User:Estelle.moh/sandbox

Justiciability as a threshold issue in Singapore first arose in the case of Chng Suan Tze v. Minister for Home Affairs. Here, the appellants were arrested for being involved in a Marxist conspiracy to undermine the country, and were issued detention orders under s 8(1)(a) of the Internal Security Act (“the ISA”). The respondents submitted that “as the subject matter in ss 8 and 10 of the ISA relates to matters of national security the court is precluded from reviewing the exercising of such discretion since matters of national security should be left to those responsible for it.”

That is to say that while an exercise of discretion is generally subject to judicial review on the objective test, a court will be precluded from reviewing an exercise of discretion where the decision was made for purposes of national security.

The courts agreed with this submission, stating that it was consistent with the holdings in The Zamora and the GCHQ case. Similarly, as in GCHQ, there was a need to show the court that considerations of national security were involved. Mere assertion of this by the decision-maker does not preclude the court’s judicial function of determining whether the decision was in fact based on grounds of national security. What the courts could not do was decide what action national security required. This was to be left solely to those responsible for it.

Further, the court disagreed with the learned trial judge’s reading of R v. Secretary of State for the Home Department, ex parte Ruddock in the earlier case of Teo Soh Lung v. Minister for Home Affairs Asserting that a decision involved national security considerations did not amount to a plea in bar.

On the facts, the plain reading of s 8 of the ISA suggests that where it is deemed “necessary” to detain someone “with a view to preventing that person from acting in any manner prejudicial to the security of Singapore”, it will be based on national security considerations. Whether detention was necessary was a matter solely for the Executive’s judgment. However, the courts could still review the decision in terms of whether the exercise of discretion fell within the scope of s 8.

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