Chng Suan Tze v Minister of Home Affairs and Others and other appeals

• Jurisdiction: Singapore
• Judgment Date: 08 December 1988
• Date: 08 December 1988
• Docket Number: Civil Appeals Nos 63, 64, 65 and 81 of 1988
• Court: Court of Appeal (Singapore)

Chng Suan Tze

Plaintiff

and

Minister for Home Affairs and others and other appeals

Defendant

[1988] SGCA 16

Wee Chong Jin CJ

,

L P Thean J

and

Chan Sek Keong J

Civil Appeals Nos 63, 64, 65 and 81 of 1988

Court of Appeal

Administrative Law–Administrative detention–Judicial review of–Arrest and detention under Internal Security Act (Cap 143, 1985 Rev Ed)–Detainees released after suspension of operation of detention order–Rearrest and redetention of detainees following revocation of suspension direction–Detainees applying for leave to issue writ of habeas corpus–Whether exercise of discretionary power under ss 8 and 10 Internal Security Act subject to objective test and reviewable by court of law–Whether burden on Executive to produce evidence of President's satisfaction–Whether rearrest and redetention lawful–Whether detainee's detention rendered unlawful by conditions of detention–Sections 8 (1) and 10 Internal Security Act (Cap 143, 1985 Rev Ed)–Administrative Law–Judicial review–Principles involved in reviewing preventive detention cases involving national security issues–Whether subjective or objective test applicable to review of exercise of discretions under ss 8 and 10 Internal Security Act–Whether discretions under ss 8 and 10 Internal Security Act fall within precedent fact category–Whether burden of proving exercise of discretion wrong on detainee or detaining authority–Whether principle of proportionality established as separate ground for review of discretions in addition to grounds of illegality, irrationality or procedural impropriety–Constitutional Law–Fundamental liberties–Right to life and personal liberty–Arrest and detention under ss 8 and 10 Internal Security Act–Whether adoption of objective test to discretion in ss 8 and 10 Internal Security Act inconsistent with Constitution of the Republic of Singapore (1985 Rev Ed)–Articles 9, 12 (1) and 21 (1) Constitution of the Republic of Singapore (1985 Rev Ed)

The four appellants, Chng Suan Tze, Teo Soh Lung, Kevin De Souza and Wong Souk Yee were arrested in 1987 for being involved in a Marxist conspiracy to subvert and destabilise the country to establish a Marxist state, and were issued with detention orders under s 8 (1) (a) of the Internal Security Act (Cap 143, 1985 Rev Ed) (“the Internal Security Act”). The appellants were then served with statements pertaining to the grounds and allegations of fact on which their detention orders were based. Apart from Wong Souk Yee, the other appellants submitted written representations to the advisory board. However, the advisory board did not recommend that the appellants be released from the detention orders.

Nevertheless, on 26 September 1987, the Minister of Home Affairs directed that the detention orders in respect of the appellants be suspended, subject to certain conditions. After the detention orders had been conditionally suspended, the appellants gave a joint press statement to state, amongst others, a denial that they were Marxist conspirators, and that they had been ill-treated while they were detained. Consequently, the suspension of the detentions orders against the appellants was revoked. The appellants were therefore rearrested.

The appellants then applied for leave to issue writs ofhabeas corpus. Their respective applications were dismissed by the High Court. The appellants appealed against this decision, arguing that: (a) the detention order which the Minister makes under s 8 (1) of the Internal Security Act depended on the President being satisfied that it was necessary to do so for one of the purposes specified therein, and that the burden was on the respondents to produce evidence of the President's satisfaction; (b) the exercise of the discretionary power under ss 8 and 10 of the Internal Security Act was subject to an objective test and was thus reviewable by a court of law, and to discharge its burden, the Executive had to satisfy the court that there were objective facts in existence which justified the Executive's decision; (c) since s 10 of the Internal Security Act did not give any power to rearrest and redetain following the making of the revocation order, the redetention of the appellants was therefore unlawful; and (d) even if Teo Soh Lung's detention was originally lawful, it had been rendered unlawful by the conditions of her detention.

The Minister (the respondents) argued that s 8 (1) contemplated the subjective satisfaction of the President and this satisfaction was not justiciable. In support of this argument, the respondents relied on the Federal Court of Malaysia's 1969 decision in Karam Singh [1969] 2 MLJ 129 which applied a subjective test in the judicial review of administrative decisions.

Held, allowing the appeals:

(1) It was a significant feature of s 8 (1) of the Internal Security Act that two different persons were involved; the discretion whether it was necessary to detain someone for one of the specified purposes was exercisable by the President, but where he was satisfied that it was necessary to do so, the actual order was made by the Minister who in so doing exercised no discretion and merely performed an administrative function. It was true that under Art 21 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed), the President acted in accordance with the advice of the Cabinet or of a minister acting under the general authority of the Cabinet. However, that did not detract from the fact that under s 8 (1) of the Internal Security Act, the President's satisfaction was a condition precedent to the Minister's power to make the detention order. It was clear that where detention under s 8 (1) was challenged the minister must in addition to producing the detention order also produce evidence of the President's satisfaction. This was clearly so irrespective of the reviewability or otherwise of the President's satisfaction. In this case, the respondents failed to discharge the burden of proving the legality or validity of the detention orders. They failed to provide evidence of the President's satisfaction either from the President himself or by way of evidence from any Cabinet minister or the Secretary to the Cabinet (or from the authorised minister), that the Cabinet (or the authorised minister) was satisfied and that the President after receiving the advice of the Cabinet (or the authorised minister) was satisfied. The appeals were allowed on this technical ground. The appellants were accordingly discharged from custody: at [30] to [41].

(2) The Federal Court of Malaysia's decisionKaram Singh advocating the subjective discretion test was not binding because it was inconsistent with earlier decisions of the Privy Council and because it was made per incuriam: at [99]to [102].

(3) Further, Karam Singh and its progeny could no longer be good law. The notion of a subjective or unfettered discretion was contrary to the rule of law. All power had legal limits and the rule of law demanded that courts examine the exercise of discretionary power. If the Executive in exercising its discretion under an Act of Parliament exceeded the four corners within which Parliament decided it could 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 [56] and [86].

(4) It was clear that where a decision was based on national security considerations, judicial review of that decision would be precluded. In such cases, the decision would be based on a consideration of what national security required, and what national security required was to be left to those responsible for national security. However, in these cases, it had to be shown to the court that considerations of national security were involved. That is, national security considerations did not preclude the judicial function of determining whether the decision was in fact based on grounds of national security: at [89].

(5) With respect to s 8 (1) of the Internal Security Act, the decision to detain someone would be based on national security considerations and would therefore be a matter solely for the Executive's judgment. However, just as the court could determine that a decision was in fact based on national security considerations, equally, the court could determine whether the matters relied on by the Executive in the exercise of its discretion could be said to fall within the scope of s 8 of the Internal Security Act: at [93].

(6) The function of a court in the review of discretionary power depended on whether a jurisdictional or precedent fact was involved. Where no jurisdictional issue arose, the scope of review was limited to Wednesbury principles; where a jurisdictional fact issue arose, the scope of review extended to deciding whether the evidence justified the decision. Whether a particular discretionary power was subject to any jurisdictional or precedent fact depended on the construction of the legislation which created that power. In respect of ss 8 and 10 of the Internal Security Act, the scope of review of the exercise of discretion was limited to normal judicial review principles of “illegality, irrationality or procedural impropriety”: at [108] and [119].

(7) The “principle of proportionality” had not been established as a separate ground of judicial review. The dicta in the English cases suggested that it could be subsumed under “irrationality”. If a decision on the evidence was so disproportionate as to breach this principle, then such a decision could be said to be irrational in that no reasonable authority could have come to such a decision: at [121].

(8) The burden of proving that the President's or the Minister's satisfaction was illegal, irrational or procedurally improper lay on the applicant challenging such satisfaction on these grounds: at [123] and [124].

(9) The suspension direction under s 10 of the Internal Security Act merely suspended the...