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Executive Detention should never be allowed to be replacement of criminal justice system

by Teo Soh Lung

Detention without trial is called by many names. The British called it “Preventive Detention,” as if by imprisoning a person indefinitely and without trial will prevent him from causing harm to society.

The British are very creative in the use of words. Take for instance the Internal Security Act (ISA) or formerly known as the Preservation of Public Security Ordinance (PPSO). This law which authorises indefinite detention without trial is according to the title, meant to protect the “internal security or public security” of the country. It masks its real purpose which is to unjustly put away anti-colonialists, people with vast potentials and ability to contribute to the well being of the country.

Detention without trial is also called “Administrative Detention” or “Executive Detention”. These to me are the most appropriate description because the order to detain or imprison does not come from the judge but from the minister who is part of the Executive arm of government. The order is equivalent to an edict from the emperor. The emperor can imprison, torture and kill anyone he dislikes with immunity.

Most countries, including Singapore, have today a form of government that tries to ensure separation of powers. The executive arm of the government takes care of the management of the country. The judiciary, on the other hand, stands as the bulwark between the executive and the people. Judges ensure that everyone including the government obeys the law. Infringement of the law is punished and no one is sentenced to prison unless the prosecution proves his guilt beyond a reasonable doubt.

While the Singapore Constitution states that judicial power is vested in the judiciary, we have laws that conflict or even overrule this power. The Internal Security Act (ISA), Criminal Law (Temporary Provisions) Act (CLTPA) and the Misuse of Drugs Act are three such laws.

The ISA is the earliest piece of legislation that authorises Executive Detention. As a British colony, our colonial master imported the Emergency Regulations from Britain three years after they themselves had dumped it into the bin. It was supposedly a temporary measure lasting three months. But it has been renewed time and again. The reason was obvious. They simply wanted to control the population which was becoming more critical of their rule after World War 2. They wanted better working conditions and the right to govern themselves.

In 1955, the Marshall Government was probably compelled to consolidate the Emergency Regulations into the PPSO. The PPSO and the CLTPA were enacted that year. The PAP then in opposition, objected to the passing of the PPSO. It was probably just for show. When they came into power, it not only retained the laws but made them even more detrimental to the population.

In subsequent years, alleged drug addicts were also subjected to detention in an institution without the order of the judge. The Director of Central Narcotics Board could simply issue an order for his detention in an institution under the Misuse of Drugs Act.

With the application of the CLTPA to various offences now already under various ordinary criminal laws which require open court trials, I will not be surprised if the present criminal justice system will one day be turned into an Executive Detention system. Criminal courts will then be dispensed with. The minister of law can have as many subordinates as he wishes and delegate his work to directors of various crime agencies. We would have descended into a first world state of lawful lawlessness.

Executive detention deprives the person detained from a fair and open trial. It has no place in a modern society. Anyone accused of committing a crime deserves a fair and open trial. Evidence should be produced by the prosecution to prove commission of crime and the accused person must be given a chance to rebut the evidence against him. It is only after a fair and open trial that the judge can decide whether an accused person should be convicted or acquitted.

Executive Detention should never be allowed to be a replacement of our criminal justice system. In the absence of a fair and open trial, how do we know if the minister is properly advised by the police and the public prosecutor. How can we be sure that there is no abuse of power as in the Subhas Anandan's case?

Why should we trust the judgement of the minister and his subordinates and not the judge?

Editor's note: What the Minister of Law and Home Affairs said in defence of PAP MP Edwin Tong's representation of the accused in the City Harvest Church case seems to be at odds with the principle of the CLTPA, which is essentially, the denial of one's right to be defended in court. The below speech was made just a day before CLPTA was amended and extended by the parliament.