Open letter to Teo Chee Hean on ISA safeguards

by Teo Soh Lung

My last response to Minister Teo Chee Hean’s speech in parliament that was reported in The Straits Times of 20 October 2011 was made on 9 November 2011. The sub-title to that reply was Making use of the Church and it drew a number of pretty angry comments. In between then and now, I was somehow distracted by other issues. The news-cuttings of Minister Teo’s memorable speech however, has not been misplaced all these months. It has suffered some severe damage under the claws of my cat, Angel though. She was probably more angry at the speech than me!

As the 25 anniversary of the 1987 arrest of “Marxist conspirators” approaches, I want to demolish once and for all Minister Teo’s specious assurance that there are sufficient safeguards under the ISA. These safeguards are summarised in The Straits Times at page A33 and I shall deal with them in the order set out by its writer or editors.

Only 30 days

The first safeguard is that a person can only be held for 30 days after which the minister or rather the cabinet have to decide if he or she should be issued the Order of Detention for a maximum of two years, renewable at the end of the period or released unconditionally or be subjected to a Restriction Order i.e. subject to conditions, such as restriction of movement or association.

I want to emphasise that 30 days in a prison cell or in a freezing cold room is not 30 days spent in one’s own house. Try putting the minister in a freezing cold room with two spotlights shining into his eyes. He is a military man and he should be able to take the cold better than me. Let him wear the prison garb of cotton top and trousers without his underwear. Make him stand 50 hours out of 72 hours in that room and subject him to continuous interrogation. Let ISD officers shout at him and tell him that everything he said are lies and that he is just good at telling fairy tales. Deprive him of sleep for just three days and nights.

If the minister survives these 72 hours (ISD officers don’t even need to lay hands on him) without making and signing a false statement, then he has my greatest admiration and respect.

From my experience and the experience of my friends, no one can survive three days and nights of continuous interrogation in a cold room in the basement of Whitley Detention Centre. From his account in To catch a Tartar, Mr Francis Seow, the former Solicitor-General could not too. I can say with confidence that even the director of ISD will not be able to withstand 72 hours of continuous interrogation in that cold room. Anyone in Singapore who can survive such treatment without writing a false statement, must either be a hardcore criminal or an imbecile who cannot write a statement no matter how he is threatened.

The cold room treatment is not the only experience all ISA detainees go through. For nearly a week, none of us was allowed contact with the outside world. On the sixth day, two family members were allowed to visit us. Imagine the panic caused to our families when they discover their children, spouses, brothers and sisters missing for 6 long days in a first world country. In this regard, ISA prisoners are accorded treatment worse than ordinary criminals for the latter are at least allowed to be produced in court within 48 hours and family members are informed of their whereabouts by the police.

30 days for ISD officers to investigate a conspiracy or fabricate a conspiracy is a long time. I thought we have the brightest scholars working in the ISD? Why do they need 30 days to decide whether to detain a prisoner or release him? Surely by the end of three days, they would have completed their investigation and either slam the order of detention on them or release them. Why do they need to fully utilise the 30 days allowed by the law? Is it to unnecessarily punish the innocent prisoner or is it because they are so inefficient or so daft that they cannot complete their investigation?

But if they are not able to complete their investigation, how is it that they could produce a script for detainees to appear on state television three weeks after our arrest? Shouldn’t they be putting all their attention on investigating our “crimes” rather than turn us into television stars? Worse, we or at least I was told that if I didn’t appear on television, they would “throw away the key,” meaning I would languish in jail for a very long time.

I shall pause here and continue at a later date because I feel sick remembering what 30 days mean to an ISA detainee. The ISA in allowing a person to be detained for 30 days is not providing him with any safeguard. Rather, the law in allowing 30 days for investigation is granting ISD officers and the government more than adequate time to fabricate a story for public consumption, to instil fear in them and to unnecessarily punish and intimidate a detainee.

Judicial review of preventive detention

by Teo Soh Lung

An excerpt of Chief Justice Chan Sek Keong’s lecture delivered at the Rule of Law Symposium on 15 February 2012 was published in TODAY on 21 February 2012. At least three friends drew my attention to the article that morning because my case was cited in the speech. I was not particularly interested in the speech but read it when I was given a copy. Perhaps because it was just an excerpt, I didn’t find it particularly noteworthy, except for the fact that it was probably the first time my case was mentioned in the press after more than 20 years.

The Chief Justice in disagreeing with the interpretation of some academics who expressed the view that there is no judicial review in preventive detention said: “But Teo’s appeal … was dismissed on the ground that she had failed to discharge the burden of proving that her re-detention was not based on national security considerations.”

What then is the burden of proof on a ISA prisoner? Having attempted to get out of prison through four rounds of litigation, I can confirm that the burden is very, very heavy and I would not encourage anyone to take the same course unless he is prepared not to succeed. Even with simple facts and the best lawyers, as were the facts and lawyers who acted for me, I did not succeed. I have set out in detail the obstacles I faced in my book, Beyond the Blue Gate, Recollections of a Political Prisoner and I will not repeat what I said there.

It is interesting that there was a symposium to discuss the rule of law two decades after my case was decided. During those two decades, 79 people have been detained under the ISA but none of the detainee had challenged the legality of their imprisonment. The lesson learnt from my case had probably sunk so deep that no one had thought it wise to attempt what I did!

As of today, there are at least 19 people who are still in prison under the ISA. At least eight of them have been in prison for ten years or more. We know nothing about these prisoners. The Advisory Board which periodically review their plight do not tell us why these eight continue to be in prison. The Justices of Peace who visit them have also said nothing. So we remain ignorant of the plight of these unknown men who we are told by the Minister for Home Affairs, are all Muslims. Will they one day in the future, try to clear their names, like the 1987 “Marxist conspirators” are trying to do 25 years after the event? I don’t know.

Coming back to the subject of judicial review and the rule of law. What is the burden that a prisoner must discharge before he can succeed in persuading the courts to free him? Let me discuss this subject with reference to the facts in my case.

When I was first arrested on 21 May 1987, the government alleged that I was a ”Marxist conspirator”, whatever that term meant. A decade earlier, in 1977, those arrested were called “Euro-communists”. The PAP government are masters at crafting names that instil great fear in law abiding citizens.

I was accused of being a participant in a conspiracy to overthrow the government using “communist united front tactics”. Again, whatever that meant, only the PAP can clarify. I didn't know the meaning of "communist united front tactics" when I first read the grounds of detention and asked my case officer what it was all about. He was taken aback by my question. Until today, I still do not know what the term refers to. It may be clear to historians who are in the habit of writing PAP history but not those who question if there was indeed such a tactic.

I was released a few months after but in April 1988, together with eight others, I issued a joint statement denying the government’s allegations of a conspiracy and confirming that we were subjected to physical and mental abuse. The next day, we were rearrested.

I took out an application for habeas corpus soon after. Both Lord Lester QC and the Late Lord Alexander QC were optimistic that I would succeed because the reason for my rearrest was so clearly related to the issue of the joint statement, which was of course, an exercise of free speech. Between the date I was released and the date of my rearrest, Singapore enjoyed great peace as was the case even before my arrest. There was not even a peaceful protest on the street. I was back in legal practice trying to make a decent living during those months.

In December 1988, the court of appeal which comprised the Chief Justice and two other judges refused to adjudicate on the facts of my case. It ruled that the government did not comply with a technicality (which technicality was not even argued by my lawyers) and ordered my release together with my three friends. The appeal judges talked about the importance of judicial review and the rule of law but refused to make a ruling on the facts of my case. Needless to say, I was completely shattered shortly after because I was rearrested immediately after being tricked out of the prison gate.

The government then proceeded to amend the ISA and the Constitution. The intention of the amendments was clear to me – that the government would not tolerate judicial review and would have nothing to do with the rule of law, at least in ISA cases. It said so through the Public Prosecutor, Mr Tiwari : “The expression ‘rule of law’ has no defined or definable content and it would be wrong for judges to defeat the clear intent of Parliament by reference to such vague concepts…”

If the courts had wanted to protect their judicial power, it could have done so by agreeing with Lord Lester’s submission that parliament had no power to amend the Constitution in a manner which violates its basic structure by usurping judicial power which is vested solely in the judiciary. The courts for reasons that I will never know, failed to do so. By failing to do so, I can only assume that it did not want to retain such power, at least in ISA cases and would prefer the government to have a free hand. The government was of course happy to have judicial power. In October 2011, Deputy Prime Minister, Teo Chee Hean said:

“…giving the final say on what constitutes a serious threat to national security to a judge would in effect mean that the judge rather than the Government becomes responsible for, and answerable for decisions affecting the national security of Singapore.

In Singapore, this responsibility and accountability to act to protect national security is placed in the hands of the Government…” (ST 20 Oct 2011).

Would more symposiums and dialogues on the rule of law be of any use for the future. Simon Chesterman, the dean of the National University of Singapore Faculty of Law seemed to think so. (ST 22 Feb 2012). Maybe. More discussions may clarify what judicial review and the rule of law is all about and give courage to whoever needs to make a bold decision. But will such an opportunity arise?

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Judges do justice, not politics: CJ Chan : Straits Times

A judicial view of preventive detention by Chief Justice Chan Sek Keong

Video : The Price of Freedom in Singapore

"I believe, with history as our guide, our people will be free one day," says political exile Francis Khoo is this rare clip from the BBC made presumably in the late 70s.




For the record, the following:

The local journalist mentioned at the start of the clip was probably Ho Kwon Ping.

A memorial for Francis Khoo was held in Singapore last week. In attendance was his wife Dr Ang Swee Chai, whom the Government gave permission to re-enter the country after 35 years in exile with her husband. Dr Ang also gave two public talks at SGH and NUH before she left for Britain on Sunday.

The Vanda Miss Joaquim was selected as Singapore's national flower in 1981, after the broadcast of this clip.

On Dr Toh Chin Chye

by Dr Poh Soo Kai

Dr. Toh was an anti-colonial student in his London days at the Malayan Forum.  Upon his return to the University of Malaya as a lecturer in physiology, he was one of a handful of anti-colonial members of the academic staff.  Because he came to know John Eber in London, John wired through him a cable to the University Socialist Club (USC) offering the free legal service of D. N. Pritt, Q.C. for the defence of the Fajar Sedition Trial. 

When David Marshall was in London for the first constitutional talk, he pushed on the question of independence for Singapore.  As a result, the talks floundered in the face of British reluctance.  Some members of the USC approached Dr. Toh, then chairman of the PAP, to issue a press statement in support of David Marshall’s stand. He very willingly and happily agreed. We appreciate his anti-colonial stand and his genuine show of solidarity.

Many have lauded him as a politician with democratic principles and courage to match. Some have even praised him for fighting against “elitism” and cited it as the reason for his fall from grace.

However we should examine his political life in more detail. 

Was he a politician who consistently upheld democratic principles?  His subsequent actions do not substantiate this claim.  In mid 1961, on the eve of the Anson by-election, six unionists of the left wing of the PAP issued a press release calling for the PAP leadership to end arbitrary arrests and release all detainees, lift all restrictions on the freedom and rights of the people, as well as put an end to the obstruction placed in the way of trade union unification.  The press release further invited the PAP leadership to grant the right of citizenship and franchise to all those loyal to the anti-colonial struggle and allow freedom of the press, speech, assembly and organization.  In brief, the statement called for the repeal of the draconian, totally undemocratic laws under the PPSO (today renamed the ISA). 

What was Dr. Toh’s “democratic” response?  This is history.  His anti-colonial sentiment evaporated into thin air.  He sided with our colonial masters.

This is what the London archives noted (F.O 1091/104. p.136, para 3).  The Assistant High Commissioner, Mr. P.B.C. Moore on 5 June 1961 reported:

“I asked him (LKY), therefore, what he proposed to do about the six’s statement, and whether they would be allowed to speak on the PAP platform at Anson.  To this he replied, rather surprisingly that the moment might well have come to break with Lim and Co.  I said that we had always been very chary about advising him to break with what was probably the strongest political force in Singapore.”

And again on 1 June 1961, Moore wrote, “Lee suggested that it was likely that after Anson, there would be a complete break with the six.”  (FO 1091/104, p.127 para 3)

On 11 April 1961, before PAP lost the Hong Lim by-election, the UK High Commissioner, Lord Selkirk reported:

“Lee showed at once he was concerned at the thought of having to face a general election in 1963.  If he had merger, could he avoid that election?  I said I thought he probably could, provided he went flat out for merger.”  (FO1091/104, p.150, para 3) 

On 28 June 1961 Lord Selkirk wrote:

“Lee Kuan Yew emphasized that he was anxious to have his breech with Lim Chin Siong on the subject of merger and not on the subject of the release of detainees.”  (FO 1091 / 104 p.3)

It can thus be surmised that the initiative for the breech with the left was with LKY.  The left wing was kicked out.  The left did not leave on its own volition as claimed by many.  The issue here is whether Dr. Toh Chin Chye, as the chairman of the party, could be without knowledge and responsibility?

Merger thus became the key issue.  What was Dr. Toh’s stand?  He was wholeheartedly for merger.  When Barisan Sosialis wanted the issue of our future debated and clarified in the Legislative Assembly, Dr. Toh as speaker suspended the Assembly indefinitely and was proud of his action.  Why did he deny the people of Singapore the right to know their future that is embodied in the terms of the merger?  Was it because the chairman of the PAP was, as he admitted in his interview with Melanie Chew (see “Leaders of Singapore”) that he was “in the dark” as to the terms of merger?  

On the PAP referendum of merger, he was happy to bluff and confuse the people of Singapore.  He admitted he could not understand the referendum drawn up by Lee Kuan Yew.  It was phony, but he was prepared to bamboozle his countrymen.  Think again, what sort of a man is that.

Suitability Certificate.  When the PAP with Dr. Toh as chairman introduced the suitability certificate, i.e., the security vetting of a student and his/her family’s background as a prerequisite for admission to the University of Singapore, the then Vice-Chancellor Dr. B.R. Sreenivasan had objected strenuously contending that the university would conduct no political vetting and students would be admitted on merit.  As a consequence, funds were withheld from the university and Dr. B.R. Sreenivasan, well regarded by academics around the world, was forced to resign.  In walked Dr. Toh Chin Chye, the PAP chairman, to take his place and implement the suitability certificate.  That speaks loudly of the type of “democratic” values he possessed.

Dr. Toh Chin Chye’s fight against “elitism”?  If there were ever a fight, it was not obvious.  At that time Lee Kuan Yew had wanted to put his hand-picked professionals and ex-civil servants as PAP Assembly members.  There was an understandable unhappiness among the PAP branch grass-root members, some with ambitions to become assemblypersons.  It was generally known that a small group, including Dr. Toh, Ong Pang Boon and Wee Toon Boon, was not in favour of this policy but they went no further, taking no steps to challenge LKY.  Nevertheless, LKY brood no dissent, and they were all dropped unceremoniously like hot potatoes. 

______________________________________________________________

"He was crying. I don't understand him at all." - Toh Chin Chye on Lee Kuan Yew

Excerpt of an interview with Dr Toh Chin Chye, published in 'Leaders of Singapore' by Melanie Chew, 1996

August 9, 1965

I remember that morning very clearly. In the morning, I wrote a letter to Tengku. He promptly replied in the afternoon.

I stayed behind (in Kuala Lumpur) and Lee came back to announce to the public in Singapore that Singapore had become independent. I stayed behind to clear up the mess. The Malaysian Parliament was meeting the next day. Lee Kuan Yew told me to go to the Parliament. Can you imagine the uproar? I had no chance to face the members of the Malaysian Solidarity Convention to break the news. Their support for Singapore came to nothing.

When Lee Kuan Yew got back to Singapore, he invited the members of the Convention to attend his press conference. He was crying. I don't understand him at all. On one hand, he worked so hard for merger. Having gotten the cupful, he shattered it. And then cried over it.

He held two successive press conferences, and in which both he cried. On the third morning I went to work, and saw the press boys again. I asked Lee Wei Ching, his press secretary, "Why are they hanging around here?" Another press conference! I told Lee Wei Ching, "You ought to tell the Prime Minister to go to Changi and take a rest. Call the press conference off! Another crying bout, and the people of Singapore will think the government is on its knees. So he went to Changi, staying at the government bungalow for six weeks.

One smart reporter noted this by going through Hansard. There was a big time gap in Hansard between our last parliamentary meeting and the next meeting. More than five months. One would have thought with such a big event, Parliament should be immediately summoned and the announcement made to Parliament. The opposition came at me. Why is there no Parliament sitting? So I had to hold the fort.

I was not appointed to act for him while he was away. When he went off to Changi, Parliament did not meet. So Singapore had a Parliament in suspended animation. Keng Swee and Lim Kim San saw me and asked me what was the constitutional position. Has he recovered? What if he does not recover? So what happens? I said I thought he was getting better, although I could not see him and telephone calls were not put through.

Q: So after the separation, you did not have Parliamentary meetings until December?

Parliament last met on June 16th, 1965 when Singapore was still in Malaysia, and recommenced only on December 8th, 1965 after we had left Malaysia.

Q: But the appearance of government was normal. The government was still carrying on. It seemed like business as usual.

Your point is taken. In a crisis there will be public spirited figures who will rise to the occasion, for better or worse.

Only the constitutional position was unclear, because according to the constitution it was the Yang di Pertuan Negara who appoints the Prime Minister, who in turn appoints the Cabinet. The constitutional position was not clear about an absent or an incapacitated Prime Minister, and Goh Keng Swee and Lim Kim San were both anxious.

Q: Mr Lee at that time was in a very emotional state?

Yes, he was. I knew he was. And was very worried for him. That is why I told Lee Wei Ching to call the press conference off.

Q: Was he in a very emotional state because he felt he had made a blunder?

You have to interview him on that. I cannot answer for him.

Q: Could his provocative speeches have been part of a deliberate strategy?

I do not know why he did that. But he was influenced by Alex Josey, who came from the Middle East where he had been a reporter. Josey fed him ideas about the Muslims. The "Mad Mullahs." The "Ultras." Lee used the term, "Mad Mullahs." This was Alex Josey's phrase. Alex Josey was his close friend, golfing friend and biographer.

Alex used to play golf with me. He was an operator. He used to pick me up as early as five a.m., because I had no one to play golf with at that time. He was an operator, feeding me stories of his experiences with the Arabs. I had suspicions about him. Now he's dead.

Q: Lee Kuan Yew asked the Tengku to write to you to explain that it was Tengku's decision to separate.

Yes, I think that was the purpose. To tell me that it was a decision made by the Tengku.

Q: Was it because he was afraid?

So the blame would be on the Tengku's shoulder. Not on our shoulders. The Tengku was far sighted. However desirable it was to continue as one country, we could not do so. He wrote, "We cannot avoid a bloodshed if we remain."

Tengku had been in charge of multi racial Malaya since 1957. He knew, better than any of us, what was possible and impossible. The 1969 riots in Kuala Lumpur proved him right."

Video : Dr Chia Thye Poh

Detained without trial by Lee Kuan Yew's government for 32 years, Dr Chia Thye Poh was the longest-serving political prisoner of Singapore. This video documents his first public appearance since his release in 1998.


Photo : Dr Lim Hock Siew quoted by the Straits Times. Full article here.