By Dr. Vincent Wijeysingha –
The Emergency Regulations Ordinance, enacted in July 1948, allowed the police to arrest without evidence or warrant anybody suspected of having acted “or being likely to act” in a way that would endanger national security. It also empowered the authorities to hold detainees for investigation without recourse to legal advice and to detain them indefinitely without charge or trial.
The successor to the Emergency Regulations Ordinance was the Preservation of Public Security Ordinance (1955). Strong opposition to its enactment emanated from the People’s Action Party. Lee Kuan Yew, then on the opposition benches, said:
“But we either believe in democracy or we don’t. If we do, then, we must say categorically, without qualification, that no restraint from the any democratic processes, other than by the ordinary law of the land, should be allowed… If you believe in democracy, you must believe in it unconditionally. If you believe that men should be free, then, they should have the right of free association, of free speech, of free publication. Then, no law should permit those democratic processes to be set at nought, and no excuse, whether of security, should allow a government to be deterred from doing what it knows to be right, and what it must know to be right…” (27 April 1955)
“If it is not totalitarian to arrest a man and detain him, when you cannot charge him with any offence against any written law – if that is not what we have always cried out against in Fascist states – then what is it? …If we are to survive as a free democracy, then we must be prepared, in principle, to concede to our enemies – even those who do not subscribe to our views – as much constitutional rights as you concede yourself [sic].” (21 Sep 1955)
In 1960, three years after Malaya’s independence, the Malayan Internal Security Act was passed with much the same powers. Prime Minister Abdul Rahman stated the Act would only be applied against the remaining Communist insurgents. The Malayan Communist Party eventually capitulated in 1989 but the ISA was retained. Mr Mahathir used it to great effect in his stifling of opposition to his government.
When Singapore entered the Federation of Malaysia in 1963, the ISA entered the Singapore jurisdiction. After separation in 1965, Singapore retained the ISA and placed it upon the statute book at Chapter 143 where it still stands. Lee has been silent upon the subject of democracy since.
The Act empowers detention without trial. Section 8 reads:
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; or
(b) for all or any of the following purposes:
(i) for imposing upon that person such restrictions as may be specified in the order in respect of his activities and the places of his residence and employment;
(ii) for prohibiting him from being out of doors between such hours as may be specified in the order, except under the authority of a written permit granted by such authority or person as may be so specified;
(iii) for requiring him to notify his movements in such manner at such times and to such authority or person as may be specified in the order;
(iv) for prohibiting him from addressing public meetings or from holding office in, or taking part in the activities of or acting as adviser to any organisation or association, or from taking part in any political activities;
(v) for prohibiting him from travelling beyond the limits of Singapore or any part thereof specified in the order except in accordance with permission given to him by such authority or person as may be specified in such order,
and any order made under paragraph (b) shall be for such period, not exceeding two years, as may be specified therein, and may by such order be required to be supported by a bond.
(2) The President may direct that the period of any order made under subsection (1) be extended for a further period or periods not exceeding two years at a time.
(4) Every person detained in pursuance of an order made under subsection (1)(a) or of a direction given under subsection (2) shall be detained in such place as the Minister may direct (hereinafter referred to as a place of detention) and in accordance with instructions issued by the Minister and any rules made under subsection (5).
(5) The Minister may by rules provide for the maintenance and management of any place of detention and for the discipline of persons detained therein.
That the People’s Action Party (PAP) invoked the Act to imprison 2,460 people between 1959 and 1990 alone against whom nothing could be, or was ever, proved, is not the principal objection to the Act, heinous though that record is. But to every person who values his freedom, who expects to know what the society allows and disallows, who does not welcome the capricious hand of government to restrain him without knowing why, the true offence must rest against these operating words of the Act: “If the President is satisfied…”. This innocuous sounding provision effectively removes the right of a citizen detained under it to the protection of the law.
Crimes and offences are defined in law and written upon the statute book for all to know. The famous phrase, Ignorantia juris non excusat, or Ignorance of the law excuses no one, finds its forceful justification precisely in this principle. No one should be excused by claiming not to know a particular law. But the individual’s reply is that the authorities should undertake to punish no one who has not breached the laws. Hence, the hallowed principle known as the Rule of Law.
A properly constituted legal process is the proper place to determine if a citizen has committed an illegal act and then apply a sanction accordingly. Why? Because the law is, by definition, impartial. The courts take no thought to the purpose or morality of one’s actions except if they breach the laws. And as John Rawls suggested in his famous essay, A Theory of Justice, societies should always be made on the presumption that the maker does not know how he might preferentially benefit from it. And equally so the administration of them. In other words, Justice must be as open and recognisable as she is blind.
This undergirding of the Rule of Law, and indeed of the wilful blindness of Lady Justice, aims to ensure that we accept no one’s version of things but allow a dispassionate judicial process to arrive at the facts by a process that is, itself, transparent.
For the state to arrogate to itself the right to say, in the absence of evidence, that a person has thought up a particular course of action and therefore merits detention is the foundation of the totalitarian state: essentially (and in simple terms), the state allows itself the luxury of being able to convict a citizen of thought-crime. If, at this late stage in our history we are unmoved by the real threat this poses to our freedom, our very personhood, there are few remaining rights we may justifiably claim possession of. Because we would still be ignorant of our personhood.
The ISA seeks not to punish or deter illegal acts, it sanction PERSONS against whom evidence cannot be adduced. That the authorities have such a reserve power should give any freedom-loving person pause. The British parliamentarian, Anthony Wedgwood Benn, once said,
When you are confronted with someone with power, you must ask him three questions: (a) What powers do you have? (b) How do you use them? And (c) How do we take them from you?
Although just slightly facetious, the import is clear. The power to move against a private citizen is formidable and should be approached with trepidation. And we, as citizens, should attend robustly to the task of defending ourselves against the ravenous optimism of government that it might rule the people in this way. Power, you see, is never surrendered willingly.
The PAP government, which imprisoned an average of seven persons per month during Mr Lee Kuan Yew’s premiership alone, approached the task recklessly. No law that allows the authorities to detain someone without evidence is good law and the government has presumed to do so far too often these last 53 years.
In his response to the announcement that Malaysia intended to repeal its own ISA, the Home Affairs Minister asserted that no one has been detained only for his or her political beliefs. This is lamentably untrue. The vast majority of all those who have been detained – from the political opponents of his party in the 1960s under Operation Coldstore, to the so-called Euro-communists in seventies, to Operation Spectrum in 1987 – were detained precisely for their beliefs and not their threat to security. None of them posed a threat to security and the government knows it. If they had, and if the government possessed evidence of it, it has inexplicably kept it to itself since 1963. Only one conclusion might reasonably be drawn from its silence unless it wishes at this stage to refute it; I imagine it will remain silent.
Mr Chia Thye Poh, probably the longest-serving political prisoner in the world, detained for 32 years, was neither tried nor convicted. It was only at the end of the second decade of his imprisonment that it was suggested that he make a confession so as to save Mr Lee Kuan Yew’s face. He did no such thing and to his credit remained under detention into his fourth decade unbowed and with his dignity intact. The same could not be said of Mr Lee who from that day on was condemned to carry a sullied copybook before him.
His party degraded its reputation even further when on this day, 21st May 1987 – a quarter century ago – it detained without trial 22 young men and women who were social workers or welfare workers; actors and actresses producing plays that highlighted social injustice; Workers’ Party volunteers; and student activists. An elaborate story was concocted to suggest their guilt but none of the elements of the story ever stood the test of truth. Or indeed of evidence. For the best of reasons: they were all entirely engineered in the fevered minds of the PAP high command, worried that the People Power movement in the Philippines that had swept President Marcos from office the previous year might threaten the PAP government which had, in 1984, seen a further swing in its popular vote and the election of two opposition MPs to Parliament.
The government has never brought any evidence whatsoever against those detainees. It has had 25 years to do so. With the exception of the unsubstantiated and unsupported assertions made in the Home Affairs statements last year, it finds itself unable to say anything that even approaches a convincing argument in favour of Operation Spectrum. When I stated on a Channel News Asia forum in April last year (at which PAP minister, Tharman Shanmugaratnam, and PAP MP, Josephine Teo, were present) that all the allegations against the detainees of Operation Spectrum were untrue and that history had shown them to be so, neither of them denied it. Let me repeat that for the avoidance of doubt: Neither of them denied it.
In fact, Mr Shanmugaratnam said on another occasion that he doubted the government’s case. And he should know: He was himself interviewed by the police at the time although never detained. And we now also know that former minister, S Dhanabalan, resigned from the Cabinet because he disagreed with the detentions. That they keep silence to this day is a matter for their own consciences.
The detainees of Operation Spectrum did not have an ‘ideology’, much less one that advocated the violent overthrow of the state to usher in a Marxist utopia. And neither did those who were detained in the 1970s or the 1960s have an ideology that met the criterion of Subsection 8(1) of the Act.
The only reason why the government was able to proceed without challenge, able to make statements of such ludicrous enormity, was its vice-like grip on the media which did not suffer alternative evidence to be put or the detainees’ case to be heard in the court of public opinion. Or indeed the vast groundswell of opposition to the detentions across the world, which men like S Rajaratnam and Jek Yuen Thong attempted to counter, albeit dismally. In the absence of citizen media such as this one where I share my views today, the government was able to make its assertions, obtain confessions under torture, and imprison the 22 for up to three years.
This morning, the silence of the government is deafening. And shameful. The two weak, mealy-mouthed statements that came from New Phoenix Park late last year do not even begin to weaken its guilt. The minister relied on assertion and hyperbole exactly as his predecessors did 25 years ago. This morning he should be ashamed of himself.
The minister’s statements also took shelter in the terrorist threat which he says we are shielded from by the continuing existence of the Act. Interestingly, the vast majority of detainees who have been detained for suspected terrorist activity have not been eventually found to be a threat and were quietly released.
But nevertheless, let us accept, since this threat is a real one in the current period, that a preventive law is necessary. What is to be done? How can we safeguard our fellow citizens without making them potential casualties of a statute which, in the vast majority of cases, has been used against the government’s political enemies and not terrorists? How can we establish an equilibrium between the right of the community to be safe and the right of the individual not to be held hostage to it?
The alternative is to have a specific Anti-terror Act. The prototype exists worldwide. The United Kingdom, for example, which has faced extensive terrorist activity for the last 50 years has never found the need for a preventive detention statute because it is aware, as is the general consensus of international policing (and the government knows this), that simply having preventive detention provisions do not, of themselves, prevent or limit terrorism. An Anti-terror Act works as part of a menu of safeguarding and administrative mechanisms to keep the community safe.
When the British government tried to raise the limit on the period of investigation before a person has to be brought to trial from 14 to 49 days, a fierce public outcry prevented them from doing so. It had to settle for 28 days. Nothing further would be countenanced in the law. This is remarkable for a community which, as I mentioned above, has seen much terrorist activity. When I first landed in London in August 1993, it was still recovering from a massive IRA bomb that had detonated in the City of London a few months previous. The streets were still covered with shattered glass. It was a chilling reminder of human vulnerability.
I was still in the UK in 2005 when the government attempted to amend the law to extend the 14 days. What struck me most was that, in the face of terrorist carnage of recent memory and stretching back decades, the people of that nation still fought tooth and nail to prevent their government from taking more autonomy from them. The Rule of Law won.
Singapore, despite its claims to vulnerability, has used the ISA in the vast majority of instances to detain not those who were a threat to security but, let it be said and said loudly so that it may be heard even at the Istana Annexe, those who were a threat to the PAP. This is a reprehensible history.
There are those who say that the events of the past should be laid to rest as we look to the future. The second half of the statement is axiomatic. But as a community, a nation, we cannot move into the future if we do not exorcise the ghosts of Whitley Road Detention Centre which continue to plague the marketplace of our ideas and actions.
The ISA, and particularly its application in May 1987, was such as to render so many of us to this day still afraid to speak our minds or even think thoughts we are afraid might offend the government. This is no basis upon which to build a community.
The long arm of the ISA may seem to have been crippled by the march of time. And maybe that is so. And if it is, it is good. But I ask you, my fellow citizens, not to forget two things: That the liberty of thousands of people, our fellow citizens, our neighbours, was trammelled in our name and their future destroyed. And that our own courage and humanity, which should be our finest qualities, were abridged. Please remember, at least, this.
Dr Vincent Wijeysingha is a lecturer and is involved in social work.
 The government has always maintained that it will consider the repeal of the ISA should Malaysia do so; the last time being in 1991. As far back as October 1958, Lee Kuan Yew said in the Legislative Assembly: “When the time comes we shall justify our view and our stand, that there can be no abolition of the Emergency laws in Singapore until they have been abolished in the Federation.”