom line must be that if the Government believes there is a need for safeguards against misuse of the ISA, judicial review should be reinstated. As the Court of Appeal said in its landmark decision: ‘…All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power’.

1

 For Teo Chee Hean (8) – ISA safeguards, The Advisory Board (Teo Soh lFB, 7 Apr 2012):

..whether the review takes place once in every six months or 12 months is not the most important point I want to make in this essay. The power or rather the lack of power of the Advisory Board and what it is concerned with are my main criticisms of this so called safeguard provided by the ISA.

1[3 quotes on the processes of the advisory board]1

On the arrest of JI members (MHA, 2002):

The Advisory Board also reviewed the cases of 10 detainees. Following its review, the Advisory Board will submit its findings and recommendations to the President. After considering the Board’s recommendations, the President will then direct the Minister for Home Affairs on the detention or release of the detained person. Where the Board recommends the release of the detained person, the person shall not be detained or further detained without the Presidents concurrence.

The Advisory Board is required to review every ISA detention case at intervals of not more than 12 months from the date of the detainees last representation. An Order of Detention cannot exceed a period of 2 years. At the end of the period, if the preventive detention of the person is still warranted, an application must be made to renew the Order afresh. The same process of independent review by the Advisory Board will apply.

119 Oct 2011 – Parliamentary Speech on the Internal Security Act – Speech by Mr Teo Chee Hean, Deputy Prime Minister, Coordinating Minister for National Security and Minister for Home Affairs

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.

1

How robust is Singapore’s recipe for security in an Age of Terror? (ST, 6 May 2016):

The Minister for Home Affairs is able to issue a detention order only when the elected President is satisfied that it is justifiable. The detainee must be informed of the grounds of detention and has the right to make representations against the order to an advisory board headed by a Supreme Court judge.

The advisory board reviews the detention order every two years. Detainees are released once deemed not to be a security threat. Of the 72 people detained for terrorism-related activities since 2002, 80 per cent of them have been released. This reassures me that the safeguard processes are adhered to.

1

Thank you for reading Offbeat Perspective’s article:)

This Part 3 post is a continuation from Judicial review in Singapore (Part 1): Introduction, independence of judiciary system, 6 prominent cases. & Judicial review in Singapore (Part 2): judicial review exclusions, and ISA’s arbitrary powers?.

1

Click HERE if you wish to check out our Facebook page for new updates!

 

 

 

 

 

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s