Full Hansard By Related Section By Related Title

Parliament No: 7
Session No: 1
Volume No: 52
Sitting No: 7
Sitting Date: 1989-01-25
Section Name: BILLS

Column: 463

CONSTITUTION OF THE REPUBLIC OF SINGAPORE (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That
the Bill be now read a Second time." This Bill is closely related to the other Bill which is
next on our Order Paper, the Internal Security (Amendment) Bill.

Main purposes of the two Bills

Sir, the main purpose of both Bills is to restore the law on judicial review, its review by
our courts, of discretionary powers of the Executive under the Internal Security Act
(ISA), to restore it to what it was before the recent Court of Appeal judgment on 8th
December 1988. In effect, it is to restore and reaffirm that the subjective test should
apply. Another purpose, which is spelt out in the Internal Security (Amendment) Bill, is
to abolish appeals to the Privy Council in cases involving review of ISA cases,
interpretation of the ISA or interpretation of provisions in the Consti-
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tution dealing with emergency powers or subversion, namely, the provisions in Part XII
of the Constitution.

Sir, may I suggest, of course, with your permission, that the debate on these two broad
purposes take place during the debate on this Bill because the points and arguments and
issues are inter-related and I think it will make for a more coherent debate and avoid
repetition and overlapping of points, although of course Members should not be
precluded from raising questions or expressing their views on the other Bill.

Clause 2: Position of the Chief Justice

First, let me deal with clause 2 of the Constitution (Amendment) Bill which has really
nothing to do with the Internal Security Act. That, Sir, concerns the constitutional
position relating to the Chief Justice. This was covered last week in this House when I
answered the question from Dr Lee Siew-Choh.

Sir, the amendment is intended to remove any doubt that a Chief Justice who has
reached the age of 65 can be re-appointed to continue in that office beyond the age of 65.
As I said last week, Article 94(3) of the Constitution expressly allows judges who have
reached the age of 65 to be re-appointed. We have several judges in this category and the
current Chief Justice is one of them, having been re-appointed on 28th September 1982
upon reaching the age of 65. Mr Jeyaretnam, in his appeal to the Privy Council (PC) on
the question of disbarment, questioned the legality of the Chief Justice's re-appointment.
As I said last week, there is no merit in the argument. The point was not pursued in the
appeal nor was it addressed in the judgment of the Privy Council. But since the point has
been
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raised, we think it is necessary to put the matter beyond any doubt; and that is the
intention of clause 2.

Review of decisions of the Executive under the ISA

Sir, let me now turn to the main purpose of these Bills, namely, the question of
reviewing discretionary powers of the Executive under the ISA. These Bills are necessary
because the Court of Appeal in its recent judgment of December 1988 departed from long
standing principles of law governing such judicial review.

What were these established principles of law?

"The Subjective Test"

First, let me explain to the House what are these established principles of law and what
is the subjective test. In Singapore, ever since we had our first Emergency legislation way
back in 1948, the Executive alone has been responsible for decisions on national security,
including arrests and detentions. This was the case right up to and until the Court of
Appeal judgment in December 1988. Until then, the courts would never question the
exercise of the discretionary powers by the Executive. They would not substitute their
judgment for the judgment of the Executive. In other words, they applied what is
commonly known as the "subjective test". I have distributed to Members of the House
extracts from cases of Lee Mau Seng and Karam Singh. These are cases which firmly
established these principles of the subjective test and are cases which are important
precedents that have guided the courts ever since and its extracts, I hope, will be helpful
to Members to understand the issues.

If I may briefly, Sir, refer to page 1 of the extracts, the underlined part, the Chief
Justice in the Lee Mau Seng case said, if I may quote:

'... the power to issue a detention order has been made [that means in the Act] to
depend upon the existence of a state of mind in the President acting in accordance with
the advice of the Cabinet which is a purely subjective condition so as to exclude a judicial

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enquiry into the sufficiency of the grounds to justify the detention.' And on page 3, an
extract from Karam Singh's case, towards the end of that extract:

'Whether or not the facts on which the order of detention is to be based are sufficient or
relevant, is a matter to be decided solely by the Executive. In making their decision, they
have complete discretion and it is not for a court of law to question the sufficiency or
relevance of these allegations of fact.' And it is not just the Malaysian court or the
Singapore court, I have also included an extract from one of the Law Lords, Lord
Diplock in a case commonly referred to as "the GCHQ case". Last extract:

'National security is the responsibility of the executive government, what action is

needed to protect its interest is, ... and common sense itself dictates, a matter on which
those on whom the responsibility rests, and not the courts of justice, must have the last
word. It is par excellence a non-justiciable question. The judicial process is totally inept
to deal with the sort of problems which it involves.'

What did the Court of Appeal decide?

What did the Court of Appeal decide in December? The Court of Appeal altered this
principle of the subjective test which had been laid down by the Chief Justice in Lee Mau
Seng's case. It has, in fact, said it will no longer follow the subjective test.

In short, the Court of Appeal decided that the courts henceforth can question the
decision to detain. It can examine whether the decision was reasonable and based on the
evidence acceptable to the court. What will be the end result? The end result will be a
substitution of the judgment of the courts for the judgment of the Executive. That is the
end practical result.

What was the Basis for Court of Appeal's judgment?

On what basis did the Court of Appeal come to this decision and on what basis and on
what reasons did the Court of Appeal abandon the long standing law as reflected in Lee
Mau Seng? Quite frankly, Sir, the Court did so because of cases decided in the United
Kingdom and other parts of the Commonwealth. In fact, the Court said so, and I quote
from the Court's judgment:

"We [ie, the Court of Appeal] respectfully say that we agree with judicial opinion
expressed in other
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jurisdictions, to the effect that the Court can objectively review the President's exercise of
discretion in the context of preventive detention on national security grounds." Sir, the
Privy Council is the final Appellate Court in our legal system and cases decided in the
UK and the Commonwealth, especially decisions of the Law Lords in the Privy Council,
are "persuasive authority" in our courts.

Because of developments in Britain and elsewhere in the Commonwealth,

developments which are totally unconnected with our country and our society, courts in
the United Kingdom over recent years have been adopting what I would call an
interventionist approach, an interventionist role in reviewing the actions of the Executive.
That is, they are willing to ignore or disregard the clear intent of the statutory provisions
and go behind the decisions of the Executive. These trends are particularly marked when
it comes to statutory provisions which are similar to our Internal Security Act and the
British courts have interpreted such provisions to allow greater and greater judicial
intervention and control of acts of the Executive, even when it comes to questions of
national security, the most recent example being that of the Spycatcher case.

The recent judgment of the Court of Appeal in December 1988 showed that the
Singapore courts have accepted such United Kingdom and other precedents. Indeed they
have to, they have no choice because, if our courts were to ignore such precedents, the
Privy Council in the United Kingdom can and probably will overrule our Court of
Appeal. So they have to follow these precedents.

So in the recent Court of Appeal judgment, the Court

departed from the long standing but settled law on subjective test and it has really
given notice that in future it will follow these changes in judicial attitudes in the United
Kingdom and also the judgment shows how our courts will be influenced by changes in
the United Kingdom and indeed even of Europe, as I will show in a moment, changes
which have been caused by factors totally unrelated to our society. The question can then
be asked, "What is wrong with these foreign trends being imported into Singapore? Why
should the subjective test be
Column: 468

restored? Sir, there are good reasons why it is necessary to restore the subjective test in
Lee Mau Seng case and to provide that foreign case law shall not apply. Let me give three
reasons.

First, Sir, if we do not restore the subjective test in Lee Mau Seng, and if we allow
foreign case law and precedents to allow our courts to be involved in an interventionist
role, then we will have an untenable position - clearly an untenable position - because our
law on national security matters will be governed by cases decided abroad, in countries
where conditions are totally different from ours.

To illustrate, Sir, let me mention the Spycatcher case. In that case the United Kingdom
government on national security grounds wanted to restrict newspaper publication of
allegations made by a former member of the security service, in breach of his duty of
secrecy. The United Kingdom courts rejected the evidence of the United Kingdom
Cabinet Secretary that such publication would be damaging to the national security of
United Kingdom. The courts rejected this. I cite this for us to consider: if the courts in the
United Kingdom take such a decision with regard to the United Kingdom government on
a matter concerning national security of the United Kingdom, what more regard do we
expect those judges to have with regard to national security of Singapore thousands of
miles away?

A second illustration, Sir. Members must have read recently that the European Court of
Human Rights decided that the United Kingdom legislation which empowers their
government to detain suspected terrorists violated the European Convention on Human
Rights and declared it to be invalid. This is but one example of how United Kingdom
laws, United Kingdom legal position, and eventually their judicial thinking, is being
affected and will be affected by their entry into the European Community and decisions
of the European Court which are factors totally alien to us. The European Court has no
concern whatsoever to Singapore. But their law is binding on UK courts. It will influence
the UK judges and those precedents will be then imported into Singapore.
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Second reason, Sir, as to why it is necessary to restore the subjective test is that if
Singapore courts are allowed, because of all these foreign precedents, to review the
discretion of the Executive on security matters, as expounded in the Court of Appeal
judgment, then Singapore judges will in effect become responsible for and answerable to
decisions affecting national security of Singapore because they would then have the final
say. It must be so. But this was not, and never was, the intention of the Legislature as
expressed in the ISA or the earlier predecessor legislation. It never was. It is the settled
principles of the subjective test which have enabled the Government to deal effectively
with Communists, communalists and other threats to security. It is these settled principles
which have enabled us to handle security threats and to maintain stability. And they will
remain essential to the security of Singapore and it is unwise to change the law. Our
courts, Sir, should not therefore be involved in the exercise of these powers of detention.

Let me add here, Sir, that this position which I have expounded is not some
newfangled theory concocted by the Government. This has always been the position of
the Government, and I would refer Members to the Hansard when the PAP Government
took power shortly after it assumed office. I refer, if Members are interested, to Hansard,
14th October 1959, a speech by the Prime Minister where he moved amendments to the
then Preservation of Public Security Ordinance. One of the amendments concerned the
role of the judges. At that time the judges had a role sitting as an Appellate Tribunalon
preventive detention. The judges had communicated with the Government, and the Acting
Chief Justice had communicated with the Government to say [col. 669]:

'My brother judges and I are all of the opinion that it is extremely undesirable for
members of the judiciary to constitute the Appeal Tribunal ... we think it was a mistake to
have caused the judiciary to be associated with the work of the tribunal.' Then from the
Prime Minister. These are some extracts from what the Prime Minister said. He said, first,
in principle, it is wrong to use the judges in this way.
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'First, by the very nature of the tribunal the judges are not presented with a justiciable
issue. ...'

Second, on principle, the responsibility for the detention or otherwise of a person under
extraordinary powers such as these cannot rest with the judiciary. An Executive which
shifts this responsibility to the judges ... is shirking its responsibility .... On principle, it is
not the duty of the judiciary to act as administrative or executive officers of the
Government, nor are they properly equipped to discharge such functions. In all civilised
countries the responsibility for the security of the State rests with the elected government,
not the judges .... Certainly they are not vested in our judiciary.'

This is the Government's position on the role of judges articulated in October 1959.
That has been a consistent position, and that is the position which forms the rationale for
the amendments that are being moved today.

The third reason, Sir, for restoring the subjective test is this. As the courts themselves
have recognized, preventive detention by its very nature is a precautionary measure. The
Government must act on the best possible security evaluation of information that is
available, as distinct from proof or evidence in a court. Preventive detention consists in
anticipating, pre-empting, preventing. It involves restraining someone from doing
something injurious to our national security, preventing him from completing a scheme
on which he may have already embarked. A judge in court is not equipped to investigate
or decide whether there are suspicious circumstances warranting some restraint. In
conspiracies or other covert operations, the mischief-maker or mischief-makers operate in
a clandestine, furtive manner, making it impossible to get the kind of evidence that would
enable a conviction in court. This was the main reason why detention without trial was
introduced in the first place.

Sir, when I say that judges are not equipped, I think I can do no better than refer again
to the extract from Lord Diplock on page 3. I just put it very succinctly.

'The reasons for the decision-maker taking one course rather than another do not
normally involve questions to which, if disputed, the judicial process is adapted to
provide the right answer, by which I mean that the kind of evidence that is admissible
under judicial procedures and the way in which it has to be adduced tend to exclude from
the attention of the court competing policy considerations which, if the executive
discretion is to be wisely exercised, need to be weighed against one another, a balancing
exercise
Column: 471

which judges by their upbringing and experience are ill-qualified to perform.'

For these reasons then, Sir, the Government has therefore decided that our laws should
expressly reaffirm that the established principles of review of preventive detention stated
in the cases of Karam Singh and Lee Mau Seng is to be the applicable law in Singapore.

May I now turn, Sir, to the other point concerning abolition of appeals to the Privy
Council. The intention is to abolish appeals to the Privy Council in respect of judicial
review of decisions under the ISA, of interpretation of the ISA and interpretation of any
provisions in the Constitution relating to subversion and emergency powers contained in
Part XII of the Constitution.

Sir, I think we all know that after independence, Singapore continued to retain the
Privy Council's right of appeal from our courts. Singapore, in fact, is one of the very few
countries to have kept this link with Britain. New Zealand, a country which is most akin
to the United Kingdom in terms of culture, heritage, political system, is now considering
abolishing appeals to Privy Council. Australia has already done so. No other Asian
country, except Brunei, allows appeals to the Privy Council. India, Sri Lanka,
Bangladesh, Malaysia have all abolished them.

But, why are we now abolishing appeals to the Privy Council in security matters?
There are two main reasons, although some of what I have said, it must be clear, is
equally applicable on this question. First, Sir, we are an an independent country. We are
very different from the United Kingdom. What will decide our future? It is not
circumstances in United Kingdom or Europe but events in Asia which will affect our
future. Economic, social and political conditions of Singapore and United Kingdom are in
fact divergent, not convergent. Matters of public law, especially defence and security, are
very crucial for the survival of any country. So not only must our laws meet our different
circumstances but our laws must be interpreted by our own judges, people who are part of
our society, judges who are aware of our history and of our conditions. Because no
independent country, no independent government, can
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surrender its responsibility to uphold the security of the country. But as a carry-over from
the colonial days, we have continued to allow the Privy Council as our final court, even
on security matters up to today, a body of UK judges sitting in the United Kingdom,
thousands of miles away, who really have no knowledge or experience of our own
circumstances here. The Privy Council, Sir, cannot continue to be the final court of
appeal in matters concerning the exercise of national security. National security must be
decided by us. And questions which go to the courts must be decided by Singapore courts
and Singapore judges.

We felt no real urgency to rectify this anomaly so long as the trend of judicial thinking
in the United Kingdom posed no serious problems for our national security. But the
trends that I have described, the increasingly interventionist role of the UK courts in
reviewing the UK Executive's actions, including on national security, has changed the
outlook.

Let me also inform Members that after Britain joined the EEC, it accepted the
jurisdiction of the European Court of Justice and the European Court of Human Rights.
And on several occasions, after the European Court of Human Rights ruled that British
practices conflict with European Convention on Human Rights, British law had to be
changed to conform to the Convention. Further, Sir, British legal practice and judicial
attitudes have also incorporated elements of the European tradition of administrative law,
especially in the area of public law. British judges, in other words, have entertained
principles founded in European Community law as possible new grounds for judicial
review of Ministerial decisions. But then all these developments connected with the
European Community are contrary to Singapore's experience and irrelevant to our
circumstances.

Sir, if we do not cut off appeals to the Privy Council in security cases, what will be the
result? The inevitable result will be either: (a) our courts will (as happened in the Court of
Appeal judgment) follow the United Kingdom precedents which have established an
interventionist role which is unacceptable; or (b) they ignore the
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United Kingdom trends, but will almost certainly be overruled by the Privy Council.

I might add that it is not just the security cases that we are concerned with. In fact, the
Government has been concerned for some time over how long we can continue this
system of appeals to the Privy Council. Some Members may know that during the British
Empire, some of the judges who sat on the Privy Council had experience serving in the
colonies or in the Commonwealth. That way, some of the judges in the privy council had
valuable local perspective when overseas cases came up to the Privy Council. This was
important. For example, in recent years before Australia abolished appeals, when
Australian cases came up before the Privy Council, the then Chief Justice of Australia, Sir
Garfield Barwick, was a Privy Councillor, made it a point to sit as a member of the Privy
Council. But since the British Empire ended, there are no longer judges sitting on the
Privy Council who have colonial or Commonwealth experience.

I should therefore add that there are also other areas, particularly of administrative and
public law, where our courts must also have the final say. This is because the political,
social and economic circumstances of a country are crucial factors in interpreting and
applying such law by the judges of that country. However, we shall decide on these
matters after careful deliberation.

May I now turn, Sir, to the specific provisions in the Constitution of the Republic of
Singapore (Amendment) Bill. I have already dealt with clause 2. New clause 3 is an
enabling provision to allow legislation to be passed in order to restore the status quo ante
in regard to judicial attitudes towards such powers of the Executive under the ISA. In
other words, it enables Parliament to pass legislation to re-establish the rules of
interpretation, which I just pointed out, have been long adhered to by our courts.

Other amendments to Article 149(1) are the inclusion of references to Articles 11 and
12. The reference to Article 11 is necessary to ensure that the retrospective application of
the Internal Security
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(Amendment) Bill is not challenged. The inclusion of the reference to Article 12 is also
necessary because the Court of Appeal, influenced by judgments in other Commonwealth
countries, commented that a subjective test may be inconsistent with Article 12. It is also
provided that Article 149(1) which allows such inconsistencies also applies to a law
amending Article 149(1) or a law enacted under new clause (3).

As for the provisions of the Internal Security (Amendment) Bill, I will take them up
during the Second Reading of that Bill.

Sir, I beg to move.

Question proposed.
1.08 pm

Dr Arthur Beng Kian Lam (Fengshan): Mr Speaker, Sir, the Government

Parliamentary Committee for Home Affairs and Law supports the Bill.

Sir, today is momentous as we are discussing a matter of great importance, an

amendment to the Internal Security Act and, for the first time, reviewing the status of the
Privy Council which has been part of our legal system for over a century. The Privy
Council is the highest court of appeal in our system, a time-honoured and hallowed
institution. The Law Lords of the Council are eminent jurists of great intellect, knowledge
and wisdom. The Council has been the beacon to our legal path and has helped developed
our laws and concepts of law.

Sir, the issue before us today is not just the competence of the Privy Council as judges
of the hour. It is also an issue of national importance, namely, whether on matters of
national security the Executive should or should not be the final arbiter, subject of course
to the restraint that the Executive is ultimately accountable to Parliament. We have before
us today two issues: (1) should the courts have the power to review the acts of the
Executive under the ISA? (2) should the Privy Council be retained as the highest court of
appeal in security matters?

Sir, I will deal, firstly, with whether the courts should have the power to review the acts
of the Executive under the ISA. To
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answer this, we must refer to the original intent and purpose of the Act. Let us remind
ourselves once again that this Act was promulgated by the British before our
independence. Preventive detention is practised to this day in the United Kingdom, as
mentioned by the Hon. Minister for Law, with respect to their unique problems of
terrorism in Northern Ireland. Do we also not have our own unique problems? The
answer is an obvious yes. We still have the Communist threat with us. This threat, of
course, takes a different form today. Nevertheless, it is a threat which must never be
underestimated nor can it be a threat to be wished away.

We must next remember that we are a multi-racial, multi-religious community, set in

extraordinary circumstances. Yes, it is said that there are many nations which have a
multi-racial, multi-religious composition. What is the big deal about Singapore? But is
any of them comparable to us in that we are living in a tiny island of 600 sq km? Under
these circumstances, the chances of creating mischief and misunderstanding are ever
present. The Executive must therefore have unchallenged power to nip the problem in the
bud, in the light of highly sensitive information available only to the Executive.

In any responsible society, the individual's interest must be second to that of society at
large. Nevertheless, the individual must also have his rights protected. It may be
perceived that if the Executive's decision is final, then the individual is denied of his
rights. Will this amendment make the individual totally impotent, and therefore at the
mercy of the Executive?

Sir, the proposed amendments must be read in the context of the ISA. Under the
Internal Security Act, there are safeguards. These are:

(a) The detainee's case must be reviewed by an Advisory Board within three months of
the issue of a Detention Order. The Advisory Board itself is presided over by a High
Court Judge. This ensures, in my view, judicial supervision.

(b) The detention is further reviewed by the Advisory Board on a yearly basis. The
current state of the detainee is thus annually reviewed.
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(c) A further safeguard provided by the ISA and the Constitution is that the power to
detain without trial is conferred on the highest executive body in the country the Cabinet.
Who is the Cabinet responsible to? Ultimately to this House Parliament.

Sir, let us remind ourselves once again that Parliament is supreme. Parliament has the
people's mandate to make laws. The duty of the courts is to interpret the legislation
passed by Parliament. In discharging this duty, the intention of the Legislature is all
important. It has never been the intention of the Legislature, as expressed in the ISA, that
the courts should be assigned the right to review Ministerial discretion in security
matters.
 Mr Speaker, Sir, may I at this point quote from Halsbury's Laws of England, 4th
Edition, Vol. 44, 1983, page 510, under the subtitle "Functions of the Courts". Paragraph
840 reads:

'It is the province of the legislature to enact statutes, and of the courts to construe the
statutes which the legislature has enacted.'

Paragraph 841 reads:

'The making of law is a matter for the legislature, and not for the courts; and the courts
are not entitled to canvass the power of Parliament to make any statute, or the propriety
or wisdom of making it .....' This, Mr Speaker, Sir, I understand, is a cardinal principle
and a generally accepted view.

Sir, I next turn to the Privy Council. Sir, the Privy Council has rendered invaluable
service to Singapore as our Appellate Court. However, on national security matters, the
final Court of Appeal must be the Court of Appeal of our own nation.

Sir, we must view with gravity that in interpreting what is a security threat the
mindsets of the interpreters is of paramount importance. They are a product of their own
social, cultural and educational environment. Likewise, we are a product of our own
social, cultural and educational environment. This is an inescapable fact of life. We are
just not the same. Is it fair for us to expect anyone else to be able to switch to our
mindsets?

Our understanding of security threats obviously may not be the same as that of
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others. We are therefore the best interpreters and most competent to deal with our own
security.

Sir, having said all this, I would like to raise the following hypothetical case scenario.
We cannot assume that we will always have the PAP as the ruling party, a Government of
proven tract record of integrity and honour. What would happen if a corrupt regime were
to by freak chance take over? With this in mind, would it not be wise to consider giving
powers of review to our own courts on questions touching on illegality and legality? This
fear has been brought to my attention by lawyers and laymen alike. My colleague, the
Member for Toa Payoh GRC, Mr Davinder Singh, will expand further on this.

Finally, Sir, we know that the role of the Privy Council in our legal system is under
review. The Minister has given us some insight. The Legal Profession (Amendment) Bill
will also make reference to the Privy Council. Can the Minister at this time enlighten the
House as to the various options under consideration? In this respect, I would also like the
Minister to consider the setting up of a permanent Court of Appeal, a court of Appellate
Judges as distinct from Judges who sit in the court of first instance. I understand that
there are problems and constraints of manpower and expertise. However, I believe that
this is the correct time to pursue this. This would be the next natural step in the evolution
and maturing of our judicial system.

Sir, the other Members of my GPC will, with your permission, rise also to speak on
other aspects of this Bill.

Mr Chiam See Tong (Potong Pasir): Sir, may I be allowed on a point of clarification
from the last speaker? He says that the Communist threat to Singapore is still real or
something to that effect. Sir, he has made a very strong statement. May I know whether
this threat is from without or within and, if so, what evidence has he got for saying so?

Dr Arthur Beng Kian Lam: Mr Speaker, Sir, I made the statement that the communist
threat is still present based on
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events over the last year and the threat is of course both from without and within, and I
believe that they will remain so for many more years to come.

Dr Ho Tat Kin (Toa Payoh GRC): Sir, if it is a question of national sovereignty that
we are now an independent nation that has come of age and that we should have the final
say on our own matters and therefore we should cut our links with the Privy Council,
then we should all agree with this Bill. In fact, many sovereign nations in the
Commonwealth have already done so. But, if issues need to be decided and judged
locally, should it not apply to all matters, and not just internal security matters.

Sir, our people accept the fact that the Government elected by them to run the country
is responsible for our national security. The people also accepts the fact that only the
Government could have all the resources, information and the experience to know when
our national security is threatened and what actions must be taken immediately. But, Sir,
the people also wants checks and balances to ensure that the Government do not abuse its
power and to ensure that the power of detention under the ISA is invoked only when
absolutely necessary. Up to the present, the Privy Council has been providing that check.
Removing the appeal to the Privy Council for all judicial review cases under the ISA is
removing the checks and people are obviously concerned.

Sir, I am not against breaking away from the Privy Council. After Britain joined the
European Community in 1973, the European influence on British Law had taken effect.
Community law has become an integral part of British law and even the UK House of
Lords are now subject to the final decisions of the Europrean Court of Justice. Sir, if we
continue to tie ourselves to the Privy Council, then we are subjecting our way of life to
the influence of the European mode of life which may not be entirely suitable. But what I
am concerned with, like so many of our citizens are, is what appeal system do we have to
replace the Privy Council when we break away from it?

Sir, at present we have an honest PAP Government and the people trust the
Column: 479

Government. But what about the future when there may not be an honest PAP
Government around? What checks will there be in place to prevent a corrupt Minister in
the future from abusing his powers?

Sir, the questions I would like to ask the Minister are therefore: Do we have an
alternative check system to replace that provided by the Privy Council? Are we ready to
set up our own Court of Appeal? Do we have the necessary manpower in sufficient
numbers to start our own Court of Appeal? Will the Government be able to set up our
own Court of Appeal immediately to take over the work currently handled by the Privy
Council?

Finally, Sir, I think the public sees this amendment as an immediate reaction of the
Government to the recent Privy Council decisions. In fact, some friends of mine in the
legal profession told me that the Government is fire-fighting and is in such a hurry that
even the wording of the Bill is not as well written as it should and improvements ought to
be made. I hope the Minister could clarify these points, Sir.

Dr Lee Siew-Choh: Mr Speaker, Sir, I propose now to speak only on clause 2 of the
Bill seeking to amend Article 94 of the Constitution. Clause 3 merely prepares the way to
amend the ISA. So I will touch on clause 3 of the Bill when the amendment to the ISA
comes up. In spite of what the Minister has said, I wish to speak separately on the two
different Bills. I need the full time, Sir, allowed under Standing Orders, and if I am
allowed one full hour for the two Bills I will carry on straightaway. Otherwise I will
speak now on the Bills wait a while and then speak again.

Mr Speaker: You have only half an hour on this Bill.

Dr Lee Siew-Choh: Yes. So I will speak, then wait for the next time again.

Mr Speaker: Your right is not deprived.

Dr Lee Siew-Choh: So I will speak on two occasions.

Mr Speaker: Yes.

Dr Lee Siew-Choh: Thank you. When I raised at the sitting of the House on the 19th
January on the validity of the appoint-
Column: 480

ment of Wee Chong Jin as Chief Justice in 1982 and continued thereafter, the Minister for
Home Affairs gave it as his opinion that the power for that appointment in 1982 was to be
found in Article 94(3).
 Wee Chong Jin had reached the retiring age of 65 on the 27th September 1982, and
under Article 98 could not hold the office of Chief Justice after six months from that date.
The Prime Minister, by Gazette Notification, purported to appoint him again as Chief
Justice on the 28th September 1982, and the Minister for Home Affairs said on Thursday
(19th January 1989) that the Prime Minister had this power under Article 94(3) when he
made the appointment in 1982.

But he had to explain away why, if in fact and in law, the Prime Minister had this
power, it was necessary to bring in an amendment now to that Article. That is vital, Sir,
very, very important. If the Government were convinced that Article 94(3) gave the Prime
Minister the power, why now raise doubts in the minds of the public - whether the Prime
Minister had this power or not - by bringing in an amendment? The truth is, however the
Minister for Home Affairs may try to hide it, that the Government has now realized that
the Prime Minister did not have the power in 1982 when he continued Wee Chong Jin in
the office of Chief Justice and renewed that appointment in 1985 and 1988.

The Minister for Home Affairs in Parliament has urged me to accept his advice and
opinion since he was a Professor of Law at the University and could be expected to know
the law much better than I do. May I suggest to him, with all the deepest respect, that
professors are not infallible and many a professor has been shown to be wrong in his
views on the subject on which he claims to have expert knowledge. The Minister for
Home Affairs said on the 19th January that this amendment was prompted by a ground
raised by Jeyaretnam, the former MP for Anson, in his appeal to the Privy Council on the
validity of the appointment of Wee Chong Jin as Chief Justice. He has mentioned it again
today.

The Minister for Home Affairs went on, however, to give the impression, and he
Column: 481

mentioned this again, that after raising this point in the petition of appeal, it was not
pursued before the Privy Council, thereby giving the impression that Jeyaretnam had
abandoned the point on the advice of his counsel, there being no merit in the ground. I
have ascertained, Sir, from Jeyaretnam that that was not so. The point was not pursued
before the Privy Council simply because it had not been reached in his appeal; there
being a few grounds in the appeal.

There were several grounds raised by Jeyaretnam in his petition and I understand that
their Lordships in the Privy Council, after hearing Jeyaretnam's counsel on the first two
grounds relating to the validity of the convictions, indicated to his counsel that they did
not wish to hear him further, but wished to hear the Counsel for the Law Society.
Therefore, it is not true to say that the ground was abandoned or not pursued before the
Privy Council.

I understand, Sir, from Jeyaretnam that it was the considered opinion of his counsel
that Wee Chong Jin's appointment as Chief Justice from 1982 onwards was ultra vires
Article 94(3) of the Constitution. I am afraid that whatever the Minister for Home Affairs
or anybody in the Government may say, the public will conclude that the appointment of
Wee Chong Jin in 1982 as Chief Justice had been made outside the Constitution. Now the
Government seeks to ratify something which was done illegally, outside the Constitution,
as legal and within the Constitution by back-dating the amendment to 19th November
1971, the very date when Article 94(3) was first introduced into the Constitution.

It must follow that if Wee Chong Jin was not validly appointed Chief Justice from 28th
September 1982, the functions and duties which he discharged as Chief Justice were
irregular and ultra vires the Constitution. Wee Chong Jin, by virtue of his appointment on
the 28th September 1982, continued to preside as Chairman of the Legal Service
Commission. If this appointment was invalid, then his functioning as Chairman of the
Legal Service Commission was also invalid and contrary to the Constitution - contrary to
Article
Column: 482

112 (2) of the Constitution which sets up the Legal Service Commission. Whatever Wee
Chong Jin did in his capacity as Chairman of the Legal Service Commission is now
called into question.

The Workers' Party member in Parliament, that is Mr Jeyaretnam in the last session, in
the January and March 1986 sittings of Parliament, raised the question of the transfer of
the Senior District Judge from his office in August 1984. Wee Chong Jin handed in a
memo to the Prime Minister, which the Prime Minister tendered in Parliament, saying
that he had transferred the Senior District Judge in his capacity as Chairman of the Legal
Service Commission after consulting the Attorney-General. It would now appear that
Wee Chong Jin was acting ultra vires the Constitution when he decided to transfer the
Senior District Judge from his office in August 1984. I do not know what other functions
and duties Wee Chong Jin performed and discharged by virtue of his purported office as
Chief Justice after 28th September 1982. But it is now quite clear that a grave question
mark hangs over all the functions and powers exercised by Wee Chong Jin as Chief
Justice after 28th September 1982.

Sir, may I express my amazement that this Government which prides itself on its
competency could have overlooked that Article 94(3) did not give the Prime Minister the
power to appoint Wee Chong Jin as Chief Justice on 28th September 1982 in spite of
what the Minister has said. The Prime Minister himself is a lawyer. I am not sure whether
he looked up the Constitution when he made the appointment and I am not sure whether
the Home Affairs Minister looked up this Article too when the appointment was made. Or
was the Prime Minister merely content to rely on the advice of the Attorney-General?

May I say, apropos another advice that he has recently given to the Government, that I
understand the legal fraternity is surprised that he should consider reasons given by the
Privy Council in allowing the appeal by the former MP for Anson, to be mere comments,
things said by the way, which according to some people, is not true.
Column: 483
 This amendment seeks to legalize the wrongs and make them right. Can the
Government really set right all that has been done wrongly by the Government through
this amendment? I understand that the Chief Justice also draws a higher salary than the
other judges of the Supreme Court. Therefore, it would follow that there has also been
misuse of public funds.

But beyond all this, Sir, there is a point of principle which I want to stress. My Party
has objected from way back in 1972, after Article 94(3) was introduced to the
Constitution, to the power given to the Prime Minister by that amendment, to appoint
persons to the High Court for periods of time at the pleasure of the Prime Minister, and
my Party's objection was that this would undermine the independence of the judiciary.

Dr Augustine H H Tan (Whampoa): Point of clarification. Which Party is the

Member referring to?

Dr Lee Siew-Choh: My Party now is the Workers' Party.

Dr Augustine Tan: At that time, did the Barisan Sosialis Party object?

Dr Lee Siew-Choh: No, Sir, at that time, I did not. But there is no harm in objecting
now, though a bit late. Better late than never.

Dr Augustine Tan: But, Sir, he claimed that his Party objected at that time. So it
appears that he is telling a lie.

Dr Lee Siew-Choh: No lie, Sir. That is a word which must be withdrawn. It is a fact
and I am now a member of the Workers' Party, and therefore I refer to that Party as my
Party.

Dr Augustine Tan: But, Sir, it was not his Party at that time.

Dr Lee Siew-Choh: What difference does it make? I represent the Workers' Party
today and I must refer to what has happened in the past as what was done by my Party.

Anyway, Sir, my Party's view is that the judges cannot be seen to be independent if
they can be appointed by the Prime Minister for fixed periods during the pleasure of
Column: 484

the Prime Minister. The Prime Minister can terminate the appointment of the person at
any time during the period. This I understand is provided for in the Interpretation and
General Clauses Act. So how can a judge or judges appointed under this Article be seen
to be independent of the Prime Minister and his Executive?
 But the proposed amendment compounds the matter further. The power of appointment
of the CJ is now contained in Article 95(1) of the Constitution, and under that
appointment the CJ continues until he is 65. Article 95 also confers the power to appoint
other judges. Now the Government proposes to vest the power of appointment of the
Chief Justice in an additional Article 94(3). Have they not overlooked the fact, Sir, that
with this new amendment, the Prime Minister can appoint anyone not just someone who
has ceased to be CJ or even a judge in the Supreme Court but anyone who qualifies for
appontment to the High Court Bench as Chief Justice.

The difference is that while the appointment is made under Article 95(1) the CJ's
tenure is secure until he reaches the age of 65 but if he is appointed under Article 94(3),
even though he has not reached the age of 65, the Prime Minister may terminate his
appointment at any time during the period of his appointment, and in any event his
appointment lapses at the end of that period. With this amendment, Sir, the office of the
CJ is made more tenuous and less secure than the office of a judge of the Supreme Court.
Is that what the Government wants a CJ who can be hired and fired by the Prime Minister
at his will when other judges appointed under Article 95 cannot be hired and fired until
they reach the age of 65?

Sir, the whole amendment, as has been mentioned by some of the speakers a little
while ago, has been broached as a result of the Privy Council's judgment on Jeyaretnam
and I wish to come to that section a little while later when I speak on the ISA.

Mr Chiam See Tong: Sir, may I be allowed to speak on the amendment to the Internal
Security Act?
Column: 485

I rise to oppose the Bill. The Minister wants this House to continue to give the
Government absolute power for detention of any person in Singapore. The amendment
before the House arises from our Court of Appeal's decision on 8th December 1988. Sir, I
have the highest regard for our courts. In that judgment, our learned judges said that
henceforth they shall want to see, like precedents set in England, the evidence from the
Minister whether the person to be detained is a threat to national security. The
Government holds that if that is the case our High Court judges will be the final arbiters
in questions of national security. That is not true. What the decision of 8th December
really means is that (1) the Government is not above the rule of law; (2) the courts want
to ensure the freedom of the individual; (3) there is no arbitrary use of power and the
abuse of power by the Government; and (4) justice not only must be done but manifestly
seen to be done.

Sir, the Government in campaigning for the installation of an Elected President

advocates strongly for a second key to protect our national reserves. Similarly, Sir, it is
not wrong for the people of Singapore to ask for a second key, that is, the said review of
evidence by our courts, to protect the freedom of the individual. How can, Sir, I agree to a
principle to give absolute power to the Government to arrest whoever it likes? I cannot do
that.

It is true that in the last general elections the people of Singapore gave the Government
an overwhelming mandate 80 seats in Parliament out of 81 seats but that does not mean
that the people of Singapore have given the Government a blank cheque to do whatever it
likes. On the issue of whether or not to continue to give the Government absolute power,
I believe the majority of the people of Singapore will oppose it. I know for sure the
spouses, parents, relatives and friends of Chia Thye Poh, Vincent Cheng, Chng Suan Tze,
Kenneth Tsang, Kevin De Souza, Chew Kheng Chuan, Teo Soh Lung and Wong Souk
Yee, will definitely oppose this amendment.
Column: 486

Sir, Singapore's present political system is still a copy of that of England, the
Westminster parliamentary democratic system, and our judiciary, except for a few
changes, like the abolition of the jury, is basically a copy of the English judicial system.
Under such a system, unless there is imminent national or security danger to the state,
there is really no justice for the state to be allowed to arbitrarily arrest or detain its
citizens without the recourse to our courts. Our courts, if the amendment is allowed, can
only look at the procedural matters in regard to an arrest under the ISA. That is not
justice.

What this House is asked to do is likened to giving a big bully in a kampong all the
powers to do whatever he likes. Is this analogy wrong? I do not think so. With absolute
powers of arrest and detention, this Government sooner or later will act like a big bully.
The whole population will be coerced and cowed and the majority of our people will
become intimidated and become submissive. We shall perpetuate the culture of fear in
Singapore. Unless of course the Government changes the ground rules and follow the
Japanese model, as explained to us by the Minister of State for Trade and Industry at the
previous sitting, then it could be a different matter altogether. The Government shall have
to take the Opposition into confidence. If the Government can convince the Opposition
that there is justification for each arrest under the ISA, the Opposition shall support the
Government in the exercise of that power.

Mr Chandra Das: You want to be consulted?

Mr Chiam See Tong: But under the present system, Sir, there is no check on the
Government at all. It can smack down anyone it likes. It requires only to give a flimsy
reason. There is no effective avenue for remedy if the Government is wrong in its
decision. The Advisory Board, Sir, is seen by the public not to be independent. In any
event, it only advises the Government and the Government is not bound to accept its
recommendations.

Sir, as a result of having the Internal Security Act which allows administrative or
preventive detention, as the Minister
Column: 487

terms it, there is one citizen of Singapore, Mr Chia Thye Poh, has suffered under this so-
called preventive detention, 22 years of incarceration since October 1966. Sir, we have
gone through this matter in 1985. The Government says that Mr Chia only needs to sign
an undertaking that he will not support the Communist Party of Malaya or to be its
member and to give up force to overthrow the Government of Singapore. But Mr Chia
has written to the Minister, I believe, denying that he is a member of the Communist
Party of Malaya or, in fact, even applied for membership, and that he has not really
advocated violence to overthrow the Government of Singapore.

Sir, I am myself convinced that he is no security threat to Singapore under our present
conditions. If he were a security threat, why does the Government allow him to be
released under certain conditions. If he really wants to indulge in violence, in any event
he will give an undertaking and come out to participate in violence, because violence
does not obey the law.

Sir, to detain a person for 22 years is inhuman, whatever way you look at it. I feel that I
have come here not just to ask for his immediate release. Sir, I believe that if we are
going to practise what we promote the Government is going to promote Confucianism I
think we have to be human.

Sir, I have never met Mr Chia myself. I have only met his father and sister quite
recently at two dinners (one organized by the Workers' Party and one organized by my
Party). He is not in any way affiliated to me politically. Two of my party members had
visited Mr Chia's home and they reported to me that the family is law-abiding; the sister
is a devout Christian and the younger brother is an engineer. It was also reported that Mr
Chia Thye Poh's health is getting bad, his eyesight is failing. I think it is humane and
compassionate if the Government should release him immediately.

Sir, I am willing to give an undertaking to act as a guarantor for the release of Mr Chia
Thye Poh and should he within the next five years, within the duration of this Parliament,
participate in any violence, I
Column: 488

will undertake to resign my seat as Member of Parliament and refrain from taking part in
politics for the remainder of the period of this Parliament. Sir, this is no laughing matter.
If you think it really properly, a man has been detained for 22 years. Let us not be
insensitive; let us not be so hard. I think there is good ground for releasing Mr Chia. If I
could act in any way as an intermediary, or in any way, for the release of Mr Chia Thye
Poh, I will do it.

Sir, I have prepared this undertaking in writing. Perhaps I will submit it for circulation.
[Copy of undertaking handed to the Clerk.] Sir, the undertaking reads:
 'I Chiam See Tong, MP for Potong Pasir, in consideration of the Government of
Singapore releasing Chia Thye Poh from detention, ordered under the ISA, immediately
and unconditionally shall act as his guarantor that Mr Chia Thye Poh will not participate
in any violent activity calculated to overthrow the legitimate government of Singapore for
the duration of the life of the 7th Parliament and should Chia Thye Poh be proven to
participate in the said violent activity within the said period then I shall resign as Member
of Parliament for Potong Pasir and refrain from taking part in politics for the remaining
period of this Parliament.'

The Minister for Trade and Industry and Second Minister for Defence (Services)
(BG Lee Hsien Loong): Mr Speaker, Sir, I rise to seek a point of clarification from Mr
Chiam. I would like to reserve my right to speak again later on. I will not comment on his
rather remarkable offer to stand guarantee for Mr Chia Thye Poh, although I personally
fail to understand how after one man has committed violence, forcing another
presumably innocent and peaceable MP out of Parliament and out of politics, will help
either to repair the damage, or to further the interest of the country.

But I only want to ask him one question. Mr Chiam said that the PAP, despite having
been returned overwhelmingly in the last General Election, does not have a mandate to
amend the Internal Security Act and restore the status quo ante. May I, therefore, ask him:
Firstly, whether it is not true that in the last General Election in the PAP's Party
programme, there was a specific section explaining the PAP's stand on the ISA,
reasserting that the PAP believed the ISA was necessary, would use it with judgment and
impartiality, and would campaign on it to seek the support of the
Column: 489

people on this specific point? And secondly, why Mr Chiam in all his election campaigns
since 1976 - 1979, 1980, 1984, and particularly 1988, did not at any time during the
campaigns raise this issue and did not make this generous offer to stand guarantor for Mr
Chia Thye Poh, in order to get public support and backing for him to come here and say
he is speaking on behalf of the people of Singapore?

Mr Chiam See Tong: Sir, the Minister for Trade and Industry has made a long speech
although he was only supposed to ask for clarification.

Mr Speaker: It was a clarification.

Mr Chiam See Tong: Sir, I want to ask the Minister and ask the Government: Is it not
cruel, is it not inhuman to have preventive detention of one of our citizens for 22 years,
coming to 23 years next October, and his health is failing and he has got no organization,
nothing? The question is: Is he a threat to national security?

Sir, in my judgment, I do not think so. That is why I dare to give this undertaking. I am
sticking my neck out and putting it on the chopping block. Sir, because I do not think so.
I have thought about it, my party members have spoken to members of his family. And by
looking at the family background we can tell more or less the person from that family.

So it is therefore now a question of my judgment against the judgment of the

Government whether or not he is a security threat. I say no; the Government says yes. But
I have given my undertaking. I want the Government to respond to that. Does the
Government accept my undertaking and release Chia Thye Poh now without conditions?

BG Lee Hsien Loong: Mr Speaker, Sir, that is not the question. I have already, in
passing, referred to the futility of forcing Mr Chiam out of this House as a result of Mr
Chia Thye Poh committing violence. Attractive and inviting though the neck may be on
the chopping block, I fear it is the wrong neck. The question is: Why did he not mention
this during the General Election?
Column: 490

Mr Chiam See Tong: Sir, as far as I know, during the last Elections, the Government
hardly mentioned the Internal Security Act.

Some hon. Members: No!

Mr Chiam See Tong: They were harping only on the town councils. In fact, even the
Agenda for Action, the programme in it, was never discussed at the General Elections.
That is as far as I know.

BG Lee Hsien Loong: Mr Speaker, Sir, the reason the ISA did not get discussed was
not for want of trying of the Government or the PAP. The reason it was not discussed was
that all the Opposition parties, including the Workers' Party and those who had newly
joined the Workers' Party, funked the issue. May I quote, therefore, to establish this from
the Party programme, the PAP Programme "More Good Years", which we issued before
the Election campaign and, when we gave a press briefing introducing this programme, I
specifically highlighted these paragraphs:

'To safeguard our prosperity and stability, the Government must be vigilant. From time
to time, foreign elements and their proxies try to meddle in Singapore's affairs.
Subversive groups try to exploit our rules to break our system. If we allow them to
destabilise our society, by organising a covert network of pressure groups, staging mass
protests, and causing rioting, bloodshed and violence, as Vincent Cheng intended to do,
then we can forget about 9% growth or extra bonuses.

The PAP government believes we need the ISA to preserve our tranquillity and
freedom. Without the ISA, no government can protect Singaporeans from those who
mean us harm, and seek to overthrow our democratic system. But the Government can
only act on behalf of the people of Singapore. Ultimately, you must decide: do you still
want to deal firmly with threats to our security? Or should we be more tolerant of
potential threats, even though they may exploit our tolerance as a weakness, and grow
stronger and more dangerous to tackle later? The choice is yours.'

I would have thought, Mr Speaker, Sir, that is as clear a statement as you can make.
The cards were put on the table. Ican understand Mr Chiam might be squeamish about
making a speech on this subject in an election campaign. But I would further ask whether
a corresponding paragraph could be found in the SDP or Workers' Party manifesto.
Column: 491

Mr Chiam See Tong: Sir, I think the Minister is trying to divert the issue at the
moment. The issue at the moment is whether or not Mr Chia Thye Poh is a threat to
national security. If they say no, release him, accept my undertaking. We are not talking
about internal security generally. There may or may not be grounds for retaining the
Internal Security Act. But the point is that exercise of power has been done and one of
our citizens under the so-called administrative detention has been locked up for 22 years.
Is that right? If we have got a conscience, if we have got feelings for our fellow citizens, I
want to ask the Government: is that right? Is he really that great a danger or is it just a
face-saving device like what the Asians say, they are trying to save their face? I have
given an undertaking because I take the seriousness of this. I think Singapore people must
have a heart. And if we are going to have a heart, let us show it. Release Mr Chia now.

I have got everything to lose. I have got no connections with Mr Chia whatsoever
nothing to gain. But he is a Singaporean and we must care for him.

Prof. Jayakumar: Mr Speaker, Sir, the issue before the House is really the two Bills
that have been tabled. And if the Member wishes to have a debate on the question of Chia
Thye Poh, I think there can be another opportunity when he can raise it.

Mr Chiam See Tong: Accept my undertaking!

Prof. Jayakumar: Mr Speaker, Sir, we have not seen his so-called undertaking. I look
forward to reading it. But from what he read, I find it very significant that he has not
referred anywhere to his undertaking that Chia Thye Poh will not resume his links at all
with the CPM or the Communist United Front. And he must also tell us

Mr Chiam See Tong: May I correct it?

Mr Speaker: Mr Chiam, could you resume your seat?

Mr Chiam See Tong resumed his seat.

Prof. Jayakumar: And he has not told us how such an undertaking is to advance our
national security. If the event does take
Column: 492
place that Mr Chia Thye Poh resumes his subversive activities, then not only would we
have another security problem, but we would have also lost an Opposition Member.

Dr Lee Siew-Choh: I want some clarification, Sir, from the Minister. First of all, I
must congratulate a new champion for Chia Thye Poh. Some people have been saying
that he is trying to jump onto the bandwagon. I am not sure if he is. But anyway we
welcome all this, Sir.

Mr Speaker: Can you seek your clarification?

Dr Lee Siew-Choh: But I want to ask the question of the Minister about the violence
that he talked about. Since when has this violence that he talked about ---

Mr Chiam See Tong: Sir, may I have a clarification?

Mr Speaker: Mr Chiam, can you resume your seat?

Mr Chiam See Tong: I object to the tone of turning this into a joke, Sir. This is a
serious matter.

Mr Speaker: Mr Chiam, before you rise to speak, you have to seek my permission
first.

Dr Lee, can you finish your clarification?

Dr Lee Siew-Choh: The Minister was referring to the violence by Chia Thye Poh.
What sort of violence had he been carrying out?

Mr Speaker: All right, you have made your clarification.

Dr Lee Siew-Choh: And the other one too, Sir. He also said something about all
political parties having funked the issue on ISA. That is not true, Sir. They have a record
of all our speeches. I am sure they can play them over and listen to them.

Mr Speaker: All right. Dr Beng, make your clarification.

Dr Arthur Beng Kian Lam: Sir, I have two points of clarification for the Member for
Potong Pasir. Firstly, he said that the Advisory Board is seen by the public not to be
independent. I would like him to clarify as to his own views. Does he see it as an
independent board?
Column: 493

Secondly, in his enthusiasm to champion the cause of Chia Thye Poh, he has made an
offer to resign as the Member for Potong Pasir. If that is the case, will he not be letting
down the people of Potong Pasir who have voted for him?

Mr Chiam See Tong: Sir, if the review board is to be effective, I think some non-
government people should be in it. Otherwise it will always be seen to be not
independent.

As regards whether or not I would let the people of Potong Pasir down, I think it is no
concern of Dr Arthur Beng. It is between me and my constituents.
2.02 pm

Dr Hong Hai (Bedok GRC): Mr Speaker, Sir, I rise to speak on the Constitution of
the Republic of Singapore (Amendment) Bill and the related amendment to the Internal
Security Act.

Sir, I am not a lawyer and I am not familiar with legal technicalities. So I would like to
limit my remarks to the concerns of the man in the street. The main concern is this. Do
the amendments to the Bills affect their civil and political liberties? Are they not subject
to abuse without recourse to the courts?

Sir, it needs to be emphasized that neither the Internal Security Act nor the proposed
amendment to it infringes on the right of every citizen of Singapore to take part in
political activities, be he for or against the government in power. The ISA exists as an
instrument against those who threaten our security through subversion and acts of
violence, and against those who gamble with our way of life, our family and our property.

Unfortunately, there has been some confusion in some quarters of the public, and I
believe also in the mind of the Member for Potong Pasir: some confusion between a
political opponent of the Government and a subversive who seeks to overthrow the
Government. A political opponent, Sir, works within the system. A subversive uses
unconstitutional means to achieve his objective. This confusion may have arisen partly
because some subver-
Column: 494

sives in the past had been members of the political opposition. We need to constantly
remind ourselves and assure the public that they were arrested not because of their
political beliefs but because they posed a threat to national security.

The Member for Potong Pasir has mentioned Mr Chia Thye Poh. I believe that the
Government has stated it

s position before that if Chia Thye Poh were to renounce the use of force, he could be
considered for release. I believe he has not to this date renounced the use of force for
political objectives.
 Sir, threats to national security are quite real. For all our economic progress, ours is a
fragile and a volatile society. I remember vividly as a child during the school holidays
travelling through Johor in the days of the emergency. Communist insurgents lurked in
rubber plantations through which we drove. We passed through many security blocks and
we saw trucks with bodies of soldiers and innocent victims.

I have myself witnessed one racial riot and have been curfewed as buildings around me
were burning. Sir, these events happened not so long ago and could happen again if we
ever slipped into complacency and relax controls over national security.

Sir, in restoring to the Minister for Home Affairs the power of subjective discretion in
internal security matters, we are doing no more than to affirm our trust in Cabinet and
Parliament. To be sure, the Government can violate our trust and abuse their powers. But
are there sufficient safeguards against such abuse? Members in this House have
mentioned various safeguards that already exist. I wish to add that ultimately the
safeguard is with the people. It is within their power to remove unjust governments by the
use of the vote. Cabinet and Parliament cannot afford to forget and has never forgotten
that we are accountable to the people for running a fair and just government.

Has there been abuse of the ISA to suppress the opposition? The answer is obvious. If
we look at the last general election and compare it to previous elections, there have been
more opposition candidates in the last election and of better
Column: 495

quality. Of course, the cynics would say, "Well, the Government allows only the weaker
opposition candidates to come forward, putting away the really tough ones who can give
us some competition." I do not think the two Opposition MPs in this House would agree
that this is so. These two Members are fierce critics of the Government and each has a
substantial following of supporters.

Sir, the opposition is alive and well in Singapore, thanks to the free society that the ISA
has helped to make possible.

Sir, I support the Minister's position on the Bill.

2.08 pm

Mr S. Chandra Das (Cheng San GRC): Mr Speaker, Sir, I would just like to confine
my remarks to the question of appeals to the Privy Council. Of late on this subject, there
has been much attention and discussion. So I thought I will spend sometime on this area.

Sir, as the Minister stated in his opening statement, appeals to the Privy Council have
been in existence since colonial days. Today, the Privy Council is the highest Court of
Appeal for Singapore. Other Commonwealth countries like Canada, Australia, India and
Malaysia have done away with appeals to the Privy Council and established their own
courts as the final arbiter. However, smaller countries like Singapore and some states in
the Caribbean have found it useful and necessary to retain this recourse to the Privy
Council. I think the decision to retain appeals to the Privy Council has been a right one so
far. In fact, we have benefitted from this practice. Further, I am also sure that the judges
in Singapore do not mind their decisions being tested by the Law Lords.

Mr Speaker, Sir, in an article in yesterday's Straits Times, Viewpoint, there is a strong

case made for the retention of appeals to the Privy Council. If I may read, Sir:

'Singapore still needs the Privy Council.' I would like to ask the Minister how useful
and effective have appeals been to the Privy Council for Singapore. How many cases
have gone up to the Privy Council in the last 10 years?
Column: 496

The writer of this article also made the assertion and I would like to quote the
particular section:

'Like any court here, the Privy Council interprets the law of Singapore. So as long as
the ISA is competently drafted and leaves no reasonable room for doubt, the Council will
have to give effect to the wishes of the Singapore Parliament as expressed clearly in the
Act.' I would like to ask the Minister whether this assertion is true. Because reading other
parts of the article there seems to be some contradiction. Maybe the Minister can clarify.

Sir, if I were asked whether all appeals to the Privy Council should be maintained, my
answer is no and maybe a partial yes at the same time. As a sovereign state, all cases,
whatever the extent and seriousness, be it related to ISA or other criminal or civil matters,
I believe the final decision must be made in Singapore. However, Sir, I am prepared to
concede in some cases, particularly in the commercial areas, maybe shipping and banking
as an example, for appeals to be allowed to go to the Privy Council. But I would like to
go on to suggest that such appeals go to Privy Council provided both parties put it as a
pre-condition in their contracts, ie, it is mutually agreed by both parties. If this is adopted,
then it will go to some extent to reinforce the point made in the same article yesterday
about foreign investors needing to have some confidence in the system. In banking
parlance, this may amount to what one might say a "comfort letter".

Barring this exception, Sir, I would strongly recommend to the Minister and this
Government that it is time seriously to consider ceasing all appeals to the Privy Council. I
think the Minister made various points. I would like to repeat some of them.

The ground rules, firstly, have changed over time. Britain itself, as indicated by the
Minister, changed course because of its entry into the European Community. It is being
influenced by European law, particularly in the field of administrative law. Secondly,
there is very little or no Commonwealth input in the Privy Council, as it was previously
the case. Thirdly, conditions and development in Singapore are different from those in
Europe and Britain.
Column: 497

Britain itself is finding it difficult to adjust to a European climate. What more for
Singapore. Hence, I am convinced that it is not appropriate for us as a sovereign nation to
submit to an external authority like the Privy Council. Lastly, if the Singapore courts
make any mistake, we as a nation will pay for it. If the Privy Council were to make a
mistake, will we be bailed out by the British Government? Certainly not.

Sir, some quarters believe that the current changes are being proposed because of
recent rulings of the Privy Council. I think it will be very difficult for Government or
anyone to convince such people. I personally feel it has helped us to focus on the problem
and the potential areas of conflict. These cases have merely shown us why it is necessary
for us to make the changes now. It is only a matter of time. As for me, I think the time is
right for us to change course.

Appeals to Privy Council have provided us a breathing space. Our Judiciary should be
the highest court of our land. We cannot allow Law Lords, who sometimes do not play
cricket, to decide for us.

Sir, while I commend the Minister the total withdrawal from Privy Council, I would
also like to draw his attention to two areas. Firstly, if appeals are withdrawn from the
Privy Council, will this not put an extra load on our already over-burdened judiciary? My
question is, are we geared to take on this extra responsibility? Sir, as the Member for
Fengshan said, I would also like to ask whether we need a separate Court of Appeal?
Right now, with a limited number of judges, is this also feasible?

Sir, abolishing appeals to the Privy Council is one thing, but I believe we also must be
geared to take on this additional role.

In conclusion, Sir, I can only repeat that whilst the Privy Council has served us well so
far and we should be grateful for this. Nevertheless, Sir, it is time for us to be master of
our own destiny and, to misquote the Straits Times' Viewpoint article, "Until then, Sir, I
submit that the Privy Council is dispensable."
Column: 498

The Minister for Foreign Affairs and Minister for Community Development (Mr
Wong Kan Seng): Mr Speaker, Sir, I rise in support of this amendment.

Sir, when Singapore became independent in 1965 the Government decided to retain the
final court of adjudication with the Privy Council. There were many reasons for this. One
was that Singapore inherited its legal traditions and common law from the United
Kingdom. Many of the Law Lords too had served in the colonies in Asia and so would
have an intimate experience and subtlety in dealing with cases from Singapore. Their
knowledge of local conditions and history resulted in decisions that served to strengthen
stability here. It was this knowledge of local conditions that allowed the implementation
of the ISA, which was a device used by the British colonial government to maintain
security. The Singapore Government inherited the ISA from them. Indeed, Sir, if you
look at Articles 149, 150 and 151 of the Constitution of Singapore, you would note that
they have their origins in the Constitution of Malaysia, which probably derived this also
from the British ISA.

Sir, Singapore also retained the right of appeal to the Privy Council because in its
initial years of independence, there was a lack of experienced Singapore judges. Hence it
was important to retain an external reference to avoid developing a parochial, closed legal
system, and to give our foreign investors some confidence.

Today, Sir, many Asia-Pacific countries in the Commonwealth, for example, India, Sri
Lanka, Australia and Malaysia, have long ceased to have their cases adjudicated by the
Privy Council. We should have done the same. It is an anachronism that should have been
abandoned. Why do I say so?

Sir, in the 23 years since Independence a number of changes in Europe and in

Singapore have taken place. Britain has joined the European Community and has adopted
a more European-oriented approach. Development of concepts of human rights in Britain
has followed the European and liberal western models, such as the European Convention
for the
Column: 499

Protection of Human Rights and Fundamental Freedoms. Europe emerged from World
War II with its tradition of established political, legal and administrative systems still
largely intact. European societies are much larger and more stable and therefore a greater
leeway in the interpretation of human rights and liberties could be tolerated. For example,
Sir, although Europe faced its own peculiar brand of communism, Euro-communism did
not attempt to wrench power through guerilla and revolutionary tactics. Instead they
accepted the course of obtaining power through the ballot box.

In addition, Sir, as time goes by, the empathy and the understanding that the Law Lords
have for local conditions have diminished.

The situation in South-East Asia evolved in a markedly different manner from that in
Europe. In the South-East Asia region the nexus between human rights and the
companion concept of responsibility is a more critical one. After World War II the
countries in the region were largely still colonies struggling for independence. The birth
of new countries of South-East Asia was accompanied by a certain amount of travail
which included regional hostilities and communist guerilla movements. The communist
movements in Singapore and Malaysia were not nationalist ones but were based on
ideological lines. Unlike European communists, the CPM attempted to gain power
through guerilla warfare and violence. The threats by the CPM to the existence of order
in Singapore required unique solutions. The CPM has also changed its tactics in response
to political and social changes in Singapore. The arrests and subsequent statements by the
Marxist conspirators in 1987 have shown that the CPM has not discarded its intentions to
undermine and overthrow the Government. Despite what the Member for Potong Pasir
said, Sir, between 1973 and 1985, 45 civilian police officers and other officials were
killed by the communists in Malaysia.

Sir, the multi-racial nature of our society also makes it necessary to have preventive
detention laws to preserve racial harmony. The Government is in the best position to
assess and to determine the appropriate
Column: 500

measures and responses to make in order to safeguard national security.

Sir, preventive detention laws are never palatable. They place a heavy burden on those
who have to use them. The Government has never abused this power even at the time
between 1966 and 1981 when Parliament consisted of only the PAP members. It has
always judiciously used the ISA to maintain peace and security for the good of the
people.

The Government, Sir, has never shied away from difficult problems. It has always
confronted tough issues head on. Take, for instance, our drug and crime situation. Despite
being the hub of communication in South-East Asia and being so close to the Golden
Triangle, we have been relatively free of the drug problem. The reason why this is so, Sir,
is that we have the Misuse of Drugs Act which punishes with death a person who is
convicted of drug trafficking. We also have a law called the Criminal Law (Temporary
Provisions) which empowers the detention of gangsters and drug traffickers. There are
close to 1,500 such persons under detention and yet no one has challenged that it is
wrong to detain them. Therefore, it is not preventive detention per se that is undesirable
but the implementation that is being questioned. Sir, I submit that the records show that
so far we have not taken this responsibility lightly. The judicious use of such powers has
enabled us to have a relatively drug-free and crime-free environment.

Sir, western human rights campaigners would call these laws draconian. But we know
that these laws have been effective in protecting the interests and safety of our people.
Similarly, the Internal Security Act has enabled the Government to detain people who
threaten the security of the State. Sir, the ISA has never been used by the Government to
detain people who are against Government policies or who speak up against the
Government. It has never acted like a bully. If the PAP Government has done so, it would
have been voted out of office a long time ago.

Some people think that stopping appeals to the Privy Council is like the end of the
world. Nothing is further from the truth. Singaporeans should have no reason to doubt
that they will continue to
Column: 501

survive even without access to the Privy Council. We must decide our fate ourselves.
National security interest must be a matter to be decided by the Government which is
democratically elected by the people. It is a responsibility that cannot be abdicated to a
foreign court which has no stake in our well-being. As the Singapore Court of Appeal has
said that it agreed with judicial opinion expressed in other jurisdictions, it is also
necessary to amend the law to restore the subjective test principle so that the Executive
alone could decide on matters of national security.

Sir, in all the previous General Elections, the Internal Security Act was canvassed, yet
the people have rejected the views of the Opposition. The people have given the
Government the mandate to govern and look after their security interest. We cannot
abdicate this responsibility to any court.

Mr Loh Meng See (Kampong Glam): Mr Speaker, Sir, I rise to support the Motion.

I would like to offer some observations, Sir. As we go about amending this particular
piece of legislation, I think we could do a better job in anticipating the change that is
about to take place rather than to react to a particular and specific situation.

Sir, it appears to put us in a bad light that the law is drafted in immediate response to a
particular and specific change of event. I do not know whether it is because we have not
provided adequate facilities and resources for the Ministry of Law or that the Ministry
has been tied up with so many other matters that this area of work has been low in their
priority.

Sir, as various laws are being reviewed from time to time, I would suggest that a Law
Reform Commission or a Law Review Committee be set up to systematically prepare
ourselves in anticipating the changes and development taking place in Singapore and
throughout the world. We have been very good in planning in other areas and in the area
of legislation which affects every citizen, this should remain high in our priority. Sir, I
urge the Ministry and the Minister to give due consideration to this suggestion.
Column: 502

Mr Speaker: Order. I suspend the sitting and will take the Chair again at 2.50 pm.

Sitting accordingly suspended at

2.25 pm until 2.50 pm.

Sitting resumed at 2.50 pm

[Mr Speaker in the Chair]

 Debate resumed.

Encik Zulkifli bin Mohammed (Eunos GRC)(In Malay): Mr Speaker, Sir, matters
pertaining to our internal security matters are a matter of great concern to a majority of
Singaporeans. Therefore, it is essential that the ordinary man in the street understand the
principles behind the Bill now before us to dispel whatever ambiguities that he or she
may have. Singaporeans must always acknowledge that internal security matters require
high-level decisions and responsibility on the part of the Government in other words,
decisions which could only beapplied in extraordinary circumstances where the expertise
and judgment of the Government are called for, rather than the Judiciary.

What we must realize is that such decisions are made not by one or two persons but
rather collectively by the Cabinet which is responsible to Parliament. It demands swift
action on the part of the Government to handle exigencies cutting through normal legal
procedures in order to prevent or arrest potentially explosive situations to safeguard our
national interests.

Mr Speaker, Sir, our Internal Security Act has many similarities with the ISA of our
neighbour, Malaysia. However, difference is that Malaysia has, since the 1960s,
disallowed appeals on ISA cases to the Privy Council in London. This was a wise and
practical more which we in Singapore could follow based on the principle that the
internal security matters of an independent and sovereign country must be solely decided
by the Government of that country who understand's and grasps local circumstances
better than outsiders or foreigners.

As loyal and law-abiding citizens, we should accept the fact that every independent
country has the prerogative to decide
Column: 503

and determine its own laws which are designed to safeguard its well-being and that of its
citizens. It is our absolute right to determine our destiny without being obliged to refer to
or be influenced by external events. A fundamental question we should ask ourselves is
do we not agree that the legal system of each sovereign country should evolve in
accordance with local situations and circumstances?

Having said all that, Sir, with regard to cases other than internal security cases, I would
like to urge the Government not to rush into making a decision but to examine thoroughly
the implications of disallowing appeals to the Privy Council. In my opinion, this is crucial
if we wsih to continue to uphold confidence and ensure stability of our legal system.

Mr Speaker, Sir, I support the Bill.

The First Deputy Prime Minister and Minister for Defence (Mr Goh Chok Tong):
Mr Speaker, Sir, if we go down to the basics, the question is whether we need the ISA to
help us guard against subversion, conspiracies and other threats to our security. If the
answer is yes, then the reason for the two Bills is obvious. The Government is
responsible for security and the Executive must retain the subjective right to decide what
is or is not a security threat. If the answer is no, then the debate on the two Bills is
wrongly focused. The debate should be on the repeal of ISA, not the judicial review of
security cases.

The ISA issue is not new. We had to make a stand on this in mid-1987 when we used it
to arrest Vincent Cheng and 15 others for their involvement in a Marxist conspiracy to
destabilize the State. In that experience with the Marxist conspirators, their re-arrest in
1988 and later the arrest of Francis Seow for his getting involved with some American
officials in our domestic politics, reinforced my conviction that we must have the ISA,
and not discard it. Without it, we would not have been able to deal with these threats to
our security so quickly and effectively.

Despite the recent judgment of the Court of Appeal, I still hold the view that the
Executive's powers under the ISA must remain undiluted. The communist threat may
have diminished. It may be receding
Column: 504

but it has not disappeared. Foreign powers and human rights groups may refrain from
interfering in our domestic politics but such restraint is not permanent. To have the power
of detention without trial, to deal with these similar threats diluted, or subject to review
by another body which is not answerable for the security of Singapore, is to risk our
ability to deal a crippling blow to these threats quickly and decisively.

Our position on the ISA, however, is only as strong as the people's. If the people are
not convinced of the need for the ISA they have the right to take it away. In an election,
they can vote us out provided the Opposition campaigns on the basis of repealing the
ISA. That right belongs to the people. If they want the ISA but feel that we have abused
our powers under it, they too have the right and power to remove us from our position of
authority. Indeed, we made this very clear before the last general elections, and also in
earlier elections.

The re-arrest of the Marxist conspirators, the arrest of Patrick Seong and also the arrest
of Francis Seow all these took place before the September general elections. There was
an uproar both among Opposition parties and also among overseas human rights groups,
like the Amnesty International, Asiawatch, and so on. We answered them point by point
and reminded them that in using the ISA the PAP Government had the mandate of the
people of Singapore, freely and repeatedly given in successive general elections in which
the ISA had been an issue. Mr Chiam said we did not make this an issue, we did not raise
this. He has conveniently forgotten that it was in the PAP manifesto. BG Lee quoted you
the passage from our manifesto just now. Indeed, even before the elections in April 1988,
our press statement on Francis Seow had a paragraph on this. And if I may remind Mr
Chiam, let me quote this paragraph to refresh his memory:

'From time to time, at elections in the 1960s and 1970s, political parties and even
individual candidates have campaigned against detention without trial. All Singaporeans
are free to do this, in fair and open debate, so long as they are acting on their own, and
not at the egging or with the help of foreign groups. Now the prime movers behind these
detainees, who the government believes are not Singaporeans, have
Column: 505

again made detention under the ISA an issue. The next general elections will provide the
proper constitutional channel for genuinely different views of how to govern Singapore to
be put before the electorate. Then Singaporeans will have to decide by their votes
whether they support the use of ISA powers against subversives to preserve the security
and tranquillity of the Republic, as in these cases, or whether they believe that Singapore
has advanced into a mature society like the West and can afford to adopt the practices of
the West.'

The Opposition parties ducked the issue. Mr Chiam who has contested five elections
(1976, 1979, 1980, 1984 and 1988) has not campaigned against the ISA during the
elections. Even Francis Seow, the "great" champion of human rights in Singapore,
conceded that the ISA was needed, although he said, rather softly, that the use of ISA
against him personally was wrong. But he did not follow up in the elections. He did not
tell the whole electorate what the abuses were. He did not explain or prove to the
electorate that there has been an abuse of power insofar as he was concerned under the
ISA.

Dr Lee Siew-Choh, having campaigned for the Barisan Sosialis against the ISA in
every previous election, piped down this time. He himself has never been arrested even
though he was closely associated with communist sympathisers and operators who were,
because the ISD knew the difference between him and them. He knows the powers have
not been misused. If his friends had won, he would not be in Parliament today.

Why did the Opposition not make it an issue in the last general elections? Because they
knew the voters would support the PAP's position on the ISA. The September elections
had been significant not only for the issues which had been discussed or debated Town
Councils, Elected President, and so on but also for those which were not raised the ISA.
BG Lee pointed this out on election night. Now Dr Lee Siew-Choh and Mr Chiam have
resurrected their old stand. Who gave them the mandate to do so? During the elections
they could have gone to the people for the mandate, they did not. So, who gave them the
mandate to do so now?

When the Court of Appeal issued the judgment changing the law on preventive
Column: 506

detention, we did not just dismiss the judgment. We sat down to carefully review our
position on the ISA again. First, has our situation changed so that the ISA is no longer
necessary? The answer is that it has not. Second, should we follow the UK practice and
allow more scope for judicial review? The answer is no, because security matters are
squarely the responsibility of the Executive which must answer for its actions to the
electorate. Do we or do we not act now to restore our position to what it was and thus
reaffirm the continued relevance of the ISA to potential subversives, human rights
groups, well-intentioned but wrong-headed foreign governments and others who might
otherwise have believed that we were softer than the Prime Minister's generation? We
considered the matter carefully and decided to act. Better to remove any doubt about our
position on the ISA than to tempt others to try their luck at subversion.

The subject before the House is not a Home Affairs matter. The Bills are decided by
the entire Cabinet. I know that the ISA is a powerful tool, and in the wrong hands can do
harm. But I also know that Singapore cannot be governed without the ISA. This only
reinforces the importance of having men of absolute integrity and judgment in politics, so
that the Government does not abuse the power which it has been vested with, as this PAP
Government has never done.

The answer to possible abuse of ISA, however, cannot be judicial review. That will
merely transfer the important matter of national security from the Executive to the
judiciary, a responsibility which it is not equipped to discharge. This is especially so
when the appellate body is outside Singapore, like the Privy Council. The answer to
possible abuse of the ISA must be political, that is, having another political body to
exercise judgment on security cases, much the same way as the Executive has done. In
other words, have another political body other than the Executive to provide a second
opinion and a check and balance. We are working on this idea. But meanwhile before the
idea is crystallized, make sure you have men of integrity in Government to prevent any
abuse of the ISA or any other laws in Singapore.
Column: 507

Mr K. Shanmugam (Sembawang GRC): Sir, I would like to briefly address this

House on a point made by Dr Lee Siew-Choh before coming to the constitutional
amendments.

Sir, Dr Lee suggested that the proposed amendments to Article 94, subsection (3), will
in fact make the Chief Justice "beholden" (to use a term used by a former
Parliamentarian) to the Government. That was the central point he made.

Dr Lee Siew-Choh: A point of clarification, Sir.

Mr Speaker: Would you like to give way to Dr Lee to make a clarification?

Mr Shanmugam: Yes, I would give way.

Dr Lee Siew-Choh: I do not know what he meant by "beholden".

Mr Shanmugam: Sir, I was merely paraphrasing. I think the Hansard can be referred
to. What he suggested was that if the Chief Justice could be repeatedly appointed by the
Prime Minister, the independence of the Judiciary will be affected. That I think is what he
said, and the word "beholden" precisely covers that point.

Sir, the effect of the amendment is to merely clarify the existing legal position. The
Government's point is that the Chief Justice can be appointed after reaching retirement
age of 65 under the existing constitutional position. A question as to the validity of that
mechanism has been raised in the Privy Council very briefly. In order to avoid any such
suggestion, the Constitution is being amended to make it clear that the Government can
advise the President to continue the appointment of a Chief Justice after he retires or
reaches retirement age. That is no different from the decision taken by the Government in
the first place to appoint a judge. A judge is appointed by the President on the advice of
the Government. So in that sense, I think Dr Lee has missed the point.

Sir, if I may now come to the proposed constitutional amendments. Mr Speaker, Sir,
the proposed amendments appear to be a direct consequence to the recent decision of the
Court of Appeal. The intention of the amendments is to ensure, first,
Column: 508

that the merits and grounds of the Minister's decision to detain a person under the ISA
cannot be reviewed at all by the courts. Secondly, the effect of the amendments is to
ensure that there can be no appeals to the Privy Council in respect of challenges to a
detention under the Internal Security Act. The rationale for both these amendments have
been set out by the Minister for Law and Home Affairs.

Sir, two aspects of this amendment will have to be considered. First, the effect of the
proposed law, and second, the impact it will have on public opinion and perception. The
effect of the proposed law is to give the Minister near-absolute powers to order the arrest
of any individual. He decides whether or not there is a threat, and his decision cannot be
reviewed on the merits. An arrest under the ISA means that none of the basic
constitutional rights can be exercised by the detainee. He has no right to trial because he
has not committed an offence. The ISA forms an exception to all that is basic in our
society, including the concept of rule of law and the concept of separation of powers.

The ISA has been justified, and I fully accept the justification that such powers were
necessary considering our circumstances and the communist threat.

Sir, coming to the amendments, it will be useful to consider what exactly the Court of
Appeal said. It did not say that it can itself decide whether or not the detainee posed a
threat. The Court said that it can consider, within broad parameters, whether or not there
was any ground at all for the detention. It will set aside the detention only if there were
absolutely no grounds for the detention, ie, it takes the view that no one in his right mind
could possibly have concluded that the detainee posed any threat to national security.
Otherwise, it will not interfere with the Minister's decision.

Sir, the amendments will deny the courts that power. This Government believes that it
has never abused the ISA and that there is nothing to
Column: 509

fear. The Government works on the basis that the persons in Government should be
upright, moral and only do what is good for the country. Thus the people have nothing to
fear, despite the powers that the Government has. These powers will never be abused and
because they are so effective, they help the Government govern effectively for the greater
good of all. So that has worked. But can we be sure that down the road, the situation will
be the same? We cannot guarantee that the future government will comprise honourable
men. Our election system is not geared towards that end. 20-30 years from now, there can
well be a party which forms the government by winning 43 out of 81 seats and less than
50% of the votes. The temptation to use the ISA for political ends becomes almost
irresistible under such circumstances.

An argumment, therefore, can be made out that there must be checks and balances
within the system. The Minister in taking his decision can arguably be made to realize
that if his decision is so unreasonable that one look at the facts will show that he could
never have considered the detainee a threat, then his decision should be reversed by the
courts. Sir, the idea is really to find a middle ground. I agree that it is unacceptable that
the courts can review and substitute their own decision for that of the Minister's. The
courts cannot and should not be able to say that they would have decided it differently
and that therefore the detainee should be released. The only question is whether they
should be able to say that they have reviewed the facts and that the detention is so
unreasonable that there is no ground at all for coming to that decision.

The distinction between the two approaches is well set out in a substantive article
yesterday by Mr Cheng Shoong Tat in the Straits Times. I was surprised, Sir, at the
perceptive analysis of the legal and constitutional position and, in fact, my position has
been fully anticipated by Mr Cheng. What I would suggest is that there ought to be
amendments to the ISA, to make it absolutely clear that the Minister has the
responsibility for the security of the State and that the courts cannot substitute their view
for the Minister's view. The courts have not done that as yet but under the existing law,
particularly after the
Column: 510

recent decision of the Court of Appeal, there is a possibility that they may do that. Thus
an amendment is necessary to define exactly what the courts can and cannot do.
However, I would urge the Minister to consider whether the court should be given a
residual right to review the decision of the Minister when they are convinced that the
Minister's decision is totally unreasonable. A suitable legislative formula could be found.
If the Government is convinced that the proposed amendments should be proceeded with
in the present form, then I would suggest that the Hon. Minister at least consider what
other safeguards can be built in.

Sir, the second aspect is the impact this legislation will have on public opinion. I
suspect that there will be an unfavourable reception. Among this section of the public,
there has been termed "western-educated liberal". That section is fairly young and
probably play an important part in opinion-making in our society. Their views cannot be
ignored. Their hearts and minds must also be won if we are to achieve the society of
excellence that we aspire towards.

Sir, that group of people who are concerned about the proposed amendments are
people who accept the ISA, in principle. They only want to know that there are
safeguards. This is another factor which I would urge the Hon. Minister to consider. The
thrust of my point is that we are honest, we are sincere, we will never abuse the power.
But we are building in a legislation and in 50 years there could be some other
government. And morality in government can never be ensured by us now. My point is
that if the legislation on what the courts can and cannot do is carefully drafted, then
despite judicial activism the Privy Council and all lower courts can only be given the task
of deciding whether the Minister was acting irrationally. The Parliament is sovereign. We
can decide by way of law, if necessary, by amending the Constitution, what the courts can
and cannot do. We can therefore design the ISA legislation such that the courts can only
act where there has been clear abuse.

Sir, let me end by expressing my hope that some safeguards will be built in. I
Column: 511

firmly believe in and accept the ISA. At the end of the day, under our system of
parliamentary democracy, this proposed Bill will become law because the Government
has the total support of the House, bar perhaps the Member for Potong Pasir since Dr Lee
has no vote on this point anyway. However, that, if anything, imposes a greater obligation
on the Government.
3.22 pm

The Second Deputy Prime Minister (Mr Ong Teng Cheong)(In Mandarin): Mr
Speaker, Sir, today, we are discussing the Internal Security (Amendment) Bill. What is it
all about? We all know that since colonial times until now, all court cases including those
relating to internal security could appeal to the Privy Council in Britain. In other words,
the Privy Council has the final say in these decisions. Today, this amendment Bill is to do
away with all the appeals relating to internal security cases to the Privy Council. In other
words, these cases relating to internal security can only appeal to Singapore's highest
judicial tribunal, so that Singapore's 3-judge appeal court will retain the final say in the
decision.

Those who oppose this amendment Bill would say that this is depriving the people of
their rights of appeal and is an infringement against human rights; therefore, it is
unreasonable and is against the principles of fair play and justice. But those who are for
this Bill say that it is correct and right, because it is a matter affecting our sovereignty and
our rights. Singapore is an independent sovereign country. We have our own courts and
our own judges. Why then should we allow the British courts and judges to make the
final judgment on our cases?
 Some people have asked why British cases do not need to appeal to some other
country's judicial tribunal, say, the American Supreme Court or Appeal Court? Why is
there nobody criticizing the British judiciary as being against the principle of justice,
depriving the people of their right of appeal. Australia is an independent country adopting
the British system of law. It is an independent country. The Australians are decendants of
the British. They have a common Queen with
Column: 512

the British. But Australia has done away with appeal to the British Privy Council long
ago. This is not against any principle of fairness or justice.

We all know that the Judiciary and the Executive have different roles to play, with
different functions and powers. We would not allow the Executive to interfere in the
jurisdiction of the courts or infringe the independence of the Judiciary just as we would
not allow the Judiciary to interfere in the Executive's decision. Although the court has the
supervisory judicial power to ensure that the President or the Minister, in carrying out his
constitutional or executive power, does so in accordance with the law and the legal
procedure, the court cannot overstep its own jurisdiction or scope of power. Our courts
have all along been abiding by the legal principles in the decided cases under the Internal
Security Act. That is to say, the court has no right to question or review the actions of the
President or the Ministers exercising their powers under the Internal Security Act.
However, recently our courts have begun to change their long standing principle and
attitude. Our judiciary is modelled on the British judiciary which has a long history of
experience. We do not deny this.

Of course, there are merits in allowing Singapore court cases to appeal to the British
Privy Council, particulary in the earlier period of our independence. But we have been
independent for over 20 years, and for as many years we have been separated from the
British colonial empire. Therefore, our geo-political conditions and particulary our
internal security situation, are matters that the British judges may not fully understand. I
agree completely with what the First Deputy Prime Minister has said about the Internal
Security Act earlier. It is mainly due to this Internal Security Act that we have been able
to enjoy peaceful living with secure jobs in a stable and prosperous country. Every
general election has shown that the people are supporting the Government in preserving
this Act.

In Britain, there are also many changes. Britain has joined the West European group. In
recent years, she has been affected by the West European thoughts and moods. Her courts
recently have
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superseded their traditional jurisdiction and tended to take on a new interventionist role
and posture in the British Executive decisions. This could cause conflicts between the
Judiciary and the Executive. The British and west European courts, in hearing or
reviewing cases, have changed their former objective attitude and stand but tend to
embark on an intervening and interfering posture in questioning and reviewing the
reasons of and the evidence for the Executive decision. Therefore, if we continue to allow
our appeal cases on internal security matters to go to such foreign judicial tribunals, then
such foreign tribunals would be able to intervene and question the reasons and basis for
our President or Minister's decision. In this way, we will be allowing them to out-stride
their jurisdiction and interfere in our internal affairs and infringing our sovereignty.
Therefore this amendment Bill today is to protect our sovereignty and to ensure that there
would not be any conflict between the Executive and the Judiciary.

This Bill reasserts the underlying legal principles in the cases under the Internal
Security Act. Other cases are not affected. The cutting away of such appeals to the Privy
Council relating to cases under the Internal Security Act is only the first step. As regards
other cases unrelated to the Internal Security Act, for how ong more would their avenue
of appeal to the Privy Council be preserved, I think it would have to await further study
by the relevant authorities before a decision can be reached. In my personal view, it is
only a matter of time.
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CONSTITUTION OF THE REPUBLIC OF

SINGAPORE (AMENDMENT) BILL
Debate resumed.
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The Minister for Trade and Industry and Second Minister for Defence (Services)
(BG Lee Hsien Loong)(In Mandarin): Mr Speaker, Sir, I will avail myself of this
opportunity to say that I fully support what the First Deputy Prime Minister had said
earlier.

This question of ISA is not new. The ISA has been in force for over 40 years. In recent
years, there were the Marxist incidents, the Hendrickson incident and the arrest of Francis
Seow. These cases happened one after the other. In the past two years, we had serious and
heated debates, taking place both inside our country and outside the country. In fact, two
years ago when we arrested these Marxists we had already taken our basic stand and
decision. We did not just decide the fate of Vicent Cheng and others only. In fact, we had
made our basic decision, because this was a new situation, a new electorate, and new
leaders. Should these new leaders make use of the old law to deal with different questions
and problems? Of course, new you do not have to mention it. But old it is also quite clear,
but different problems. Now it is not a question of Chinese educated communists but a
question of English educated intellectuals. Some had links related to European
Communists, others to the Philippine Communists. Others were not communists but
religious extremists, against whom we must also use the ISA. So this was a basic
fundamental decision. Our decision was that we must carry on with this ISA. Therefore
we arrested Vicent Cheng. Thereupon we found out their link with the Philippine
Communists. Thereby we discovered that Tan Wah Piow in England had been
manipulating this group of people. If we had not arrested these people, we would never
have discovered all these facts.

One year later, some of them denied their statutory declarations made under detention.
So we re-arrested them and re-examined them. Then, as we also had some suspicions
about Patrick Seong, their lawyer, therefore we arrested Patrick Seong and interrogated
him. Was there any evidence? No. But we had great suspicion about him. Because we
arrested Patrick Seong, thereby we found out Francis Seow's link with Hendrickson, and
the
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American diplomat's attempts to interfere in Singapore's internal political affairs.

Therefore we arrested Francis Seow and asked him about the relationship between him
and Hendrickson, and what Hendrickson told him to do. This was not based on evidence,
but again on some doubt or suspicion. So in the end our actions were proved right. If we
had not arrested these people, Singapore's future might be quite different from what it is
now.

All these had happened before the last General Elections. Sir, you know that no
government would like to do this kind of thing before a General Election because it
confuses the people's minds, creates instability, and may affect the government's votes.
But the country's security must come first. Therefore we had no choice but to do this. Of
course, it had caused some hue and cry. In Singapore, the Opposition made a hue and cry
of it. Outside, the human rights groups in America, Australia and England organized a
campaign to pressure the Government of Singapore, to cause us to change our attitude
and stand. In the end, we had a verbal fight, to and fro and tit for tat, for the ensuing few
months. Those involved did nothing else but to write letters to counter attack. We said
very clearly that this matter was a decision for the people of Singapore, because the
Government had to work for the people, to do things for the people. At every general
election the Opposition had raised the matter of ISA and the Government's power of
arrest as an election issue. Therefore ISA would again become an issue at the next general
elections. As early as April last year, a Government's press statement had also said very
clearly stated that foreigners should not interfere, as this matter should be left for the
Singapore people to decide. Therefore nobody can say that PAP is doing things
undercover or stealthily. It is not like the Opposition. Indeed, when the General Election
came, we laid he cards clearly on the question of ISA as an issue at the General Election.

Earlier when I was discussing with MP Chiam in English I rread out a passage which I
said was our General Election platform, that is a document entitled "Prosperity Forever,
Good Years Forever". Mr Speaker, Sir, I would like to apologize
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to you and to all Members here that the specific passage was from another election
document. But although the language used was different, the meaning was the same. Let
me read out the Chinese translation:

'The Internal Security Act provides us with safeguards. Unfortunately, we are living in
a dangerous world. Those who are opposed to Singapore always do not go by the rules of
the games. When they cannot achieve their aims through democratic and legal means,
they resort to undemocratic and illegal tactics. They organized pressure groups and then
manipulate from behind the scene. They seek foreign assistance and support. They do not
use peaceful persuasion but resort to violence, bloodshed and riots to achieve their
political aims. The Internal Security Act will enable us to counter such threats.'

The wording is different, but the meaning is very clear. The General Election was the
time for the people to choose. They supported this stand. Not only did the people support
us on this issue; the Opposition, by not raising this question, also showed that they
recognized that the people supported this stand.

Now that the people have elected a new leadership, the question before the new
leadership is whether we have the determination to carry on with this decision. The Court
of Appeal's review of cases of Teo Soh Lung and others has given us another opportunity
to review this question. The question is very simple. First, has the situation of Singapore
entirely changed so that we need not implement the Internal Security Act? Or, second,
should we follow the British model? Their conditions have changed. They have entered
the European Common Market. They changed their laws. Must also follow suit exactly?
Or we should directly explain that the power of arrest is an Executive reponsibility and
not the duty of the Judiciary? The Minister has to consider all factors in order to arrive at
a political decision: whether this person is detrimental to Singapore, whether he has done
something wrong, or whether he has not yet done anything wrong but has the intention to
do something dangerous to Singapore, whether there is adequate evidence or not, it is
better to arrest him and question him. If the answer is we want to do this, then our final
question is, whether we should change our law so that we may restore to the position
before the latest trial, so that those foreign elements
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and those who are a threat to Singapore may understand that we have a unanimous, firm
and resolute stand in Singapore? The Cabinet after considering this matter decided
unanimously that we must take action. It is always better to take action first.

The Government recognizes the ISA as a powerful means to carry out its function. Of
course, in the hands of a dishonest government, it may be a dangerous weapon. A
dishonest government can do many wrong things even without ISA, but the ISA is one
tool it can misuse. But we should understand that without this Act, no government would
be able to govern Singapore and to deal with any potential space threat to the security of
Singapore.

In principle, the Government is agreeable to the idea of having a double safeguard. But
the question: is what kind of second safeguard? When we talk about safeguarding CPF
funds, the elected President is the second key. That is a second safeguard. But for internal
security, we have to search for an organization that is able to execute the second key.
Judicial courts and the Appellate courts would not do, because who nominates the judges
to make the decision? It is not a matter of law, it is a matter of security. So it should be an
executive body, a political organ. As to how to go about it, we are considering the matter.
It takes a period of time. But in principle and in law, I feel that the amendment Bill before
us is very necessary.

Mr Davinder Singh (Toa Payoh GRC): Mr Speaker, Sir, I would like to respond, if I
may, to a couple of points, the first made by the Member for Potong Pasir. In his address
to this House, the Member produced an undertaking which reads:

'I, Chiam See Tong, MP for Potong Pasir, in consideration of the Government of
Singapore releasing Chia Thye Poh ...' goes on to agree to:

'act as his guarantor that Chia Thye Poh will not participate in any violent activity
calculated to overthrow the legitimate government of Singapore' and the gist of it is that
if he should do so, if he should breach that undertaking, then he would vacate his seat.
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I speak purely from a legal angle. Whatever may be the policy decision of the
Executive in response to this document, it is couched as a contract. The words "in
consideration" and "as guarantor" are used specifically so that if it has any force, it
purports to have force as a binding and valid agreement.

Sir, there is a principle at common law that the courts will not uphold and, in fact, will
strike down contracts which are illegal. There are a number of heads under which
contracts may be illegal. A contract to commit a crime is illegal. A contract which is
against public morals is illegal and a contract which is against public policy is illegal.
What we have here is an offer to the Government to commit an illegal act. The deal is
this. You abdicate your responsibility, you forget everything that you have said for the
past 20 years about this man, you forget your convictions that he is a threat to Singapore,
in return for my undertaking and my guarantee, you release him in the hope or the
expectancy that the undertaking might be breached and therefore you would have a
House where all elected MPs would be of the PAP Party only.

Sir, I am not the legal adviser to the Government. But if I may offer some gratuitous
advice. I would respectfully suggest that no consideration be given to this document
purely because it is an offer to engage in illegal transaction and it runs contrary to this
Government's position for years.

Mr Chiam See Tong: Point of clarification, if I may.

Mr Speaker: All right, make your clarification.

 Mr Chiam See Tong: This is a serious matter. But Mr Davinder Singh has attempted
to turn it into a joke. If one of his brothers were to be detained for 20 years, I wonder
what his feelings will be like. This is not an illegal contract. The Government itself wants
Chia Thye Poh to sign an undertaking so that he can be released. It is not a legal contract.
We are men of our words. We have given an undertaking not to be decided by the courts
of law but to be decided by the people of Singapore. Where do you stand? Are you bound
by
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your words? That is what it is all about in politics. I think Mr Davinder Singh, briefly
only in Parliament, has a lot more to learn.

Mr Davinder Singh: Sir, this is no light matter. It is very serious because I stand
before this House today and I say that it is my view that this offer, if consummated by an
acceptance, would be tantamount to an illegal contract which would be struck out by the
courts and will not be upheld even if an attempt is made to enforce it.

The other point. There is a significant distinction in law between the Government's
offer to the detainee to sign an undertaking and a third party stepping in as a guarantor to
say, "Forget that undertaking and in view of it, I will be guarantor." That distinction
cannot be overlooked.

Now, Sir, if I may be allowed to proceed to the second point which I indicated I would
like to respond to, and that is, Dr Lee Siew-Choh's point about the proposed amendment
to the Constitution, in particular, Article 94(3). As I understand his argument, he rejects
the Minister's point that the proposed amendment is inserted purely for the avoidance of
doubt. I support that argument and that this Article is merely inserted, to use the
Minister's words, for the avoidance of doubt, the point being that the Chief Justice has not
acted ultra vires at any time.

Sir, Members may not have copies of the relevant Articles in the Constitution before
them but if I may take Members through the Articles. Article 94(3) states:

'A person qualified for appointment as a Judge of the Supreme Court or a person who
has ceased to hold the office of a Judge of the Supreme Court may sit as a Judge of that
Court, if designated for the purpose ... in accordance with Article 95, and such person
shall hold office for such period or periods as the President acting on the advice of the
Prime Minister, shall direct.' And Article 95 sets out the means by which the appointment
is made. The relationship between the two is this. Article 94 is the substantive provision
for appointment and Article 95 is the procedural Article in that it sets out the manner in
which appointments are made. The issue therefore is: what is the meaning of the word
"Judge" in Article 94(3)? Do we have to insert the words "Chief Justice" in Article 94(3)
and
Column: 520
my submission, Sir, is that we do not have to. The word "Judge" includes in the context
of Part VIII of the Constitution the Chief Justice unless it is expressly provided otherwise
and this is plain from reading a number of these Articles.

Article 94(1) says:

'The Supreme Court shall consist of a Chief Justice and such other Judges as may, from
time to time, be appointed.' "Chief Justice and such other Judges" in other words, the
Chief Justice is one Judge and then there are such other Judges. Article 95(1) says:

'The Chief Justice and the other Judges of the Supreme Court shall be appointed by the
President, acting on the advice of the Prime Minister.' Once again, "the Chief Justice and
the other Judges". However, if it is necessary to draw a distinction between the two, the
Constitution addresses it in this manner. Article 95(2) says:

'Before tendering his advice as to the appointment under clause (1) of a Judge, other
than the Chief Justice, the Prime Minister shall consult the Chief Justice.'

Sir, we have a situation where if it is intended to draw a distinction between a Judge

and the Chief Justice, he Constitution would say, "a Judge other than the Chief Justice".
Article 94(3) does not make this distinction. It is plain that a person or the Judge referred
to in Article 94(3) includes, for the purposes of construction, the Chief Justice.

Sir, I am sorry that I have to go through this technical analysis only because I think it is
necessary to address the point, which is a very serious point, that the Chief Justice has
been acting ultra vires. Dr Lee also refers implicitly to Article 95(3) to support his
argument that the position and the discharge of duties was outside the Constitution.
Article 95(3) says:

'This Article shall apply to the designation of a person to sit as a Judge of the Supreme
Court under clause (3) of Article 94 and to the appointment of a Judicial Commissioner
of the Supreme Court under clause (4) of Article 94 as it applies to the appointment of a
Judge of that Court other than the Chief Justice.'

Sir, for the record, that Article only makes it plain that when it comes to the
appointment of a Judge after his office is
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terminated, then the same procedural requirements which apply when he is first
appointed remain the same. In other words, in the first instance, when a Judge is to be
appointed, he shall be appointed by the President on the advice of the Prime Minister
after consulting the Chief Justice. But when the term of the Chief Justice is to be
extended, it makes sense that there is no need to consult the Chief Justice. The Prime
Minister would advise the President.

My third point is this. The Chairman of the GPC for Law has earlier today affirmed the
GPC's support for the amendment. I am a member of that GPC and I likewise affirm my
support. The issue today is not whether the ISA is necessary or not. The issue today is
whether the amendment ought to be in place and the amendment deals with one point
whether the established law up till 8th December 1988 should continue to apply
notwithstanding the decision of the Court of Appeal? My point, Sir, is that the legislation,
if amended, must take into account one factor and, that is, accountability. It has been held
by the Court of Appeal and if I may quote from the decision in relation to accountability
to Parliament, this is a comment of Lord Diplock:

'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 function. 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.'

I support the reaffirmation of the subjective test. But I would also urge the
Government, and in fact the ground has somewhat been cut from under my feet by the
earlier statements (the First Deputy Prime Minister) to establish or institutionalize a
mechanism somewhere between the judiciary and Parliament which would ensure
accountability will assure that whatever actions are done, are done in good faith and that
there is no abuse of power. And until that happens, I would urge the Government to
continue what it has been doing, ie, to put itself up before the press, defend and
substantiate everything which
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is being done, open everything up for scrutiny, because the majority of the people in
Singapore have come away with the view, I believe, that such actions have been done in
good faith and in the interest of Singapore.

Prof. Jayakumar: Mr Speaker, Sir, I wish to thank Members who have spoken on the
Bill, and I would only want to respond to some of the points made by hon. Members.

First of all, in view of the comprehensive rebuttals given by my colleague Members in

the House, Mr Davinder Singh and Mr Shanmugam, on the points raised by Dr Lee Siew-
Choh concerning the Chief Justice's position, I think it is not necessary for me to spend
any further time except to say that his arguments have no merit. And as both my
colleagues have pointed out, the purpose of the amendment is to put the matter beyond
any doubt.

May I now go on, Sir, to the points raised by hon. Members on the Constitution
(Amendment) Bill and the Internal Security (Amendment) Bill. I will not deal with all the
points but only the major points which I think need addressing. First, Sir, the hon.
Member, Dr Ho Tat Kin, said that he is concerned with the reactions or comments that he
has heard that this amendment abolition of appeals to Privy Council, in particular is a
reaction to the Privy Council's decision on Mr Jeyaretnam's appeal concerning
disbarment. Sir, Members would have heard me saying in my speech that we have for
some time been concerned with how long we can continue appeals to the Privy Council
for the reasons that I have mentioned.

Now that he has raised this point, I think I should disclose to this House that, in fact,
we have been considering this matter for several years. I will ask the Clerk of Parliament
to kindly distribute certain documents because these documents will show what I mean.
[Copies of documents circulated to hon. Members.] What I am circulating, Sir, are
extracts from letters written by the Prime Minister in correspondence with a United
Kingdom Law Lord who was a Queen's Counsel some 30 years ago, who had represented
the Prime Minister in a case that many years ago. And the Prime Minister had kept in
touch with him as
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a personal friend throughout these years and he is now elevated as a judge and indeed as
a Law Lord and is, in fact, sitting as one of the Law Lords in the Privy Council. The
correspondence involves some discussion concerning a matter relating to one of the Inns
of Court. So I have just reproduced the relevant extracts from the Prime Minister's letter
in reply to this Lord Justice's letter. I first refer to the Prime Minister's reply to an earlier
letter from the Lord concerning the matter of one of the Inns of Court. And I think I
should read it out, Sir. Prime Minister said:

'I hope the Privy Council will remain relevant to Singapore's judicial system
indefinitely.' This is 9th January 1985. He said:

'The elevation of lawyers and judges from many parts of the Commonwealth to the
Privy Council, with experience of conditions in different parts of the world, has ceased. I
do not see how the flow can be resumed. It troubles me that appellate judges in the Privy
Council have no experience of the totally different social, economic and political
conditions obtaining in the countries they hear appeals from. However able the men who
stay at the English Bar and later go on the Bench, they are unlikely to gain this exposure
to conditions abroad in the Commonwealth, apart from the occasional brief.'

This was a letter written in January 1985. To this letter, that particular Lord Justice
replied. But since we have, as a matter of courtesy, to obtain the consent of that Law
Lord, I am not in a position to reproduce the exact copy of the letter. But I might say that
in his reply that Lord Justice said that he entirely agreed with the Prime Minister - that it
was a pity that appellate judges in the Privy Council had little experience of the totally
different social, economic and political conditions obtaining in the countries from which
they hear appeals. He entirely agreed and he said also that there were many amongst his
colleagues who felt that they had really missed a big opportunity to provide that the Privy
Council should sit from time to time in the Commonwealth countries in which the cases
emanate, to which the Prime Minister wrote again on 7th February. And the Prime
Minister commented:

'A better solution to Singapore's need for talented advocates in her courts, especially in
international commercial cases, is to widen admissions to able and experienced lawyers
from the American and other Commonwealth bars.'
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My purpose, Sir, I am unfolding these extracts to respond to Dr Ho Tat Kin to show

this is not a knee-jerk reaction. This is something we have been considering for many
years. We have been monitoring the trends, observing, thinking of how it will have an
impact on us. And now we have decided.

May I then go on to another point, Sir. Several colleagues have spoken about the need
for these amendments to the ISA but have an expressed concern, and I think a genuine
concern on their part, that down the road 10 years, 20 years, 30 years, we can never be
sure that the PAP Government is going to be always in charge, that some freak result or
other turn of events may bring into power, as Mr Shanmugam said, a minority
government, hanging on threadbare power, and may be unscrupulous, dishonest to want
to abuse these powers. If the question is: can the powers in the ISA be abused? Then the
honest answer to that is, yes, with or without the amendments they can be abused. But
then, Sir, it is not just the ISA but all government powers, all Government legislation
which confer discretionary powers in the Government can be abused - Internal Security
Act, Criminal Law (Temporary Provisions) Act, Misuse of Drugs, powers on
immigration, citizenship, granting of licences, permits. Such powers can be abused. The
best safeguard is what was mentioned by the First Deputy Prime Minister. The most
important safeguard is for the people to ensure that the Government elected is composed
of men of integrity, honesty and incorruptibility.

Freak result the scenario painted by several Members, including Mr Shanmugam is not
to be excluded. But I think it is highly illusory to imagine that in that kind of scenario
which they have painted the solution is to vest the courts with the power of judicial
review. Because once such a dishonest bunch of crooks comes into power, the first thing
they are going to do is to pack the courts. Isn't it? And under our system there is no limit
to the number of judges who can be appointed. So that is why one must think again if one
believes that to take care of that situation, the remedy is in giving the final say to the
judiciary. It is highly illusory.
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As the First Deputy Prime Minister pointed out, this is something that we ourselves
have also been giving thought to. Just as you can have a situation where a dishonest
government can raid the reserves, and it is necessary to have a safeguard to protect the
reserves and key appointments. So, also, we will have to consider and we will put in
place similar safeguards to take care of the situation that Mr Shanmugam and other
Members have mentioned. But such safeguards and checks cannot be judicial safeguards
for the reasons I have given in my speech. Or, if the judiciary is to have the final say on
matters concerning exercise of discretionary powers, particularly in the area of defence or
national security, then surely it must lead, must it not, to friction and confrontation
between the executive and the judiciary?

Members have seen what is happening in Malaysia where the executive considered the
judiciary has trodden on matters not within their purview. They react disciplinary
proceedings, firing of the head of the judiciary, several other judges subject to
disciplinary proceedings, foreign judges brought in to sit in those disciplinary
proceedings. Do we want that to happen here?

Then, Sir, Mr Chandra Das asked me for my comments on the newspaper articles by
Mr Cheng Shoong Tat which he found, as a non-lawyer, not to make much sense, and
which my colleague, Mr Shanmugam, thought make great sense. So is the non-lawyer
right or the lawyer right? First, he asked me for my comments on Mr Cheng Shoong Tat's
proposition that since we have made these amendments, there should be no reservations
or difficulties in continuing with appeals to the Privy Council. What Mr Cheng says is
that our amendments tabled today are so well drafted to use his words, "with such
clarity", again unambiguously worded, "that there can be no harm in allowing appeals to
Privy Council". Because all that the Privy Council will be doing is just to interpret these
very beautifully drafted amendments.

Sir, Mr Cheng is inconsistent because elsewhere in that same article, he tells us

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forcefully and persuasively that no matter how carefully the law is drafted, in the United
Kingdom the courts have gone behind the legislative intent and, to use his words, "the
judges stretch, at the slightest opportunity, the meaning of Acts of Parliament."

There can be no such thing as antiseptic interpretation of laws. Laws have meaning in
the context of social, economic and political circumstances of a given society. Likewise,
judges who interpret the laws have a role not in vacuo, but have a role in the context of
the society whose laws they are interpreting and applying. And therefore they must be
knowledgeable of, and familiar with, these circumstances and society in which they are
interpreting the laws.

Then Mr Cheng mentioned, and Mr Shanmugam raised the point, that there can be no
harm in the judges having a limited power, which Mr Shanmugam described as "residual
power", to see whether the act of the Executive and invocation of the ISA is reasonable or
not. The word used by Mr Cheng is "relevance" and he said it is difficult to see how the
court's responsibility over national security can be compromised if it is required to satisfy
a court that its decisions arrived at after considering relevant evidence. Of course, the key
question is "relevant". What is relevant? What is reasonable? And I go back to the central
point in my speech, that if a court is to be entrusted with the power to decide that the
Executive's decision is reasonable or based on relevant consideration, it must mean surely
that it must have the power to review objectively all the circumstances leading to the
exercise of the discretionary powers. And if you are giving this power to the court, it must
mean that the court has the final say, and that is the crucial policy question for us to
decide on matters of national security, who has the final say the courts or the Executive?

If I might demonstrate this point, Sir, and I might close my remarks by taking an actual
example because part of the difficulty in this exercise is talking in abstract terms. But let
me take an actual example, and that is, the arrest of the silat group in 1987. I think
Members are all familiar with
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the facts. And Members consider how this could have been amenable to the judicial
process. In 1987, ISD arrested and detained four silat group members for spreading
rumours of, and making, preparations for impending racial clashes. Consider this. First,
the Government could not prosecute them in court because the information that they were
up to mischief came from sources which could not be revealed without putting them at
risk and jeopardizing other ongoing investigations. Secondly, one of them was found with
parangs. But he could not be charged with possession of offensive weapons because the
parangs were not carried in a public place. They were kept in the house. That is not an
offence. But we knew what was the purpose. Thirdly, the Government could not rely on
the confessions of the four to secure conviction because these confessions were
inadmissible under the strict rules of law. If we are to proceed in court against those odds,
the prosecution would surely fail and the court would be duty bound to release them. The
best evidence in such cases for successful prosecution is to catch them redhanded, in the
act of committing a crime. But the question is: should the Government wait until they
attack innocent people and foment racial strife?

I cite this example to show that the Executive must take pre-emptive action, based on
security assessment by the professionals in the ISD. It is not a judicial decision, nor does
it lend itself to judicial process. Equally so, it is well nigh impossible, (just as it is
impossible to prosecute) equally it does not lend itself to objective evaluation by the
courts. Because these are security decisions taken on security grounds, not legal grounds,
by the Executive based on the security experts whose job it is to watch, monitor, security
threats and make security assessments. I leave this example to Members to ponder about
because in real life, when we talk of the ISA, we are dealing with security threats which
manifest themselves in many forms and the Executive has to act quickly. It is not
amenable to the judicial process.

Mr Chiam See Tong: Sir, may I be allowed to clarify?

Mr Speaker: Very briefly, please.

Column: 528

Mr Chiam See Tong: Sir, the Minister has given an example of the silat group. I
would not question the decision made by him. But in regard to Mr Francis Seow's case,
can the Minister tell us in what way he was a threat to the national security of Singapore?

Prof. Jayakumar: Mr Speaker, Sir, it would appear that the Member has forgotten that
in 1988 we had a full, unrestricted, debate lasting five days on the Hendrickson affair, the
arrest of Mr Francis Seow and the re-arrest. And I do not intend to repeat what we have
said.

Mr Chiam See Tong: Sir, it has been said that the American bases in the Philippines
are to protect us from the Communists. Why should they undermine our security?

Mr Speaker: Mr Chiam, I think you should not make any more clarifications.

Dr Lee Siew-Choh rose

Mr Speaker: Dr Lee, do you want to make a clarification?

Dr Lee Siew-Choh: I want to speak on the second Bill.

Mr Speaker: We are not on the second Bill yet.

Dr Lee Siew-Choh: Not yet. I will wait then.

The Minister of State for Foreign Affairs (Mr Peter Sung): Sir, could I ask Mr
Chiam who told him that the American bases in the Philippines are to protect us from the
Communists?

Mr Chiam See Tong rose

Mr Speaker: I think Mr Chiam is not clear. The Question is, "That the Bill be now
read a Second time."

A Division will be taken to ascertain that the Second Reading of the Bill is supported
by the votes of not less than two-thirds of the total number of Members of Parliament,
which is 54 Members, pursuant to Article 5(2) of the Constitution. Ring the Division
Bells.

Question put, "That the Bill be now read a Second time."

Column: 529

Division taken: Ayes, 80; No, 1; Abstention, Nil.

Ayes Ayes (cont.)

Abbas Abu Amin Ng Kah Ting

Abdul Nasser bin Kamaruddin Ng Pock Too
 Abdullah Tarmugi Ong Chit Chung
Ahmad Mattar Ong Teng Cheong
Beng Kian Lam, Arthur Othman bin Haron Eusofe
Chandra Das, S. Ow Chin Hock
Chay Wai Chuen Peh Chin Hua
Chen, Bernard Seet Ai Mee
Chen Seow Phun, John Shanmugam, K.
Chew Heng Ching Sia Khoon Seong
Chin Harn Tong Sidek bin Saniff
Chng Hee Kok Sung, Peter
Ch'ng Jit Koon Tan Cheng Bock
Chong, Charles Tan, Dixie
Choo Wee Khiang Tan, Augustine H.H.
Chua Sian Chin Tan Keng Yam, Tony
Davinder Singh Tan Soo Khoon
Dhanabalan, S. Tan Tee Yong, Philip
Goh Chee Wee Tang Guan Seng
Goh Chok Tong Tay Eng Soon
Goh Choon Kang Teo Chong Tee
Heng Chiang Meng Vasoo, S.
Ho Kah Leong Wan Hussin bin Haji Zoohri
Ho Tat Kin Wan Soon Bee
Hong Hai Wang Kai Yuen
Hu Tsu Tau, Richard Wong, Aline K.
Ibrahim Othman Wong Kan Seng
Jayakumar, S. Wong Kwei Cheong
Koh Lam Son Yap Giau Cheng, Eugene
Koh Lip Lin Yatiman Yusof
Lau Ping Sum Yeo Cheow Tong
Lau Teik Soon Yeo Ning Hong
Lee Boon Yang Yeo Toon Chia
Lee Hsien Loong Yeo Yong-Boon, George
Lee Kuan Yew Yu-Foo Yee Shoon
Lee Yiok Seng Zulkifli bin Mohammed
Lee Yock Suan
Leong Horn Kee No
Lew Syn Pau
Lim Boon Heng Chiam See Tong
Lim Chee Onn
Loh Meng See Abstention
Low Seow Chay
Mah Bow Tan Nil

Bill accordingly read a Second time and committed to a Committee of the whole
House.

The House immediately resolved itself into a Committee on the Bill.- [Prof. S.
Jayakumar.]

Bill considered in Committee; reported without amendment.

Third Reading
 Mr Speaker: Third Reading on what day?
Column: 530

Prof. Jayakumar: Now, Sir. I beg to move, "That the Bill be now read a Third time."

Mr Speaker: The procedure at the Second Reading will again be adopted here. Ring
the Division bells.

Division taken: Ayes, 80; No, 1; Abstention, Nil.

Ayes Ayes (cont.)

Abbas Abu Amin Ng Kah Ting

Abdul Nasser bin Kamaruddin Ng Pock Too
Abdullah Tarmugi Ong Chit Chung
Ahmad Mattar Ong Teng Cheong
Beng Kian Lam, Arthur Othman bin Haron Eusofe
Chandra Das, S. Ow Chin Hock
Chay Wai Chuen Peh Chin Hua
Chen, Bernard Seet Ai Mee
Chen Seow Phun, John Shanmugam, K.
Chew Heng Ching Sia Khoon Seong
Chin Harn Tong Sidek bin Saniff
Chng Hee Kok Sung, Peter
Ch'ng Jit Koon Tan Cheng Bock
Chong, Charles Tan, Dixie
Choo Wee Khiang Tan, Augustine H.H.
Chua Sian Chin Tan Keng Yam, Tony
Davinder Singh Tan Soo Khoon
Dhanabalan, S. Tan Tee Yong, Philip
Goh Chee Wee Tang Guan Seng
Goh Chok Tong Tay Eng Soon
Goh Choon Kang Teo Chong Tee
Heng Chiang Meng Vasoo, S.
Ho Kah Leong Wan Hussin bin Haji Zoohri
Ho Tat Kin Wan Soon Bee
Hong Hai Wang Kai Yuen
Hu Tsu Tau, Richard Wong, Aline K.
Ibrahim Othman Wong Kan Seng
Jayakumar, S. Wong Kwei Cheong
Koh Lam Son Yap Giau Cheng, Eugene
Koh Lip Lin Yatiman Yusof
Lau Ping Sum Yeo Cheow Tong
Lau Teik Soon Yeo Ning Hong
Lee Boon Yang Yeo Toon Chia
Lee Hsien Loong Yeo, George Yong-Boon
Lee Kuan Yew Yu-Foo Yee Shoon
Lee Yiok Seng Zulkifli bin Mohammed
Lee Yock Suan
Leong Horn Kee No
 Lew Syn Pau
Lim Boon Heng Chiam See Tong
Lim Chee Onn
Loh Meng See Abstention
Low Seow Chay
Mah Bow Tan Nil

Mr Speaker: The Third Reading of the Bill has been carried by the votes of not less
than two-thirds of the total number of Members of Parliament.

Bill accordingly read a Third time and passed.

Column: 531

4.40 pm
INTERNAL SECURITY (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Home Affairs (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to
move, "That the Bill be now read a Second time."

In the debate we have just had on the Constitution (Amendment) Bill, I have already
explained really the rationale for the broad purposes of both Bills. Therefore it is not
really necessary for me to repeat what I have said.

Let me, however, draw the attention of the House that this is a law which would be
enacted pursuant to the new clause (3) of Article 149 of the Constitution. It expressly
declares this fact in the long title.

I shall not repeat the points but I shall instead take the House through the different
provisions.

Clause 2: Clause 2 sets out four new sections 8A, 8B, 8C and 8D which will be
incorporated into the ISA. These new provisions will henceforth be an integral part of the
ISA.

New Section 8A: This is an interpretation section which defines "judicial review".

New Section 8B: New Section 8B has two subsections. Subsection (1) is to reaffirm
and restore the law as was laid down in the cases of Lee Mau Seng and Karam Singh,
namely, that the subjective test applies in determining the proper exercise of discretionary
power by the President or the Minister under the ISA.
 It is provided that in all such cases of judicial review, the law shall be the same as was
applicable before any part of the law of the United Kingdom or of any other country in
the Commonwealth was introduced. The significance of the date 13th July 1971 is that
that is the date when the judgment in the case of Lee Mau Seng was delivered.

In this way, therefore, the law on judicial review, including the principle of the
subjective test, is restored to what it was when the case of Lee Mau Seng applied.

Subsection (2) of Section 8B: Subsection (2) provides that nothwithstanding the pro-
Column: 532

visions of subsection (1) there shall be no judicial review in any court of any act done or
decision made by the President or the Minister save in regard to any procedural
requirement of the ISA governing such act or decision.

Why is subsection (2) necessary? Members will recall that the Government statement
issued subsequent to the Court of Appeal judgment as well as the Explanatory Note to
this Bill stated that the intention of the Government was to restore the status quo ante, ie
the subjective test.

Section 8B(1) sets out to achieve this because it states the general law to be applicable
to be that at the date of Lee Mau Seng, thus reaffirming the subjective test.

However, it is open to argument whether the subjective test has been restored beyond
any question by section 8B(1). For example, the Court of Appeal, influenced by
judgments of other countries, stated that the subjective test now may offend some of the
fundamental liberties articles of the Constitution.

Furthermore, Lee Mau Seng and Karam Singh cases did not lay down exhaustively all
aspects of the law on judicial review. Those cases are precedents on the facts and
arguments which were before those cases, and those cases dealt with detention orders.
But there may be many other types of decisions which can arise in the courts. Other
decisions made by the President or the Minister which are not detention orders, such as:

- Restriction Orders (RO);

- Suspension Directions (SD);

- Conditions attached to Suspension Directions or conditions attached to Restriction

Orders;

- Decisions to suspend a Suspension Direction; etc.

Therefore, to put these and other ambiguities beyond any question, section 8B(2) is
necessary. It provides that there will be nevertheless no judicial review except for
compliance with procedural requirements.
 Section 8C is a provision which abolishes appeals to the Privy Council in respect of
proceedings which I have already mentioned in the other Bill.
Column: 533

New section 8D: This is to make clear that these new provisions will apply to all
proceedings instituted whether before or after the commencement of this Amendment
Act.

Sir, I beg to move.

Question proposed.

Dr Ong Chit Chung (Bukit Batok): Mr Speaker, Sir, I rise to support the amendment
Bill.

Sir, in my mind, the issue is clear. Are there security threats to our Republic? The
answer simply is yes. There are any number of foreign powers, foreign agents,
communists, communalists, fanatics and the misguided who are manipulated by others
who do not wish us well, who aim to do us in, destabilize the country and subjugate us.
We therefore need the internal security laws to curb them, contain their actions and
prevent them from doing us harm or undermining our national security and national
interests. It is painful, sad and unpleasant to detain persons without trial. No one likes to
do this job. But some responsible body in this country has to exercise such authority.

The question before us is who should constitute such an authority. Should it be the
Government, the Executive arm elected by the people, or the judiciary? The original
intention of the security laws, implemented in 1948 during the Malayan Emergency and
applied in Singapore by the British, was that the Executive should be the authority for
such detention and the courts should not review Ministerial or Executive decision in such
security issues. This was the settled position and was confirmed by the landmark Lee
Mau Seng case of 1971. But the 1988 Court of Appeal judgment clouded the issue and
put a question mark over the exercise of Executive responsibility or Ministerial
discretion.

It is, therefore, the task of Parliament, as the supreme law-making body of this land
and the elected representatives of the people, to make it amply clear and entirely
unambiguous that authority and discretion in internal security rests with the Executive. If
I may, Sir, paraphrase President
Column: 534

Truman, the buck stops at the desk of the Executive.

 There are good reasons for allowing the Executive to exercise such authority. Sensitive
information and confidential sources relating to explosive issues and foreign governments
cannot be paraded in court or in public. It could expose our sources and lead to rupture in
relations with foreign governments, riots, panic or loss of confidence in Singapore as a
centre for investment. Moreover, Sir, the Executive, honed by its years of experience,
and, supported by a professional civil service, is well equipped to decide and take action
on security matters. It has also the mandate of the people to act in the best interests of this
nation.

Sir, the ultimate safeguard against abuse of the internal security laws lies with the
people. No government can go on detaining persons without rhyme or reason and yet get
away with it. If I may quote President Abraham Lincoln, "You can fool all the people
some of the time, and some of the people all the time, but you cannot fool all the people
all the time." An unrighteous government will be turned out at the next election in our
democratic system.

Sir, a related issue is appeal to the Privy Council for security cases. If we decide that
Executive or Ministerial discretion is not subject to judicial review, then it makes no
sense to retain the Privy Council as a court of final appeal. There are also other
compelling reasons.

Sir, we want to be ourselves, to decide our own fate as a sovereign nation in our
Singaporean context, especially on matters of national security. Singapore is not England.
England is big, secure and has a long history of traditions and identity. Singapore is
small, vulnerable and is still, as you all know, searching for an identity or national
ideology. As they sing in their song, "There'll always be an England and England will be
free." Can we be sure that there will always be a Singapore and Singapore will be free?
To put it in an English way, it is not cricket for five English Lords to sit in judgment over
matters of security which are vital to us Singaporeans. If there is a misjudgment, they
could say in far-away England that it
Column: 535

is just too bad, but we here will have to face the music if Singapore were lost.

Abolishing appeals on security matters to the Privy Council is not, Sir, a setback but
setting it right, for it is an anachronism, a relic of our colonial past, as many other
countries like Malaysia has long cut this link.

There is, if I may say so, Sir, precedent in rejecting jurisdiction of a foreign or
international court. The British government has declared that it will not consider the
rulings of the European Court of Human Rights to be binding in security matters relating
to Northern Island. Thus, we have every right, and indeed duty, to decide on our own
national security issues.

Sir, some may characterize this approach as being very typically Singaporean, as
having the kia su syndrome. I say it is better to be kia su and safe, than care-free and
perish.

Sir, I support the amendment Bill.

Mr Chiam See Tong: Sir, may I point out that Dr Ong Chit Chung has said that five
Law Lords in England, if they give the wrong reason they would just say, "It is too bad." I
think this is contempt of court.

Dr Lee Siew-Choh: Mr Speaker, Sir, first a word of clarification for Mr Shanmugam

although he is not here and although he spoke on the Bill which has just been passed.
Because I did not catch what you said, so I missed the chance to clarify a little while ago.
I just want to say that when he paraphrased what I said as "beholden", that is not correct.
When he kept saying that I meant that, I want to put it on record that I did not miss his
point whereas he has missed mine, namely, that he has misread the Article whereas I have
not. My point was that because of the misreading of Article 94(3), serious mistakes were
made and, because of those mistakes, the PAP Government is now trying to backtrack
and cover up those mistakes. Mr Wee Chong Jin's name was mentioned not because I
launched any personal attack on him and neither did I mean that he was beholden to
anyone. He just happened to be in the centre of the argument. That is all.
Column: 536

Now, Sir, let me come to the Bill that we are supposed to debate on. I believe, Sir,
future historians and, of course, I do not mean the PAP historians, but historians who
have regard to the objective truth, will surely regard today as one of the blackest days of
Singapore, equated perhaps to 15th February 1942, when Singapore fell to the advancing
Japanese forces. It is indeed ironical, Sir, that this Parliament which we have borrowed
from other Parliaments in freedom-loving countries, and notably the United Kingdom,
should today sit to legislate for the abolition of freedom and justice in this land of ours.

Make no mistakes, Sir. What this Bill does is to say that justice is completely irrelevant
and will not be available to any citizen in this country if the Executive should so much as
desire to arrest and imprison people for alleged activities which the Executive may
consider, threatens not the security of Singapore but their continued rule over Singapore.
And here in Singapore, Sir, this institution, which is expected to defend, protect and
preserve public liberty and justice of the people, is today legislating for the denial of this
freedom, liberty and justice to those amongst us who may incur the wrath of the
Executive. It is indeed a mockery of this Parliament and it is a mockery of justice.

When this Bill becomes law, the Executive can pick up any person, maybe because
they do not like the looks of him, may be he has got some red hair or blue hair, and detain
him under the provisions of this Act and nobody, I repeat, Sir, nobody, not even the courts
which are the traditional guardians of liberty of the subject, can do anything about it. That
is what it really means. They cannot question why the Executive has found it necessary to
lock up an individual. So I repeat, it is indeed a very black day for Singapore and a day in
which all Singaporeans should go into mourning.

This Bill is being rushed through this Parliament whilst there are proceedings pending
before the courts. I understand that after the Court of Appeal ordered on 8th December
1988 the applicants in the four habeas corpus applications to be released, the Executive
immediately re-arrested them. After that, the applicants
Column: 537

made fresh habeas corpus applications in court. These applications have not yet been
heard. I understand that in UK, which is the home of this habeas corpus, habeas corpus
applications have priority over all other proceedings in court and are heard immediately
so soon as arrangements can be made to hear the applications. The saying, I understand,
Sir, is that one can disturb a Judge in his bath with a habeas corpus application and he has
to come out of his bath and give directions for the immediate hearing of the habeas
corpus application.

It is a matter of great regret that in Singapore these applications, which were filed soon
after 8th December, have still not been heard although some six weeks have now elapsed
since the applications were filed. It is a very sad state of affairs for all of us in Singapore,
because what is the point of filing habeas corpus applications if they are not to be heard
immediately, and the Executive is allowed to change the law, as they intend to do now,
before they are heard? It is a big farce.

It is also a matter of profound regret that the Court of Appeal in delivering its judgment
on 8th December 1988 did not go on to decide the applications on their merits, having
now accepted that the previous law applied by the courts in Singapore were wrong and
that the correct and proper law should be as laid down in numerous decisions, in not only
UK but also other parts of the Commonwealth, where similar legislation is to be found.
And it is a great pity, Sir, that the Court of Appeal refrained from going into the merits,
and confined itself purely to a technical and procedural defects in the making of the order
for detention. And because the Court of Appeal did not go into the merits and order the
release of the applicants on the merits, ie, there was no evidence before the Minister on
which he could reasonably have exercised the power given to him under the Act, the
Executive were left free to re-arrest the applicants.

The Bill that we have before us in the House is the clearest admission, if any further
admission were needed, that the Government had no evidence at all against
Column: 538

the detainees who were detained originally in May 1987 and re-detained in April 1988.
This view, Sir, that the Government had no evidence at all against the detainees was held
by people and institutions inside and outside Singapore. It is a view that is shared by
some Congressmen in the United States and legislators in Australia, New Zealand and
other parts of the world.
 Because the Government has no evidence, it is now introducing this Bill to shut the
door on what it has done and put up a notice, "You shall not inquire into anything we
have done or may do." That is what they say "Out. You don't look into what I have done."

This Bill does not take away the jurisdiction of the courts to pronounce that any order
made by the executive under the Act is invalid because of some procedural or technical
defect. This is some protection in a way, but a hollow protection because it does not avail
the citizen anything. As we have seen, the Government can re-arrest the person
immediately and put right a technical defect.

I would suggest that instead of wasting the time of the courts and the time of the
executive in attempting to meet any application, the Government should be honest with
itself and to the people and just legislate for the abolition of judicial review altogether in
detentions under the Internal Security Act. If that should be done, at least one could credit
the Government with some honesty.

I do not have to remind the Government, Sir, and particularly the Prime Minister who
was here a little while ago, that before the Government took power in 1959, the PAP was
second to none in protesting against the detention without trial. I supported the PAP
wholeheartedly then. Time does not allow me to repeat what the Prime Minister said of
detention without trial when the party was in opposition between 1955 and 1959. His
statements can be found in the reports of the proceedings of the Legislative Assembly for
those years.

Mr David Marshall, who was the first Chief Minister at that time, had a conscience,
and he introduced an amendment
Column: 539

which gave the Appeal Tribunal the power to release any detainee, if the Tribunal
considered that there was no evidence on which the order could have been made.

What did the Government do when it took power? After protesting against detention
without trial as being a complete violation of the rule of law, this Government, no sooner
had it got into power, removed the one safeguard that David Marshall had introduced. It
took away the power in the Appeal Tribunal to order the release of detainees and instead
substituted the Advisory Board. A party that proclaimed itself opposed to detention
without trial did a complete somersault when it was given the power to enact its own
principles and made it impossible for any detainee to be released. That was one of the
major reasons, Sir, why we rebelled then against the leadership in the PAP.

And what is the Advisory Board which has been spoken about a little while ago?
According to the QC's opinion that was published in the papers sometime ago when the
case was being heard in Singapore, it is only part of the administrative process to
determine whether the detention order should be issued or extended. It is also emphasized
that the Advisory Board is only advisory, not an independent judicial process. Its
recommendations are not binding and therefore nowhere near the doctrine of separation
of powers. The secrecy surrounding the hearing before the Advisory Board is completely
contrary to judicial safeguard. The Board's recommendations are not made known to the
public, and not even to the detainee himself or herself. This makes it impossible to appeal
against the decision reached or to seek judicial review. And according to what was
published in the newspapers, the principle of administrative law detention must be
subjected to the test of whether it is legal, rational and proportional to whatever
infringement of law alleged. This has not been done. If I may remind the House, Sir, all
those detainees who were detained in the 1963 "Operation coldstore", after going before
the Board the first time, never bothered about the Advisory Board reviews again, because
they knew what was happening. You merely appear before the Advisory Board, and that
is all. Then you go back to prison
Column: 540

and nothing more would be heard from it. So the detainees called it a farce and never
bothered to appear before the Advisory Board again after that.

Sir, statements have been made that this Bill is designed to stop the Privy Council or
other tribunals outside Singapore from intervening in the affairs of our country, and
particularly when it comes to internal security. This is a complete distortion of the truth.
The Privy Council or other tribunals outside Singapore are not intervening in Singapore's
internal affairs. What these courts outside Singapore have declared is that in the name of
justice, liberty and freedom, which they have sworn to uphold, that where an Executive
arrests and detains a person, the courts can call upon the Executive to show whether there
is any evidence for the exercise of the power. And because the Singapore courts have
now, after a long time, applied this principle of law dedicated to justice and freedom, the
Government is saying that the foreign courts are intervening in Singapore's affairs. It is
utter rubbish.

It is also nonsense to say that the decisions of the courts abroad, which the Court of
Appeal accepted on the 8th December 1988, amount to the courts usurping the powers of
the Executive. They speak of independence of Singapore and the need to safeguard our
sovereignty. We have heard a lot of that today. How correct. I agree wholeheartedly that
we should try as far as possible to safeguard our sovereignty. If they brought this up in
1959 or 1965, they would have found widespread support. But the issue of sovereignty is
raised only now, now, after many many years, and only as a response to the Privy
Council's judgment which has criticized the grievous injustice done to Jeyaretnam.
Therefore, the reason why the PAP has brought in this Bill is quite clear in the minds of
the people. It is not to safeguard the sovereignty of Singapore. The Government has
brought put in this Bill more as a pique reaction, than anything else.

The courts outside Singapore have clearly said time and time again that it is not for the
courts to usurp the power of the Executive. It is for the courts to determine
Column: 541
whether the order should or should not have been made. It is not for the courts to
determine the correctness of the order and the court's role is simply restricted to requiring
the Executive to show evidence upon which it acted. The courts do not enquire into the
adequacy of the evidence or whether the order should have been made in the light of that
evidence. The courts are simply seeking to know what the evidence was. This is a
fundamental safeguard of liberty. If you detain somebody, you must justify your detention
of that person and produce evidence upon which you have detained that person. This is to
be found even in our Constitution. But, of course, this Government sometimes considers
the Constitution as completely irrelevant. It is absolutely wrong and misleading for the
Government to say that the decisions of the courts outside Singapore will result in the
courts usurping the power of the Executive.

Another oft-repeated excuse for the need of the ISA is that conditions in Singapore are
different from those of other countries that practise parliamentary democracy. We ask:
Have conditions changed? No. What are the so-called special conditions of Singapore?
Have they listed them out? Even the Prime Minister's letter does not say so. Do we have
frequent strikes, demonstrations, riots? No! Do we have gun battles, armed intervention,
war? No! Communist threat? Whenever they arrest anybody, it is always because of the
communist threat. So you can put the word "communist" into the basket. Sir, there is no
crisis of any sort, no emergencies whatsoever. On the contrary, we have the same
conditions that you can find in other western countries. In fact, we are more peaceful than
many of those large cities of the western countries where they have regular
demonstrations, fire-bombs, stoning, everything. We have here very good economic
development, with everyone going about his business, and there is political stability
which the Government stresses again and again with hardly any opposition. I am only a
non-representation MP. I could not even vote a little while ago. We have peaceful
conditions here, many times better than in South Korea, for example, the Philippines
Column: 542

or Sri Lanka. Why then are the people in Singapore denied their basic human rights and
freedoms? Why? Why is it necessary?

Mr Peter Sung stood up.

Mr Speaker: Dr Lee, do you wish to give way to the Member?

Dr Lee Siew-Choh: Yes, Sir.

Mr Speaker: All right. Mr Sung, make your point.

Mr Peter Sung: Mr Speaker, Sir, I would like to seek a point of clarification from Dr
Lee. He said that Philippines is not so peaceful. Is he aware that security officers in the
Philippines have complained of the frustrations they have about the constraints of having
to face the normal rules of evidence in court, and that they have asked for the Singapore
model or the Malaysian model of the ISA to be introduced there? It is not just a question
of whether the ISA exists or not, but whether there is any abuse of the powers under the
ISA. For example, in the Philippines under Marcos, there was no ISA. But there was
wholesale abuse of power leading to the "denial of liberty and justice", in the words of Dr
Lee.

Dr Lee Siew-Choh: Yes, Sir, we would get the same thing later on if we carried on
with the ISA. We can see for ourselves on TV or in the press that they can hold
demonstrations which we are not allowed in Singapore. Can we do it? Do you allow us?
Now I see in the new Minor Offences Bill, my God, the penalties are so heavy that once
penalised, one could be disqualified from being an MP. That is what it amounts to.

You may ask: what is the difference between those countries and Singapore? The
difference, Sir, is not in the social conditions. The difference is in the government. We
have a government that is intolerant of criticism, that does not allow the development of a
political opposition and that is more interested in holding on to power than in upholding
justice for the people. And if the amendments in the House are pushed through, our courts
will not be allowed to review Executive decisions and actions connected with so-called
internal security, and appeals to the Privy Council will be abolished. Then the
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people will be in for a very very rough time. With no possible curb by the Judiciary on
the excesses, misuse and abuse of powers by the Executive, the fears, many people have
already expressed, the fear in the minds of many people, will be multiplied manifold. As
the saying goes, power corrupts and absolute power corrupts abolutely.

Why have they reaffirmed the principle? They have given some of their reasons. I will
tell you what the PAP's real reasons are. The reasons are obvious. The Government just
wants to have Executive powers completely unfettered by any form of judicial review.
Then it would be able to use the ISA to deal with political opponents, intimidate critics,
would-be political opponents, and so cow, even coerce, the people into submission. Is it
any wonder that not very many professionals have joined up with the opposition parties
to openly oppose the PAP?

In its 30 years of rule, the Government has arbitrarily arrested hundreds and hundreds
of political opponents who have been conveniently labelled as Communists, pro-
communists, Marxists, chauvinists, what-nots. But so far, it has not been able to produce
a shred of evidence against the detainees in open court. Take the case of Chia Thye Poh,
arrested in 1966 and still in prison today. He has been called a Communist who wants to
overthrow the constitutional government by force. Some Ministers have said that he was
violent. I can tell you, Sir, when he was arrested, he was just sitting by my side in our
Party headquarters discussing matters with me. There was no demonstration, no stone
throwing, nothing. The secret police just went in to arrest someone who was sitting down
quietly. That is what the ISA does.

Yes, Sir, that was the last time I saw him. In days gone by, we were allowed to pay
visits to detainees in the prison. But the Prime Minister soon changed all that. After one
or two years, they stopped us from visiting the detainees. Previous to that, we could.
After that, no. Sir, the Speaker initially over-ruled the Prime Minister. But the Prime
Minister has more powers than the Speaker. And all visits to detainees in prison were
stopped.
Column: 544

They do not have any evidence against Chia Thye Poh. If the PAP had the evidence,
why then have they not produced him in court? Charge him in open court. Communism is
illegal. Using violence is illegal. Charge him in court and nobody will complain that he
has been kept in prison. Yes, many people have realized that he has been in prison for
more than 20 years, the second-longest term prisoner in the world, after Nelson Mandella.
Have they no compassion on the person himself or on the family? Does the PAP really
intend to keep him there until he is old and feeble and cannot even move about?

We have been fighting against the ISA for years and years. During the elections, we
criticise it everytime. And everytime we remind people of Chia Thye Poh and other
people who are still being kept in prison. But has the press ever given any publicity to
what we said? No. Only PAP Ministers, only PAP MPs and Backbenchers, will get all the
advertisements that they want. We have no chance whatsoever.

Sir, you can see from Chia Thye Poh's case alone the abuse of powers by the PAP
Government and the PAP Executive. The courts, we say, should be allowed to review the
case. Would the Government dare argue its case in open court, before a review committee
or court?

The Ministers frequently say that they cannot rule without the ISA. Why? Why can
they not rule without the ISA? They have 80 out of 81 MPs in Parliament. They can rule.
They can push through any legislation they want. What they really mean is that if they do
not have the ISA to coerce and create fears in the hearts and minds of the people, their
days will be numbered. They themselves fear the people. That is why they keep the ISA,
and the ISA is intended to keep the PAP in power, nothing more, nothing less. All this talk
about other reasons is just, shall I use a new phrase, sheer unadulterated bunkum.

A little while ago, Sir, someone, I cannot remember the name, quoted Abraham
Lincoln. He said: you can fool some people all the time and all the people some of the
time. And that is what the PAP have done. They try, if possible, to go one stage further, to
fool all the people all the time.
Column: 545

But I think long before that they would be overthrown.

Mr Speaker: Order. Dr Lee, the time allotted to you has expired.

Dr Lee Siew-Choh: Just half-a-minute, Sir.

 Mr Speaker: I am sorry.

Dr Lee Siew-Choh: Just one second.

Mr Speaker: In fact, you have exceeded by several seconds.

Dr Lee Siew-Choh: Let me just finish this, Sir, the last part.

Mr Speaker: I am sorry. Your time is over.

Dr Lee Siew-Choh: I will just finish this, Sir.

Mr Speaker: Dr Lee, I have ruled that your time is over. Could you resume your seat?

Dr Lee Siew-Choh: All right.

Mr Speaker: Mr Shanmugam.

Mr Chiam See Tong: Sir, I have brought one matter before you. You have not made a
ruling.

Mr Speaker: Mr Chiam, I am giving you another warning. You do not rise to make a
clarification unless permission has been given. The Chair has recognized Mr
Shanmugam.

Mr Shanmugam: Sir, I request two clarifications from Dr Lee Siew-Choh. First, he

went on at some length about the fact that there has been delay in the courts about
hearing habeas corpus applications and also to the fact that the Court of Appeal should
have decided on the substantive merits of the case that was before it. Is he suggesting that
this House or the Government has the power to tell the courts what to do, what to decide,
how to decide, what reasons to give, for their decision? Because I personally will find it
extremely difficult to live in a system where the government and the Parliament can give
directions to the courts on what they should decide and how they should
Column: 546

decide. That is the first clarification I request of Dr Lee.

The second clarification I request is that he referred to the Hansard of 1955 [Vol. 1]. I
would like to ask him if he has read the Hansard fully and whether he has read all that Mr
Lee Kuan Yew said at that stage. If he had done so, I could point out to him various
passages where the crux of Mr Lee Kuan Yew's argument was that he accused the Labour
Front of hypocrisy, of campaigning during the elections to abolish the Emergency
Regulations and then after being elected to power, proceeding to pass the very same
regulations. He said that if you have the courage, go out to the people, win the votes and
then pass whatever laws you like. Is that not what the PAP has done?
 Dr Lee Siew-Choh: I did not catch the first question, Sir, but I will reply to the second
question. And if he will let me know what the first question is, then I will reply to that
one too.

I was in the PAP at one time and it was quite clear to many of us at that time that the
Prime Minister had not lived up to his words. That was why there was a rebellion inside
the PAP. As regards the actual words, unless Mr Shanmugam is willing to quote the exact
words to me, I do not know what he really wants me to tell him.

What is the second question?

Mr Shanmugam: Sir, I will quote him the relevant passages. At col. 718 of Hansard,
Vol. 1, Mr Lee Kuan Yew said:

'One of the basic political tenets of democracy is that a Party is elected on its election
platform. Of course, if one wishes to avoid the inconvenience of having to go back to the
people after going back on an election pledge one could say, in a moment of
flamboyance, "I would break a promise if it were in the interests of the country." To
commit that heresy would make a mockery of democracy.'

He carried on, Sir:

'The whole attack that the Chief Minister has skilfully directed does not explain why, if
he honestly and sincerely believes that he is right in changing his mind, he should not
take the people into his confidence, and put these facts before them. Let him ask for a
mandate for this most important of all the Labour Front's election platforms - a mandate
for the Emergency Regulations to be attired, not in a policeman's uniform, but in the
Chief Minister's bush jacket.'
Column: 547

At col. 719-20, Mr Lee Kuan Yew said:

'... what the Labour Front is seeking to do today is something quite contrary to what
they told the people they were going to do.'

'If the Chief Minister today accurately represents the feelings, the temper and the views
of the people, then, no doubt, he and his colleagues would be returned with greater
strength and greater confidence. They would have a mandate to go through with this
legislation;'

I can quote him several other passages like that. But the crux of all the arguments is
that the Labour Front did not have the mandate of the people when it pushed through the
Emergency Regulations. It, in fact, was hypocritical because it campaigned on a platform
that such regulations were not necessary and then proceeded to do the reverse in
Parliament.

As for the first question, I wanted to know the relevance of stating the time limits taken
by the court and the fact that the Court of Appeal did not decide on the substantive merits
of the application. How is that relevant to a debate in this House? Because can this House
tell the courts what to decide, why to decide, what reasons to give for a decision or how
long should the court take in deciding to hear habeas corpus applications? We do not have
any such powers. So I wanted Dr Lee to clarify why he was raising that point.

Dr Lee Siew-Choh: It is simple, Sir. We do not have those powers but we have the
power to discuss issues concerning how things are being done in Singapore. We are not
going into the full merits of the case itself. I think as a lawyer he should know that.

The other matter about Mr Lim Yew Hock, mandate and all that. First, if you want to
talk about mandate, the PAP never had any mandate for the conscription law. They
pushed it through. The National Service.

The other matter is the ISA. Has he ever read the 1954 manifesto of the PAP? That
would tell him exactly what the position is.

Mr Speaker: Yes, Mr Chiam, you want to make your clarification?

Mr Chiam See Tong: Much obliged to you, Sir. Sir, I brought to your attention that Dr
Ong Chit Chung, in my view, has
Column: 548

committed a contempt of court. The Privy Council is part of our judicial system and he
cannot just say five Law Lords sitting there in England and if they make the wrong
decision it is just too bad. I think it is contempt of court. It is a very irresponsible
statement. You have to make your ruling. If it is not contempt we will leave it on record.
If it is contempt then we have to strike it out.

Mr Speaker: As far as I know, that is not a contempt of court.

Mr Chiam See Tong: I am much obliged to you, Sir.

Dr Ong Chit Chung: Can I speak in clarification?

Mr Speaker: All right, make your brief clarification.

Dr Ong Chit Chung: I do not intend to cast any aspersion on these five learned Law
Lords in the Privy Council. But I meant it as a matter of saying that they would not be
much affected by the consequences of it. If I had inferred in any way their reputation, I
withdraw those remarks.
 Mr Chiam See Tong: I am much obliged to you.

Mr Speaker: Yes, Mr Sung.

Mr Peter Sung: Can I ask Mr Chiam this question. Earlier when he talked about the
amendment he said that he has the highest regard for our courts. He also said that the PAP
talked about the Elected President during the recent elections. My question for Mr Chiam
is whether by quoting this example in his argument, he agrees with the principle of the
Elected President. Let us have it on record. The second question is, if he has the highest
regard for our courts, why must we go to the Privy Council?

Mr Chiam See Tong: I wish Mr Peter Sung would stay awake and not sleep while I
am talking. I did not say any of those things. I did not accept the concept of an Elected
President, but I am putting your arguments to support the review by our courts in regard
to detention under the Internal Security Act.

Sir, as regards the Privy Council, I have not touched on that part of the law in
Column: 549

regard to the ISA at all. If you have followed my speech, I have left that out completely. I
do not know how he could bring it up.

Mr Peter Sung: I think the Hansard would show what he did or did not say.

Prof. Jayakumar: Sir, first of all, I would not reply to all of Dr Lee Siew Choh's
points because the answers to many of his points have, in fact, been covered by me in my
earlier presentation because he is really arguing for the courts to have judicial review. But
if I might just touch on one or two of his points.

He talked about ISA being used as a tool for not tolerating criticism, arbitrary arrests. I
might say this, Sir. That Dr Lee Siew Choh is a living example how scrupulous and
careful the PAP has been in exercising the ISA powers. Even at the height of the
Communist United Front activities when his colleagues in the Barisan Sosialis and others
were detained, was he ever in danger of being arrested? Because the Government makes
a clear distinction between those who are involved in subversion and conspiracy and
those who are not. Mind you, Dr Lee's utterances, for those who have read them, were
vociferous, almost bordering on the vile. But we made a distinction, the Government
made a distinction. He was open. He was not a member of the Communist United Front.
He was not in danger and he knew it. I think therefore he is a living example.

He talks about views of Congressmen in Australia, in the United States. But we are
talking about Singapore. And what really determines is the wishes of the people of
Singapore and, as the First Deputy Prime Minister pointed out, we have been open about
the ISA, the need for the ISA, and each time we have used the ISA we have not flinched
from a debate and we have not flinched from making it an election issue. That is all I
wish to say in response to what Dr Lee Siew-Choh has made.
 But, Sir, I realize that in my earlier presentation I omitted to comment on Mr Chandra
Das's point as to whether we should have an extra Court of Appeal and
Column: 550

this was made by some others like Dr Arthur Beng and Dr Ho Tat Kin. This, of course,
can be looked into but if it is looked into it is quite distinct and separate from the measure
to abolish appeals to the Privy Council because it assumes that there are so many cases
each year going to the Privy Council that to cut off appeals to the Privy Council means
that there is going to be a tremendous backlog. I do not think the figures bear this out
because for the last 10 years there were 55 criminal cases which went up to the Privy
Council, 65 were civil cases. So if there is a backlog or overload on our courts which he
talked about, that is within the system before even any appeals go beyond the Privy
Council. So the concern is expressed and the others have expressed, echoing the views
they have heard from other lawyers, will have to be addressed whether by appointment of
more judges or establishment of more courts or whatever. Of course, I think Members are
aware that the Prime Minister has spoken on more than one occasion of the difficulties
we have in getting the best of our legal minds in legal practice to come and serve as
judges in our courts. But this is a point that has been made today by several Members and
is a point that will be looked into.

Dr Lee Siew-Choh: I agree with the Minister for saying that we should be dealing
with the affairs concerning the people of Singapore and not be bothered with what the
Australians or the US Congressmen say. Nevertheless, these people have expressed
opinions and opinions are taken into account the world over.

As regards the other point --

Mr Speaker: Dr Lee, what is the clarification?

Dr Lee Siew-Choh: The clarification is the next one, Sir.

Mr Speaker: You cannot embark on another speech.

Dr Lee Siew-Choh: That I am the living example of PAP democracy because I happen
to be free. The same question has been asked of me on many occasions as to why, if I said
that there was no democracy, I was free to go about. If the Minister, in his younger days
when he was still a student
Column: 551

or a semi-student, had listened to me in the University forums, lectures and talks, he

would have known that my answer has always been that the PAP has no reason to arrest
any of my colleagues and no reason to arrest me, and that they did not arrest me simply
because they wanted to use me as a facade of democracy. Yes, Sir, you must understand
that. The PAP had very bad publicity all over the world on the way the PAP had been
dealing with the Opposition.

Mr Speaker: All right, I think you have made your point.

Dr Lee Siew-Choh: Okay, thank you.

Mr Speaker: Yes, Mr Chiam. Mr Chiam, this is the last clarification I am granting

you.

Mr Chiam See Tong: Sir, I am very much obliged to you. I am very thankful, Sir.

Sir, I have on record an offer in relation to Chia Thye Poh to the Government. I think it
is only proper the Minister should give me an answer: either he accepts, he rejects or is he
going to have more time to ponder over it?

Mr Speaker: Mr Chiam, that matter was discussed during the debate on the previous
Bill and it has been disposed of.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole
House.

The House immediately resolved itself into a Committee on the Bill. [Prof.
Jayakumar].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clause 1 ordered to stand part of the Bill.

Clause 2 --

Mr Davinder Singh: Mr Speaker, Sir, I beg to move,

In page 2, line 3, to leave out "means" and insert "includes".

Sir, these introductory comments apply to all three amendments which I propose. The
amendments are of form and not of substance. They are designed, in my respectful view,
to clarify our intention behind the proposed legislation. I have
Column: 552

heard the Minister's speech as to the rationale behind the proposed amendments. I have
read the Long Title of the Bill which provides that one of the purposes of the Bill is to
restate the law applicable to judicial review of the decisions made and done under the
ISA, and I have read the explanatory statement to the Bill which makes it clear that the
purpose of the new section 8B is to reaffirm the law as laid down in the decision in Lee
Mau Seng and Karam Singh.

Sir, a court construing legislation does not have the benefit of the explanatory
statement and therefore it is all the more necessary for us to be as plain as possible in our
intention because in interpreting a statute what the court is concerned with is not what the
legislators meant to say but to ascertain what they have said.

Sir, in relation to the first amendment, I would respectfully propose that the word
"means" in page 2, line 3, be deleted and the word "includes" be inserted for the reason
that, as presently worded, the phrase "judicial review" as defined in section 8A is limited
only to the proceedings set out and explained in sub-paragraphs (a) to (d) of section 8A.
It is a distinct possibility, Sir, that judicial review may either be described in other
Commonwealth countries otherwise than has been described in sub-paragraphs (a) to (d)
or that there might come a time when new labels may be attached to proceedings begun
by way of judicial review. It is my respectful view, Sir, that the use of the word "includes"
in place of "means" would take care of these possibilities and developments.

Prof. Jayakumar: Sir, may I say that I have studied the amendments moved by Mr
Davinder Singh and my comments apply to the other two amendments also. So I do not
have to speak again. I have also discussed these amendments with the legal draftsman
and I am glad to say that we welcome his contribution. It does not affect substance and
we welcome his contribution and we will be able to accept the amendments.

Amendment agreed to.

Mr Davinder Singh: Sir, I beg to move,

Column: 553

In page 2, line 16, to leave out from "(1)" to the end of line 24 and insert --

"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."

There are two limbs to this proposed amendment. First, I propose that the words
"Subject to the provisions of subsection (2)" be inserted at the beginning of section 8B(1)
to make the structure of the amendments clearer. The aim is for section 8B(2) to be the
dominant provision. The words "subject to" in my view, are more apt to describe this
relationship between section 8B(1) and 8B(2). Subsection (1) is not to be disregarded as
the word "notwithstanding" in subsection (1) ought to, might suggest. It is meant to be
subservient and to be operative outside subsection (2) and irrespective of whether
subsection (2) stands or is struck down by the courts.

Sir, the second limb of my proposed amendment addresses itself to that portion of
section 8B(1) beginning with the words "prior to the introduction into Singapore since the
13th day of July 1971 of any part of the law of England or of any country in the
Commonwealth relating to judicial review." The purpose of this subsection and therefore
of these words is to reintroduce the law as stated in Lee Mau Seng which was declared on
the 13th day of July 1971 and to make it clear that nothing else in the way of
pronouncements of the law before or after that date in Singapore or before, on or after
that date anywhere else in the Commonwealth relating to judicial review shall apply.

The present wording may, however, not lend itself to this construction for the
following reasons. It may be open to a party making an application to court to argue that
the law which was applicable in Singapore prior to the introduction in Singapore since
13th July 1971 of any part of the law of England or any other country in the
Commonwealth relating to judicial
Column: 554

review was the law as declared by the Court of Appeal on 8th December 1988. This is
because of the theory that the courts merely declare what has all along been the common
law. In other words, the law has always been the same. The Court of Appeal has only
recently discovered this law and that therefore even as at 13th of July 1971 the applicable
law is that stated on 8th December 1988.

Alternatively, Sir, even if this argument is not accepted by the courts, it may be argued
that the law prior to the introduction in Singapore since 13th July 1971 of any of the law
of England or of any other country in the Commonwealth relating to judicial review is
that declared by the Privy Council in 1951 in a decision called Nakuda Ali which also
rejected the subjective test.

I respectfully suggest, Sir, that the insertion of the words "and declared in Singapore on
the 13th day of July 1971" make it plain that Parliament's intention is that the applicable
law is that enunciated in Singapore by the High Court on that day, ie, in Lee Mau Seng.

The latter part of the amendment, ie, "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"
reinforces the object of ousting all other views of the law before, on or after that date
anywhere else in the Commonwealth.

Prof. Jayakumar: Sir, I just want to mention that since Mr Davinder Singh alluded to
the possibility of subsection (2) being struck down by the court, I want to repeat again
that all these provisions in this Act is an Act enacted pursuant to new clause (3) of Article
149 and because of the amendments to Article 149 itself it is provided that
inconsistencies in this law with fundamental liberty provisions cannot be the basis of a
challenge under Article 149.

Secondly, I want to point out that since his amendment, in our view, does not alter the
position that subsection (2) will be the overriding provision, we are able to accept the
amendment.

Amendment agreed to.

Mr Davinder Singh: Sir, I beg to move,

Column: 555

In page 2, lines 25 and 26, to leave out "Notwithstanding the provisions of subsection
(1), there" and insert "There".

This proposed amendment to section 8B(2) is consequential on the insertion of the

words "Subject to the provisions of subsection (2)" in subsection 8B(1) which was the
subject of the earlier amendment. In view of the insertion of those words which has
received the sanction of this House the words "Notwithstanding the provisions of
subsection (1)" become redundant.

Amendment agreed to.

Column: 556

Clause 2, as amended, agreed to stand part of the Bill.

Bill reported with amendments; read a Third time and passed.

ADJOURNMENT

Resolved,

"That Parliament do now adjourn." - [Mr Wong Kan Seng].

Adjourned accordingly at Seven

Minutes to Six o'clock pm.