MHA walks into a minefield

When I read Alex Au’s blog post on the letters written by Archbishop Nicholas Chia to Function 8 (one of the organisers of the Speakers’ Corner event to commemorate the 25^th anniversary of the detention of the so-called Marxist conspirators), my eyebrows were raised a little.  But, I wasn’t too surprised at the possibility raised by Alex that some ‘friendly’ visit from the state might have persuaded the Archbishop to reconsider the wisdom of his original letter.  http://yawningbread.wordpress.com/2012/09/18/lunch-menu-a-4-point-letter/

All the usual suspects (including myself) that would normally read Alex’s blog would have gotten wind of this information.  Very few would have bothered to discuss this beyond a few casual conversations.  Perhaps, one or two blogs might have picked up on it and repeated it.  After a short while (perhaps a couple of days), any interest in the subject would have died out. 

But, to my surprise, first the Archbishop comes forward to explain the reason behind his retraction and then Function 8 and MARUAH get upset and set down their position and guess who wades into the battlefield…..  the Ministry of Home Affairs.  Honestly, I didn’t expect MHA to come forward to release a statement on this one.  The best part is that they pretty much admitted that somebody from the government had met up with the Archbishop.  Of course, this is presented as a routine meeting. 

The MHA’s full press statement is as follows:

MHA’s Statement on Archbishop Nicholas Chia’s Comments

The Government values its long-standing relationship with the Catholic Church and the Catholic community in Singapore, and deeply appreciates Archbishop Nicholas Chia’s many contributions to religious harmony in Singapore.

2 As part of building trust and understanding and to maintain religious harmony in Singapore, government ministers meet regularly with various religious leaders in Singapore. Such closed-door meetings allow a frank exchange of views specially on sensitive subjects. This is a well-established process that is appreciated by both ministers and religious leaders.

3 We note Archbishop Chia’s statement yesterday that he had withdrawn his earlier letter as its contents did not accurately reflect his views on the subject. He also expressed concern that if the letter was used in a manner that he did not intend, it may inadvertently harm the social harmony in Singapore. His decision to withdraw his letter ahead of a political event in June 2012, shows his appreciation of the complexity of our multi-racial, multireligious society, and the need to keep religion and politics separate.

4 The actions by this group to publicise the matter through Mr Au is disrespectful of the Archbishop, and contrary to his views and intentions as conveyed to the group after he had decided to retract his letter. This deliberate breach of the Archbishop’s trust confirms the objective of this group to publicly involve the Catholic Church and the Archbishop in their political agenda.

Issued by
Ministry Of Home Affairs

The channelnewsasia story on this is here.. http://www.channelnewsasia.com/stories/singaporelocalnews/view/1227148/1/.html

This seems to be a very ill-advised move on the part of the MHA.  This issue can now be amplified thanks to the fact that MHA came forward to issue a statement.  Now, the online community would have a field day raising question after question.  I did not, initially, have any intention to blog on this matter.  But, given the MHA response, there are more questions raised.  

In its statement, the MHA states:  . “He also expressed concern that if the letter was used in a manner that he did not intend, it may inadvertently harm the social harmony in Singapore. His decision to withdraw his letter ahead of a political event in June 2012, shows his appreciation of the complexity of our multi-racial, multireligious society, and the need to keep religion and politics separate.”

If I take the statement at face value and do not construe any attempt by the government to put a spin on the Archbishop’s letter, then the following is clear:

a)      Something in the letter was capable of harming social harmony (although the Archbishop did not intend it).

b)     That ‘something’ relates to the ‘complexity of our multi-racial, multireligious society’

c)     That ‘something’ might involve the mixing of religion and politics

What kind of statement made by the Archbishop could be characterized as being capable of doing the above?

i)        A statement referring negatively to a particular race

ii)       A statement referring negatively to a particular religion or religious denomination

What is the likelihood of the Archbishop’s original letter making even an inadvertent statement to that effect?  He wrote an unsolicited letter to the organizers of the “That we may Dream again” event.  Any rational Singaporean reading about the sequence of events would come to the conclusion that the Archbishop’s letter would, at most, have contained one or all of the following assertions:

i)                    That his prayers are with the ex-detainees

ii)                   That he hopes that truth about the ‘Marxist conspiracy’ would be established one day

iii)                 That he does not support detention without trial

iv)                 That he supports the organisers’ call for the abolition of the ISA

v)                  That he supports the development of civil society in Singapore and the consequent call for greater human rights protections

None of the above assertions (whilst sensitive from the perspective of the PAP government) could be construed as being capable of disrupting social harmony.  (Of course, I am fully aware that the phrases ‘social harmony’, ‘multi-racial & multi-religious’ and ‘mixing religion with politics’ are part of the tiresome, clichéd routine employed by the government to keep reason at bay and they were probably deployed here unthinkingly and without realizing the illogicality in the present context.)

It would have been logically incongruous for a letter written to the organizers of an anti-ISA event, to include a statement making a negative reference to a race or religion.  The only possibility is a reference to Mas Selamat (being an ISA detainee) as an exception to the norm of political detention under the ISA.  Such reference may arguably be ‘sensitive’ if it is couched as an argument that it is ok to detain an alleged Islamic terrorist without trial, but not ok to detain any others without trial.  It is highly unlikely that the Archbishop would have said anything to that effect in his letter.  But, only such a statement could be even remotely be construed as affecting social harmony and having something to do with the complexity of our multi-blahblahbah society.   

So, taking the MHA statement at face value, I should arrive at the conclusion that there was some kind of racially or religiously sensitive statement.  But, that conclusion would be incongruous with the context of the letter.  In all likelihood, the content of the original letter was politically embarrassing for the government.  The Archbishop coming in support of a political event that was intended to commemorate the 1987 ISA detentions was capable of undermining the credibility of the PAP government.  Even a simple statement such as “I pray for you” or “I support your cause” would have been politically sensitive.  It would not have affected social harmony.  But, it would have cast the government in a bad light. 

So, it would appear that the real issue was not about social harmony or the multi-racial, multi-religious nature of our society.  The real issue was related to the mixing of religion and politics:-  The commentary by the head of a Church on a political matter where the negative publicity would damage the ruling party’s image.  It would not cause social disharmony.  Our society would not descend into a state of violence or chaos.  But, more people may be persuaded to see the PAP in a negative light. 

The following is the Archbishop’s statement to the press after Alex Au’s article.  Chronologically, this preceded the MHA’s statement. 

 

Archbishop’s Press Statement

"I refer to the article by Mr Alex Au which he says is based on second hand information. Mr Au could only have obtained such an ccount from the group he referred to, with which I had communicated in private. I had earlier decided to withdraw my letter to this group as, on reflection, its contents did not accurately reflect my views on the subject, and if used in a manner that I did not intend, may inadvertently harm the social harmony in Singapore. The group had acknowledged my decision and returned the letter to me.

The article by Au, which has appeared now, months later, confirms the correctness of my earlier decision to withdraw the letter so as not to inadvertently embroil the Catholic Church and the office of the Archbishop in a political event which was being staged by the group.

The Catholic Church has always maintained the position that it will not involve itself in political activities. We have always worked in harmony with the Government to contribute positively to society, rather than set ourselves on a collision path with the Government.

Au's article confirmed my fear that the group would use my letter in a manner that I did not agree with, and make use of the Office of the Archbishop and the Catholic Church for their own ends.

These irresponsible actions can easily cause serious misunderstanding between the Catholic Church and the Government, and damage the longstanding trust and cooperation between the two. It is most regrettable that Au and the group have acted in this manner."

 

Whilst Function8 and MARUAH have taken issue with the Archbishop’s press statement, I want to highlight the last three sentences.  Operating on the mind of the Archbishop is the relationship between the Catholic Church and the government.  A reasonable inference to be drawn from this press release is that whilst the original letter from him would not have directly blamed the government, his solidarity with the organisers, detainees or their families by writing a letter relating to an anti-ISA event could be used by event organisers to suggest an anti-government stance on the part of the Archbishop.  This would have harmed the relationship between the Church and the government. 

This then, is the real issue of ‘harmony’ being referred to:  A cordial relationship between the government and the religious leaders in Singapore.  What the Archbishop must have feared is unnecessary bullying from the government.  What the government must have feared is the unraveling of the government’s image in the eyes of, if not a majority of the citizens, then at least a sizeable segment of the Catholic community. 

At this stage in this saga, what are the established facts?

a)      The Archbishop wrote a letter to Function 8 (presumably supportive of the anti-ISA event)

b)      The Archbishop retracted the letter (allegedly because the contents did not accurately reflect his views & they could inadvertently cause disharmony)

c)       Some meetings have taken place between government officials/ministers and the Archbishop (the purpose of the those meetings may or may not be related to the letter sent to Function 8)

What is the issue at stake here?  The possible behind-the-scenes government intervention in relation to the Archbishop’s letter.  If there was such involvement, then it would be confirmation that this government isn’t about to fundamentally alter the way it does things. 

For reference, the following are statements from Function 8 and MARUAH

Function8’s press statement:

We are deeply saddened by the comments of Archbishop Nicholas Chia reported in The Straits Times of 20^th September 2012. He made three unsubstantiated remarks:

1.       That Mr Au’s account (in Yawningbread) could only have come from Function 8, with whom he had communicated in private.

2.      That he decided to withdraw his letter of support “because if the letter were to be used in a manner that I (Archbishop) did not intend, it may inadvertently harm the social harmony in Singapore.”

3.      That Mr Au’s article appearing now, months later, “confirms the correctness of my (Archbishop’s) earlier decision to withdraw the letter so as not to inadvertently embroil the Catholic Church and the office of the Archbishop in a political event which was being staged by the group.”

Our response is as follows:

1.       Archbishop Nicholas Chia’s initial letter to us, and the subsequent one withdrawing the first letter, were not marked “private and/or confidential”. Indeed, in discussing his first letter, members of Function 8 concluded that it was intended to be made public on 2 June 2012, the 25^th anniversary of Operation Spectrum. The retraction of the first letter made us cancel the plan. The organisers of the 2 June event subsequently decided that we would try to have a private dialogue with the Ministry of Home Affairs.

2.      Archbishop Nicholas Chia assumed that Mr Au could only have obtained an account of what he wrote in his article from Function 8. Has His Grace forgotten that his second letter was cc to a third party and that his staff and others within the Church may also have sight of the letters?

3.      What was his initial letter intended for and what are the unintended manners in which it could possibly be used to ‘harm the social harmony in Singapore’?

4.      Finally, we do not understand how His Grace can draw the conclusion that the disclosure of his own letter can “inadvertently harm the social harmony in Singapore” and that the fact that Mr Au has now written an article confirms the correctness of his earlier decision to withdraw the letter.

In the midst of a national conversation called by the prime minister, we believe there is no room for whispered meetings on the issues above. We request Archbishop Nicholas Chia to publish his first and second letters and advise on what transpired between the time his first letter was written and his second letter so that the public can judge for themselves whether the actions or inaction of Function 8 and Mr Au were “irresponsible and regrettable”. For clarity, His Grace should also make known to members of the public if his first letter to the organisers of the 2 June event was solicited or unsolicited.

Function 8 Ltd
20/9/2012

http://remembering1987.wordpress.com/2012/09/20/press-release/

Here is MARUAH's press statement in full:

"MARUAH, a human rights NGO, is a partner with Function 8, in particular for the June 2nd 2012 event to mark the 25th Anniversary of the alleged Marxist Conspiracy. MARUAH's position is that it is timely for a Commission of Inquiry to be set up to review the detentions under Operation Spectrum.

As part of this collaborative effort MARUAH was informed of the letters that the Archbishop had sent to Function 8 and we are aware of the contents. The letters reflect diverse views on key content areas in relation to preventive detention without trial. Both organisations made a decision not to publicise the letter(s) till we sought clarifications from Ministry of Home Affairs and other relevant parties. This decision was taken as we feel it is a better way forward as both organisations are mindful of the previous pain within the Catholic community over what happened in 1987 where the Church, the government, the detainees and the community were involved. We agreed that after these approaches to reach out for dialogues had been tried and tested we would review this incident of the letters. It is unfortunate that the matter of the letters was leaked to the media before we could receive clarifications from the relevant bodies. Both organisations had wanted to focuson seeking a dialogue rather than dealing with the Archbishop's letters a public manner through the media.

Having said that, MARUAH has to state that we are deeply disappointed with the remarks of the Archbishop in his response to the media queries. An opportunity to understand the change in the position of the Archbishop vis-a-vis preventive detention without trial was missed. We are still clueless as to whether there was intervention by the State in this matter and if so, on what grounds and to what extent. Instead civil society has been vilified in the Archbishop's remarks which are the opposite of our intentions to preserve harmony by seeking clarifications.

Nevertheless, it is more important to move forward. We are keen to have dialogue with the Ministry of Home Affairs on our ongoing efforts at public education and advocacy on preventive detentions without trial. We will also be very happy to meet the Archbishop in relation to this matter.

More importantly, it is very important to us, and to many other Singaporeans that an independent Commission of Inquiry be set up as we are perturbed by the many contradictions in this case. This was the work that began on June 2nd between MARUAH and Function 8, to ensure that the rights of those detained are protected and fulfilled through an inquiry.
Braema Mathi

President

MARUAH Singapore"

That we may dream again: The commemoration of the 25th anniversary of Operation Spectrum at Hong Lim Park as I saw it

Fear. It cripples you. It makes you a lesser being than what you are capable of. It causes you to watch your step and avoid paths, though noble, are known to have contained traps in the past.

Fear. It envelopes your consciousness in ways that few human emotions are capable of. It operates unseen and seeks justification in the most rational of arguments that mind can conjure. (After all, don't we often claim close links between bravery and foolhardiness. Conversely, we never do really state that the so-called rational man is often a coward for he seeks to cover up his fear with the respectable cloak of reason.)

On 2nd June 2012, I did something which seemed simple enough. I turned up at Hong Lim to show my support to the cause of the ex-ISA detainees, their families and friends. I had work commitments that day and didn't think that I could make it. But since the event was scheduled to end at 7 pm and since I was able to rush out of the office at 5.30pm , I thought skipping over to Hong Lim was the logical thing to do.

Was there a crowd? Well, it is all quite relative really. If we try to compare this to an election rally, there is no need to bother. The number of people that were there did not constitute a crowd by comparison (unless we were to compare it to a PAP rally). At the time that I reached there, about 300 to 400 people were gathered (based on an unscientific estimation). After the event, varying estimates have been produced and it appears safe to state that throughout the day (3pm to 7pm) anywhere between 400 to 500 people must have viewed the exhibits and/or listened to the speeches.




The important thing to note about the numbers is that this was the commemoration of an event that very few Singaporeans relate to or care about and that there is undeniably an undercurrent of fear in our nation about the ISA. For most Singaporeans, economic issues and their own personal financial battles and struggles are far more important than the demand for justice advanced by some individuals that have suffered at the hands of the authorities more than two deacades ago. Amongst those Singaporeans that consider themselves to be vocal on other issues, there are many for whom the issue of detention without trial does not resonate as a pressing concern. Then, there is the fear that holds sway in our country. Many Singaporeans that privately objected to and continue to object to the detention of students, lawyers and church workers in 1987 & 1988, do not dare to publicly identify themselves with the cause. Given these facts, the number of people that turned up (despite limited channels of communication) is remarkable.

The exhibits set up at Hong Lim turned out to be part of a kind of alternative museum of Singapore's undocumented history. As someone that loves history, I commended myself for making the split second decision to rush down from the office though it was already pretty late. There were two items that were on display that caught my attention more than anything else. The first was a calendar that was in Teo Soh Lung's car with the date 20 May 1987 hauntingly halted. She was in the habit of tearing off each date when she headed off to work. But, on 21 May 1987, she did not head off to work as she was whisked away in the middle of the night by ISD officers.



What must it be like to hear that knock on the door and to be cut off so abruptly in the prime of your youth from the rest of society and to be accused of 'crimes' that you had no knowledge of. The thought itself is frightening. The experience must have been traumatic. It is not surprising that many decent Singaporeans still fear the possibility that if you spoke out too much you would be detained under the ISA, charged for sedition, sued for defamation, pursued by regulatory bodies for regulatory infringements, denied access to benefits, denied HDB grants, demoted or not given promotions (for civil servants), denied funding or simply deprived of, denied or prevented from obtaining anything that might be within the powers of the state to deprive, deny or prevent.

I have friends that do not think that it is safe for me to blog the way I do. "Be careful" - that is a common refrain. Just a few days ago, I was casually reminded on facebook that the authorities probably monitor bloggers and that there is still the Internal Security Act in this country. The muzzling of political opinion, where such opinion deviates from the accepted state narrative, has been accepted and internalised by the citizens of this country. It is taken for granted by many that 'big brother is watching you.' When the arrests took place in 1987, I was 19 yrs old. I still remember being conscious about what my friends and I discussed in public. I remember that many of us were hesitant to voice out anything that might be perceived as being anti-PAP. Whatever the government might have intended to flow from the 1987 detentions and whatever the impression they intended to create, it is undeniable that the message taken away by many citizens was that criticising the PAP's policies or the PAP leaders was a dangerous thing.

A second exhibit that caught my eye was the crucifix that gave Vincent Cheng much strength.


Being a man of faith, the darkest hours in detention must have still been made bearable for Vincent Cheng by the reminder of God's infinite love. On seeing the crucifix, I couldn't help but recollect the subtext in the Marxist conspiracy allegation. Whilst most of the detainees were members of the Catholic Church, part of the official story that initially emerged involved Tan Wah Piow as the mastermind of the plot and Vincent Cheng as the local ringleader. The story was that of a conspiracy by these individuals to set up a Marxist state. But, a subsequent gloss on the Marxist plot was the linkage with Liberation Theology.

So many questions still remain in my mind. Did liberation theology really have any impact on local Catholics? Were they even aware or or influenced by the moving ideas of Liberation Theology? If indeed Liberation Theology had influenced these conspirators, what was so bad about it? Oh yes, the detractors of Liberation Theology claim that it is Marxist in origin. That is itself a contentious assertion. A milder assertion against Liberation Theology is that it is the face of political Catholicism: placing importance on social justice and political upliftment of the poor as a manifestation and expansion of the ideals of Christ.

If indeed, Liberation Theology was based on Marxism or influenced by it, were these adherents advocating the overthrow of the capitalist state by force? Or was it a more innocent yearning for greater democracy? What was the experience in Latin America and Philipines? Were they not seeking more democracy?

If indeed, the 1987 conspirators were influenced by Liberation Theology, were these individuals even planning the violent overthrow of the state? Were these individuals not advocating social change through law reform and attitudinal change in society? What was so threatening about their actions or their plans that warranted the action taken against them?

I know what many of my generation suspected. The state was beginning to witness increased criticism. Opposition parties were making headway into Parliament. The PAP's popular vote was being reduced. (It must be remembered that some of the detainees were also active in the Workers' Party.) If one were to throw workers' rights into the mix and allow the rise of social activism, it would not have been long before, the Parliamentary dominance of the ruling party would be affected.

Amongst the detainees is a person that I know personally. I did not know him at that time but became acquainted with him during my days as a practising lawyer. Kevin de Souza was a law student at NUS at the time of his arrest in 1987. If he was not arrested, his career path would have followed that of any other law graduate: proceeding into legal practice and focusing solely on fattening one's wallet or if one was a little bit more idealistic, putting one's legal skills to good use by doing regular pro bono work and assisting in the law society's Criminal Legal Aid Scheme. As it turned out, after his release from detention, he ended up exactly the way he would have ended up if he was not arrested: becoming a legal practitioner actively contributing his services to worthy causes. Idealist, yes. Marxist, no.




Another exhibit that moved me was a simple ink painting of a black sky with a white moon. It wasn't the painting that was moving but the poem written by Lim Li Kok as an accompaniment to the painting that got under my skin.

WHITE MOON

woke up last night
from the chill of
thin shards of rain falling from the sky.
i raised my head
the sky was pitch black
while the half moon
remained white

The theme that runs throughout the works of those that have experienced unjust imprisonment anywhere is the presence of hope in the darkest hour. I guess that hope is the one thing that keeps us sane.



On a lighter note, I was thoroughly amused by the meme's done up to represent the different detainees. It was fun and in a certain way spoke of the lack of animosity or bitterness on the part of the detainees today. What they want today is just to set the record straight.

















AS I arrived at the event rather late, I missed most of the speeches and was in time to listen to part of Vincent Wijeysinha's speech.



I support the call for the abolition of the Internal Security Act. However, I can't agree with his suggestion of replacing it with a specific act targeting terrorists and presumably therefore permitting some form of preventive detention. The issue that I have with any form of detention without trial is that it becomes a tool in the hands of politicans that tempts them to abuse power. Detention without trial would deprive the person of any opportunity to present his case to an independent judiciary. The very problem that arose with Operation Coldstore and Operation Spectrum would arise in the context of persons alleged to be terrorists.

Amongst many people that support the cause of the 1987 detainees, there are a significant proportion that are convinced of the guilt of the JI detainees and the guilt of Mas Selamat. But, how do we so confidently assert that these men are guilty? How do we presume for ourselves the right to deny these men a fair trial before an open court. Let the state produce the evidence against a person alleged to be a terrorist in a court of law and let the court find him guilty. If the state did not have such evidence in the first place, then is mere suspicion and conjecture permissible as the basis for the arrest and indefinite detention of individuals?

Anyone calling for the repeal of the ISA on a principled basis must not be calling for some sort of preventive detention law targetted at alleged terrorists. Let those terrorists be charged and convicted in a court of law for the offences that they have committed and the offences that they are conspiring to commit. We cannot, simply on the basis that we have a gut feeling that the 1987 detainees were do-gooders, engage in a form of exceptionalism for persons that we deem to be political detainees and persons that we deem to be terrorists. That's just another label. How arbitrary is that?

25th Anniversary of the Marxist Conspiracy: remembering a legal footnote

This is an old piece I did for the 22nd anniversary of the Marxist conspiracy detentions. Today, 2nd June 2012, Maruah has organised an event at Speaker's Corner, Hong Lim Park to commemorate the 25th anniversary of the detentions. So, I think it is appropriate for me to resurrect this piece....

Chng Suan Tse v Minister for Home Affairs (1998) SLR 132
The case involved Operation Spectrum and the primary issue was over the court’s ability to review the Executive’s decision to detain under the Internal Security Act. It proved to be a landmark decision as the Court of Appeal chose to apply an objective test in assessing the discretion of the Executive instead of applying a purely subjective test as the courts had done in the past. Prior to this case, the position of the courts was to adopt a subjective approach as in the case of Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137.

What was the implication of the Chng Suan Tse decision? The Internal Security Act demands that the as a precondition to detention, the President be ‘satisfied’ as to certain matters. If the test was purely subjective as it was in Lee Mau Seng, there was little that a detainee could do to question the exercise of discretion. If the test was objective as propounded by the Court of Appeal in Chng Suan Tse, then it was possible for the court to assess at least whether objectively the President was ‘satisfied’.

The then Chief Justice, Wee Chong Jin stated in the judgment:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so.”

“It must be clear therefore that the boundaries of the decisionmaker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. There is also, as counsel for the appellant has pointed out, no ouster clause in respect of s 8 or 10 of the ISA. Adopting the objective test in respect of ss 8 and 10 of the ISA would also be consistent with arts 9(2) and 93 of the Constitution. Further, it is, in our view, no answer to refer to accountability to Parliament as an alternative safeguard. As Lord Diplock put it in R v IRC, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 644:
It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge


The Court went on to rule that:

"the President’s satisfaction under s 8 of the ISA and the minister’s satisfaction under s 10 of the ISA are both reviewable by a court of law as:
(1) the subjective test adopted in Karam Singh [1969] 2 MLJ 129 and its progeny can no longer be supported and the objective test is applicable upon a judicial review of the exercise of these discretions; and
(2) although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations; similarly, although the court will not question whether detention was necessary for the purpose specified in s 8(1), the courts can examine whether the matters relied on by the executive fall within the scope of those specified purposes"


Of course, the story did not end there. Parliament duly amended the Internal Security Act in 1989 to nullify the effect of this case in relation to detentions under the ISA. By virtue of s.8B, the law on judicial review with regard to the ISA detentions was brought back to the position in 1971 and by virtue of s.8D the legislative change was to have effect in relation to any proceedings whether commenced before or after the amendment.

Law applicable to judicial review.
8B. —(1) Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply.
(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.
- Act 2/89 wef 30.1.89.

Commencement provision.8D. Sections 8A and 8B shall apply to any proceedings instituted by way of judicial review of any decision made or act done under the provisions of this Act, whether such proceedings have been instituted before or after the commencement of the Internal Security (Amendment) Act 1989.
- Act 2/89wef30.1.89.

The Marxist Conspiracy of 1987 - revisiting a legal footnote

Five young activists have organized a gathering at Hong Lim Park to commemorate 21st May 1987. I’m glad to see that there are still many who recall the alleged ‘Marxist Conspiracy' of that era. I was 19 at that time and watched incredulously as a parade of tales emanated from the available media outlets.

There are so many things that we could recollect in relation to those days. Where were we? How did the news unfold? The general skepticism amongst many of us. I’d like to use this occasion to commemorate the day that our judiciary stood tall in the context of the rather limited legal role that it has in the review of executive action.

Chng Suan Tse v Minister for Home Affairs (1998) SLR 132
The case involved Operation Spectrum and the primary issue was over the court’s ability to review the Executive’s decision to detain under the Internal Security Act. It proved to be a landmark decision as the Court of Appeal chose to apply an objective test in assessing the discretion of the Executive instead of applying a purely subjective test as the courts had done in the past. Prior to this case, the position of the courts was to adopt a subjective approach as in the case of Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137.

What was the implication of the Chng Suan Tse decision? The Internal Security Act demands that the as a precondition to detention, the President be ‘satisfied’ as to certain matters. If the test was purely subjective as it was in Lee Mau Seng, there was little that a detainee could do to question the exercise of discretion. If the test was objective as propounded by the Court of Appeal in Chng Suan Tse, then it was possible for the court to assess at least whether objectively the President was ‘satisfied’.

The then Chief Justice, Wee Chong Jin stated in the judgment:
“In our view, the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so.”

“It must be clear therefore that the boundaries of the decisionmaker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. There is also, as counsel for the appellant has pointed out, no ouster clause in respect of s 8 or 10 of the ISA. Adopting the objective test in respect of ss 8 and 10 of the ISA would also be consistent with arts 9(2) and 93 of the Constitution. Further, it is, in our view, no answer to refer to accountability to Parliament as an alternative safeguard. As Lord Diplock put it in R v IRC, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at p 644:
It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge


The Court went on to rule that:

"the President’s satisfaction under s 8 of the ISA and the minister’s satisfaction under s 10 of the ISA are both reviewable by a court of law as:
(1) the subjective test adopted in Karam Singh [1969] 2 MLJ 129 and its progeny can no longer be supported and the objective test is applicable upon a judicial review of the exercise of these discretions; and
(2) although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations; similarly, although the court will not question whether detention was necessary for the purpose specified in s 8(1), the courts can examine whether the matters relied on by the executive fall within the scope of those specified purposes"


Of course, the story did not end there. Parliament duly amended the Internal Security Act in 1989 to nullify the effect of this case in relation to detentions under the ISA. By virtue of s.8B, the law on judicial review with regard to the ISA detentions was brought back to the position in 1971 and by virtue of s.8D the legislative change was to have effect in relation to any proceedings whether commenced before or after the amendment.

Law applicable to judicial review.
8B. —(1) Subject to the provisions of subsection (2), the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on the 13th day of July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply.
(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governing such act or decision.
- Act 2/89 wef 30.1.89.

Commencement provision.8D. Sections 8A and 8B shall apply to any proceedings instituted by way of judicial review of any decision made or act done under the provisions of this Act, whether such proceedings have been instituted before or after the commencement of the Internal Security (Amendment) Act 1989.
- Act 2/89wef30.1.89.