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 (1990). 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 Department (ISD) during Operation Spectrum for alleged involvement in a Marxist conspiracy to subvert and destabilise the country. Detention orders were made against the appellants under section 8(1)(a) of the Internal Security Act ("ISA"). 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.ISA, s. 10, allows the Minister to suspend detention orders made under s. 8(1)(a) and to revoke any suspension direction if satisfied that the person failed to comply with any conditions imposed, or if it is necessary in the public interest. 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."Chng Suan Tze v. Minister for Home Affairs SGCA 16, 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 525 at 535, para. 15, C.A. (Singapore), archived from the original on 24 December 2011. 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 declarations reaffirming the truth of their original statements to the ISD.Chng Suan Tze, p. 536, para. 21. The appellants' one-year detentions were subsequently extended under section 8(2) of the ISA.Chng Suan Tze, p. 536, para. 23. The ISA, s. 8(2), provides that the President may direct that the period of any order made under s. 8(1) may be extended for a further period or periods not exceeding two years at a time.
In May and June 1988, the appellants unsuccessfully applied to the High Court for leave to apply for writs of habeas corpus.See De Souza Kevin Desmond v. Minister for Home Affairs 1 S.L.R.(R.) 464, H.C.; and Teo Soh Lung v. Minister for Home Affairs 2 S.L.R.(R.) 30, H.C. 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:Chng Suan Tze, pp. 536–537, paras. 25–28.
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 decidendi, 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.Chng Suan Tze, pp. 537–542, paras. 29–42.
Obiter dicta The Chng Suan Tze decision is more notable for the issues that the Court of Appeal discussed obiter dicta, 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 (Minister of Home Affairs), Malaysia,Karam Singh v. Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia 2 M.L.J. [Malayan Law Journal] 129, Federal Court (Malaysia). which had been adopted locally in 1971 in Lee Mau Seng v. Minister for Home Affairs,Lee Mau Seng v. Minister for Home Affairs SGHC 10, [1971–1973] S.L.R.(R.) 135, H.C. (Singapore), archived from the original on 5 January 2012. 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 (1941). and Greene v. Secretary of State for Home Affairs (1941),Greene v. Secretary of State for Home Affairs A.C. 284, H.L. (United Kingdom). which were World War II cases from the United Kingdom. The House of Lords and the Privy Council had since recognised 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.Chng Suan Tze, pp. 545–549, paras. 56–69.
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,Minister of Home Affairs v. Austin (1987) L.R.C. (Const.) 567, Supreme Court (Zimbabwe), which held that even though subjective language had been used in s. 17(1) of the Emergency Powers (Maintenance of Law and Order) Regulations 1983 (Zimbabwe), the minister had to consider objective facts and the court could determine whether he had acted reasonably in doing so. South-West Africa,Katofa v. Administrator-General for South Africa 1985 (4) S.A. 211. and St. Christopher, Nevis and Anguilla, in which the Privy Council was of the view that subjective words in a statute could not be construed to give absolute discretion. were referred to with approval.Chng Suan Tze, pp. 549–551, paras. 70–78.
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 (now the ). 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".Chng Suan Tze, p. 552, para. 82. Therefore, if a subjective test was applied, that would allow for arbitrary detention which would result in inconsistency with Article 12(1).Chng Suan Tze, pp. 551–552, paras. 79–82.
Fourthly, support for the applicability of the objective test was found in Teh Cheng Poh v. Public Prosecutor (1978), 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".. See Chng Suan Tze, pp. 552–553, paras. 83–85.