Detention without trial – abolish or improve?

For some of us who believe in civil liberties, the latest spate of gang-related violence has called for some soul-searching. The police, signalling their determination to stamp it out, mentioned that they are prepared to use preventive detention to achieve their goals. Is this supportable?

Criminal Investigation Department director and Senior Assistant Commissioner of police Ng Boon Gay said young offenders involved in violent crimes would not be treated lightly simply because of their age.

They can expect to face the full brunt of the law, including the Criminal Law (Temporary Provisions) Act, which allows for detention without trial.

— Straits Times, 11 Nov 2010, Fifth youth charged with gang murder

In its operation, the Criminal Law (Temporary Provisions) Act (CLTPA) is not substantially different from the Internal Security Act (ISA). It’s just that the former has historically been used against secret society elements, while the latter is meant for persons who would engage in armed subversion against the state.

Yet, a history of abuse of the ISA has emerged. We have seen a pattern of the People’s Action Party government using it to imprison people who spoke out against government policies or who were able to mobilise opposition, even if peaceful. A long list of names – none ever convicted in a court of law – has been associated with detention periods stretching for years. In Chia Thye Poh’s case, it was 23 years – 32 if you add the nine more years when he was under restriction orders confining him to Sentosa Island.

From the memoirs of these political detainees, we read about inhuman treatment, solitary confinement and harsh interrogation, bordering on torture.

The systematic abuse of the ISA has completely eroded what trust I have in the government using it fairly. I lean towards its abolition.

What of the CLTPA then? What makes us think it too has not been abused? What makes us think we can trust the authorities to use it judiciously, even in the face of the recent outbreaks of fighting among street corner gangs?

Yet, with young men and their molls running about wielding knives, slashing and killing their perceived opponents (and the occasional uninvolved bystander), how can we do nothing? Is preventive detention not justified under these extreme circumstances?

This law, dating from 1955, was enacted at a time when Chinese triads were operating boldly. Their code of silence and intimidating tactics made it hard for the prosecution to build a case against accused persons. The law was meant to be temporary (thus its name) with a life of only five years, since its aim was to break the back of the triads, with normal policing to resume after that.

However, the CLTPA has been repeatedly renewed since then, with the latest being the 2009 vote in Parliament. At any given time, there are hundreds being detained without trial, and we never hear anything about their cases.

Maruah, the human rights group, noted in a paper it recently prepared for the United Nations Human Rights Council that:

The number of CLTPA detainees has fallen from 1260 in 1988, to 463 in 1998, to 290 in 2008, but there seems to be 94 more CLTPA detainees in 2008 than in 2004. These are not insubstantial numbers, given the small population of Singapore (currently 5 million); by way of comparison, as of 17 January 2009, about 245 persons remained in detention at Guantanamo Bay. . .

— Universal Periodic Review, Submission of Maruah. Link.

Maruah obtained these figures from a Parliamentary Report.

I’m sure the numbers give you pause. With so many behind bars and not tried in open court, how can the public be sure that there aren’t the innocent and mistaken identities among them?

From the memoirs of those who have been detained under the ISA, we have a glimpse of  how loaded the process is against detainees. One can assume the same situation for detainees under CLTPA.

Leaving aside sleep deprivation, solitary confinement, beatings and harsh interrogation (in freezing cold rooms for hours on end), there is a mockery of due process. Detainees  have no access to lawyers and are not told why they have been detained. So the “opportunity” to defend themselves against the (unknown) charges before a review panel is meaningless. This panel is typically armed with a file full of allegations and “evidence” but the detainee has no right to see the file and its contents. How does one rebut the invisible accusations?

To compound matters, detention can be renewed indefinitely. There is something awfully inhuman about that, no matter how suspiciously the person has acted in the past.

It’s not hard to imagine an innocent person, fingered by someone else, being caught up in this Kafkaesque tragi-comedy and spending the rest of his life behind bars.

What it means is that even if we think there can be a place for preventive detention, we really need a far more transparent and fair process than we currently have. We should ensure that at the very least, it should have these features:

  • It must be limited to persons who pose a grave and immediate threat to peace – this means those persons likely to run around shooting and slashing others, or planning terror attacks.
  • There has to be a judicial order before anyone can be detained, and an independent judicial review of his case soon after, e.g. seven days. (This follows a centuries-old principle: governments cannot deprive people of their liberty, only courts can.)
  • The detainee should have access to legal counsel at all times, including during interrogation.
  • Ban interrogation techniques or other holding conditions that are not civil.
  • For the judicial review, the detainee and his counsel should have access to all evidence against him and to cross-examine adverse witnesses.
  • The decision from judicial review must be appealable and cannot be over-ridden by executive order.
  • For security reasons (e.g. in terrorism cases where evidence may be in the form of leads given by undercover informants) the initial judicial order and the proceedings of the judicial review can be treated as confidential, but as safeguard, records should be  promptly available to all members of parliament under oaths of confidentiality. Parliamentarians then have oversight to ensure that the process is not abused for political ends.
  • Even if the judicial review confirms the detention, it must be of limited duration with no renewal. (In Britain, which has one of the harshest laws of the developed countries, the maximum period of preventive detention is 28 days. After that, the accused faces prosecution, or if the prosecution cannot find a case against him, he has to be released.)

This may not be a popular moment to criticise detention without trial, not with a series of gang attacks fresh in the news, but there is never a wrong time to do the right thing and fix our very dubious system.

13 Responses to “Detention without trial – abolish or improve?”

  1. 1 Tanky 14 November 2010 at 18:57

    Maybe we should have a referendum to vote for several matters including whether ” Detention without trial should be abolish or improve”, “the need for so many senior ministers in the PMO”, “the usefulness of an Elected President”, “winners take all or Proportionate seats”, etc.

    • 2 Fox 14 November 2010 at 22:28

      Get real, Tanky. This is Singapore. Do you ever think we will have referendums on anything? We don’t have a representative government. To make changes in Singapore, you have to come up with viable alternatives and hope that someone in power listens.

      Political reform is a separate issue.

  2. 4 ILMA 14 November 2010 at 22:11

    the irony is that the government had the gall to “Welcome Aung San Suu Kyi’s release”… geeeze.

  3. 5 PK 14 November 2010 at 23:43

    I believe in general, Singaporeans are ok with both the ISA and the CLTPA. It is the famous apathy at work.

    • 6 KiWeTO 14 November 2010 at 23:50

      Why only blame Singaporeans and their apathy?

      The world’s inhabitants in general are also of the “since I am not going to get involved in gang activities, it won’t affect me, so I don’t care about it anyway.” mindset.

      Qui Custodiets ipsodes Custodes?

      In Singapore, that is truly a difficult question to answer.


  4. 7 usherer 14 November 2010 at 23:52

    The Irrawaddy magazine had reported in 2009 saying that Goh Chok Tong had regarded ASSK as “part of the problem”.

    Alex, I’m interested in: What human rights groups are there documenting detention without trial cases in Singapore?

    How can we know who are the victims? And how can the figures from the Parliamentary report be corrobated?

    Also, I agree with your suggestion: Even if the judicial review confirms the detention, it must be of limited duration with no renewal.

    However, there’s a country (can’t remember which one) where there’s such a rule BUT most of the testimonies are elicited during this period, which means detainees were tortured/ coerced or somehow convinced into giving statements during this period. So, even this period is highly susceptible to abuse.

    A discussion on detention without trial should start asap.

    If referendums aren’t an option, what can be done?


  5. 8 usherer 14 November 2010 at 23:58

    In addition, it’d be enlightening to find out the offences for which the detention without trial persons are supposed to have committed, how long they’ve been detained and what are the next steps in the due legal process. Alex, does Maruah have this?

  6. 9 Tan Ah Kow 15 November 2010 at 00:17

    Before one can speak of abolishing or improving such acts, the question has to be asked is whether such act is really effective or possible to be free from abused.

    On the point of effectiveness, I can’t really see how it is more than the all the legislation that are already in place. If the act was meant to be a way of resolving “gang violence”, does it really solve the problem as such? After all, “gang violence” is very much a social problem.

    Ok some would argue that locking up these tugs would rid the street of the problem but the question than becomes, what do you do with the people when they are locked up?

    If they were to return to society, especially a small one like Singapore, how will they earn a living and avoid gang behaviour in the first place? In which case, why not just hang anyone for being member of a gang?

    If such act was meant to stop terrorist from creating havoc, than frankly, it would be naive believe that such act is effective in anyway. Take the UK, a similar act was in placed but it did not stop the bombing. Neither did it stop a car bomb being planted in the middle of London not too long ago and was discovered by accident when a parking enforcement office chance upon it.

    According to reports by ex-intelligence personnel presented in media, the only effective way is to stop terrorist act is good intelligence. Not an act to detain people willy-nilly. In any case, any good intelligence work can easily use existing less draconian legislative measures to stop an act of terrorism. For example, an intelligence officer can infiltrate a gang learn of a bomb being planted and then pass on the information to other agencies to act based on other legislation — e.g. traffic order to stop a car and then “accidentally” discover a bomb!

    Even if you have preventative order like detention without trial you are going to need good intelligence for the act to be effective. In the case of the MRT bomb plot, one has to wonder if it were not for the discovery of the tape, would the ISA had been able to act?

    I emphasis again, “acts” of terrorism can be stop. Terrorism as an ideology is not something you can legislate away. Unfortunately, stopping terrorism is going to require often less than headline grabbing method — painstaking intelligence. However, politicians and the electorate wants things to be seen to be done. So all that can be said about such act effectiveness is that it gives brings physiological. But then again it could backfire in that it makes the politicians and electorate complacent.

    On the issue of preventing abuse, frankly, if you have such an act in place no amount of legisation — i.e. wording of the law — is going to prevent that. So than it leads us to the question of what do we mean by improving on the act?

    In reality, however you word any safeguard into the act, the only real way to prevent abuse is really for enforcer of the law to restrain themselves. For that matter for the overseer of the enforcer to clamp down on abuse. In the Singapore context, we could put limits to detention period, and enforcer can simply work round the law, realising at the end of the period and re-arresting immediately. Remember all the habeas corpus judgement brought against the ISD? Did it prevent them from abuse?

    Even if you have modify the act to require judges to issue warrant of arrest, can you guarantee that judges would be any better at the job?

    Given the kind of institutions that are in place in now, any improvement is going to be achieved by wording of the law?

    Come on the PAP use of such laws to its own end came about because people let the PAP do as they please. Not because of failing of the law. For me who was born before the Internet, I and many people were already aware of what’s going on. Did we do anything to stop it — i.e. even a simple act of making sure PAP don’t dominate the legislature?

    No we didn’t.

    In conclusion, is having such an act really that effective? No. So going by that logic we might as well abolish it.

    If it is there to give physiological comfort that something is being done, than leave it there but be prepared for nasty consequences.

    If we need to improve it, than start with making sure you have effective institutions in place to check abuse.

  7. 10 patrick 15 November 2010 at 06:16

    a simple question: when ISA is much more powerful than the CLTP, why would the authorities bother abusing the CLTP? Also, as long as ISA is intact, the choice of invoking either act is completely arbitrary for the ultimate goal of detaining people without trial. I put it to you that CLTP is much narrower than ISA and if they were to abuse anything, they’d abuse ISA, which they already do. So there’s no point worrying about CLTP specifically, which makes this a pointless essay.

  8. 11 Depressed 15 November 2010 at 14:14

    To: ILMA
    14 November 2010 at 22:11
    “the irony is that the government had the gall to “Welcome Aung San Suu Kyi’s release”… geeeze”

    Two headed snake does exist in this planet and this is one good example.

  9. 12 K Das 15 November 2010 at 16:37

    In the early years of CLTP’s existence, to get arrested under this Act, one would invariably have to have some antecedents or dossier entries in the CID linking him to gangs and gangland activities (with or without a criminal conviction). The inference is that there is plenty of information about the guy’s involvement in gangster activities and he is clearly a threat to society. It is just that the police do not have strong evidence to charge him in open court because people are frightened to come out to testify against him for fear of their own life.

    Compare this with the current situation and the use of CLTP to detain people (with no previous record or first time offenders) indefinitely or for a long period of time, raises the question if such detention is justified.

    In the current two separate cases, we do not know for sure if the youths concerned were actually members of a ‘formal’ gang or gangs. Or was it an unplanned spontaneous fight triggered by youthful exuberance that went awry with the arrested youths having no intention whatsoever to kill.

    Is it not a better option to detain them under CLTP, rehabilitate them and release them back to society after a few years of detention instead of charging them for murder which may sent them to the gallows. This is of course assumes that the prosecution demands capital punishment for the lead persons involved in the murder.

    The Government may need to explain to the public why so many are being held under the CLTP and the justification for it.

  10. 13 hahaha 16 November 2010 at 11:58

    Apathy is govt. propaganda, for PAP to tell u that since you dont care, they have to take care of things, and they are the ones doing the dirty work, FOR you.
    Exactly is this dirty word, APATHY that is stifling our creativity, our critical thinking, our imaginative speech skills, and our entrepreunerial spirit.
    Just look at how PCF dominates the childcare arena, how NTUC Fairprice destroys provision shops and supermarkets, how Singtel charges you exhorbitant prices for TV, Mobile, Internet, and how NTUC Choicehomes contributes to the skyhigh property prices.
    Once they make you think you are apathetic, they take over, and we are all enslaved to them, for generations!

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