DANIEL GAW
First Year NUS Law

It happens.

We throw a dice, draw a Chance card and find ourselves in jail for no apparent reason, deprived of the $200 we usually get when we pass ‘Go’.

In Monopoly, the worst that could happen is losing three turns and $50. But in reality, imprisonment is a grave matter and can take away years of freedom from a person. Thus, in order to ensure that no one is denied his freedom without valid reason, Article 9 of the Universal Declaration of Human Rights (UDHR) states that “no one shall be subjected to arbitrary arrest, detention or exile”.

Yet, this protection of an individual’s freedom from arbitrary violations is not absolute in Singapore. Under s. 8 of the Internal Security Act (ISA), the Minister for Home Affairs can order the detention of any person as long as the President is satisfied that detention is necessary to prevent the person from threatening national security or from jeopardising the maintenance of public order or essential services”. As we shall see, this affords the executive too much discretion and contravenes Article 9 of the UDHR.

The UN Commission on Human Rights considers an arbitrary detention to have occurred when a person’s liberty is deprived without a final decision being taken by domestic courts in conformity with domestic law and relevant international standards (resolution 1997/50). Since detention under the ISA is entirely up to the discretion of the executive, it clearly fails the first limb of the test: judicial decision.

In fact, s. 8B of the ISA expressly limits the role of judicial review to that of ascertaining whether the procedural requirements of the Act have been complied with. This means that the courts can only decide, for example, whether the Minister has obtained the President’s satisfaction before ordering a detention; they have no authority to decide whether a detention order was indeed based on national security considerations, or whether it was motivated by reasons outside the ambit of the Act. In effect, the Minister, with the President’s agreement, has carte blanche to incarcerate anyone he likes.

The dangers of unfettered executive discretion have been vividly demonstrated recently in Malaysia, where its ISA-which authorises detention on broadly similar grounds-was invoked to arrest an anti-government blogger, an opposition politician and a journalist. While Malaysian officials claimed that the first two individuals were arrested for inciting racial tensions, they justified the third arrest on the ground that they had received threats against the journalist’s life and needed to protect her. This was obviously a ludicrous basis for invoking the ISA as the ISA does not grant the Minister the authority to arrest people for their protection. Although the journalist was subsequently released following tremendous public outcry, the point remains that the executive can abuse the ISA by arbitrarily depriving dissidents of their liberty in order to maintain its grip on power..

It is conceded that the ISA is useful in forestalling security threats; in recent years, it has enabled the authorities to nab extremists before they could inflict grievous damage upon Singapore. It would not be possible to apprehend these extremists under other penal laws, since they have not committed any crime. The ISA thus allows the government to preventively detain individuals who pose a serious threat to Singapore.

But even the spectre of terrorism does not justify granting such sweeping powers to the executive. Would the ISA’s utility in countering security threats be diminished if the courts were allowed to review decisions to see if they were based on legitimate grounds? Hardly. In Chng Suan Tze v Minister of Home Affairs [1988] SLR 132, the Court of Appeal drew a distinction between examining whether the executive’s decision was in fact based on national security considerations, and questioning the executive’s decision as to what national security requires. A court can do the former without doing the latter.*

This approach preserves the executive’s power to decide whether a detention is necessary to safeguard the security of Singapore, while ensuring that the executive does not exploit the ISA for its own ends. If the Minister orders detentions for legitimate purposes, there is no reason why he should fear judicial oversight in this respect.

Nonetheless, allowing judicial review is an inadequate solution as it still permits the executive to confine people who are not guilty of any crime for an indefinite amount of time. “National security” and “public order” are such amorphous grounds that they can be invoked to justify almost any detention. The executive, singlehandedly assuming the roles of judge, prosecutor and warden, does not need to provide positive evidence that the detainee poses a security threat or prove that his detention was really necessary.

Consequently, the ISA would still violate Article 9 of the UDHR even if the courts could ensure that it was being used in good faith. However, as the government is unlikely to repeal the ISA any time soon, enhancing the role of judicial review would be a small step in the right direction.

“Singapore… subscribes to the Universal Declaration of Human Rights,” insisted the Ministry of Law in its response to the International Bar Association Human Rights Institute’s Report on Singapore (July 2008). But mere ideological concurrence with the UDHR is meaningless when our laws clearly violate its provisions. Parliament should at least revise the ISA to check the unwarranted discretion it confers upon the executive.

*After the Chng Suan Tze judgment was delivered, parliament hastily amended the ISA to obviate whatever legal effect the judgment had. S. 8B was among one of the amendments.

Provisions under the ISA

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

…

(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.

Law applicable to judicial review.
8B.

…

(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.