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- 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.

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 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 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.

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 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 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 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 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 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 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 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.

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. 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 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.'

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 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 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 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 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 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,

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 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,

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.

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

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