Internal Security Act (Singapore)

The Internal Security Act 1960 (ISA) of Singapore is a statute that grants the executive power to enforce preventive detention, prevent subversion, suppress organized violence against persons and property, and do other things incidental to the internal security of Singapore. The present Act was originally enacted by the Parliament of Malaysia as the Internal Security Act 1960 (No. 18 of 1960), and extended to Singapore on 16 September 1963 when Singapore was a state of the Federation of Malaysia.

Before a person can be detained under the ISA by the Minister for Home Affairs, the President must be satisfied that such detention is necessary for the purposes of national security or public order. In the landmark case of '' Chng Suan Tze v. Minister for Home Affairs'' (1988), the Court of Appeal sought to impose legal limits on the power of preventive detention by requiring the Government to adduce objective facts which justified the President's satisfaction. Two months after the decision, a series of legislative and constitutional amendments was enacted that effectively reversed the ''Chng Suan Tze'' decision. These amendments were subsequently confirmed to be valid by the High Court and Court of Appeal in '' Teo Soh Lung v. Minister for Home Affairs'' (1989–1990), which held it is sufficient for the President to be subjectively satisfied that a detainee is a threat to national security in order for a detention order to be issued under the ISA. Notable ISA cases include Operation Coldstore in 1963 which led to the arrest of some 100 left-wing politicians and trade unionists, including members of the socialist opposition party, the Barisan Sosialis. Chia Thye Poh, an alleged Communist, was detained and subject to other restrictions on his liberty under the ISA from 1966 to 1998. The ''Chng Suan Tze'' and ''Teo Soh Lung'' cases resulted from a 1987 security operation called Operation Spectrum in which 22 Roman Catholic church and social activists and professionals accused of being members of a Marxist conspiracy were detained under the ISA.

The ISA also empowers the authorities to prohibit political and quasi-military organizations, ban subversive documents and publications, shut down entertainments and exhibitions that are or are likely to be detrimental to the national interest, and to suppress organized violence by declaring parts of Singapore to be security areas.

History and developments

British colonial Malaya introduced the Emergency Regulations Ordinance 1948 on 7 July 1948 during the Malayan Emergency in response to a Communist uprising and guerrilla war. The regulations allowed the police to arrest anybody suspected of having acted or being likely to act in a way that would threaten security without evidence or a warrant, hold them incommunicado for investigation, and detain them indefinitely without the detainee ever being charged with a crime or tried in a court of law.

The successor to the Emergency Regulations Ordinance, the Preservation of Public Security Ordinance 1955 ("PPSO"), was introduced a result of the 1955 Hock Lee bus riots by the Labour Party government in Singapore. There was strong opposition to the PPSO by the party then in opposition, the People's Action Party ("PAP"). In 1958, Lee Kuan Yew of the PAP accused the Lim Yew Hock government of using the PPSO to stifle political dissent.

In 1960, three years after Malaya's independence, the Emergency was declared over. However, the Malayan Internal Security Act 1960 ("ISA") was passed in place of the PPSO with much of the same powers. During parliamentary debates on the Act, Malayan Prime Minister Tunku Abdul Rahman stated that the ISA would only be applied against only the remaining Communist insurgents. The Malayan Communist Party and its insurgents eventually surrendered in 1989. Nonetheless, the ISA was retained in Malaysia.

The drafter of the Malayan ISA was Hugh Hickling, a British lawyer, author and professor. In 1989, he commented that he "could not imagine then that the time would come when the power of detention, carefully and deliberately interlocked with Article 149 of the Constitution, would be used against political opponents, welfare workers and others dedicated to nonviolent, peaceful activities". Nonetheless, he commented that he supported review of the ISA but it was not for him to say if the law should be scrapped, as "you've got a multi-racial society n Malaysiain which emotions can run high very quickly".

When Singapore joined the Federation of Malaya in 1963, the Malayan ISA was extended to Singapore. The Act was retained in Singapore even after its separation from Malaysia in 1965. The current version of the Act is known as Chapter 143 of the 1985 Revised Edition. In September 2011, the debate over whether the ISA should be retained was re-opened after Malaysia announced that it was considering repealing the ISA. Prime Minister Najib Razak stated that the Act would be abolished and replaced by new laws to safeguard peace and order.

The legitimacy and relevance of the ISA were subsequently debated by former ISA detainees, the Singapore Government, and others. Member of Parliament for Pasir Ris–Punggol Group Representation Constituency, Dr. Janil Puthucheary, commented in Parliament on 18 August 2011 that "while he felt it inappropriate to detain a citizen without trial, he is convinced by the hard logic that the safety and security of Singapore must be paramount". However, he agreed that there needed to be more safeguards to prevent abuse of the ISA and that "the ISA needs to be discussed in a more transparent manner, even as the facts associated with a given detainee need to be kept secret".

The following day, 19 October 2011, Deputy Prime Minister, Coordinating Minister for National Security and Minister for Home Affairs Teo Chee Hean explained the relevance of the ISA and its powers of preventive detention. He noted that in the 1960s preventive detention was primarily used to counter the subversive Communist threat posed by the Malayan Communist Party which was hiding within legal organizations. For the past two decades, though, preventive detention has helped safeguard Singapore's national security by countering threats posed by espionage and terrorism. Preventive detention allows for a comprehensive assessment of a threat, as opposed to a criminal case tried before a court which requires the court to consider only the specific acts that relate to the charge. Detaining those who have not yet committed overt deeds that warrant prosecution also allows pre-emptive action to be taken to neutralize threats before they materialize into actual harm. In addition, the Minister said that detention without trial is preferable in situations where open prosecutions in court are not practicable due to the confidentiality of certain intelligence. Such intelligence might have been obtained through foreign security agencies on the understanding that the source and details would not be disclosed to an open court. What is more, disclosure of confidential intelligence could compromise ongoing or future operations through the revelation of existing sources and methods of intelligence gathering. However, if confidential information were withheld from the court, a criminal case could be weakened due to evidential requirements, which may result in the acquittal of an otherwise guilty accused. Finally, court proceedings may stall investigations as part of a broader network, and could exacerbate situations where communal sensitivities are involved.

Opposition political parties in Singapore have called for the ISA to be abolished. In its manifesto for the 2011 general election, the Workers' Party said that specific anti-terrorism and anti-espionage laws, which allow arrests and detention without trial only under strict conditions, should be enacted to replace the ISA. The National Solidarity Party took a similar stance in February 2013.

In late January 2021, the Singaporean Internal Security Department confirmed it had detained a 16-year old Protestant Indian youth under the Internal Security Act for plotting to attack the Assyafaah and Yusof Ishak Mosques on the anniversary of the Christchurch mosque shootings. The youth had been motivated by anti-Muslim sentiments and regarded the Christchurch mosque shooter Brenton Tarrant as a "saint." The youth is the youngest person and first far right extremist to be detained under the ISA.

Legislative authority for enactment

The legislative authority for the enactment of the ISA is Article 149 of the Constitution of Singapore, which appears in Part XII ("Special Powers against Subversion and Emergency Powers"). Entitled "Legislation against subversion", Article 149 states:

To satisfy the requirements of Article 149(1), the preamble to the Malaysian ISA, which has been retained in Singapore's ISA, contains the following recital:

Provisions relating to internal security

Part II of the ISA, the first substantive part of the Act, contains provisions relating to internal security. It is divided into six chapters:

:I. Prohibition of organisations and associations of a political or quasi-military character and uniforms, ''etc.''
:II. Powers of preventive detention.
:III. Special powers relating to subversive publications, ''etc.''
:IV. Control of entertainments and exhibitions.
:V. Other powers for the prevention of subversion.
:VI. Miscellaneous.

Prohibition of political or quasi-military organizations

Chapter I of Part II of the ISA empowers the Minister for Home Affairs to take action against political or quasi-military organizations and associations. It is a criminal offence to be a member or adherent of any association of persons who are organized, trained or equipped to enable them to be employed "in usurping the functions of the police or of the Singapore Armed Forces" or "for the purpose of enabling them to be employed for the use or display of physical force in promoting any political or other object, or in such a manner as to arouse reasonable apprehension that they are organised or trained or equipped for that purpose". It is a more serious crime to promote or conspire with someone else to promote, or to participate in the control or management of, the association, or to organize or train any member or adherent of the association.

The Minister is empowered to prohibit any uniform or dress to be worn in public by members or adherents of a political or quasi-military association involved in the activities mentioned in the previous paragraph, or any uniform or dress indicating an association with a political organization or with the promotion of a political object. Wearing such a uniform or dress in contravention of the Minister's order is an offence. In addition, if the Minister considers it to be in the national interest to do, he may prohibit the "manufacture, sale, use, wearing, display or possession of any flag, banner, badge, emblem, device, uniform or distinctive dress or any part thereof". Currently, the only emblem or device that is prohibited is one "in the form of a 5-pointed red star or a hammer and sickle in circumstances which raise a reasonable presumption that the emblem or device was intended or was likely to be used in a manner prejudicial to the interests of Singapore or to promote or foster a purpose prejudicial to or incompatible with peace, welfare or good order in Singapore".

It is a crime for a person to be present at or to attend any meeting or assembly organized for the participants to train or drill themselves or to be trained or drilled "in the use of arms ... or for the purpose of practising military exercises, movements or evolutions". It is also a crime to train or drill other people in these manners or to take part in the control or management of an association whose members are so trained. The prohibition does not apply to members of the Singapore Armed Forces, the police, a legally constituted volunteer or local force, a visiting force lawfully present in the country, or any organization or association exempted by the Minister.

Preventive detention

Chapter II of Part II of the ISA, which allows for preventive detention (also known as detention without trial), is the most conspicuous feature of the Act. It confers on the executive a discretionary power to arrest and detain without trial, when necessary, a person with a view to prevent "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".ISA, s. 8(1)(a). For the purposes of this provision, ''essential services'' means services relating to water, electricity, public health, fire, prisons, post, telephony, telegraphy, radiocommunication (including broadcasting and television), ports, docks, harbours, public transport, and the bulk distribution of fuel and lubricants.

Instead of detaining a person for the purposes mentioned above, the executive may impose other restrictions upon the person's liberty such as curfews, requiring the reporting of their movements, prohibiting the person from speaking at public meetings or taking part in political activities, and travelling beyond Singapore or any part of the country.

Procedure

=Before detention

=

Before a person can be detained under the ISA, the President must be satisfied that such detention is necessary for the purposes of national security or public order. This is a precondition for the valid exercise by the Minister for Home Affairs of the power to order the detention.'' Chng Suan Tze v. Minister for Home Affairs'
[1988] SGCA 16
9882 S.L.R.(R.) 'Singapore Law Reports (Reissue)''525 at 537, para. 30, Court of Appeal (Singapore), archived fro
the original
on 24 December 2011. The detention order is supplemented by section 74 of the ISA which empowers the police to arrest and detain any person pending enquiries without a warrant under section 8.

=Initial detention

=
Once an individual has been detained, there are administrative processes which the executive is required to follow under sections 9, 11 and 12 of the Act. The detainee is to be informed of the grounds of detention as soon as possible, unless their disclosure is against the national interest. They are to be served with a copy of the detention order as well as the grounds and allegations of fact on which the detention order was made.

The detainee is also to be informed within 14 days of their right to make representations against the order to an advisory board, which is required to hear and consider the detainee's representations.ISA, s. 12(1). Each advisory board is chaired by a Supreme Court judge appointed by the President, and has two other members appointed by the President in consultation with the Chief Justice. The board has the powers of a court to summon and examine witnesses, and to order that documents be produced. It evaluates the evidence and must make recommendations to the President concerning the matter within three months of the date of detention. When the advisory board recommends the release of the detainee against the Minister's decision, the President exercises personal discretion whether the detainee should be released. Before exercising his discretion, the President is required to consult the Council of Presidential Advisers.

Non-citizens detained under the ISA do not have a right to make representations to an advisory board. They may, within two months from the date of the detention order, make written representations to the Minister. The Minister may, but is not bound to, refer the representations to an advisory board. Any decision on such representations by the Minister is final and cannot be called into question in any court. The burden of proving that a person is a citizen lies on the person claiming to be one, and again the Minister's decision on the matter is final.

=Extension and suspension of detention

=
The initial order of the Minister for Home Affairs may direct that an individual be detained for up to two years. This may be further extended by directions issued by the President for further periods of up to two years at a time. The Minister is empowered with discretion to suspend a detention order, but also has the authority to revoke the suspension at any time, which reactivates the detention order.ISA, s. 10. Detention orders must be reviewed at least once every 12 months by an advisory board which thereafter makes its recommendation to the Minister. If an advisory board recommends the release of a detainee and the Minister disagrees, the President may exercise personal discretion to order the release. The requirement for regular reviews of detention orders does not apply to detainees who are not citizens. When a detention order is extended, the Minister is not required to provide the detainee with the grounds justifying the extension order or give the detainee an opportunity to appeal against the extension.

Scope of judicial review of ISA orders

Under administrative law, judicial review is an exercise in which the High Court scrutinizes the executive's decisions and orders to ensure that they conform with the law. If the decisions and orders are not authorized by statute or if they have been made in contravention of administrative law principles, the Court can invalidate them. Similarly, if any exercise of power by an executive body contravenes the Constitution, the Court has a duty to declare it invalid. With regards to the ISA and the powers to detain without trial, the scope of judicial review was subject to a succession of changes between 1988 and 1990. These changes revolved around the issue of whether the discretion of the President and the Home Affairs Minister should be assessed objectively or subjectively. During that period, the scope of judicial review was expanded by common law developments but was subsequently curtailed by legislative and constitutional amendments.

=Before 1988: ''Lee Mau Seng v. Minister for Home Affairs''

=

Prior to 1988, the Singapore case of ''Lee Mau Seng v. Minister for Home Affairs'' (1971) was authority for the application of the subjective discretion test for judicial review of executive power exercised under the ISA.''Lee Mau Seng'', p. 157, para. 60. The subjective test precludes the court from inquiring into the facts and grounds that are relied upon by the executive body in exercising its discretion. It is based on the literal interpretation of the words " the President is satisfied" that appear in section 8 of the ISA, such that no more is required than the subjective satisfaction of the President. This reasoning applies similarly to section 10 of the ISA, which requires the Minister's satisfaction for the suspension of detention orders.

=1988–1989: ''Chng Suan Tze v. Minister for Home Affairs''

=
In the case of '' Chng Suan Tze v. Minister for Home Affairs'' (1988), the Court of Appeal expanded the scope of judicial review by adopting an objective test when reviewing the exercise of executive discretion. In contrast to the subjective test, the objective test permits the court to examine whether the decision-maker's satisfaction was based on objective facts which fell within the scope of the purposes specified by the ISA. The subjective satisfaction or mere ''ipse dixit'' of the executive body is insufficient. However, the adoption of this objective test was only part of the ''obiter dicta'' of the case. The ''ratio decidendi'' of the case was based on narrower technical grounds.

The subjective test was rejected for several reasons by the Court of Appeal. It held that applying the subjective test to sections 8 and 10 of the ISA would render the provisions unconstitutional. The word ''law'' in Article 12(1) of the Constitution was held in ''Ong Ah Chuan v. Public Prosecutor'' (1980) to encompass fundamental rules of natural justice. Hence, Parliament cannot pass legislation which authorizes the executive to exercise power in breach of these fundamental rules or to exercise power in an arbitrary manner. If the subjective test were to be adopted, it would in effect allow the executive to exercise arbitrary powers of detention, therefore rendering sections 8 and 10 of the ISA inconsistent with Article 12(1). When the case was decided, Article 149(1) of the Constitution, which protects the validity of anti-subversion laws notwithstanding inconsistencies with specified fundamental liberties, did not cover inconsistencies with Article 12. Also, the Court noted that adopting the objective test would be consistent with Article 93 of the Constitution, which vests judicial power in the courts.''Chng Suan Tze'', p. 553, para. 86. It did not, however, directly address the argument by counsel that the subjective test, in conferring arbitrary powers of detention, would be inconsistent with Article 93.

Further, the Court rejected the subjective test on the basis that "the notion of a subjective or unfettered discretion is contrary to the rule of law". The rule of law requires the courts to examine the exercise of discretionary power and ensure that executive power is exercised within its legal limits.

The Court of Appeal also held that legal precedents from other Commonwealth jurisdictions supported a rejection of the subjective test in favour of the objective test. The subjective test was applied in '' Liversidge v. Anderson'' (1941) and subsequently affirmed in ''Greene v. Secretary of State for Home Affairs'' (1941). However, these decisions had been departed from in subsequent decisions by the Privy Council and House of Lords. These courts had rejected the subjective test applied by the majority

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