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  • 1. Part A Bar Course Singapore Legal System & Constitutional Law 2009 QUESTIONS FOR CLASS DISCUSSION Question 1 Adam and Bernice have just returned from their studies in the United States where they had become converts to the Order of Mickey, a group that believes (a) that Mickey Mouse is the saviour of the world; and (b) that hard work is bad for the soul. Upon their return to Singapore, Adam and Bernice spread their beliefs and win a number of converts among the young, including Charlie Lee, the son of a prominent minister in the Singapore cabinet. The group meet weekly for prayer meetings at Adam’s home. Charlie’s father, who is most upset with his son’s activities, orders the police to raid Adam’s home. They dis so and found 12 individuals – including Adam, Bernice and Charlie – in prayer. They are arrested and taken to the police station. Charlie is released when his identity becomes known to the police, but everyone else is kept for questioning. In response to queries as to why they are being arrested, the police inform Adam and Bernice that (a) they are an illegal society; (b) they were members of an illegal assembly; and (c) that their cult went against the imperatives for state survival in denying the virtues of hard work. When Adam and Bernice demanded to see a lawyer, they were refused. Instead, the police interrogated them for 72 hours and prevented them from seeing anyone. At the end of questioning, they were each served with a detention order under section 8 of the Internal Security Act (ISA). It was only after this that they were allowed to see their lawyer, Gungho who advice them not to submit representations to the Advisory Board under the ISA but instead to start an action in the High Court, seeking an order for habeas corpus for unlawful detention. Advise Adam and Bernice on the following questions: (a) What fundamental liberties can they claim have been violated by their arrest and detention? (b) Can the Order of Mickey claim any special rights as a religious order? (c) On what basis, if any, can they ask a Court to grant an order of habeas corpus? (d) What effect, if any, is there that Charlie’s father was unhappy with his son’s activities and orders the raid on Adam’s home? (e) What effect, if any, is there that Charlie was released and not detained with the other members of the Sect? Question 2 Beng was tried in the High Court for operating an illegal gambling den under the Common Gaming Houses Act. While the proceedings were still going on, he was arrested by the police pursuant to section 74 of the Internal Security Act (ISA) [see Appendix A for relevant provisions]. 1
  • 2. MacGarrett, who is the Minister for Home Affairs, on reviewing the police investigations relating to Beng’s arrest, decided that Beng posed a danger to society and intends to issue a detention order against him for a period of 2 years. MacGarrett raised the proposed detention of Beng at the next Cabinet meeting and all his colleagues agreed with his assessment of the situation. MacGarrett sends the investigation reports and the minutes of the Cabinet meeting on to the President for his consideration. The recently elected President, Kong Wah, comes to the conclusion that no case has been made out against Beng as a security threat and that he should have been dealt with in the ordinary courts of law. Accordingly, Kong Wah refuses to signify his ‘satisfaction’ that Beng be detained. MacGarrett is furious by what he deemed as presidential impudence and made a speech in Parliament calling for Kong Wah to be removed as President. In the meantime, MacGarrett nonetheless proceeds to issue a detention order under section 8(1)(a) of the ISA and has it served on Beng. The order states in its allegations of fact that Beng was the operator of an illegal gambling den. The detaining officer informed Beng that if he wishes, he could make representations to the Advisory Board if he thinks he is being wrongly detained. Beng proceeded to write a long memorandum addressed to the Advisory Board members, arguing that he had a right to be presumed innocent until proven guilty, and since he had not been convicted in a court of law, the case against him was not proved. As such, his detention was bad in law. Beng’s arrest and the ensuing tussle between MacGarrett and Kong Wah were widely reported in the media. The Advisory Board members – all of whom followed the news closely – did not feel a need to consider Beng’s lengthy representations and proceeded forthwith to recommend to Kong Wah, that he continue to be detained. (a) You are Beng’s lawyer. Evaluate the possible arguments you can make before the court. AND (b) Kong Wah is worried about that he may be removed from his office. Advise him on the grounds of removal and the chances of success. Question 3 Chi, Leow, Kuan and Ravi are politicians belonging to the Singapore Reformist Party (SRP). In the 2009 general elections, they campaign as part of a four-man GRC team in Ang Mo Kio constituency which pits them against the incumbent Prime Minister and his team. In one election rally, before a crowd of almost 50,000 persons, Chi uttered, among other things, the following words: Do we have a real democracy in Singapore? For a country to be democratic, you need democratic and independent institutions. How independent can you be if you owe your huge salaries to a state dominated by a single political 2
  • 3. party? Ask yourself, will you dare challenge the Government in our courts of law? The following day, the Attorney-General initiated contempt proceedings against Chi on the ground that he had scandalized the court. Chi was fined $35,000 and jailed for a week. Shortly after the elections, Parliament passes an amendment to amend Article 45 of the Constitution to add two further grounds (new Articles 45(h) and 45(i)) for disqualification of persons seeking election as Members of Parliament. With the amendment, Article 45 will read: 45. (1) Subject to this article, a person shall not be qualified to be a Member of Parliament who – … (h) has been convicted for contempt of court and has been sentenced to imprisonment for a term of not less than one month or to a fine or not less than $10,000 and has not received a free pardon (i) was a member of a group representation team in which any one of its members has been convicted for the offence of contempt of court under clause (h) above You have been engaged as counsel for the SRP. Advise Chi and his colleagues on what possible constitutional and legal challenges they may mount against Chi’s conviction and the new constitutional provisions. 3
  • 4. Appendix A Internal Security Act Power to order detention. 8. —(1) If the President is satisfied with respect to any person that, with a view to preventing that person 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, it is necessary to do so, the Minister shall make an order — (a) directing that such person be detained for any period not exceeding two years; or (b) for all or any of the following purposes: (i) for imposing upon that person such restrictions as may be specified in the order in respect of his activities and the places of his residence and employment; (ii) for prohibiting him from being out of doors between such hours as may be specified in the order, except under the authority of a written permit granted by such authority or person as may be so specified; (iii) for requiring him to notify his movements in such manner at such times and to such authority or person as may be specified in the order; (iv) for prohibiting him from addressing public meetings or from holding office in, or taking part in the activities of or acting as adviser to any organisation or association, or from taking part in any political activities; (v) for prohibiting him from travelling beyond the limits of Singapore or any part thereof specified in the order except in accordance with permission given to him by such authority or person as may be specified in such order, and any order made under paragraph (b) shall be for such period, not exceeding two years, as may be specified therein, and may by such order be required to be supported by a bond. (2) The President may direct that the period of any order made under subsection (1) be extended for a further period or periods not exceeding two years at a time. (3) For the purposes of subsection (1), “essential services” means any service, business, trade, undertaking, manufacture or calling included in the Third Schedule. (4) Every person detained in pursuance of an order made under subsection (1) (a) or of a direction given under subsection (2) shall be detained in such place as the Minister may direct (hereinafter referred to as a place of detention) and in accordance with instructions issued by the Minister and any rules made under subsection (5). (5) The Minister may by rules provide for the maintenance and management of any place of detention and for the discipline of persons detained therein. Power to detain suspected persons. 74. —(1) Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe — 4
  • 5. (a) that there are grounds which would justify his detention under section 8; and (b) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Singapore or any part thereof. (2) Any police officer may without warrant arrest and detain pending enquiries any person, who upon being questioned by the officer fails to satisfy the officer as to his identity or as to the purposes for which he is in the place where he is found, and who such officer suspects has acted or is about to act in any manner prejudicial to the security of Singapore or any part thereof. (3) No person shall be detained under this section for a period exceeding 24 hours except with the authority of a police officer of or above the rank of assistant superintendent of police or, subject as hereinafter provided, for a period of 48 hours in all. (4) If an officer of or above the rank of superintendent of police is satisfied that the necessary enquiries cannot be completed within the period of 48 hours prescribed by subsection (3) he may authorise the further detention of any person detained under this section for an additional period not exceeding 28 days. (5) Any officer giving any authorisation under subsection (4) shall forthwith report the circumstances thereof to the Commissioner of Police; and where such authorisation authorises detention for any period exceeding 14 days the Commissioner of Police shall forthwith report the circumstances thereof to the Minister. (6) The powers conferred upon a police officer by subsections (1) and (2) may be exercised by any member of the security forces, by any person performing the duties of a guard or watchman in a protected place, and by any other person generally authorised in that behalf under section 3 of the Protected Areas and Protected Places Act. (7) Any person detained under the powers conferred by this section shall be deemed to be in lawful custody, and may be detained in any prison, or in any police station, or in any other similar place authorised generally or specially by the Minister. 5