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2002
Preventive detention
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One of the tough questions which people like myself, who think we're civil
libertarians, now have to face is the usefulness of the Internal Security Act
("ISA"). This empowers our government to detain people without trial if there are
grounds to believe these persons are a threat to national security.
It was easy, pre September 11th, 2001, to declaim that these wide powers that are not even subject to judicial review, are an affront to justice, civil liberties and the rule of law. How does one justify imprisoning a person without proof of a crime? But now, the world appears a more barbaric place. Thousands of innocents died in the twin towers, hundreds again in Bali, October 2002. This morning, the news was of a hotel in Mombasa, Kenya, blown to smithereens. Right here in Singapore, the authorities have unearthed a branch of the Jemaah Islamiah ("JI"), a network of fanatics stretching through Indonesia and Malaysia, and which apparently had contacts with al Qaeda.. The local JI cell had been planning attacks against various American and Western targets in Singapore. The Bali blast was a good reminder of the seriousness with which these mad men went about their mission, right here in Southeast Asia. So far, we haven't had any incident in Singapore, though I am all too aware that that is no reason why one might not occur the minute I finish this essay. But a good part of the reason that the JI's plans were foiled was that officers from our Internal Security Department nabbed 13 of them in December 2001 and 21 more in August 2002. It would be churlish of me to decry the Internal Security Act, when it was precisely such preemptive powers that saved many lives.
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At
least, you might say, under Singapore's Internal Security Act, a panel
is constituted to review each case after 3 months, and again every 12
months. The deliberations of the panel are kept confidential, most
probably because much of the information that made them suspects would
be sensitive. But this very confidentiality leaves the entire process
open to abuse. The 1987 detentions Most people familiar with the ISA detentions of 1987 – of Francis Seow, Vincent Cheng and others – would have grave reservations as to how credible the charges were. Francis Seow, the former Solicitor General, has written about his experiences and what he thinks were the government's motives: that of intimidating political challengers. It is noteworthy that Seow's books are not available in Singapore. In them, he has described the Internal Security Department's methods of interrogation: sleep deprivation, extreme cold and information deprivation. The aim was to extract confessions and incriminations of others. One could guess that the US is probably doing likewise with their al Qaeda detainees, and when one is trying to crack a shadowy network, this kind of information gathering, rather than looking for hard evidence, may be all we have to go by. But if the authority's motive is to "frame" others, it's all too easy to fabricate incriminating confessions by these same coercive means. Malaysia too has an Internal Security Act very similar to ours. In 1999, it was used by Prime Minister Mahathir to detain Deputy PM Anwar Ibrahim. Most Malaysians, except diehard Mahathir loyalists, are convinced that this was intended to eliminate Anwar as a political rival. The other equally troubling aspect of
preventive detention, in Singapore's case, is that it can be indefinite.
Chia Thye Poh [1] was detained for 23 years till released in 1989. He had
been accused of being a communist agent. 23 years is virtually a
lifetime. What if the accusations had been ill-founded? But is there still a need? But, abuses aside, the fact remains that threats to national security exists. With terrorism all around us, isn't there a need for preventive detention? I think I would be naïve if I said, no. We have to recognise three realities: Firstly, in dealing with subversive plots, many of the leads and even the identity of informants, must remain confidential. Ruthless plotters will have no hesitation in eliminating those who squeal on them. How does one then produce these informants in open court? And revealing the sources of intelligence may compromise an ongoing investigation into other parts of the subversive network, or disclose to the enemy the weak points in their organisation. Which brings us to the second point … Unlike ordinary criminal situations, subversion doesn't end with a heist or a murder. The aim of subversion is to destroy a state, and to that end a highly secretive organisation is built up. You can chip away at it, foil repeatedly its plans, but it's unlikely you can smash it with a quick series of busts and haul everybody to court. Even while you may want to prosecute those you have caught, you would worry about those you haven't, or those you don't even know about. Would you insouciantly reveal in open court what intelligence you have gathered so far? Thirdly, the mayhem and killing from a successful terrorist attack can be enormous. In ordinary law and order situations, the crime needs first to be committed before anyone can be guilty of it. But to fight terrorism or subversion, you can't wait till they have achieved what they set out to do. The enemy has to be intercepted at the planning stage. The evidence at this stage may be too circumstantial for the usual standards of proof. Preventive detention may be all that stands between life and death. And yet, abuse of power stares us in
the face. That's a reality too. So, what to do? The verdict of history? I can't blithely say we must still have open trials, open evidence and open verdicts. But perhaps we can rely more on the verdict of history. Even if we must have preventive detention, confidential submissions to secret review panels and executive discretion, perhaps we can have the records disclosed to the public earlier, e.g. within 5 years. Politicians usually have careers longer than 5 years. If they know that damning evidence of their abuse of power will be made public while they still want a career, they might think twice about using these broad powers purely in their self-interest. Yes, I know, it's still a rather weak deterrent to strong-willed politicians. Moreover, it presupposes an independent judiciary that can order disclosure within the prescribed time frame, a civil service of integrity that does not destroy records in the intervening period, and a civil society that knows what to do with any evidence of abuse of power so disclosed. In other words, a very imperfect solution. But I wonder if there's any better. That's one more effect of September 11th: it's
blown apart what innocence we had about the perfectibility of political and
judicial processes. © Yawning Bread
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Footnotes
Addenda None
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