Teo Soh Lung v. Minister for Home Affairs
Encyclopedia
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 Constitution of the Republic of Singapore
and the Internal Security Act
("ISA") in 1989. The latter statute authorizes detention without trial
on security grounds. These amendments had the effect of changing the law on judicial review of executive discretion under the ISA by re-establishing the subjective test enunciated in the 1971 High Court decision Lee Mau Seng v. Minister for Home Affairs which had been overruled in 1988 by Chng Suan Tze v. Minister for Home Affairs
, and limiting the right of judicial review to ensuring compliance with procedures specified in the ISA. In other words, the amendments were intended to render the exercise of power by the President
and the Minister for Home Affairs
under the ISA to detain persons without trial not justiciable
by the courts. Both the High Court and Court of Appeal found that these amendments were constitutional because Parliament
had done nothing more than enact the rule of law
relating to the law applicable to judicial review. Thus, the amendments validly operated to deprive the applicant Teo Soh Lung of the ability to apply to the courts for judicial review.
Another significant feature of these cases was the "basic features doctrine". An integral part of Indian constitutional law
, the High Court held that the doctrine, which curtails Parliament's ability to amend the Constitution, did not apply in Singapore
as this would amount to usurpation of Parliament's legislative function contrary to Article 58 of the Constitution. However, it has been argued that the basic features doctrine is necessary to provide a legal safeguard for the basic structure of the Constitution.
("ISA") of Singapore
together with other persons for purported involvement in a conspiracy to overthrow the Government
by force and replace it with a Marxist
state. The detention order was suspended on 26 September 1987 subject to the execution of a bond and compliance with certain conditions. However, the suspension direction was later revoked by the Minister for Home Affairs
on 19 April 1988 and Teo was rearrested and detained. Teo's application for a writ of habeas corpus
succeeded before the Court of Appeal
in Chng Suan Tze v. Minister for Home Affairs
("Chng Suan Tze") as there was insufficient evidence of the President
's satisfaction that her detention without trial
was necessary to prevent her from acting in a manner prejudicial to the security of Singapore or the maintenance of public order, pursuant to section 8(1) of the ISA. Although Teo was released on 8 December 1988, she was re-arrested almost immediately under a new detention order.
The Government responded to Chng Suan Tze within two weeks after the decision was made. It amended the Constitution of the Republic of Singapore
and the ISA by enacting the Constitution of the Republic of Singapore (Amendment) Act 1989 and the Internal Security (Amendment) Act 1989, which respectively came into force on 27 and 30 January 1989. The amendments were expressed to operate retrospectively
. The constitutional amendment inserted into Article 149 the italicized portions shown below:
Article 149 is primarily directed against subversion and confers power on Parliament to make laws contrary to certain fundamental liberties
guaranteed by the Constitution. The enactment of the ISA, which provides for detention without trial for up to two years, was a conspicuous exercise of this power. The 1989 amendments to the ISA inserted the following provisions into the Act:
The legislative amendments were intended to revert the law to its position before Chng Suan Tze was decided, thus rendering the exercise of power by the President and the Minister under the ISA not justiciable
by the courts. In addition, the addition of a reference to Articles 11 and 12
of the Constitution to Article 149(1) ensured that the ISA is valid even if it is inconsistent with five out of the eight fundamental liberties enshrined in Part IV of the Constitution. Parliament was able to pass these legislative amendments without difficulty to diminish the effect of Chng Suan Tze because a large majority of the Members of Parliament
belong to one political party, the People's Action Party
. Further, Singapore has a unicameral
legislature, so all legislative power is concentrated in one body. The legislative body is "practically fused with the executive via the Cabinet".
In Teo Soh Lung, Teo applied again for habeas corpus to be released from detention. She sought to argue that the amendments did not deprive her of the right to judicial review of the legality, rationality and constitutionality of her detention and, in the alternative, if they did, the amendments were unconstitutional.
Before the High Court, counsel for Teo, Anthony Lester
Q.C.
, sought judicial review of the acts and decisions of the President or the Minister for Home Affairs which were purported to have been exercised under the powers conferred by section 8 of the ISA, submitting that the powers had been used for improper purposes, and in a manner which was illegal, irrational and unconstitutional. He also argued that since the Minister and the President, acting on advice of the Cabinet
, had acted in bad faith
and for improper purposes, they had acted outside the scope of the powers conferred by the ISA. Hence, the acts and decisions were null and void
.
Justice Frederick Arthur Chua ruled that the amendments to Article 149 and to the ISA did have the effect of depriving the applicant of her right to judicial review of the legality, rationality and constitutionality of her detention under the ISA. The court observed that the Court of Appeal in Chng Suan Tze had allowed the appeal solely on a technical ground – that the respondents had not adduced sufficient evidence of the President's satisfaction. Other matters mentioned in that judgment were merely obiter dicta. Therefore, although it had been held in Chng Suan Tze that the President's satisfaction under section 8(1) of the ISA was objective and thus reviewable by the court, these observations did not apply to the present proceedings in the light of the new provisions in the ISA. Section 8B(1), which stated that the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the Act shall be the same as was applicable and declared in Singapore on 13 July 1971, reaffirmed the law governing judicial review as laid down in the High Court's 1971 decision Lee Mau Seng v. Minister for Home Affairs, which was rendered on that date. Thus, the section had the effect of making a subjective test applicable to the exercise of powers under sections 8 and 10 of the ISA. Section 8B(2) provided that there was to be judicial review only in regard to any question relating to compliance with any procedural requirement of the ISA governing such act or decision. If the discretion exercised by the President and the Minister under sections 8 and 10 was subjective, the court could not assess whether the powers conferred on the President and the Minister by sections 8 and 10 were exercised legally. The applicant had the burden of proof of showing that her detention was unlawful as the respondents had adduced a valid detention order and evidence of the President's subjective satisfaction that she should be detained. Furthermore, Lee Mau Seng had held that bad faith is not a justiciable issue in the ISA context.
Counsel for Teo argued that the House of Lords
decision in Anisminic Ltd. v. Foreign Compensation Commission
was applicable on the facts. In Anisminic it was held that an ouster clause in a statute does not deprive a court from exercising judicial review. Chua J. took the view that Anisminic was distinguishable. At the most, the case decided there was a presumption
that an ouster clause did not prevent a court from inquiring whether a public authority had been acting outside its jurisdiction when making an administrative decision. However, it was clear from the provisions of the ISA that it was for the Executive to determine whether, as a matter of policy and judgment, certain activities were prejudicial to national security. Since the Minister had stated that the Cabinet and the President acting in accordance with the Cabinet's advice were satisfied that Teo had acted in a manner prejudicial to the security of Singapore by being involved in a Marxist conspiracy to establish a socialist state, allowing the court to investigate into the good faith of the President or the Minister would be inconsistent with the scheme intended by Parliament.
claim, a judicial review application and the present habeas corpus application) to fail. Therefore, they amounted to judicial rather legislative action. Further, relying on the Indian Supreme Court
cases Kesavananda Bharati v. State of Kerala (1973), Minerva Mills Ltd. v. Union of India (1981) and P. Sambamurthy v. State of Andhra Pradesh (1987), Parliament's powers to amend the Constitution were limited by implied limitations derived from the basic structure of the Constitution itself. Since the Constitution was founded on the basis of separation of powers
, Parliament was not empowered to amend the Constitution in a manner which acted retrospectively and allowed it to usurp judicial power, which amounted to judicial action.
Teo's counsel also submitted that Article 149(1) imposed the overriding requirement that legislation enacted pursuant to the new Article 149(3) had to be "designed to stop or prevent" subversive action of the kind specified in Articles 149(1)(a) to (e). The purported ISA amendments were void because they were not intended to stop or prevent subversive action. Rather, they were enacted to prevent "acts done and decisions made in bad faith, for improper purposes, irrelevant to the stopping or prevention of subversive action" from being judicially reviewed by a court, and to retrospectively deprive the applicant of the benefit of the judgment in her favour in Chng Suan Tze.
Chua J. rejected the application of the basic features doctrine in Singapore. He reasoned that a constitutional amendment, being part of the Constitution itself, can never be invalid if the procedure for amendment is complied with. If the framers of the Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations. Furthermore, if the courts were allowed to impose limitations on the legislative power to amend, they would be usurping Parliament's legislative function, contrary to Article 58. In any case, Chua J. did not agree that Parliament had violated the basic structure of the Constitution. The subjective test reinserted into the ISA had served the national security interests of Singapore for a long time. The amendments merely reaffirmed the law which the courts had followed since Lee Mau Seng, and ensured that the legislative intent behind the ISA was not disregarded. Moreover, nothing in the amendments was unrelated to national security. A reaffirmation of the original principles could not be said to be objectionable as usurping judicial power or being contrary to the rule of law. The rule of law had not been abolished by legislation, as Parliament had done no more than to enact the rule of law relating to judicial review. The legislation did not order the court to decide a case in a particular way or to dismiss it – the court was left to deal with the case on the basis of the amendments.
country "before, on or after" 13 July 1971, the date of the decision of Lee Mau Seng. It reinstated Lee Mau Seng as "the applicable and declared law governing judicial review" under the ISA. The appeal was dismissed.
Chng Suan Tze has been dubbed the "single most important constitutional decision in the Singaporean nation". It declared that the idea of any official power being non-justiciable is contrary to the Constitution. The Court's endorsement of the objective standard of review meant that judges could examine whether the Executive's action was in fact based on national security considerations, as well as whether such action fell within the scope of section 8(1) of the ISA. Chng Suan Tze departed from decades of the court abiding by the policy of non-justiciability, and held that "the notion of a subjective or unfettered discretion is contrary to the rule of
law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power." It declared that the idea of any official power being non-justiciable violated equality before the law and equal protection of the law because a limitless power is a licence for the Executive to take arbitrary action.
Following the amendments to the Constitution and the ISA, the High Court in Teo Soh Lung had the opportunity to reassert the principles set down in Chng Suan Tze. However, it declined to strike down the amendments, instead holding that the amendments were constitutional because, among other reasons, Parliament had satisfied the formal requirements laid down in the Constitution for making the amendments. The view has been expressed that the Court took a "thin" and positivist
approach, and that this reasoning seems to imply that the courts will not question any legislation as long as it is procedurally sound, a regression from Chng. Confining judicial review to ensuring compliance with procedures set out in the ISA diminishes the protective role of the Judiciary, and the Court failed to consider whether the safeguards in the ISA are sufficient once judicial supervision is removed.
Whether judicial review can be excluded through executive decision remains a live issue because the 1989 amendments to the ISA reverted the law on judicial review applicable to the ISA to the date that Lee Mau Seng was decided. However, Lee Mau Seng appears to be bad law since it was overruled by the Court of Appeal in Chng Suan Tze. Furthermore, as a High Court decision, Lee Mau Seng may not be the final word on judicial review of action taken under the ISA. In addition, if detainees allege procedural impropriety, this allows a court to consider if there are procedural defects in the Executive's decision-making process, such as the taking into account of irrelevant considerations. Finally, ouster clauses are not barriers to judicial review in modern administrative law because courts can still step in to prevent jurisdictional errors of law.
It is difficult to reconcile the Government's attempt to freeze the law relating to judicial review of acts and decisions taken under the ISA as at 13 July 1971 with doctrines such as the rule of law, judicial independence and the separation of powers. One academic view is that courts should not assume that the ISA has frozen the entirety of the law on judicial review as at 13 July 1971. This is because the statute "does not substitute a new, detailed regime covering all the various issues, such as grounds of review, the rules of natural justice
, the meaning of ultra vires
, remedies and locus standi
". The further development of such matters in the common law should not be ignored. Furthermore, the freezing of the law rejects judicial independence. Rutter believes that as long as the subject matter of judicial review remains within the common law, "courts are the proper and only authentic expositors of what the law is at any given time".
In Malaysia, the basic features doctrine was also found to be inapplicable by the Federal Court
in Phang Chin Hock v. Public Prosecutor. The Court remarked that the Indian Constitution was not drafted by "mere mortals", while the same could not be said for the Malaysian Constitution. The Indian Constitution was drafted by a constituent assembly
representative of the Indian people in territorial, racial and community terms, while both the Malaysian and Singapore Constitutions were enacted by ordinary legislatures. Reliance on the drawing of distinctions between the Indian Constitution on the one hand and the Malaysian and Singapore Constitutions on the other on the basis of the history of their framing has been criticized as weak and inadequate.
It has been argued that the basic features doctrine is necessary to provide a legal safeguard for the basic structure of the Constitution. The less permanence judges attach to the Constitution the more easily it can be eroded, and the less stability is accorded to the "supreme law of the land". This fear can be reinforced by the example of Hitler
's "legal" rise to power in 1933 – the lack of restrictions on constitutional amendment allowed him to diminish the Weimar Constitution and set up his dictatorship. With the dominance of one party in the Singapore Parliament, it is all the more important to protect the essential features of Singapore's Constitution.
Nonetheless, the rejection of the basic features doctrine may have paved the way for fundamental changes to be made to the Singapore Constitution over the years, including the introduction of Group Representation Constituencies, Non-constituency Members of Parliament
, Nominated Members of Parliament
and the Elected President. Such changes may not have happened or may have faced the possibility of being pronounced unconstitutional by the courts if the basic features doctrine was applicable in Singapore.
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
courts, a 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 delivered in 1989 and the 1990 judgment in the appeal from that decision 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 cases were concerned with the constitutionality of amendments made to the Constitution of the Republic of Singapore
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 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") in 1989. The latter statute authorizes detention without trial
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....
on security grounds. These amendments had the effect of changing the law on judicial review of executive discretion under the ISA by re-establishing the subjective test enunciated in the 1971 High Court decision Lee Mau Seng v. Minister for Home Affairs which had been overruled in 1988 by Chng Suan Tze v. Minister for Home Affairs
Chng Suan Tze v. Minister for Home Affairs
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...
, and limiting the right of judicial review to ensuring compliance with procedures specified in the ISA. In other words, the amendments were intended to render the exercise of power by 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...
and 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....
under the ISA to detain persons without trial not justiciable
Justiciability
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...
by the courts. Both the High Court and Court of Appeal found that these amendments were constitutional because 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...
had done nothing more than enact 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...
relating to the law applicable to judicial review. Thus, the amendments validly operated to deprive the applicant Teo Soh Lung of the ability to apply to the courts for judicial review.
Another significant feature of these cases was the "basic features doctrine". An integral part of Indian constitutional law
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
, the High Court held that the doctrine, which curtails Parliament's ability to amend the Constitution, did not apply in Singapore
as this would amount to usurpation of Parliament's legislative function contrary to Article 58 of the Constitution. However, it has been argued that the basic features doctrine is necessary to provide a legal safeguard for the basic structure of the Constitution.
Facts
On 21 May 1987, Teo Soh Lung, a lawyer, was detained under the Internal Security ActInternal 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") of Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
together with other persons for purported involvement in a conspiracy to overthrow 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...
by force and replace it with 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...
state. The detention order was suspended on 26 September 1987 subject to the execution of a bond and compliance with certain conditions. However, the suspension direction was later revoked 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....
on 19 April 1988 and Teo was rearrested and detained. Teo's application for a writ 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...
succeeded before 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...
in Chng Suan Tze v. Minister for Home Affairs
Chng Suan Tze v. Minister for Home Affairs
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...
("Chng Suan Tze") as there was insufficient evidence of 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...
's satisfaction that her detention without trial
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....
was necessary to prevent her from acting in a manner prejudicial to the security of Singapore or the maintenance of public order, pursuant to section 8(1) of the ISA. Although Teo was released on 8 December 1988, she was re-arrested almost immediately under a new detention order.
The Government responded to Chng Suan Tze within two weeks after the decision was made. It amended the Constitution of the Republic of Singapore
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 by enacting the Constitution of the Republic of Singapore (Amendment) Act 1989 and the Internal Security (Amendment) Act 1989, which respectively came into force on 27 and 30 January 1989. The amendments were expressed to operate retrospectively
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...
. The constitutional amendment inserted into Article 149 the italicized portions shown below:
Article 149 is primarily directed against subversion and confers power on Parliament to make laws contrary to certain fundamental liberties
Human rights in Singapore
According to U.S. Department of State Country Reports on Human Rights Practices, there have been no reports of human rights abuses by security forces in Singapore. The Singapore government maintains effective control over all security activities, and generally respects the human rights of its...
guaranteed by the Constitution. The enactment of the ISA, which provides for detention without trial for up to two years, was a conspicuous exercise of this power. The 1989 amendments to the ISA inserted the following provisions into the Act:
The legislative amendments were intended to revert the law to its position before Chng Suan Tze was decided, thus rendering the exercise of power by the President and the Minister under the ISA not justiciable
Justiciability
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...
by the courts. In addition, the addition of a reference to Articles 11 and 12
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...
of the Constitution to Article 149(1) ensured that the ISA is valid even if it is inconsistent with five out of the eight fundamental liberties enshrined in Part IV of the Constitution. Parliament was able to pass these legislative amendments without difficulty to diminish the effect of Chng Suan Tze because a large majority of the Members of Parliament
Members of the Singapore Parliament
The following is a historical list of members for the current and past ten Parliaments of Singapore:-See also:*1st Parliament of Singapore*2nd Parliament of Singapore*3rd Parliament of Singapore*4th Parliament of Singapore*5th Parliament of Singapore...
belong to one political party, the People's Action Party
People's Action Party
The People's Action Party is the leading political party in Singapore. It has been the city-state's ruling political party since 1959....
. Further, Singapore has a unicameral
Unicameralism
In government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...
legislature, so all legislative power is concentrated in one body. The legislative body is "practically fused with the executive via the Cabinet".
In Teo Soh Lung, Teo applied again for habeas corpus to be released from detention. She sought to argue that the amendments did not deprive her of the right to judicial review of the legality, rationality and constitutionality of her detention and, in the alternative, if they did, the amendments were unconstitutional.
Exclusion of judicial review
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.
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...
, sought judicial review of the acts and decisions of the President or the Minister for Home Affairs which were purported to have been exercised under the powers conferred by section 8 of the ISA, submitting that the powers had been used for improper purposes, and in a manner which was illegal, irrational and unconstitutional. He also argued that since the Minister and the President, acting on advice of the Cabinet
Cabinet 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...
, had acted in bad faith
Bad faith
Bad faith is double mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others, or self deception....
and for improper purposes, they had acted outside the scope of the powers conferred by the ISA. Hence, the acts and decisions were null and void
Void (law)
In law, void means of no legal effect. An action, document or transaction which is void is of no legal effect whatsoever: an absolute nullity - the law treats it as if it had never existed or happened....
.
Justice Frederick Arthur Chua ruled that the amendments to Article 149 and to the ISA did have the effect of depriving the applicant of her right to judicial review of the legality, rationality and constitutionality of her detention under the ISA. The court observed that the Court of Appeal in Chng Suan Tze had allowed the appeal solely on a technical ground – that the respondents had not adduced sufficient evidence of the President's satisfaction. Other matters mentioned in that judgment were merely obiter dicta. Therefore, although it had been held in Chng Suan Tze that the President's satisfaction under section 8(1) of the ISA was objective and thus reviewable by the court, these observations did not apply to the present proceedings in the light of the new provisions in the ISA. Section 8B(1), which stated that the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the Act shall be the same as was applicable and declared in Singapore on 13 July 1971, reaffirmed the law governing judicial review as laid down in the High Court's 1971 decision Lee Mau Seng v. Minister for Home Affairs, which was rendered on that date. Thus, the section had the effect of making a subjective test applicable to the exercise of powers under sections 8 and 10 of the ISA. Section 8B(2) provided that there was to be judicial review only in regard to any question relating to compliance with any procedural requirement of the ISA governing such act or decision. If the discretion exercised by the President and the Minister under sections 8 and 10 was subjective, the court could not assess whether the powers conferred on the President and the Minister by sections 8 and 10 were exercised legally. The applicant had the burden of proof of showing that her detention was unlawful as the respondents had adduced a valid detention order and evidence of the President's subjective satisfaction that she should be detained. Furthermore, Lee Mau Seng had held that bad faith is not a justiciable issue in the ISA context.
Counsel for Teo argued that 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...
decision in Anisminic Ltd. v. Foreign Compensation Commission
Anisminic v Foreign Compensation Commission
Anisminic is an important House of Lords decision in the area of administrative law, establishing in particular that any error of law made by a public body will make its decision a nullity and that a statutory exclusion clause does not deprive the courts from their jurisdiction in judicial review...
was applicable on the facts. In Anisminic it was held that an ouster clause in a statute does not deprive a court from exercising judicial review. Chua J. took the view that Anisminic was distinguishable. At the most, the case decided there was a presumption
Presumption
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The types of presumption includes a rebuttable discretionary presumption, a rebuttable mandatory presumption, and an irrebuttable or conclusive presumption. The invocation of a...
that an ouster clause did not prevent a court from inquiring whether a public authority had been acting outside its jurisdiction when making an administrative decision. However, it was clear from the provisions of the ISA that it was for the Executive to determine whether, as a matter of policy and judgment, certain activities were prejudicial to national security. Since the Minister had stated that the Cabinet and the President acting in accordance with the Cabinet's advice were satisfied that Teo had acted in a manner prejudicial to the security of Singapore by being involved in a Marxist conspiracy to establish a socialist state, allowing the court to investigate into the good faith of the President or the Minister would be inconsistent with the scheme intended by Parliament.
Constitutionality of the amendments and the basic features doctrine
Counsel for Teo also argued that the purported amendments to Article 149 of the Constitution were contrary to the supreme law of the Constitution and thus were not valid amendments. Alternatively, if the Article 149 amendments were valid, the ISA amendments did not come within the legislative powers conferred by Article 149 and were thus void. Under Article 5(1), the Constitution may be amended by a law enacted by the Legislature. However, the purported Article 149 amendments were not a "law" within the meaning of Article 5(1), as they were an attempt by the Government to cause Teo's pending court proceedings (a tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
claim, a judicial review application and the present habeas corpus application) to fail. Therefore, they amounted to judicial rather legislative action. Further, relying on the Indian Supreme Court
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
cases Kesavananda Bharati v. State of Kerala (1973), Minerva Mills Ltd. v. Union of India (1981) and P. Sambamurthy v. State of Andhra Pradesh (1987), Parliament's powers to amend the Constitution were limited by implied limitations derived from the basic structure of the Constitution itself. Since the Constitution was founded on the basis of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
, Parliament was not empowered to amend the Constitution in a manner which acted retrospectively and allowed it to usurp judicial power, which amounted to judicial action.
Teo's counsel also submitted that Article 149(1) imposed the overriding requirement that legislation enacted pursuant to the new Article 149(3) had to be "designed to stop or prevent" subversive action of the kind specified in Articles 149(1)(a) to (e). The purported ISA amendments were void because they were not intended to stop or prevent subversive action. Rather, they were enacted to prevent "acts done and decisions made in bad faith, for improper purposes, irrelevant to the stopping or prevention of subversive action" from being judicially reviewed by a court, and to retrospectively deprive the applicant of the benefit of the judgment in her favour in Chng Suan Tze.
Chua J. rejected the application of the basic features doctrine in Singapore. He reasoned that a constitutional amendment, being part of the Constitution itself, can never be invalid if the procedure for amendment is complied with. If the framers of the Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations. Furthermore, if the courts were allowed to impose limitations on the legislative power to amend, they would be usurping Parliament's legislative function, contrary to Article 58. In any case, Chua J. did not agree that Parliament had violated the basic structure of the Constitution. The subjective test reinserted into the ISA had served the national security interests of Singapore for a long time. The amendments merely reaffirmed the law which the courts had followed since Lee Mau Seng, and ensured that the legislative intent behind the ISA was not disregarded. Moreover, nothing in the amendments was unrelated to national security. A reaffirmation of the original principles could not be said to be objectionable as usurping judicial power or being contrary to the rule of law. The rule of law had not been abolished by legislation, as Parliament had done no more than to enact the rule of law relating to judicial review. The legislation did not order the court to decide a case in a particular way or to dismiss it – the court was left to deal with the case on the basis of the amendments.
Court of Appeal judgment
On appeal to the Court of Appeal, Teo made primarily the same arguments that had been raised before the High Court. Notably, regarding the freezing of common law via the statute, the Court of Appeal observed that the language of section 8B(1) of the ISA was plain and unambiguous, and excluded the application of any law in any CommonwealthCommonwealth 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...
country "before, on or after" 13 July 1971, the date of the decision of Lee Mau Seng. It reinstated Lee Mau Seng as "the applicable and declared law governing judicial review" under the ISA. The appeal was dismissed.
Exclusion of judicial review
The Teo Soh Lung decisions cannot be read apart from Chng Suan Tze and the series of legislative and constitutional amendments made by Parliament. The amendments had the effect of ousting review by the Judiciary and the Privy Council in situations of preventive detention.Chng Suan Tze has been dubbed the "single most important constitutional decision in the Singaporean nation". It declared that the idea of any official power being non-justiciable is contrary to the Constitution. The Court's endorsement of the objective standard of review meant that judges could examine whether the Executive's action was in fact based on national security considerations, as well as whether such action fell within the scope of section 8(1) of the ISA. Chng Suan Tze departed from decades of the court abiding by the policy of non-justiciability, and held that "the notion of a subjective or unfettered discretion is contrary to the rule of
law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power." It declared that the idea of any official power being non-justiciable violated equality before the law and equal protection of the law because a limitless power is a licence for the Executive to take arbitrary action.
Following the amendments to the Constitution and the ISA, the High Court in Teo Soh Lung had the opportunity to reassert the principles set down in Chng Suan Tze. However, it declined to strike down the amendments, instead holding that the amendments were constitutional because, among other reasons, Parliament had satisfied the formal requirements laid down in the Constitution for making the amendments. The view has been expressed that the Court took a "thin" and positivist
Legal positivism
Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
approach, and that this reasoning seems to imply that the courts will not question any legislation as long as it is procedurally sound, a regression from Chng. Confining judicial review to ensuring compliance with procedures set out in the ISA diminishes the protective role of the Judiciary, and the Court failed to consider whether the safeguards in the ISA are sufficient once judicial supervision is removed.
Whether judicial review can be excluded through executive decision remains a live issue because the 1989 amendments to the ISA reverted the law on judicial review applicable to the ISA to the date that Lee Mau Seng was decided. However, Lee Mau Seng appears to be bad law since it was overruled by the Court of Appeal in Chng Suan Tze. Furthermore, as a High Court decision, Lee Mau Seng may not be the final word on judicial review of action taken under the ISA. In addition, if detainees allege procedural impropriety, this allows a court to consider if there are procedural defects in the Executive's decision-making process, such as the taking into account of irrelevant considerations. Finally, ouster clauses are not barriers to judicial review in modern administrative law because courts can still step in to prevent jurisdictional errors of law.
It is difficult to reconcile the Government's attempt to freeze the law relating to judicial review of acts and decisions taken under the ISA as at 13 July 1971 with doctrines such as the rule of law, judicial independence and the separation of powers. One academic view is that courts should not assume that the ISA has frozen the entirety of the law on judicial review as at 13 July 1971. This is because the statute "does not substitute a new, detailed regime covering all the various issues, such as grounds of review, the 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"...
, the meaning of 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...
, remedies and locus standi
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
". The further development of such matters in the common law should not be ignored. Furthermore, the freezing of the law rejects judicial independence. Rutter believes that as long as the subject matter of judicial review remains within the common law, "courts are the proper and only authentic expositors of what the law is at any given time".
Basic features doctrine
Teo Soh Lung is also significant because the High Court denied the application of the basic features doctrine in Singapore. This doctrine, first developed in Indian case law, prevents attempted constitutional amendments which abrogate any of its "basic structure" or "essential features" even if the procedural requirements for constitutional amendments are met. Chua J. held that the doctrine was not applicable to the Singapore Constitution: "Considering the differences in the making of the Indian and our Constitution, it cannot be said that our Parliament's power to amend our Constitution is limited in the same way as the Indian Parliament's power to amend the Indian Constitution."In Malaysia, the basic features doctrine was also found to be inapplicable by the Federal Court
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
in Phang Chin Hock v. Public Prosecutor. The Court remarked that the Indian Constitution was not drafted by "mere mortals", while the same could not be said for the Malaysian Constitution. The Indian Constitution was drafted by a constituent assembly
Constituent Assembly of India
The Constituent Assembly of India was elected to write the Constitution of India, and following independence served as the nation's first Parliament.-Nature of the Assembly:...
representative of the Indian people in territorial, racial and community terms, while both the Malaysian and Singapore Constitutions were enacted by ordinary legislatures. Reliance on the drawing of distinctions between the Indian Constitution on the one hand and the Malaysian and Singapore Constitutions on the other on the basis of the history of their framing has been criticized as weak and inadequate.
It has been argued that the basic features doctrine is necessary to provide a legal safeguard for the basic structure of the Constitution. The less permanence judges attach to the Constitution the more easily it can be eroded, and the less stability is accorded to the "supreme law of the land". This fear can be reinforced by the example of Hitler
Adolf Hitler
Adolf Hitler was an Austrian-born German politician and the leader of the National Socialist German Workers Party , commonly referred to as the Nazi Party). He was Chancellor of Germany from 1933 to 1945, and head of state from 1934 to 1945...
's "legal" rise to power in 1933 – the lack of restrictions on constitutional amendment allowed him to diminish the Weimar Constitution and set up his dictatorship. With the dominance of one party in the Singapore Parliament, it is all the more important to protect the essential features of Singapore's Constitution.
Nonetheless, the rejection of the basic features doctrine may have paved the way for fundamental changes to be made to the Singapore Constitution over the years, including the introduction of Group Representation Constituencies, Non-constituency Members of Parliament
Non-Constituency Member of Parliament
Non-Constituency Members of Parliament are members of the opposition parties who are appointed as members of the Parliament of Singapore even though they had lost in the parliamentary election....
, Nominated Members of Parliament
Nominated Member of Parliament
A Nominated Member of Parliament is a Member of the Parliament of Singapore who is appointed instead of being elected into office by the people, and who does not belong to any political party or represent any constituency. There are currently nine NMPs in Parliament...
and the Elected President. Such changes may not have happened or may have faced the possibility of being pronounced unconstitutional by the courts if the basic features doctrine was applicable in Singapore.