Teo Soh Lung v Minister for Home Affairs and Others

• Jurisdiction: Singapore
• Judgment Date: 25 April 1989
• Date: 25 April 1989
• Docket Number: Originating Motion No 188 of 1988
• Court: High Court (Singapore)

Teo Soh Lung

Plaintiff

and

Minister for Home Affairs and others

Defendant

[1989] SGHC 108

F A Chua J

Originating Motion No 188 of 1988

High Court

Administrative Law–Judicial review–Writ of habeas corpus–Detention on grounds of national security–Whether grounds for detention justiciable–Whether allegation of bad faith justiciable–Sections 8 (1), 8A, 8B, 8C, 8D and 10 Internal Security Act (Cap 143, 1985 Rev Ed)–Constitutional Law–Constitution–Amendment–Whether amendments valid notwithstanding possible inconsistency with fundamental liberties–Whether amendments violated basic features doctrine–Article 149 Constitution of the Republic of Singapore (1985 Rev Ed)–Constitutional Law–Equality before the law–Amendments to emergency provisions in Constitution of the Republic of Singapore (1985 Rev Ed)–Amendments to internal security legislation–Whether amendments were discriminatory and violated right to equal protection of the law–Article 12 Constitution of the Republic of Singapore (1985 Rev Ed)–Sections 8A, 8B, 8C and 8D Internal Security Act (Cap 143, 1985 Rev Ed)–Constitutional Law–Fundamental liberties–Right to life and personal liberty–Preventive detention under internal security legislation–Whether executive detention justiciable–Whether mala fidesjusticiable in context of preventive detention–Subjective test of Executive's satisfaction to justify detention–Sections 8A, 8B, 8C and 8D Internal Security Act (Cap 143, 1985 Rev Ed)–Articles 9, 11 (1), 12, 13, 14, 21, 58 (1), 93 and 149 Constitution of the Republic of Singapore (1985 Rev Ed)

The applicant had been arrested and detained for one year pursuant to a detention order issued under s 8 (1) of the Internal Security Act (Cap 143, 1985 Rev Ed) (“the ISA”), with effect from 20 June 1987. On 26 September 1987, the detention order was suspended subject to the applicant executing a bond and complying with certain conditions. On 19 April 1988, the Minister exercised his powers under s 10 of the ISA and revoked the suspension, such that the applicant was detained once again.

On 22 April 1988, the applicant applied for a writ of habeas corpus. This was heard and dismissed by the High Court, although her appeal to the Court of Appeal was allowed on the ground that there was insufficient evidence of the President's satisfaction. In reaching its conclusion, the Court of Appeal applied a subjective test of satisfaction under s 8 (1) of the ISA.

The applicant was thus released on 8 December 1988. However, the applicant was immediately rearrested under a new detention order on the same day.

In January 1989, Parliament amended Art 149 of the Constitution of the Republic of Singapore (1985 Rev Ed) (“the Constitution”) and added four new provisions (ss 8A to 8D) to the ISA. Section 8B of the ISA reaffirmed the law as laid down in Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135 (“Lee Mau Seng”), viz that a subjective test applied to determine the President's satisfaction under s 8 (1) of the ISA. The court inLee Mau Seng also held that mala fides or bad faith was not a justiciable issue in the context of the ISA.

Two issues were raised in the present case. First, whether the purported amendments to the Constitution and the ISA had the effect of depriving the applicant of her right to effective judicial review of the legality, rationality and constitutionality of her detention under the ISA. Second, if so, whether the amendments contravened the Constitution such that they were void.

Held, dismissing the motion:

(1) The purported amendments to the Constitution and the ISA had the effect of depriving the applicant of her right to judicial review of her detention under the ISA. The new s 8B (1) of the ISA reaffirmed the law governing judicial discretion as laid down in Lee Mau Seng that the subjective test applied in determining the proper exercise of the discretionary power of the President or the Minister under the ISA. Therefore, any principles inconsistent with this could not apply to the present case. The respondents could not be required to adduce any other evidence apart from the grounds and allegations of fact to prove to the court that their decision was in fact based on national security considerations. Additionally, the applicant could not challenge the respondents' decision on the basis of mala fides or bad faith because this was not a justiciable issue in the context of the ISA: at [15] and [16].

(2) Parliament had not conferred on the court a power to investigate into the good faith or otherwise of the President. Under the scheme of the ISA, Parliament had left to the Cabinet and the President acting in accordance with the advice of the Cabinet to determine whether it was necessary in the interests of national security to detain a person. Parliament had not sought in the ISA to define activities which were prejudicial to national security, and had left this matter for the Executive to determine as a matter of policy and judgment. The Executive had acted upon its jurisdiction conferred by Parliament in this case. Therefore, the court would not investigate into the good faith of the President as this would be inconsistent with the scheme intended by Parliament: at [19] and [20].

(3) The Kesavananda or basic features doctrine was not applicable to our Constitution. The power to amend our Constitution was therefore wide and unlimited. If the framers of the Singapore Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations. Article 5 of the Constitution did not impose any limitations on the power of amendment. Considering the differences in the making of the Indian and Singapore Constitutions, it could not be said that our Parliament's power of amendment was limited in the same way as the Indian Parliament's power to amend the Indian Constitution. In any case, none of the amendments complained of had destroyed the basic structure of the Constitution: at [33], [34], [47].

(4) There was no abrogation of judicial power. The purported amendments were only intended to ensure that the clear intent of Parliament was not disregarded. A reaffirmation of principles laid down by the courts could not be said to be objectionable as usurping judicial power or being contrary to the rule of law. Parliament had done no more than to enact the rule of law relating to the law applicable to judicial review. The legislation did not direct the court to enter a particular judgment or dismiss a particular case. The court was left to deal with the case on the basis of the amendments: at [48].

(5) The question whether a particular provision in any law enacted pursuant to Art 149 was designed to deal with a particular situation was non-justiciable. Preventive detention related to national security which was the responsibility of the Executive. It was clear from the Constitution and the ISA, especially after the purported amendments, that Parliament intended to leave the question as to whether preventive detention was necessary in a particular case to the subjective satisfaction of the Executive: at [49].

(6) There was nothing unlawful about the amendments to the Constitution and the ISA. The amendments were of general application and merely restored the law to what it had been all along for many years ie, the subjective test of satisfaction under s 8 (1) of the ISA: at [60].

[Observation: The new ss 8A, 8B, 8C and 8D, and s 10 of the ISA were not inconsistent with Art 12 of the Constitution. The provisions were not discriminatory since they applied to all cases of preventive detention under the ISA without exception. The abolition of the right of appeal to the Privy Council also did not deny the applicant of the right to equal protection of the law as provided under Art 12 (1) as all ISA detainees, present or future, and all parties to pending habeas corpus actions in the High Court, were equally denied the right of appeal to the Privy Council. All parties were treated equally before the law. The decision to proceed under the ISA was within the discretion of the Executive. All that equality required was that the Executive gave unbiased consideration whether to proceed under the ISA or under the ordinary law: at [55] and [58].]

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (distd)

Chng Suan Tze v Minister of Home Affairs [1988] 2 SLR (R) 525; [1988] SLR 132 (distd)

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935 (folld)

Duport Steels Ltd v Sirs [1980] 1 WLR 142; [1980] 1 All ER 529 (refd)

Endell Thomas v A-G of Trinidad and Tobago [1982] AC 113 (refd)

Government of the State of Kelantan v Government of the Federation of Malaya [1963] MLJ 355 (folld)

Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129 (refd)

Kesavananda Bharati v State of KeralaAIR 1973 SC 1461 (distd)

Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135; [1969-1971] SLR 508 (folld)

Lim Chin Chin Theresa v Inspector General of Police [1988] 1 MLJ 293 (refd)

Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 (folld)

Minerva Mills Ltd v Union of India [1981] 1 SCR 206 (distd)

Minister for Home Affairs, Malaysia v Karpal Singh [1988] 3 MLJ 29 (folld)

Moses Hinds v R [1977] AC 195 (refd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (refd)

P Sambamurthy v State of Andhra PradeshAIR 1987 SC 663 (distd)

PP v Khong Teng Khen [1976] 2 MLJ 166 (refd)

Phang Chin Hock v PP [1980] 1 MLJ 70 (refd)

R v Halliday [1917] AC 260 (folld)

Yeap Hock Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279 (refd)

Zamora, The [1916] 2 AC 77 (folld)

Constitution of the Republic of Singapore (1985Rev Ed)Arts 9, 11 (1), 12, 13, 14, 21, 58 (1), 93, 149 (consd);Arts 4, 5 (1),5 (2), 11

Constitution of the Republic of Singapore (Amendment)...