ASIARIGHTS ISSUE FIVE 2005
Enhancing National Security Through the Rule of Law: Singapore's Recasting of the Internal Security Act as an Anti-Terrorism Legislation
But who is to guard the guards themselves Roman satirist, Juevnal (Knowles, 1999: 424)
The Jemaah Islamiyah (JI) group has become the proverbial terrorist bogeyman of Southeast Asia. (Ramarkrishna, 2004: 54) The bombing of two Bali nightclubs in 2002, and the recent attack (2005) on a Bali shopping strip, has been attributed to this terrorist network, which some believe have connections to Osama Bin Laden's Al-Qaeda organization. (Gunaratna, 2003: 3 – 4) In 2001/2002, the Singapore government arrested and detained several local JI operatives under the Internal Security Act (ISA). The arrests outraged human rights groups, as they were reminiscent of the arrests/detention of several alleged Marxist conspirators fifteen years earlier. Human rights advocates were concerned that the detainees would be dissuaded from seeking legal counsel, and subjected to ill treatment. (Tang, 1989: 4 – 7; Frank, Markowitz, Mckay and Kenneth Roth, 1991: 5 – 99) As Amnesty International's Margaret John, argued:
The ISA violates the rights to a fair and public trial and the right to be presumed innocent until proved guilty…since we (Amnesty International) know of cases where detainees were denied access to lawyers and relatives during the first weeks of their detention, this raises fears that they may have been tortured or ill-treated. (Margaret John, 2004)
The response of the Singapore public to the 2001/2002 arrests, however, was markedly different than the response in 1987. The 1987 arrests provoked much sympathy for the detainees. Many Singaporeans questioned the validity of the arrests, and perceived that the government had misused the ISA. (Tan, 2002; Hor, 2002: 30 – 31) In contrast, the 2001 arrests elicited a collective “sigh of relief” from the public, with many expressing strong support for the Government's actions. (Hor, 2002: 30) This change in public attitude weakened the argument of human rights activists that the ISA should be abolished as it contravened fundamental human rights. Although the Government had not made any plans to abolish the ISA, the JI arrests did strengthened its argument for retaining the Act. (The Straits Times, 1999) The government proceeded to recast the ISA as a crucial anti-terrorism legislation through an active promotional campaign. Despite this move, the absence of explicit definitions of national security threats either in the Act itself, or in accompanying legislation, renders the ISA susceptible to misuse.
The Rule of Law and National Security in Singapore
The Rule of Law (ROL) in Singapore
The Rule of Law (ROL) is a contested concept. In a Western context, the ROL exists as a framework for governance, whereas in an Asian context, the ROL exists as an instrument of governance. (Peerenboom, 2004: 1 – 55) As an instrument of governance, state actors have utilised the ROL to pursue political objectives, such as, facilitating economic development, exercising social control, and enhancing national security. (Jayasuriya, 1999b: 13) In Asia, national security is framed within the context of political stability, economic development, and social welfare. (Harris; Mack, 1997: 3 – 4) As such, Asian governments have been able to justify their use of the ROL to ensure social, commercial and political order, which they argue, is tantamount to defending the state against national security threats. For example, the Asian Legal Resource Centre (ALRC), has observed that that in Asia,
“National security” has been incorporated within national legal frameworks. Although known by different names, “emergency” acts have deliberately incorporated a common flaw: vital concepts such as “terrorism”, “subversion”, “state/public security”, have not been clearly defined to describe the precise nature of the perceived threat. It is this ambiguity that has given governments wide scope in exercising such legislation, whether or not within an emergency situation, and thereby protect themselves from public scrutiny and criticism. In this militarised scenario, popular dissent is stifled and condemned as “subversion”. The “enemy” is among and within the population and consequently the people themselves are perceived to be a threat. (Asian Legal Resource Centre, 2002)
In Singapore, the ROL is in integral part of the government's national security strategy. It facilitates economic development, as well as enforces political and social order. (Ganesan, 1998: 584) This in turn grants political legitimacy to the regime, and as such, Singapore's national security is inextricably linked to the political survival of the incumbents. (Ganesan, 1998: 588; Tan, 2004: 44) In other words, Singapore's survival is synonymous with regime survival.
As the Singapore government employs the ROL differently in the commercial and non-commercial sectors, contradictory perceptions of Singapore's ROL has inevitably emerged. While the ROL has obtained international accolades for its ability to attract foreign investment and stimulate trade, it has also been criticised as unduly harsh toward political dissent, crime and other social misdemeanours. As local constitutional lawyer Kevin Tan observes:
What human rights groups and international non-governmental organizations criticise is our [Singapore's] public law record, meaning things such as constitutional law, criminal law, anything involving the state. They are not concerned with the commercial areas, as our [Singapore's] record is very good for dealing with these matters. (Chua, 1997)
The ROL has been an instrumental part of Singapore's economic development; creating a sound business environment that facilitates trade. As James Cotton writes:
The People's Action Party [PAP] regime recognised early that international business would not regard Singapore as a profitable field of investment without the protections for contracts, property and labour controls that were to be found in the system of law, which had been bequeathed to the island by the British. The government was careful, accordingly, to retain those elements of the system, which fulfilled significant commercial purposes. (Cotton, 1998: 17)
The effectiveness of Singapore's ROL in sustaining investor confidence was demonstrated by its ability to help the city-state weather the economic storm, precipitated by the Asian Financial Crisis of 1997. The crisis, which crippled the once formidable “Tiger economies”, was attributed to economic mismanagement and the failure of the ROL in many of the affected economies. (Dibb: Hale and Prince, 1998: 9) The hard lesson learnt was that “economic globalisation was feeding the Rule of Law imperative by putting pressure on governments to offer stability, transparency and accountability that international investors demand.” (Carothers, 1998: 98) In comparison with her neighbours, Singapore remained relatively unscathed. While massive withdrawals of foreign capital were occurring in the region, Singapore was able to retain the majority of its foreign investments. (Pillbeam, 2001: 125) This was due, in part, to investor-friendly policies, which included a reliable ROL, that investors perceived as well suited for protecting their investments.
The ROL continues to stimulate trade and investment by functioning as “a commercial and economic framework that is designed to provide economic freedom so that Singapore can compete at the highest levels within the global economic and trading system.” (Worthington, 2003:104) As such, this has enabled the Peoples Action Party's (PAP), to provide material gains to its electorate and therefore to legitimise its rule. (Ganesan, 1998: 589)
The ROL has also been used by the Singapore government to undermine political opposition, stymie civil society, restrict the media, manage ethnic and racial relations, and generally to maintain a high level of social control. (Tay, 2000: 170 – 189; Chua, 2004: 78 – 101) In its attempts to discourage political opposition, defamation suits have been filed against the PAP's political opponents (this includes opposition party members as well as foreign journalists), for statements or articles that allegedly besmirch the reputation of cabinet ministers. (Worthington, 2003: 140: Seow, 1997) In terms of social control, various laws transform misdemeanours such as spitting, chewing gum, littering, failing to flush the toilets, and so on, into serious felonies that are subject to heavy monetary penalties. Media control is enforced through the Newspaper and Printing Presses Act, and the Undesirable Publications Act, which prohibit publications that the government deems harmful to the public and political interest. (Tay, 2000: 175) In addition, the Public Entertainment Act is used to regulate public performances, to ensure that government-defined moral and political standards of propriety are not breached. In the era of Information Technology, the World Wide Web has not escaped from “internet policing” by the state. This is accomplished through the Singapore Broadcasting Authority Act and the Computer Misuse Act. (Gomez, 2002: 33 – 48) In short, the ROL in the non-commercial sector, operates as:
A social, political and cultural legal framework that is designed to provide maximum control over society by the PAP government, to enforce social and ethnic harmony, minimise sources of political opposition and dissent and impose a conservative framework. (Worthington, 2003:104)
Singapore's leaders have constantly argued that the maintenance of social and political order creates a stable environment, which in turn, makes Singapore conducive for economic development and progress. (Lee, 1989: 165; Tan, 2004: 72) And as the PAP's legitimacy is based on the economic viability and prosperity of the city-state, economic productivity and political stability are closely related.” (Thio, 2004: 185) Assuming stringent controls over social and political elements also helps the PAP deter challengers to its authority. The PAP has constantly advocated that the one-party system of government is in the national interest of Singapore, and argues that this system is the “only way to ensure internal unity, regime survival and political [and economic] stability.” (Tan, 2004: 45) As part of its strategy to defend the state, as well as its regime, the PAP also employs national security laws that allow the government to pre-emptively move against perceived threats to national security. While highly controversial, these laws are articulated as a necessity, which allows the government to deal quickly with national security threats.
Responses to National Security Threats: Vigilance through the Internal Security Act
At the core of Singapore's national security strategy is the concept of eternal vigilance, which entails pre-emptive moves against potential security threats. (Tan, 2004: 71 – 72) As Deputy Prime Minister Dr Tony Tan cautioned:
But we cannot be complacent…we have to continue to be vigilant and watch out for troubles so that we can take the necessary measures. There are still threats like terrorism, which can disrupt our economic and social progress. (Tan, 2003)
The Internal Security Act (ISA) is the city-state's foremost national security legislation. It empowers the Internal Security Department (ISD) to deal with instances of espionage, subversion, and in recent times, terrorism. Apart from these universally accepted threats to national security, the Singapore government considers mass demonstrations, and some forms of political activity, as potentially damaging to the national interest, and hence, defines them as national security threats. (Rodan, 1993: 91 – 96)
The most infamous case in Singapore's relatively short history was the twenty-three year incarceration of Chia Thye Poh under the ISA. Chia had been an opposition party member of the Barisan Sosialis , and was arrested in 1966 for allegedly being a member of the Communist Party of Malaysia (CPM) and planning to overthrow the government. (The Straits Times, 1998; Amnesty International, 1998) In 1987, the government detained twenty-two people without trial for alleged involvement in a Marxist conspiracy against the state. The government had accused the detainees of using the Catholic welfare organizations, which they were members of as a front to engage in political incitement. (Rodan, 1993: 92; Tang, 1989: 4 – 7; Frank, Markowitz, Mckay and Kenneth Roth, 1991: 5 – 99) A former solicitor-general, Francis Seow, was detained for 72 days under the Act, for involvement in an alleged plot to undermine the Singapore government. (Seow, 1994) Such incidents have given rise to criticism that the ISA has been used as a tool for political suppression, rather than as a tool to combat national security threats. ( Agence France Presse , 2004)
The government has of course strongly defended these allegations, citing the necessity to pre-emptively move against such threats as the only reason for utilising the ISA. ( Agence France Presse , 2002) As Singapore's Ambassador to the United Nations, Vanu Menon, argued:
The Internal Security Act (ISA) has never been used against anyone who operates by constitutional means. Action has only been taken against persons who participate in unlawful acts against public order and in subversive activities. It was used in the past against communist and their supporters, including some politicians, who resorted to violent means to overthrow the lawfully elected government. These people rejected parliamentary election, and had taken their struggle to the streets. It is an established fact that communist elements had in the past undertook violent and illegal acts, including planting bombs and staging arson attacks…In more recent years, the ISA has been used to neutralise the activities of terrorist or terrorist-linked organizations in Singapore, including the Liberation Tigers of Tamil Eelam (LTTE) and more recently the Jemmah Islamiyah (JI), an extremist group with links with the Al Qaeda network, which had planned to bomb several foreign embassies and major installations in Singapore. ( Menon, 2002)
Until 2001– 2002, many Singaporeans, human rights groups, civil society groups, and opposition party members perceived the government's use of the ISA, as illegitimate, and demands were made to have the Act abolished. (The Straits Times, 1999) A brief examination of the history and characteristics of the ISA will shed light on the reasons behind these objections.
History and Characteristics of the ISA
The ISA can best be described as a supra-legislation that allows the Executive to define and pre-emptively act against threats to national security. Its evolution from an ordinance created to deal with communist insurgents to a constitutionally valid Act of Parliament is linked to the historical development of Singapore. The Act's prescriptions are perceived to be highly draconian and have been a source of increasing contention between state and society.
Matters of national security, including the enactment of legislation such as the Internal Security Act (ISA), have traditionally been vested in the Executive arm of government. In the post World War II era, the British colonial administration were confronted with communist insurgents who threatened armed insurrection in pursuit of their political agendas. The Executive (in this case the Governor of Singapore) was given extraordinary powers to enact Emergency Regulations to defend the colony, and move against the insurgents. (Lee, 2002: 56; Ministry of Home Affairs, 2002: 17) Some of the prominent features of the Regulations were the use of preventive detention, the imposition of curfews, and the restriction of publications. (Lee, 2002: 57)
Between the 1950s – 60s, as Singapore's status as an embryonic nation-state began to materialise, a renewed threat from communism emerged. Instead of espousing militant activities, communist firebrands preached and mobilised violent civil disobedience campaigns. (Yee; Ho; Seng, 1989: 70) To quell the unrests and apprehend the ringleaders, the executive used preventive detention, as set out in the Preservation of Public Security Ordinance (PPSO) of 1955.
The PPSO was codified in 1960 as the Internal Security Act of Malaysia. When Singapore joined the Federation of Malaysia in 1963, the Act was introduced into Singapore's legislative framework as the Internal Security Act of Singapore. (Yee; Ho; and Seng, 1989: 70) The Act's primary objectives were to contain subversive activities and eliminate organised violence in the newly established Federation of Malaysia. To accomplish these objectives, preventive detention was used as a punitive measure and as a deterrent. Following Singapore's independence (albeit unceremoniously) from Malaysia in 1965, the ISA remained part of the Singapore statutes, and gained constitutional validation. (Yee; Ho; Seng, 1989: 71)
National Security & The ISA: The Purview of the Executive
In keeping with historical precedence, the Singapore Constitution declared that the laws enacted to deal with offences pertaining to national security (of which the ISA is the main one) are the exclusive responsibility of the Executive and not the Judiciary. This was because it was held that in times of national crisis, such as the Malayan Emergency, it was necessary for the Executive to act quickly against national security threats, and not be delayed or hindered by judicial procedures. (Tan, 1987: 247) As such, the power to order preventive detention for instance, is vested in the President of Singapore as head of the Executive and not a judge. Section 8 (a) of the ISA states:
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
The decision to order preventive detention is in actuality, collectively made by the Cabinet, thereby making preventive detention, as Tan Yock-Lin observes, tantamount to “executive detention”. (Tan, 1987: 238)
The Executive's powers also extend to the arrests of suspects and the initial period of detention pending investigations. Section 74 (1) of the ISA allows
Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe —
(a) That there are grounds which would justify his detention under section 8; and
(b) That he has acted or is about to act or is likely to act in any manner prejudicial to the security of Singapore or any part thereof.
The initial detention period can be extended to 28 days following a maximum 48-hour limit if “an officer of or above the rank of superintendent of police” believes it is necessary to do so. Thus the total time spent in detention pending enquiries may last 30 days and is deemed “lawful custody”. (Rawlings, 1983: 237)
The decisions to order preventive detention and make arrests, based on the President's satisfaction and the Police Officer's “reason to believe”, implies a high degree of subjectivity. As it is held by the courts that the Executive must move quickly against national security threats, and that the information obtained by the Executive when making such decisions, are credible, it has been the practice of the courts to allow such subjective decision-making. As a consequence, the judiciary has generally been reluctant to conduct reviews of cases involving the ISA.
During the late 1980s however, the judiciary did attempt to exercise its powers of review on a case where preventive detention under the ISA was invoked. In September 1987, four of the alleged Catholic Marxist conspirators of ‘Operation Spectrum' were released. (Tang, 1989: 4 – 7; Frank, Markowitz, Mckay and Kenneth Roth, 1991: 5 – 99) Together with five other ex-detainees they issued a joint statement protesting their innocence in April 1988. Their release orders were summarily revoked and they were re-arrested on grounds that they still posed a security risk. The detainees then lodged an appeal under Habeus Corpus seeking to challenge the validity of their detention. The Court of Appeal held in favour of the detainees that the Minister had not demonstrated sufficient grounds to order the re-arrests. By deciding in favour of the appellants, the Court of Appeal demonstrated that it was not only questioning an Executive decision, but also that it did not agree with that decision. (Yee; Ho; Seng, 1989: 93 – 97)
The Government reacted swiftly by amending both the Constitution and the ISA to exclude judicial review on decisions relating to preventive detentions under the ISA. By doing so, the ISA and all matters pertaining to national security, has become the exclusive purview of the Executive. In this way, the ISA binds Singapore's national security to the survival of the PAP regime, and as such, the wide powers granted to the Executive by the Act have been jealously guarded ever since. (Tan, 2004: 71; Hor, 2002: 42)
The ISA as Supra-legislation & Existing Safeguards
A closer reading of Article 149 of the Singapore Constitution suggests that the ISA should not be interpreted as a normal Act of Parliament. Measures set out in the Act to deal with offences prejudicial to national security, such as preventive detention, supersede considerations of fundamental liberties guaranteed by the Constitution under Sections 9, 11, 12, 13, and 14. In a 1977 interview with the Times , Singapore's former Prime Minister, Lee Kuan Yew, argued that developing states (as was Singapore's status at that time) had to sacrifice certain liberties for the sake of development and security priorities. (Lee, 1977)
The apparent marginalisation of civil liberties with regards to national security legislation, coupled with the fact that it is not under judicial control, places the ISA in a category beyond normal legislation. Regular judicial processes and safeguards that could be applied to preventive detention cases are severely limited. As a result, arguments have been raised that detention under the ISA invariably leads to human-rights infringements. In particular, human rights advocates have expressed concerns about a detainee's ability to obtain recourse against wrongful detention and his/her protection against ill treatment during detention. (Amnesty International, 1988)
Section 9 (18) of the ISA and Section 151 of the Constitution describes the current safeguards aimed at addressing those concerns. Briefly, a detainee may engage legal counsel to appeal his/her detention to an Advisory Board. The Board considers the representations and is free to make further investigations to assist in its deliberations. The Board's recommendation to either continue with or cease the detention is made to the President of Singapore. The detention only continues if the President concurs with the recommendations of the Board. Should detention continue, the Board is required to undertake an annual review of the case and make further recommendations.
To prevent the physical assault of detainees, a doctor is present before and after each interview session to examine the detainee. The examinations are recorded and complaints of the detainee are noted on his/her medical sheet. Discoveries of physical abuse are reported and investigations are subsequently carried out. Furthermore, a Board of Inspection may be convened to make unscheduled inspections to ascertain the well being of detainees.
The existence of these safeguards has not decreased demands from civil society groups, opposition parties, ex-detainees and human rights groups about the imperative to either abolish the Act or make major amendments to it. ( Agence France Presse , 2002; South China Morning Post, 1998) However, in the wake of September 11, the terrorist bombings in Indonesia and the arrests of several Jemaah Islamiyah (JI) operatives in Singapore, the ISA gained a renewed importance in the global “War Against Terrorism”.
War on Terrorism & New Anti-Terrorism Legislation
Following the September 11 attacks, governments around the world, and in particular, major western democracies, rushed to enact and/or enhance their anti-terrorism legislation. The common features evident in these anti-terrorism laws included: 1) a concentration and expansion of power in the Executive arm of government; 2) an erosion of political and civil liberties; 3) a weakening of current judicial procedures; and 4) a focus on pre-emptive action against suspected terrorists. (Hocking , 2003: 355; Barker, 2003: 556) Moreover, detention without trial (or preventive detention) was advocated as a means to enhance the powers of security agencies, to enable them to pre-emptively move against suspected terrorists. These characteristics made global anti-terrorism legislation similar to Singapore's Internal Security Act. To illustrate this point, the USA Patriot Act (2001), and the Australian Security Intelligence Organization [ASIO] Amendment (Terrorism) Act (2003), will be briefly examined.
Preventive Detention under the USA Patriot Act (2003) and Australian Security Intelligence Organization [ASIO] Amendment (Terrorism) Act 2003
Under Section 412 of the USA Patriot Act, a non-citizen may be detained if the Attorney General has “reasonable grounds to believe” that the suspect is or has been involved in terrorist activity. The detention may last for seven days without a formal charge. A person, who is defined as a terrorist in Section 411 of the Act, is subject to indefinite detention regardless of whether he/she has in fact committed an act of terrorism or engaged in terrorist activity. Thus suspected terrorists with immigration or criminal offences will be held in detention until the Attorney General determines that he/she is no longer a terrorist or he/she is deported from the country. (Chang, 2002: 64)
The Attorney General is not compelled to provide the detainee with evidence supporting his/her detention or to grant an opportunity for the detainee to contest the evidence through administrative review procedures. The detainee's only recourse is to submit a writ of Habeas Corpus to the Supreme Court, a federal district court or the Court of Appeals, to seek his/her release from detention. Judicial review of the case occurs only when the writ of Habeas Corpus is filed and not before.
Like the USA Patriot Act, the arrest and detention of a person suspected of engaging in terrorist activities under the ASIO Amendment (Terrorism) Act, is based on the Attorney General's subjective satisfaction that there are “reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence important in relation to a terrorism offence.” A warrant may also be granted if the Attorney General is reasonably satisfied that “if the person is not immediately taken into custody and detained, the person: ( i) may alert a person involved in a terrorism offence that the offence is being investigated; or (ii) may not appear before the prescribed authority; or (iii) may destroy, damage or alter a record or thing the person may be requested in accordance with the warrant to produce.” The period of initial detention for questioning may last up to 24 hours but the person may be detained for 168 hours if necessary.
A detainee may seek a federal court remedy against his/her detention and has the right to make a complaint against ASIO or the Federal Police. To ensure all detainees are treated with dignity and respect and not subject to cruel, inhuman or degrading treatment as pursuant to the Act, all interrogations are videotaped. A detainee has limited access to legal representation and can be held incommunicado from family and friends while in custody or detention.
The Australian government has recently moved to further strengthen its anti-terrorism laws by increasing the powers of security agencies to “stop, question, and search” terrorist suspects. It is also attempting to introduce “a new preventative detention regime that allows detention for up to 48 hours in a terrorism situation.(Office of the Prime Minister, 2005) The proposed changes effectively allow ASIO to detain suspects not only for the purposes of gathering intelligence (as is the objective of the current ASIO Act), but also to prevent him/her from perpetrating a terrorist act.
Criticisms of Anti-Terrorism Legislation
On a practical level, critics have argued that safeguards in anti-terrorism legislation, such as judicial review, are easily circumvented, thereby providing no actual redress for wrongful detention, and places government agents “beyond the reach of law.” (Hocking, 2003: 366; Chang, 2002: 65 - 66; Asia Pacific Human Rights Network, 2004) Moreover, fears were expressed that by framing anti-terrorism legislation in broad and arbitrary terms, the curtailment of legitimate political dissent under the pretext of combating a terrorist threat, would inevitably ensue. (Rogers; Ricketts, 2002: 150; Samydorai, 2003: 223 – 224) In Asia, human rights advocates were particularly alarmed, as national security laws had been used in the past to crush political dissent. (Samydorai, 2003: 223) As Somchai Homloar of Forum Asia , a human rights group, warned:
If states in this region [Asia] are allowed to continue to use internal security laws to stifle political opposition and dissent, then human rights standards will break down, and the fragile democracy standards of Asia will break down with them. (Homloar, 2003: 81)
On an ideological level, the utilisation of preventive detention in particular, as prescribed in the various anti-terrorism laws, directly contravenes civil liberties and human rights. Human rights advocates, such as Nancy Baker, fear that a trend will develop in which civil liberties will increasingly be sacrificed for the sake of national security. (Barker, 2003: 563) This, as Barker argues, is because governments in the post-September 11 environment are treating civil liberties as security flaws, rather than as fundamental rights. As such, the curtailment of civil liberties is tantamount to rectifying a security flaw, and not perceived as an erosion of human rights. A further erosion of civil liberties is thus likely to occur, when governments seek to rectify other shortcomings in their security strategies.
Despite such criticisms, the enactment of anti-terrorism legislation as part of the global “War on Terrorism”, has underscored a tacit acceptance of the need to sacrifice civil liberties for the sake of national security. (Lewis, 2005: 26; Hocking, 2003: 356) Politicians have been quick to dismiss arguments about the loss of civil liberties. And have responded defensively by portraying such arguments as contributing to the “Climate of Fear”, that has already been perpetuated by terrorist attacks. As US Attorney-General John Ashcroft argues:
To those who scare peace-loving people with phantoms of lost liberties, my message is this: Your tactics only aid terrorists – for they erode out national unity and diminish our resolve… (Ashcroft, 2001)
The sacrifice of civil liberties, in return for a more secure environment, has generated much international interest and debate. However, what seemed like a new phenomena to western democracies, was already common in the Singapore context. (Ramraj, 2002: 1) Despite domestic and even international criticism that the ISA severely contravened civil liberties, the PAP government refused to abolish the Act; often citing national security considerations as the basis of its refusal. (Smith, 2000) The government's retention of the ISA was vindicated in light of global anti-terrorism legislation that mirrored the Act. As Michael Hor remarked, “Has the rest of the world come to appreciate Singapore's position?” (Hor, 2002: 31) Notwithstanding, the PAP made attempts to recast the ISA as a crucial anti-terrorism legislation that played a significant part in Singapore's defence strategy.
Recasting the Internal Security Act
ISA & the JI Arrests
The new security environment, brought about by the September 11 attacks, and the consequent US-led “War on Terrorism”, provided an opportunity for Singapore's ISA to gain a new lease on life. In December 2001, August 2002, and January 2004, the Internal Security Department (ISD) arrested and detained 37 people in connection with terrorist activities. (White Paper, 2003; Nirmala, 2004) Most of the detainees belonged to the local cell of the Jemaah Islamiyah (JI) group. According to authorities, the JI's prime objective was to create an Islamic state in the region through the use of violence. To accomplish this end, the JI forged links with other Southeast Asian militant groups, such as the Moro Islamic Liberation Front (MILF), and even established connections with Osama Bin Laden's Al-Qaeda . Smaller cells with specific responsibilities were subsequently set up in Malaysia, Indonesia, the Philippines and Singapore. (White Paper, 2003: 6 – 9) The Singapore cell was established as an operational unit tasked with planning and coordinating attacks against Western interests in Singapore. (Abuza, 2002: 456 – 457) Investigations revealed that the cell was planning to attack American establishments, such as the US embassy, naval installation, commercial buildings, and the Yishun substation, where US armed forces personnel frequented. (White Paper, 2003: 11 – 14) Furthermore, the cell was contemplating attacking local targets, such as the Singapore-Malaysia water pipeline, the Changi international airport, the Ministry of Defence and other establishments. (White Paper, 2003: 30 – 31)
Following the JI arrests, local politicians and academics were quick to predict the resilience of regional terrorist organizations, despite ongoing efforts to eradicate them. (Wong, 2004; Singh, 2002: 6; Latif, 2002) Moreover, they pointed out that Singapore had become a prime target for terrorist aggression. For example, in a 2002 interview, Minister Mentor Lee Kuan Yew, warned that the threat from terrorism would continue for at least a decade. (Baker, 2002) In 2004 the Deputy Prime Minster Tony Tan and the Home Affairs Minister Wong Kan Seng, made similar appraisals of the threat of terrorism, cautioning that “we [Singapore] have to be constantly on our guard.” (Ramesh, 2004; Ahmad, 2004) These assessments were given further credibility in the wake of the JI attacks in Indonesia on two Bali nightclubs (2002), the Marriott hotel in Jakarta (2003), the Australian Embassy (2004), and a Bali shopping strip (2005). (Ramarkrishna, 2004: 54; Agence France Presse, 2002; Wroe, 2003; Mapes; Wagstaff; Hindryati, 2004; Quijano; Hiscock; Aglionby; Ressa, 2005)
Threat assessments, the JI attacks in neighbouring Indonesia, added security measures, and increased government spending on defence, have collectively contributed to the “Climate of Fear” that has tacitly pervaded the city-state. (Lee, 2004; Ho; Pardesi, 2004; Chia, 2002; Ibrahim, 2002) It is in this setting that the justification for retaining the ISA, as an integral part of Singapore's defence strategy against terrorism, was successfully achieved. By empowering the ISD to pre-emptively move against the local JI cell, the ISA was purported as having indirectly prevented the perpetration of the planned attacks. (Straits Times, 2002; Agence France Presse, 2002) To further strengthen its arguments for retaining the ISA, the Singapore government undertook a promotion campaign designed to recast the ISA as a vital tool to combat terrorism. (Rodan; Hewison, 2004: 13)
Direct Promotion of the ISA and ISD
The ISA and the ISD had always evoked a sense of terror in the past. Indefinite detention, maltreatment, physical and mental abuse, and public humiliation were commonly associated with the law as well as the department. (Tremewan, 1994: 202) In an effort to dispel these negative perceptions, the Ministry of Home Affairs launched a series of public awareness campaigns, which included the publication of two documents that provided detailed information on the JI arrests, the ISA and the ISD. ( Agence France Presse , 2002; The Straits Times, 2002; The Straits Times, 2003) The publications were also complemented with other initiatives that were designed to raise the profile of the ISD, including the removal of the veil of secrecy that surrounded the inner workings of the department. (The Straits Times, 2000) For instance, the ISD Heritage Centre was commissioned to “showcase the operational history of the department”. (Internal Security Department website) And although the centre was a designated training facility for ISD officers, members of the public were allowed to view the displays and exhibits. (The Straits Times, 2003) A smaller version of the Heritage Centre exhibits was also set up in schools and community centres. (Koh, 2003) ISD officers were present at these exhibitions to respond to public queries. Also, ISD officer promotion ceremonies, that had in the past, been conducted internally, were celebrated in public venues, such as hotels. (The Straits Times, 2002)
The government's direct promotion of the ISA and ISD, was an attempt to distinguish its use of the law and the department from textbook authoritarian and dictatorial regimes. (Barros, 2003: 190 – 191) As such regimes were notorious for abusing security apparatuses to secure their political longevity, it was envisaged that through the exhibitions and promotional materials, the Singapore Government could underscore that its use of the ISA and ISD were only to combat actual security threats. This would presumably legitimise the government's continued reliance on the ISA and ISD to ensure both the survival of the state, as well as, the regime. For example, Home Affairs Minster Wong Kan Seng argued:
Some people continue to be critical about the Internal Security Act. But for most Singaporeans today, they now know the value of the ISA. For the sceptics, I would tell them that without the ISA and ISD, and indeed the Home Team agencies, they would not have enjoyed this sense of safety and security today. Indeed, it is because of the Home Team that Singaporeans can sleep well at night, in the comfort that there are thousands of Home Team officers keeping watch for them. (Wong, 2003)
Indirectly Promoting the ISA: The Economic Dimension
As Singapore's economic growth and development has always been “couched in terms of survival and security”, the economic dimension of the “War on Terrorism”, enabled the government to indirectly promote the ISA. (Tan, 2004: 72) Linking terrorism, and in particular the JI arrests, to the economy in a “trade-security nexus”, was a recurrent theme in many ministerial speeches. (Rodan; Hewison, 2004: 9) For instance, former Prime Minister Goh Chock Tong, noted:
The JI episode is a threat to our economy. Foreign investors might become worried about the safety of their investments. And if Changi Airport and Jurong Island had been attacked, that would have done actual harm to our economic interests. If foreign investors keep away from Singapore, there would be fewer jobs for Singaporeans. Our livelihood would be affected. (Goh, 2002a)
Implicit in such statements was the necessity for the Singapore government to maintain order and political stability through the ISA, to ensure that Singapore continued to reap economic benefits. (Tan, 2004: 72) This argument was validated through the conclusion of a Free Trade Agreement between Singapore and the United States in 2002, which had resulted from Singapore's assistance to US anti-terrorism efforts.
The US-Singapore Free Trade Agreement (USSFTA) was perceived as a reward for the city-state's unequivocal support for the US in the “old” and “new” security environments. (Mitton, 2003) The Republic had in the past granted the US access to military facilities, was fervently supportive of the US-led War in Afghanistan and Iraq, and was instrumental in preventing the JI attack on American interests. (Rodan; Hewison, 2004: 10 – 11; Ker, 2003; Mitton, 2003) In light of these actions, US Congressmen Pete Sessions affirmed:
Singapore supported us not only on the day of the terrorist attacks, but has since been very involved in our war on terror…Countries which are our friends are those who will continue to reap the rewards of a closer relationship. (Washington, 2003)
The Chairman of the American Chamber of Commerce, Kirstin Paulson, similarly echoed the Congressman's remarks:
Singapore has also been one of America's key partners in Asia, providing access and logistical support for the US Navy and US Air Force. The nation and its government have played a vital role in the war against terrorism, and have actively worked to ensure the security of American interests and of IS citizens and their families living in Singapore. The USSFTA presents an opportunity for the United States and Singapore to further cement the friendship and strategic partnership, which exists between the two nations. (Paulson , 2003: 8- 9)
The advantages to Singapore stemming from the USSFTA were both economic and strategic. (Koh, 2003: 3) In economic terms, the USSFTA would reduce the initial amount of Singapore's export tariffs by 92% with further reductions made in subsequent years. All impediments to e-commerce would be removed and service providers would be granted access to both federal and state governments. (Washington, 2003) The overall profits accruing to Singapore companies from such measures were predicted at S$200 million.
Strategically, the Singapore government was anxious to “entrench the US presence” in the region to ensure the continued security and stability of Southeast Asia. (Mitton, 2003; Hadar, 2002) It was envisaged that bilateral cooperation between the two countries would be enhanced in terms of “counter-terrorism, counter-proliferation of weapons of mass destruction, joint military exercises and training, policy dialogues and defence technology.” (Acharya, 2004: 4; Rodan; Hewison, 2004: 11)
In short, linking strategic, social and economic benefits to the Singapore Government's “War on Terror”, enabled the PAP to allude to the ISA as having indirectly facilitated these benefits. Furthermore the US, a once ardent critic of the ISA, had expressed its support for the Government's use of the Act to neutralise the local JI cell. (Sunday Times, 2002) As Richard Boucher a spokesman for the US State Department noted: “We're cooperating very closely with the Singaporean authorities. We welcome the active engagement that Singapore is taking against terrorism, and we've applauded the arrests that they've made in these matters.”(Channel News Asia, 2002) Such support has provided a measure of international legitimacy of the government's use of the ISA.
The recasting of the ISA, as an effective weapon against terrorism, lent credence to the government's argument that the ISA was still relevant and should not be abolished. Some opposition politicians even recanted their former objections to the PAP's use of the ISA. For example, Chiam See Tong of the Singapore Democratic Alliance (SDA), noted:
My party, the Singapore Democratic Alliance (SDA), welcomes the Government's decision to introduce the White Paper on the JI detentions. The White Paper provides the factual background to the detentions and show how appropriate the Internal Security Act is in dealing with threats to national security. (Chiam, 2001)
Notwithstanding, human rights advocates and other opposition parties have continued to remain sceptical about the ISA, citing human rights abuse as the main reason for their criticisms. (Agence France Presse, 2004)
Implications for Human Rights
While the issue of human rights remains paramount to any discussion regarding the ISA, the new security environment has effectively weakened such arguments. The spectre of international terrorism has vindicated the use of harsh national security legislation by governments, and drowned out demands for such legislation to be abolished based solely on human rights concerns. (De Castro, 2005: 229) It cannot be expected that non-democratic governments would have any incentive to abolish national security laws, since liberal democracies have themselves, enacted anti-terrorism legislation that contravenes human rights in some way. Hence, it is clear that draconian anti-terrorism laws will be a feature of both Western democracies, as well as neo-authoritarian Asian states in the foreseeable future. If so, then the current strategy of human rights advocates, that is, to strenuously demand the abolition of anti-terrorism legislation, will be futile. As such, human rights advocates should amend their strategies according to this new reality.
As an alternative strategy, human rights advocates, Michael Ignatieff and Brad Adams, have proposed that universal human rights in disenfranchised societies should be promoted more actively, such that “strong civil societies and viable states” can be established. (Ignatieff, 2002; Adams, 2003) Ignatieff and Adams contend that as the root causes of terrorism stem from impoverishment and repression, human rights protections and civil society institutions should be developed and enhanced, to prevent “extremist violence.” (Adams: 2003) It is envisaged that by addressing the root causes of terrorism, terrorism can be slowly eradicated, which would ultimately the remove necessity for anti-terrorism legislation. The proposal by Ignatieff and Adams while provocative is, at best, a long-term solution. At this juncture, it still remains imperative to find solutions as to how abuse of current anti-terrorism legislation can be minimised.
Conclusion: Singapore's Internal Security Act as an Anti-Terrorism Law – Inherent Limitations and Concerns
The “New Security Environment” has enabled the Singapore Government to recast the ISA as an integral tool to defend the state against terrorist, as well as all other threats to national security. Although the JI arrests did not seem to provoke much public opposition, and was supported by the US, the ISA still remains susceptible to misuse.
The inherent limitation of the Act is the absence of a clear definition of what constitutes a national security threat. (Chua, 2004: 84) The Singapore government has defended the Act as “a critical legal instrument of last resort to counter security threats such as racial and religious extremism, espionage, terrorism and subversion” and is “not used to suppress political opposition but to counter extremist groups or radical groups that threaten Singapore's internal security or do harm to our people.” (Menon, 2002) However, with the exception of terrorism [defined in the United Nations (Anti-terrorism Measures) Regulations 2001], other forms of national security threats, such as subversion, espionage, extremism and so on, have not been explicitly defined either within the ISA or in other corresponding regulations/legislation. As threats to national security remain in definitional ambiguity, the responsibility for defining national security threats continue to fall within the purview of the Executive. This allows the Executive leeway to interpret certain forms of political dissent as excessively confrontational or adversarial, and therefore, such dissidents could fall within the category of national security threats, and liable for detention under the ISA.
As the safeguard of Judicial Review on Executive decisions to order preventive detention has been absent since 1989, this eliminates any legislative recourse for individuals who may have been wrongfully detained. And although the Advisory Board review exists to prevent wrongful detention, the process itself has limitations. For example, the Board cannot secure a detainee's release without the consent of the President and the Cabinet. Moreover, as the ISA is the foremost legislation that defends Singapore from threats to national security, and since national security is tied with the preservation of the regime, the ISA, in actuality, becomes a law that defends the PAP government. In the absence of explicit definitions of national security threats, the PAP government's use of preventive detention under the ISA will continue to evoke apprehension, as it remains a subjective Executive decision, with all the consequences that implies.
For example, the Hong Kong- based Political and Economic Risk Consultancy (PERC) has reported that foreign investors perceive that Singapore has “one of the most user-friendly legal and judicial systems in Asia.” (The Straits Times, 1995)
According to Malcolm Dowling, “While the (Singapore's) financial sector and international trade were adversely affected by the Asian crisis in the last quarter of the year, the economy as a whole performed well, led by strong electronics exports. Foreign direct investment in high technology industries continues to flow in, price stability has been maintained and the saving rate is still among the highest in the world. Efforts are also being made to widen the industrial base that depends heavily on heavy chemical and electronics. The Singapore dollar depreciated with most other currencies in the region during the fourth quarter but it remained one of the strongest in the region. Nevertheless industrial productivity and international competitiveness have been maintained.” See Malcolm Dowling, ‘Asia and the Pacific', International Financial Law Review: Banking Yearbook 1998 , (July 1998), p. 21.
It is assumed that the evidentiary materials, supplied by the investigating department (the Internal Security Department [ISD]) to the Executive to assist it in its decisions, are devoid of personal considerations or unsubstantiated facts. (Rawlings, 1983: 337)
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.
See Article 149 Const. S. (3) If, in respect of any proceedings whether instituted before or after 27th January 1989, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause.
S 8B. ISA —(1) Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply.
(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.
149. -- (1) If an Act recites that action has been taken or threatened by any substantial body of persons, whether inside or outside Singapore —
(a) to cause, or to cause a substantial number of citizens to fear, organised violence against persons or property;
(b) to excite disaffection against the President or the Government;
(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence;
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the security of Singapore,
any provision of that law designed to stop or prevent that action or any amendment to that law or any provision in any law enacted under clause (3) is valid notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14, or would, apart from this Article, be outside the legislative power of Parliament.
(2) A law containing such a recital as is mentioned in clause (1) shall, if not sooner repealed, cease to have effect if a resolution is passed by Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.
(3) If, in respect of any proceedings whether instituted before or after 27th January 1989, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause.
See Article 9: Liberty of a Person, 11: Protection against retrospective criminal laws and repeated trials, 12: Equal Protection, 13: Prohibition of banishment and freedom of movement 14: Freedom of speech, assembly and association.
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