Chng Suan Tze v. Minister for Home Affairs
Encyclopedia
Chng Suan Tze v. Minister for Home Affairs is a seminal case in administrative law
decided by the Court of Appeal of Singapore
in 1988. The Court decided the appeal in the appellants' favour on a technical ground, but considered obiter dicta
the reviewability of government power in preventive detention
cases under the Internal Security Act
("ISA"). The case approved the application by the court of an objective test in the review of government discretion under the ISA, stating that all power has legal limits and the rule of law
demands that the courts should be able to examine the exercise of discretionary power. This was a landmark shift from the position in the 1971 High Court
decision Lee Mau Seng v. Minister of Home Affairs, which had been an authority for the application of a subjective test until it was overruled by Chng Suan Tze.
Chng Suan Tze was followed by amendments by Parliament
to the Constitution
and the ISA in 1989 which purported to return the applicable law regarding judicial review of government discretion under the ISA to that in Lee Mau Seng. The legality of these changes was challenged in Teo Soh Lung v. Minister for Home Affairs
. In that decision, the Court of Appeal affirmed that the legislative amendments to the Act were plain and unambiguous, and thus validly established that the subjective test of judicial review now applied to internal security matters.
(ISD) during Operation Spectrum
for alleged involvement in a Marxist
conspiracy to subvert and destabilize the country. Detention orders were made against the appellants under section 8(1)(a) of the Internal Security Act
by the Minister for Home Affairs
and Law
S. Jayakumar directing that they be detained for one year. The provision empowers the Minister to make an order directing that a person be detained if the President
is satisfied that detention is necessary to prevent the person from endangering, among other things, the security or public order of Singapore.
Subsequently, the detention orders were suspended under section 10 of the ISA. However, following the release of a press statement by the appellants in which they denied the Government
's accusation that they were Marxist conspirators, the suspension directions were revoked and they were re-arrested. The revocation order stated that "in view of the statement, it is necessary in the public interest that the direction ... be revoked." The Ministry of Home Affairs later stated that investigations had established that the press statement was a political ploy to discredit the Government and that the appellants had sworn statutory declaration
s reaffirming the truth of their original statements to the ISD. The appellants' one-year detentions were subsequently extended under section 8(2) of the ISA.
In May and June 1988, the appellants unsuccessfully applied to the High Court
for leave to apply for writs of habeas corpus
. The appellants then appealed to the Court of Appeal
. The lead counsels were Geoffrey Robertson
Q.C.
for Chng, de Souza and Wong; Anthony Lester
Q.C. for Teo; and Sivakant Tiwari
for the respondents.
The following issues were raised in the appeals:
, or legal point in the case which determined the judgment, was a narrow one. The appeals were allowed on the ground that the Minister had not discharged the burden of proving the validity of the detention orders. Under section 8(1) of the ISA, the President's satisfaction that a person poses a national security risk is a condition precedent
to the Minister's power to make a detention order. The Minister attempted to demonstrate that the President had been so satisfied before the detention order was made by pointing to the fact that the recitals
in the detention orders stated that the President "is satisfied", and by filing an affidavit
by the Permanent Secretary to the Minister for Home Affairs which asserted that the "government" was satisfied that the appellants were a danger to national security. However, the Court of Appeal found that this was inadmissible evidence
as it amounted to hearsay
. Furthermore, as regards the affidavit, the satisfaction of the Government was not the same as the President's satisfaction.
, having already allowed the appeals on the ground that the respondents had not discharged their burden of proving the President's satisfaction.
The Court of Appeal rejected the application of the subjective test in favour of the objective test on the following grounds. Firstly, the Court held that Karam Singh and other cases following it were no longer good law in so far as they applied Liversidge v. Anderson and Greene v. Secretary of State for Home Affairs, which were World War II
cases from the United Kingdom. The House of Lords
and the Privy Council
had since recognized that the majority judgments in Liversidge and Greene had been wrong, and preferred Lord Atkin's dissenting judgment
in Liversidge which advocated the objective approach.
Secondly, the Court concurred with judicial opinion expressed in other Commonwealth
jurisdictions that courts can objectively review the executive's exercise of discretion in the context of preventive detention on national security grounds. Cases from Zimbabwe
, South-West Africa, and St. Christopher, Nevis and Anguilla
were referred to with approval.
Thirdly, applying the subjective test in reviewing the exercise of discretion under the ISA would mean giving the executive arbitrary powers of detention, rendering such powers unconstitutional and void. The ISA was enacted pursuant to Article 149(1) of the Constitution
which, at the time Chng Suan Tze was decided, stated that any provision of a law designed to stop or prevent a number of specified actions threatening national security was valid notwithstanding that it was inconsistent with three of the fundamental liberties protected by the Constitution, or would, apart from Article 149(1) itself, be outside the legislative power of Parliament
. However, the Article did not protect the validity of sections 8 and 10 of the ISA against any inconsistency with Article 12(1) of the Constitution
, which guarantees equality before the law and equal protection of the law. In Ong Ah Chuan v. Public Prosecutor (1980), the Privy Council held that the word law in Article 12, among other provisions, refers to a system of law which incorporates fundamental rules of natural justice
that had formed part and parcel of the common law
of England that was in operation in Singapore at the commencement of the Constitution. The Court of Appeal expressed the view that although sections 8 and 10 of the ISA were not arbitrary because they permitted detentions only for specific purposes which bore a reasonable relation to the object of the law, if a court could not review the exercise of the discretion, "that discretion would be in actual fact as arbitrary as if the provisions themselves do not restrict the discretion to any purpose and to suggest otherwise would in our view be naive". Therefore, if a subjective test was applied, that would allow for arbitrary detention which would result in inconsistency with Article 12(1).
Fourthly, support for the applicability of the objective test was found in Teh Cheng Poh v. Public Prosecutor, a Privy Council decision on appeal from Malaysia, in which it was held that "as with all discretions conferred upon the executive by Act of Parliament, [the Malaysian ISA
] does not exclude the jurisdiction of the courts to inquire whether the purported exercise of the discretion was nevertheless ultra vires
either because it was done in bad faith ... or because as a result of misconstruing the provision of the Act".
Finally, the Court was also of the opinion that "the notion of a subjective or unfettered discretion is contrary to the rule of law
" because "all power has legal limits", and therefore the exercise of discretionary power warrants court examination. Furthermore, the ISA did not contain any ouster clause applicable to section 8 or 10. The Court also refuted the argument that accountability to Parliament was an alternative safeguard against the executive abusing its powers under the ISA, citing Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. (1982):
(1985), also known as the GCHQ
case. The Court noted that the scope of judicial review depends on whether a jurisdictional or precedent fact is involved. Where no jurisdictional fact is involved, the scope of review is limited to the GCHQ grounds. Where a jurisdictional fact issue arises, the scope of review extends to deciding whether the precedent fact has been established. Whether a particular discretionary power is subject to any jurisdictional fact depends on the construction of the legislation which creates that power.
The appellants argued that the discretion conferred on the President and the Minister for Home Affairs by sections 8 and 10 of the ISA could only be exercised if the fact – which was jurisdictional in nature – that the appellants were likely to act or to continue acting in a manner prejudicial to Singapore's security could be objectively established. However, the Court concluded that the discretion conferred by the ISA on the President and the Minister for Home Affairs by those provisions, properly construed, did not involve a jurisdictional fact. Section 8(1) had expressly entrusted to the President the decision as to whether or not a detainee was likely to act or to continue acting in a manner prejudicial to national security, and section 10 had entrusted to the Minister the decision whether on available evidence a revocation order was necessary in the public interest. In any case, it could not have been Parliament's intent to leave the issue of whether a detainee was likely to act or continue acting in a manner prejudicial to Singapore's security to be objectively determined as a fact by a court of law. The Court said: "It hardly needs any emphasis that the judicial process is unsuitable for reaching decisions on national security."
The Court also rejected the proposition that the principle of proportionality
be recognized as a separate ground for judicial review. Rather, it should be subsumed under irrationality, in the sense that if an executive decision is disproportionate it can be said to be irrational in that no reasonable authority could have come to such a decision.
or an authorized minister, was satisfied that the detention was necessary for national security purposes, and by the production of the detention order. Once the detaining authority had discharged the initial burden of proof, a burden of proof fell on the appellants to challenge their detention on GCHQ grounds.
in favour of the detainees' liberty, the court could not imply a power of arrest and detention into section 10 when Parliament had not provided for it. The Court of Appeal took the view that once a suspension direction under section 10 is revoked, the original detention order becomes operative again. The power to arrest and detain is conferred by the detention order itself.
lawful can become unlawful if the nature or conditions of the detention fall below some minimum standard of treatment, but that extremely inhuman conditions must be shown to exist. In general, where the manner in which the detention is conducted is alleged to be unlawful, the detainee's remedy is to challenge the validity of the conditions of the detention, not the lawfulness of the detention itself.
into Parliament to amend the Constitution and the ISA to reverse the effect of the Chng Suan Tze judgment. The bills were enacted on 25 January 1989, with the constitutional amendments taking effect on 27 January, and the ISA amendments taking effect from 30 January 1989.
The constitution amendment bill inserted a new Article 149(3) into the Constitution which provided that any question as to the validity of any exercise of executive discretion with respect to any law referred in Article 149 (which included ISA) was to be "determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose", a reference to the 1989 amendments to the ISA. In addition, nothing in Article 93 – which provides that "judicial power of Singapore" is "vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force" – invalidated such provisions. Article 149(1) itself was also amended to state that inconsistency with various fundamental liberties guaranteed by the Constitution did not affect the validity of a law designed to stop or prevent action threatening national security, or "any amendment to that law or any provision in any law enacted under the provision of clause (3) [that is, Article 149(3)]". The list of fundamental liberties referred to in Article 149(1) was extended to include Article 11, which prohibits retrospective criminal laws and repeated criminal trials, and Article 12, which protects equality before the law and equal protection of the law.
Judicial review of preventive detention pursuant to the ISA was curtailed by the insertion of sections 8A to 8D. Section 8A defined judicial review in the Act to mean applications for the prerogative orders
of mandamus
, prohibition
and certiorari
; applications for a declaration
or an injunction
; writs of habeas corpus; and "any other suit or action relating to or arising out of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any provision of this Act". The section was presumably intended to cover all possible court applications that might be brought against executive directions and orders made under the ISA.
Section 8B(1) returned the law governing judicial review to that "applicable and declared in Singapore on the 13th day of July 1971", the day Lee Mau Seng was decided. In addition, the provision stated that no decision on or after the date from any other Commonwealth country would apply in Singapore. This was intended to overturn the dicta in Chng Suan Tze that an objective test was to be preferred, and to restrict the courts to applying the subjective test. Section 8B(2) further entrenched this by limiting judicial review only to questions of "compliance with any procedural requirement of [the ISA]".
Further, section 8C abolished all appeals to the Privy Council relating to "any decision made or act done under" the ISA in respect of "any question of interpretation of the provisions of Part XII of the Constitution or any law made thereunder", which included Article 149. This prevented any appeals to the Privy Council that questioned the constitutionality of the amendments to the Constitution and the ISA. Section 8C was repealed after all appeals to the Privy Council from Singapore were abolished in 1994. Finally, section 8D provided for the retrospective application
of the amendments to the ISA to any proceedings for judicial review of any decision made or act done under the Act made before the 1989 amendments.
The legality of the amendments to the Constitution and ISA was unsuccessfully challenged by Teo in Teo Soh Lung v. Minister for Home Affairs
(1989–1990) and by another detainee, Vincent Cheng, in Cheng Vincent v. Minister for Home Affairs (1990).
The principle that the correct test in judicial review proceedings is an objective one continues to apply in cases not involving the Internal Security Act. In Kamal Jit Singh v. Minister for Home Affairs, the Court of Appeal remarked that, following Chng Suan Tze, the power of the Minister for Home Affairs under section 30(a) of the Criminal Law (Temporary Provisions) Act to order the preventive detention of a person was dependent on the Minister's objective, and not subjective, satisfaction that the person was associated with criminal activities.
Professor Thio Li-ann
notes that this represented "an attempt to 'freeze' the common law, whose very nature is to evolve incrementally". Furthermore, adopting the position of the majority in Liversidge v. Anderson meant applying a test formulated in World War II Britain in modern peace-time Singapore.
During the Second Reading of the Constitution of the Republic of Singapore (Amendment) Bill, the Minister for Home Affairs and Law
S. Jayakumar said that the Singapore courts had no choice but to apply United Kingdom and other Commonwealth precedents because if they ignored them, the Privy Council would probably overrule the Court of Appeal. However, it has been noted that contrary to this suggestion, the Court of Appeal in Chng Suan Tze came to its decision after "a well-reasoned, careful examination of Commonwealth precedents".
which recognizes the limits of judicial review in politically sensitive issues better left to the discretion of the executive.
It has also been argued that by introducing an ouster clause into the ISA, an externally imposed restraint on the judiciary, Parliament has exhibited distrust towards the judiciary's ability to exercise self-restraint in dealing with ISA cases.
In purporting to reverse the Court's decision, the 1989 amendments have been criticized for being contrary to the rule of law. Thus, it has been commented that by amending Article 149 to include a "notwithstanding" clause, the Government had in fact exempted anti-subversion laws enacted under Part XII of the Constitution from the operation of various constitutional provisions. Furthermore, by deeming that such laws were not outside legislative power, Parliament and not the Constitution is supreme where the making of such "special powers" laws is concerned. Also, this gives the executive "a draconian power without any substantial checks".
In response to the potential for abuse of the wide powers conferred upon the executive, the Minister for Home Affairs and Law argued that the judiciary could not be an effective check as a bad government could abuse all discretionary powers and "pack the courts", rendering a judicial remedy "highly illusory". In his opinion, the best safeguard against abuse was for citizens "to ensure that the Government elected is composed of men of integrity, honesty and incorruptibility". However, this differed from his position 22 years ago where he recognized the possibility of an authoritarian, arbitrary government coming into power, and the need for a written constitution which protected citizens against its oppressive measures The subsequent affirmation of the constitutionality of the amendments in Teo Soh Lung has also been criticized as a commitment to "an anaemic version of the Rule of Law".
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
decided by the Court of Appeal of Singapore
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
in 1988. The Court decided the appeal in the appellants' favour on a technical ground, but considered obiter dicta
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
the reviewability of government power in preventive detention
Preventive detention
Preventive detention is an imprisonment that is not imposed as the punishment for a crime, but in order to prevent a person from committing a crime, if that person is deemed likely to commit a crime....
cases under the Internal Security Act
Internal Security Act (Singapore)
The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
("ISA"). The case approved the application by the court of an objective test in the review of government discretion under the ISA, stating that all power has legal limits and the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
demands that the courts should be able to examine the exercise of discretionary power. This was a landmark shift from the position in the 1971 High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
decision Lee Mau Seng v. Minister of Home Affairs, which had been an authority for the application of a subjective test until it was overruled by Chng Suan Tze.
Chng Suan Tze was followed by amendments by Parliament
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
to the Constitution
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
and the ISA in 1989 which purported to return the applicable law regarding judicial review of government discretion under the ISA to that in Lee Mau Seng. The legality of these changes was challenged in Teo Soh Lung v. Minister for Home Affairs
Teo Soh Lung v. Minister for Home Affairs
Teo Soh Lung v. Minister for Home Affairs is the name of two cases of the Singapore courts, a High Court decision delivered in 1989 and the 1990 judgment in the appeal from that decision to the Court of Appeal. The cases were concerned with the constitutionality of amendments made to the...
. In that decision, the Court of Appeal affirmed that the legislative amendments to the Act were plain and unambiguous, and thus validly established that the subjective test of judicial review now applied to internal security matters.
Facts and legal issues
Between May and June 1987, the appellants Chng Suan Tze, Kevin Desmond de Souza, Teo Soh Lung and Wong Souk Yee were arrested by the Internal Security DepartmentInternal Security Department
The Internal Security Department is a domestic intelligence agency of the Ministry of Home Affairs of Singapore. It was formerly part of the Ministry of Interior and Defence until it was split on 11 August 1970...
(ISD) during Operation Spectrum
Operation Spectrum
Operation Spectrum was launched on May 21, 1987 by Singapore's Internal Security Department using the Internal Security Act . 16 people were arrested for their involvement in what was described as a "Marxist conspiracy". On June 20, 1987, four of the original 16 were released and six more were...
for alleged involvement in a Marxist
Marxism
Marxism is an economic and sociopolitical worldview and method of socioeconomic inquiry that centers upon a materialist interpretation of history, a dialectical view of social change, and an analysis and critique of the development of capitalism. Marxism was pioneered in the early to mid 19th...
conspiracy to subvert and destabilize the country. Detention orders were made against the appellants under section 8(1)(a) of the Internal Security Act
Internal Security Act (Singapore)
The Internal Security Act of Singapore is a law that allows the Singapore government to investigate security threats like international terrorism, foreign subversion, espionage and acts of violence or hatred using race or religion...
by the Minister for Home Affairs
Ministry of Home Affairs (Singapore)
The Ministry of Home Affairs is a ministry of the Government of Singapore responsible for public safety, civil defence and immigration. It is also known as the Home Team. It is headed by the Minister for Home Affairs....
and Law
Ministry of Law (Singapore)
The Ministry of Law is a ministry of the Government of Singapore responsible for ensuring that Singapore's legal infrastructure is clear, efficacious and transparent...
S. Jayakumar directing that they be detained for one year. The provision empowers the Minister to make an order directing that a person be detained if the President
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
is satisfied that detention is necessary to prevent the person from endangering, among other things, the security or public order of Singapore.
Subsequently, the detention orders were suspended under section 10 of the ISA. However, following the release of a press statement by the appellants in which they denied the Government
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
's accusation that they were Marxist conspirators, the suspension directions were revoked and they were re-arrested. The revocation order stated that "in view of the statement, it is necessary in the public interest that the direction ... be revoked." The Ministry of Home Affairs later stated that investigations had established that the press statement was a political ploy to discredit the Government and that the appellants had sworn statutory declaration
Statutory declaration
A statutory declaration is a legal document defined under the law of certain Commonwealth nations. It is similar to a statement made under oath, however, it is not sworn....
s reaffirming the truth of their original statements to the ISD. The appellants' one-year detentions were subsequently extended under section 8(2) of the ISA.
In May and June 1988, the appellants unsuccessfully applied to the High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
for leave to apply for writs of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. The appellants then appealed to the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
. The lead counsels were Geoffrey Robertson
Geoffrey Robertson
Geoffrey Ronald Robertson QC is an Australian-born human rights lawyer, academic, author and broadcaster. He holds dual Australian and British citizenship....
Q.C.
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
for Chng, de Souza and Wong; Anthony Lester
Anthony Lester, Baron Lester of Herne Hill
Anthony Paul Lester, Baron Lester of Herne Hill, QC is a British politician and member of the House of Lords, and a member of the Liberal Democrats....
Q.C. for Teo; and Sivakant Tiwari
Sivakant Tiwari
Sivakant Tiwari, P.P.A., P.B.S., P.P.A., P.J.G. , known professionally as S. Tiwari, was a senior legal officer of the Singapore Legal Service. He was educated at the University of Singapore, graduating in law in 1971...
for the respondents.
The following issues were raised in the appeals:
- Whether the Minister for Home Affairs' discretionary power under sections 8 and 10 of the ISA to issue a detention order, suspend the order and revoke the suspension is reviewable by a court of law.
- Whether the re-detention of the appellants was lawful under section 10 of the ISA.
- Whether Teo's detention, even if originally lawful, had been rendered unlawful by the conditions of her detention.
Ratio decidendi
The ratio decidendiRatio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
, or legal point in the case which determined the judgment, was a narrow one. The appeals were allowed on the ground that the Minister had not discharged the burden of proving the validity of the detention orders. Under section 8(1) of the ISA, the President's satisfaction that a person poses a national security risk is a condition precedent
Condition precedent
Condition precedent refers to an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract becomes due, i.e., before any contractual...
to the Minister's power to make a detention order. The Minister attempted to demonstrate that the President had been so satisfied before the detention order was made by pointing to the fact that the recitals
Recital (law)
In Law, a recital consists of an account or repetition of the details of some act, proceeding or fact. Particularly, in law, that part of a legal document—such as a lease, which contains a statement of certain facts—which contains the purport for which the deed is made.In E.U...
in the detention orders stated that the President "is satisfied", and by filing an affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
by the Permanent Secretary to the Minister for Home Affairs which asserted that the "government" was satisfied that the appellants were a danger to national security. However, the Court of Appeal found that this was inadmissible evidence
Admissible evidence
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
as it amounted to hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
. Furthermore, as regards the affidavit, the satisfaction of the Government was not the same as the President's satisfaction.
Obiter dicta
The Chng Suan Tze decision is more notable for the issues that the Court of Appeal discussed obiter dictaObiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
, having already allowed the appeals on the ground that the respondents had not discharged their burden of proving the President's satisfaction.
Reviewability of the exercise of discretion
The Court held that the exercises of discretion by the President and the Minister under sections 8 and 10 of the ISA are reviewable by the courts because the subjective test that had been adopted in the 1969 Malaysian case Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia, which had been adopted locally in 1971 in Lee Mau Seng v. Minister for Home Affairs, could no longer be supported and should be replaced by an objective test. Furthermore, although a court would not question the executive's decision as to what national security required, the court could examine whether the executive's decision was indeed based on national security considerations.Application of the objective test
Under the subjective test applied in Karam Singh and Lee Mau Seng, the exercise of discretion by the President and the Minister under sections 8 and 10 of the ISA is not open to review. The court cannot enquire about the grounds and the facts justifying the executive's decision. In contrast, under the objective test, the exercise of discretion is reviewable by a court of law and the executive has to satisfy the court that there are objective facts justifying the executive's decision.The Court of Appeal rejected the application of the subjective test in favour of the objective test on the following grounds. Firstly, the Court held that Karam Singh and other cases following it were no longer good law in so far as they applied Liversidge v. Anderson and Greene v. Secretary of State for Home Affairs, which were World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
cases from the United Kingdom. The House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
and the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
had since recognized that the majority judgments in Liversidge and Greene had been wrong, and preferred Lord Atkin's dissenting judgment
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
in Liversidge which advocated the objective approach.
Secondly, the Court concurred with judicial opinion expressed in other Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
jurisdictions that courts can objectively review the executive's exercise of discretion in the context of preventive detention on national security grounds. Cases from Zimbabwe
Zimbabwe
Zimbabwe is a landlocked country located in the southern part of the African continent, between the Zambezi and Limpopo rivers. It is bordered by South Africa to the south, Botswana to the southwest, Zambia and a tip of Namibia to the northwest and Mozambique to the east. Zimbabwe has three...
, South-West Africa, and St. Christopher, Nevis and Anguilla
Saint Christopher-Nevis-Anguilla
Saint Christopher-Nevis-Anguilla was historically an overseas territory of the United Kingdom located in the Caribbean Sea. This entity later became a province to the short lived West Indies Federation in 1958...
were referred to with approval.
Thirdly, applying the subjective test in reviewing the exercise of discretion under the ISA would mean giving the executive arbitrary powers of detention, rendering such powers unconstitutional and void. The ISA was enacted pursuant to Article 149(1) of the Constitution
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
which, at the time Chng Suan Tze was decided, stated that any provision of a law designed to stop or prevent a number of specified actions threatening national security was valid notwithstanding that it was inconsistent with three of the fundamental liberties protected by the Constitution, or would, apart from Article 149(1) itself, be outside the legislative power of Parliament
Parliament of Singapore
The Parliament of the Republic of Singapore and the President jointly make up the legislature of Singapore. Parliament is unicameral and is made up of Members of Parliament who are elected, as well as Non-constituency Members of Parliament and Nominated Members of Parliament who are appointed...
. However, the Article did not protect the validity of sections 8 and 10 of the ISA against any inconsistency with Article 12(1) of the Constitution
Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
, which guarantees equality before the law and equal protection of the law. In Ong Ah Chuan v. Public Prosecutor (1980), the Privy Council held that the word law in Article 12, among other provisions, refers to a system of law which incorporates fundamental rules of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
that had formed part and parcel of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England that was in operation in Singapore at the commencement of the Constitution. The Court of Appeal expressed the view that although sections 8 and 10 of the ISA were not arbitrary because they permitted detentions only for specific purposes which bore a reasonable relation to the object of the law, if a court could not review the exercise of the discretion, "that discretion would be in actual fact as arbitrary as if the provisions themselves do not restrict the discretion to any purpose and to suggest otherwise would in our view be naive". Therefore, if a subjective test was applied, that would allow for arbitrary detention which would result in inconsistency with Article 12(1).
Fourthly, support for the applicability of the objective test was found in Teh Cheng Poh v. Public Prosecutor, a Privy Council decision on appeal from Malaysia, in which it was held that "as with all discretions conferred upon the executive by Act of Parliament, [the Malaysian ISA
Internal Security Act (Malaysia)
The Internal Security Act 1960 is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances...
] does not exclude the jurisdiction of the courts to inquire whether the purported exercise of the discretion was nevertheless ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
either because it was done in bad faith ... or because as a result of misconstruing the provision of the Act".
Finally, the Court was also of the opinion that "the notion of a subjective or unfettered discretion is contrary to the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
" because "all power has legal limits", and therefore the exercise of discretionary power warrants court examination. Furthermore, the ISA did not contain any ouster clause applicable to section 8 or 10. The Court also refuted the argument that accountability to Parliament was an alternative safeguard against the executive abusing its powers under the ISA, citing Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. (1982):
National security considerations
The Court of Appeal held further that as the discretion conferred by section 8 of the ISA involved national security, the issue of whether detention was necessity should be left solely to executive discretion. However, the Court referred to two House of Lords decisions which stood for the principle that courts are not precluded from determining whether a decision is in fact based on grounds of national security. Therefore, the court could still determine whether the matters relied on by the executive in the exercise of discretion were indeed within the scope of section 8.Scope of judicial review
The Court of Appeal held that the scope of review of the discretion conferred by sections 8 and 10 of the ISA is limited to the traditional administrative law grounds of illegality, irrationality and procedural impropriety as established in the House of Lords decision Council of Civil Service Unions v. Minister for the Civil ServiceCouncil of Civil Service Unions v Minister for the Civil Service
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly known as the GCHQ case, was an English administrative law which held that the Royal Prerogative was subject to judicial review...
(1985), also known as the GCHQ
Government Communications Headquarters
The Government Communications Headquarters is a British intelligence agency responsible for providing signals intelligence and information assurance to the UK government and armed forces...
case. The Court noted that the scope of judicial review depends on whether a jurisdictional or precedent fact is involved. Where no jurisdictional fact is involved, the scope of review is limited to the GCHQ grounds. Where a jurisdictional fact issue arises, the scope of review extends to deciding whether the precedent fact has been established. Whether a particular discretionary power is subject to any jurisdictional fact depends on the construction of the legislation which creates that power.
The appellants argued that the discretion conferred on the President and the Minister for Home Affairs by sections 8 and 10 of the ISA could only be exercised if the fact – which was jurisdictional in nature – that the appellants were likely to act or to continue acting in a manner prejudicial to Singapore's security could be objectively established. However, the Court concluded that the discretion conferred by the ISA on the President and the Minister for Home Affairs by those provisions, properly construed, did not involve a jurisdictional fact. Section 8(1) had expressly entrusted to the President the decision as to whether or not a detainee was likely to act or to continue acting in a manner prejudicial to national security, and section 10 had entrusted to the Minister the decision whether on available evidence a revocation order was necessary in the public interest. In any case, it could not have been Parliament's intent to leave the issue of whether a detainee was likely to act or continue acting in a manner prejudicial to Singapore's security to be objectively determined as a fact by a court of law. The Court said: "It hardly needs any emphasis that the judicial process is unsuitable for reaching decisions on national security."
The Court also rejected the proposition that the principle of proportionality
Proportionality (law)
Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...
be recognized as a separate ground for judicial review. Rather, it should be subsumed under irrationality, in the sense that if an executive decision is disproportionate it can be said to be irrational in that no reasonable authority could have come to such a decision.
Burden of proof
According to the Court of Appeal, the burden of proof of justifying the lawfulness of the appellants' detention was, in the first instance, on the detaining authority. This burden of proof could be discharged by evidence that the President, acting in accordance with advice of the CabinetCabinet of Singapore
The Cabinet of Singapore forms the Government of Singapore together with the President of Singapore. It is led by the Prime Minister of Singapore who is the head of government...
or an authorized minister, was satisfied that the detention was necessary for national security purposes, and by the production of the detention order. Once the detaining authority had discharged the initial burden of proof, a burden of proof fell on the appellants to challenge their detention on GCHQ grounds.
Power of re-detention
Counsel for Chng, de Souza and Wong argued that although section 10 of the ISA conferred power on the Minister of Home Affairs to revoke a direction suspending a detention order, it did not empower him to subsequently re-arrest and re-detain his clients. Since section 10 should be strictly construedStrict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
in favour of the detainees' liberty, the court could not imply a power of arrest and detention into section 10 when Parliament had not provided for it. The Court of Appeal took the view that once a suspension direction under section 10 is revoked, the original detention order becomes operative again. The power to arrest and detain is conferred by the detention order itself.
Conditions of detention
Teo's counsel submitted that the nature and conditions of her detention rendered the detention unlawful. The Court of Appeal accepted that detention that was prima faciePrima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
lawful can become unlawful if the nature or conditions of the detention fall below some minimum standard of treatment, but that extremely inhuman conditions must be shown to exist. In general, where the manner in which the detention is conducted is alleged to be unlawful, the detainee's remedy is to challenge the validity of the conditions of the detention, not the lawfulness of the detention itself.
Aftermath
Following the Court of Appeal's decision in December 1988, the Singapore Government introduced billsBill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
into Parliament to amend the Constitution and the ISA to reverse the effect of the Chng Suan Tze judgment. The bills were enacted on 25 January 1989, with the constitutional amendments taking effect on 27 January, and the ISA amendments taking effect from 30 January 1989.
The constitution amendment bill inserted a new Article 149(3) into the Constitution which provided that any question as to the validity of any exercise of executive discretion with respect to any law referred in Article 149 (which included ISA) was to be "determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose", a reference to the 1989 amendments to the ISA. In addition, nothing in Article 93 – which provides that "judicial power of Singapore" is "vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force" – invalidated such provisions. Article 149(1) itself was also amended to state that inconsistency with various fundamental liberties guaranteed by the Constitution did not affect the validity of a law designed to stop or prevent action threatening national security, or "any amendment to that law or any provision in any law enacted under the provision of clause (3) [that is, Article 149(3)]". The list of fundamental liberties referred to in Article 149(1) was extended to include Article 11, which prohibits retrospective criminal laws and repeated criminal trials, and Article 12, which protects equality before the law and equal protection of the law.
Judicial review of preventive detention pursuant to the ISA was curtailed by the insertion of sections 8A to 8D. Section 8A defined judicial review in the Act to mean applications for the prerogative orders
Prerogative writ
Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the monarch's subjects through the courts.The prerogative writs are:*certiorari...
of mandamus
Mandamus
A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, prohibition
Prohibition (writ)
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it.This...
and certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
; applications for a declaration
Declaration (law)
In law, a declaration ordinarily refers to a judgment of the court or an award of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Where the declaration is made by a court, it is usually...
or an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
; writs of habeas corpus; and "any other suit or action relating to or arising out of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any provision of this Act". The section was presumably intended to cover all possible court applications that might be brought against executive directions and orders made under the ISA.
Section 8B(1) returned the law governing judicial review to that "applicable and declared in Singapore on the 13th day of July 1971", the day Lee Mau Seng was decided. In addition, the provision stated that no decision on or after the date from any other Commonwealth country would apply in Singapore. This was intended to overturn the dicta in Chng Suan Tze that an objective test was to be preferred, and to restrict the courts to applying the subjective test. Section 8B(2) further entrenched this by limiting judicial review only to questions of "compliance with any procedural requirement of [the ISA]".
Further, section 8C abolished all appeals to the Privy Council relating to "any decision made or act done under" the ISA in respect of "any question of interpretation of the provisions of Part XII of the Constitution or any law made thereunder", which included Article 149. This prevented any appeals to the Privy Council that questioned the constitutionality of the amendments to the Constitution and the ISA. Section 8C was repealed after all appeals to the Privy Council from Singapore were abolished in 1994. Finally, section 8D provided for the retrospective application
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
of the amendments to the ISA to any proceedings for judicial review of any decision made or act done under the Act made before the 1989 amendments.
The legality of the amendments to the Constitution and ISA was unsuccessfully challenged by Teo in Teo Soh Lung v. Minister for Home Affairs
Teo Soh Lung v. Minister for Home Affairs
Teo Soh Lung v. Minister for Home Affairs is the name of two cases of the Singapore courts, a High Court decision delivered in 1989 and the 1990 judgment in the appeal from that decision to the Court of Appeal. The cases were concerned with the constitutionality of amendments made to the...
(1989–1990) and by another detainee, Vincent Cheng, in Cheng Vincent v. Minister for Home Affairs (1990).
The principle that the correct test in judicial review proceedings is an objective one continues to apply in cases not involving the Internal Security Act. In Kamal Jit Singh v. Minister for Home Affairs, the Court of Appeal remarked that, following Chng Suan Tze, the power of the Minister for Home Affairs under section 30(a) of the Criminal Law (Temporary Provisions) Act to order the preventive detention of a person was dependent on the Minister's objective, and not subjective, satisfaction that the person was associated with criminal activities.
Academic opinions
The Court of Appeal's decision and the amendments to the Constitution and the ISA which followed have sparked much academic discourse. The following issues have been raised by commentators.Use of foreign case law in deciding ISA cases
The reliance on Privy Council and Commonwealth case law by the Court has been noted by commentators as "an important precedent for a universalist approach to constitutional interpretation". However, Parliament disapproved of the Court's use of foreign case law as a guide in ISA cases because the "conditions [in those jurisdictions] are totally different from ours". This was relied on as a justification for the amendments which returned the law to that enunciated in Lee Mau Seng.Professor Thio Li-ann
Thio Li-ann
Thio Li-ann is a Singaporean law professor at the National University of Singapore. She was educated at the University of Oxford, Harvard Law School and the University of Cambridge. In January 2007, she was appointed a Nominated Member of Parliament in Singapore's 11th Parliament.-Early life and...
notes that this represented "an attempt to 'freeze' the common law, whose very nature is to evolve incrementally". Furthermore, adopting the position of the majority in Liversidge v. Anderson meant applying a test formulated in World War II Britain in modern peace-time Singapore.
During the Second Reading of the Constitution of the Republic of Singapore (Amendment) Bill, the Minister for Home Affairs and Law
Ministry of Law (Singapore)
The Ministry of Law is a ministry of the Government of Singapore responsible for ensuring that Singapore's legal infrastructure is clear, efficacious and transparent...
S. Jayakumar said that the Singapore courts had no choice but to apply United Kingdom and other Commonwealth precedents because if they ignored them, the Privy Council would probably overrule the Court of Appeal. However, it has been noted that contrary to this suggestion, the Court of Appeal in Chng Suan Tze came to its decision after "a well-reasoned, careful examination of Commonwealth precedents".
Judiciary's role in national security
One of the Parliament's justifications for restricting judicial review in response to Chng Suan Tze was that national security is "not a judicial decision" and is not capable of "objective evaluation by the courts". Commentators have noted, though, that the role of the court as enunciated in Chng Suan Tze is merely to be convinced that there is a national security issue at hand, not to inquire into the executive action required to preserve it. In fact, the court applied the doctrine of justiciabilityJusticiability
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party appropriate to establishing whether an actual...
which recognizes the limits of judicial review in politically sensitive issues better left to the discretion of the executive.
It has also been argued that by introducing an ouster clause into the ISA, an externally imposed restraint on the judiciary, Parliament has exhibited distrust towards the judiciary's ability to exercise self-restraint in dealing with ISA cases.
Rule of law
The Court of Appeal in Chng Suan Tze has been lauded for its "desire to cultivate a robust conception of the rule of law that promoted government accountability". The judgment has also been praised for its "high valuation of human rights as against the government".In purporting to reverse the Court's decision, the 1989 amendments have been criticized for being contrary to the rule of law. Thus, it has been commented that by amending Article 149 to include a "notwithstanding" clause, the Government had in fact exempted anti-subversion laws enacted under Part XII of the Constitution from the operation of various constitutional provisions. Furthermore, by deeming that such laws were not outside legislative power, Parliament and not the Constitution is supreme where the making of such "special powers" laws is concerned. Also, this gives the executive "a draconian power without any substantial checks".
In response to the potential for abuse of the wide powers conferred upon the executive, the Minister for Home Affairs and Law argued that the judiciary could not be an effective check as a bad government could abuse all discretionary powers and "pack the courts", rendering a judicial remedy "highly illusory". In his opinion, the best safeguard against abuse was for citizens "to ensure that the Government elected is composed of men of integrity, honesty and incorruptibility". However, this differed from his position 22 years ago where he recognized the possibility of an authoritarian, arbitrary government coming into power, and the need for a written constitution which protected citizens against its oppressive measures The subsequent affirmation of the constitutionality of the amendments in Teo Soh Lung has also been criticized as a commitment to "an anaemic version of the Rule of Law".