Selling Singaporeans on the ISA
SINGAPORE: The announcement last week that Malaysia would repeal its Internal Security Act (ISA) has raised questions and generated debate as to whether Singapore should follow suit.
Originally enacted by the colonial British authorities to deal with the Communist insurgency in Malaya after World War II, the ISA allows for preventive detention for renewable two-year periods where “it is necessary to do so” to prevent a person from acting in any manner prejudicial to Singapore’s security and the maintenance of public order or essential services.
The use of the ISA in Singapore has mirrored the evolving security threats. For much of the ’50s and ’60s, it was used against Communist activists and those attempting to subvert the state. The political use by the colonial authorities was evident as Singapore transitioned from being a colony to self-government to independence.
From the ’60s to ’80s, the ISA was used against persons deemed to be agitating racial and religious discord, and persons engaged in espionage. The ISA was also controversially used in 1987 against alleged Marxist anti-state conspirators involved in several Catholic church and civil society organisations.
More recently, post 9/11, the ISA has been primarily applied to suspected Jemaah Islamiyah terrorists plotting attacks in Singapore and suspected self-radicalised terrorists.
Under the Constitution and the ISA, no citizen may be detained under the ISA for more than three months unless a three-member advisory board, headed usually by a current Supreme Court judge, has considered representations made by the detainee against the detention order, and made its recommendations to the President.
If the advisory board recommends the detainee’s release but the Minister for Home Affairs disagrees, the President decides whether the person should be detained or not. In exercising this personal discretion, the President is not bound to consult the Council of Presidential Advisers.
By law, the advisory board must also review annually prohibition and detention orders made under the ISA.
THE ISA AND POLITICS
Last Friday, the Home Affairs Ministry (MHA) indicated that Singapore has no immediate plans to follow Malaysia’s lead.
It sought to differentiate Singapore’s ISA from Malaysia’s, highlighting the safeguards built into and the sparing use of the ISA here, emphasising that “no person has ever been detained only for their political beliefs”.
To be sure, citizens have a legitimate basis to ensure the ISA is used for its intended purpose, and not for suppression of political dissent. We can expect the ISA to be discussed by political parties, civil society and when Parliament convenes next month.
In Malaysia, the government’s use of the ISA is invariably seen through political lenses with the ISA perceived as a tool used to suppress political dissent and to shore up the ruling coalition’s weakening power.
The Singapore situation is wholly different – there isn’t the mistrust and fear of abuse by the government that characterises the Malaysian situation. Nonetheless, securing political buy-in for the ISA’s retention remains an imperative.
The Government will have to continually demonstrate the Act’s relevance in light of the evolving security threats including terrorism; and that abolishing it would fundamentally undermine our ability to deal with them.
Over the years, Singapore has put in place a variety of laws to deal with threats to national security such as those posed by racial and religious conflicts. These include the Sedition Act, the Penal Code (revised in 2007), and the Maintenance of Religious Harmony Act. The ISA is part of this legislative arsenal to deal with threats in a calibrated manner.
The non-ISA laws do not provide for renewable two-year periods of preventive detention without trial nor prohibition orders including restrictions on movement, political activities and overseas travel.
Specifically, it is this power to detain without trial which makes the ISA such a harsh piece of legislation, but also enables the Government to deal with egregious security threats where the means to prosecute through the legal process present formidable challenges – ranging from evidential difficulties, to releasing classified information that would compromise security operations and intelligence sources.
Indeed, in the post-9/11 era, it is notable that criticism from the United States and Europe over the use of the ISA has become much muted. Law enforcement agencies elsewhere have been disadvantaged by the lack of an ISA-type legislation.
Even so, the use of the ISA goes beyond the constitutional and legal framework, and the authorities, each time it is invoked, will have to justify that it was a necessary last resort for our national security, and not merely expedient.
Wherever possible, the approach has to be to prosecute the accused persons through the legal system. To be sure, there may be occasions when it would be prudent to deal with the threat away from the glare of open court proceedings, in particular when they can inflame racial or religious passion further. Still, the use of the ISA should be the exception rather than the norm.
The introduction of more safeguards would go far in reassuring the public. Following the landmark 1989 case of accused Marxist co-conspirator Chng Suan Tze, where the Court of Appeal decided in the appellant’s favour on a technical ground, Parliament moved to legislatively overrule the court’s decision.
The Constitution and ISA were amended, confining judicial review only to questions relating to compliance with the ISA procedural requirements.
Allowing the judges to review both procedural requirements and substance of the ISA orders would bolster public confidence. This does not mean judges would ultimately decide what is good for national security or public safety – our Supreme Court judges would likely defer to the executive on what national security entails.
The principle is that the authorities should not have extensive discretionary powers that are not subject to judicial review. – TODAY
(Eugene K B Tan is assistant professor of law at the Singapore Management University School of Law).