Wednesday, March 14, 2007

Preventive Detention

Other than the ISA, looks like there is this other law that allows for detention without trial in SG. A letter from the MHA appeared in the ST forum today which got me to go dig up the original letter to see what it was about. The original letter is below followed by MHA's reply.

In the original letter, Mr Daud asks two important questions which I have bolded out.

March 7, 2007
Ensure due process of law for accused persons

THE pilot project mentioned by Senior Minister of State (Home Affairs and Law) Ho Peng Kee to allow an accused to see his lawyer before investigations are over is a step towards ensuring fair prosecution and due process of law for all Singaporeans.

Due process places requirements and limitations on legal proceedings to ensure fundamental fairness and justice.

It is based on the principle that the Government must respect its citizens' right to life, liberty and property and must make a substantial effort before these rights can be taken away.

Under the Criminal Law (Temporary Provisions) Act, if the Minister for Home Affairs is satisfied that a person has been associated with activities of a criminal nature and it is necessary that the person be detained in the interest of public safety, the minister may detain the person for any period not exceeding 12 months. The accused can also be detained for multiple consecutive periods of 12 months. This power of preventive detention seems to go against ensuring the right of every Singaporean to due process of law.

While Singaporeans trust the Government to prosecute fairly, must it be without checks? Why not ensure a full due process of the law as a check on this trust?

Do we want a system that might fail to prosecute some guilty persons or one that could wrongly prosecute an innocent person?

As the Act has to be renewed by Parliament every five years to remain law, I hope our elected leaders will deliberate if it is in the public interest to renew the Act or have a system to ensure every accused Singaporean his or her right to a fair prosecution.

If our leaders do renew the Act in 2009, I hope that they will explain the rationale.

Ahmad Firdaus Daud

The MHA’s reply.

March 14, 2007
Safeguards in criminal law Act prevent abuse

I REFER to the letter by Mr Ahmad Firdaus Daud, 'Ensure due process of law for accused persons' (ST, March 7).

While our law-enforcement agencies always endeavour to prosecute criminals in court, there are situations where this is not possible. This is the case when key witnesses fear to testify in open court for fear of reprisal against them or their loved ones.

The Criminal Law (Temporary Provisions) Act is then used, as a last resort, to place dangerous criminals under preventive detention to safeguard public safety and good order. The Act has enabled us to deal effectively with secret-society members, drug traffickers, and organised-crime and loan-shark syndicates. Other societies without similar powers face great difficulties dealing with such organised crime syndicates.

But this does not mean that there is no due process under the Act. Indeed, the Act sets out many safeguards to ensure that the powers that it provides are not abused. Hence, the Attorney-General's consent, in his capacity as the Public Prosecutor, is required before a case is sent to the Minister for Home Affairs for his decision on whether to issue a detention order.

The detainee is informed of the grounds for his detention and is given the opportunity to make representations. These representations, either made by him or his lawyers, are then put before an Advisory Committee - comprising prominent private citizens such as Justices of the Peace, senior lawyers and community leaders - which will study them as well as all the evidence before making its recommendations on the order to the President, who may confirm or cancel the order.

If detained, his continued detention is subject to the Advisory Committee's review on an annual basis.

The Act remains a temporary provision with a five-year sunset clause. This approach ensures that the Ministry of Home Affairs (MHA), in exercising powers under the Act, is mindful that preventive detention is a departure from the normal process of court prosecution and should be used sparingly. In Parliament, when seeking its renewal, MHA has to convince Parliament of the need for its continued use.

MHA will continue to judiciously use the Act to deal with dangerous criminals and to ensure that the crime and drug situation in Singapore remains under control.

Ong-Chew Peck Wan (Mrs)
Corporate Communications Division
for Permanent Secretary
Ministry of Home Affairs

From my lame understanding of law, due process means when a person gets accused of wrong doings the burden rests on the prosecution to prove guilt and conviction in court. Until that happens the accused is only a suspect and not a criminal.

The MHA person says that a due process (in this case a trial in court) is sometimes not possible because "key witnesses fear to testify in open court for fear of reprisal against them or their loved ones". She then goes on to justify the law saying that it is "a last resort, to place dangerous criminals under preventive detention to and good order."

This sounds logical at first, all the talk of safeguard public safety. But notice the use of the word 'criminals'. Now this is a big jump from being just a suspect or an accused. Becos how can an accused become a criminal especially since there is no court trial and conviction? So preventive detention is really on suspects and not on criminals. There is a big big distinction here. Hence Mr Daud’s point of the law infringing on human rights.

The MHA person then goes on to stress that there is indeed due process. A detainee (the accused who has overnight becomes a criminal) "can make representations to an Advisory Committee... which will study them as well as all the evidence before making its recommendations on the order to the President, who may confirm or cancel the order." This again does not sound logical becos all of a sudden now we have 'evidence' - Evidence that earlier is not strong enough to stand in an open court but now strong enough to put a person away for detention! Now this is definitely a much weaker due process than a trial in court, becos I think making representations is a much simplified procedure that is not transparent. It is not the usual rigorous process where prosecution and defendant have the opportunity to openly engage in argument, cross examinations and fighting it out in court. Also the person now playing god is the president, someone who is neither a trained lawyer nor possess legal knowledge, and who furthermore is beholden to the executive and hardly independent.

So it seems the system is stacked heavily in the prosecution’s favour. It is almost like giving the prosecution a second chance. "Oh you know we don’t have enough evidence to go to court and we may lose, but hey we could resort to this to tekan him anyway, muahahaha!" *evil laugh* Why should the prosecution’s job be made easy and the defendants' so much harder? If the prosecution does not have enough evidence, then go out there work some more to get stronger evidence! Earn your bloody paycheck! Otherwise there is no ground for detention. And some more detention for 12 months? That's a long time and as good as destroying a person's life, becos once you are detained they will make sure your crime sticks and even if you are innocent you will still end up "guilty". (Re: Chia Tye Poh) Becos there is no way for them to admit making mistakes as they will lose face and face justice.

No comments: