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Issue 1/Feb 2016

All powers have their limits: A guide to rationalising the


legality of government actions

Tan Seet Eng v Attorney-General [2015] SGCA 59

JASON LEE HONG JET ∗ AND NG BIN HONG ∗ **

In this landmark decision, the Court of Appeal was asked to consider how it may review a
detention order under the Criminal Law (Temporary Provisions) Act, and whether the
detention of the Appellant is justified under the said Act. The Court of Appeal, in granting
the Appellant’s application, found the Minister for Home Affairs to have exceeded his
authority in the detention of the Appellant under the Criminal Law (Temporary Provisions)
Act, for his failure to provide adequate justifications for the detention. Consequently, the
detention order was quashed. This case is of further significance in its re-affirmation of the
principles of due process and separation of powers by the Court of Appeal, as well as a much
needed clarification of the judicial review process.

Background

Tan Seet Eng v Attorney-General 1 (“Tan Seet Eng”) concerned an application by the
Appellant pursuant to Order 54 r 1 of the Rules of Court for an order to review his detention
(“ORD”) under the Criminal Law (Temporary Provisions) Act 2 (“CLPTA”) on the grounds of
illegality, irrationality and procedural impropriety.

Under CLPTA, the Minister for Home Affairs may, with the Public Prosecutor’s consent,
order the detention of any person for up to 12 months, if the Minister is satisfied that the
person “has been associated with activities of a criminal nature”, and “it is necessary that

∗ Associate, Peter Low LLC


∗ Associate, Lee & Lee
** The authours would like to thank the invaluable contributions of Ms Arias Lim Jie (Straits Law Practice), Mr
Remy Choo Zheng Xi (Peter Low LLC) and Mr Martin See Kwang Guan (Drew & Napier LLC) in the making of
this article.
1 [2015] SGCA 59.
2 Cap. 67, Rev. Ed. 2000.

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the person be detained in the interests of public safety, peace and good order”. 3 The
Minister will then have to tender a written statement of the grounds of the detention order
(“GD”) to an advisory committee, which will in turn submit a written report to the President,
who shall consider the report and may cancel, confirm or vary the order as he thinks fit. 4

The Appellant was served with a detention order for 12 months on 2 October 2013. 5 The GD
stated that the Appellant had been the leader and financer of a global football match-fixing
syndicate operating from Singapore between 2009 and 2013. In particular, the Appellant
recruited runners and directed match-fixing agents and runners from Singapore to assist in
match-fixing activities in Egypt, South Africa, Nigeria, Turkey and Trinidad & Tobago
sometime between mid-2010 and mid-2011. 6 However, no particulars were given as to the
number of runners recruited, the number of matches fixed, or the activities committed
between mid-2011 and 2013. 7

The Appellant’s detention was subsequently reviewed by the advisory committee and the
President and extended for another 12 months with effect from 2 October 2014. 8

The Appellant’s application was dismissed by the court of first instance. 9

The Appellate Decision

The Court of Appeal (“CA”) reversed the decision of the court below and allowed the
Appellant’s application.

Before addressing the substantive issues, the CA first explained why the Appellant’s
preliminary application to be present at the hearing of the appeal was granted in spite of the
plain reading of Order 54 r 4(2) of the Rules of Court, which provides that a detainee need
not be bought before the Court for ORD hearings unless the Court directs otherwise. 10

The CA held that as a matter of principle, a person who has been detained on an executive
order must have the right to be present at his own hearing, trial or appeal; this is especially
significant when the detainee’s personal liberty is at stake at the hearing. The CA also saw no
reason why a detainee should be denied this right when it is accorded to an accused person
undergoing normal criminal proceedings. 11 Further, the historical basis for the practice
underlying Order 54 r 4(2) was no longer applicable in today’s context. 12 Finally, where the
purpose of the appeal is to secure an unconditional release, granting the detainee’s

3 s. 30(a), CLTPA.
4 s. 31(1), CLPTA.
5 Supra, Note 1, [8].
6 Ibid.
7 Ibid, [9].
8 Ibid, [11].
9 Tan Seet Eng v Attorney-General [2015] 2 SLR 453.
10 Supra, Note 1, [37].
11 Ibid, [37].
12 Ibid, [38].

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application to be present in no way perverts justice by granting the applicant the real remedy
he sought. 13

The CA then turned to the substantive issues. In addressing the proper scope of review of the
Minister’s decision under the CLPTA, the CA overruled 14 the test set out in its previous
decision of Kamal Jit Singh v Ministry of Home Affairs 15 (“Kamal Jit Singh”), where it
was held that under the CLPTA, the detaining authority only needs to show that procedural
requirements had been complied with; and that the Appellant bears the burden to show that
the detention was probably unlawful (“the Probable Cause Test”). Instead the CA ruled in
favour of the test set out in its earlier landmark decision of Chng Suan Tze v Minister for
Home Affairs 16 (“Chng Suan Tze”) that the courts should closely scrutinise the GD and
consider objectively, whether on the face of the facts provided therein, the Minister’s
decision is challengeable on the basis of illegality, irrationality or procedural impropriety
(“the Traditional Test”). 17

In the present case, the CA focused on whether the Minister had acted unlawfully in
detaining the Appellant. In order to determine the scope of the Minister’s power to detain
under s. 30(a) of the CLPTA, the CA had to ascertain the proper scope of the Act. After a
survey of legislative history, the CA observed that the CLPTA is meant to target only persons
involved in criminal activities of a sufficiently serious nature where the normal criminal
process is inadequate due to the threat of harm to witnesses or their families. 18 Further, the
criminal activities must also pose a threat to the public safety, peace and good order in
Singapore. 19

The CA further noted that s. 31(1) of the CLPTA made it incumbent on the Minister to state
in the GD all the grounds relied on as justifying the detention so that the exercise of his
power can be properly understood and assessed. 20 Consequently, it was necessary for the GD
to contain facts which show that the detainee fell within the scope of the Minister’s power to
detain under s. 30(a) of the CLPTA.

On the facts, the CA observed that the match-fixing activities engaged by the Appellant, as
stated in the GD did not bring the Appellant within the scope of the Minister’s power to act
under the CLPTA. 21 Further, there was nothing in the GD to suggest that the Appellant’s
alleged activities could be thought to have a bearing on the public safety, peace and good
order within Singapore. There were also no facts put forward in the GD which suggested that
witnesses were being intimidated, or were unwilling to testify against the Appellant. 22
Consequently, it was held that the detention order was unlawful as the Minister failed to
justify the detention within the scope of the CLPTA.

13 Ibid, [39].
14 Ibid, [66].
15 [1992] 3 SLR(R) 352.
16 [1988] 2 SLR(R) 525.
17 Supra, Note 1, [73]
18 Ibid, [119].
19 Ibid, [120].
20 Ibid, [130].
21 Ibid, [139].
22 Ibid, [146].

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Commentary

Tan Seet Eng, being one of the few successful judicial review cases in Singapore’s legal
history, may be considered a milestone decision in several ways. Given that there has been
an increase in the number of cases involving constitutional issues in the last decade, 23 this
decision not only serves to clarify the scope and application of judicial review both within
and beyond the CLPTA, it is also significant in charting the Judiciary’s role in the separation
of powers.

A departure from Chng Suan Tze?

In many ways, Tan Seet Eng is a contemporary endorsement of the principles of the rule of
law and scope of judicial review set out in Chng Suan Tze 27 years ago. While these
principles have constantly featured in subsequent cases involving constitutional issues
despite the legislative overruling of Chng Suan Tze 24, the CA in Tan Seet Eng, has
unequivocally reaffirmed their relevance in the judicial review of executive decisions relating
to detention order under the CLPTA. 25

Although Chng Suan Tze and Tan Seet Eng are broadly similar as they both concern defects
in the process by which the Minister exercised his power, what makes Tan Seet Eng
particularly interesting and different is that the CA went further to imply requirements in the
GD that the Minister must satisfy before the Appellant fell within the Minister’s scope of
power to detain under the CLTPA. 26 This is significant as it suggests that it is insufficient for
the Minister to comply just with the procedural requirements set out in the plain reading of
the CLPTA. Rather, the Minister has an implied additional responsibility of providing
sufficient facts to justify the need for a detention under the CLPTA.

The method of purposive interpretation adopted by the CA is not uncommon outside the
realm of judicial review as courts have often looked to the general purpose of an act when
interpreting provisions. 27 However, Tan Seet Eng stands out as a forerunner because the
courts have generally been reluctant to imply into legislation limits or fetters on a power or
duty that is not expressly limited or fettered. 28

One way of viewing Tan Seet Eng is that it is a reassertion of the importance of the due
process of law. Where the CLPTA seeks to suspend the normal criminal process against
detainees, the CA has indicated that it will take a no less stringent approach towards
safeguarding the rights of individuals within the remit of the law. 29 An example of this

23 K C Vijayan, “NUS don Jaclyn Neo is law firm WongPartnership's judicial review adviser”, The Straits Times,
Sep 12, 2015
24 [78]-[79], Yong Vui Kong v Attorney-General [2011] SGCA 9; [85], Vellema d/o Marie Muthu v Attorney-

General [2013] SGCA 39


25 Supra, Note 1, [98].
26 Supra, Note 1, [147].
27 See, [18], W Y Steel Construction Pte Ltd v Osko Pte Ltd [2013] 3 SLR 380
28 Auburn, J. et. al., Judicial Review – Principles and Procedure (2013, 1st Edition, UK, Oxford: Oxford

University Press), para 11.17.


29 Supra, Note 1, [37].

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commitment towards due process would be how the court departed from the long-
established default position regarding the non-attendance of a detainee under Order 54 r
4(2). 30 However, it is also possible to view the decision in Tan Seet Eng as remaining within
the parameters of the ultra vires approach adopted in Chng Suan Tze – that the court is not
concerned about the merits of the decision but the process by which it was made.

Ultimately, one should caveat that the deciding factor in Tan Seet Eng is the presence of s.
31(1) of the CLTPA which requires the Minister show the grounds upon which his decision
was made from.

Clarifications regarding judicial review within and beyond the CLTPA

Tan Seet Eng can further be credited for providing clarity on two other aspects. First, in
overruling the Probable Cause Test in Kamal Jit Singh, the CA has aligned the scope of
review under ORD proceedings with those undertaken in normal judicial review
proceedings. This is significant as it suggests that for future review of executive decisions, the
Traditional Test is more likely that not to be the appropriate test to be applied.

Second, the CA also attempted to address the conceptual overlap between the two heads of
judicial review under the Traditional Test – “illegality” and “irrationality”. 31 The lack of
clarity concerning these heads of review appears have resulted in their conflation in previous
cases such as Attorney-General v Venice Simplon Orient Express Inc Ltd. 32 The CA in Tan
Seet Eng acknowledged that there was some degree of overlap, and held that certain
decisions may be both illegal and irrational at the same time. 33 However, the CA also
explained that notwithstanding the overlap in application, each head of review is intended to
examine different aspects of the exercise of power.

The role of the judiciary

Although the decision may seem combative at certain points, Tan Seet Eng can be viewed as
encapsulating what has been described by Chan Sek Keong CJ (as he then was) to be a
“green-light” approach towards managing the relationship between the Judiciary and the
Executive34 – where the Courts play a supporting role by articulating clear rules and
principles by which the Government may abide by and conform to the rule of law. In this
regard, paragraphs [90] to [106] of the decision made it clear that the Judiciary will
stalwartly carry out its “specific responsibility” to pronounce on the legality of government
actions, even for matters of "high policy", where the courts will not hesitate to inquire into
whether decisions are made within the scope of the relevant legal power or duty and arrived
at in a legal manner.

30 Ibid, [38].
31 Ibid.
32 [1995] 1 SLR(R) 533; see also, Tan, D., “An Analysis of Substantive Review in Singaporean Administrative

Law” (2013) 25 SAcLJ, pp. 310-314.


33 Supra, Note 1, [80]-[81].
34 Chan, S.K., “Judicial Review – From Angst to Empathy” (2010) 22 SAcLJ 469, para. 29.

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Finally, perhaps what is most interesting are the things left unsaid. In embracing the test set
out in Chng Suan Tze, the CA was quick to point out at no less than four instances in the
decision that it is taking no position on the view previously held in that decision that
Parliament can delegate “fact-finding powers” belonging to the Judiciary to another
Power. 35 In this regard, the CA has left unanswered the question of whether laws which
purport to oust, usurp or limit judicial power may be illegitimate for contradicting the
doctrine of separate of powers. As no submissions were advanced on that particular issue,
the door is thus left open and the issue will have to be addressed at a more appropriate
juncture.

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35 Supra, Note 1, [54], [64], [74] and [129]