Without cover of the Covenant

The Covenant in question is the UN's International Covenant on Civil and Political Rights. Singapore is not a party to it. China in October 1998 became the latest country to accede to the treaty.

On Friday, November 27, 1998, the Straits Times reported that the government of Singapore has lifted all restrictions on Chia Thye Poh. Chia had been first jailed, then his movements and political rights restricted, under the Internal Security Act since 1966, thirty-two years ago. He has never been tried in a court of law.

From 1963-1966, Chia Thye Poh, then a physics lecturer in a university, was a Member of Parliament from the Barisan Socialis Party, which came into being when the more leftist MPs of the ruling People's Action Party split from it. The Barisan had considerable popular following, and those were the days when Singapore had a robust political opposition.

Stan Sesser quoted Chia in his book, The Lands of Charm and Cruelty:

Chia said, "We fought for genuine parliamentary democracy, not rule by one or two ministers. The PAP branded this as toeing the line of the Communist Party of Malaya. After the 1963 elections, three opposition MPs were arrested, and two more in 1966. There were hundreds of arrests over those years, because many people went out to demonstrate. The government used all means to try to suppress the opposition. In October of 1966, the Barisan MPs resigned because of government harassment. Important issues like Singapore's withdrawal from the federation [of Malaysia] were never debated in Parliament, since Parliament had become a rubber stamp."

Three weeks after resigning from Parliament, Chia was arrested under the Internal Security Act, which allows indefinite detention at the discretion of the Minister for Home Affairs. There is no obligation to bring the detainee to trial. Singapore does not permit judicial review of such detentions.

The same section of the book continues,

"I was never charged, never brought to trial, never convicted of anything," Chia told me. Only nineteen years later, in 1985, did the government give its first official explanation for his arrest: the minister of home affairs, in an address to Parliament, accused Chia of having infiltrated the Barisan Socialis to destabilize the government through "Communist united-front activities." Chia told me, "They released no sort of documents. I have never been a member of any Communist Party; I was just performing my duties as an MP. My activities were all legal, peaceful and constitutional. I have never advocated violence, and have never been charged with any offence of violence, let alone convicted."

Chia, unlike most other political detainees in Singapore, resisted all attempts to extract a confession. "They tried very hard to break prisoners, to extract confessions from them, to have them confess on television," Chia said. "They made me pay a very high price for not kowtowing to them. In 1966, they put me in a dark cell and said some people had gone insane under such conditions. Sometimes you could hear people kicking the doors as if they had gone insane. I went from one prison to another and was in solitary confinement several times. Sometimes I was deprived of reading materials for months at a stretch. They said that there's no end to this, that it will go on year after year if I don't confess, that even if I'm made of steel, they have means to break me. I told them that I had nothing to confess, and if the government had evidence it should try me in open court, where I could see the evidence against me and defend myself. There were day-long interrogations in a freezing-cold room. They pressured my family. But I always thought, No matter how long they keep me this way, someday they will have to release me, because I'm innocent and I have support. It's part of the broad struggle for democracy all over the world…

Upon his release, the Ministry of Home Affairs issued a statement which said, inter alia, "The Government has always adopted a measured and cautious approach to Chia Thye Poh's case."

As reported by the Straits Times, in 1982, after spending 16 years in prison, he was moved to government halfway houses, though the detention conditions still applied. In May 1989, he was moved to Sentosa Island, and finally in 1992, his detention was relaxed somewhat and he was allowed to live on mainland Singapore. However, he still needed the written approval of the Director of the Internal Security Department before he could make public statements, address public meetings or take part in any political activity. One could imagine that such permission would not have been liberally granted. It appears with the latest announcement that these restrictions have now been lifted.

Chia Thye Poh is now 57 years old. He was 25 when he was detained.

* * * * *

Such Internal Security Act detentions would not permitted under the International Covenant on Civil and Political Rights.

This document was adopted by the General Assembly of the United Nations on 16 December 1966, by coincidence, the year Chia Thye Poh was arrested. It was open for signature in New York, three days later, on December 19th.

The Covenant's paragraphs provided that it would come in force when 35 countries had signed it. This happened by 23 March 1976, and since then the Covenant has been binding on all signatory countries, including the later signatories, like China. But not Singapore.

What are its provisions? Here are the most important ones:
(The bold and coloured highlights are mine, for easy reference)

Article 1: The opening sentence says "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

Article 2: The countries pledge to ensure non-discrimination when applying these civil and political rights. There should be no "distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The principle here is that of non-discrimination. The mention of race, sex, etc are merely examples. One can very easily interpret this paragraph to cover sexual orientation.

Article 2 further requires that there should be effective judicial remedies provided to individuals if these rights are violated. The judicial process should be open and fair. There should be effective enforcement of remedies if so prescribed.

Article 6: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life…. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law."

Article 7: This article deals with torture. "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

Article 8: This article says that no one should be required to perform forced labour. Forced labour is carefully defined to exclude "Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors…"

Article 9: The one we've been waiting for. "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. "

Paragraph 3 under this article further provides that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement."

There is more. Paragraph 4 says, "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. "

Artcile 12: This provides for freedom of movement. "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."

"Everyone shall be free to leave any country, including his own", and "No one shall be arbitrarily deprived of the right to enter his own country."

Article 14: This article insists on fair judicial process. "All persons shall be equal before the courts and tribunals" and "everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." He shall not be "compelled to testify against himself or to confess guilt."

Article 17: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 18: "Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. "

Article 19: The free speech article. Paragraph 1 says, "Everyone shall have the right to hold opinions without interference."

Paragraph 2 says, "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The above is qualified in Paragraph 3, which says, "The exercise of the rights … carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals."

Article 21: "The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others."

Article 22: "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."

Paragraph 2 of this article says, "No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. "

Article 25: This article deals with the right to vote and be elected. "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot… "

Article 26: This article reinforces articles 2 and 14, providing for equality under the law. "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Article 27: Protections for minorities. "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."

Article 28 and beyond sets up the mechanics for monitoring human rights. The Covenant establishes a Human Rights Committee which consists of eighteen persons nominated and elected by the signatory countries. Article 32 says that "The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated."

Article 40 requires the participating countries to "submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights."

Article 41 allows a signatory state to complain about human rights abuses in another signatory state. The complained-against state has to respond to the accusation within 3 months. If 6 months later, the matter is not resolved to the satisfaction of both parties, then the human rights abuse in question may be referred to the Human Rights Committee. The Committee will work with the parties to resolve the human rights failing, and report on the solution. It will still report publicly if it is unable to resolve the matter, within 12 months.

Article 45 requires the Human Rights Committee to "submit to the General Assembly of the United Nations, through the Economic and Social Council, an annual report on its activities."

* * * * *

Footnote 2 below provides a link to the list of signatory countries to the International Covenant on Civil and Political Rights. Browsing through it, I noted that:

• Japan signed it on 30 May 1978, and ratified it on 21 June 1979;
• South Korea signed it on 10 April 1990 but has yet to ratify it.
• China signed it on 5 Oct 1998, but has yet to ratify it;
• The Philippines signed it on 19 Dec 1966 and ratified it on 23 Oct 1986;
• Thailand signed it on 29 Oct 1996, but has not yet ratified it;
• Vietnam signed it on 24 Sep 1982 but has yet to ratify it;
• India signed it on 10 Apr 1979 but has yet to ratify it.
• Singapore, Malaysia and Indonesia have not signed it.

States are supposed to ratify the treaty after signing it. Ratification is the process by which the treaty is passed by its legislature, emerging with the full force of law in the country. Judges and lawyers can then refer to the treaty provisions as if they are legal and constitutional guarantees. Other laws in the country are also to be amended to conform with the treaty clauses.

© Yawning Bread 

Footnotes

1. Read the full text of the International Covenant on Civil and Political Rights.
2. The United Nations publishes a list of the signatory countries
3. You can even file a report on human rights abuses electronically (a private site, not UN).

Addenda

There is a theory in International Law which posits that international treaty obligations (e.g. those found in the UN Covenant) can also become binding on non-signatory states. This occurs when a sufficient number of states have signed onto the treaty and given effect to it consistently. In such an instance, the consistent application of a treaty obligation by states gives rise to what is known as customary international law. Non-signatory states are bound by customary international law (unless they consistently object to being bound by a developing custom, but that makes for very poor PR).

So far so good, but international law has been somewhat slow in imposing international obligations on states viz-a-viz natural persons. Traditionally, the law was only concerned with regulating the rights of states inter se. Inroads have been made in giving non-state entities rights (and obligations e.g. Pinochet) under international law, but the progress is slow and sporadic. Perhaps the rallying call for jus cogens (an obligation so paramount that no state could abrogate itself of such obligations via traditional parachutes) should be taken up with these 2nd generation human rights.

In Singapore, at least, following English common law, treaty obligations only come into effect upon legislation. But English law also dictates that customary international law is part of the common law. This provides a backdoor to introducing the Covenant's obligations into Singapore's legal landscape.

Whether one would litigate such a tenuous cause would depend on one's perception of how progressive and bold our courts are today.