Sunday, June 12, 2011

A view on the Internal Security Act

Dear Mr. Tan,

For me, everyone in this world, terrorists, criminals or not, deserves a fair trial. There might be times that the country must use draconian laws to detain a suspect based on intelligence that he might commit a large scale crime. However, at other times, if the country uses the draconian law at any slightest flimsy belief that a person is jeopardizing the security of the country, it can be said that the country is no better than a terrorist himself.

The president council, which advises the president on this matter, will play an important moral role in determining whether ISA should be deployed. The president and his council must not be seen as a trigger-happy entity. As such, the president council, upon receiving intelligence, information and recommendations from the home ministry that ISA should be invoked, must scrutinise the information very carefully.

Firstly, the president council must be at least 95% confident that the Home ministry's justifications on the use of ISA is valid. After that, the council may advise the president accordingly, and the president would have to scrutinise the information again and must be at least 95% confident that the council's justifications are valid. (As to what information and intelligence that can substantiate a 95% confidence, I am not privy to them so I think you need to do more research on it since you are running as president).

And so the Home Ministry gets the nod and proceed to arrest the suspect under ISA. Then, by all means a fair trial should be prepared immediately for him. The president might have no discretion on this matter, but I think it is fairly appropriate and within the constitution that the president can speak-up and urge on this matter and not maintaining silence, since the president is directly involve in the arrest. The president must show a moral authority that advocates a fair trial for everyone.

According to the constitution, the ISA detainee may be detained for up to 2 years, after which the Home ministry can extend the period indefinitely. It needs the assent of the president, but here the president have no discretion.

What the president should do in this case is to push for transparency as to why the ISA detainee is arrested in the first place. Since it is already 2 years, documents which leads to the arrest ought to be published for the public to see. Only then the public can perceive the government as free and fair. If 2 years is too short and the issue is still a national security where documents must be kept secret, then by all means extend the declassification to 3 - 5 years later. But whatever it is, at the end provide justification on the decision of the government and the president.

Sophia Ong

3 comments:

Its ME said...

Only upon understanding the real purpose of the original motive for the existence of this ISA within the history context , the citizens can see and know the truth of this law. Though politic is complex , it is not confusing if we know our stand and right as Singaporeans toward one another is to protect and preserve our sanity as moral beings. I appreciate those citizens who sincere right the wrong in our national life, I thank you for sharing the discussion. Peace.

Steve Wu said...

It is useful to be reminded of Article 151 of the Constitution which reads

Restrictions on preventive detention (current version)
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.

Hence it is very clear that the Constitution places a limit of 3 MONTHS for preventive detention unless a Presidential advisory board advises against it with the concurrence of the President. Have the constitutional safeguards with respect to preventive detention been adhered to in ALL cases?

We also note that the requirement of Art 151(3) protects the disclosure of facts leading to the detention ONLY in the instance that a release is against national interest. In all other instances, the release of facts is mandatory. Specifically, it does NOT protect against individual nor partisan interest.

The higher limit of TWO YEARS is stipulated by the Internal Security Act (ISA), a subordinate legislation to the Constitution and not the Constitution itself. In fact, the ISA is in clear violation of the Constitution in this respect. By virtue of Article 4, the pertinent clause s 8(2) of the ISA for preventive detention must be null and void. That it is NOT the case is an anomaly of the "rule of law" in Singapore.

Steve Wu said...

The offending and unconstitutional clause is s 8 of the ISA, specifically s 8(2).

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 —

(a) directing that such person be detained for any period not exceeding two years; or

(b) for all or any of the following purposes:

(i) for imposing upon that person such restrictions as may be specified in the order in respect of his activities and the places of his residence and employment;

(ii) for prohibiting him from being out of doors between such hours as may be specified in the order, except under the authority of a written permit granted by such authority or person as may be so specified;

(iii) for requiring him to notify his movements in such manner at such times and to such authority or person as may be specified in the order;

(iv) for prohibiting him from addressing public meetings or from holding office in, or taking part in the activities of or acting as adviser to any organisation or association, or from taking part in any political activities;

(v) for prohibiting him from travelling beyond the limits of Singapore or any part thereof specified in the order except in accordance with permission given to him by such authority or person as may be specified in such order,

and any order made under paragraph (b) shall be for such period, not exceeding two years, as may be specified therein, and may by such order be required to be supported by a bond.

(2) The President may direct that the period of any order made under subsection (1) be extended for a further period or periods not exceeding two years at a time.

(3) For the purposes of subsection (1), “essential services” means any service, business, trade, undertaking, manufacture or calling included in the Third Schedule.

(4) Every person detained in pursuance of an order made under subsection (1) (a) or of a direction given under subsection (2) shall be detained in such place as the Minister may direct (hereinafter referred to as a place of detention) and in accordance with instructions issued by the Minister and any rules made under subsection (5).

(5) The Minister may by rules provide for the maintenance and management of any place of detention and for the discipline of persons detained therein.



The point is that the President does not have the legal authority to overrule the constitutional protection guaranteed by Art 151.

We note the CLTPA s 30 and s 31 are also unconstitutional with the same defect.

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