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 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". A doctrine developed by the Supreme Court of India and now a 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. A contrary opinion is 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 Act ("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 Soh Lung v. Minister for Home Affairs 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 461 at 465, para. 2, High Court. 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") 2 S.L.R.(R.) 525, Court of Appeal, which reversed Teo Soh Lung v. Minister for Home Affairs 2 S.L.R.(R.) 30, High Court. 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.Teo Soh Lung (H.C.), p. 465, paras. 3–4.

The Government responded to Chng Suan Tze within two weeks after the decision was made.. It amended the Constitution of the Republic of SingaporeConstitution of the Republic of Singapore (1992 Reprint), now the . and the ISA by enacting the Constitution of the Republic of Singapore (Amendment) Act 1989No. 1 of 1989, passed 25 January 1989. and the Internal Security (Amendment) Act 1989,No. 2 of 1989, passed 25 January 1989. which respectively came into force on 27 and 30 January 1989.Teo Soh Lung (H.C.), pp. 465–466, para. 5. 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.

High Court judgment Exclusion of judicial review

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,Lee Mau Seng v. Minister for Home Affairs _SGHC_10.html SGHC 10], [1971–1973] S.L.R.(R.) 135, H.C. (Singapore), archived from the original on 5 January 2012. which was rendered on that date.Teo Soh Lung (H.C.), pp. 469–470, para. 15. See also S. Jayakumar, Singapore Parliamentary Debates, Official Report (25 January 1989), vol. 52, col. 463. 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.The ISA, s. 10, empowers the Minister for Home Affairs to direct that a detention order be suspended, and to revoke such a direction. 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.Teo Soh Lung (H.C.), p. 469, para. 13. 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.Teo Soh Lung (H.C.), p. 469, para. 14. Furthermore, Lee Mau Seng had held that bad faith is not a justiciable issue in the ISA context.Teo Soh Lung (H.C.), p. 470, para. 16.

Counsel for Teo argued that the House of Lords decision in Anisminic Ltd. v. Foreign Compensation Commission 2 A.C. 147. 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.Teo Soh Lung (H.C.), pp. 470–471, paras. 17–20.

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 tort 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 (1980). and P. Sambamurthy v. State of Andhra Pradesh (1986),. 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 Soh Lung (H.C.), pp. 471 and 474–475, paras. 21 and 29–31.