judicial review of preventive detention in singapore and usa

8/7/2019 Judicial Review of Preventive Detention in Singapore and USA

1/22

Comparative Constitutional Law Research Paper

(LL4012)

JUDICIAL REVIEW OF PREVENTIVE DETENTION FOR

NATIONAL SECURITY REASONS: A COMPARATIVE

ANALYSIS OF USA AND SINGAPORE

by

Indulekshmi Rajeswari

Word Count (excluding footnotes): 5839


2/22

Judicial Review Of Preventive Detention For National Security Reasons

1

Part I: Introduction

Constitutionalism is a difficult concept in an age where we confront enemies that our

framers never imagined. In the time that most old constitutions were framed, conflict

was defined as two countries fighting it out in the traditional manner, battle-cries andpeace-flags included. The stateless enemy was not very much conceived of, save that

of those in the world of espionage (a concept, once again, tied to a State and nation),

much the nature of threats we face today. Suicide bombings, usage of commercial

airlines as projectiles to destroy buildings, bombings on public transportation,

biological attacks, and some might even say cyberterrorism, perpetrated by stateless

fluid groups of radicals - this is the Whole New World of threats that constitutions and

bills of rights have to deal with.

Though situated in different political climates, Singapore and USA have both resortedto the use of preventive detention to deal with threats to national security. Most

ironically, Malaysias (and by extension) Singapores use of the ISA was decried by the

the Bush administration pre-9/11. But in the days, weeks, months and years following

9/11, the US government has radically reversed its position to become a proponent of

this tactic. However, the way the judiciary has reacted to the use of these tactics have

been remarkably different, and in this paper, I seek to prove that both sides have

something to learn from each other.

A) Scope of the paper

While this paper focuses on detention for National Security reasons, it does not

necessarily mean terrorist activities. Most of the cases centre on terrorism-related

detention, but with the respective political histories of the two countries, it can also

include marxist-related activities in Singapore. In todays day and age, this sounds like

an ideological witch-hunt (and it probably was at the time). However, at the time,

communism was the bogey-man that was the main threat to Malaysia and Singapore1.

Due to the scarcity of contemporary jurisprudence on the issue in Singapore, this is the

one of the few points of reference we have to assess the review of detention for national

security reasons.

B) Security v Liberty: Judiciary v Executive. Quis Custodiet Ipsos Custodies?

In order to prevent attacks from happening, the executive has to have the power to

detain and question the suspected individuals. Problem being, these individuals

cannotbe treated as normal criminals, for the harm they pose to the populace is much

greater than ordinary criminal acts. The detained individuals might be valuable sources

1

Michael Hor, Terrorism and the Criminal Law: Singapores Solution, [2002] 1 SLJS 17


3/22


2

of information about the rest of the operation or organisation. Also, if the planned act

has not been committed yet, there might be a slight lack of evidence to show probable

cause for their detention2.

While acknowledging the need to empower the executive with means to deal with

questions of national security, one must always keep in mind that individual liberties

are important. The balancing exercise is aptly encapsulated in the now-famous quote

by Lord Parker of Waddington in The Zamora3, Those who are responsible for the

national security must be the sole judges of what the national security requires."4

We must be clear, furthermore, that there is a difference between challenging your

detention and defending yourself as a criminal, when formally charged. In cases of

preventive detention, the detainees are simply held without being charged or told their

rights, or allowed access to counsel. Hence, when discussing the review process for

detention, we are not speaking of a formal criminal trial, and the issue the court has todetermine is not the detainees guilt, but whether it is acceptable to continue holding

him without such a determination. A formal trial has great risk of revealing confidential

or sensitive information, and has different standards of proof. 5 The detainee will apply

for a writ ofhabeas corpus, which is a general right available to all detainees regardless

of whether they have been detained for national security. In cases of national security,

however, the executive jealously guards its discretion whether to continue holding

someone, and will often have made exceptions to this via the constitution or statutes.

The problems with letting the executive have full control over the process is that there isa considerable degree of derogation of personal liberty - either because they have

made a mistake, or because they are abusing their powers, for whatever reason 6.

Conversely, the central question in each jurisdiction is how suitable a court is to

determine questions of national security. The main problems involved in letting the

judiciary decide questions related to national security are threefold: that it contravenes

the separation of powers, that an overreaching of the rights might compromise national

security by subjecting the executive to onerous processes, and that it compromises

confidential information by making them public. Any analysis that embarks on finding

a perfect, or near-perfect model must take all this into account.

2Hor, at 45

3[1916] 2 AC 77

4ibid, at 107

5The question posed in a formal trial is that of the guilt of the defendant as to the crime he is charged

with, for which the standard of proof is always beyond reasonable doubt. In a trial involving the

review of the detention, the standard of proof is much lowered.6

There is considerable concern over this in the Singapore context, marked by the debates in theParliament over the ISA - see Sing., Parliamentary Debates, vol. 52, col. 463 at 536 (25 January

1989) (Dr Lee Siew-Choh)


4/22


3

Part II: Judicial Review in Singapore

A) Constitutional Regime of Singapore

Art 9 of the Singapore Constitution sets out the right to liberty7, but for our purposes,

that is hardly of any import, for Art 149(1) makes a permanent exception for any

legislation that is targeted at protecting the national security of singapore 8. Art 149(3)

makes it very clear that art 93, which enshrines the power of the judiciary, shall not

invalidate any law that is made to review the actions of the executive. Art 151 9 further

sets out the restrictions on preventive detention, which are that he shall be informed of

the grounds of his detention10 unless this violates national interest11. It also directs that

Singaporean citizens cannot be detained more than 3 months unless the Advisory

Board makes a recommendation to the President12. This advisory board is to be chaired

by a Supreme Court Judge and two other members appointed by the President inconsultation with the Chief Justice13.

B) The Internal Security Act

The Singapore Internal Security Act(ISA)14 is inherited from Malaysia, but has been

modified since the separation. It is a carryover from the Emergency Regulations

Ordinance of 1948 enacted to tackle the social and economic chaos brought about

by guerrilla warfare carried out by the Malayan Communist Party.15

S8 of the ISA gives the Minister the power to order the detention of an individual if the

President has been satisfied that the person is a threat to national security for not more

than a period of two years16, which the President can keep renewing for periods of not

more two years17. The existence of thissuper-criminal18 legislation gives the

executive the power to [swoop] down and [deal] with those suspected of criminal

activity when the Executive perceived that the normal processes of the criminal law are

7Constitution of the Republic of Singapore (1999 Rev. Ed.), art 9(1) [Sing Constitution]

8Sing Constitution, art 149

9Sing Constitution, art 15110

Sing Constitution, art 151(1)(a)11

Sing Constitution, art 151(3)12

ibid, art 151(1)(b)13

ibid, art 151(2)14

Internal Security Act(Cap. 143, 1985 Rev. Ed. Sing.) [ISA]15

Eunice Chua, Reactions To Indefinite Preventive Detention: An Analysis Of How The Singapore,

United Kingdom And American Judiciary Give Voice To The Law In The Face Of (Counter)

Terrorism (2007) 25 Sing. L. Rev. 3 at 516

ISA, s8(1)17ISA, s8(2)18

Michael Hor, Terrorism and the Criminal Law: Singapores Solution, [2002] Sing JLS 30, at 43


5/22


4

likely to fail or to create more problems than they solve. But of course, this power is to

be exercised only in cases where national security is threatened, not for incident

ordinary crimes.

C) Lee Mau Seng v MHA

Lee Mau Seng19 was a case that arose from the strongly anti-marxist sentiments of the

government. After distinguishing the constitutional process from that of Indias, the

court held that they were going to follow the holding in Karam Singh, that it is not

open to the court in Singapore to examine the grounds and allegations of fact supplied

to the applicant pursuant to art 151(1) and s11(1) of the Act for the purpose of deciding

whether or not some or all of them are so vague, unintelligible or indefinite as to enable

the applicant to make an effective representation against the order of detention

20

. Todo otherwise, the court continued, would be inconsistent with the Act under which

the power to issue a detention order has been made 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 enquiry into the

sufficiency of the grounds to justify the detention.21

The effective result ofLee Mau Sengis that executive decisions can almost never be

reviewed, unless the person entrusted with the power acts outside the limits of his

authority or jurisdiction, procedurally (in other words, on the grounds in Anisminic22

D) Chng Suan Tze v MHA

Chng Suan Tze23 was a case of great importance. It arose out of the arrests of several

Christian/Catholic activists accused of marxist activities, in 1987 24. The detainees took

out writs ofhabeas corpus against their detentions25.

The Court of Appeal, faced with this political conundrum, gave an equally politically

smart judgment. They ordered the release of the detainees on the technical ground that

19

Lee Mau Seng v Ministry of Home Affairs [1969-1971] SLR 508 [Lee Mau Seng]20

Lee Mau Seng, at 52521

Ibid22

Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147. The executive and legislature,

while acknowledging the inherent judicial power of the court, has sought to evade it by inserting

ouster clauses or coming up with ways to limit the jurisdiction of the courts. Thus was Anisminic

born, cutting a side-road through the bushes for the judiciary in face of the roadblock. The gist of the

complicated decision in Anisminic reinforces Wednesbury, in allowing for the judicial review of the

decision if a tribunal or person acts outside the limits of their jurisdiction or discretion, even if there is

an ouster clause.23

Chng Suan Tze v Minister of Home Affairs [1988] SLR 132; SGCA 16 [Chng]24Report of the International Mission of Jurists to Singapore, July 198725

Chng, at [1]


6/22


5

the Presidents satisfaction was not proved procedurally26. But after having established

that, they went on to establish dicta that rejected the subjective test that was in place 27,

starting with Karam Singh28, and applied locally in Lee Mau Seng. Instead, the court

asserted its inherent jurisdiction to review the legality, and the limits of discretionary

power29

, while deferring to the idea that the executive is indeed in charge of lookingout for national security30, following the GCHQ case31

The court at first establishes its jurisdiction to review the grounds of detention - whether

it really has to do with national security:

Those responsible for national security are the sole judges of what action is

necessary in the interests of national security, but that does not preclude the judicial

function of determining whether the decision was in fact based on grounds of national

security.32

The court continues on, defining the parameters of discretion, and asserting their

jurisdiction to review both the grounds of the detention and the allegations of fact:

However, just as the court can determine that a decision was in fact based on

national security considerations, equally the court can in our view determine whether

the matters relied on by the executive in the exercise of discretion can be said to fall

within the scope of s 8 of the ISA.33

Additionally, the court made the iconic remark (which is still applicable to judicial

review outside matters of national security) that All power has legal limits and the rule

of law demands that the courts should be able to examine the exercise of discretionary

power34, in rejecting the subjective test in Lee Mau Seng, and consequently adopting

Lord Atkins view in Liversidge35

26

Chng, at [39]27

Chng, at [55]28

Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 12929

Chng, at [86]

30Chng, at [89]31

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 (H.L.)further

concretises the judicial power to review decisions even for questions of national security. However

they qualified that they were concerned not with the decision, but the decision-making process. While

the prerogative lies with the executive, the decision, if challenged, must be met by the government

with evidence that the decision was made on the grounds of national security.32

Chng, at [89]33

Chng, at [93]34

Chng, at 8635

In the Liversidge v. Anderson [1942] A.C.206. Lord Macmillan stated that the Secretary of State

had to consider that sufficient grounds existed for detention and act in good faith. In subsequentjurisprudence, the dissenting opinion of Lord Atkin has been considered to be the correct view on thematter.


7/22


6

After this decision, the ISA was amended, adding s8B, 8C, 8D such that Chngwas no

longer applicable to any detention under the powers of the ISA, reinstating the

subjective test under Lee Mau Seng36.

E) Teo Soh Lung

The detainees were rearrested under the new detention order, this time complying with

procedures, challenged their detention again in Teo Soh Lung37. This time, the same

Court of Appeal delivered a much tamer judgment that declined to reassert their power

to review on objective grounds, saying it was quite clear that the legislature meant for

the review to be on subjective grounds as in Lee Mau Seng38, by which the court could

not question neither the alleged facts nor grounds of detention, for discretion was

subjective.

After dismissing the appeal, the court decline to comment on whether s 8B(2) of the

ISA has the effect of precluding the court from reviewing a detention order which is

demonstrably made for a purpose(s) other than national security, or whether, in the

alternative the amendments to s 8 of the ISA are outside the scope of the legislative

powers conferred by the amended art 149 of the Constitution39 The court in effect

took a legislative supremacist approach - the amendments to the legislation and

constitution were both valid procedurally, and there was no question of whether they

violated principles of natural justice or a thick formulation of the Rule of Law40, which

would be the only way to reconsider the detention order.

F) JI Arrests

15 years after the arrests that rocked the nation, and very shortly after 9/11, Singapore

saw its first use of the ISA against modern-day terrorism, when close to 30 suspects

were arrested by the ISD and held in detention without trial41. The arrests, and the fact

that they meant to attack a public location in Singapore was publicised in the papers42.

To this day, most of them are being held without trial43 and there has been no intention

on the part of the government to give them one44. However, this time, the MHA

36

Internal Security (Amendment) ActNo. 10 of 198937

Teo Soh Lung v Minister of Home Affairs and Others [1990] SLR 40; [1990] SGCA 5 [Teo]38

Teo, at [20]39

Teo, at [58]40

Chua, at 1141

White Paper on the Jemaah Islamiyah Arrests and the Threat of Terrorism, Cmd. 2 of 2003,

(Published by The Ministry of Home Affairs Singapore), at 2 [White Paper]42

Chua Lee Hoong, Yishun target in groups plans The Straits Times (12 January 2002)43

Goh Chin Lian, Three held under ISA released; But JI, MILF men must still abide by certain

restrictions The Straits Times (17 September 2009)44

There are various explanations for this, but the need for racial harmony seems to be paramount

(Should detainees face an open trial? The Straits Times (26 January 2002), see also Hor, at 48-49)


8/22


7

released a White Paper detailing the circumstances of the arrest and the status of the

detainees, perhaps in a hope of appearing publicly accountable. Perhaps knowing

their legal options were close to non-existent, the detainees did not take out writs of

habeas corpus despite telling the media they might45.

45

Should detainees face an open trial? The Straits Times (26 January 2002)


9/22


8

Part III: Judicial Review in United States

A) Authorisation for Military Force

The US Supreme Court has long asserted its right to judicial review, beginning from

Marbury v Madison46. But the post 9-11 cases have brought a new kind of challenge to

the jurisdiction of the court. The Authorisation for Military Force (AUMF) issued by

Congress 3 days after the twin towers attack gives the President the discretion to use

whatever force necessary and appropriate to eliminate the threat to USA47. It must be

noted that no such declaration was needed for Singapore - due to s149 and ISA, the

authorisation has existed since Independence, constitutionally48.

There are two different regimes of habeas corpus in US - the constitutional and the

statutory. The constitutional habeas corpus can only be suspended through which

could not be suspended except by an act of congress in conformance with theSuspension Clause, Art I49. The distinction will become important when Boumediene50

is considered later. In comparing Singapore and America, the holding in Boumediene

is the most important one of all, but to understand it, one has to understand the two

prior cases, Hamdi51 and Rasul52, which built the foundation, rightly or wrongly, for the

Supreme Courts extraordinary conclusion in Boumediene.

46

5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)

47Authorisation for Use of Military Force, 115 Stat. 224 (2001)48

However, it is necessary to note that the real difference is that Singapore retained its anti-

communist legislation and started using it for other purposes, while most of the Subversive Activities

Control Actwhich served the same purpose in the USA was struck out clause by clause by the

Supreme Court (Alan I. Bigel The First Amendment and National Security: The Court Responds to

Governmental Harassment of Alleged Communist Sympathizers 19 Ohio N.U.L. Rev. 885)49

U.S. Const. Art I, 9, cl. 250

Lakhdar Boumediene, et al., Petitioners v. George W. Bush, President Of The United States 128 S.

Ct. 2229 (2008); 171 L. Ed. 2d 4151

Yaser Esam Hamdi, Petitioners, v. Donald H. Rumsfeld, Secretary of Defense, et al. 542 U.S. 507,

124 S.Ct. 2633 (2004)52

Shafiq Rasul et al., Petitioners, v. George W. Bush, President of the United States 542 U.S. 466,

124 S.Ct. 2686 (2004)


10/22


9

B) Hamdi v Rumsfeld

The Supreme Court broke new ground in Hamdi- where it was held that the executive

had the authority to hold citizens classified as enemy combatants53 but that the

detainees also had the right to challenge their own detention54

, especially as this was awar with no end-date. Even in cases of national security, the detainees deserves

opportunity to present and rebut facts relating to his detention55.

The government argued that

[r]espect for separation of powers and the limited institutional capabilities of

courts in matters of military decision-making in connection with an ongoing

conflict ought to eliminate entirely any individual process, restricting the courts

to investigating only whether legal authorization exists for the broader detention

scheme At most, the Government argues, courts should review its determinationthat a citizen is an enemy combatant under a very deferential some evidence

standard.56.

The defendant in turn argued that an individual cannot be arbitrarily detained at will of

the executive without recourse to some proceeding before a neutral tribunal57. The

District Court ruled that for such a meaningful judicial review, hearsay evidence was

not admissible, and quite extensive discovery of military documents was required58.

The court, striking a balance between these two positions, proposed a new process for

citizen-detainees59 (the holding here does not apply to non-citizens), allowing citizen-detainees a hearing but holding a lower standard of proof, and allowing a rebuttable

presumption in favour of the governments evidence60. J OConnor also proposed a

military tribunal of sorts, which might help safeguard the confidentiality of

information61.

The majority decision has been criticised by some academics, and even in the

judgment by a (surprising) opinion from Justice Scalia, who dissented on the basis that

the executive did not have the power to hold anyone without charging them (Justice

Stevens joining)62

.

53Hamdi, at 517

54Hamdi, at 533

55Hamdi, at 532

56Hamdi, at 527

57Hamdi, at 528

58Hamdi, at 528

59Hamdi, at 532-533

60Hamdi, at 533-534

61Hamdi, at 53862

Hamdi, at 554


11/22


10

C) Rasul v Bush

Rasulwas a groundbreaking, at least politically. For years after 9/11, the Bush

administration had been using Guantanamo Bay as a detention facility for aliens

captured or seized. It was a way to avoid the due process that would be due to them

should they be held on US soil63. Guantanamo Bay, as we know it to be, is theoretically

Cuban territory, but leased permanently to the US, under its administrative control64.

The question to the court was thus: do the federal courts have jurisdiction to consider

challenges to the legality of the detention of foreign nationals captured abroad in

connection with hostilities and incarcerated at the Guantanamo Bay Naval Base,

Cuba65.

As a starting point, Congress has already granted federal district courts the authority

to hear applications for habeas corpus by any person who claims to be held in

custody in violation of the Constitution or the law or treaties of the United States66. It

has also been accepted that this action is available to aliens held within US custody67.

The court distinguished an earlier precedent, Eisentrager v Forrestal68, which raised the

question of german prisoners being held in Landsberg prison after World War II on

German territory, for which the court declined jurisdiction. The distinguishing feature

was the very different circumstances of the war, and the nature of the territory in

question69. The Cuban government has no presence, no jurisdiction, and certainly

absolutely no legal or physical control of the area70.

D) Boumediene Bush

If the Supreme Court was considered bold in the previous two decisions, it would have

been considered audacious in deciding Boumediene. After Rasul, which opened the

path for aliens detained in Guantanamo Bay to challenge their detention through the

63

David Golove, Developments -- United States: The Bush Administration's "War On Terrorism" In

The Supreme Court (2005) ICon 3.1(128)64Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval

stations, United States of America and Republic of Cuba, 23 February 1903. Interestingly, Cuba

considers the American possession of the territory illegal and the treaty a violation of the Vienna

Convention of Treaties (Alfred de Zayas, The Status Of Guantnamo Bay And The Status Of The

Detainees (The Douglas Mck. Brown Lecture, presented at the University Of British Columbia

Vancouver, 19 November 2003), [unpublished], at 9)65

Rasul, at 48566

Rasul, at 47367

Rasul, at 47468

174 F.2d 961, 963 (C.A.D.C.1949)69Rasul, at 47670

supra, at 64


12/22


11

statutory method, Congress passed the Detainee Treatment Actof 2005 (DTA)71. The

DTA amended the 28 U.S.C. 2241 by removing the jurisdiction of the federal courts

to hear application of habeas corpus by enemy aliens72. It also created a new tribunal,

called the Combatant Status Review Tribunal (CSRT), and the D.C. Circuit Court had

jurisdiction to review the decision of the CSRT on procedural grounds73

(which theSecretary of Defence produces and updates periodically), as well as review the

procedure itself for compliance with the laws and constitution of the US74.

At the CSRT stage, every petitioner has the right to present evidence that he has been

wrongfully detained. This includes the right to call witnesses who are reasonably

available, question witnesses called by the tribunal, introduce documentary evidence,

and testify before the tribunal. 75 The CSRT does not allow the detainee access to

counsel, but it does allow him a Personal Representative who is able to review the

confidential information related to his detention and summarise it for him, who is also

able to assist him in finding witnesses and presenting evidence. 76. A few years later, a

new group of detainees brought a fresh challenge to the court, asking if they had the

constitutional (not statutory) privilege of habeas corpus77. The government considered

this form of review to be in line with the holding in Hamdiin which Justice O Connor

had suggested a military tribunal of sorts78.

However, for the majority, this was considered unconstitutional. J Kennedy opined that

the procedural protections afforded to the detainees in the CSRT hearings are far more

limited, and fall well short of the procedures and adversarial mechanisms that would

eliminate the need for habeas corpus review. Although the detainee is assigned a"Personal Representative" to assist him during CSRT proceedings that person is not

the detainee's lawyer or even his "advocate."79

Also, the Government's evidence is accorded a presumption of validity. The detainee

is allowed to present "reasonably available" evidence, but his ability to rebut the

Government's evidence against him is limited by the circumstances of his confinement

and his lack of counsel at this stage. And although the detainee can seek review of his

71

119 Stat. 273972

DTA, 1005(e)(1)73

DTA, 1005(e)(2)(C)(i)74

DTA, 1005(e)(2)(C)(ii)75

Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 154-156, 158-159, 16176

Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 152, 154-155, 15677

Boumediene, at 224078supra, at 6779

Boumediene, at 2260


13/22


12

status determination in the Court of Appeals, that review process cannot cure all defects

in the earlier proceedings.80 [internal citations omitted]

80

ibid


14/22


13

Part IV: A Comparative Analysis

A) Basic Differences and SimilaritiesA distinctly striking parallel, and one might say, anti-parallel emerges from our

examination of the cases - in Rasul, the court offers a moderate, tentative step towards

extending statutory habeas corpus to aliens. In Chng, a deceptively mild judgment,

asserts the jurisdiction of the court to review detentions objectively. The responses of

the legislature in both situations was to amend the statute such that it effectively

overrules the court decisions, but in the US case, building in additional safeguards,

while in Singapore, simply handing the authority to the executive. In both cases,

appeals were subsequently brought (though in the US case, by a different group of

people). But the court decisions in each case could not have been more different in

result and reasoning. Teo capitulated to legislative supremacy, but Boumediene kicked

down the wall and planted its flag, extending consitutional protection to aliens

detained in Guantanamo in the federal courts.

The DTA and CSRT, one has to be reminded, are brand-new military-related

establishments81, taken in the time of war against a particular sort of enemy, though it is

not clear how long this war is going to last and how it will evolve. The ISA and the

Advisory Board are old, ever-present non-military institutions that were originally

conceived to respond to communist threats, but now responds to every possiblenational security threat, including ones we might not foresee in the future. There is a

subtle institutional difference here that might play a role in how we judge them and

their institutional efficacy. Weve seen the ISA respond to two kinds of threats: the

communist and the terrorist (though some might say there is no real difference except

in the ideology behind the threats), but the DTA and CSRT has been dealing almost

exclusively with the radical Islamic terrorism engineered by particular groups of well-

trained, cell-structured, deeply committed, martyrdom-seeking combatants.

Hence the CSRT is not entirely analogous to the Advisory Board, for the CSRT is amilitary tribunal (but not the kind of ad-hoc military tribunals that were considered

objectionable in Hamdan v Rumsfeld). There might be balance of power issues that

81

In comparing, we have to keep in mind that the detentions in the USA exist in a quasi-military

context, as compared to Singapore where it exists in a civilian context. It is all the more confusing as

to exactly what regime the detentions are conducted under, for AUMF is clearly a military directive,

with the President being the Commander in Chief. However the detainees are not treated as Prisoners

of War, but dangerous individuals who have to be detained to prevent harm to the civilian population.

Some of the detainees are those captured in the war in Afghanistan, in the war against the Al-Qaeda.

Guantanamo itself is a military base, and the detentions being examined here are not under theauspices of the CIA or FBI orother security agencies. Of course, this is reflective of the way the waron terrorism has been conducted so far, blurring the lines.


15/22


14

might be glossed over in the comparison, especially that of the jurisdiction of civilian

courts over military operations and actions.

The judicial climates of the two countries could not be more different. The Supreme

Court of the United States is considered activist by many, whether this be a good

thing or not. It has struck down many laws, contradicted the legislature and executive

on key issues and made life-changing decisions for Americans82. The Singapore

judiciary, on the other hand, is determinedly reserved and non-activist when it comes

to constitutional law, taking a legislative supremacist approach. It has never struck

down a law for being unconstitutional83.

The war on terrorism, against whatever enemy, does not come with a end-date84. There

is no state to conclude a ceasefire agreement with, no way to make sure new cells do

not arise. Terrorism is a many-headed enemy: cut one off and ten others sprout. So for

all intents and purposes, this special state of affairs where the President is authorised todo almost anything can continue indefinitely85.

In this situation, one needs to be even more circumspect about the use of emergency

powers and the power of the executive86.

B) Framework for analysing the judicial review regimes

Understanding the respective judicial backgrounds of the two States, one can

commence a comparison of how each jurisdiction treats the issue. In doing so, we refer

back to the factors identified above in balancing the executive with the judiciary, anduse this as a framework of analyzing the matter.

i) Judicial review must leave protect detainees rights by allowing for

a) correction of mistakes or

b) abuse of the powers of preventive detention

ii) In exercising this review, one must not compromise national security

a) by taking into account the separation of powers, and the fact the judges

are not trained nor entrusted to deal with matters of national security

82

Mark Tushnet, The United States: Eclecticism in the Service of Pragmatism in Interpreting

Constitutions (Jeffrey Goldsworthy, ed., Oxford: 2006), pp. 7-5483

The closest it has ever come to striking down a law is in Taw Cheng Kong v Public Prosecutor

[2004] 1 SLR 943 at the High Court level, whereupon it was promptly reversed by the Court of

Appeal in Public Prosecutor v Taw Cheng Kong[1998] 2 SLR 410; [1998] SGCA 3784

Stephen I. Vladeck, Ludeckes Lengthening Shadow: The Disturbing Prospect of War Without

End 2 J. Natl Security L. & Poly 53 (2006) [Vladeck]85

Vladeck, at 10986

In the case of the US, Vladeck has convincingly argued for a sunset clause to the AUMF, so as to

check the possibility of the endless war being a permanent clamp on civil rights (Vladeck, at 95)


16/22


15

b) by making the executive jump through unnecessary hoops which might

impede swift and necessary action

c) by preserving confidentiality of information

The courts in the respective jurisdiction for Teo and Boumediene have not fulfilledeither branches of the framework. In Teo, the court does not go far enough, and in The

courts in the respective jurisdiction for Teo and Boumediene have not fulfilled either

branches of the framework. In Teo, the court does not go far enough, and in

Boumediene, the court went too far, that the dissenting opinion by Justice Roberts

presents the right balance between national security and detainees rights.

i) Curbing Executive power

As mentioned above, allowing the executive to run free can have negative

consequences, for it is a strong curtailment of our liberties. As J OConnor put it:Indeed, the position that the courts must forgo any examination of the individual case

and focus exclusively on the legality of the broader detention scheme cannot be

mandated by any reasonable view of separation of powers, as this approach serves

only to condense power into a single branch of government. We have long since

made clear that a state of war is not a blank check for the President when it comes to

the rights of the Nation's citizens.87[internal citations omitted]

a) Correction of mistakes

Mistakes happen in the preventive detention process - in trying to act fast, the executivemay have to rely on unverified information.

The CSRT regime has inbuilt controls on correction of mistakes. Justice Roberts quite

persuasively dismantles the plurality in Boumediene by pointing out that the process

that the executive envisions is quite fair to the detainee88. The majority bases most of its

overruling not on whether the CSRT is fair - but on the point that the detainee cant

introduce exculpatory evidence after the CSRT proceedings are concluded89. But as

Justice Roberts points out, they can simply request another CSRT. Or he can appeal to

the D.C. Circuit Court, who can review the decision for procedural compliance as wellas whether the procedure itself is in conformity with the US Constitution and its laws

the constitutionality90 of the proceedings at the DC Circuit level91. Should his inability to

introduce evidence be a violation of the US Constitution or its law, bring it up in the

87

Hamdi, at 53688

Boumediene, at 227989

Boumediene, at 228990 (DTA, 1005(e)(2)(C)(ii)91

ibid


17/22


16

D.C. Circuits92. Also, at the DC Circuit level, the appellant has access to appellate

counsel and access to information surrounding his release93. The Secretary of Defence

is also required to make yearly unclassified review of the status of each prisoner to

Congress94, as well consider any new exculpatory evidence that has come to light95.

In Singapore, the review over the detention is only on a purely subjective basis, which

means neither the facts not grounds of allegation can be reviewed. This leaves no room

for the correction of mistakes, as the judiciary can only review it for any procedural

issues. Of course, there are other non-judicial corrections on the Singapore detention

process - the Advisory Board has to make a yearly review of the detention 96, but once

again, this is not subject to further judicial review.

Perhaps the only problem with the CSRT is that the DTA does not specifically detail that

the DC Circuit court can order the release97(but it has been specified in the

Implementation Memo98) if it finds that the procedure has been compromised. If thiscould have been legislatively clarified, there would have been no need to strike out the

clause that limited federal court jurisdiction over the detainee.

b) Abuse of power

Preventive detention is exclusively dependent on the integrity of its officers99. Power

can be corrupting, and the empowerment of arbitrary power can be dangerous and a

violation of the rule of law100. also have to consider the political reality of both

countries. The Congress in America, compared to Singapore, is politically diverse101,

and it is unlikely that the detention process will be used unfairly to detain (peaceful)political dissidents on the basis of national security102. That is not to say there is no

danger of it being abused with the best patriotic intentions, but taken too far, with

92

Boumediene, at 228893

Boumediene, at 2288-228994

DTA, 1005(d)(1)95

DTA, 1005(a)(3)96ISA, s13

97Boumediene, at 2271

98Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 164

99Yang Ziliang, Preventive Detention As a Counter-Terrorism Strategy: They have Stopped Using It

And So Should We (2007) 25 Sing. L. Rev. 24, at 32 [Yang]100

Yash Gai, Notions of the Rule of Law Their Applicability to Malaysia and Singapore (Presented

at The Rule of Law and Human Rights In Malaysia and Singapore, European Parliament, 9-10 March

1989), at 25101

The Congress, in both the House and Senate, traditionally trade majorities between the Democrats

and Republicans every other election cycle, but the majority usually does not exceed 60%102

The US does have a history of using the Subversive Internal Security Actto detain individuals but

most of this has been repealed by now (supra, at 48)


18/22


17

torture of detainees103 and racial profiling104 When this happens, it becomes all the

more imperative that the judiciary retain some powers of review, for this kind of proof-

less detention might be in violation of the Constitution. Especially when the said

detention is carried out in the legal blackhole of Guantanamo, which is a further

attempt to evade judicial oversigh105

. The CSRT review procedure set by the Secretaryof Defence is not simply something the CSRT sets for itself, contrary to what one writer

claims106 - he has to submit the procedure, and any changes to the Congress.

Singapore, on the other hand, is a one-party state107, with a Westminister-style fused

executive and legislature, which makes the need for a strong judicial check and

balance even more necessary. The potential for abuse for political ends is very real -

and has been demonstrated in the detention of the so-called marxist activists108. Since

the Minister making the detention order is part of the ruling party, letting subjective

discretion unchecked poses a threat to the democracy in Singapore. Especially given

that under Lee Mau Seng, even a decision made in bad faith cannot be contested in the

court of law109. Teo has already declined to consider whether the court has power to

review the detention if it was not in fact made on national security grounds110.

103

With the Dick Cheney policies which have included enhanced interrogation techniques, the

detention process is particularly susceptible to abuse by over-zealous, but well-intentioned agents

working in the counter-terrorism line (Peter Baker, Banned Techniques Yielded High Value

Information, Memo Says, The New York Times (21 April 2009) online: The New York Times

.)104

There is an ugly side to preventive detention: given the nature of the threat that the world is facing

today in the form of (mostly) radical Islamic terrorism, the executive tends to racially profiles its

suspects. It should not surprise anyone that most of the detainees at Guantanamo tend to be Middle-

Eastern and/or Muslim. In fact, detentions made just because the suspects are Muslim, male and might

fit a certain profile are extremely common, and most of them are quite innocent, such as the

Uighurs who have been released recently (Andy Worthington, Who Are the Six Uighurs Released

From Guantanamo to Palau?, The Huffington Post(3 November 2009) online: The Huffington Post

.105

This is the secondary dimension of the US cases on the status of Guantanamo detainees that gets

ignored in the questions about national security. The executive, relying on a earlier decision

Eisentrager, set up a detention facility in Guantanamo Bay so that they would not be able to avail

themselves of the due process on American soil. Rasuland Boumediene step in to cure this problem.It has to be seen as a political decision, an open acknowledgement of the de facto sovereignty of the

US government over that area, and as well as the atrocities that have been committed in the legal

blackhole that has been persisting since then. This is what Justice Scalia misses when he says the

legislature was entitled to rely on Eisentrager- that the circumstances are simply not the same, and

the US government cannot continue to abuse this legal blackhole106

Riddhi Gasgupta, Commentary: Boumediene V. Bush And Extraterritorial Habeas Corpus In

Wartime 36 Hastings Const. L.Q. 425 (2009), at 437107

Since 1959, the PAP has not lost a single election and has not conceded more than 2 seats to the

opposition108

Lee Mau Seng; see alsoChng; Teo109Lee Mau Seng, at 526110

Teo, at [41]


19/22


18

ii) Judicial Review must not compromise national security

National security, of course, has to be paramount in considering how far the reaches of

judicial review should reach111.

a) Separation of powers

The judiciary is not trained or equipped to deal with matters of national security, neither

are they entrusted to protect it. The executive is in possession of the material

information and resources to make the determination about who to detain. The

judiciary, then, might not be in the best position to make the judgments. However, the

other side of the separation of powers principles also requires that the judiciary be able

to review administrative actions, as part of being a check on the executive112. The need

for detainees to receive some amount of due process combined with the patent

disqualification of the courts to make these determinations would lead to the

conclusion that specialised tribunals can be convened to deal with the detainees,

which was suggested in Hamdi113, as long as this process is subject to some amount of

judicial oversight.

The question then becomes, how much judicial oversight? In the Singapore cases, one

sees a battle between subjective and objective approaches to reviewing detention. In

the US context, the question is not discussed in those terms, hence it is difficult to even

fit the cases into this paradigm, being rooted in a different constitutional andprocedural background. However, in applying a rough comparative perspective, the

fact that the CSRT procedure can be reviewed for constitutionality in addition to

procedural compliance would mean that the courts can check the executive in a more

objective manner. For example, if the CSRT procedure specified that the detention

could continue if the detainee had red hair (a highly simplistic but oft-quoted example),

then that would be presumptively against the constitutional guarantee of equality.

111While these three categories are the main limbs that one rationally considers in a legal framework,

there is a political element of preventive detention that often goes unmentioned - the preservation of

racial harmony. This is hardly considered in the US context, but forms a big part of how the executive

makes it decisions in Singapore, and might be the reason why the JI detainees never even got a trial

despite the strong evidence against them, for it might stoke strong feelings in the muslim community

and beyond(Hor, at 48; see also Should detainees face an open trial, The Straits Times (26 January

2002)). Racial harmony as part of national security is something we have to consider realistically but

perhaps not legally.112

This is the basis of administrative actions in general, best encapsulated in the starting point of

modern judicial review in Associated Provincial Picture House v. Wednesbury Corporation [1947] 1

K.B.D. 223, see also Chng, at [86]; Council of Civil Service Unions v. Minister for the Civil Service

[1985] A.C. 374 (H.L.), at 385-6113

Hamdi, at 536


20/22


19

It is advocated that Singapore return to the objective approach under Chng, or allow for

the court to determine the detention for constitutional consistency. Conversely, the

majority in Boumediene can understand that the determination based upon national

security is the province of the executive, and might see value in a Chng-based

approach which allows for the objective review but not the usurpation of executiveauthority, or simply respect the CSRT scheme as detailed above. The recommendation

is not to blindly adopt either system - but in the comparison, one might find parallels

that illuminate the strengths and weaknesses in each system, as well as alternatives.

b) Impedes swift and necessary action

The judicial roadblock to executive action, as long as preventive detention is

legislatively authorised, is not at the initial point of detention, but in continuing to hold

the detainee after a certain period of time. As Justice Roberts points out, even some of

the people let go by the military resumed their terrorist activities114 - if the executive getsit wrong, what are the chances that a judge would be able to make the determination as

to whether the person continues to pose a threat? The strength of both the CSRT

scheme and of the objective regime in Chngis that it allows for the swift executive

action within the boundaries of their authority while protecting against the abuses.

c) Preserving confidentiality of information

The Boumediene court also erred in this aspect, for a full federal court habeas corpus

review would compromise confidential information, as Justice Roberts points out115.

The court does not provide an alternative for protection of confidential information ifthe detentions were to be reviewed in the federal courts116. The pre-existing CSRT

regime meant that the detainee himself would not be able to access confidential

information but it could be presented for him by his Personal Representative. No other

process in the world remotely allows the defendant any access to confidential

information relating to his detention117.

The ISA-Advisory Board regime of course does an excellent job of protecting

confidential information (at the expense of protecting his rights) - in fact, the detainee

need not even be told the grounds of his detention if it compromises confidentialinformation118. Neither does he have access to them to be able to present his case. It is

114

Boumediene, at 2294-2295115

Boumediene , at 2288, at 2295. Justice Roberts brings up an example releasing the evidence to

Attorney can be harmful to national security, when during the 1995 prosecution of Omar Abdel

Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the "Blind Sheik's"

defense lawyers; that information was in the hands of Osama Bin Laden within two weeks116

Boumediene, at 2288117Boumediene, at 2289118

ISA, s8


21/22


20

suggested that Singapore adopt the scheme of the Personal Representative so as to be

able to strike a balance between the competing needs 119.

119

Access to counsel is not legally guaranteed, which in itself is problematic, but it is granted in

practice (Hor, at 44)


22/22


Part V: Conclusion

Balancing security and liberty is a question that has haunted humankind for thousands

of years. Finding the appropriate balance can depend on each country, but it is also

valuable to learn what other jurisdictions are doing, especially in dealing with thecurrent international threat of terrorism. In this case, both Singapore and USA have

something to learn from each other: Singapore can learn to better protect the rights of

the detainees, and USA can learn to better protect national security and respect the

separation of powers. Having said that, the separation of powers doctrine is not a

magic phrase that automatically truncates judicial power, it is a complicated give-and-

take concept that requires both the executive and judiciary (in this case) to find the right

balance of power between them. The courts have to know when to step up and when

to back off, in this complicated little balancing act between national security and

individual liberty.

judicial review of preventive detention in singapore and usa

Documents