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[1989] 1 SLR(R) SINGAPORE LAW REPORTS (REISSUE) 461

Teo Soh Lung

v
Minister for Home Affairs and others

[1989] SGHC 108

High Court — Originating Motion No 188 of 1988

F A Chua J
25 April 1989

Administrative Law — Judicial review — Writ of habeas corpus — Detention on

grounds of national security — Whether grounds for detention justiciable — Whether
allegation of bad faith justiciable — Sections 8(1), 8A, 8B, 8C, 8D and 10 Internal
Security Act (Cap 143, 1985 Rev Ed)

Constitutional Law — Constitution — Amendment — Whether amendments valid

notwithstanding possible inconsistency with fundamental liberties — Whether
amendments violated basic features doctrine — Article 149 Constitution of the
Republic of Singapore (1985 Rev Ed)

Constitutional Law — Equality before the law — Amendments to emergency

provisions in Constitution of the Republic of Singapore (1985 Rev Ed) —
Amendments to internal security legislation — Whether amendments were
discriminatory and violated right to equal protection of the law — Article 12
Constitution of the Republic of Singapore (1985 Rev Ed) — Sections 8A, 8B, 8C and
8D Internal Security Act (Cap 143, 1985 Rev Ed)

Constitutional Law — Fundamental liberties — Right to life and personal liberty —

Preventive detention under internal security legislation — Whether executive
detention justiciable — Whether mala fides justiciable in context of preventive
detention — Subjective test of Executive’s satisfaction to justify detention —
Sections 8A, 8B, 8C and 8D Internal Security Act (Cap 143, 1985 Rev Ed) —
Articles 9, 11(1), 12, 13, 14, 21, 58(1), 93 and 149 Constitution of the Republic of
Singapore (1985 Rev Ed)

Facts
The applicant had been arrested and detained for one year pursuant to a
detention order issued under s 8(1) of the Internal Security Act (Cap 143,
1985 Rev Ed) (“the ISA”), with effect from 20 June 1987. On 26 September 1987,
the detention order was suspended subject to the applicant executing a bond and
complying with certain conditions. On 19 April 1988, the Minister exercised his
powers under s 10 of the ISA and revoked the suspension, such that the
applicant was detained once again.
On 22 April 1988, the applicant applied for a writ of habeas corpus. This was
heard and dismissed by the High Court, although her appeal to the Court of
Appeal was allowed on the ground that there was insufficient evidence of the
President’s satisfaction. In reaching its conclusion, the Court of Appeal applied a
subjective test of satisfaction under s 8(1) of the ISA.
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462 SINGAPORE LAW REPORTS (REISSUE) [1989] 1 SLR(R)

The applicant was thus released on 8 December 1988. However, the applicant
was immediately rearrested under a new detention order on the same day.
In January 1989, Parliament amended Art 149 of the Constitution of the
Republic of Singapore (1985 Rev Ed) (“the Constitution”) and added four new
provisions (ss 8A to 8D) to the ISA. Section 8B of the ISA reaffirmed the law as
laid down in Lee Mau Seng v Minister for Home Affairs [1971–1973] SLR(R) 135
(“Lee Mau Seng”), viz that a subjective test applied to determine the President’s
satisfaction under s 8(1) of the ISA. The court in Lee Mau Seng also held that
mala fides or bad faith was not a justiciable issue in the context of the ISA.
Two issues were raised in the present case. First, whether the purported
amendments to the Constitution and the ISA had the effect of depriving the
applicant of her right to effective judicial review of the legality, rationality and
constitutionality of her detention under the ISA. Second, if so, whether the
amendments contravened the Constitution such that they were void.

Held, dismissing the motion:

(1) The purported amendments to the Constitution and the ISA had the effect
of depriving the applicant of her right to judicial review of her detention under
the ISA. The new s 8B(1) of the ISA reaffirmed the law governing judicial
discretion as laid down in Lee Mau Seng that the subjective test applied in
determining the proper exercise of the discretionary power of the President or
the Minister under the ISA. Therefore, any principles inconsistent with this
could not apply to the present case. The respondents could not be required to
adduce any other evidence apart from the grounds and allegations of fact to
prove to the court that their decision was in fact based on national security
considerations. Additionally, the applicant could not challenge the respondents’
decision on the basis of mala fides or bad faith because this was not a justiciable
issue in the context of the ISA: at [15] and [16].
(2) Parliament had not conferred on the court a power to investigate into the
good faith or otherwise of the President. Under the scheme of the ISA,
Parliament had left to the Cabinet and the President acting in accordance with
the advice of the Cabinet to determine whether it was necessary in the interests
of national security to detain a person. Parliament had not sought in the ISA to
define activities which were prejudicial to national security, and had left this
matter for the Executive to determine as a matter of policy and judgment. The
Executive had acted upon its jurisdiction conferred by Parliament in this case.
Therefore, the court would not investigate into the good faith of the President as
this would be inconsistent with the scheme intended by Parliament: at [19] and
[20].
(3) The Kesavananda or basic features doctrine was not applicable to our
Constitution. The power to amend our Constitution was therefore wide and
unlimited. If the framers of the Singapore Constitution had intended limitations
on the power of amendment, they would have expressly provided for such
limitations. Article 5 of the Constitution did not impose any limitations on the
power of amendment. Considering the differences in the making of the Indian
and Singapore Constitutions, it could not be said that our Parliament’s power of
amendment was limited in the same way as the Indian Parliament’s power to
amend the Indian Constitution. In any case, none of the amendments
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 463

complained of had destroyed the basic structure of the Constitution: at [33],

[34], [47].
(4) There was no abrogation of judicial power. The purported amendments
were only intended to ensure that the clear intent of Parliament was not
disregarded. A reaffirmation of principles laid down by the courts could not be
said to be objectionable as usurping judicial power or being contrary to the rule
of law. Parliament had done no more than to enact the rule of law relating to the
law applicable to judicial review. The legislation did not direct the court to enter
a particular judgment or dismiss a particular case. The court was left to deal with
the case on the basis of the amendments: at [48].
(5) The question whether a particular provision in any law enacted pursuant
to Art 149 was designed to deal with a particular situation was non-justiciable.
Preventive detention related to national security which was the responsibility of
the Executive. It was clear from the Constitution and the ISA, especially after the
purported amendments, that Parliament intended to leave the question as to
whether preventive detention was necessary in a particular case to the subjective
satisfaction of the Executive: at [49].
(6) There was nothing unlawful about the amendments to the Constitution
and the ISA. The amendments were of general application and merely restored
the law to what it had been all along for many years ie, the subjective test of
satisfaction under s 8(1) of the ISA: at [60].
[Observation: The new ss 8A, 8B, 8C and 8D, and s 10 of the ISA were not
inconsistent with Art 12 of the Constitution. The provisions were not
discriminatory since they applied to all cases of preventive detention under the
ISA without exception. The abolition of the right of appeal to the Privy Council
also did not deny the applicant of the right to equal protection of the law as
provided under Art 12(1) as all ISA detainees, present or future, and all parties to
pending habeas corpus actions in the High Court, were equally denied the right
of appeal to the Privy Council. All parties were treated equally before the law.
The decision to proceed under the ISA was within the discretion of the
Executive. All that equality required was that the Executive gave unbiased
consideration whether to proceed under the ISA or under the ordinary law: at
[55] and [58].]

Case(s) referred to
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (distd)
Chng Suan Tze v Minister of Home Affairs [1988] 2 SLR(R) 525; [1988] SLR 132
(distd)
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374;
[1984] 3 All ER 935 (folld)
Duport Steels Ltd v Sirs [1980] 1 WLR 142; [1980] 1 All ER 529 (refd)
Endell Thomas v A-G of Trinidad and Tobago [1982] AC 113 (refd)
Government of the State of Kelantan v Government of the Federation of Malaya
[1963] MLJ 355 (folld)
Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs),
Malaysia [1969] 2 MLJ 129 (refd)
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 (distd)
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464 SINGAPORE LAW REPORTS (REISSUE) [1989] 1 SLR(R)

Lee Mau Seng v Minister for Home Affairs [1971–1973] SLR(R) 135; [1969–1971]
SLR 508 (folld)
Lim Chin Chin Theresa v Inspector General of Police [1988] 1 MLJ 293 (refd)
Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 (folld)
Minerva Mills Ltd v Union of India [1981] 1 SCR 206 (distd)
Minister for Home Affairs, Malaysia v Karpal Singh [1988] 3 MLJ 29 (folld)
Moses Hinds v R [1977] AC 195 (refd)
Ong Ah Chuan v PP [1979–1980] SLR(R) 710; [1980–1981] SLR 48 (refd)
P Sambamurthy v State of Andhra Pradesh AIR 1987 SC 663 (distd)
PP v Khong Teng Khen [1976] 2 MLJ 166 (refd)
Phang Chin Hock v PP [1980] 1 MLJ 70 (refd)
R v Halliday [1917] AC 260 (folld)
Yeap Hock Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279 (refd)
Zamora, The [1916] 2 AC 77 (folld)

Legislation referred to
Constitution of the Republic of Singapore (1985 Rev Ed) Arts 9, 11(1), 12, 13, 14,
21, 58(1), 93, 149 (consd);
Arts 4, 5(1), 5(2), 11
Constitution of the Republic of Singapore (Amendment) Act 1989 (Act 1 of
1989) s 3
Internal Security Act (Cap 143, 1985 Rev Ed) ss 8(1), 8A, 8B, 8C, 8D, 10 (consd);
ss 11, 12(2)
Internal Security (Amendment) Act 1989 (Act 2 of 1989)
Constitution (Amendment) Act 1976 (A354 of 1976) (M’sia)
Defence of the Realm Consolidation Act 1914 (c 8) (UK) reg 14B
Emergency (Essential Powers) Act 1979 (No 216 of 1979) (M’sia) ss 2(4), 9(3),
12
Federal Constitution (M’sia) Arts 5(4), 159
Restricted Residence Enactment (M’sia)

Anthony Lester QC, Patrick Seong and Roslina Baba (Seong Tang & Partners;
Teo Lai & Lee) for the applicant;
S Tiwari, Joyce Huen and Soh Tze Bian (Attorney-General’s Chambers) for the
respondents.

[Editorial note: The appeal to this decision in Civil Appeal No 30 of 1989 was
dismissed by the Court of Appeal (Wee Chong Jin CJ, Chan Sek Keong and
L P Thean JJ) on 3 April 1990. See [1990] 1 SLR(R) 347.]

25 April 1989 Judgment reserved.

F A Chua J:
1 This is an application by Teo Soh Lung (“the applicant”) for a writ of
habeas corpus. The applicant is presently detained at Whitley Road Centre,
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 465

Onraet Road, Singapore, under a detention order served on her on

8 December 1988.
2 The applicant was first arrested by officers from the Internal Security
Department (“the ISD”) on 21 May 1987. A detention order for a period of
one year with effect from 20 June 1987 was made against her on
19 June 1987 pursuant to s 8(1) of the Internal Security Act (Cap 143) (“the
ISA”). On 26 September 1987 the detention order against the applicant was
suspended subject to the execution of a bond and compliance with certain
conditions. On 19 April 1988, the minister, in exercise of his powers under
s 10 of the ISA, revoked the suspension direction dated 26 September 1988
with immediate effect from 19 April 1988. The applicant was again detained
at the Whitley Road Centre.
3 On 22 April 1988, the applicant applied for a writ of habeas corpus.
The application was heard by the High Court by Lai Kew Chai J and the
application was dismissed on 2 August 1988 (see Teo Soh Lung v Minister of
Home Affairs [1988] 2 SLR(R) 30). The applicant appealed to the Court of
Appeal (Civil Appeal No 81 of 1988) (see Chng Suan Tze v Minister of
Home Affairs [1988] 2 SLR(R) 525) and on 8 December 1988, her appeal
was allowed on the ground that there was no sufficient evidence of the
President’s satisfaction as required under s 8(1) of the ISA. An order for her
immediate release was made. In the appeal, legal issues were raised on the
applicant’s behalf. Although the Court of Appeal did not adjudicate upon
them, it did, however, deal with them. A summary of its conclusions is set
out in the judgment. The conclusion which is relevant to the present
proceedings is conclusion (f) (at [139]) where the Court of Appeal stated
that:
The President’s satisfaction under s 8 of the ISA and the Minister’s
satisfaction under s 10 of the ISA are both reviewable by a court of law
as:
(i) the subjective test adopted in Karam Singh and its progeny can
no longer be supported and the objective test is applicable upon a
judicial review of the exercise of these discretion;

4 The order for release was served on the officer in charge of the
Whitley Road Centre at about 4.40pm the same day. At about 4.45pm the
same day, the applicant was placed in a car and driven out of the gate of the
Whitley Road Centre for a few hundred metres. The applicant was then
served with a new detention order dated 8 December 1988, for the period
8 December 1988 to 19 June 1989 and arrested.
5 Certain events which occurred in Parliament in January 1989 are
relevant to the submissions of counsel for the applicant. On
16 January 1989, the Government introduced two measures in Parliament:
the Constitution of the Republic of Singapore (Amendment) Act 1989
(Act 1 of 1989) which was passed by Parliament on 25 January 1989, and
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466 SINGAPORE LAW REPORTS (REISSUE) [1989] 1 SLR(R)

came into operation on 27 January 1989; the Internal Security

(Amendment) Act 1989 (Act 2 of 1989) which was passed by Parliament on
25 January 1989, and came into operation on 30 January 1989.
6 By the Act No 1 of 1989, Art 149 of the Constitution of the Republic
of Singapore (“the Constitution”) was amended. The article as amended
provides as follows (the amendment is in italics):
(1) If an Act recites that action has been taken or threatened by any
substantial body of persons, whether … inside or outside Singapore —
(a) to cause, or to cause a substantial number of citizens to
fear, organized violence against persons or property;
(b) to excite disaffection against the President or the
Government;
(c) to promote feelings of ill-will and hostility between
different races or other classes of the population likely to cause
violence;
(d) to procure the alteration, otherwise than by lawful means,
of anything by law established; or
(e) which is prejudicial to the security of Singapore.
any provision of the law designed to stop or prevent that action or any
amendment to that Law or any provision in any law enacted under the
provisions of clause (3) is valid notwithstanding that it is inconsistent
with Articles 9, 11, 12, 13 or 14, or would, apart from this Article, be
outside the legislative power of Parliament.
(2) A law containing such a recital as is mentioned in clause (1)
shall, if not sooner repealed, cease to have effect if a resolution is passed
by Parliament annulling such law, but without prejudice to anything
previously done by virtue thereof or to the power of Parliament to
make a new law under the Article.
(3) If, in respect of any proceedings whether instituted before or
after the commencement of this clause, any question arises in any court
as to the validity of any decision made or act done in pursuance of any
power conferred upon the President or the Minister by any law
referred to in his Article, such question shall be determined in
accordance with the provisions of any … law as may be enacted by
Parliament for this purpose; and nothing in Article 93 shall invalidate
any law enacted pursuant to this clause.
7 By the Act No 2 of 1989, the Internal Security Act (Cap 143) was
amended by the addition of four new provisions: ss 8A, 8B, 8C and 8D as
follows:
8A In this Part, ‘judicial review’ includes proceedings instituted by
way of:
(a) an application for any of the prerogative orders of
mandamus, prohibition and certiorari;
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 467

(b) an application for a declaration or an injunction;

(c) any writ of habeas corpus; and
(d) any other suit or action relating to or arising out of any
decision made or act done in pursuance of any power conferred
upon the President or the Minister by any provision of this Act.
8B(1) Subject to the provisions of subsection (2), the law governing
the judicial review of any decision made or act done in pursuance of
any power conferred upon the President or the Ministry by the
provisions of this Act shall be the same as was applicable and declared
in Singapore on the 13th day of July 1971; and no part of the law
before, on or after that date of any other country in the
Commonwealth relating to judicial review shall apply.
(2) There shall be no judicial review in any court of any act done or
decision made by the President or the Minister under the provisions of
this Act save in regard to any question … relating to compliance with
any procedural requirement of this Act governing such act or decision.
8C Notwithstanding the provisions of any other written law, no
appeal shall lie in the Judicial Committee of Her Britannic Majesty’s
Privy Council in any proceedings instituted by way of judicial review in
respect of any decision made or act done under this Act or in respect of
any question of interpretation of the provisions of Part XII of the
Constitution or any law made thereunder.
8D Sections 8A, 8B and 8C shall apply to any proceedings instituted
by way of judicial review of any decision made or act done under the
provisions of this Act, whether such proceedings have been instituted
before or after the commencement of the Internal Security
(Amendment) Act 1989.

8 The purpose of s 8B(1) of the ISA is to reaffirm the law as laid down in
Lee Mau Seng v Minister for Home Affairs [1971–1973] SLR(R) 135, the
decision having been given on 13 July 1971. In Lee Mau Seng the applicant
applied for a writ of habeas corpus. He was arrested without a warrant by a
police officer and an order for detention was made by the Minister for
Home Affairs under s 8(1) of the Internal Security Act directing that he be
forthwith detained for a period of two years. The decision of the High Court
was that the sufficiency and relevancy of the consideration upon which the
Executive detained the applicant under s 8(1) of the ISA were matters for
the subjective satisfaction of “the President acting in accordance with the
advice of the Cabinet or of a Minister acting under the general authority of
the Cabinet” (the subjective test). The court also held that “mala fides” or
bad faith is not a justiciable issue in the context of the ISA.
9 Mr Lester QC says that but for the amendments made to Art 149 of
the Constitution and to the ISA, the applicant would undoubtedly have
been entitled to rely on the Court of Appeal’s judgment in her favour on the
relevant issues of law both when challenging the new detention order of
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8 December 1988, and when seeking damages for tortious conduct in

relation to her previous detention in the action instituted before the
commencement of the Internal Security (Amendment) Act 1989. Two main
questions were raised by Mr Lester:
(1) do the purported amendments have the effect of depriving Teo
Soh Lung of the right to effective judicial review of the legality, the
rationality, and the constitutionality … of her detention purported
under the ISA?
(2) if so, are they valid amendments, or are they contrary to the
supreme law of the Constitution and therefore void?

The first question

10 Mr Lester’s submission is that the amendments do not have the effect
of depriving the applicant of the right to judicial review of the legality, the
rationality, and the constitutionality of her detention under the ISA.
Mr Lester argues that nothing in Art 149 as amended of itself prevents the
courts from reviewing the legality, rationality and constitutionality of the
new or the prior detention orders. Section 8A defines “judicial review” in
very broad terms in an attempt to destroy the applicant’s pending legal
proceedings. It expressly covers not only the present application for a writ
of habeas corpus, but also the application for judicial review and the action
for damages instituted before the commencement of the Internal Security
(Amendment) Act 1989.
11 Mr Lester submits that ss 8B(1) and 8B(2) do not cover the present
application. The applicant does not seek judicial review of any act done or
decision made by the President or the minister in pursuance of any power
conferred upon the President or the minister by the provisions of the ISA or
under the provisions of the ISA. She seeks the judicial review of acts and
decisions of the President or the minister which purport to have been done
or purport to have been made in pursuance of the powers conferred by s 8
of the ISA or under the provisions of the ISA but which were in fact done
for improper purposes and in a manner which was illegal, irrational and
unconstitutional and beyond the scope of the powers conferred by the ISA
and hence null and void. Mr Lester cites the House of Lords case of
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 as the
leading case on the principles to be applied on the construction of statutory
provisions ousting or limiting the ordinary jurisdiction of the court. The
Privy Council, says Mr Lester, has also stated its approval of the principle in
Anisminic in the case of Endell Thomas v A-G of Trinidad and Tobago
[1982] AC 113. Mr Lester submits that the principle of strict construction
applies to the new ss 8A and 8B of the ISA.
12 Mr Lester says that s 8B(1) is plain and unambiguous. It expressly
refers to any decision made or act done “in pursuance of any power
conferred upon the President or the minister by the provisions of the Act”.
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 469

Mr Lester argues that it has no application to a decision made or act done

otherwise than in pursuance of any such power. Accordingly, subject to
s 8B(2), the court is not prevented from applying the legal principles
enunciated by the Court of Appeal in its judgment of 8 December 1988, in
adjudicating upon the applicant’s challenge to the purported decisions and
acts of the President and the minister, outside the proper scope of their
statutory powers. Mr Lester says as regards s 8B(2), it refers to “any act or
decision made by the President or the minister under the provisions of the
Act”. He argues that an “act or decision” refers to a real act or decision and
does not include an apparent or purported act or decision, which is a
nullity. Accordingly, the ouster clause in s 8B(2) does not bar the present
application. Mr Lester states that the nature of the applicant’s case is that, in
purporting to make their decisions and to act, the minister and the
President (acting on the advice of the Cabinet: Art 21 of the Constitution)
have misconstrued s 8 and s 10 of the ISA, have acted in bad faith and for
improper purposes, have had regard to irrelevancies, have disregarded
relevant considerations and have acted outside the scope of the ISA. He
submits nothing in s 8B(2) prevents the court from adjudicating upon the
merits of that claim, in the light of all the evidence which is before the court.
So much for the arguments and submissions of Mr Lester.
13 The Court of Appeal in Chng Suan Tze v Minister of Home Affairs ([3]
supra) allowed the applicant’s appeal solely on the technical ground that the
respondents had not adduced admissible evidence of the President’s
satisfaction. What constituted admissible evidence under s 8 of the ISA is
the only ratio decidendi of the case. All other matters mentioned in the
court’s conclusions are obiter dicta. Those observations of the Court of
Appeal on the applicability of the objective test, evidence of national
security, Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of
Home Affairs), Malaysia [1969] 2 MLJ 129, review on the grounds of
illegality, irrationality and procedural impropriety, and burden of proof, etc
cannot apply to the present proceedings in the light of the new ss 8B(1) and
8B(2) of the ISA. Section 8B(1) clearly lays down that the subjective test
applies to the exercise of the powers pursuant to ss 8 and 10 of the ISA and
s 8B(2) provides that there is 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.
14 The burden of proof is on the applicant to prove that her detention is
unlawful as the respondents have produced a valid detention order and
evidence of the subjective satisfaction of the President acting on the advice
of the Cabinet.
15 As I have said the new s 8B(1) reaffirms the law governing judicial
review as laid down in Lee Mau Seng ([8] supra) that the subjective test
applies in determining the proper exercise of the discretionary power of the
President or the minister under the ISA. In the light of this new provision
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470 SINGAPORE LAW REPORTS (REISSUE) [1989] 1 SLR(R)

any principles inconsistent with the law laid down in Lee Mau Seng cannot
apply to the present case. The respondents cannot be required to adduce
any other evidence apart from the grounds and allegations of fact to prove
to the court that their decision was in fact based on national security
considerations. Any such requirement would be contrary to s 8B(2).

16 The applicant’s challenge on the grounds of mala fides and improper

purpose cannot be raised in the present proceedings. In Lee Mau Seng the
court held that “mala fides” or bad faith is not a justiciable issue in the
context of the ISA and the power conferred by the Act on the President who
had to act in accordance with the advice of the Cabinet to direct the issue of
the order of detention if he is satisfied under the Act that it is necessary to
do so.

17 Mr Lester has urged that the proper legal principles to be applied in

the present case are those enunciated in Anisminic ([11] supra). I am of the
view that the principles in Anisminic are not applicable to the present case.
Anisminic at most decided that there was a presumption that the court was
not precluded from inquiry whether a decision of a tribunal was acting
outside its jurisdiction. In that case their Lordships recognised that whether
any nullity or lack of jurisdiction had arisen depended on the interpretatory
power conferred upon the tribunal. The question therefore was whether the
tribunal in making its decision had stayed within the mandate given to it by
Parliament. It is clear that in the view of the Privy Council in Endell Thomas
v A-G of Trinidad and Tobago ([11] supra) that a situation would only fall
outside the jurisdiction of an authority on the Anisminic principles only if
the authority did something obviously outside the powers conferred on it.

18 In Anisminic it was clear from the legislation in question that

Parliament had not conferred on the Commission the power to define
persons qualified to recover compensation. Parliament had exhaustively
laid down the criteria defining persons qualified to recover compensation.
On a proper interpretation of the legislation, a person was qualified to
recover compensation on the sole condition that he was a British national.
The Commission was not empowered to require the further qualification
that the assignee had to be a British national as well. The scheme of the
legislation merely enabled the Commission to administer compensation
within fixed and determined limits which the Legislature itself had laid
down. The preclusive clause could not, therefore, have any application
except to a determination made within the limits of the definitions,
conditions and prescribed matters fixed by Parliament.

19 The scheme under the ISA is clearly different. Parliament has left to
the Cabinet and the President acting in accordance with the advice of the
Cabinet to determine whether it is necessary in the interests of national
security to detain a person. Parliament has not sought in the ISA to define
activities which are prejudicial to national security. It is for the Executive to
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 471

determine as a matter of policy and judgment whether certain activities are

prejudicial to national security.
20 In this case the Executive has acted upon its jurisdiction conferred by
Parliament. The Minister of Home Affairs in his affidavit has stated that the
Cabinet and the President acting in accordance with the advice of the
Cabinet were satisfied that the applicant had acted in a manner prejudicial
to the security of Singapore by being involved in a Marxist conspiracy to
subvert the existing social order with a view to establishing a socialist state.
To allow the court to investigate into the good faith or otherwise of the
President who was to act in accordance with the advice of the Cabinet in
arriving at his satisfaction would be inconsistent with the scheme intended
by Parliament. Section 11 of the ISA provides that a person detained under
s 8 may make representations against his detention order. Section 12(2)
provides that upon considering the recommendation of the advisory board,
the President may give the minister such direction, if any, as he thinks fit
regarding the order made by the minister and every decision of the
President therein would be final and shall not be called in question in any
court. The answer to Mr Lester’s first question is, therefore, “Yes”.

The second question

21 The submission of Mr Lester is that the purported amendments to
Art 149 of the Constitution are contrary to the supreme law of the
Constitution and are not valid amendments. On the assumption that the
purported amendments to Art 149 are valid, he submits the purported
amendments to s 8 of the ISA do not come within the legislative powers
conferred by Art 149 as amended and are ultra vires Art 149 as amended
and therefore void.
22 Mr Lester’s argument is this. The ISA was made pursuant to Art 149
rather than Art 58(1) of the Constitution. As regards the Internal Security
(Amendment) Act 1989, it purports to have been made pursuant to
Art 149(3) of the Constitution. Article 149 is therefore the empowering
provision. Article 149, both in its original and in its amended form, severely
derogates from the fundamental rights and freedom of the individual,
guaranteed by Pt IV of the Constitution. As such, it should be given a strict
interpretation against the state and a generous interpretation in favour of
the individual. (See Ong Ah Chuan v PP [1979–1980] SLR(R) 710.)
23 The unamended Art 149(1) provides that, if an Act recites that action
has been taken or threatened by any substantial body of persons, whether
inside or outside Singapore, of the kind specified in Arts 149(1)(a) to (e)
“any provision of that law designed to stop or prevent that action is valid
notwithstanding that it is inconsistent with art 9, 13 or 14, or would, apart
from this Article, be outside the legislative Power of Parliament”. Mr Lester
contends that the unamended Art 149(1) thus validates only a particular
provision of a law, and it does so only if that provision is “designed to stop
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472 SINGAPORE LAW REPORTS (REISSUE) [1989] 1 SLR(R)

or prevent” subversive action of the kind specified in (a) to (e) of

Art 149(1).

24 The amendment to Art 149(1) adds “any amendment to that law or

any provision in any law enacted under the provisions of clause (3)”. Each
of these two further limbs is governed, says Mr Lester, by the overriding
requirement that the amendment or the provision in question are
themselves “designed to stop or prevent” subversive action of the kind
specified in Arts 149(1)(a) to (e). Mr Lester argues that if the amendment or
provision, purporting to be made under the new Art 149(3) is not designed
to stop or prevent subversive action of the kind specified in Art 149(1), it is
ultra vires. Mr Lester contends that Art 149(3) and the amendments to the
ISA should not be construed literally but purposively, having regard to the
character and origin of the Constitution, to the structure of the
Constitution as a whole, to the context in which Art 149 is placed and to the
need for a generous interpretation in favour of individual freedom, then
Art 149(3) cannot possibly be given an arbitrary and irrational
interpretation.

25 Mr Lester says that it is significant that Art 149 is included in Pt XII of

the Constitution, which is entitled “Special Powers Against Subversion and
Emergency Powers”. The powers which it confers are special and to be used
only against subversion. The legislative powers conferred by Art 149 are in
derogation from fundamental rights and freedoms and as such, they should
be construed strictly, allowing no greater derogation than is necessary in
the interests of national security. Mr Lester submits that the proper
approach as regards the interpretation of the legislative powers conferred
by Art 149 as amended is reflected in the Report of the Federation of
Malaya Constitutional Commission 1957, chaired by Lord Reid, which
observed:
… but Parliament should not be entitled to authorize infringements of
such a character that they cannot properly be regarded as designed to
deal with the particular situation. It would be open to any person
aggrieved by the enactment of a particular infringement to maintain
that it could not properly be so regarded and to submit the question for
decision by the court.

26 Mr Lester submits that the legislative powers conferred by Art 149 as

amended does not authorise legislation which sanctions or facilitates the
misuse of the powers conferred by the ISA in a manner or for purposes
other than to stop or prevent subversive action of the type prescribed by
Art 149(1). Mr Lester contends that the aims and the purported effects of
the amendments to Art 149 of the Constitution and to s 8 of the ISA by the
addition of ss 8A, 8B, 8C and 8D are:
(a) to deprive the applicant of the fruits of her victory on the central
legal issues in the Court of Appeal, and to do so retrospectively;
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 473

(b) to destroy all the applicant’s pending legal proceedings;

(c) to authorize the applicant’s arbitrary detention;

(d) to retrospectively deny to the applicant the right to appeal to the

Privy Council in these proceedings and in any other pending or future
proceedings and in any other pending or future proceedings in respect
of any of her periods of detention, thereby to discriminate against her
by denying her the right to the equal protection of the law, as provided
for in art 12(1) of the Constitution;

(e) to deny to the applicant not only the protection of the rule of law
interpreted and applied by an independent and impartial judiciary, but
also the protection of the specially entrenched fundamental liberties
enshrined in arts 11(1) and 12(1) of the Constitution; and

(f) to violate the separation of powers, guaranteed by the

Constitution, as between the legislature, the executive and the
judiciary, by usurping the power of the independent judiciary for the
impartial determination on the justiciable question whether the
executive’s decision in any particular case was in fact based upon
national security considerations.

27 Mr Lester submits that these amendments fall outside the legislative

powers conferred by Art 149 as amended, because they are not designed to
stop or prevent subversive action of the kind specified in Art 149(1),
Mr Lester says they purport to immunise from judicial review acts done and
decisions made in bad faith, for improper purposes, irrelevant to the
stopping or prevention of subversive action. They purport retrospectively
to deprive the applicant of the benefit of the Court of Appeal’s decision and
of the right of appeal to the Privy Council in respect of her pending as well
as any future claims. None of them is designed to stop or prevent subversive
action. Each of them is designed to authorise arbitrary acts and decisions
outside the rule of law. They are therefore ultra vires and void and do not
debar the applicant’s claim to habeas corpus. Mr Lester submits that the
purported amendments to the Constitution are invalid. Mr Lester’s
arguments are as follows.

28 Article 4 of the Constitution provides that “This Constitution is the

supreme law of the Republic of Singapore and any law enacted by the
legislature after the commencement of this Constitution which is
inconsistent with this Constitution, to the extent of the inconsistency be
void.” Article 5(1) of the Constitution provides that, “Subject to this Article
and Article 8, the provisions of this Constitution may be amended by a law
enacted by the legislature.” Article 5(2) of the Constitution provides that “A
Bill seeking to amend any provision in this Constitution shall not be passed
by Parliament unless it has been supported on Second and Third Readings
by the votes of not less than two-thirds of the total number of the Members
thereof.”
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29 The applicant does not dispute that in the present case the
requirements of Art 5(2) have been satisfied. The applicant, however, does
dispute that s 3 of the Constitution of the Republic of Singapore
(Amendment) Act 1989 read on its own and read with the Internal Security
(Amendment) Act 1989, constitutes a “law” within the meaning of Art 5(1).
Mr Lester contends that the Legislature is empowered only to enact laws.
Mr Lester submits that the amendments which have been made are not the
enactment of a “law” within the meaning of Art 5(1). He argues that the
amendments amount to a direction that the applicant’s pending
proceedings (the civil claim for damages in tort, the stayed application for
judicial review and the present application for habeas corpus) must fail and
should be discharged. They are a direct disposal of her proceedings by the
Legislature itself, and are therefore judicial acts and not the enactment of a
“law” within the meaning of Art 5(1).

30 Mr Lester further submits that Parliament’s powers to amend the

Constitution are limited not only by the express provisions of Art 5 but also
by implied limitations upon the amending power which are derived from
the basic structure of the Constitution itself. Mr Lester says that the Privy
Council has not had occasion to decide this fundamental question about
implied limitations upon the power to amend a written constitution so as to
damage the basic features of the Constitution or so as to destroy its basic
structure. Mr Lester, however, relies on two decisions of the Supreme Court
of India: Minerva Mills Ltd v Union of India [1981] 1 SCR 206 and P
Sambamurthy v State of Andhra Pradesh AIR 1987 SC 663.

31 Mr Lester contends that in Ong Ah Chuan ([22] supra) the Privy

Council made it clear that the Singapore Constitution is founded on the
Westminster model and incorporates the rule of law, including the
fundamental rules of natural justice. Mr Lester also contends that in Moses
Hinds v R [1977] AC 195 the Privy Council made it clear that the Singapore
Constitution embodies the “basic principle of separation of powers”
including preserving the exclusive functions of the courts in exercising
judicial power. Mr Lester submits that Parliament is not empowered to
amend the Constitution in a manner which has violated the basic structure
of the Constitution and exceeded its legislative powers by:

(a) usurping judicial power exclusively vested in the judiciary, in

breach of the separation of powers;

(b) depriving the applicant of the protection of the law, including

the rule of law, as regards the matters of which she has complained in
the pending and present proceedings;

(c) without recourse to judicial review under the Constitution or at

common law (except for failure to comply with purely procedural
requirements);
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 475

(d) authorising the applicant to be punished by being detained

without trial, even though she has committed no wrongdoing and
even though her detention and punishment are for improper
purposes;
(e) acting retrospectively; and
(f) enacting what is in essence a conclusive and retrospective
legislative judgment that the Executive is entitled, whatever the true
facts of the applicant’s case, to detain her on grounds which may be
improper and irrelevant or punitive and discriminatory, without
liability in private law or in public law.
32 So much for the arguments and submissions of Mr Lester made on
behalf of the applicant.
33 In Minerva Mills Ltd ([30] supra) the Supreme Court of India agreed
with the majority view in Kesavananda Bharati v State of Kerala AIR
1973 SC 1461 that every provision of the Indian Constitution could be
amended by Parliament provided in the result the basic foundation and
structure of the Constitution remained the same (“ the Kesavananda
doctrine”). Ray J (one of the dissenting judges) in Kesavananda said that
since constitutional law is the source of all legal validity and is itself always
valid, “an amendment being the Constitution itself can never be invalid. An
amendment is made if the procedure is complied with. Once the procedure
is complied with it is a part of the Constitution” (at para 788). Ray J also
said at para 1078:
… The power to amend is wide and unlimited. The power to amend
means the power to add, alter or repeal any provision of the
Constitution. There can be or is no distinction between essential and
inessential features of the Constitution to raise any impediment to
amendment of alleged essential … features. Parliament in exercise of
constituent power can amend any provision of this Constitution.

34 If the framers of the Singapore Constitution had intended limitations

on the power of amendment, they would have expressly provided for such
limitations. But Art 5 of the Constitution does not put any limitation on the
amending power.
35 If the courts have the power to impose limitations on the Legislature’s
power of constitutional amendments, they would be usurping Parliament’s
legislative function contrary to Art 58 of the Constitution. Article 5
expressly provides that any provisions of the Constitution can be amended
by a two-thirds majority in Parliament. In the words of Ray J in
Kesavananda ([33] supra) (at para 932):
Fundamental or basic principles can be changed. There can be radical
change in the Constitution like introducing a Presidential system of
government for a cabinet system or a unitary system for a federal
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system. But such amendment would in its way bring all consequential
changes for the smooth working of the new system.

36 At para 959:
… those who frame the Constitution also know that new and
unforeseen problems may emerge, that problems once considered
important may lose their importance because priorities have changed;
that solutions to problems once considered right and inevitable are
shown to be wrong or to require considerable modification; that
judicial interpretation may rob certain provisions of their intended
effect; that public opinion may shift from one philosophy of
government to another. … The framers of the Constitution did not put
any limitation on the amending power because the end of a
Constitution is the safety, the greatness and well-being of the people.
Changes in the Constitution serve these great ends and carry out the
real purposes of the Constitution.

37 Lord Diplock in Hinds ([31] supra) envisaged that even fundamental

provisions of a constitution on the Westminster model could be amended
by following the proper procedure provided by the Constitution. He said
(at 214):
[A] constitution on the Westminster model represents the final step in
the attainment of full independence by the peoples of a former colony
or protectorate, the constitution provides machinery whereby any of its
provisions, whether relating to fundamental rights and freedoms or to
the structure of government and the allocation to its various organs of
legislative, executive or judicial powers, may be altered by those peoples
through their elected representatives in the Parliament acting by
specified majorities, which is generally all that is required, though
exceptionally as respects some provisions the alteration may be subject
also to confirmation by a direct vote of the majority of the peoples
themselves. … [emphasis added]

38 The Malaysian courts have declined to follow the Kesavananda

doctrine (see Government of the State of Kelantan v Government of the
Federation of Malaya [1963] MLJ 355, Loh Kooi Choon v Government of
Malaysia [1977] 2 MLJ 187, Phang Chin Hock v PP [1980] 1 MLJ 70. In Loh
Kooi Choon a constitutional amendment was considered which had the
effect of abridging a fundamental right. The amendment was effected by
Malaysian Act A354 of 1976 [Constitution (Amendment) Act 1976 (A354
of 1976)], which provided in effect that the right of an arrested person to be
produced before a magistrate within 24 hours (under Art 5(4) of the
Malaysian Constitution) should not apply to arrests or detentions under the
Restricted Residence Enactment. Raja Azlan Shah FJ (as he then was) held
that any provision of the Constitution could be amended under Art 159. He
pointed out that Art 159 was subject to no proviso making fundamental
rights inviolable. Referring to the doctrine of implied restrictions on the
power of constitutional amendment, he said (at 190):
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 477

A short answer to the fallacy of this doctrine is that it concedes to the

court a more potent power of constitutional amendment through
judicial legislation than the organ for and clearly chosen by the
Constitution for the exercise of the amending power.

39 As to the question, can an amendment of a clause in the Constitution

operate with retrospective effect, he said (at 190):
In so far as an Act of Parliament is concerned, the rule of construction
is that in order to determine whether it is retrospective in its operation,
the language of the Act itself must be looked into bearing in mind that
an Act is not to be construed retrospectively unless it is clear that such
was the intention of Parliament. If such was the intention that the Act
was to be given retrospective effect even in respect of substantive right or
pending proceeding, the courts have no alternative but to give effect to
the Act even though the consequences might appear harsh and unjust.
[emphasis added]

40 In Phang Chin Hock ([38] supra) the Malaysian Emergency (Essential

Powers) Act 1979 was challenged as invalid in that it destroyed the basic
structure of the Constitution. The Federal Court, in rejecting the
Kesavananda doctrine, said (at 72):
If it is correct that amendments made to the Constitution are valid only
if consistent with its existing provisions, then clearly no change
whatsoever may be made to the Constitution; in other words,
Article 159 is superfluous, for the Constitution cannot be changed or
altered in any way, as if it has been carved in granite. If our
Constitution makers had intended that their successors should not in
any way alter their handiwork, it would have been perfectly easy for
them to so provide; but nowhere in the Constitution does it appear that
that was their intention, even if they had been so unrealistic as to
harbour such intention. …

41 The Federal Court expressed agreement with the view of Raja Azlan
Shah FJ in Loh Kooi Choon ([38] supra) where he said at 188–189:
Whatever may be said of other Constitutions, they are ultimately of
little assistance to us because our Constitution now stands in its own
right and it is in the end the wording of our Constitution itself that is to
be interpreted and applied, and this wording ‘can never be overridden
by the extraneous principles of other Constitutions’ — see Adegbenro v
Akintola & Anor [1963] 3 All E.R. 544, 551. …

42 The Federal Court also said (at 74):

The fear of abuse of Parliament’s power to amend the Constitution in
any way they think fit cannot be an argument against the existence of
such power, Bank of Toronto v Lambe (1887) 12 App. Cas. 575, 586 and
Attorney-General for Ontario v Attorney-General for Canada [1912]
A.C. 571, 582, for actual abuse of power can always be struck down,
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478 SINGAPORE LAW REPORTS (REISSUE) [1989] 1 SLR(R)

Attorney-General for Alberta v Attorney-General for Canada [1939]

A.C. 117, 123–5.
43 In Phang Chin Hock ([38] supra) three provisions of the Malaysian
Emergency (Essential Powers) Act 1979 — ss 2(4), 9(3) and 12 — were
considered by the Federal Court. It was argued that they destroyed the basic
structure of the Constitution and were therefore void. As regards s 2(4), it
was submitted that it is too wide and empowers the Yang di-Pertuan Agong
to make essential regulations to make laws inconsistent with the whole of
the Federal Constitution and any State Constitution and may be misused to
destroy the basic structure of the Constitution. As regards s 9(3), it was
submitted that it encroached on the judicial power of the Federation which
has been vested in the judiciary and amounts to a Bill of Attainder or a Bill
of Pains and Penalties. As regards s 12, it was submitted that it destroys the
basic structure of the Constitution by ousting the jurisdiction of the courts
by preventing it from questioning the validity of the Proclamation of
Emergency issued by His Majesty.
44 Notwithstanding the radical nature of those provisions, the Federal
Court held at 74:
As regards the objection to section 2(4) — we have already stated our
view that Article 159 means what it says, that Parliament may amend
the Constitution in any way they think fit provided that they comply
with all the conditions prescribed, and that fear of abuse of power is no
argument for denying its existence.
As regards section 12, it only precludes the courts from questioning the
validity of proclamations issued under Acts or Ordinances based on
Part XI of the Constitution, not that of proclamations of emergency
issued under the Constitution.
As regards section 9(3), Mr Sidhu submitted that it has the effect of
finding the accused guilty by legislative act, thus encroaching on the
judicial power of the courts enshrined in Article 121 which provides:
… the judicial power of Federation shall be vested in [the
courts].
In our judgment Parliament has not by section 12 encroached on the
judicial power of the courts and the section is perfectly valid. …
45 The Federal Court held that the Emergency (Essential Powers) Act
1979 was constitutional.
46 There were two other issues raised in Phang Chin Hock ([38] supra).
First, does Parliament have power to make constitutional amendments that
are inconsistent with the Constitution? Second, if Parliament has power to
make constitutional amendments that are inconsistent with the
Constitution, do they have power to make amendments that destroy the
basic structure of the Constitution? Having considered these questions the
Federal Court summarised their answers thus at 75:
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 479

… first, Parliament have power to make constitutional amendments

that are inconsistent with the Constitution. Secondly, Parliament may
amend the Constitution in any way they think fit, provided they
comply with all the conditions precedent and subsequent regarding
manner and form prescribed by the Constitution itself and it is
unnecessary for us to say whether or not Parliament’s power of
constitutional amendment extends to destroying the basic structure of
the Constitution. …
47 I am of the view that the Kesavananda doctrine is not applicable to
our Constitution. Considering the differences in the making of the Indian
and our Constitution, it cannot be said that our Parliament’s power to
amend our Constitution is limited in the same way as the Indian
Parliament’s power to amend the Indian Constitution. In any case, in my
judgment, none of the amendments complained of has destroyed the basic
structure of the Constitution. Mr Lester in the course of his argument
enumerated the manner in which, in his submission, Parliament has
violated the basic structure of the Constitution. However, I am of the view,
that they do not violate the basic structure of the Constitution.
48 The subjective test in ISA cases had for many years served the national
security interests of Singapore to deal with subversion. The amendments
are to reaffirm the law which the courts had followed since Lee Mau Seng
([8] supra) until the decision of the Court of Appeal in December 1988. The
amendments touching on Arts 11, 12 and 93 are only intended to ensure
that the clear intent of Parliament is not disregarded. There is nothing in
the amendments which is unrelated to the requirements of national
security. A reaffirmation of principles laid down by the courts cannot be
said to be objectionable as usurping judicial power or being contrary to the
rule of law. 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 or other actions. Parliament has done no more than to
enact the rule of law relating to the law applicable to judicial review. The
legislation does not direct the court to enter a particular judgment or
dismiss a particular case. The court is left to deal with the case on the basis
of the amendments. Legislation designed against subversion must
necessarily include provisions to ensure the effectiveness of preventive
detention. The amendments are intended to do just that.
49 The question whether a particular provision in any law enacted
pursuant to Art 149 is designed to deal with a particular situation is non-
justiciable. Preventive detention relates to national security which is the
responsibility of the Executive. It is clear from the Constitution and the ISA,
especially after the recent amendments, that the intention of Parliament is
that whether preventive detention is necessary in a particular case is left to
the subjective satisfaction of the Executive. In The Zamora [1916] 2 AC 77
Lord Parker said (at 107):
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… Those who are responsible for the national security must be the sole
judges of what the national security requires. It would be obviously
undesirable that such matters should be made the subject of evidence
in a Court of law or otherwise discussed in public.

50 The above passage was cited with approval by the Supreme Court of
Malaysia in Minister for Home Affairs, Malaysia v Karpal Singh [1988]
3 MLJ 29. In R v Halliday [1917] AC 260, the appellant, a naturalised British
subject of German birth was interned under reg 14B made under the
Defence of the Realm Consolidation Act 1914. It was contended on behalf
of the appellant that reg 14B was not authorised by the Act and was ultra
vires. The regulations were to be for preventive purposes. Lord Finlay LC
said (at 269):
… It seems obvious that no tribunal for investigating the question
whether circumstances of suspicion exist warranting some restraint
can be imagined less appropriate than a Court of law.

51 In Council of Civil Service Unions v Minister for the Civil Service

[1984] 3 All ER 935 Lord Diplock said (at 952):
… National security is the responsibility of the executive government;
what action is needed to protect its interest is, as the cases cited by my
noble and learned friend Lord Roskill establish and common sense
itself dictates, a matter on which those on whom the responsibility
rests, and not the courts of justice, must have the last word. It is par
excellence a non-justiciable question. The judicial process is totally
inept to deal with the sort of problems which it involves.

52 By virtue of the amended Art 149(1), the new ss 8A, 8B, 8C and 8D of
the ISA are valid notwithstanding that they are inconsistent with Arts 9, 11,
12, 13 or 14 of the Constitution or would, apart from Art 149, be outside the
legislative power of Parliament. In any case, Art 11(1) protects a person
against retrospective criminal laws and repeated trials. The ISA is not a
criminal law nor does the question of repeated trials arise in the present
case. Preventive detention is clearly not a penal or criminal matter (see Yeap
Hock Seng v Minister for Home Affairs, Malaysia [1975] 2 MLJ 279).

53 In view of the new Art 149(3), nothing in Art 93 is to invalidate the

provisions of the Internal Security (Amendment) Act 1989. Since
Parliament has decided that the subjective test, which has applied to ISA
cases all along until the Court of Appeal judgment of December 1988,
should continue to apply to such cases, Parliament is entitled, in the interest
of national security, to decide that the subjective test should apply to all
cases, past, present and future. It cannot be said that the decision of
Parliament is unreasonable in the circumstances. There is nothing
discriminatory about the changes; nor do the changes amount to
usurpation of judicial power.
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 481

54 In Loh Kooi Choon ([38] supra) the appellant had been arrested and
detained under a warrant issued under the provisions of the Restricted
Residence Enactment. He had not been produced before a magistrate
within 24hrs of his arrest. He claimed damages but it was held that no
action could be brought against the police officer as he was acting in
compliance with a warrant issued by a competent authority. He appealed
but before the appeal was heard the Federal Constitution was amended by
Act A354/76 which provided in effect that Art 5(4) of the Constitution shall
not apply to the arrest or detention of any person under the existing law
relating to restricted residence and that this amendment shall have effect
from Merdeka Day. It was argued that the amendment was
unconstitutional. It was held by the Federal Court that:

(a) Parliament can alter the entrenched provisions of Art 5(4) to

remove the provision relating to the production before a magistrate of
any arrested person under the Restricted Residence Enactment as
long as the process of constitutional amendment as laid down in
Art 159(3) is complied with. When that is done it becomes an integral
part of the Constitution; it is the supreme law, and accordingly it
cannot be said to be at variance with itself.

(b) If Parliament retrospectively affects vested rights or pending

proceedings, then it would be the duty of an appellate court to apply
the law prevailing on the date of appeal before it. Subject to the
constitutional limitation of Art 7 of the Constitution, to wit,
protection against retrospective criminal laws and repeated trials,
Parliament would be within the ambit of its competence if it deems fit
to legislate retrospectively.

55 The amended Art 149(1) also renders the Internal Security

(Amendment) Act 1989 valid notwithstanding that it is inconsistent with
Art 12. In any case the new ss 8A, 8B, 8C and 8D, and s 10 of the ISA are not
inconsistent with Art 12. The provisions are not discriminatory since they
apply to all cases of preventive detention under the ISA without exception.
The provisions apply to all persons who are under preventive detention to
prevent them from doing acts prejudicial to the national security or public
interest. In PP v Kong Teng Khen [1976] 2 MLJ 166 Suffian LP said (at 170):
Article 8 guarantees to all persons equality before the law and its equal
protection. Regulations 6, 7, 13, 19, 20 and 21 prescribe rules of
procedure and evidence different from those applicable under the
Criminal Procedure Code and the Evidence Act and to that extent they
are discriminatory, but as between all persons charged with security
offences within the meaning of regulation 2(1) they are not
discriminatory and do not therefore offend against Article 8. It would
have been different if the regulations provide that some persons charged
with security offences are to be subject to one set of rules and others
charged with similar offences to another set of rules.
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The principle underlying Article 8 is that a law must operate alike on all
persons under like circumstances, not simply that it must operate alike
on all persons in any circumstance, nor that it ‘must be general in
character and universal in application and that the State is no longer to
have the power of distinguishing and classifying persons … for the
purpose of legislation’, Kedar Nath v. State of West Bengal A.I.R.
1953 S.C. 404, 406. [emphasis added]

56 In Ong Ah Chuan ([22] supra) Lord Diplock said (at [35] and [37]):
… Equality before the law and equal protection of the law require that
like should be compared with like. What Art 12(1) of the Constitution
assures to the individual is the right to equal treatment with other
individuals in similar circumstances. It prohibits laws which require
that some individuals within a single class should be treated by way of
punishment more harshly than others; it does not forbid discrimination
in punitive treatment between one class of individuals and another class
in relation to which there is some difference in the circumstances of the
offence that has been committed.
…
The questions whether this dissimilarity in circumstances justifies any
differentiation in the punishments imposed upon individuals who fall
within one class and those who fall within the other, and, if so, what are
the appropriate punishments for each class, are questions of social
policy. Under the Constitution, which is based on the separation of
powers, these are questions which it is the function of the Legislature to
decide, not that of the Judiciary. Provided that the factor which the
Legislature adopts as constituting the dissimilarity in circumstances is
not purely arbitrary but bears a reasonable relation to the social object of
the law, there is no inconsistency with Art 12(1) of the Constitution.
[emphasis added]

57 Article 8 of the Malaysian Constitution is in pari materia with Art 12

of the Singapore Constitution.
58 The abolition of the right of appeal to the Privy Council does not in
any way deny the applicant the right to the equal protection of the law as
provided under Art 12(1), as all ISA detainees, present or future, and all
parties to pending habeas corpus actions in the High Court, are equally
denied the right of appeal to the Privy Council. All parties are treated
equally before the law. In any event, as I have said, the amended Art 149(1)
protects the validity of ss 8C and 8D of the ISA against any inconsistency
with Art 12(1). The decision to proceed under the ISA is within the
discretion of the Executive. All that equality requires is that the Executive
give unbiased consideration whether to proceed under the ISA or under the
ordinary law.
59 In my view the Reid Constitutional Commission Report 1957 cannot
be regarded as a basis for the interpretation of the legislative powers
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[1989] 1 SLR(R) Teo Soh Lung v Minister for Home Affairs 483

conferred by Art 149 or any law passed pursuant to it. See Lim Chin Chin
Theresa v Inspector General of Police [1988] 1 MLJ 293. In my judgment
Parliament has the power to amend any provision of the Constitution so
long as the special procedure required for amendment is followed. Both the
amendments to the Constitution and the Internal Security Act were passed
by Parliament by more than the two thirds majority required. The
amendments constituted “a law” within the meaning of Art 5(1).
60 There is nothing unlawful about the amendments to the Constitution
and the ISA. The amendments are of general application and merely restore
the law to what it had been all along for many years prior to the decision
[of] the Court of Appeal in December 1988. The abolition of appeals to the
Privy Council is a logical consequence of changed circumstances. The
amendments are valid and the courts must give effect to them in judicial
review proceedings involving ISA cases. As Lord Scarman said in Duport
Steels Ltd v Sirs [1980] 1 All ER 529 at 551:
[I]n the field of statute law the judge must be obedient to the will of
Parliament as expressed in its enactments. In this field Parliament
makes and unmakes the law and the judge’s duty is to interpret and to
apply the law, not to change it to meet the judge’s idea of what justice
requires. Interpretation does, of course, imply in the interpreter a
power of choice where differing constructions are possible. But our law
requires the judge to choose the construction which in his judgment
best meets the legislative purpose of the enactment. If the result be
unjust but inevitable, the judge may say so and invite Parliament to
reconsider its provision. But he must not deny the statute. Unpalatable
statute law may not be disregarded or rejected, merely because it is
unpalatable. …
61 For these reasons the motion is accordingly dismissed. I will hear
counsel on costs on a date to be fixed.

Headnoted by Charlene Tay Mei Woon.