Cheng Vincent v Minister for Home Affairs and Others

• Jurisdiction: Singapore
• Judge: Lai Kew Chai J
• Judgment Date: 31 January 1990
• Neutral Citation: [1990] SGHC 4
• Date: 31 January 1990
• Subject Matter: Satisfaction of President and minister not reviewable by the courts,Republic of Singapore Constitution (Amendment) Act 1989,Mala fides,ss 8(1), 8A & 8B Internal Security Act (Cap 143),Decision to detain to be made by executive after weighing evidence,Administrative detention,Constitutional Law,Whether justiciable issue in context of preventive detention,Parliament limiting scope of judicial review in internal security cases,Whether applicable,Internal Security (Amendment) Act 1989,Whether executive had acted ultra vires,Whether detention order may be reviewed on grounds of illegality, irrationality and unconstitutionality,Sufficiency and relevancy of evidence not justiciable issues in law of preventive detention,Administrative Law,ss 8(1), 8A a 8B Internal Security Act (Cap 143),Judicial review,Basic features doctrine,Amendment,Constitution,Ousting of judicial review of detention order,Whether amendment altered basic structure of Constitution,National security
• Docket Number: Originating Motion No 66 of 1989
• Published date: 19 September 2003
• Defendant Counsel: S Tiwari, Soh Tze Bian and Joyce Huen (Attorney General's Chambers)
• Court: High Court (Singapore)
• Plaintiff Counsel: Michael Jacob Beloff QC, Patrick Seong and Peter Low (Seong Tan & Partners; Low Yeap & Co)

Cur Adv Vult

This is an application by Vincent Cheng (applicant) for a writ of habeas corpus. The applicant has been detained since 21 May 1987 under the Internal Security Act (Cap 143) (ISA). Pursuant to the powers conferred on the President (acting on the advice of the Cabinet) under s 8(2) of the ISA, which empowers the President to direct that the period of any detention order made under s 8(1) may be extended for a further period or periods not exceeding two years at a time, the President on 16 June 1989 directed that the period of the applicant`s detention be extended until 20 June 1990. The application is based on what the applicant claims to be the illegality, the irrationality and the unconstitutionality of the decision of the Minister for Home Affairs of 19 June 1987 to detain him, purportedly under s 8 of the ISA and of the decision of the President of 16 June 1989 to extend his detention order, purportedly pursuant to s 8(2) of the ISA.

The arguments raised before me are essentially directed against first, the legal effectiveness and, secondly, against the constitutional validity of the recent amendments, to which detailed reference must unavoidably be made, so far as judicial review of ISA cases is concerned. These arguments are in several material respects similar to those raised in the High Court in a companion habeas corpus application in Teo Soh Lung v Minister for Home Affairs and Ors [ 1989] 2 MLJ 449 where FA Chua J, in a careful judgment delivered on 25 April 1989, rejected the arguments and dismissed the motion. I am exercising coordinate jurisdiction with FA Chua J in this matter and unless I am persuaded according to well-established principles to depart from the approach of FA Chua J, and unless I am persuaded in effect to rule that the detention is ultra vires the ISA by applying the objective test, quite apart from the validity or otherwise of the constitutional amendments by Act No 1 of 1989 and the effectiveness or otherwise of the amendments of the ISA by Act No 2 of 1989, which came into operation respectively on 27 and 30 January 1989, the application before me must fail.

The facts may be briefly summarized for present purposes as follows. On 21 May 1987, the applicant was arrested under the ISA. Five days later, the Ministry of Home Affairs issued a detailed press release which stated, inter alia, that `the Internal Security Department has uncovered a Marxist conspiracy to subvert the existing social and political system in Singapore through communist united front tactics to establish a communist state`. One Tan Wah Piow was named as the mastermind whose principal subordinate in Singapore was the applicant. The ministry issued further press releases on 27, 28 and 29 May 1987. On 19 June 1987, the applicant was served with an order of detention under s 8(1)(a) of the ISA for a period of two years with effect from 20 June 1987. As stated earlier, that detention order has been extended by the President to 20 June 1990.

The grounds for the detention were set out as follows:

Since 1981 you acted in a manner prejudicial to the security of Singapore by being the central figure in the Marxist conspiracy masterminded by Tan Wah Piow, to subvert the existing social and political system in Singapore, using communist united front tactics with a view to establishing a Marxist state.

The allegations of fact which the Minister for Home Affairs furnished the applicant pursuant to s 11(2)(b) of the ISA were as follows:

1 That, since your meeting with Tan Wah Piow in March 1981 in London, you carried out Tan Wah Piow`s instructions to build up a mass-based united front of grassroots organizations in Singapore to oppose the government, by violent means, if necessary.

(2) That, since October 1981, in furtherance of Tan Wah Piow`s objective, you indoctrinated student and Catholic activists in Singapore with Marxist ideas, with a view to recruiting them into the Marxist network.

(3) That, in January 1986, you formed the Coalition of Organizations for Religion and Development (CORD) in Singapore to exert influence and control over Catholic organizations and their leaders so that they could become a political pressure group and part of a united front to subvert the existing social and political system.

(4) That in November 1986, you were involved, together with some Catholic priests and activists, in forming an `ad hoc group`, in Singapore, which you intended to use to further the Marxist conspiracy.

(5) That, under the aegis of the Justice and Peace Commission (JPC) Singapore, you manipulated JPC to disseminate leftist and anti-establishment ideas to subvert the Catholic church.

The Minister for Home Affairs, in his affidavit filed in these proceedings, stated that prior to the issue of the detention order in respect of the applicant, the Cabinet considered the report of the Internal Security Department (`ISD`). The report was made by persons in the ISD who were experienced in investigating matters of the kind in hand and who were under a duty to report on the same to the government. As the Cabinet was satisfied that since 1981 the applicant had acted in a manner prejudicial to the security of Singapore, and with a view to preventing him from acting in any manner prejudicial to the security of Singapore, the Cabinet resolved that the order of detention should be made. The Cabinet therefore tendered its advice to the President of Singapore. The ISD report was also submitted to the President. The President was satisfied that an order of detention be made against the applicant. After the President`s satisfaction was conveyed to the Minister, the Minister made the order of detention dated 19 June 1987.

The applicant, though informed of his rights, did not make any representations to the advisory board pursuant to s 11(1) of the ISA. On 26 May 1988, the applicant was informed that he could appear before the advisory board on 9 June 1988 concerning the review of the order of detention relating to him. On 9 June 1988, the advisory board reviewed his detention in accordance with s 14 of the ISA. The applicant was present and was represented by his lawyer. The advisory board submitted a written report to the minister on 10 June 1988. The board reported that the applicant`s continued detention was justified.

On 8 April 1989, the applicant was informed that he could appear before the advisory board on 22 April 1989 concerning the review of the order of detention relating to him. On 22 April 1989, the board reviewed his detention according to s 13 of the ISA. He was present at the review and was represented by another lawyer. In its report dated 24 April 1989 to the minister, the board recommended that the detention of the applicant be extended for another year. On or about 31 May 1989, the President, acting in accordance with the advice of the Cabinet, being satisfied that it was necessary to continue the detention of the applicant with a view to preventing him from acting in any manner prejudicial to the security of Singapore, decided that the detention of the applicant be extended for a further period of one year with effect from 20 June 1989. A copy of the direction which extended the order of detention was duly served on the applicant.

In support of his motion, the applicant in his first affidavit denied that he had acted in any manner prejudicial to the security of Singapore. He claimed that the allegations of fact made against him were not supported by any evidence and were untrue. By para 18 of his affidavit, he said he was `retracting` his statements made to the ISD; he claimed that his admissions that he was a Marxist and that there was a network were made under duress and that force was used against him. He protested his innocence and claimed that all his activities were motivated by his Christian faith and they were in response to the call of Vatican Council II. He claimed that arts 9(1), 12(1), 14(1) and 15(1) of the Constitution of the Republic of Singapore (the Constitution) had been infringed.

In their affidavits filed on behalf of the respondents, the Permanent Secretary, Ministry of Home Affairs, and several officers of the ISD denied that the applicant was subjected to any use of force, assault, battery, duress, coercion or intimidation. In his affidavit, the case officer of the ISD assigned to the applicant`s case further stated that the applicant was informed that he would be released when he was rehabilitated and no longer posed a security threat. Contrary to what was alleged by the applicant in his affidavit, this ISD officer stated that the applicant was subjected to a systematic and reasonable programme of rehabilitation. He said he and other senior ISD officers regularly held discussions with the applicant with a view to his rehabilitation. As part of the rehabilitation programme, the applicant had also been allowed to see the prison chaplain weekly and had met six Catholic priests and a Catholic leader from time to time during his detention.

The Permanent Secretary, Ministry for Home Affairs, in his affidavit stated that the government only decided to act after careful deliberation. In its statement of 20 April 1988, the ministry stated:

ISD had monitored the principal persons, Tan Wah Piow and Vincent Cheng, since the early 1970s. In June 1986, ISD had apprised the government of the activities of Vincent Cheng and a group of radicals operating under the cover of the Catholic Church. The government took a serious view of such undesirable activities.

The Prime Minister registered his concern when the Pope was in Singapore.

On 9 July 1986, the Minister for Home Affairs warned the Archbishop, Monsignor Gregory Yong, about the problem. Despite this, Vincent Cheng and the others continued with their radical activities. Therefore, when the Pope visited Singapore on 20 November 1986, the Prime Minister took it upon

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