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diplomatic conference to consider and adopt amendments to the SUA
Convention.37
On 17 August 2002 the American delegation introduced document LEG
85/4 containing draft amendments to the SUA Convention and Protocol,
together with related documents.38 Among the most important amendments
proposed by the United States are the following: (1) the addition of seven
new offences into Article 3 of the SUA convention, four of which are
concerned with activities taking place on the ship or directed toward the
ship that involve a terrorist purpose; (2) new provisions permitting the
boarding and search of a suspect ship by law enforcement officials of another
when such ship is in international waters (located seaward of any state’s
territorial sea) and is reasonably suspected of being involved in, or reason-
ably believed to be the target of, acts prohibited in Article 3 of the SUA
Convention.
Concern was expressed by some delegations to some of the United States
proposals, especially the new provisions on the boarding and search of a
suspected ship. The United States draft was described as a ‘work in progress’
and the discussion was described as a preliminary exchange of views. It was
decided that it was premature to establish an intersessional working group,
but it was decided to continue the work of the correspondence group. It was
emphasized that the objective must be to develop a draft instrument which
would attract wide ratification.39
The correspondence group has continued to work on a revised draft
protocol over the past two years. It has received comments and suggestions
from numerous states and organizations which participate in the work of the
IMO. The two articles which have been the subject of major debate and
disagreement are Article 3 bis, which sets out new offences to be added to
the Convention, and Article 8 bis, which establishes new provisions for the
boarding and search of suspect ships.

3. Proposed new offences on maritime terrorism
Article 3 bis on new offences has been through several drafts. It is intended to
add new offences which bring the Convention up to date to deal with
maritime terrorism in light of 9/11.
The draft in mid-200440 provides that there is an offence within the
meaning of the Convention if a person unlawfully and intentionally commits
certain acts with a particular intent or purpose. The purpose of the act, by its
nature or context, must be to intimidate a population, or to compel a

37
IMO Legal Committee, 84th Session, 22–26 April 2002.
38
IMO Legal Committee, 85th Session, 21–25 October 2002.
39
IMO Legal Committee, 86th Session, 28 April–2 May 2003.
40
July 2004 Intersessional Meeting, draft of 28 June 2004 (text provided to author).
ROBERT C. BECKMAN
264

government or an international organization to do or to abstain from doing
any act. Under draft paragraph 1(a), offences, if committed with that pur-
pose, occur where a person:
(i) uses against or on a ship or discharges from a ship any explosive,
radio- active material or prohibited weapon in a manner that causes
or is likely to cause death or serious injury or damage, or
(ii) discharges, from a ship, oil, liquefied natural gas, or other hazardous
or noxious substance in such quantity or concentration, that causes
or is likely to cause death or serious injury or damage, or
(iii) uses a ship in a manner that causes death or serious injury or damage; or
(iv) threatens, with or without a condition, as is provided under national
law, to commit an offence set forth in paragraph (i), (ii) or (iii).41
The most controversial of the new offences in Article 3 bis relate to the issue of
whether the SUA Protocol should make it an offence to transport WMD or
related material on board a ship if the transport of such material is done with a
specific intent. Difficulties remain over how to define what cannot be trans-
ported as well as the requisite intent. The proposed draft is set out in paragraph
1(b). It includes not only the transport of WMD, but also the transport of related
material, including equipment, materials or software intended to be used in the
design or manufacture or delivery of a prohibited weapon. Although a specific
intent is required for each subparagraph, some delegations have expressed
concern that the language is too broad and inclusive.
The United States recommended the inclusion of this provision because of
its concern for the proliferation of WMD or their delivery systems. Some
states have objected to the inclusion of this paragraph as a matter of principle
because it created offences relating to the non-proliferation of WMD or other
materials that were not directly linked to terrorism. Furthermore, it makes
the transport of component parts of WMD offences even though such trans-
port does not endanger the safety of the ship or the safety of maritime
navigation. Some states have stated that they do not consider the IMO to
be the competent forum for dealing with non-proliferation issues and they do
not consider the SUA Convention to be the proper instrument to deal with
non-proliferation issues.42
This issue was discussed at the 88th session of the Legal Committee in April
2004. Four delegations stated that they were of the view that the Committee
was acting outside the scope of the mandate given them in resolution
A.924(22) by the IMO Assembly. The delegations of India and Pakistan
registered formal reservations in this regard. Nevertheless, a substantial


41
Article 3 bis, LEG 88/3, Annex 1, 13 February 2004.
42
Report of the Legal Committee on the Work of its Eighty-Seventh Session, pages 14–20,
LEG 87/17, 23 October 2003.
INTERNATIONAL RESPONSES TO COMBAT MARITIME TERRORISM 265

majority of delegations did not support this narrow reading of the mandate
given by the resolution of the Assembly. The majority of delegations support
the inclusion of the non-proliferation provisions, and the intersessional
working group is proceeding to work to finalize with those provisions
included.43

4. Proposed new provisions on boarding of ships
Article 8 bis on boarding has also been controversial because it permits the
boarding and search of vessels in international waters (beyond the limits of
the territorial sea) if such vessels are reasonably suspected to be involved in
offences under the SUA Convention. This enforcement measure is new, as the
SUA Convention contains no provisions allowing the boarding and search of
vessels in international waters. The new boarding provision would create an
express exception to the general principle of the law of the sea that ships on
the high seas are subject to the exclusive jurisdiction of the flag state.
Concerns have been expressed that such a provision would take the SUA
Convention to a new level. Fears have also been expressed that the boarding
and search provisions might be subject to abuse.44
Many states have accepted the need for such a provision, but they have
insisted that it be narrowly drafted, and contain detailed safeguards to pre-
vent abuse. As a result, Article 8 bis has been through numerous drafts and
substantial revisions, as the United States as the head of the intersessional
correspondence group has attempted to meet the concerns expressed by
states. Article 8 bis is an attempt to balance the interests of the flag state in
controlling its vessel and the interests of the boarding state in investigating
acts of maritime terrorism.
The current draft provides that if law enforcement officers of a state party
encounter a ship in international waters which they believe has been or is
about to be involved in the commission of an offence under the Convention,
they may request the flag state to authorize them to take appropriate mea-
sures, including boarding and search. The major difficulty is caused by the
so-called ‘flags of convenience’, that is, states which register ships but do not
carry out their obligations or responsibilities seriously, as it may not be
possible to contact the appropriate authorities in such states within a reason-
able amount of time. To deal with this problem, the draft provision provides
that if the authorities in the flag state do not respond within four hours to a
request from law enforcement officers to take appropriate measures, the law
enforcement officers may proceed to board and search the suspect ship. This


43
Report of the Legal Committee on the Work of its Eighty-Eighth Session, pages 8–15, LEG
88/13, 18 May 2004.
44
Ibid.
ROBERT C. BECKMAN
266

provision providing for ‘tacit authorization’ to board and search if there is no
objection within four hours has generated much discussion and debate.45
Article 8 bis has also generated much discussion on whether the current
draft contains sufficient safeguards to prevent abuse, to limit the possible use
of force, to provide for the safety and human rights of the passengers and
crew, etc.46

5. Consistency of proposed SUA protocol with international law
The United States believes that the threat of maritime terrorism after 9/11
presents new dangers which demand new solutions and further development
of the rules of international law. It has taken the position that its objectives
can be realized through a new protocol to the SUA Convention if new
offences are created and new enforcement powers are legitimized. The
United States believes it is essential that its law enforcement officers have
the power of interdiction to board and search vessels in international waters if
persons on such vessels have been or will be involved in offences under the
SUA Convention. It is attempting to convince the international community
to create new exceptions to the existing rules governing the law of the sea as
set out in UNCLOS. This is an example of the superpower taking a genuine
multilateral approach, to work with existing international institutions to
adapt and change the rules of international law to meet the threat of maritime
terrorism.
Where the United States seems to be running into the most difficulty in the
negotiations on the proposed new protocol to the SUA Convention is with its
proposal to make the transport of WMD or their delivery systems an offence.
This is because some states believe that the IMO is not the appropriate
institution to deal with the enforcement of non-proliferation treaties. Given
this development, it is understandable that the United States is also pursuing
complementary approaches to dealing with the problem through the PSI and
through the UN Security Council. Nevertheless, it appears that a majority of
states at the IMO support the position of the United States for inclusion of
non-proliferation offences.
If the SUA Convention were amended to provide for the boarding and
search of suspect vessels on the high seas, it would be an express exception to
the principle of exclusive jurisdiction of the flag state on the high seas.
However, since treaties are binding only on states that have become parties
to them, the United States and participating states would only be able to
search vessels suspected of transporting WMD if both the boarding state and
the flag state were parties to the SUA Protocol.


45
Article 8 bis, paragraph 3, LEG 88/3, Annex I, 13 February 2004.
46
Report of Legal Committee, above note 43.
INTERNATIONAL RESPONSES TO COMBAT MARITIME TERRORISM 267

IV. Actions at the United Nations Security Council
A. Security Council Resolution 1373 of 28 September 2001
Within days of 9/11 UN Security Council Resolution 1373 was adopted on
28 September 2001.47 The Security Council stated in the resolution that it was
acting under Chapter VII of the UN Charter and that terrorism constituted a
‘threat to international peace and security’. These determinations make the
resolution legally binding on all member states. Security Council Resolution
1373 sets out a comprehensive set of measures that all member states of the
United Nations must take in order to prevent and suppress the financing of
terrorist acts. It establishes that states have a legal obligation to refrain from
providing any form of support, active or passive, to entities or persons involved
in terrorist acts. Further, it calls on all states to enhance coordination of efforts on
national, subregional, regional and international levels in order to strengthen a
global response to the challenge of international terrorism.

B. UN Security Council Resolution 1540 of 28 April 2004
Almost two years later, after many of the other actions described in this paper
had been taken, the United States returned to the UN Security Council
requesting that it adopt another resolution which it believed was necessary
to combat international terrorism. In September 2003 President Bush asked
the UN Security Council to adopt a new anti-proliferation resolution that
called upon all members of the United Nations to criminalize the prolifera-
tion of weapons of mass destruction, to enact strict controls consistent with
international standards, and to secure any and all such materials within their
own borders.48
On 28 April 2004, the UN Security Council unanimously adopted
Resolution 1540 on preventing proliferation of weapons of mass destruction.
Invoking its enforcement powers under Chapter VII of the UN Charter, it
affirmed that the proliferation of nuclear, chemical and biological weapons
constitutes a threat to international peace and security. Under the resolution
all members of the United Nations are legally bound to establish domestic
controls including legislative measures to prevent the proliferation of WMD,
in particular for terrorist purposes.49 The resolution calls upon all states, in

47
UNSC Res 1373, 28 September 2001, S/RES/1373 (2001). The text of this resolution and
other Security Council resolutions on terrorism are available at http://www.un.org/
terrorism/sc.htm.
48
Address to the UN General Assembly, 23 September 2003, http://www.whitehouse.gov/
news/releases/2003/09/20030923-4.html.
49
UN Security Council Resolution 1540, 28 April 2004, http://www.state.gov/t/np/rls/other/
31990.htm.
ROBERT C. BECKMAN
268

accordance with their national legal authorities and legislation and consistent
with international law, to take cooperative action to prevent illicit trafficking
in WMD.
Significantly, however, the resolution, at the request of the delegation from
China, contains no reference to interdiction.50 Furthermore, the statements
from UK and Indian delegations made it clear that the resolution did not
authorize use of force or enforcement action against any state or non-state
actors in the territory of another country, and that any enforcement action
would require a new decision of the Security Council.51
The United States position is that the unanimous passage of UN SCR 1540
establishes clear international acknowledgement that cooperative arrange-
ments such as PSI are both useful and necessary.
UN SCR 1540 has been used by the United States to support its arguments
that the proposed SUA Protocol should be adopted and that it should include
a provision making the transport of WMD and their delivery systems an
offence. SCR 1540 calls upon all states to take cooperative action to prevent
illicit trafficking in WMD that is consistent with international law. Shortly
after the adoption of SCR 1540 the United States amended its report to the
correspondence group to reflect the adoption of the resolution. It also sub-
mitted a White Paper on Non-Proliferation Offences to members of the
intersessional group.52

V. Conclusion
Many measures have been taken by the international community since 9/11
to enhance maritime security. Most of the measures have been initiated and
led by the United States. The United States initiated measures at the IMO and
the ILO to enhance maritime security and it has been working with those
institutions to establish new international rules and procedures to enhance
maritime security. This can only be described as a multilateral approach to
problem-solving.
At the same time, the United States has also been working on a parallel
track to enhance cooperation to strengthen maritime security by establishing
‘coalitions of the willing’ to take measures outside of the international
institutions and regimes governing those areas. Examples of this approach


50
Statement of Chinese representative Wang Guangya, 22 April 2004, reprinted in
Disarmament Documentation, Security Council Members Express ‘Doubts’ about UN
Draft Resolution on Weapons of Mass Destruction, 22 April 2004, reprinted in
www. acronym.org.uk/docs/0404/doc03.htm.
51
Statements of Adam Thomson of the United Kingdom and Vijay K. Nambiar of
India, ibid.
52
White Paper on the Non-Proliferation Offences, 1 July 2004 (paper provided to author).
INTERNATIONAL RESPONSES TO COMBAT MARITIME TERRORISM 269

to international cooperation are the CSI, PSI and bilateral ship-boarding
agreements.
The proposed new protocol to the SUA Convention would update the
Convention to deal with threats to maritime terrorism in light of develop-
ments since 9/11. The United States has had the most difficulty obtaining
international cooperation when it has attempted to use cooperative measures
designed to combat maritime terrorism that include provisions containing
non-proliferation offences. It seems likely that the draft protocol will even-
tually be adopted and will include non-proliferation offences. If the concerns
of states over the definitions of the offences and over safeguards on boarding
can be met a majority of states are likely to accept it. The work of the
intersessional group on the new protocol has ensured that most members
of the IMO are aware of its provisions and of the policy behind them.
PART THREE

Anti-Terrorism Law and Policy in Asia
13

Law and terror: Singapore stories
and Malaysian dilemmas
MICHAEL HOR



I. Law and terror
It is odd to conceive of anti-terrorism law in Malaysia and Singapore as if it
were something exceptional or extraordinary. The truth is that for as long as
independent Malaysia and Singapore have existed,1 and for some time before,
there has been in coexistence a formidable phalanx of anti-terrorism legisla-
tion. Not only has this network of laws been retained, it has gone from
strength to strength, enjoying the occasional patch to remedy governmentally
perceived flaws. Measures, once thought of as temporary and confined to
narrow situations, have defied temporal and contextual boundaries.
Legislative and (subsequently) constitutional entrenchment of anti-terrorism
law provided the framework for a pattern of executive use in contexts as
varied as the post-War armed communist, and substantially Chinese, insur-
rection to the recent efforts of the Islamic, and substantially Malay, Jemaah
Islamiyah to retaliate against the United States and its allies. It is perhaps
inevitable that individuals who were adversely affected by the use of anti-
terrorism legislation should call upon the courts for relief. The result is, on
occasion, a heroic attempt by the judges to be faithful to governmental intent,
and at the same time to demonstrate a degree of independence from the
government. This, in turn, has provoked the government to respond through
legislative and constitutional amendments, setting up a tense dialogue between
these great institutions of state. What is perhaps not immediately obvious is the
fact that successive governments in both Malaysia and Singapore have consis-
tently held the conviction that the law does matter.2 In times of stress the

1
Malaysia gained independence from Britain in 1957; Singapore ceased being a British
colony when it joined Malaysia in 1963, before becoming independent by separation
from Malaysia in 1965. On Singapore, see Lee Kuan Yew, The Singapore Story – Memoirs
of Lee Kuan Yew (Singapore, Times Editions, 1998).
2
See Rhoderick dhu Renick Jnr, ‘The Emergency Regulations of Malaya – Causes and Effect’
(1965) 6 Journal of Southeast Asian History 1–39, 18: ‘Throughout the period of the
[communist] Emergency . . . the British meticulously established the legal authority neces-
sary to insure a government of laws.’ This British tradition was itself meticulously followed
by the independent governments of Malaysia and Singapore.

273
MICHAEL HOR
274

temptation to ignore or override rules and legality is strong and it is to the
credit of these governments that they have not yielded. The product is a
substantially coherent body of jurisprudence of anti-terrorism law from
which there is much to learn about how governments and courts behave in
the times of crisis.

II. Law and the communist insurrection
Without a doubt, the seminal event in anti-terrorism law in Malaysia and
Singapore was the barrage of legislation put in place to deal with the armed
insurrection3 of the Communist Party of Malaya shortly after the end of the
Japanese occupation in the Second World War.4 Much has been written
about the course and causes of what has come to be known as ‘The
Emergency’.5 The primary motivation for the insurrection was probably a
compound of anti-colonialism, Chinese rights activism and political ideology.6
The flashpoint was the assassination of two white plantation owners in 1948.
The colonial government responded with the enactment of the Emergency
Regulations.7 It provided the legal authority underpinning a comprehensive
menu of counter-insurgency measures which would have been problematic
by the ‘normal’ laws of the land. Some of these provisions came before the


3
The communist movement was variously described by the British as banditry, insurgency
and ultimately terrorism. For an analysis of the ‘political terminology’ see Phillip Deary,
‘The Terminology of Terrorism: Malaya, 1948–52’ (2003) 34 Journal of Southeast Asian
Studies 231–47.
4
It is true that exceptional laws were put in place by the British Military Administration by
proclamation in the immediate post-Japanese Occupation period, but those set of laws
were not used for the communist insurgency – new laws passed by the relevant legislative
authority were instead passed: Renick, ‘Emergency Regulations’ 18.
5
See Anthony Short, In Pursuit of Mountain Rats (Singapore, Cultured Lotus, 2000). The
leader of the communist insurrection, Chin Peng, has published his version of the
Emergency: My Side of History (Singapore, Media Masters, 2003).
6
Simply, the British had collaborated with the communists, mostly ethnic Chinese, to
combat the Japanese occupation. After the Japanese surrender, the British set up the
Malayan Union on citizenship terms favourable to the Chinese. The Chinese, mainly recent
immigrants brought in to power the colonial economy, were then slightly outnumbered by
the Malays, who were in Malaya long before the Chinese. When the Malays opposed the
Malayan Union, the British replaced it with the Federation of Malaya, with terms distinctly
less favourable to the Chinese. The Chinese felt betrayed and those who were in the
communist movement felt that something drastic had to be done. The colonial economy
was, of course, the antithesis of the socialist ideal. The communist antipathy towards the
colonial government was naturally extended to the native leaders whom the colonial
government had groomed to take over on (what they felt was a false) independence.
7
See Renick, ‘Emergency Regulations’. Although the theatre of action was Malaya (as
Peninsula Malaysia was then known), very similar legislation was enacted in Singapore
attesting to the intimate link between the two British-controlled territories.
LAW AND TERROR 275

courts in the form of criminal prosecutions. Advocates of judicial indepen-
dence will be pleasantly surprised to discover that, even in those troubled
times, the courts were quite capable of ruling against the prosecution and in
favour of the accused.
In one instance, the courts encountered the peculiar offence of consorting
with or being found in the company of someone in illegal possession of arms
or ammunition.8 The Emergency Regulations had created what was essen-
tially a crime of guilt by association. The Court of Appeal of the Federation of
Malaya, in what must have been a bold decision at the height of the insur-
gency, declared that the prosecution had to prove that the accused knew of
the illegal possession, although this was not explicitly required in the
Regulations.9 The court could, of course, do nothing about the existence of
the offence, but it could, and it did, reject the prosecution’s protestation that
this was a crime of strict liability. Even more surprisingly, there was no
legislative response, indicating governmental acquiescence in the decision.
The offence remains unchanged in this respect to this day in the statute books
of both Malaysia and Singapore.10
This respectful tolerance, if not acceptance, of judicial limitation of the
Emergency Regulations was not universal. Some other judicial initiatives
were met with swift and stern legislative amendments.11 In one interesting
example, the Emergency Regulations had made admissible for the first time
statements made to the police in the course of investigation or custodial


8
Regulation 5(1) defined the offence in these terms: ‘Any person who consorts with or is
found in the company of another person who is carrying or has in his possession arms or
explosives [without lawful authority or excuse] in circumstances which raise a reasonable
presumption that he intends to or is about to act with, or has recently acted with, such
other person in a manner prejudicial to public safety or the maintenance of public order
shall be . . . liable to be punished with death, or with penal servitude for life and whip-
ping’. This offence departed significantly from the usual rules on complicity, and carried
three of the most severe punishments possible. In addition to the mens rea ruling discussed
in the text, the courts also sought to tighten the other elements of the offence: PP v. Wong
Kwang Soon [1948] MLJ Supp 69 (‘reasonable presumption’ meant ‘the only reasonable
presumption’); Soo Sing v. PP [1951] MLJ 143 (‘consorts’ meant something ‘more than a
casual meeting or conversation’).
9
Si Ah Fatt v. PP [1950] MLJ 161. The prosecution had pressed the strict liability con-
struction on the court.
10
Section 59(1), Internal Security Act, Chapter 143, 1985 Revised Edition (Singapore);
Section 58, Internal Security Act 1960, 1999 Reprint (Malaysia).
11
In another notable example, the courts had decided that the defence of duress applied to
the offences under the Emergency Regulations although there was no express provision
one way or the other: Subramaniam v. PP [1956] MLJ 220 (Privy Council, Malaya). The
Government eventually tired of repeated pleas of duress and amended the Regulations to
exclude that defence – this suspension of the defence of duress is now found in section 70,
Internal Security Act (Singapore); and section 69, Internal Security Act (Malaysia).
MICHAEL HOR
276

interrogation.12 For more than half a century, such evidence, normally con-
fessions, was not to be adduced to incriminate the accused in a criminal
trial.13 The redoubtable Court of Appeal of the Federation of Malaya deci-
ded that statements were nonetheless inadmissible if they had been extracted
through cross-examination – to be admissible, the police could do no more
than ask questions to clarify what the accused had said.14 This time there
was to be no governmental submission – the Regulations were amended to
allow for the admissibility of statements elicited through question and
answer.15 The courts in turn responded by requiring strict adherence to the
caution that was to be given to the accused,16 but the battle was already lost.17
This kind of legislative intransigence was to foreshadow the future.
An interesting sequel was to change, in a fundamental way, the adminis-
tration of criminal justice in both Malaysia and Singapore. The Emergency
Regulations had made police and custodial statements admissible only for the
prosecution of offences under the Regulations. Years later the government in
Singapore was to use the precedent of the Emergency Regulations in pushing
through legislation to make such statements admissible for all criminal
offences.18 If it worked so well for Emergency offences, it would work as
well for any offence. Thus it came to be that statements made to the police,

12
Regulation 33 provided that for the purpose of Emergency offences, ‘any statement,
whether such statement amounts to a confession or not or is oral or in writing, made at
any time, whether before or after such person is charged and whether in the course of a
police investigation or not, by such person to or on the hearing of any police officer of or
above the rank of Inspector shall, notwithstanding anything to the contrary contained in
any written law, be admissible at his trial in evidence’.
13
This was because of the rule excluding statements made to the police in the course of
investigation (now section 122(1), Criminal Procedure Code, Chapter 68, 1985 Revised
Edition (Singapore); the Malaysian provision was repealed in 1976 – Abdul Ghani bin
Jusoh v. PP [1981] 1 MLJ 25), and the rule excluding statements made by anyone in police
custody (now section 25, Evidence Act, Chapter 97, 1997 Revised Edition (Singapore);
section 26, Evidence Act 1950, 1999 Reprint (Malaysia)).
14
Cheng Seng Heng v. PP [1949] MLJ 175.
15
The phase ‘whether or not wholly or partly in answer to questions’ was inserted into
Regulation 33: Poon Heong v. PP [1949] MLJ 114.
16
E.g. Liew Ching v. PP [1949] MLJ 184. The caution was to warn the accused that there was
no obligation ‘to say anything or to answer any question’. The police had told the accused
that he was not obliged to say anything, but had omitted to say specifically that he need not
answer any question – the court refused to admit his statements.
17
Presumably, it was quite easy for the police to get into the habit of reading the prescribed
caution verbatim.
18
Speech of the Minister for Labour and Law, Singapore Legislative Assembly Debates,
2 Sept 1959, column 557 which resulted in amendments to the Criminal Procedure Code
along the lines of Regulation 33 (now section 122(5), Criminal Procedure Code). Malaysia
was to make the change in 1976 (see Abdul Ghani bin Jusoh v. PP [1981] 1 MLJ 25). The
direct descendant of Regulation 33 remains in the Internal Security Acts of both jurisdic-
tions: s. 76 (Singapore); s. 75 (Malaysia).
LAW AND TERROR 277

originally taboo in criminal prosecutions, have become the single most
important piece of evidence in most criminal trials. The exceptional had
been normalized, and not just for the admissibility of police statements, but
for a host of other legislation and institutions which came into being because
of the Emergency.19
Judicial decisions on the Emergency Regulations are even more striking
for what they did not deal with. Criminal prosecutions were, by most
accounts, the poorer cousins compared with a set of Emergency measures
which had little to do with the Courts. There were those, like banishment20
and the remarkable provision for collective punishment,21 which were
entirely executive and had nothing to do with the judiciary. There were
those, like detention without trial, which involved judges as members of
secret review or advisory committees.22 One perhaps need not wonder too
long about why executive detention and any other executive decision was
never challenged in court – amongst other things, there had been a then
recent, and subsequently infamous, House of Lords decision standing in the
way of any administrative action.23


III. Law and detention without trial
The Emergency itself was eventually to pass away,24 but detention without
trial, that crown jewel of Emergency measures, like the word of God, was to
remain. In Malaysia, that power was to migrate from the Emergency


19
For example, the compulsory ‘identity card’ in Malaysia and Singapore has its origins in
The Emergency (Registration Areas) Regulations 1948 as a means of combating the
insurgency, presumably in the belief that the insurgents, most of whom had taken to the
jungles, would find it difficult to register and obtain one. Failure to produce an identity
card was itself an offence: PP v. Lim Kwai Thean [1959] MLJ 179.
20
This was possible and potent because many of the insurgents were ethnic Chinese and
recent immigrants who had not been given any right to remain in Malaya.
21
Renick (‘Emergency Regulations’, 26–8) recounts the incident of General Templer, the
person subsequently credited with the defeat of the insurgents, punishing an entire town,
through curfew and reduction of rations, because he suspected that some of its residents
were holding back relevant information.
22
Ibid. 19–20.
23
In Liversidge v. Anderson [1942] AC 206, the House of Lords (barring a famous dissent)
ruled that the courts were not to inquire into the reasonableness of war time detentions –
the detaining authority’s subjective satisfaction was all that was required. See R. F. V.
Heuston, ‘Liversidge v. Anderson in Retrospect’ (1970) 86 LQR 33, and the more racy
A. W. B. Simpson, ‘Rhetoric, Reality and Regulation 18B’ [1988] Denning Law Journal 123.
The decision continues to influence (or plague, depending on one’s convictions) and
perhaps even dictate the law in Malaysia and Singapore.
24
The state of emergency declared in 1948 was officially rescinded in 1960: Short, Mountain
Rats, 495.
MICHAEL HOR
278

Regulations into the Internal Security Act.25 In Singapore it found its way
into two separate pieces of legislation: the Preservation of Public Security
Ordinance (PPSO) and the Criminal Law (Temporary Provisions) Ordinance
(CL(TP)O).26 Both were to be of limited lifespan, but the PPSO was allowed
to lapse in favour of the permanent Internal Security Act (ISA),27 and the
CL(TP)O, faithfully renewed from time to time, will soon celebrate its golden
anniversary.28 Nor has the use of the power of detention abated, although the
scale of operations has certainly decreased since the Emergency.29 It was to

25
Act No. 18 of 1960: see L. W. Athulathmudali, ‘Preventive Detention in the Federation of
Malaya’ (1961) 3 Journal of the International Commission of Jurists 100, and ‘Preventive
Detention in Malaysia’ (1965) 14 Journal du Droit International 543.
26
Respectively, Ordinances 25 and 26 of 1955. See the ironic contest preceding the passing of
the Ordinances between Singapore’s first Chief Minister David Marshall (later to be a
liberal voice) proclaiming the necessity of the legislation, and Singapore’s future Prime
Minister Lee Kuan Yew (then in the opposition) expressing disdain for what he labelled
‘an alias for the Emergency Regulations’ (at column 719): Singapore Legislative Assembly
Debates, 21 Sept 1955, columns 695–755. Lee was then allied with ‘communist’ or at least
left-wing socialist politicians, and the power of detention without trial would have been
most likely to be used against them. This proved to be true. Although Marshall had
misgivings about its use, his successors, including Lee (who eventually discarded his left-
wing confederates), did not: see Lee Ting Hui, The Open United Front – The Communist
Struggle in Singapore 1954–1966 (Singapore, South Seas Society, 1996). The deliberate
political-criminal dichotomy between detention under s. 3 of the PPSO (to prevent
conduct ‘prejudicial to the security of Malaya’) and detention under s. 30 of the
CL(TP)A (concerning ‘activities of a criminal nature’) has been officially maintained.
See also Bernard Brown, ‘Administrative Internment in Singapore’ (1961) 3 Journal of the
International Commission of Jurists 126.
27
When Singapore, and the Bornean states of Sabah and Sarawak, merged with Malaya to
constitute the Federation of Malaysia in 1963, the federal Internal Security Act was
extended into Singapore: LN 231, under section 74(1), Malaysia Act 1963. The PPSO, a
piece of legislation of limited lifespan, was renewed from 1955 till 1969. Between 1963 and
1969, both laws were in force with the result that for as long as Singapore was in Malaysia
(1963–65) detention powers under the ISA were held by the federal government, and those
under the PPSO by the state government of Singapore. When Singapore ceded from the
Federation, the ISA was continued in force, and so it remains today.
28
Chapter 67, 2000 Revised Edition. It has been renewed once every five years since 1955,
and its future looks reasonably secure: see the discussion in Parliament at the last renewal:
Parliamentary Debates, volume 70, 15 April 1999, columns 1215–28.
29
In Malaysia, for example, detentions during the Emergency ran into the hundreds, and
even thousands: Renick ‘Emergency Regulations’ 22, note 3. The largest exercise in recent
years, Operation Lalang (graphically named after a common and virtually indestructible
weed) in 1987 scored about 100 detentions, and ‘operations’ thereafter were of a smaller
scale: see Theresa Lee, ‘Malaysia and the Internal Security Act’ (2001) Singapore Journal of
Legal Studies 56, at 57–63. In Singapore, Operation ‘Coldstore’ in 1963 chalked up about
130 detentions (see Lee Ting Hui, The Open United Front, 257), while the action against
the ‘Marxist Conspirators’ in 1987 numbered a mere 16 (see Report of the International
Commission of Jurists to Singapore, 1987, The International Commission of Jurists,
Switzerland).
LAW AND TERROR 279

survive the institution of independence constitutions in both Malaya and
Singapore. Notwithstanding the inauguration of an impressive Bill of Rights,
officially called ‘Fundamental Liberties’, in these august documents,30 expli-
cit provision was made for the preservation of detention without trial.31 Like
a constitutional super-hero, the power of detention without trial to combat
‘subversion’ was given licence to over-ride almost all of the ‘Fundamental
Liberties’.32
With the rise of administrative law in the common law world,33 and the
communist armed insurgency receding from popular memory,34 it was only a
matter of time before the courts were called upon to stand between the
aggrieved detainee and the government. Early attempts in the 1960s and
1970s to persuade the judiciary to intervene were met with the resolute refusal
of the judges to be drawn into what they then saw as a purely political matter.
The ‘subjective satisfaction’ of the detaining authority was the only require-
ment for a legal detention – whether that satisfaction was reasonable or
rational was not for the courts to embark upon.35 Indeed, the original



30
Part II, Federal Constitution of Malaysia, and Part IV, Constitution of the Republic of
Singapore, 1999 Revised Edition. The ‘fundamental liberties’ are similar, but not identical
because Singapore, with some modifications, adopted the Malaysian provisions on
separation from the Federation in 1965.
31
Articles 149 and 151 of both the Malaysian Constitution and the Singapore Constitution.
Post-1965 amendments to the once very similar ‘subversion’ provisions have made them
less so.
32
These include due process, freedom of movement, freedom of speech, assembly and
association, and, with subsequent amendment, rights to property in Malaysia, and equa-
lity rights and rights against retrospectivity and double jeopardy in Singapore.
33
In the wake of several ‘landmark’ House of Lords decisions: Ridge v. Baldwin [1964] AC
40; Padfield v. Minister of Agriculture [1968] AC 997; Anisminic v. Foreign Compensation
Commission [1969] 2 AC 147, culminating in O’ Reilly v. Mackman [1983] 2 AC 237, an
influential decision in Malaysia and Singapore.
34
In Malaysia, the communist insurgency had long ceased even before the official rescission
of emergency powers in 1960. Malaysia was however to face two other unrelated crises –
the Indonesian Confrontation of 1964, and the race riots of 1969, events which presented
opportunities for the use of preventive detention. In Singapore, which was never directly
involved with the armed communist insurrection, the ‘communist threat’ was never to
really resurface after Operation Coldstore in 1963. Recent accounts contest the official
view (see Lee Ting Hui, The Open United Front; Lee Kwan Yew, Singapore Story) that those
targeted by Coldstore were indeed communist, or that if they were, they would have
contemplated unlawful attempts to achieve their political objectives: Tan Jing Quee and
Jomo K S (eds.), Comet in Our Sky – Lim Chin Siong in History (Malaysia, Insan, 2001);
Said Zahari, Dark Clouds at Dawn – A Political Memoir (Malaysia, Insan, 2001). Lim Chin
Siong and Said Zahari were key detainees in Coldstore.
35
In Singapore, Re Choo Jee Jeng [1959] MLJ 217 set the tone, declaring in respect of a PPSO
detention that ‘it was not open to the Court to inquire whether in fact [there were]
reasonable grounds for being satisfied that the detention was necessary’. More than a
MICHAEL HOR
280

detention law in Singapore had judges sitting in Appeal Tribunals with
powers to countermand a detention order. This sufficiently discomfited the
Singapore judiciary into making a special request to the legislature to relieve
them of this function.36 Matters did however come to a head in the 1980s. In
Malaysia the judges were finally persuaded that there were detentions that were
so wrong that they had to exercise their powers of judicial review to order release.
In a notable decision the Supreme Court of Malaysia37 released a detainee who
was at the centre of a bank scandal. He had been detained on the ground that the
depositors, many of whom were members of the armed forces, might otherwise
take to violence.38 The judges found this piece of security reasoning so ‘incred-
ible’ that they had to strike down the detention order.39 They were, of course,
keenly aware that the government would be gravely displeased with this result.40


decade later, in a challenge to an ISA detention, the Singapore court in Lee Mau Seng
v. Minister for Home Affairs [1969–1971] SLR 508 ruled that even if the detaining authority
had ‘arrived at his satisfaction without exercising care, caution and a sense of responsi-
bility and in a casual and cavalier manner or on vague, irrelevant or incorrect grounds and
facts’, this was ‘not a justiciable issue’. Liversidge was invoked. It also figured prominently
in the Malaysian Federal Court decision in Karam Singh v. Minister of Home Affairs [1969]
2 MLJ 129, where a bench of five judges decided that ISA detentions were purely ‘a matter
for the personal or subjective satisfaction of the executive authority’. See John Tan Chor-
Yong, ‘Habeas Corpus in Singapore’ [1960] Malaya Law Review 323; Rowena Daw,
‘Preventive Detention in Singapore – A Comment on the Case of Lee Mau Seng’ [1972]
Malaya Law Review 276; H. F. Rawlings, ‘Habeas Corpus and Preventive Detention in
Singapore and Malaysia’ [1983] Malaya Law Review 324; Tan Yock Lin, ‘Some Aspects of
Executive Detention in Malaysia and Singapore’ [1987] Malaya Law Review 237.
36
The original PPSO was amended in 1959, reducing the Appeal Tribunals to a purely
advisory role. The story is recounted in vol. 52 Parliamentary Debates, 25 Jan 1989 column
469–70, curiously by the Minister for Home Affairs in pushing through constitutional
amendments to prevent the judges, newly converted to the cause of judicial review, from
reclaiming that role. The Chief Justice had said in 1959 that ‘it is extremely undesirable for
members of the judiciary to constitute the Appeal Tribunal’. The Tribunal, renamed the
‘Advisory Board’, was eventually to regain some of its original powers when Singapore
moved from a titular to an elected presidency. If the President concurs with the Advisory
Board’s recommendation to release a detainee, the wishes of the government are over-
ridden: article 151(4), Singapore Constitution.
37
The highest court in Malaysia, originally named the Federal Court and then the Supreme
Court (in 1985 when appeals to the Privy Council were abolished), and has since 1994
reverted to its first appellation.
38
Re Tan Sri Raja Khalid bin Raja Harun [1988] 1 MLJ 182.
39
The court agreed with the trial judge, who ‘thought it to be incredible that losses sustained
by a public bank where the depositors also include members of the public at large could
result in any organized violence by the soldiers’ (at 188).
40
About six months later, the Lord President who presided over the appeal and delivered
judgment, was suspended from office and subsequently removed. It was no secret that the
government had been alarmed by a string of decisions against it (see the strange contempt
litigation against the Prime Minister over unflattering remarks about the judiciary – Lim Kit
Siang v. Dato Seri Dr Mahathir Mohamad [1987] 1 MLJ 383). Although the formal dismissal
LAW AND TERROR 281

They sought to placate the politicians by pretending that the law had not
changed.41
Just over a year later, the Singapore Court of Appeal delivered what is perhaps
the single most important constitutional decision in the history of the nation.42
The pretence of the Malaysian court was not lost on the Singapore judges who
were quick to point out that, to have achieved the result that the court did, the
test of subjective satisfaction of the detaining authority must have changed.43 A
series of detentions in 1987, twenty-seven years after the official termination of
the Emergency, set the stage. The power of detention was used in the 1960s and
1970s to deal with alleged ‘Communist United Front’ activities – communists
operating through ostensibly lawful organizations like trade unions, schools and
political parties, but who would not have stopped at merely lawful activities in
their attempt to wrest political control.44 Debate continues to rage as to whether
these operatives were indeed communist, or merely nationalists or socialists,
and as to whether they would have resorted to unlawful and violent means had
they not been detained.45 Be that as it may, the political and social fragility of
Singapore in the 1960s had for most passed into distant memory. It was in a
super-stable, economic dragon context of Singapore in the late 1980s that the
power of detention was again used – this time to deal with an alleged ‘Marxist
Conspiracy’ of what was essentially a network of Catholic social workers who
saw as their Christian duty the task of organizing and creating awareness
about social issues such as working conditions for factory workers, foreign
domestic maids, civil rights and the like.46 This they tried to do through the

of the Lord President (Tribunal Report on the Dismissal of Tun Salleh Abbas [1988] 3 MLJ
xxxiii) does not refer to these decisions, the proffered grounds were singularly unconvin-
cing, leading to the speculation that these extraordinary steps were taken because the
government could no longer rely on the judiciary to make the ‘right’ decision in a pending
lawsuit in which the political future of the Prime Minister rested. Crossing swords with the
government can have disastrous consequences on the judiciary. See F. A. Trindade, ‘The
Removal of the Malaysian Judges’ (1990) 106 Law Quarterly Review 51.
41
The court described the nature of judicial review as a ‘subjective test’, expressly rejecting
the ‘objective approach’, but proceeded to conduct a rather objective review.
42
Chng Suan Tze v. Minister of Home Affairs [1988] SLR 132. See Thio Li-ann, ‘Trends in
Constitutional Interpretation – Oppugning Ong, Awakening Arumugam?’ [1997] Sing JLS
240; Sin Boon Ann, ‘Judges and Administrative Discretion – A Look at Chng Suan Tze v.
Minister of Home Affairs’ [1989] 2 MLJ ci.
43
The Court in Chng Suan Tze said of Re Tan Sri Raja Khalid bin Raja Harun: ‘With respect,
it seems to us that despite having said that the subjective test applied, the court in actual
fact applied the objective test in evaluating and assessing the evidence.’
44
Described in detail in Lee Ting Hui, The Open United Front.
45
See Tan and Jomo, Comet in Our Sky, and Said Zahari, Dark Clouds at Dawn.
46
The official stand is best gleaned from the speeches of ministers in parliament: e.g. those of
Prime Minister Lee Kuan Yew, vol. 51 Parliamentary Debates, 27 May 1988, cols. 187–201;
1 June 1988, cols. 324–51. The view of the critics is found in the Report of the International
Commission of Jurists to Singapore.
MICHAEL HOR
282

Catholic Church, student unions, drama groups, the Law Society, and oppo-
sition political parties – all quite legal. Their sin was that their efforts might lead
to dissatisfaction with the government, destabilization, and ultimately after a
number of years, violence, public disorder and serious harm to the economy. All
this seemed a far cry from the ‘Communist United Front’ of 1960s Singapore,
but the government sought valiantly to draw the analogy. Terror and mayhem, if
it was to come to pass at all, was years away – but the government felt it had to
nip it in the bud. The detainees filed for habeas corpus.
The judgment of the Court of Appeal was a study in subtle manoeuvring. It
could have simply affirmed the subjective satisfaction rule and dismissed the
claim47 – but it did not do that. It could have departed from that rule in
favour of objective judicial review and released the detainees on the ground
that the government’s fears were too remote or ‘incredible’, much as the
Malaysian court did48 – that too it did not do. Instead, the court seized on a
technical defect in the state of the evidence for the ‘President’s satisfaction’, a
condition precedent of detentions without trial.49 There being no satisfactory
evidence of such satisfaction, the court said, the detentions were unlawful and
the detainees were ordered to be released.50 What followed this technical
ruling was extraordinary – an elaborate, and seemingly gratuitous, discussion
of substantive judicial review of detentions without trial.51 The court boldly
over-ruled precedents establishing the ‘subjective satisfaction’ school of judi-
cial review,52 and summoning support from all over the common law world,
declared that detentions were to be objectively reviewed. Those who were
detained irrationally would be released. That the courts had such a power, nay
a duty, was put in the form of a ringing celebration of the ‘rule of law’ and the
denunciation of ‘arbitrary’ executive power.53 The judgment then took


47
There would have been ample precedent for this course of action – see the decisions in
note 35.
48
Re Tan Sri Raja Khalid bin Raja Harun.
49
Section 8 of the ISA required the President (on Cabinet advice) to be ‘satisfied’ that
detention is required to prevent the detainee from ‘acting in any manner prejudicial to the
security of Singapore or any part thereof or to the maintenance of public order or essential
services therein’.
50
The degree of technicality bordered on the unreal – the affidavit filed in evidence of the
President’s satisfaction had been signed by the Permanent Secretary, the wrong official.
Curiously, a similar malady had afflicted a set of detentions in the 1960s: Lim Hock Siew v.
Minister of the Interior and Defence [1965–68] SLR 697.
51
The court said that the issues were ‘fully argued’ and that they were ‘important questions
of law’.
52
Notably, the Singapore decision in Lee Mau Seng and the Malaysian case of Karam Singh.
53
Says the court: ‘[The] notion of a subjective or unfettered discretion is contrary to the rule
of law. All power has legal limits and the rule of law demands that the courts should be able
to examine the exercise of discretionary power. If therefore the executive in exercising its
discretion under an Act of Parliament has exceeded the four corners within which
LAW AND TERROR 283

another curious turn – the court attempted to assure the government that it
was not trying to tell the executive what was or was not a threat to national
security.54 More surprisingly, the court refused to apply to the facts of the
case the new principles of judicial review which it had painstakingly pro-
pounded and defended.55
Some scholars have pondered long and deep over what the court was really
trying to do. Surely, the technical ground could not have been a serious one. There
could have been no doubt that the President was satisfied,56 and it would have
been easy enough for the court to have given the government an opportunity to
produce such evidence.57 Indeed one of the detainees chose not to advance this
argument – but had the argument foisted upon her anyway. The court must have
known that a technical victory for the detainees would prove to be Pyrrhic – there
would be no bar to a fresh detention order, this time accompanied by the
appropriate evidence should the detainee choose to challenge it again.58 The
mystery deepens with the court propounding that while objective judicial review
was the law, that exercise was not to be carried out on the facts because it was
unnecessary to do so. There could have been no doubt that from any meaningful
perspective, it was necessary to decide whether the detentions were indeed irra-
tional – where a detainee is released on substantive grounds, the government
would risk being in contempt of court if a fresh detention order were issued. It will

Parliament has decided it can exercise its discretion, such an exercise of discretion would
be ultra vires the Act and a court of law must be able to hold it to be so’ (at 156).
54
The court suggests initially that national security situations were different: ‘[Where] a
decision is based on considerations of national security, judicial review of that decision
would be precluded. . . . [What] national security requires is to be left solely to those who
are responsible for national security’. But it then reverts to normal principles of judicial
review: ‘[It] is in our judgment clear that the scope of review of the exercise of discretion
under sections 8 (detention) and 10 (revocation of suspension) of the ISA is limited to the
normal judicial review principles of ‘‘illegality, irrationality or procedural impropriety’’’.
55
On apparently technical grounds: ‘we find it unnecessary to consider whether the appel-
lants or any of them have discharged the burden of proving that the exercise of the
discretion by the President under s 8 and/or by the minister under s 10 is invalid . . . the
reason is, as we have held, that the respondents have not discharged the initial burden,
which is on them, to prove the President’s satisfaction’.
56
On the criminal standard of proof beyond reasonable doubt, there could not have been
much doubt about the President’s satisfaction (on Cabinet advice). There was much in the
newspapers and national television; the chilling televised ‘confessions’ were telecast in
prime time. The Permanent Secretary of the Ministry of Home Affairs had signed an
affidavit, and senior officers from the Attorney-General’s Chambers were in court to
defend the detentions. Between the doctrine of judicial notice and circumstantial evi-
dence, there must surely have been enough for the court to act on.
57
The court retains a discretion to allow such evidence as was available at the time of the
trial, although the discretion is to be exercised exceptionally: Tan Puay Boon v. PP [2003]
3 SLR 390. Allowing it in this case would not have caused appreciable delay, nor would it
have affected the fairness of the proceedings.
58
This was indeed what happened after the decision was announced.
MICHAEL HOR
284

probably never be known with any degree of certainty whether the judges were
hinting to the government that if the matter came before them again, they would
rule in favour of the detainees on substantive grounds. If that were indeed the
implicit message of the judgment, how did the judges predict the government
would react – by grudgingly accepting the release of the detainees, or by initiating
massive legislative and constitutional amendments to forbid objective review?
¨
Were they being naıve in expecting governmental submission, or being subtly
conspiratorial in giving the government a chance to amend the law to prevent
objective review? The tone of the judgment does not lead the reader to think that
the judges expected to be legislatively overruled. Not only did the court assert the
power of objective review, it also strongly implied that this was as it should be.59
The judges had not simply been led astray by foreign jurisprudence, as some
speeches in the legislature were later to insinuate,60 they were making constitu-
tional history by staking a claim that any meaningful construction of the rule of
law must carry with it the possibility of objective judicial review. Perhaps the
judges half-expected the government to react strongly, but felt they had to make
the constitutional point anyway, and yet leave the government with a face-saving
way out through either constitutional and legislative amendment, or a ‘voluntary’
abandonment of the detentions.
Governmental response to the court’s pronouncements was swift and sure.
The detainees had, of course, to be released, to comply with the letter of the
law – but fresh detention orders were prepared even before the detainees were
released and served on them as they were taken for a ride outside the
detention centre – a brief spell of freedom which ended with captivity when
they were conveyed back to where they started from. Massive legislative and
constitutional amendments, attempting to reverse the judges, were intro-
duced and passed at the next available sitting of Parliament.61 One of the

59
See note 53.
60
The Minister for Law, Professor S. Jayakumar said, vol. 52 Parliamentary Debates, 25 Jan
1989, cols. 466–7, that the Court of Appeal abandoned the ‘long standing position’ in Lee
Mau Seng ‘because of cases decided in the United Kingdom and other parts of the
Commonwealth’. But surely we can agree with the view of someone else without that
opinion being the cause of our own belief. There is an impressive tenacity to the rhetoric
that ‘subversive’ movements happen only because of external influence, and never because
of genuinely held indigenous beliefs. In Singapore – A Police Background (London: Crisp,
circa 1946), Rene Onraet, one of the principal architects of anti-subversion policy in
Malaya, stressed that the ‘subversive activities in Malaya were due to outside influences’.
Hence, the communist insurrection of the 1940s and 1950s and the ‘United Front’
disturbances in the 1960s and 1970s were caused by Chinese and communists outside of
Singapore, the Marxist conspirators were influenced by ‘Euro-Marxists’ and Philippine
liberation theologians, and Jemaah Islamiyah in the early 2000s was inspired by radical
Islamic influences beyond Singapore.
61
The events are recorded in Teo Soh Lung v. Minister of Home Affairs [1990] SLR 40
(Singapore CA).
LAW AND TERROR 285

detainees had already filed again for habeas corpus, but the application was
not heard until the amendments came into force.62 In the High Court, the
application was dismissed on the ground that the amendments had restored
the regime of subjective review and there was no evidence that the President
or the Cabinet was not satisfied that the detention was necessary for national
security.63 It went on appeal to the Court of Appeal, constituted identically
with the earlier one. The tone and tack this time were very different. The court
ruled that, even if the detention was reviewed objectively, the decision to
detain had passed the test of rationality. This is curious for it would have been
easy enough to have made such a ruling in the earlier decision – the facts had
not changed – and had it done so, all the parties concerned would have been
spared much time, money and anguish. Again, it is unlikely that it will be
known for certain whether and why the court changed its mind about the
rationality of the detention, but there was a distinct retreat from the lofty
constitutional sentiments of the earlier decision. Also striking is what the
court decided not to decide.64 It refused to decide whether the legislative and
constitutional amendments had indeed succeeded in precluding objective
review.65 It also refused to decide whether, if that was the intended effect, the
constitution allowed for such amendments which (might arguably) breach

62
The fresh application for habeas corpus was made before the amendments were passed,
but the new section 8D of the ISA explicitly provided that the exclusion clauses applied
‘whether such proceedings have been instituted before or after the commencement’ of the
amendment Act. It shall never be known what would have happened if the fresh applica-
tion had been given a hearing date before the amendments came into force or why the
application was not fixed for hearing before that date.
63
Teoh Soh Lung v. Minister of Home Affairs [1989] SLR 499. Chua J seemed to go out of his
way to disagree with the constitutional underpinnings of Chng Suan Tze (see above note
53): ‘A reaffirmation of principles laid down by the courts [in earlier decisions such as Lee
Mau Seng] cannot be said to be objectionable as usurping judicial power or being contrary
to the rule of law. There is no abrogation of judicial power. It is erroneous to contend that
the rule of law has been abolished by legislation and that Parliament has stated its absolute
and conclusive judgment in applications for judicial review or other actions. Parliament
has done no more than to enact the rule of law relating to the law applicable to judicial
review’ (at 515).
64
Chua J in the High Court had clearly decided all these issues in favour of the government.
So did Lai Kew Chai J in a High Court decision concerning another detainee: Cheng
Vincent v. Minister of Home Affairs [1989] SLR 499.
65
The effect of the amendments is not free from doubt. Section 8B decreed that the law ‘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’. While it is true that that was the day on which Lee
Mau Seng (which stood for subjective review) was decided, it is not entirely clear that a
High Court decision could declare the law of Singapore with finality. Lee Mau Seng could
have been wrong the day it was decided. See Ex Parte Rossminster [1980] AC 952, at 1011:
‘the time has come to acknowledge openly that the majority . . . in Liversidge
v. Anderson . . . were expediently and, at that time, perhaps, excusably, wrong’. Moreover,
MICHAEL HOR
286

some fundamental feature of the constitution.66 The economy of the judg-
ment is surprising, coming so quickly after its seemingly gratuitous ruling on
justiciability in the earlier decision. It did seem very much like a strategy of
running away to live and fight again another day. The judges eventually ruled
in favour of the government, but much thought appeared to have gone into
‘damage control’ – for the decision is of very limited precedential value in a
future case.67
What lessons are to be learnt? For the judges, there is a price to pay for
asserting themselves against a determined government, especially if the spec-
tre of legislative and constitutional amendment is never very far off.68 Some
might justifiably think that it would have been better if the judges had not
come out at that time so strongly in favour of judicial review – there would
not then have been the ‘indignity’ of legislative and constitutional amend-
ments explicitly meant to rein them in. But the dilemma was acute – if the
courts do not intervene in a case as clear as this, the thinking public might
begin to wonder if they ever will. So the judges played both ends, finding in
favour of the detainees on the law, but in favour of the government on the
facts. Only history will tell if this act of partial judicial resistance will come to
mean anything to posterity. For the executive government, one hopes that
those who are responsible for the powers of detention without trial will at
least entertain the possibility that detention of the alleged ‘Marxist
Conspirators’ was an over-reaction69 – it is one thing to learn from history,
it is quite another to be spooked by the ghost of Communist United Fronts
past. The detainees had been released after televised ‘confessions’, and then
re-detained when they alleged that the confessions were false and had been

the limitation of judicial review in section 8B(2) ‘to compliance with any procedural
requirement’ relies on a substantive-procedural distinction that has never been clear.
Taking into account an irrelevant consideration can easily be cast as a ‘procedural’ error
in that the decision maker had adopted the wrong process in arriving at the decision.
66
See Kesavananda Bharati v. State of Kerala AIR [1973] SC 1461. The idea of an implied
limitation on the power to amend ‘fundamental features’ of the constitution was fash-
ioned to deal with a situation where the government of the day can command the technical
majority to effect any constitutional amendment it chooses (as is the case in Singapore and
Malaysia today).
67
The only conceivable value it has as a precedent is the way in which it applied the
hypothetical objective test to the facts – this renders it very vulnerable to being distin-
guished on the facts.
68
See also the much more dramatic Malaysian experience, note 40.
69
The short history of the Internal Security Department on its website (http://www2.mha.
gov.sg/mha/isd/newisd_earlyyears.html) makes no mention of the ‘Marxist Conspirators’.
It is odd that a recent major operation, in terms of the number of detainees (sixteen)
receives no attention, in contrast with the operation against the members of the Jemaah
Islamiyah, involving eighteen detentions: Government press release on the Jemaah
Islamiyah members, 28 Nov. 2002, http://www2.mha.gov.sg/mha/detailed.jsp?artidÂĽ
631&typeÂĽ4&rootÂĽ0&parentÂĽ0&catÂĽ0& modeÂĽarc.
LAW AND TERROR 287

obtained by threats and inducements while in custody. They were ultimately
released when they agreed to sign statutory declarations that their earlier
confessions were true and that they were once again repentant. Were detain-
ees such as these the stuff of threats to national security? Would a reasonable
member of the thinking public have come away with the comforting assur-
ance that the government had been vigilant, or with the niggling fear that the
whole affair was tinged with official paranoia? For the legislature, it is
expected of it that when it chooses to create and sustain such powers, it is
mindful of the significant possibility that the powers, created as they were in
the context of an armed insurrection and a polity on the verge of collapse,
might be used in circumstances far less urgent. It should be especially
circumspect when it contemplates measures to eliminate any form of mean-
ingful judicial review – governments, as with individuals, have all sinned and
fallen short, some time or other.
There was to be a Malaysian ripple to the exertions of the Singapore
judges. Following the Singapore legislature’s example, its Malaysian coun-
terpart enacted similar exclusion clauses to prevent judicial review of deten-
tion without trial.70 In the wake of the detention of a former Deputy Prime
Minister, widely believed to be the result of a power struggle against the
Prime Minister, several of his supporters were subsequently detained,71 it
appeared, for allegedly plotting violent protest demonstrations. The detain-
ees filed for habeas corpus and the matter reached the Federal Court, which
thought the matter serious enough to convene a bench of five judges.72 It
was the Malaysian judiciary’s turn to be inspired by the developments in
Singapore. They could or would do nothing about the exclusion clauses
ousting review, but in a surprising turn, the court pointed out that
the exclusion clauses applied only to ministerial detention.73 They did
not immunize police detention, a species of detention which normally
precedes ministerial detention and is thought to facilitate ‘investigations’
in order to help the minister decide whether or not to impose ministerial

70
Section 8B, inserted by the Internal Security (Amendment) Act 1989, Act A739, decreed
that ‘there shall be no judicial review in any court of . . . any act done or decision made by
the Yang di-Pertuan Agong [i.e. King] or the Minister in the exercise of any discretionary
power in accordance with this Act’, except in regard to procedural requirements. The
Singapore inspiration was evident.
71
Former Deputy Prime Minister Anwar Ibrahim was himself detained. See generally,
Therese Lee, ‘Malaysia and the Internal Security Act – The Insecurity of Human Rights
After September 11’ [2002] Sing JLS 56; Nicole Fritz and Martin Flaherty, ‘Unjust Order:
Malaysia’s Internal Security Act’ (2003) 26 Fordham International Law Journal 1345.
72
It has a quorum of three judges.
73
Mohamad Ezam bin Mohamad Noor v. Ketua Polis Negara [2002] 4 MLJ 449. The decision
was all the more remarkable because the court had to overrule several of its own
precedents which had declared that police detention under section 73 was inextricably
linked with ministerial detention under section 8.
MICHAEL HOR
288

detention.74 Although the detainees had, by the time the applications
were heard, been served with ministerial detention orders, the Federal
Court was at pains to declare the prior police detention illegal. In a bold
exercise of judicial review, the court explicitly adopted the objective test
propounded by the Singapore court in Chng Suan Tze,75 and seized
upon evidence that interrogation following police detention was com-
pletely unconcerned with the alleged plans for violent demonstrations,
but had instead attempted to probe the strength of support for the
former Deputy Prime Minister. The police detention was, in adminis-
trative law terms, made mala fide and therefore illegal. However, the
court held that it could not issue an order of habeas corpus because the
detainees had, by then, been issued with ministerial detention orders.
The brinkmanship was obvious, but to what end? Notwithstanding the
rhetoric, the government had its way at the end of the day – the court
was in no mood to force the issue and actually release the detainees.76
It could not have escaped the court that the ministerial detentions were
on exactly the same grounds as the prior and now infirm police deten-
tions. Whilst of no apparent practical value, declaring the police deten-
tion illegal had at least a symbolic effect – a demonstration of judicial
resistance against the wrongful use of executive powers to detain without
trial. This must have been a big step indeed for a judiciary which had,
not too long ago, been the victim of a direct attack by the government,
resulting in the forcible removal of several of its most senior judges.77

IV. Law and emergency powers
It is a peculiarity of the constitutions of Malaysia and Singapore that there are
formally two sets of exceptional powers which may be exercised in derogation
of the usual constitutional norms. We have encountered the set of powers
against ‘subversion’ – essentially the Emergency Regulations of the communist


74
Section 73 of the ISA (Malaysia). Any police officer may arrest and detain if ‘he has reason
to believe’ that there are grounds to justify ministerial detention, or that the person ‘has
acted or is about to act or is likely to act in any manner prejudicial to the security of
Malaysia’. It is for a maximum period of sixty days. The 1989 amendments affecting
ministerial detention left section 73 untouched.
75
And again overruling its own precedents in the process.
76
That the Federal Court was unwilling to go any further was confirmed by a later decision,
Kerajaan Malaysia v. Nasharuddin Nasir [2004] 1 CLJ, where the Court again held that the
objective review of Chng Suan Tze applied only to police, not ministerial, detentions. See
also the account of (the former) Chief Justice Tun Mohamed Dzaiddin Abdullah,
‘National Security Considerations Under the Internal Security Act 1960 – Recent
Developments’ (http://www.mlj.com.my/free/articles/dzaiddin.htm).
77
See note 40.
LAW AND TERROR 289

insurgency enshrined.78 Then there are the ‘emergency powers’ proper which
follow on a declaration of emergency.79 These are far more potent than the
subversion laws – capable of overriding almost every other constitutional
provision.80 A declaration of emergency is a more overtly drastic measure,
theoretically bearing much greater political, and perhaps economic cost,81 to a
government than the use of subversion laws. Independent Singapore has been
very sparing with its use of emergency powers in its nearly forty years of
existence.82 Malaysia has used it on two major occasions – the Indonesian
Confrontation in 1964, and the 13th May race riots of 1969.83 While this record
of sparing use is commendable, what is disturbing is the strange phenomenon
of an unending emergency. Singapore was part of Malaysia when a national
emergency was declared in 1964 – Indonesia had looked unkindly upon the
creation of a federation of the former British possessions of Malaya, Sarawak,
Sabah and Singapore, and in effect initiated limited military operations to
destabilize the federation.84 When Singapore parted ways with the federation in
1965, it appears to have taken along with it the 1964 declaration of emergency


78
Article 149 in both Constitutions.
79
Article 150 in both Constitutions. In 1965, when Singapore separated from the Federation
of Malaysia, article 150 of the Malaysian document was adopted in its entirety into the
Singapore Constitution: section 6, Republic of Singapore Independence Act 1985. Revised
Edition. Both Constitutions have since been (independently) amended from time to time.
Malaysia’s original Constitution (in 1957) was much more parsimonious, allowing a state
of emergency to last no longer than two months – that was quickly amended to give it an
unlimited lifespan: Act 10 of 1960.
80
The Singapore Constitution makes an exception for constitutional provisions ‘relating to
religion, citizenship or language’ (article 150(5)). The Malaysian Constitution, in addi-
tion, states that emergency powers ‘shall not extend the powers of Parliament with respect
to any matter of Islamic law or the custom of the Malays, or with respect to any matter of
native law or customs in the State of Sabah or Sarawak’ (article 150(6A)).
81
Although the technically continuing emergencies of both Singapore and Malaysia do not
seem to have, in practice, exacted such a price.
82
The reported decisions show examples of the use of emergency legislation in Osman v. PP
[1965–68] SLR 19 (concerning events in the context of the Indonesian Confrontation,
when Singapore was part of Malaysia), and PP v. Goh Seow Poh [1972–74] SLR 461(emer-
gency offences concerning the verification of sources of publications).
83
The race riots became a seminal event in Malaysian race relations. The fuse was a victory
parade in Kuala Lumpur following a General Election in which the predominantly ethnic
Chinese opposition made impressive electoral gains. This sufficiently inflamed Malay
sentiments into sparking off a series of race riots. Speculations as to the deeper causes
continue, ranging from mischief making to the growing economic inequality. In response,
the government put in place several overt affirmative action institutions and policies.
84
Indonesian President Sukarno had opposed the formation of Malaysia in 1963, on
apparently ‘anti-colonial’ sentiments. The reasons were complex and alternative motiva-
tions might be found in Sukarno’s sympathy for communist movements and the per-
ceived need to create a diversion from domestic problems. The confrontation ended in
1966 when Sukarno himself was deposed.
MICHAEL HOR
290

together with its accompanying legislation.85 The proclamation has never been
explicitly revoked and the emergency legislation remains in the statute books,86
evidence of an official view that would come as a shock to anyone who did not
know it before – that Singapore in 2004 is still under a state of emergency and has
been for forty years. Unlike the Internal Security Act and its provision for
detention without trial, the proclamation and legislation based thereon have
escaped scrutiny. The reason is simple – its powers have, to the credit of the
government, very seldom been used.87 Yet it remains, with the result that at any
time, without a fresh proclamation, the legislature is at liberty to enact or
promulgate laws in derogation of almost all other constitutional provisions. In
addition, the existing emergency laws stand ready to be used at any time the
government thinks fit.88
The problem of a government growing obsessively attached to emergency
proclamations and powers is much more acute in Malaysia where emergency
laws are, to this day, frequently resorted to. Neither the 1964 nor the 1969
proclamations have ever been revoked, and legislation thereunder seems to
have gone from strength to strength, appearing in several updated incarna-
tions.89 The Malaysian courts have long grappled with such dubious use of
emergency powers. Matters came to a head in the late 1970s when a criminal
trial for possession of firearms, tried under emergency modifications, came
before the Privy Council, then the highest court in Malaysia.90 It was a charge
which carried a mandatory death penalty and the accused was tried under
emergency procedure, which deprived him of a preliminary inquiry and trial
by jury. In a judgment which must have annoyed the government tre-
mendously,91 the Privy Council declared that the executive promulgation
which contained the altered procedure was ultra vires – such powers having
lapsed when Parliament sat.92 This defect, though inconvenient, was easily

85
Presumably by virtue of section 13 of the Republic of Singapore Independence Act, a
continuation of ‘existing laws’ provision.
86
The Emergency (Essential Powers) Act, Chapter 90, 1985 Revised Edition, and the
subsidiary legislation made thereunder.
87
See note 82.
88
The Malaysian practice has been to proclaim a fresh emergency even though existing
emergency powers could have been used.
89
Now the Emergency (Essential Powers) Act 1979, 2001 Reprint.
90
Teh Cheng Poh v. PP [1979] 1 MLJ 50. See Vincent Hoong, ‘The Validity of Emergency Legis-
lation and the Saga of Teh Cheng Poh’s Case’ [1981] Malaya Law Review 174; L. R. Penna,
‘The Diceyan Perspective of Supremacy and the Constitution of Singapore’ [1990] Malaya
Law Review 207, 222–5. For a study pre-dating this decision, see S. Jayakumar, ‘Emergency
Powers in Malaysia: Development of the Law 1957–1977’ [1978] 1 MLJ ix.
91
Expressed in the constitutional amendments which followed quickly.
92
The point was not crystal clear on a literal reading of the constitutional provision (article
150(2)) which seemed to say only that the power of the government to make primary law
lapsed when Parliament sat – nothing explicit was said about subsidiary law.
LAW AND TERROR 291

remedied – Parliament could either itself make the procedural changes,93 or it
could pass a law delegating discretion to the executive to make subsidiary
legislation.94 The Privy Council expressly refused to deal with the much more
significant argument that the 1969 proclamation itself cannot legally be in
force because the cause of the emergency had by then clearly long lapsed into
history.95 But the court appeared to leave no doubt where it was leaning, and
this could be seen in the way it treated another very similar power of
proclamation under the Internal Security Act.96 The accused had been
charged for unlawful possession of firearms in a place proclaimed to be a
‘security area’ under the Internal Security Act. The relevance of this procla-
mation was that possession in a security area carried a mandatory death
penalty. The whole of Malaysia was declared to be a security area shortly
after race riots broke out in 1969 and this had never been revoked. Judicial
manoeuvring was again the order of the day. The Privy Council declared that
the power of proclamation of a security area under the Internal Security Act
was governed by the normal principles of administrative law97 – if the
executive was no longer convinced that the proclamation was necessary, it
would be an abuse of discretion for it not to revoke the proclamation. It then

93
As parliamentary (as opposed to executive) emergency legislation.
94
As it subsequently did. The Privy Council was unhappy with the executive continuing to
make subsidiary legislation (after Parliament sat) on the authority of its own emergency
ordinance, promulgated before Parliament sat.
95
In these terms: ‘it is unnecessary to decide whether or not they [the relevant regulations
made under the proclamation of emergency] were invalid on the alternative and more far-
reaching ground advanced by the appellant: namely, that by the time the Regulation was
made the emergency proclaimed 15 May 1969 was over and the Emergency Proclamation
of that date had ceased to be in force’.
96
Section 47(1), ISA (Malaysia) confers discretion on the executive government to make a
security area proclamation for any place ‘seriously disturbed or threatened by reason of
any action taken or threatened by any substantial body of persons, whether inside or
outside Malaysia, to cause or to cause a substantial number of citizens to fear organized
violence against persons or property’. The proclamation carried with it increased govern-
mental powers, and in the context of the case, the imposition of a mandatory death
penalty for illegal arms possession.
97
Lord Diplock wrote: ‘But, as with all discretions conferred upon the Executive by Act of
Parliament, this does not exclude the jurisdiction of the court to inquire whether the
purported exercise of the discretion was nevertheless ultra vires either because it was done
in bad faith . . . or because as a result of misconstruing the provision of the Act by which
the discretion was conferred upon him the Yang di-Pertuan Agong has purported to
exercise the discretion when the conditions precedent to its exercise were not fulfilled or,
in exercising it, he has taken into consideration some matter which the Act forbids him to
take into consideration or has failed to take into consideration some matter which the Act
requires him to take into consideration’ (at 55). Lord Diplock was well on the way to
formulating his famous ‘illegality, irrationality and procedural impropriety’ summation
in the famous ‘GCHQ’ case: Council of Civil Service Unions v. Minister for the Civil Service
[1985] AC 374.
MICHAEL HOR
292

took a curious turn and held that even if there was an abuse of discretion, the
proclamation cannot simply be declared invalid – the aggrieved had to apply
for an order of mandamus against the executive to revoke the proclamation.
No such application having been made, the court did not have to decide if
mandamus ought to issue in this case.98 It was the familiar theme of the
judiciary striking out in favour of meaningful judicial review, but shrouding
it in a result which went in favour of the government. The conceptual
implications of the judgment were, however, far-reaching. There are many
other discretions contained in both the emergency and subversion provi-
sions, amongst them the discretion of the executive to proclaim and maintain
an emergency and to promulgate emergency ordinances, and the discretion of
the legislature to enact emergency legislation, and for that matter subversion
laws like the Internal Security Act itself.99 All of them would potentially be
reviewable by the court.
All this was not lost on the government and legislative action was taken to
plug all the ‘loopholes’. The flawed emergency trial regulations were put on a
legislative footing, and the accused retried thereunder – this time with
success.100 A last ditch attempt, this time by another person accused of a
similar offence to argue that the trial modifications had breached fundamen-
tal features of the Malaysian constitution, failed.101 In a strategy that was to
foreshadow what the Singapore court was to do in the detention cases, the
Federal Court, now the highest court of the land,102 avoided making a final
ruling on that mysterious Indian constitutional doctrine of implied limita-
tions to the power of constitutional amendment103 and held that, even if there
were such a limitation on legislative power, no fundamental feature was

98
Lord Diplock’s treatment deserves quotation: ‘This, however, does not mean . . . that the
Security Area Proclamation can be treated by the court as having lapsed ipso facto as soon
as there are no longer any grounds for considering it still to be necessary . . . if he [the
government] fails to act the court has no power itself to revoke the proclamation in his
stead. This, however, does not leave the courts powerless . . . Mandamus could, in their
Lordships’ view, be sought against the members of the Cabinet requiring them to advise
the Yang di-Pertuan Agong to revoke the Proclamation . . . No such steps to obtain
revocation of the Security Area Proclamation had been taken’ (at 55).
99
Teh Cheng Poh was invoked in Singapore more than ten years later in Chng Suan Tze,
which declared the power of detention without trial to be reviewable on normal admini-
strative law principles.
100
See Teh Cheng Poh v. PP [1979] 2 MLJ 238 (Federal Court ordering a retrial); PP v. Teh
Cheng Poh [1980] 1 MLJ 251 (trial court convicting the accused).
101
Phang Chin Hock v. PP [1980] 1 MLJ 80. See note 70.
102
Recourse to the Privy Council was terminated in Malaysia soon after Teh Cheng Poh.
Singapore adopted a similar course following Chng Suan Tze; an appeal to the Privy
Council was barred as part of the package of retrospective amendments (the now repealed
section 8C of the ISA). The governments of Malaysia and Singapore were obviously
unnerved by the flowering of judicial review in the UK.
103
See note 66 above.
LAW AND TERROR 293

implicated. In addition, comprehensive ouster clauses in the form of consti-
tutional amendments were clamped into place in an effort to forestall mean-
ingful judicial review of any kind.104 To this day emergency criminal law,
substantive and procedural, is occasionally invoked by the Public Prosecutor
in Malaysia. Famously (or infamously), the unhappy dismissed Deputy Prime
Minister was charged for and convicted of an emergency offence in the late
1990s,105 some twenty years after the decision of the Privy Council. The state
of emergency, proclaimed in 1969, is, apparently, still of tremendous vitality
in Malaysia, and the courts, it appears, rendered powerless to do anything
about it.

V. Law and extraordinary times
One could be cynical about the whole enterprise of any legal analysis of anti-
terrorism measures in Singapore and Malaysia.106 Perhaps it is nothing more
than an elaborate fiction – a theatrical apology for what governments and
politicians will do in any event whatever the law or lawyers might say. Some

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