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.