SUMMARY:
Powers of preventive detention may be given to the Executive but only to pre-empt and disrupt terrorist activities and subject to safeguards preventing misuse of such powers. The Internal Security Act, Cap. 143 (ISA) does not contain the necessary safeguards. It should be abolished and replaced by terrorism-specific legislation.
- The ISA gives the Minister for Home Affairs power to arrest and preventively detain an individual without warrant or trial for up to two years at a time “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”. [1]
- NSP accepts that it is necessary for the Minister to have preventive detention powers so as to be able to pre-empt and disrupt terrorist activities in a situation where there is not yet enough evidence to charge and convict such an individual under existing criminal laws.
- That said, Singapore being a functioning democracy, the internal security legislation which confers the Minister with preventive detention powers must contain safeguards ensuring that:
(a) preventive detention powers cannot be used by the executive to serve its own political or other aims;
(b) internal security legislation is only used as a last resort, when there are no other avenues under existing criminal laws; and
(c) there is an appropriate balance between the needs of the state and the civil rights of the individual.
- However, the ISA fails to contain such necessary safeguards. Two particular failings of the ISA are:
(a) No maximum period of detention
(i) ISA fails to provide for any maximum period of detention. With no ceiling on the maximum period of detention, there is no limit to the number of times the 2-year detention orders under ISA can be renewed.
(ii) In fact, continual renewal of the 2-year detention orders under ISA has happened with embarrassing frequency in the past, which is how we have had such long-serving detainees as Chia Thye Poh (detained for 23 years), Dr Lim Hock Siew (detained for 19 years) and Dr Poh Soo Kai (detained for 11 years and 6 years on another occasion) – none of whom were tried nor convicted of any crime.
(iii) Indefinite detention without trial is unacceptable. Provisions for strict limitations on the maximum duration of detention must be enacted.
(b) Exclusion of Judicial Review
(i) The wording in Section 8(1) of the ISA: “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” – gives the executive a very wide discretion.
(ii) In the landmark case of Chng Suan Tze v Minister of Home Affairs [1988], the Court of Appeal stated:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.”
(iii) Yet, within one month of the decision by the Court of Appeal in Chng Suan Tze v Minister of Home Affairs [1988], the ISA was in January 1989 specifically amended to remove the Court’s power to review any act or decision by the executive under the ISA, except for procedural compliance.
(iv) Henceforth, when the Minister decides to detain anyone under the ISA, the Court has no power to review his decision, except on technicalities. Hence, the Minister’s discretion is virtually absolute. This is unacceptable.
(v) The courts’ power of judicial review is a critical safeguard against abuse of the executive power of preventive detention. The courts must be allowed to review all preventive detentions on substantive grounds, not only for procedural compliance.
(vi) The 1989 amending Act of Parliament to exclude the court’s power to review executive decision in ISA cases except on technical grounds, should never have been passed. The present Government will do right to abolish the amendment and to reinstate the Court’s judicial review powers over any decision made by the executive under the ISA.
Arrests under Operation Spectrum
- The 1987 arrests of alleged Marxist conspirators under Operation Spectrum marked a low point in the historical application of the ISA. The public has never been given more than scant evidence of the existence of the alleged Marxist conspiracy or of how those arrested were involved therein. To date, questions remain, such as:
- Did the Minister “jump the gun” in his zeal to protect Singapore from potential danger?
- Did he use the ISA as a first resort, rather than as a last resort, given the ease by which the ISA can be availed?
- Was the ISA misused to silence political dissent against the ruling party on the pretext of safeguarding national security?
- The Singapore Government has consistently refused to be accountable to either the Courts or the public on whether the Minister had properly exercised his discretion to detain those arrested under Operation Spectrum. Meanwhile, several of those who were detained under Operation Spectrum have persistently and consistently denied the allegations made against them by the Singapore Government at that time.[2]
- On 29 September 2011, the Singapore Government categorically turned down a public call for a Commission of Inquiry to investigate the detentions of the alleged Marxist conspirators.[3] The NSP regrets the Government’s refusal to confront the public disquiet over the 1987 arrests, which would thereby be set to deepen.
Historical Controversies
- Controversies have dogged the Government’s use of ISA. Despite the Government’s assurance that it “has used the ISA sparingly” and that “No person has ever been detained only for their political beliefs”,[4] questions persist as to whether the ISA has only been used for legitimate threats to national security, and never as a tool to suppress political opponents. Such doubts have eroded public confidence in the ISA. The controversial history of the ISA is yet another compelling reason to opt for its abolition in favour of a new set of laws, to start on a new slate.
Enact Terrorism-Specific Legislation
- The legislative history of ISA is traced to the Emergency Regulations Ordinance 1948, a post-war measure introduced by British colonial Malaya in response to armed insurgency during the Malayan Emergency, declared on 16 June 1948 and which officially ended on 12 July 1960. It contains draconian, drastic measures which arguably had been necessary at that time of crisis.
- The ISA in its present form is no longer appropriate to present-day Singapore. It is an anachronism long overdue to be replaced.
- NSP is of the view that terrorism-specific legislation should be enacted. Once such legislation is enacted and in place, the ISA should be abolished.
Hazel Poa
Secretary-General
On behalf of the Central Executive Committee
[1] Section 8(1) of the ISA.
This morning, the National Solidarity Party wrote separate letters to Prime Minister Lee Hsien Loong and President Tony Tan.
