Monday, 27 February 2012

A judicial view of preventive detention by Chief Justice Chan Sek Keong

Like the title suggests, this is probably not an article to argue for right-ness and wrong-ness of preventive detention. If one was to hold the view that preventive detention is wrong, regardless of the evidence at hand, then perhaps the judicial view wouldn't matter? Or matter less? Can preventive detention be judicially wrong or a societal necessity to be used with limits?

As the Honurable CJ puts it, "The ISA gives extensive, but not unlimited, powers to the Government to detain persons on national security, and not political, grounds." Currently, detentions under the ISA are not subjected to judicial review. Any review would in essence be held by the Advisory Board (which consists of a High Court judge) appointed by the President. Unlike open court proceedings, Advisory Board hearings are shrouded due to their sensitive nature and classified evidence tendered. Previously, the State had argued that national security was a matter privy only to the elected government and it would itself bear all consequences of its interpretation and usage.

In CJ's article, he also pointed out that Teo Soh Lung's appeal to the Court of Appeal was dismissed on the ground that she had failed to dispel sufficiently the charge that her re-detention was not based on national security considerations (and not because the prosecution had argued that the court was powerless in this instance.)

CJ was subtle but brilliant in pointing out that judicial review was not the only matter concerning ISA – which we might to revisit another day. What was more illuminating is: What is the nature of our Constituition and who has the (moral?) authority to amend it (since the Court of Appeal did not decide on the Kesavandana doctrine)? Unlike India, we do not have a constituent assembly and our constituition was given by the Singapore parliament (UK, New Zealand are similar in that sense). And unlike India, we have been ruled by a single majority party since independence.


A judicial view of preventive detention
04:46 AM Feb 21, 2012
by Chief Justice Chan Sek Keong

Current legislation provides for three types of preventive detention, viz, the Internal Security Act (the ISA), the Criminal Law (Temporary Provisions) Act (the CLTP) and the Misuse of Drugs Act (the MDA), all of which have been constitutionalised.

The ISA is concerned with national security, the CLTP with public order and the MDA with rehabilitation of drug addicts.

Preventive detention without trial is anathema to libertarian critics. Human rights proponents have routinely asserted that the ISA and the CLTP grant the Government: "virtually unlimited powers" to detain suspects without charge or judicial review using the Internal Security Act and the Criminal Law (Temporary Provisions) Act. These laws have been used to incarcerate outspoken activists for prolonged periods without trial, as well as criminal suspects who should be charged under the penal code. In dealing with terrorism suspects, the Government should use the criminal code to prosecute in accordance with international due process standards.

The Government has always denied that the ISA has ever been used for political purposes. A 1971 case is worth noting. In Fernandez v Government of Singapore, the Government sought to extradite Fernandez from the United Kingdom for corruption offences. Fernandez resisted on the ground that he might be detained for his political opinions which he had expressed against the Government as Secretary of Malaysia-Singapore Airlines.

The House of Lords (per Lord Diplock) rejected this defence in these words: "I do not find it necessary to set out again the relevant evidence on the political aspect of the appellant's case. It is fully dealt with in the judgment of the Divisional Court. Apart from the appellant's own oral evidence which was disbelieved by the magistrate, all that has been proved is that since 1948 there has been emergency legislation in Singapore authorising the detention without trial of persons who are regarded as security risks, and that between 60 and 100 detainees are currently subject to detention thereunder. There is no evidence that anyone has been detained under this legislation merely because he has expressed political opposition to the Singapore Government such as that which the appellant claims to have expressed. Indeed such evidence as there is is to the contrary."

The ISA gives extensive, but not unlimited, powers to the Government to detain persons on national security, and not political, grounds. In Chng Suan Tze, the Court of Appeal held a detention order under the ISA was subject to judicial review and that, in such a case, the court could decide for itself whether the detention order was in truth made in connection with national security.

In other words, the President's satisfaction was subject to judicial review. If the allegations of fact in the detention order established that fact, the court would defer to the Executive's judgment to detain him as a threat to national security.

Parliament did not agree with the law as formulated, and amended the Constitution to restore the law as decided in the case of Lee Mau Seng v Minister for Home Affairs, that the President's decision would not be justiciable. The constitutional amendments expressly truncated judicial review regarding national security cases to this extent.

However, in so doing, Parliament implicitly recognised that all other kinds of executive acts (including detention orders made under the CLTP) are subject to full judicial review. Since then, the courts have applied the legality principle to, inter alia, (a) the Minister's decision under s 16 of the Newspaper and Printing Presses Act declaring a foreign newspaper as engaging in domestic politics, (b) the exercise of the clemency power of the President under Art 23 of the Constitution, (c) the prosecutorial power under Art 35(8) of the Constitution.

The judicial power is part of the basic structure of the Constitution and its exercise through judicial review is the cornerstone of the rule of law. It is the means by which the courts check illegality, whether of legislative or executive acts.

In India, the Supreme Court held in Kesavandana Bharati v State of Kerala ("the Kesavandana doctrine") that judicial review is part of the basic structure of the Indian Constitution which cannot be taken away by Parliament as it was given by a constituent assembly and not Parliament.

In Teo Soh Lung v Minister of Home Affairs, Justice F A Chua held that the Kesavandana doctrine was not applicable to the Singapore Constitution as it was given by Parliament. What Parliament gave, Parliament could take back. He also held the amendments complained of had not destroyed the basic structure of the Constitution.

Justice Chua said: "There is no abrogation of judicial power. It is erroneous to contend that the Rule of Law has been abolished by legislation and that Parliament has stated its absolute and conclusive judgment in applications for judicial review ... Parliament has done no more than enact the Rule of Law relating to the law applicable to judicial review ..."

This ruling has been criticised on the ground that it "anaemically and formalistically stated that rule of law is the rule which Parliament stipulates".

I think this comment is unfair because Parliament did not simply make a new rule. It actually amended the Constitution to make that rule and, unless the amendments were declared unconstitutional, it must be followed.

Justice Chua's rulings were followed by Lai Kew Chai J in Cheng Vincent v Minister for Home Affairs.

As a result of these two rulings, the academics have stated that (a) "the Singapore courts effectively preclude substantive of ISA cases", or (b) that "the Judiciary has abdicated its role as guardian of individual liberties and a check on state power".

But, Teo's appeal to the Court of Appeal was dismissed on the ground that she had failed to discharge the burden of proving that her re-detention was not based on national security considerations.

The Court observed that the Government had declined to argue that the court was powerless to intervene if the detention was made for reasons which had nothing to do with national security.

The Court of Appeal declined to decide whether Justice Chua was correct to hold that the Kesavandana doctrine was not applicable to any constitutional amendment of any nature.

That is the legal position today and academics may well have to revisit their analysis on this issue.

This is an excerpt from Chief Justice Chan Sek Keong's lecture, The Courts and the Rule of Law in Singapore, at the Rule of Law Symposium on Feb 15.