By Xiao Hongyu

The “Guantanamo Bay” file leak in April, revealing that of the 212 Afghans at the base, “almost half were … entirely innocent or transferred to Guantanamo with no reason for doing so on file”[1] demolished ex-Secretary of Defence Donald Rumsfeld’s claim that those detained in Cuba were “the worst of the worst”. Some of the detainees simply had the bad luck to be in the wrong place the wrong time; others were detained on grounds that proved to be entirely baseless.

While the US continues to grapple with the problems of preventive detention and the way it has been used against terrorists and innocents alike, the Ministry of Home Affairs, in response to calls to abolish the ISA in light of developments in Malaysia, recently asserted that the ISA “has only been used against individuals who have acted in a manner prejudicial to the security of Singapore or to the maintenance of public order or essential services therein”[2], that the “ISA has never been used for political purposes” and that “the ISA continues to be relevant and crucial as a measure of last resort for the preservation of our national security.”

While it is beyond the scope of this article to discuss the political implications of the ISA and whether it has or could be used for political purposes, this discussion will centre on the concern raised by the “Guantanamo leaks” that potentially innocent people are being imprisoned by the ISA with minimal legal recourse.

Are they all terrorists?

As of 13 September, there were 17 people on Detention Orders, one on Suspension Direction, and 49 on Restriction Orders. According to the Ministry, of the latest three who were detained, two were members of the JI while one was a member of the Moro Islamic Liberation Front. However, in the absence of a similar leakage of classified documents, there is no way to know how substantial the proof against these individuals is and whether it is evidence that would stand up in a court of law.

Under the current ISA regime, there are several safeguards present to attempt to mitigate this problem. A detained person is entitled to be informed of the grounds for his detention and make representations to an advisory board made up of a chairman appointed by the President who is, has been, or is qualified to be, a Supreme Court Judge and two other members appointed after the President consults with the Chief Justice. The advisory board has inquisitorial powers and must make recommendations to the President within three months from the date of detention. Furthermore, section 13(1) provides for regular reviews by the Advisory board of any orders made by the Minister.

However, these safeguards are fairly unsatisfactory. In the first place, section 16 provides that the Minister is not required to produce evidence if he feels it would be against the national interest. This means that it is conceivable that the Minister could simply assert that the evidence against the detainee exists but cannot be produced, leaving the Board with no choice but to accept that statement.. Furthermore, it is unclear what the legal rules governing how the Advisory Board makes it recommendations are, and the detainee is provided with very few of the safeguards that exist in ordinary criminal trial, such as the presumption of innocence.  Finally, the President has no power to refuse detention if the Advisory Board recommends it as he only has discretion to extend detention if the Advisory Board recommends release. While it may seem strange to trust the Advisory Board with one decision but allow oversight over the other, this clearly demonstrates the bias that exists in the system against releasing detainees.

It might be argued that the ISA is an extraordinary tool that would only be used against people who are “clearly” terrorists. The problem, as the Guantanamo Bay files demonstrate, is that in the absence of a proper check on the powers of detention, the definition of who is a terrorist or even who might potentially be a terrorist tends to get stretched so that the law enforcement agencies have as much freedom of action as possible. With the emphasis placed on ensuring public safety and swift action, enforcement agencies have little incentive to wait until they have gathered enough evidence before arresting people who they believe are terrorists. With this paradigm in mind, any activity that is out of the ordinary becomes interpreted as “suspicious activity” that links with the suspect with terrorists.

It is precisely this inherent bias in law enforcement agencies that explains why strict rules of evidence, high standards of proof imposed on the Prosecution (including the presumption of innocence) and neutral arbitration based on all the facts are an essential feature of any just criminal legal system. Furthermore, the asymmetry of power between the state and an individual requires that the system build in protections for the individual to balance out that asymmetry. Under the ISA, however, these safeguards are removed. Even assuming the good faith of our law enforcement agencies, the potential that innocent people are being arrested is still great.

There is, additionally, the question of the 49 people on Restriction orders, which are essentially orders that allow the release of detainees who must nevertheless still abide by certain conditions. If the ISA is meant to capture dangerous terrorists, why are there people who are released? If these are people where there is insufficient evidence to continue to detain them, wasn’t it unjust to detain them in the first place, and on what basis can there continue to be restrictions on their liberty? These two preliminary questions reveal the uncertainty surrounding the ISA and the unsatisfactory way it deals with the problem posed earlier.

Can we try terrorists?

There are several possible objections to this argument that a more appropriate platform would be to try these people in a civilian court, using the same system we have for other criminal offences. One could be that the crime of terrorism is nebulous and hard to prove, and that the dangers posed by terrorism necessitate such extreme measures. However, this is not true as laws could be passed that define and punish the preparation of terrorist acts, and the law on attempts allows the police to arrest people before a crime is committed. If it is hard to find evidence that could stand up in a court of law, then that suggests that the person in question is not actually a terrorist. Existing criminal mechanisms allow the arrest of suspects while the police gather evidence and prevent possible plots from occurring.

Another argument is that courtrooms are inadequate for the task of trying terrorists. However, with proper control of the courtroom by judges and responsible media coverage, there is no reason why that should be the case. In fact, an open trial of terrorists, by exposing the crudeness and odiousness of their ideology, provides the best platform for destroying the aura of mystique that some terrorist leaders attempt to invoke. In the United States, civilian courtrooms have successfully prosecuted terrorists such as Zacarias Moussaoui, Richard Reid, and Umar Farouk Abdulmutallab, the “underwear bomber”. Trials are proven and effective ways of prosecuting terrorists in a way that assures legitimacy and transparency in the process.

Conclusion

It is easy to believe that the people arrested under the ISA are terrorists and therefore do not deserve our pity; this may even be true. Nevertheless, the ability of the state to detain individuals, is an immense power that should be exercised judicially. However, no system is perfect, which is why the criminal justice system provides safeguards to attempt to correct for the imperfections and mitigate the harms caused by unchecked executive power. The ISA, by undermining these safeguards, increases the possibility that we do a grave injustice by imprisoning people whose greatest crime is being in the wrong place at the wrong time. Civilian trials provide the authorities with a way to ensure national security through a system that is transparent, legitimate, and fair to all.

[2] ² http://www.mha.gov.sg/news_details.aspx?nid=MjA4NQ%3D%3D-Dmf5juIlzOA%3D