Donaldson Tan
A silent protest against the ISA.
Professor Hugh Hickling, the original author of the Internal Security Act (ISA) and the former Commissioner of Law Revision of Malaysia, once remarked: “I could not imagine then that the time would come when the power of detention…. would be used against political opponents, welfare workers and others dedicated to non-violent, peaceful activities.”
Spoken in the aftermath of the Marxist Conspiracy, it was a sad reminder for idealism and politics in Singapore.
No More than a Legacy
Twenty-two years have lapsed since the ISA was used against peaceful activists. The legacy of fear still remains, perhaps unnecessarily so as even Singapore’s most vocal opposition member Dr Chee Soon Juan has not been persecuted under the ISA.
Judging from the rampant abuse of the ISA across the causeway, it is actually quite telling that the abuse is a symptom of the ruling party’s intolerance towards alternative voices.
The appropriate yardstick to measure the fear factor of the ISA is not how wide the powers the ISA grants the government, but rather the ruling party’s attitude towards alternative voices.
While the public remains skeptical whether the NMP and NCMP schemes boost political space for alternative voices, the liberalisation of Speaker’s Corner is by far the best indicator of the PAP’s evolving attitude towards alternative voices. Various interest groups have staged demonstrations at Speaker’s Corner – from Anti-War Activists to Gay-supportive groups.
The National Solidarity Party publicly expressed its disagreement on the Government’s Budget in January 2009 at Speaker’s Corner while Ng Teck Siong held a press conference there on his resignation as Chairman of Reform Party in April 2009.
Speakers’ Corner has indeed opened up more political space for the alternative voices in Civil Society and Politics.
The Merits of the Internal Security Act
The original intent of the ISA was to provide for the internal security of Singapore through the prevention of subversion and the suppression of organised violence against persons and property in specified areas of Singapore.
In 2002, Vanu Gopala Menon, Singapore’s Permanent Representative to the United Nations, stressed to the international community that the ISA is a critical instrument of last resort to counter security threats such as racial and religious extremism, espionage, terrorism and subversion.
In more recent years, the ISA has been used to neutralise the activities of terrorist or terrorist-linked organisations in Singapore, including the Liberation Tigers of Tamil Eelam and the Jemaah Islamiyah (JI), which had planned to bomb several foreign embassies and major installations in Singapore.
The clause for indefinite detention was removed in 2002.
According to the latest (2005) edition of the ISA, no person may be detained for more than two years at a time. Each detainee has a right to make representations against his Order of Detention (OD) to the ISA Advisory Board, comprising a Supreme Court judge and two prominent citizens appointed by the President of Singapore.
The detainee is free to engage a lawyer for this purpose.
In hearing detainees’ representations, the Advisory Board can examine Internal Security Department (ISD) officers and statements of witnesses and review the investigation. It considers representation from detainees within 3 months of the date of the OD and subsequently makes recommendations to the President for consideration.
The Advisory Board is further required to undertake a yearly review of continued detention against a person and make further recommendations to the Minister for Home Affairs.
There are also other safeguards in place to prevent any physical assault of detainees. A doctor is present to examine the detainee before and after each interview session. All examinations are recorded on the detainee’s medical card and the doctor makes a daily entry of any complaint by the detainee. Where a doctor has reported the discovery of any injury to the prison authority, such cases would be investigated.
In addition, there are provisions under the ISA for a Board of Inspection (BOI) to be appointed. This Board comprises Justices of Peace and volunteers of community and civic groups. They make unscheduled visits to the detention centre and are entitled to inspect the place and speak to the detainees.
Detainees are able to convey requests and complaints to these Board members who will channel them and any other recommendations to the Government. The 56 Board members include representatives of all major ethnic and religious communities in Singapore.
Reform the Internal Security Act
The build-in checks and balances in the ISA are still inadequate to address the rights and justice of the suspects and detainees as afforded by the Singapore Constitution. Although it has been claimed that the very nature of clandestine activities would make disclosure of intelligence a threat to national security, this is still no reason to violate the legal right to the presumption of innocence.
After all, nobody is above the law, including terrorists and cabinet ministers.
The satisfaction of the President, a precondition for detention, is a purely subjective condition to exclude a judicial enquiry. Moreover, an affidavit by the Minister of Home Affairs is deemed as sufficient evidence of Presidential satisfaction.
Worst of all, the Supreme Court cannot inquire into the bona fides of the President, which begs the question whether there is separation of powers in Singapore to allow the Judiciary to inspect the Executive branch.
In view of the above, I suggest the following reforms:
1) Objective review and inspection of evidence by the Advisory Board should be the deciding factor for the issuance of OD.
The only ground for detention is to prevent a person from carrying out a threat against the State. The authorities should use preventive detention to buy time for building a case to charge him in a criminal court.
2) The cap of detention period under ISA should be further reduced from 2 years to 6 months, complemented by monthly review by the Advisory Board to consider the continuation of detention.
The Advisory Board should not be used to pronounce criminal charges against detainees.
Detainees should be deemed innocent until proven guilty.
If the ISD is unable to build a court case against the detainee within the cap of the detention period, then the legitimacy of post-detention bond becomes questionable. Chia Thye Poh was placed under a 9-year bond to limit his movement within Sentosa after ISD released him from 23 years of detention.
3) The power to impose restrictive bond on the movement of former detainees over indefinite periods should be abolished.
Instead, a rehabilitation program that involves regular meet-up with a counsellor and case officer should be implemented.
4) Evidence obtained under torture (including prolonged interrogation) cannot and should not stand up to the scrutiny of the Advisory Board.
By rejecting such evidence, the incentive for ISD officers to torture detainees is minimised. Torture cannot be justified on grounds of human rights and integrity of evidence.
Not all torture will have a physical mark, so it is essential that the communication between the doctor, the BOI and the detainee have to be kept confidential from the ISD unless the Advisory Board deems otherwise.
Former Solicitor-General Francis Seow acted as the legal counsel for the alleged Marxist Conspirators. Despite being a public prosecutor, he was not spared from harassment by the ISD and was subsequently detained for 72 days. Such harassment prevents ISA detainees from obtaining impartial advice on their position.
The ISD should be barred from pressuring the detainee to lie to his legal counsel, the BOI, the doctor and the Advisory Board. While the ISA provides for special privilege for BOI members, the same privilege should be extended to the detainee’s doctor and legal counsel to protect them from ISD interference while discharging their professional capacity.
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Courtesy of Rescuedog / Creative Commons
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