Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 0525

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[1988] 2 SLR(R) SINGAPORE LAW REPORTS (REISSUE) 525

Chng Suan Tzev

Minister for Home Affairs and others and other appeals

[1988] SGCA 16

Court of Appeal Civil Appeals Nos 63, 64, 65 and 81 of 1988Wee Chong Jin CJ, L P Thean J and Chan Sek Keong J8 December 1988

Administrative Law Administrative detention Judicial review of Arrest and

detention under Internal Security Act (Cap 143, 1985 Rev Ed) Detainees releasedafter suspension of operation of detention order Rearrest and redetention ofdetainees following revocation of suspension direction Detainees applying for leaveto issue writ of habeas corpus Whether exercise of discretionary power under ss 8and 10 Internal Security Act subject to objective test and reviewable by court of law Whether burden on Executive to produce evidence of Presidents satisfaction Whether rearrest and redetention lawful Whether detainees detention renderedunlawful by conditions of detention Sections 8(1) and 10 Internal Security Act(Cap 143, 1985 Rev Ed)

Administrative Law Judicial review Principles involved in reviewing preventivedetention cases involving national security issues Whether subjective or objectivetest applicable to review of exercise of discretions under ss 8 and 10 Internal Security

Act Whether discretions under ss 8 and 10 Internal Security Act fall withinprecedent fact category Whether burden of proving exercise of discretion wrong ondetainee or detaining authority Whether principle of proportionality established asseparate ground for review of discretions in addition to grounds of illegality,irrationality or procedural impropriety

Constitutional Law Fundamental liberties Right to life and personal liberty Arrest and detention under ss 8 and 10 Internal Security Act Whether adoption ofobjective test to discretion in ss 8 and 10 Internal Security Act inconsistent withConstitution of the Republic of Singapore (1985 Rev Ed) Articles 9, 12(1) and 21(1)Constitution of the Republic of Singapore (1985 Rev Ed)

Facts

The four appellants, Chng Suan Tze, Teo Soh Lung, Kevin De Souza and WongSouk Yee were arrested in 1987 for being involved in a Marxist conspiracy to

subvert and destabilise the country to establish a Marxist state, and were issuedwith detention orders under s 8(1)(a) of the Internal Security Act (Cap 143,1985 Rev Ed) (the Internal Security Act). The appellants were then served withstatements pertaining to the grounds and allegations of fact on which theirdetention orders were based. Apart from Wong Souk Yee, the other appellantssubmitted written representations to the advisory board. However, the advisoryboard did not recommend that the appellants be released from the detentionorders.

Nevertheless, on 26 September 1987, the Minister of Home Affairs directed that

the detention orders in respect of the appellants be suspended, subject to certain



526 SINGAPORE LAW REPORTS (REISSUE) [1988] 2 SLR(R)

conditions. After the detention orders had been conditionally suspended, theappellants gave a joint press statement to state, amongst others, a denial thatthey were Marxist conspirators, and that they had been ill-treated while they

were detained. Consequently, the suspension of the detentions orders against theappellants was revoked. The appellants were therefore rearrested.

The appellants then applied for leave to issue writs of habeas corpus. Theirrespective applications were dismissed by the High Court. The appellantsappealed against this decision, arguing that: (a) the detention order which theMinister makes under s 8(1) of the Internal Security Act depended on thePresident being satisfied that it was necessary to do so for one of the purposesspecified therein, and that the burden was on the respondents to produce

evidence of the Presidents satisfaction; (b) the exercise of the discretionarypower under ss 8 and 10 of the Internal Security Act was subject to an objectivetest and was thus reviewable by a court of law, and to discharge its burden, theExecutive had to satisfy the court that there were objective facts in existencewhich justified the Executives decision; (c) since s 10 of the Internal SecurityAct did not give any power to rearrest and redetain following the making of therevocation order, the redetention of the appellants was therefore unlawful; and(d) even if Teo Soh Lungs detention was originally lawful, it had been renderedunlawful by the conditions of her detention.

The Minister (the respondents) argued that s 8(1) contemplated the subjectivesatisfaction of the President and this satisfaction was not justiciable. In supportof this argument, the respondents relied on the Federal Court of Malaysias 1969decision in Karam Singh[1969] 2 MLJ 129 which applied a subjective test in the

judicial review of administrative decisions.

Held, allowing the appeals:

(1) It was a significant feature of s 8(1) of the Internal Security Act that twodifferent persons were involved; the discretion whether it was necessary todetain someone for one of the specified purposes was exercisable by thePresident, but where he was satisfied that it was necessary to do so, the actualorder was made by the Minister who in so doing exercised no discretion andmerely performed an administrative function. It was true that under Art 21(1) ofthe Constitution of the Republic of Singapore (1985 Rev Ed), the President actedin accordance with the advice of the Cabinet or of a minister acting under thegeneral authority of the Cabinet. However, that did not detract from the fact thatunder s 8(1) of the Internal Security Act, the Presidents satisfaction was acondition precedent to the Ministers power to make the detention order. It was

clear that where detention under s 8(1) was challenged the minister must inaddition to producing the detention order also produce evidence of thePresidents satisfaction. This was clearly so irrespective of the reviewability orotherwise of the Presidents satisfaction. In this case, the respondents failed todischarge the burden of proving the legality or validity of the detention orders.They failed to provide evidence of the Presidents satisfaction either from thePresident himself or by way of evidence from any Cabinet minister or theSecretary to the Cabinet (or from the authorised minister), that the Cabinet (orthe authorised minister) was satisfied and that the President after receiving the

advice of the Cabinet (or the authorised minister) was satisfied. The appeals



[1988] 2 SLR(R) Chng Suan Tze v Minister for Home Affairs 527

were allowed on this technical ground. The appellants were accordingly

discharged from custody: at [30] to [41].

(2) The Federal Court of Malaysias decision Karam Singh advocating thesubjective discretion test was not binding because it was inconsistent with earlier

decisions of the Privy Council and because it was made per incuriam: at [99]

to [102].

(3) Further, Karam Singhand its progeny could no longer be good law. The

notion of a subjective or unfettered discretion was contrary to the rule of law. All

power had legal limits and the rule of law demanded that courts examine the

exercise of discretionary power. If the Executive in exercising its discretion

under an Act of Parliament exceeded the four corners within which Parliament

decided it could exercise its discretion, such an exercise of discretion would be

ultra viresthe Act and a court of law must be able to hold it to be so: at [56] and

[86].

(4) It was clear that where a decision was based on national security

considerations, judicial review of that decision would be precluded. In such

cases, the decision would be based on a consideration of what national security

required, and what national security required was to be left to those responsible

for national security. However, in these cases, it had to be shown to the court

that considerations of national security were involved. That is, national securityconsiderations did not preclude the judicial function of determining whether the

decision was in fact based on grounds of national security: at [89].

(5) With respect to s 8(1) of the Internal Security Act, the decision to detain

someone would be based on national security considerations and would

therefore be a matter solely for the Executives judgment. However, just as the

court could determine that a decision was in fact based on national security

considerations, equally, the court could determine whether the matters relied on

by the Executive in the exercise of its discretion could be said to fall within thescope of s 8 of the Internal Security Act: at [93].

(6) The function of a court in the review of discretionary power depended on

whether a jurisdictional or precedent fact was involved. Where no jurisdictional

issue arose, the scope of review was limited to Wednesburyprinciples; where a

jurisdictional fact issue arose, the scope of review extended to deciding whether

the evidence justified the decision. Whether a particular discretionary power was

subject to any jurisdictional or precedent fact depended on the construction of

the legislation which created that power. In respect of ss 8 and 10 of the Internal

Security Act, the scope of review of the exercise of discretion was limited tonormal judicial review principles of illegality, irrationality or procedural

impropriety: at [108] and [119].

(7) The principle of proportionality had not been established as a separate

ground of judicial review. The dictain the English cases suggested that it could

be subsumed under irrationality. If a decision on the evidence was so

disproportionate as to breach this principle, then such a decision could be said to

be irrational in that no reasonable authority could have come to such a decision:

at [121].




(8) The burden of proving that the Presidents or the Ministers satisfactionwas illegal, irrational or procedurally improper lay on the applicant challengingsuch satisfaction on these grounds: at [123] and [124].

(9) The suspension direction under s 10 of the Internal Security Act merelysuspended the operation of the detention order. Once it was revoked, thedetention became operative again thereby authorising the redetention of theappellants: at [133].

(10) Where any unlawfulness in conditions of detention was alleged, whatshould be challenged was the legality of the conditions, rather than the legality ofthe detention itself: at [138].

Case(s) referred toA-G of St Christopher, Nevis and Anguilla v John Joseph Reynolds[1980] AC 637

(folld)

Al-Afifis Application for Habeas Corpus, Re (28 August 1987) (refd)

Associated Provincial Picture Houses Limited v Wednesbury Corp[1948] 1 KB223 (refd)

Athappen a/l Arumugam v Menteri Hal Ehwal Dalam Negeri, Malaysia[1984]1 MLJ 67 (not folld)

Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374

(refd)

De Souza Kevin Desmond v Minister for Home Affairs[1988] 1 SLR(R) 464;[1988] SLR 517 (refd)

Greene v Secretary of State for Home Affairs[1942] AC 284 (not folld)

Inland Revenue Commissioners v National Federation of Self-Employed andSmall Businesses Ltd[1982] AC 617 (refd)

Inland Revenue Commissioners v Rossminster Ltd[1980] AC 952 (folld)

Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs),

Malaysia[1969] 2 MLJ 129 (not folld)Karpal Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia[1988] 1 MLJ 468

(not folld)

Katofa v Administrator-General for South West Africa1985 (4) SA 211 (SWA)(folld)

Lau Seng Poh v Controller of Immigration[19851986] SLR(R) 180; [19841985]SLR 650 (refd)

Lee Mau Seng v Minister for Home Affairs[19711973] SLR(R) 135; [19691971]SLR 508 (not folld)

Liew Sai Wah v PP[19681970] SLR(R) 8; [1969] 1 AC 295 (folld)Liversidge v Sir John Anderson[1942] AC 206 (not folld)

Liyanage v The Queen[1967] 1 AC 259 (refd)

Magor and St Mellons Rural District Council v Newport Corporation[1952]AC 189 (refd)

Middleweek v Chief Constable of Merseyside[1992] 1 AC 179; (1985) TimesLR 489 (refd)

Minister of Home Affairs v Austin(1987) LRC (Const) 567 (folld)

Nakkuda Ali v Jayaratne[1951] AC 66 (folld)




Ong Ah Chuan v PP[19791980] SLR(R) 710; [19801981] SLR 48 (folld)

Padfield v Minister of Agriculture, Fisheries and Food[1968] AC 997 (refd)

R v Ealing London Borough Council, ex parteTimes Newspapers Ltd(1987)85 LGR 316 (refd)

R v Secretary of State for the Home Department, ex parteKhawaja[1984] AC 74(folld)

R v Secretary of State for Home Department, ex parteBenwell[1985] QB 554(refd)

R v Secretary of State for the Home Department, ex parteRuddock[1987]1 WLR 1482; [1987] 2 All ER 518 (refd)

R v Secretary of State for the Home Department, ex parteZamir[1980] AC 930

(refd)

Secretary of State for Education and Science v Tameside Metropolitan BoroughCouncil[1977] AC 1014 (refd)

Tan Sri Raja Khalid bin Raja Harun, Re [1988] 1 MLJ 182 (refd)

Teh Cheng Poh v PP[1980] AC 458; [1979] 2 MLJ 50 (refd)

Teo Soh Lung v Minister for Home Affairs[1988] 2 SLR(R) 30; [1988] SLR 676(refd)

Theresa Lim Chin Chin v Inspector General of Police[1988] 1 MLJ 293 (not folld)

Wheeler v Leicester City Council[1985] AC 1054 (refd)

Wong Mann Tung, Re [1988] 1 MLJ 286 (not folld)

Yeap Hock Seng v Menteri Hal Ehwal Dalam Negeri, Malaysia[1975] 2 MLJ 279(not folld)

Young v Bristol Aeroplane Co Ltd[1944] KB 718 (refd)

Zamora, The[1916] 2 AC 77 (refd)

Legislation referred to

Constitution of the Republic of Singapore (1985 Rev Ed) Arts 9, 12(1), 21(1)(consd);Arts 13, 14, 93, 149, 151(3)

Internal Security Act (Cap 143, 1985 Rev Ed) ss 8, 10 (consd);ss 11(1), 11(2)(b), 48, 74(1)

Interpretation Act (Cap 1, 1985 Rev Ed) ss 34, 35

Republic of Singapore Independence Act (1985 Rev Ed) ss 11, 13(1)

Supreme Court of Judicature Act 1969 (Act 24 of 1969)

Bill of Rights 1688 (c 2) (UK)Constitution (State of St Christopher, Nevis and Anguilla) ss 15, 16, 35

Defence (General) Regulations 1939 (UK) reg 18B

Emergency Powers (Maintenance of Law and Order) Regulations 1983(Zimbabwe) s 17(1)

Emergency Powers Regulations 1967 (State of St Christopher, Nevis andAnguilla) reg 3(1)

Habeas Corpus Act 1816 (c 100) (UK) s 3

Immigration Act 1971 (c 77) (UK) Schedule 2 paras 811, 16(2)




Internal Security Act 1960 (Act 82 of 1960, Revised-1972) (Msia) ss 8, 10, 47,73(1)

National Security Act 1980 (India) s 15

Anthony Paul Lester QC and Roslina Baba (Teo, Lai & Lee) for the appellant inCA 81/1988;Geoffrey Ronald Robertson QC and George Lim (Wee Tay & Lim) for the appellant inCA 64/1988;Geoffrey Ronald Robertson QC and Rajan Nair (Rajan Nair) for the appellant inCA 65/1988;Geoffrey Ronald Robertson QC and Peter Low (S K Chua & Peter Low) for the

appellant in CA 63/1988;S Tiwari, Soh Tze Bian and Joyce Huen (Attorney Generals Chambers) for therespondent.

[Editorial note: The decisions from which this appeal arose are reported at [1988] 1SLR(R) 464 and [1988] 2 SLR(R) 30.]

8 December 1988 Judgment reserved.

Wee Chong Jin CJ (delivering the judgment of the court):1 These appeals arise from the High Courts dismissal of the fourappellants applications for leave to issue writs of habeas corpus. Therespondents in each case are the same. The habeas corpusapplication by theappellant Teo Soh Lung was made on 22 April 1988. The applications bythe other three appellants were made on 27 April 1988. The High Courtheard the applications by Chng Suan Tze (Chng), Kevin de Souza (deSouza) and Wong Souk Yee (Wong) together; Teo Soh Lungs (Teo)

application was heard separately by the same judge. The appeals wereargued before us in similar fashion but Teos appeal was argued first overfour days from 1922 September 1988; the other three appeals took twodays on 24 and 25 October 1988. Extensive arguments were raised before usin all these appeals, and for reasons which will soon become apparent, wehave decided to give our decisions in all four appeals in a single judgment.

The facts

2 Teo, de Souza and Wong had been arrested together with 13 others on

21 May 1987 during a security operation launched by the Internal SecurityDepartment (ISD) of the Government, pursuant to s 74(1) of the InternalSecurity Act (Cap 143) (ISA), for being involved in a Marxist conspiracyto subvert and destabilise the country to establish a Marxist state. It appearsfrom a press statement in an affidavit filed in these proceedings that one ofthose arrested, Vincent Cheng, who is also alleged to be a central figure inthis conspiracy, subsequently said on television that he was setting up aMarxist network and systematically infiltrating religious and other bodies

and building up pressure groups for confrontation with the Government.




According to him, this would start with peaceful protests, escalating to massevents, leading to public disorder and maybe even rioting, bloodshed and

violence. On 19 June 1987, the Minister of Home Affairs (the Minister)made detention orders pursuant to s 8(1)(a) of the ISA directing that Teo,de Souza and Wong be detained for one year with effect from 20 June 1987.

3 Chng, on the other hand, was first arrested on 20 June 1987. She wassubsequently served with the Ministers detention order made under s 8(1)of the ISA on 18 July 1987 providing for her detention for one year witheffect from 19 July 1987. Pursuant to s 11(2)(b) of the ISA, all fourappellants were served with statements pertaining to the grounds andallegations of fact on which their detention orders were based.

4 In Teos case, the statement stated as follows:

Grounds on which a detention order is made

Between 1984 and May 1987, you acted in a manner prejudicial to thesecurity of Singapore by being involved in a Marxist conspiracy tosubvert the existing social and political system in Singapore, usingcommunist united front tactics, with a view to establishing a Marxiststate.

Allegations of fact

(1) That you facilitated the infiltration of the Workers Party in 1984by a group of Marxists after discussions with Paul Lim Huat Chye, TanWah Piows fellow Marxist, and other activists. You also activelyassisted them in their efforts to make use of the Workers Party as a

vehicle to further the Marxist cause.

(2) That you and Tang Fong Har made use of the Law Society ofSingapore as a political pressure group at the suggestion of Paul Lim

Huat Chye.

5 On 15 August 1987, pursuant to s 11(1) of the ISA, Teo submittedwritten representations to the advisory board. In her representations, sheprotested her innocence, denied any complicity in the Marxist plot, deniedthat she was a Marxist or a member of the Communist Party of Malaya andclaimed that she was legitimately exercising her civil and political rights.She also expressed her belief that her arrest and detention (might) beintended to prevent (her) from participating in politics. As for her links

with Tan Wah Piow and Paul Lim, who are also alleged to be key figures inthe Marxist conspiracy, the appellant claimed that she did not know TanWah Piow personally or that he is a Marxist or communist, and that she didnot know if Paul Lim is a Marxist. Tan Wah Piow, a former radical studentactivist, is alleged by the Government to be the mastermind of the Marxistplot with Paul Lim as his emissary.

6 Teo also gave her reasons for having supported the Workers Party, anopposition political party, and for having worked as the partys election

agent and polling agent in the 1984 general elections. She denied that her




involvement with the Workers Party had been influenced by Paul Lim. Shealso referred to a written statement which she had given to ISD on the third

day of her arrest, in which she had admitted to having called for a teagathering at her office in 1984 during which Paul Lim had suggested thatthe appellant and her friends help the Workers Party. She then claimed thaton reflection she was not certain if it was true that Paul Lim had made thatsuggestion, the admission having been made (so she alleged) aftercontinuous suggestion that such was the case from the ISD officers in thecourse and at the end of what she claimed to be an oppressive interrogation.In any event, she asserted, any suggestion from Paul Lim would not havehad any impact on her or her friends as they were themselves already

interested in the 1984 general elections. Teo also denied having helped theWorkers Party with the intention of using it as a vehicle to further aMarxist cause.

7 With respect to her involvement in the Law Society, Teo deniedhaving made use of the Law Society as a political pressure group, and alsodenied that her activities were carried out at Paul Lims instruction orpersuasion.

8 In respect of de Souza the statement provided as follows:Grounds on which a detention order is made


Allegations of fact

(1) That since 1985, you came under the influence of VincentCheng, the central figure in the Marxist conspiracy, and hadsubsequently participated in activities to further the conspiracy.

(2) That since January 1986, you have been involved, together withVincent Cheng, in the Coalition of Organizations for Religion andDevelopment (CORD), to exert influence and control over Catholicorganizations and their leaders so that they could become a politicalpressure group and part of a united front to subvert the existing social

and political system.

9 In his written representations dated 18 August 1987, de Souza deniedthe grounds and allegations of fact against him. He admitted having knownVincent Cheng from 1985 onwards but denied any knowledge that VincentCheng is a Marxist. He also admitted that together with Vincent Cheng, hewas involved in CORD as a coordinator but denied exerting or intending toexert any influence and control over Catholic organisations so that theywould become a political pressure group and part of a united front to

subvert the existing social and political system. De Souza asserted that his




involvement in CORD was motivated by the social dimension ofChristianity, including aspects of liberation theology suited to the Asian

context and the social teachings of the Catholic Church.10 As for Wong the statement was as follows:



Allegations of fact

That you, in collaboration with a few ex-activists of the Federation ofUnited Kingdom and Eire Malaysian and Singapore StudentsOrganizations (Fuemsso), who were members of Tan Wah PiowsMarxist discussion group in the United Kingdom, established thedrama group Third Stage, in Singapore, in 1983, with the purpose ofusing it as a vehicle to subvert the existing socio-political system.

11 Wong did not submit any written representations to the advisoryboard although affidavits filed on her behalf denied her part in the Marxistconspiracy.

12 And, in the case of Chng, the statement provided as follows:


You acted in a manner prejudicial to the security of Singapore:

(a) by being involved, between 1975 and 1981, in the procommunistactivities of the Student Christian Movement of Singapore (SCMS);

(b) by being involved, between 1984 and May 1987, in a Marxistconspiracy to subvert the existing social and political system inSingapore, using communist united front tactics, with a view toestablishing a Marxist state.

Allegations of fact

(1) That you were, from 1975 till 1981, involved in the pro-communist activities of the SCMS. As a founder member of Gendang

Enterprises, a cultural group formed by the SCMS, you were involvedin Gendangs activities which included singing progressive songs andperforming plays which exaggerated the plight of the poor and theinadequacies of the existing system.

(2) That while studying in the United Kingdom from 19811983,you came under the influence of Tan Wah Piow. You supported TanWah Piows idea of using drama as a means to reach out and radicalizethe public in Singapore and on his suggestion, you joined the dramagroup Third Stage in 1984 following your return to Singapore. Since

then till May 1987 you played a prominent role in making use of Third




Stage as a tool to arouse disaffection among the people towards theexisting socio-political system.

13 In her representations dated 30 July 1987, Chng denied having everjoined or been involved in the SCMS, or that Gendang Enterprise was acultural group formed by the SCMS. She admitted that during the 1970s shewas inclined towards Maoist ideas to the extent that art and culture shouldbe popular and that art should not be art for arts sake, in the sense that asmany people as possible should enjoy or be able to participate in it. She alsoadmitted having stayed with Tan Wah Piow and his wife for about eightmonths during her three-year postgraduate degree course in UK from19811983, and that she had worked for about five months on Fijarmagazine, a publication of Fuemsso. She admitted having discussed, amongother matters, politics with Tan, but denied having come under hisinfluence. She also expressed agreement with the idea that pressure groupscould serve a useful function in a democratic political system and that inrelation to drama, it could be used like a pressure group in that throughdrama one can bring out alternative views and criticisms. As for her joiningthe Third Stage, she stated that she did so upon her return from UK as shehad always been interested in the arts and in drama, and denied that she

used the Third Stage as a tool to arouse disaffection among the peopletowards the existing socio-political system.

14 The advisory board did not recommend the release of any of theappellants to the President and the appellants continued to be detained.

15 On 26 September 1987, the Minister, in exercise of the powersconferred on him by s 10 of the ISA, directed that the operation of thedetention orders in respect of all the appellants should be immediatelysuspended, subject to the execution of a bond and three conditions

restricting travel beyond Singapore and membership of societies, andprohibiting any involvement in activities propagating Marxism orcommunism. Three other detainees were similarly released. TheGovernment, in a press release made on the same day, stated that after acareful review of the released detainees position since their detention, itwas:

satisfied that they are unlikely to resume subversive activities and nolonger pose a security threat. The suspension direction will be revoked

if any of them re-involves himself herself [sic] in subversive activities orbreaches any of the conditions stipulated in the suspension direction.

16 On 18 April 1988, the four appellants together with five otherdetainees released between June and December 1987 issued a joint pressstatement (the joint statement). In this joint statement, they claimed thatthey were issuing it not to make political capital but to clear their names inresponse to public statements made by or on behalf of the Governmentregarding the reasons for their arrests and detention. They also denied the

Governments accusations that they were Marxist conspirators, and




claimed that they were compelled to appear on television and makeadmissions, that their statements on television were distorted and

misrepresented, and that their statements given during detention weremade under threats. The joint statement also stated that they had beensubjected to ill treatment, amounting in some cases to torture, during theirdetention.

17 The Government responded the following day, 19 April 1988, withrevocation orders made by the Minister pursuant to s 10 of the ISA,revoking the suspension directions and rearresting eight of the signatoriesto the joint statement, including the appellants. The ninth signatory

remained at large, having left Singapore and not returned, in breach of oneof the conditions of her suspension direction. The relevant parts of therevocation orders against the four appellants state as follows:

And whereas on 18 April 1988, the said (name of detainee) issued ajoint statement, inter alia, denying any involvement m [sic] a Marxistconspiracy.

And whereas the Minister for Home Affairs is satisfied that in view ofthe statement it is necessary in the public interest that the direction

dated 26 September 1987 should be revoked.Now therefore, the Minister for Home Affairs in exercise of the powersconferred on him by s 10 of the said Act hereby revokes the directiondated 26 September 1987 with effect from 19 April 1988.

18 In another statement issued on 20 April 1988, the Government statedthat the nine signatories to the joint statement had admitted the facts oftheir involvement in signed statements and in television interviews shortlyafter their arrests.

19 Paragraph 16 of the statement went on to state:

The detainees now claim that everything they did was legal andlegitimate. When they claim, or worse if they truly believe, that theyhave done nothing wrong, there is every likelihood that they willresume their former activities. The government must determine whythey have repudiated their earlier statements and reversed theirpositions. It has therefore re-arrested the eight ex-detainees who are inSingapore. In addition, it has also arrested Patrick Seong Kwok Kei,

aged 34, a lawyer, in connection with the investigations.

20 On 27 April 1988, Teo made a statutory declaration in which shestated her belief that all her statements regarding her involvement in, interalia, the Law Society and the Workers Party given after her arrest in May1987 were accurate and fair. However, she claimed that she was not awareshe was playing any role in any Marxist conspiracy. She also stated in herdeclaration that she was a signatory to the joint statement because sheresented the repeated reference to her as a Marxist conspirator intent on

subverting the existing Government.




21 On 28 April 1988, the Ministry of Home Affairs issued anotherstatement in which it was stated that investigations had established that the

joint statement was a political ploy to discredit the Government and thatthe eight ex-detainees who were rearrested (including the appellants) hadsworn statutory declarations in which they reaffirmed the truth of theiroriginal statements to ISD and in television interviews in 1987. TheMinistrys statement also stated that the statutory declarations showed thatthe ex-detainees were not aggrieved parties seeking redress, but wereprotagonists seeking to discredit the Government, and provoke agitationand condemnation from human rights groups and the foreign press.

22 A ministerial press conference was held on 29 April 1988 to elaborateon the Government press statement concerning the rearrest of the eight ex-detainees and the detention of lawyer Patrick Seong.

23 On 18 June 1988, Teo was served with a direction made under s 8(2)of the ISA, extending her detention for one year with effect from 20 June1988. The remaining appellants were served with extension orders unders 8(2) when their initial one-year detention period expired some time aftertheir applications had been dismissed by the High Court.

24 The applications for leave to issue writs of habeas corpusby Chng, deSouza and Wong came up for hearing before the High Court on 23 May1988. Teos application was argued from 27 to 30 June 1988. The HighCourt delivered judgment in the case of Chng, de Souza and Wong on27 May 1988, and in Teos case on 2 August 1988, dismissing theirrespective applications with costs. The appellants now appeal to this court.

The legal issues

25 It would be useful, we think, if we first outline the submissions inrelation to the legal issues raised here and in the court below. It is commonground that in habeas corpusproceedings the burden, in the first instance,is on the detaining authority to justify the legality of the detention. The firstlegal issue relates to how this initial burden may be discharged. Mr Lester,counsel for Teo, submitted that the exercise of the discretionary powerunder ss 8 and 10 of the ISA is subject to the objective test and thusreviewable by a court of law and that to discharge its burden, the Executive

has to satisfy the court that there are objective facts in existence whichjustify the Executives decision. On the other hand, the respondentssubmitted that the Executives burden of justifying the detention isdischarged by the mere production of the orders pursuant to whichdetention was carried out. The basis for this submission is the contentionthat the subjective test applies to the exercise of discretion under ss 8 and 10of the ISA so that the court cannot review such exercise of discretion.

26 Mr Robertson, counsel for Chng, de Souza and Wong, adopted

Mr Lesters submissions in this respect. Mr Robertson, however, went




further and submitted that as the detention order which the Minister makesunder s 8(1) of the ISA depends on the President being satisfied that it is

necessary to do so for one of the purposes specified therein, the burden ison the respondents to also produce evidence of the Presidents satisfaction.

27 The second legal issue arises in relation to the revocation of asuspension direction under s 10 of the ISA. Mr Robertson contended that ass 10 of the ISA does not give any power to rearrest and re-detain followingthe making of the revocation order, the re-detention of his clients wastherefore unlawful.

28 The third legal issue was raised by Mr Lester and concerned the

question whether Teos detention, even if originally lawful, had beenrendered unlawful by the conditions of her detention.

Evidence of the Presidents satisfaction under s 8(1) of the ISA

29 The question relating to the scope of review, by the court, of theexercise of discretion under ss 8 and 10 of the ISA arises only if suchexercise of discretion is reviewable in the first place. However,Mr Robertson submitted that before one even considers the question of

reviewability, the preliminary requirement that the President has beensatisfied as required under s 8(1) must be met. This, he contended, was acondition precedent to the making of the detention order by the Ministerunder s 8(1) irrespective of whether the subjective or the objective testapplies to the discretionary power thereunder. In this respect, he submitted,the respondents are legally obliged to produce admissible evidence beforethe court of the Presidents satisfaction.

30 Section 8(1) of the ISA provides that the Minister shall make a

detention order if the President is satisfied with respect to any person that,with a view to preventing that person from acting in any manner prejudicialto the security of Singapore , it is necessary to do so. In our view, it isplain and it is not disputed by the respondents, that the Ministers power tomake the detention order depends on the President having been satisfied inthe first place. It is a significant feature of s 8(1) that two different personsare involved; the discretion whether it is necessary to detain someone forone of the specified purposes is exercisable by the President, but where he issatisfied that it is necessary to do so the actual order is made by the Minister

who in so doing exercises no discretion and merely performs anadministrative function. It is true that under Art 21(1) of the Constitutionthe President acts in accordance with the device [advice] of the Cabinet orof a Minister acting under the general authority of the Cabinet. However,that does not detract from the fact that under s 8(1) of the ISA thePresidents satisfaction is a condition precedent to the Ministers power tomake the detention order. It seems to us clear therefore that wheredetention under s 8(1) is challenged the respondents must in addition to

producing the detention order also produce evidence of the Presidents




satisfaction. This is clearly so irrespective of the reviewability or otherwiseof the Presidents satisfaction.

31 The next immediate issue is whether on the evidence the respondentshave discharged their burden. Mr Robertson contended on behalf of Chng,de Souza and Wong that the respondents have not done so as there is noadmissible evidence of the Presidents satisfaction. The recitals in thedetention orders that the President is satisfied are insufficient evidencebecause of the rule against hearsay; the orders are signed not by theMinister but by the Permanent Secretary. The affidavits by B G Tan,Permanent Secretary to the Minister of Home Affairs, are insufficient

evidence as firstly, the affidavits merely referred to the government beingsatisfied, and secondly, any such evidence by B G Tan constituted hearsayevidence. We were also referred to the judgment in Lee Mau Seng v Ministerfor Home Affairs [19711973] SLR(R) 135 at [62], where the applicantsargument, that there was no evidence of the Presidents satisfaction, failedbecause there was an affidavit by the Minister for Home Affairs of theCabinets satisfaction and of the Presidents satisfaction after receiving theadvice of the Cabinet and that the said Minister then made the order ofdetention.

32 However, the learned trial judge accepted the respondents contentionthat the recitals in the detention orders regarding the subjective satisfactionof the President and the affidavit of B G Tan, read as a whole, sufficientlyestablished that the President was satisfied, after having acted on the adviceof the Cabinet. The learned judge further observed that it was for theapplicants to allege and show that the power was exercised without thesubjective satisfaction of the President and that this assertion of fact must

be made by or properly made on behalf of the applicants in an affidavitwhich had not been done. The learned judge was also of the view thatB G Tans deposition as to the government being satisfied meant or mustbe taken to mean that the President was also satisfied. In reply to theseobservations, Mr Robertson submitted before us that the Presidentssatisfaction, though formal, was nevertheless a requirement separate fromthe Cabinets satisfaction and pointed out that under Art 21(1) of theConstitution, the President was entitled to request information concerningthe government which is available to the Cabinet even though he shall act

in accordance with the advice of the Cabinet or of a minister acting underthe general authority of the Cabinet. Counsel further noted that in any caseB G Tans depositions constituted hearsay, and, finally, that the issue raisedwas not of fact but of law. Referring to s 34 of the Interpretation Act (Cap 1,1985 Rev Ed) which provides that it shall be sufficient if the exercise of anypower conferred on the President is signified under the hand of anyMinister or of the Secretary to the Cabinet, counsel submitted that anaffidavit by a Minister or the Secretary to the Cabinet stating that the

President was satisfied would provide sufficient evidence.




33 We accept Mr Robertsons submission that the respondents arelegally obliged to produce admissible evidence before the court of the

Presidents satisfaction, and in our view, the question whether they havedone so is a question of law. As such the appellants, Chng, de Souza andWong, are entitled to raise the issue without any affidavit controverting thispoint. Secondly, in our judgment, evidence required must be such evidenceas would be admissible at a trial. Hearsay evidence would not be sufficient.In the circumstances it is clear that there is no admissible evidence of thePresidents satisfaction. Neither the recitals in the detention orders norB G Tans affidavit evidence that the government was satisfied couldpossibly be sufficient evidence.

34 Counsel for the respondents relied on the presumption omnia esse riteactato fill in this gap in their evidence. We understand the submission to bethat this presumption (that everything is presumed rightly and dulyperformed until the contrary is shown) applies so that it must be presumed,until the contrary is shown, that the requisite as to the satisfaction of thePresident under s 8(1) of the ISA was complied with. In support of thissubmission, counsel for the respondents referred us toViscount Maughams judgment in Liversidge v Sir John Anderson [1942]

AC 206, and to Greene v Secretary of State for Home Affairs[1942] AC 284.Both cases concerned the Secretary of States discretion under reg 18B ofthe Defence (General) Regulations 1939 to make a detention order againstany person whom he had reasonable cause to believe to be of hostileassociations. Viscount Maugham said in Liversidgeat 224225:

I can deal much more shortly with the question whether an onus isthrown on the first respondent, the Secretary of State who made theorder for detention, to give evidence to show that he had reasonable

cause to believe the appellant to be a person of hostile associations The order on its face purports to be made under the regulation and itstates that the Secretary of State had reasonable cause to believe thefacts in question. In my opinion, the well-known presumption omniaesse rite actaapplies to this order, and, accordingly, assuming the orderto be proved or admitted, it must be takenprima faciethat is until thecontrary is proved, to have been properly made and that the requisiteas to the belief of the Secretary of State was complied with. It will benoted that on the view I have expressed as to the construction of theregulation it is the personal belief of the Secretary of State that is in

question It has never, I think, been suggested in such cases that theSecretary of State or public officer must prove that he was so satisfiedwhen he made the order. Just as the fact that the act of the Secretary ofState acting in a public office is aprima facieevidence that he has beenduly appointed to his office, so his compliance with the provision ofthe statute or the Order in Council under which he purported to actmust be presumed unless the contrary is proved.

35 In our judgment, however, it would be wrong to apply the

presumption to the present appeals. Admissible evidence of the Presidents




satisfaction in the present context refers to direct as opposed to hearsayevidence of such satisfaction. In relation to reg 18B in Liversidge ([34]

supra) and Greene([34] supra), what was required was direct evidence thatthe Secretary of State had reasonable cause to believe the appellants to be ofhostile associations. Affidavit evidence deposed to by the Secretary of Statewould have sufficed. However, Viscount Maugham in the passage citedabove took the view that such an affidavit was unnecessary as thepresumption applied so that it could be presumed that the requisite as tothe belief of the Secretary of State had been complied with.

36 In our view, the essential fact which permitted the presumption to be

raised there was the fact that the requisite belief was that of the same personwho made the detention orders. There was evidence that the Secretary ofState had made the orders; it was presumed that in doing so he hadcomplied with the statute under which he purported to act, iethat he hadcomplied with the requisite as to his belief. In the present cases before us,the requisite s 8(1) of the ISA satisfaction is not that of the person whomade the detention orders but of someone else. The orders, signed by thePermanent Secretary, show that the Minister had made those orders;however, the requisite satisfaction which precedes his power to do so is not

his satisfaction but that of the President. Direct evidence of the Presidentssatisfaction would mean affidavit evidence deposed to by the President that,acting in accordance with advice of the Cabinet or the authorised Ministeras provided under Art 21 of the Constitution, he was satisfied that it wasnecessary to detain the appellants for any of the purposes specified in s 8(1)of the ISA. In our judgment, it cannot be presumed from the mere fact thatthe Minister has made a detention order under s 8(1) of the ISA, that therequisite satisfaction of someone else, iethe President, has been complied

with.37 Mr Robertson, referring to s 34 of the Interpretation Act (Cap 1),submitted that evidence of the Presidents state of mind could be signifiedby either a Minister or the Secretary to the Cabinet. We do not think that iscorrect. Section 34 of the Interpretation Act allows any Minister or theSecretary to the Cabinet to signify the Presidents exercise of any powerconferred on him. That section has nothing to do with establishing the stateof mind of the President where, as in s 8(1) of the ISA, he is not exercising a

particular power.38 In our judgment, the crucial question is what evidence must existbefore the Presidents satisfaction can be presumed, applying thepresumption omnia esse rite acta. The detention order signed by thePermanent Secretary is sufficient evidence that the Minister made theorder: see s 35 of the Interpretation Act. The Minister of Home Affairs mustmake the order where the President is satisfied it is necessary to do so forone of the purposes stated in s 8(1). In our view, the required evidence is

evidence that the Cabinet or the authorised Minister was satisfied and that




the President after receiving the advice of the Cabinet or the authorisedMinister was satisfied. Now, who can give such evidence? In our judgment,

where it was the Cabinet that was involved, such evidence must come fromany Cabinet Minister or the Secretary to the Cabinet. Where a Ministeracting under the general authority of the Cabinet was involved, then suchevidence must come from that Minister. No Permanent Secretary can givethe required evidence as described above. Once the required evidence isbefore the court, the court will then presume that the President was satisfiedwithout requiring direct evidence from the President himself.

Of course, the minister can make the detention order only after thePresidents satisfaction has been conveyed to him. Evidence from theminister himself that this was so would put the matter beyondquestion. However, in the absence of such evidence from the ministerhimself, in our view, it cannot be presumed to be so from the fact thathe made the order.

39 The conclusion therefore appears inescapable that in the presentappeals the respondents have not discharged the burden of proving thelegality or validity of the detention orders. Such burden is discharged onlyby the production of the detention orders and evidence of the Presidents

satisfaction either from the President himself or by way of evidence fromany Cabinet Minister or the Secretary to the Cabinet (or from theauthorised Minister), that the Cabinet (or the authorised Minister) wassatisfied and that the President after receiving the advice of the Cabinet (orthe authorised Minister) was satisfied. The appeals by Chng, de Souza andWong must be allowed on this ground albeit a technical one, and theappellants Chng, de Souza and Wong must be discharged from custody.

40 With respect to Teos appeal, we are faced with the immediate

problem that this technical ground was neither raised nor relied on by hercounsel. The affidavit evidence put forth on behalf of the respondents in hercase is equally insufficient to discharge the respondents initial onus ofproof. Admittedly B G Tans affidavit in her case does state that thePresident, acting in accordance with the advice of Cabinet, was satisfied.However, that is of course hearsay evidence and therefore inadmissible.Further, there is nothing in Teos affidavit which admits the existence of thePresidents satisfaction. In our view, on the evidence, there is no difference

in this aspect between Teos case and the other three cases.41 In our judgment, the issue being one of law, the fact that this technicalground has not been raised by Teos counsel does not bar us from making adecision based on it. We have decided what the respondents legal burdenof proof is, and the principle must apply to all the appeals. As such we haveto consider whether in law the respondents burden has been discharged.We are also mindful of the fact that counsel for the respondents have nothad an opportunity to be heard on this point in Teos appeal. However,

Mr Tiwari appeared as counsel for the respondents in all the four appeals




and he has therefore had the opportunity to submit on this point during thehearing of the appeals by Chng, de Souza and Wong. In our view, the

respondents in Teos case, who are also the respondents in the other threecases, will suffer no prejudice if our decision with respect to Teo relies uponthis point. In all four cases, the affidavits filed on behalf of the respondentsare deposed to by the Permanent Secretary. No affidavit by a CabinetMinister or the Secretary to the Cabinet has been filed. In our judgment inthe special circumstances of these appeals we cannot ignore this particularissue of law in respect of Teos appeal. Accordingly Teos appeal is alsoallowed on the ground that the respondents have failed to discharge theirburden of proving the Presidents satisfaction. She, also, must be discharged

from custody.

42 What we have said so far is of course sufficient to dispose of all fourappeals. However, the remaining issues of law raised in these appeals havebeen fully argued and as they are important issues of law, we would alsodeal with them in this judgment.

The reviewability of the exercise of discretion under ss 8 and 10 of the ISA

43 The question here pertains to the reviewability of the Presidentssatisfaction under s 8 of the ISA and the Ministers satisfaction under s 10 ofthe ISA. Section 8 provides as follows:

(1) If the President is satisfied with respect to any person that, with aview to preventing that person from acting in any manner prejudicialto the security of Singapore or any part thereof or to the maintenanceof public order or essential services therein, it is necessary to do so, theminister shall make an order

(a) directing that such person be detained for any period notexceeding two years; or

(b)

(2) The President may direct that the period of any order madeunder subsection (1) be extended for a further period or periods notexceeding two years at a time.

44 Section 10 of the ISA is in the following terms:

At any time after an order has been made in respect of any personunder section 8(1)(a) the Minister may direct that the operation ofsuch order be suspended subject to the execution of a bond and to suchconditions

as the Minister sees fit; and the Minister may revoke any such directionif he is satisfied that the person against whom the order was made hasfailed to observe any condition so imposed or that it is necessary in the

public interest that such direction should be revoked.




45 The reviewability of the discretions under ss 8 and 10 of the ISA,depends on:

(a) whether the objective or the subjective test applies to theexercise of the discretions; and

(b) the effect of national security considerations on thereviewability of these discretions.

Subjective/objective test

46 The respondents contended that s 8(1) contemplates the subjectivesatisfaction of the President and as such it follows that this satisfaction isnot justiciable. In other words, according to the respondents, the exercise ofdiscretion under s 8(1) is not open to review by the courts which thereforecannot inquire as to the grounds and the facts on which the President hasexpressed his satisfaction. In support of this contention, counsel for therespondents referred us to Karam Singh v Menteri Hal Ehwal DalamNegeri(Minister of Home Affairs) Malaysia [1969] 2 MLJ 129 and severalsubsequent cases which applied it.

47 On the other hand, counsel for Teo (whose submissions, as we havesaid, were adopted by the other appellants) argued that the aboveproposition is no longer good law and that the court can review the exerciseof the Presidents discretion under s 8(1) of the ISA. It was also submittedthat the learned trial judge had erred in law in approving the decisions inKaram Singh ([46] supra) and its progeny and in reaffirming, in Teo SohLung v Minister for Home Affairs[1988] 2 SLR(R) 30, the four propositionsof law which he had set out in his earlier judgment with respect to the otherthree appellants (De Souza Kevin Desmond v Minister for Home Affairs

[1988] 1 SLR(R) 464).48 The learned trial judge had held that the exercise of the Presidentsdiscretion under s 8 of the ISA is not justiciable, after dealing with severalcases cited by both counsel for Teo and the respondents. The learned judgealso reaffirmed the four propositions in De Souza([47] supra) after havingreviewed once again the relevant case law. In that judgment, the learnedjudge had expressed his opinion that at [22]:

[C]ourts of justice must, accordingly, give effect to the following

propositions when engaged in reviewing cases involving nationalsecurity:

(a) The subjective determination of the Minister is not justiciable:see Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home

Affairs),Malaysia[1969] 2 MLJ 129.

(b) Courts have refused to review the exercise of ministerialdiscretion when its validity is challenged in habeas corpusproceedings:see Liversidge v Anderson [1942] AC 206 and Greene v Secretary of

State for Home Affairs[1942] AC 284.




(c) Courts cannot examine or investigate the sufficiency of thematters upon which the subjective satisfaction of the Minister is or is

purported to be grounded but can examine the grounds disclosed by

the Minister to see and ensure that there has been no illegality,irrationality or procedural impropriety: see Teh Cheng Poh v PP[1979]1 MLJ 50, at 55CFperLord Diplock and the GCHQcase ([15] supra).

(d) Subject to the foregoing, those who are responsible for nationalsecurity must be the sole judges of what national security requires: seethe GCHQcase and R v Secretary of State for the Home Department, ex

p Ruddock[1987] 2 All ER 518.

49 In reaffirming these propositions in Teos case ([47] supra), thelearned judge had said at [49]:

Propositions (a), (b) and (d) and the first part of proposition (c)reflect, in my view, limits of judicial review under the supervisory and

not the appellate jurisdiction of the courts and, in cases involving

national security, they reflect the common-sense approach asenunciated in the GCHQ case ([22] supra) and the example ofapplication in Ruddocks case ([22] supra). The second part ofproposition (c) sets out the heads of judicial review so that courts can

remedy any unlawfulness in the exercise of discretionary powers.

50 Before us, it was common ground between counsel for the appellantsand the respondents that the second part of proposition (c) in the Kevin deSouza ([47] supra) judgment is inconsistent with the other propositions.Counsel for Teo urged us to approve the second part of proposition (c) andto discard the others, whilst counsel for the respondents predictably arguedagainst the second part of proposition (c) and contended that the otherpropositions should be approved instead.

51 We would agree that prima facie the inconsistency in the fourpropositions seems apparent. However, we think that in view of theclarification made by the learned judge in Teos case ([47] supra), what thelearned judge meant by these four propositions was that although anyexercise of discretion can in general be reviewed on the grounds ofillegality, irrationality or procedural impropriety, nevertheless where theexercise of discretion is on national security grounds, the court would leavethose responsible for national security to be the sole judges of what nationalsecurity requires. Looked at in this way, the so-called inconsistency doesnot exist. Be that as it may, it remains for us to deal with this threshold issueof the reviewability or justiciability of the exercise of discretion under s 8 ofthe ISA.

52 Karam Singh([46] supra), on which the respondents rely, is a decisionof the Malaysian Federal Court involving a detention under s 8 of theMalaysian ISA which is identical to s 8 of our own ISA. It was there held

that the question whether there was reasonable cause to detain the appellant




under s 8 was a matter of opinion and policy, a decision which could onlybe taken by the Executive. Suffian FJ said, at 150:

when the power to issue a detention order has been made to dependon the existence of a state of mind in the detaining authority, which is apurely subjective condition, so as to exclude a judicial inquiry into thesufficiency of the grounds to justify the detention, it would be whollyinconsistent to hold that it is open to the court to examine thesufficiency of the same grounds to enable the person detained to makea representation

and at 151:

Finally, in my opinion, it is not for a court of law to pronounce on thesufficiency, relevancy or otherwise of the allegations of fact furnishedto him Whether or not the facts on which the order of detention isto be based are sufficient or relevant, is a matter to be decided solely bythe executive. In making their decision, they have complete discretionand it is not for a court of law to question the sufficiency or relevanceof these allegations of fact.

53 It is not disputed that the subjective discretion test, applied in Karam

Singh, has since then continued to find favour with the Malaysian courts:see Yeap Hock Seng v Menteri Hal Ehwal Dalam Negeri, Malaysia [1975]2 MLJ 279 and Athappen a/l Arumugam v Menteri Hal Ehwal DalamNegeri, Malaysia[1984] 1 MLJ 67 (in respect of the Ministers discretion tomake preventive detention orders under the Emergency (Public Order andPrevention of Crime) Ordinance 1969 if satisfied that it is necessary for thepurpose of preventing the detainee from acting in any manner prejudicialto public order, etc); and more recently, Re Tan Sri Raja Khalid bin RajaHarun [1988] 1 MLJ 182, Theresa Lim Chin Chin v Inspector General of

Police [1988] 1 MLJ 293 and Karpal Singh v Menteri Hal Ehwal DalamNegeri, Malaysia[1988] 1 MLJ 468.

54 The subjective test has also been applied by the High Court ofSingapore in respect of s 8 of the ISA: Lee Mau Seng v Minister for HomeAffairs([31] supra); and in Brunei: Re Wong Mann Tung[1988] 1 MLJ 286.

55 However, having heard the extensive arguments and in the light of thedecisions cited to us of the highest courts in many Commonwealth

countries and of the Judicial Committee of the Privy Council in recentyears, we agree with the submission by counsel for the appellants that it isthe objective test that is applicable to the review of the exercise ofdiscretions under ss 8 and 10. In our judgment, the time has come for us torecognise that the subjective test in respect of ss 8 and 10 of the ISA can nolonger be supported.

56 First, we accept the contention that Karam Singh([46] supra) and itsprogeny can no longer be said to be good law in so far as the decision in

Karam Singhhad applied the case of Liversidge v Anderson([34] supra) and




its companion case Greene v Secretary of State for Home Affairs([34] supra).The House of Lords has, in recent years, recognised that the majority

judgments in both the latter cases were wrong, preferring instead the strongdissenting judgment of Lord Atkin.

57 Both Liversidge v Anderson and Greene concerned the discretion ofthe Secretary of State under reg 18B of the Defence (General) Regulations1939 to make a detention order against any person whom the Secretary ofState has reasonable cause to believe to be of hostile origin orassociations or to have been recently concerned in acts prejudicial to thepublic safety or the defence of the realm. In Liversidge the detainee had

brought an action for damages for false imprisonment and the issue aroseout of his application for particulars of the grounds on which therespondent had reasonable cause to believe that: (a) he was a person ofhostile associations; and (b) by reason thereof it was necessary to exercisecontrol over him. In Greenethe application was for leave to issue a writ ofhabeas corpus.

58 The House of Lords held in both cases that the discretion underreg 18B is a matter for the executive discretion of the Secretary of State andthat where the Secretary of State acting in good faith makes an order inwhich he recites that he has reasonable cause for his belief, a court of lawcannot inquire whether in fact the Secretary of State had reasonablegrounds for his belief. Thus the House construed reg 18B to mean if theSecretary of State thinks he has reasonable cause to believe [emphasisadded]. As a result in Liversidgeit was held the court could not compel theSecretary of State to give particulars of the grounds for his belief, and inGreenethe production of the Home Secretarys order, the authenticity andgood faith of which were not impugned, was held to constitute a complete

answer to the application for a writ of habeas corpus.

59 Lord Atkin dissented from the subjective approach taken by themajority in preference for the objective approach and held that the HomeSecretary had not been given an unconditional authority to detain. As hisLordship said in Liversidge([34] supra) at 245:

After all this long discussion the question is whether the words if aman has can mean if a man thinks he has. I am of opinion that theycannot

60 In Nakkuda Ali v M F De S Jayaratne[1951] AC 66, the Privy Councilrefused to adopt the subjective approach of the majority in Liversidge inconstruing a regulation with the words where the Controller hasreasonable grounds to believe . Liversidgewas confined to the particularregulation before the House.

61 In Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952the majority decision in Liversidgecame under further attack. Lord Diplock

felt, at 1011, that:




[T]he time has come to acknowledge openly that the majority of thisHouse in Liversidge v Anderson were expediently and, at that time,perhaps, excusably, wrong and the dissenting speech of Lord Atkin was

right.

62 Lord Scarman said, at 1025, that:

The ghost of Liversidge v Anderson [1942] AC 206 therefore casts noshadow upon this statute. And I would think it need no longer hauntthe law. It was laid to rest by Lord Radcliffe in Nakkuda Ali v Jayaratne[1951] AC 66, 77 and no one in this case has sought to revive it. It isnow beyond recall.

63 Lord Scarman had occasion to cross paths with Liversidgeonce againin R v Secretary of State for the Home Department, ex p Khawaja [1984]AC 74, where his Lordship referred to Rossminster([61] supra) and said, at110:

The classic dissent of Lord Atkin in Liversidge v Anderson [1941]AC 206 is now accepted as correct not only on the point ofconstruction of regulation 18(b) of the then emergency Regulationsbut in its declaration of English legal principle.

64 The High Court of Singapore has recently also expressed doubt overwhether the majority decisions in Liversidge([34] supra) and Greene([34]supra) can still stand in the light of all these cases which have acceptedLord Atkins dissenting judgment: see Lau Seng Poh v Controller ofImmigration[19851986] SLR(R) 180.

65 Further, we note that even the recent decisions of the MalaysianSupreme Court seem to have moved away from a strict adherence to thesubjective test, although it must be said the court did in each case refer to

the subjective test in Karam Singh([46] supra) and Liversidge([34] supra)with approval. In Re Tan Sri Raja Khalid ([53] supra), for example, thecourt was faced with habeas corpusproceedings challenging the applicantsarrest under s 73(1) of the ISA which permitted any police officer to arrestwithout warrant and to detain pending inquiries:

any person in respect of whom he has reason to believe

(a) that there are grounds which would justify his detention undersection 8; and

(b) that he has acted or is about to act in any manner prejudicialto the security of Malaysia

66 The Supreme Court held that ss 73(1) and 8 of the ISA are soinextricably connected that the subjective test should be applied to both sothat the court cannot require the police officer to prove to the court thesufficiency of the reason for his belief under s 73(1). Nevertheless, the courtwent on to hold that if facts are furnished voluntarily, as was done in that

case, for the consideration of the court, it would be naive to preclude the




[trial] judge from making his own evaluation and assessment and to come toa reasonable conclusion [emphasis added]. The Supreme Court then

upheld the trial judges order for the release of the applicant, being unableto disagree with the trial judges conclusion that the evidence did not showthat the applicant had acted in any manner prejudicial to the security of thecountry. With respect, it seems to us that despite having said that thesubjective test applied, the court in actual fact applied the objective test inevaluating and assessing the evidence to come to a reasonable conclusion.If the exercise of discretion is truly subjective, then it must be irrelevantwhether or not evidence is disclosed to the court, for of course, if thesubjective theory is right and the (decision maker) has indeed

unconditional power it is enough for him to say that he exercised thepower (perLord Atkin in Liversidge([34] supra) at 247).

67 In Theresa Lim Chin Chin v Inspector General of Police([53] supra),the Supreme Court emphasised the fact that the court will not be in aposition to review the fairness of the decision-making process by the policeand the Minister under ss 73(1) and 8 of the ISA because of the lack ofevidence since the Constitution and the law protect them from disclosingany facts if disclosure would in their opinion be against the public interest.

The court then expressed its opinion that it is for this reason that it is moreappropriately described as a subjective test, for even if the test wereobjective nothing much can be done in view of the lack of evidence. Withrespect, in our view, this approach confuses the notion of a subjectivediscretion (which by nature of its being subjective is unreviewable) with thequestion of proof in respect of an objective discretion (which would beopen to review).

68 Finally, in Karpal Singh([53] supra), the Supreme Court relied on the

distinction drawn in Karam Singh([46] supra) between allegations of factand grounds of detention in the context of s 8 of the ISA, and held that:

whilst the grounds of detention stated in the detention order areopen to challenge or judicial review if alleged to be not within the scopeof the enabling legislation, the allegations of fact upon which thesubjective satisfaction of the minister was based are not.

69 With respect, we find this distinction illogical since the allegations offact are as much evidence of the matters taken into consideration as the

grounds of detention. If a court can hold a detention order bad because, inthe courts judgment, the grounds do not fall within the scope of s 8 of theISA, then as a matter of logic the court must also be able to hold thedetention order to be bad if, in its judgment, the allegations of fact do notfall within the scope of s 8 either. In neither case can the detention order besaid to be an order properly within the scope of the enabling legislation. Itseems to us that this was also implicitly recognised by the Supreme Court inRe Tan Sri Raja Khalid([53] supra) when it upheld the trial judges decision

that the applicants arrest and detention was unlawful since the evidence




did not support the police officers alleged belief that what the applicant haddone could lead to violent action by members of the armed forces thereby

affecting the security of the nation. In any event, it is in our view adeparture from the subjective theory to hold that a court can review thegrounds on which the Presidents discretion was exercised, to determinewhether such grounds are within the scope of s 8, despite the Presidentsexpressed satisfaction that detention is necessary with a view to thepurposes stated in s 8 on those very grounds. In so doing, the court is reallyinquiring into the Presidents exercise of discretion quite objectively.

70 Secondly, we would respectfully say that we agree with judicial

opinion expressed in other jurisdictions, to the effect that the court canobjectively review the Presidents exercise of discretion in the context ofpreventive detention on national security grounds. Counsel for theappellants referred us to several cases, includingMinister of Home Affairs vAustin (1987) LRC (Const) 567, Katofa v Administrator-General for SouthWest Africa1985 (4) SA 211 (SWA) andAttorney-General of St Christopher,Nevis and Anguilla v John Joseph Reynolds [1980] AC 637. We agree withthe decisions in these cases in so far as they have rejected the subjective test.

71 In Austin ([70] supra), s 17(1) of the Emergency Powers(Maintenance of Law and Order) Regulations 1983 permitted the making ofa detention order if it appears to the minister that it is expedient in theinterests of public safety or public order to do so. The Supreme Court ofZimbabwe held that judicial review was not excluded and that thoughsubjective language had been used, the Minister had to consider objectivefacts and the court could determine whether he had acted reasonably indoing so.

72 In Katofa([70] supra), s 2(1) of the Proc AG 26 of 1978 provided that:

If the Administrator-General is satisfied:

(a) that the peaceful development of SW Africa is threatenedby violence against or intimidation of any particular person orpersons generally; and

(b) that any person committed , or in any manner promotes the commission of such violence or intimidation,

he may issue a warrant for the arrest and detention of such person.

73 It was held that objective reasonable grounds had to exist to cause theAdministrator-General to be satisfied; the mere ipse dixit of theAdministrator-General was insufficient as the court would not be able tojudge therefrom whether his reasons in law justify the detention.

74 In Reynolds([70] supra), the plaintiff was detained by the Governor ofthe State of St Christopher, Nevis and Anguilla under a detention orderwhich recited that the Governor was satisfied with respect to the plaintiff

that he had recently been concerned in acts prejudicial to the public safety




and public order, and that by reason thereof it was necessary to exercisecontrol over him. The order was made under reg 3(1) of the Emergency

Powers Regulations 1967, which reads:Detention of Persons

(1) If the Governor is satisfied that any person has recently beenconcerned in acts prejudicial to the public safety, or to public order or inthe preparation or instigation of such acts, or in impeding themaintenance of supplies and services essential to the life of thecommunity and that by reason thereof it is necessary to exercise controlover him, he may make an order against that person directing that he be

detained. [emphasis added]

75 Section 15 of the Constitution of St Christopher, Nevis and Anguillaprovided safeguards similar to Art 151(3) of our Constitution and s 16 wasin turn similar to Art 9(2). Section 35 of that Constitution also required atwo-thirds majority of the votes of elected members of the House ofAssembly to alter any of the provisions of the Constitution.

76 The Privy Council held, inter alia, that reg 3(1) of the Emergency

Powers Regulations should be construed in conformity with theConstitution and that the words if the Governor is satisfied in reg 3(1)should be construed to mean if the Governor is satisfied on reasonablegrounds. Lord Salmon in delivering the judgment of the Board said, at 656:

Their Lordships consider that it is impossible that a regulation madeon 30 May 1967 under an order in council which, on its trueconstruction, conformed with the Constitution on that date, could beproperly construed as conferring dictatorial powers on the Governor:and that is what the regulation would purport to do if the words if the

Governor is satisfied mean if the Governor thinks that etc

77 Lord Salmon also referred to the decisions in Secretary of State forEducation and Science v Tameside Metropolitan Borough Council [1977]AC 1014 and Nakkuda Ali v M F De S Jayaratne ([60] supra) as exampleswhere subjective words were construed not to give an absolute discretionand said, at 659:

The facts and background of the Tamesidecase, Liversidge v Anderson,

the Nakkuda Ali case and the present case are, of course, all verydifferent from each other. This is why their Lordships have reachedtheir conclusion as to the true construction of regulation 3(1) of theEmergency Powers Regulations 1967 in reliance chiefly on the lightshed by the Constitution, rather than on such light as may be thrownon that regulation by the authorities to which reference has been made.

78 It seems to us that the underlying basis of the decision in Reynolds([70] supra) was the Privy Councils view that the Constitution of

St Christopher, Nevis and Anguilla could not have intended to authorise




the Legislature to make any law which allows arbitrary detention. AsLord Salmon said, at 655:

It is inconceivable that a law which gave absolute power to arrest anddetain without reasonable justification would be tolerated by aConstitution such as the present, one of the principal purposes ofwhich is to protect fundamental rights and freedoms.

79 Thirdly, counsel for the appellants had argued that s 8 should beinterpreted to provide for an objective test, on constitutional grounds. Theargument proceeds by stages. Sections 8 and 10 of the ISA are exceptions tothe fundamental rights guaranteed by Arts 9, 13 and 14 of the Constitution

and should therefore be narrowly construed so as to derogate as little aspossible from such fundamental rights: Liew Sai Wah v PP [19681970]SLR(R) 8 and Ong Ah Chuan v PP[19791980] SLR(R) 710. The concept oflaw in Arts 9 and 12(1) includes both the common law principles ofnatural justice and fairness (Ong Ah Chuan v PP) and also the rightcontained in s 3 of the Habeas Corpus Act 1816 which right is alsocontained in Art 9(2). Thus the legislative powers of Parliament must notbe exercised in a manner which authorises or requires the exercise of

arbitrary power, or the exercise of power in breach of fundamental rules ofnatural justice: Ong Ah Chuan v PP. Article 149(1) protects the validity ofss 8 and 10 against any inconsistency with Art 9, 13 or 14, but not againstinconsistency with Art 12(1). Further, under Art 93 judicial power is vestedexclusively in the Supreme Court and Subordinate Courts of Singapore.Therefore, ss 8 and 10 of the ISA would be consistent with Arts 12 and 93 ofthe Constitution, and consequently valid, only if the powers which theyconfer do not authorise arbitrary powers of detention, and only if the courtscan review the exercise of these powers. Applying the subjective test to the

exercise of discretion under ss 8 and 10 of the ISA would mean giving theexecutive arbitrary powers of detention, thereby rendering such powersunconstitutional and void. Counsel referred also to Attorney-General of StChristopher, Nevis and Anguilla v Reynolds([70] supra), Teh Cheng Poh vPP[1980] AC 458 and to Liyanage v The Queen[1967] 1 AC 259.

80 In Ong Ah Chuan([79] supra), the appellant had been convicted on acharge of trafficking in controlled drugs and sentenced to death. The deathsentence was mandatory under the Misuse of Drugs Act as the amount of

drugs involved exceeded 15g. Before the Privy Council, counsel for theappellant mounted an eleventh-hour attack on the constitutional validity ofthe presumption in s 15 of the Act (presumption that possession of morethan 2g of heroin is for the purpose of trafficking) and of the mandatorydeath sentence. Their Lordships first adopted, with respect to Pt IV of theConstitution (fundamental liberties), a generous interpretation avoiding the austerity of tabulated legalism, suitable to give individuals the fullmeasure of the (fundamental liberties) referred to. Accordingly, their

Lordships rejected the respondents contention that the requirements of




Arts 9 and 12 of the Constitution are satisfied if the deprivation of life orliberty complained of has been carried out in accordance with provisions

contained in any Act passed by Parliament however arbitrary or contrary tofundamental rules of natural justice the provisions of such Act may be, solong as these provisions are of general application to all citizens ofSingapore so as to avoid falling foul of the anti-discriminatory provisions ofArt 12(1). In their Lordships view, the expression law refer to a system oflaw which incorporates those fundamental rules of natural justice that hadformed part and parcel of the common law of England that was inoperation in Singapore at the commencement of the Constitution, andwhich did not flout these fundamental rules.

81 With respect to the mandatory death sentence in cases of traffickingin more than 15g of drugs, the Privy Council held that there was noinconsistency with Art 12(1). The factor which the Legislature adopted asconstituting the dissimilarity in circumstances (iethe quantity of the drug)was held not purely arbitrary but which bore a reasonable relation to thesocial object of the law.

82 In the present case, the submission by counsel for Teo is that applying

Ong Ah Chuan ([79] supra), if the discretion in ss 8 and 10 of the ISA issubjective, that would allow arbitrary detention which would result ininconsistency with Art 12(1). We accept this argument. We would alsonote, however, that the provisions in ss 8 and 10 are not arbitrary inthemselves for they provide for the exercise of the power to detain only forspecific purposes which, to use Lord Diplocks words in Ong Ah Chuan,bear a reasonable relation to the object of the law. Nevertheless, if thediscretion is not subject to review by a court of law, then, in our judgment,that discretion would be in actual fact as arbitrary as if the provisions

themselves do not restrict the discretion to any purpose and to suggestotherwise would in our view be naive.

83 Fourthly, support for the view that the objective test is applicable canbe found in the Privy Council decision in Teh Cheng Poh v PP([79] supra).

84 In Teh Cheng Poh, the Privy Council had to consider the discretionarypower to proclaim an area as a security area under s 47 of the MalaysianInternal Security Act (which is in pari materiawith s 48 of our ISA). That

provision provided that if in the opinion of the Yang di-Pertuan Agongpublic security in any area is seriously threatened he may, if heconsiders it to be necessary proclaim such area a security area.Lord Diplock, delivering the judgment of the court, said of this discretion,at 472:

The power to proclaim an area as a security area with the consequencesthat this will entail is a discretionary one. It is for the Yang di-PertuanAgong (again, in effect, the Cabinet) to form an opinion whether

public security in any area of Malaysia is seriously disturbed or




threatened by the causes referred to in the section, and to considerwhether in his opinion it is necessary for the purpose of suppressing

organised violence of the kind described. But, as with all discretions

conferred upon the executive by Act of Parliament, this does not excludethe jurisdiction of the court to inquire whether the purported exercise ofthe discretion was nevertheless ultra vires either because it was done inbad faith (which is not in question in the instant appeal) or because as aresult of misconstruing the provision of the Act by which the discretionwas conferred upon him the Yang di-Pertuan Agong has purported toexercise the discretion when the conditions precedent to its exercise werenot fulfilled, or in exercising it, he has taken into consideration somematter which the Act forbids him to take into consideration or has failed

to take into consideration some matter which the Act requires him totake into consideration. [emphasis added]

85 And, in r

Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 0525

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Transcript of Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 0525