Teo Soh Lung v Minister of Home Affairs and Others

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 03 April 1990
• Neutral Citation: [1990] SGCA 5
• Docket Number: Civil Appeal No 30 of 1989
• Date: 03 April 1990
• Year: 1990
• Published date: 19 September 2003
• Plaintiff Counsel: Lord Alexander QC, Patrick Seong and George Lim (Seong Tan & Partners; Wee Tay & Lim)
• Citation: [1990] SGCA 5
• Defendant Counsel: S Tiwari, Joyce Huen and Soh Tze Bian (Attorney General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Fundamental liberties,Objective test not applicable,Basic features doctrine not conclusively decided,Subjective test adopted,Whether detention related to national security issues,Right to life and personal liberty,Judicial review,Administrative Law,Amendment,Detention under Internal Security Act,Republic of Singapore Constitution (Amendment) Act 1989,Whether Parliament may limit scope of judicial renew in internal security cases,Recent amendments having effect of ousting court's jurisdiction to review detention order,Internal Security (Amendment) Act 1989,Whether President's and Minister's satisfaction reviewable,Issues of fact,Ambit,ss 8(1), 8A & 8B Internal Security Act (Cap 143),ss 8(1), 8(A) & 8B Internal Security Act (Cap 143),Constitution,Constitutional Law

Cur Adv Vult

On 8 December 1988 in Civil Appeal No 81 of 1988 (which was decided together with Civil Appeal Nos 63, 64 and 65 and reported as Chng Suan Tze v Minister for Home Affairs [1989] 1 MLJ 69 ), we ordered the release from detention of Teo Soh Lung (who is also the appellant in this appeal) on the ground that the respondents had not adduced any admissible evidence of the President`s satisfaction that it was necessary to detain her in accordance with s 8(1) of the Internal Security Act (Cap 143) (the ISA). We did not decide whether the detention order and the revocation order would otherwise have been lawfully made.

However, in the course of our judgment we expressed the view (i) that the `objective` test was applicable to the review by the court of the satisfaction of the President under s 8(1) on GCHQ ( Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) grounds of illegality, irrationality and procedural impropriety, (ii) that although the court would not question the executive`s decision as to what national security required, the court could examine whether the executive`s decision was in fact based on national security considerations, and (iii) that similarly, although the court would not question whether detention was necessary for the purpose specified in s 8(1), the court could examine whether the matters relied upon by the executive fall within the scope of the specified purposes. We rejected the submission that the `subjective` test adopted in Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 and its progeny was applicable.

The appellant was re-arrested immediately upon her release and detained under a detention order made on the same date and effective up to 19 June 1989. The appellant commenced these proceedings for a writ of habeas corpus on 13 December 1988. On 16 December 1988, the government introduced two Bills in Parliament to amend art 149 of the Constitution of Singapore and s 8 of the ISA. These Bills were passed on 25 January 1989 and became law when they were gazetted on 26 January 1989 and 28 January 1989 respectively.

We set out below the relevant parts of art 149 of the Constitution and of s 8 of the ISA (with the amendments in italics).

Article 149 of the Constitution

(1) If an Act recites that action has been taken or threatened by any substantial body of persons, whether inside or outsideSingapore -

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property;

(b) to excite disaffection against the President or thegovernment;

(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence;

(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or

(e) which is prejudicial to the security of Singapore,

any provision of that law designed to stop or prevent that action or amendment to that law or any provision in any law enacted under the provision of clause (3) is valid notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14, or would, apart from this article, be outside the legislative power of Parliament.

(2) A law containing such a recital as is mentioned in clause (1) shall, if not sooner repealed, cease to have effect if a resois passed by Parliament annulling such law, but withprejudice to anything previously done by virtue thereof or to the power of parliament to make a new law under this article.

(3) If, in respect of any proceedings whether instituted before or after the commencement of this clause, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause

Section 8 of ISA:

(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 [as set out in paragraphs (i) to (v) therein] ...

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)-(5) are not relevant.]

8A In this Part, judicial review` includes proceedings instiby way of -

(a) an application for any of the prerogative orders of manda, prohibition and certiorari;

(b) an application for a declaration or an injunction;

(c) any writ of habeas corpus; and

(d) any other suit or action relating to or arising out of any decision made or act done in pursuance of any power conupon the President or the Minister by any provision of this Act.

8B(1) Subject to the provisions of subsection (2), the law govthe judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on 13 July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply

(2) There shall be no judicial review in any court of any act done or decision made by the President or the Minister under the provisions of this Act save in regard to any question relating to compliance with any procedural requirement of this Act governsuch act or decision

(8) C Notwithstanding the provisions of any other written law, no appeal shall lie to the Judicial Committee of her Britannic Majesty`s Privy Council in any proceedings instituted by way of judicial review in respect of any decision made or act done under this Act or in respect of any question of interpretation of the provisions of Part XII of the Constitution or any law made thereunder

(8) D Sections 8A, 8B and 8C shall apply to any proceedings instituted by way of judicial review of any decision made or act done under the provisions of this Act, whether such proceedings have been instituted before or after the commencement of the Internal Security (Amendment) Act 1989.

In the present proceedings, save for the evidence in connection with her re-arrest and re-detention, the evidence adduced by the appellant was substantially the same as that adduced in the previous proceedings. The evidence adduced by the respondents was also substantially the same as in the previous proceedings, save for the evidence in relation to the making of the new detention order. In his affidavit affirmed on 18 February 1989 and filed herein, the Minister for Home Affairs deposed, inter alia, that on 8 December 1988:

(a) the Cabinet, having reconsidered the case of the appellant, was satisfied that she had `acted in a manner prejudicial to the security of Singapore by being involved, between 1984 and May 1987, in a Marxist conspiracy to subvert the existing social and political system in Singapore, using communist front tactics with a view to establishing a Marxist state`, and that it was necessary to detain her under s 8(1) of the ISA, with a view to preventing her from acting in any manner prejudicial to the security of Singapore;

(b) the Cabinet tendered its advice to the President; and

(c) the President, on the same day, acting in accordance with the advice of the Cabinet, was so satisfied and accordingly made the detention order.

The grounds of detention on which the order was made and the allegations of fact on which the order was based set out in the statement (the `statutory statement`) required to be served (and which was served on 22 December 1988) on the appellant under s 11(2)(b) of the ISA were the same as the grounds and allegations of fact set out in the statutory statement served on her when she was first detained on 19 June 1987.

The appellant`s motion for habeas corpus was heard by FA Chua J on 6-9 March 1989. Her basic contention on the evidence was that the second detention order was made against her for the same reason that the suspension order was revoked on 19 April 1988, ie because she made the joint press statement (together with other ex-detainees) in which she denied her involvement in the alleged Marxist conspiracy.

FA Chua J dismissed the appellant`s application and held as follows:

a) Section 8B(1) affirmed the law as laid down in Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137 which, in his view, decided (i) that `the sufficiency and relevancy of the consideration upon which the executive detained the applicant under s 8(1) were matters for the subjective satisfaction of the President ... (the subjective test)`; (ii) that `mala fides` or bad faith is not a justiciable issue in the context of the ISA; and (iii) that accordingly, the respondents could not be required to adduce any other evidence apart from the grounds and allegations of fact to prove that their decision was in fact based on national security considerations.

(b) The decision to detain the appellant was not a purported decision as `the executive has acted upon its jurisdiction conferred by Parliament`, and accordingly, the Anisminic principle (Anisminic v Foreign Compensation Commission [1969] 2 AC...