Thursday, April 12, 2012

Is the Advisory Board an ISA safeguard?

Updated March 2012:
1994 - 2012 : A chronology of authoritarian rule in Singapore.


( Part 8 of a series of open letters to DPM Teo Chee Hean from former ISA detainee Ms Teo Soh Lung)

by Teo Soh Lung

DPM Teo Chee Hean said that one of the safeguards provided by the ISA is the Advisory Board chaired by a Supreme Court judge. The judge sits with two other public servants.

The Straits Times summarised the power of the Board as follows:

“The AB (Advisory Board) has all the powers of a court of law to summon and examine witnesses, compel the production of documents and evidence it deems relevant, examine a detainee’s representations, as well as examine ISD officers and statements of witnesses. The AB considers the representation of the detainee within three months of the date of his OD (Order of Detention) and makes its recommendation to the President.”

The report further states that “The AB is required to review every OD and RO (Restriction Order) at intervals of no more than 12 months. A number of detainees have been released from their OD earlier on the AB’s recommendation.”

The last sentence of the above summary is intriguing. It fails to inform how many of the thousands of detainees were released on the Board’s recommendations. It also fails to inform that representations to the Board are heard behind closed doors and what takes place behind these doors can be quite interesting.
Having appeared thrice before the Board, I think I am qualified to write about these clandestine proceedings. Incidentally, I must be the only detainee who appeared three times before the Board. I would have appeared before the Board a fourth time had it not been for the fact that my faith in the Board had completely vanished by that time! Three appearances before the Board must be a record in the entire history of the ISA. I understand that only a very small number of detainees in the 1960s and 1970s attend before the Board because they felt it was all a show since the Board’s power is merely to recommend. The Board then and now, has only the power to recommend its findings to the head of state.

A brief history of the Advisory Board

In 1955 when the PPSO (Preservation of Public Security Ordinance, the predecessor of the ISA and the successor of the Emergency Regulations Ordinance, 1948) was enacted by the coalition government of the Singapore Labour Front and the Singapore Alliance, David Marshall as the first Chief Minister ensured the inclusion of the following safeguards:

(a) An Appeal Tribunal comprising two High Court judges and one District Court judge. The Tribunal had full power to order the release of detainees if it deemed fit.

(b) Mandatory review of a detention order or restriction order by a Reviewing Officer who must be a person qualified to be a judge at least once in every six months. The Reviewing Officer has the duty to make recommendations to the Chief Secretary or the Appeal Tribunal.

I think Marshall was under tremendous pressure from the Colonial Office to introduce the PPSO. That he took pains to ensure some protection for the detainees is seen from the inclusion of above safeguards in the law. He admitted in the Assembly debates (Hansard: 12 October 1955):

“It is with reluctance that I brought in this Bill. I take pleasure in the improvements it has made in the existing laws. But I take no pleasure in perpetuating a law that is, however improved, still a breach in the rule of law…”
It is interesting to note that during the second reading of the Preservation of Public Security Bill, Lee Kuan Yew, Leader of the Opposition, strenuously objected to its passing. When Marshall said in the Assembly that he had incorporated real safeguards as in the Appeal Tribunal of three serving judges and a Reviewing Officer who has the qualification to be a judge to review the detention at least once in every six months, Lee heckled: “The Judges will be changed!” (Hansard: 21.9.1955). He went on to criticise the Bill and stake his strong opposition to it at a subsequent debate when he said:

“… If we believe in freedom, then we must concede that same freedom even to those who do not honour it in the way we do. Further, if we want freedom to survive in this part of the world, then we must live it and not just talk it…”

He proclaimed the PAP’s stand on the bill: “… We are against this Bill in toto. We are not here seeking amendments to mitigate the harshness of this Bill...” (Hansard: 12.10.1955).

When the PAP came into power in 1959 with 41 out of 51 seats in the Legislative Assembly, it immediately removed the Appeal Tribunal and replaced it with the Advisory Committee, comprising a judge and two other persons (Preservation of Public Security (Amendment) Ordinance, 1959). As the name implied, the Committee’s power was reduced to one that could only advise the Yang di-Pertuan Negara (Head of State).

In 1963, Singapore joined the Federation of Malaysia. The Malaysian Internal Security Act (1960) with modifications, was conveniently brought into effect in Singapore. The new Act enacted the Advisory Board which basically performs the same function as the Advisory Committee. The role of the Reviewing Officer in the PPSO was absorbed by the Advisory Board whose duty was to review the detention order or restriction order “not less often than once every six months”.

The frequency of review by the Advisory Board remained at “not less often than once every six months” until the Revised Edition 1985 of the Statutes of the Republic of Singapore was published by the Law Revision Commission. The duty to review was changed to “at intervals of not more than 12 months... “ with additional words to Section 13 of the Act and three new sub clauses. The Revised Edition 1985 was supposed to include amendments up to 1965 (Act 110/65).

As at 1965, Section 13 of the ISA states that every detention order or restriction order must be reviewed “not less often than once in every six months…” [I happen to possess the 1970 Revised Edition which included amendments up to 1965 (Act 110/65)]. How the Law Revision Commission became empowered to change the intervals of review to “not more than 12 months” and added three new sub clauses to Section 13, I do not have a clue. Perhaps it was a typographical error in my statute book.

And so the PAP had amended the ISA with great speed and skill to the detriment of detainees. It could not even trust the powerless Advisory Board which had to have its review function curtailed to ensure that detainees are out of sight and out of mind for 12 months instead of six.

But whether the review takes place once in every six months or 12 months is not the most important point I want to make in this essay. The power or rather the lack of power of the Advisory Board and what it is concerned with are my main criticisms of this so called safeguard provided by the ISA. I shall deal with these in my next article.