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Tuesday, November 6, 2012

Y! Exclusive: Law Minister K Shanmugam on the ISA

Y! Exclusive: Law Minister K Shanmugam on the ISA

In an exclusive interview with Yahoo! Singapore, Law and Foreign Affairs Minister K Shanmugam sits down and tackles head-on tough questions within (and just beyond) his portfolio. In this first part, the minister shares his personal take on the Internal Security Act.

olding two portfolios, Law and Foreign Affairs Minister K Shanmugam is a busy man indeed.

He hasn’t yet filled the cabinets in his office at the Ministry of Foreign Affairs in Tanglin — instead stacking his three-sided desk with books and papers.

The main source of colour in his office comes from a world map, upon which red tacks indicate Singapore’s embassies around the globe. The only personal touch comes from an electronic photo frame at a corner diagonally behind where he sits that show pictures of his wife and two children, both of whom are studying abroad.

Yet, based on an interview with Yahoo! Singapore last month, the 53-year-old former senior partner at Allen & Gledhill seems to enjoy his work at both ministries.

In the one-hour meeting, he spoke on a host of hot-button topics as well as on matters related to his previous portfolio, Home Affairs, which he held for a year before taking on the foreign affairs position from his predecessor George Yeo last year.

Should the ISA be abolished?

While still at the Ministry of Home Affairs (MHA), he was frequently asked about the Internal Security Act (ISA) — a law that enables the government to detain people without trial. The issue also recently grabbed headlines when the Catholic Archbishop of Singapore retracted a letter of support he sent to activist group Function 8, when it organised an event earlier this year calling for its abolition.

Asked for his views on more controversial detentions in Singapore's history, including Operation Coldstore in 1963 and Operation Spectrum in 1987, he felt it inappropriate to offer comment on specific incidents in the past because he was not privy to the specific security considerations applicable to them.

With clearer knowledge of the situation between 2008 and 2011, however, Shanmugam is certain of the overarching rationale for the Act in the current international security environment -- that ultimately it acts as a preventive measure where security threats are discovered on classified intelligence.

With the days of mass, high-profile detentions a thing of the past, though, whether the law should stay or not, he feels, all boils down to the evaluation of which of two risks Singapore is more prepared to take.

“(The ISA) gives the power to the government to detain people without going through the due process of the courts. Once you have such a structure, is there a possibility of abuse? Of course... so that’s the risk,” he acknowledged.

However, he pointed out, “Society has got to decide between that risk, or the risk that an incident might actually occur, and then you have to ask yourself, ‘What are the consequences of each of the two risks materialising? What is the impact on Singapore?’ and then people have to choose.”

Shanmugam explained that where Singapore lacks in natural resources, it makes up for in a clean ecosystem that is friendly to businesses.

“There is no particular reason to come to Singapore, but we have created an ecosystem (here) — a regulatory framework which is clean, with good human capital and talent, and a good judicial system, rule of law, excellent logistics, clean, non-corrupt system — all these are positive factors, and underlying it all, confidence,” he said.

“If you destroy that confidence in Singapore, you create a question mark on our economy. There are many ways in which that confidence can be affected — one way, I believe, would be if there is a major terrorist incident in Singapore,” he argued.

A further reason he gives in favour of the ISA’s existence is the nature of the circumstances by which intelligence is gained on a particular security threat or suspect. The Act, he says, allows the government to “move ahead of time” and detain people even before an offence has been committed, purely on the basis of sound intelligence, information that is often classified at security levels too high to bring up in court.

Guantanamo Bay example

“The Americans acknowledge it, others acknowledge it — you get a tip-off, or if you have a mole in the organisation and as a result you get a tip-off, you’re not going to release it in court,” he said, adding that even for all the championing that America does for its constitutional rights, it practices the same thing for its prisoners in Guantanamo Bay.

Of all the U.S.’ detainees there, Shanmugam pointed out that only one of them, Khalid Sheik Mohammed, was actually brought to trial.

“Congress was very reluctant to have many detainees brought to trial in the U.S. because they didn’t want to take the security risk these detainees posed,” he said. “The U.S. has its principles of due process, constitutional rights, but they sidestep it by saying they don’t apply to people in Guantanamo because they are not Americans.”

Even in Khalid’s case, he added, the U.S. Attorney-General Eric Holder said during Khalid’s trial that if for some reason the court decided to acquit him, America would detain him anyway.

“That was the reality, (and) often much of the discussion overlooks this reality,” he said.

From this, he explained that although both Singapore and the U.S. practice detention without trial, he noted that Singapore does it in the form of the ISA, and has over time applied two levels of safeguards to the ISA: an independent advisory board led by a Supreme Court judge, which reviews the detention, and Singapore’s president, who is empowered with the ability to grant the release of a detainee without the advice of the Cabinet.

The independence of the President

Shanmugam did, however, acknowledge that some Singaporeans may not recognise the president as being fully independent.

“I’m sure there are people who think that,” he said. “But you have independent elections for the president... he’s chosen by the mandate of Singaporeans — and you take the current president, you take the previous president, they’re both people who have outstanding achievements and record of public service; it would be I think a minority of people who will not acknowledge that and who will think they are going to not be independent.”

Noting also that one of Singapore’s first elected presidents, Ong Teng Cheong, was widely respected as independent, despite being part of the government for a long period, he said also that anyone who knows the country’s current president Tony Tan would know how independent he is as well.

"He's a very strong character," he added.

Ultimately, though, he said that for any law to change, be relaxed or eventually abolished, for that matter, Singapore's wider society will need to accept and support these amendments.

"Laws always need public support to be enforceable, particularly laws of this nature," he said. "So questions on what more needs to be done (with respect to the ISA, for instance) have to be considered as society and the security environment changes, and you've got to tweak it according to the changing needs."

It’s been a long time coming, but change is underway.

In what is expected to be a landmark legislation later this month, the Singapore government is expected to abolish the mandatory death penalty (MDP) for certain homicides and drug offences. This, nearly 40 years after the law was first introduced for murder, kidnapping, drug trafficking and firearms offences.

But as Foreign Affairs and Law Minister K Shanmugam told Yahoo! Singapore in an exclusive interview recently, the proposed changes were the result of the government’s continuous review of laws and not from activist campaigning.

“This is something we do continuously. We monitor to see firstly, is it necessary, because it’s a serious penalty. Secondly, is it effective? And, thirdly, are there tweaks or changes that need to be done to this system?” he said. “Any responsible government will do this — which is what we’re doing.”

The abolition of the MDP, which was first proposed in Parliament in July and will be expected to be passed when Parliament sits again on 12 November, comes with certain conditions.

For murder, lawyers must first prove that their clients had no intention to kill. For drug trafficking, the defence must be able to prove that those charged were only transporting, sending or delivering drugs, have helped the Central Narcotics Bureau substantively or are mentally disabled.

Most importantly though, judges will now have greater discretion in meting out the death penalty.

In the case of homicides, Shanmugam explained the purpose of the MDP in those scenarios was to reduce and deter them. In that light, he noted then that there were 16 recorded ones last year, translating to a rate of 0.3 for every 100,000 people.

“Given that, we can ask, do we really need the mandatory death penalty for all homicides? So we keep it for the most serious intentional murder, but for the other kinds of homicide we say look, we can give discretion to the judges,” the 53-year-old former top lawyer pointed out.

On drug cases

For drug cases, judges too will have the ability to hand down life imprisonments instead of the death penalty, especially for cases involving a reduced level of mental faculty.

While the new legislation will give more discretion to the courts, Shanmugam pointed out that it is made clear at immigrations, whether through land or air, that Singapore’s strict drug laws are still intact.

He explained that nearly all drug offences are committed by people who have made careful calculations to do so.

“In the first place, if there is mental incapacity, you’re not even guilty because that’s a defence,” he said.

“We’re not talking about people who didn’t know what they were doing; we’re not talking about insane people; we’re not talking about people with mental incapacity. We’re talking about people with lesser IQ, or a level of diminished responsibility — that’s the technical term.

“They hide the drugs, they smuggle the drugs because they know it is illegal. They know what they are doing is wrong, so let’s be clear about that… but if there is diminished responsibility, that should be taken into account,” he said.

When the landmark legislation is passed later this month, at stake will be the lives of 34 prisoners on death row, among them the likes of 24-year-old Malaysian Yong Vui Kong and Singaporean Pathip Selvan Sugumara, who was convicted of killing his girlfriend in 2009.

Drug kingpins

“If we catch them and have evidence, we will charge them in court, and that has been done. But often they stay outside Singapore, and the few who come in or who we catch sometimes, there isn’t enough evidence to charge them in court, because the drugs are not found on them and we have to rely on someone else giving evidence. If I know you are a drug kingpin but I have nothing on you, what do I do? That’s where we detain them for maximum periods. If there is a different, better approach, tell us.”

The 14.99g rule

“The Attorney-General has the leeway to decide to charge people who carry amounts that just exceed 15g with a token figure of “14.99g” instead — a move that decides whether or not a person will face the death sentence, or 20 years of prison instead.”

“We are now giving this additional discretion (of life sentence) to judges, but the prosecution will continue to have that discretion. In a fair number of cases AG will look at the particular facts and say, okay, look — this is just above 15 grammes, or if there are peculiar reasons why for this person, discretion ought to be exercised, AG exercises it. A lot of people don’t realise this, but in a significant number of cases this discretion has been exercised and a charge for 14.99 grammes has been brought in court. The AG only proceeds on cases where he feels the death penalty really is merited — on the facts.”

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