User:Sgconlaw/Teo Soh Lung v. Minister for Home Affairs

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Teo Soh Lung v. Minister for Home Affairs is the name of two cases of the Singapore courts, a High Court decision delivered in 1989 and the 1990 judgment in the appeal from that decision to the Court of Appeal. The cases were concerned with the constitutionality of amendments made to the Constitution of the Republic of Singapore and the Internal Security Act ("ISA") in 1989. The latter statute authorizes detention without trial on security grounds. These amendments had the effect of changing the law on judicial review of executive discretion under the ISA by re-establishing the subjective test enunciated in the 1971 High Court decision Lee Mau Seng v. Minister for Home Affairs which had been overruled in 1988 by Chng Suan Tze v. Minister for Home Affairs, and limiting the right of judicial review to ensuring compliance with procedures specified in the ISA. In other words, the amendments were intended to render the exercise of power by the President and the Minister for Home Affairs under the ISA to detain persons without trial not justiciable by the courts. Both the High Court and Court of Appeal found that these amendments were constitutional because Parliament had done nothing more than enact the rule of law relating to the law applicable to judicial review. Thus, the amendments validly operated to deprive the applicant Teo Soh Lung of the ability to apply to the courts for judicial review.

Another significant feature of these cases was the "basic features doctrine". An integral part of Indian constitutional law, the High Court held that the doctrine, which curtails Parliament's ability to amend the Constitution, did not apply in Singapore as this would amount to usurpation of Parliament's legislative function contrary to Article 58 of the Constitution. However, it has been argued that the basic features doctrine is necessary to provide a legal safeguard for the basic structure of the Constitution.

Facts


On 21 May 1987, Teo Soh Lung, a lawyer, was detained under the Internal Security Act ("ISA") of Singapore together with other persons for purported involvement in a conspiracy to overthrow the Government by force and replace it with a Marxist state. The detention order was suspended on 26 September 1987 subject to the execution of a bond and compliance with certain conditions. However, the suspension direction was later revoked by the Minister for Home Affairs on 19 April 1988 and Teo was rearrested and detained. Teo's application for a writ of habeas corpus succeeded before the Court of Appeal in Chng Suan Tze v. Minister for Home Affairs ("Chng Suan Tze") as there was insufficient evidence of the President's satisfaction that her detention without trial was necessary to prevent her from acting in a manner prejudicial to the security of Singapore or the maintenance of public order, pursuant to section 8(1) of the ISA. Although Teo was released on 8 December 1988, she was re-arrested almost immediately under a new detention order.

The Government responded to Chng Suan Tze within two weeks after the decision was made. It amended the Constitution of the Republic of Singapore and the ISA by enacting the Constitution of the Republic of Singapore (Amendment) Act 1989 and the Internal Security (Amendment) Act 1989, which respectively came into force on 27 and 30 January 1989. The amendments were expressed to operate retrospectively. The constitutional amendment inserted into Article 149 the italicized portions shown below:

"Legislation against subversion 149(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, organised 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 that law designed to stop or prevent that action or any amendment to that law or any provision in any law enacted under clause (3) is valid notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14, or would, apart from this Article, be outside the legislative power of Parliament.

...

(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 this 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."

Article 149 is primarily directed against subversion and confers power on Parliament to make laws contrary to certain fundamental liberties guaranteed by the Constitution. The enactment of the ISA, which provides for detention without trial for up to two years, was a conspicuous exercise of this power. The 1989 amendments to the ISA inserted the following provisions into the Act:

"Interpretation 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;
 * (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.

Law applicable to judicial review 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 Minister 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.

No appeals to Privy Council 8C. Notwithstanding the provisions of any other written law, no appeal shall lie to 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.

Commencement provision 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."

The legislative amendments were intended to revert the law to its position before Chng Suan Tze was decided, thus rendering the exercise of power by the President and the Minister under the ISA not justiciable by the courts. In addition, the addition of a reference to Articles 11 and 12 of the Constitution to Article 149(1) ensured that the ISA is valid even if it is inconsistent with five out of the eight fundamental liberties enshrined in Part IV of the Constitution. Parliament was able to pass these legislative amendments without difficulty to diminish the effect of Chng Suan Tze because a large majority of the Members of Parliament belong to one political party, the People's Action Party. Further, Singapore has a unicameral legislature, so all legislative power is concentrated in one body. The legislative body is "practically fused with the executive via the Cabinet".

In Teo Soh Lung, Teo applied again for habeas corpus to be released from detention. She sought to argue that the amendments did not deprive her of the right to judicial review of the legality, rationality and constitutionality of her detention and, in the alternative, if they did, the amendments were unconstitutional.

Exclusion of judicial review


Before the High Court, counsel for Teo, Anthony Lester Q.C., sought judicial review of the acts and decisions of the President or the Minister for Home Affairs which were purported to have been exercised under the powers conferred by section 8 of the ISA, submitting that the powers had been used for improper purposes, and in a manner which was illegal, irrational and unconstitutional. He also argued that since the Minister and the President, acting on advice of the Cabinet, had acted in bad faith and for improper purposes, they had acted outside the scope of the powers conferred by the ISA. Hence, the acts and decisions were null and void.

Justice Frederick Arthur Chua ruled that the amendments to Article 149 and to the ISA did have the effect of depriving the applicant of her right to judicial review of the legality, rationality and constitutionality of her detention under the ISA. The court observed that the Court of Appeal in Chng Suan Tze had allowed the appeal solely on a technical ground – that the respondents had not adduced sufficient evidence of the President's satisfaction. Other matters mentioned in that judgment were merely obiter dicta. Therefore, although it had been held in Chng Suan Tze that the President's satisfaction under section 8(1) of the ISA was objective and thus reviewable by the court, these observations did not apply to the present proceedings in the light of the new provisions in the ISA. Section 8B(1), which stated that the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the Act shall be the same as was applicable and declared in Singapore on 13 July 1971, reaffirmed the law governing judicial review as laid down in the High Court's 1971 decision Lee Mau Seng v. Minister for Home Affairs, which was rendered on that date. Thus, the section had the effect of making a subjective test applicable to the exercise of powers under sections 8 and 10 of the ISA. Section 8B(2) provided that there was 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. If the discretion exercised by the President and the Minister under sections 8 and 10 was subjective, the court could not assess whether the powers conferred on the President and the Minister by sections 8 and 10 were exercised legally. The applicant had the burden of proof of showing that her detention was unlawful as the respondents had adduced a valid detention order and evidence of the President's subjective satisfaction that she should be detained. Furthermore, Lee Mau Seng had held that bad faith is not a justiciable issue in the ISA context.

Counsel for Teo argued that the House of Lords decision in Anisminic Ltd. v. Foreign Compensation Commission was applicable on the facts. In Anisminic it was held that an ouster clause in a statute does not deprive a court from exercising judicial review. Chua J. took the view that Anisminic was distinguishable. At the most, the case decided there was a presumption that an ouster clause did not prevent a court from inquiring whether a public authority had been acting outside its jurisdiction when making an administrative decision. However, it was clear from the provisions of the ISA that it was for the Executive to determine whether, as a matter of policy and judgment, certain activities were prejudicial to national security. Since the Minister had stated that the Cabinet and the President acting in accordance with the Cabinet's advice were satisfied that Teo had acted in a manner prejudicial to the security of Singapore by being involved in a Marxist conspiracy to establish a socialist state, allowing the court to investigate into the good faith of the President or the Minister would be inconsistent with the scheme intended by Parliament.

Constitutionality of the amendments and the basic features doctrine


Counsel for Teo also argued that the purported amendments to Article 149 of the Constitution were contrary to the supreme law of the Constitution and thus were not valid amendments. Alternatively, if the Article 149 amendments were valid, the ISA amendments did not come within the legislative powers conferred by Article 149 and were thus void. Under Article 5(1), the Constitution may be amended by a law enacted by the Legislature. However, the purported Article 149 amendments were not a "law" within the meaning of Article 5(1), as they were an attempt by the Government to cause Teo's pending court proceedings (a tort claim, a judicial review application and the present habeas corpus application) to fail. Therefore, they amounted to judicial rather legislative action. Further, relying on the Indian Supreme Court cases Kesavananda Bharati v. State of Kerala (1973), Minerva Mills Ltd. v. Union of India (1981) and P. Sambamurthy v. State of Andhra Pradesh (1987), Parliament's powers to amend the Constitution were limited by implied limitations derived from the basic structure of the Constitution itself. Since the Constitution was founded on the basis of separation of powers, Parliament was not empowered to amend the Constitution in a manner which acted retrospectively and allowed it to usurp judicial power, which amounted to judicial action.

Teo's counsel also submitted that Article 149(1) imposed the overriding requirement that legislation enacted pursuant to the new Article 149(3) had to be "designed to stop or prevent" subversive action of the kind specified in Articles 149(1)(a) to (e). The purported ISA amendments were void because they were not intended to stop or prevent subversive action. Rather, they were enacted to prevent "acts done and decisions made in bad faith, for improper purposes, irrelevant to the stopping or prevention of subversive action" from being judicially reviewed by a court, and to retrospectively deprive the applicant of the benefit of the judgment in her favour in Chng Suan Tze.

Chua J. rejected the application of the basic features doctrine in Singapore. He reasoned that a constitutional amendment, being part of the Constitution itself, can never be invalid if the procedure for amendment is complied with. If the framers of the Constitution had intended limitations on the power of amendment, they would have expressly provided for such limitations. Furthermore, if the courts were allowed to impose limitations on the legislative power to amend, they would be usurping Parliament's legislative function, contrary to Article 58. In any case, Chua J. did not agree that Parliament had violated the basic structure of the Constitution. The subjective test reinserted into the ISA had served the national security interests of Singapore for a long time. The amendments merely reaffirmed the law which the courts had followed since Lee Mau Seng, and ensured that the legislative intent behind the ISA was not disregarded. Moreover, nothing in the amendments was unrelated to national security. A reaffirmation of the original principles could not be said to be objectionable as usurping judicial power or being contrary to the rule of law. The rule of law had not been abolished by legislation, as Parliament had done no more than to enact the rule of law relating to judicial review. The legislation did not order the court to decide a case in a particular way or to dismiss it – the court was left to deal with the case on the basis of the amendments.

Court of Appeal judgment
Following the dismissal of her case by the High Court, Teo appealed to the Court of Appeal for judicial review. Lord Alexander, Teo’s Queen’s Counsel, argued amongst other things that the purported amendments to section 8 of the ISA were unconstitutional. However, the Court held that the case depended on the factual issue of whether there was any evidence that Teo’s detention was made for reasons that had nothing to do with national security. Accordingly, based on the facts, Teo had not proven that her detention was made for reasons that had nothing to do with national security. Hence, the appeal was dismissed.

Lee Mau Seng test as the relevant law governing judicial review of the ISA
The Court of Appeal ruled that the test enunciated in Lee Mau Seng was the relevant law governing judicial review under section 8B(1) of the ISA. The amended section 8B(1) referred to the "applicable and declared law governing judicial review" on 13 July 1971. The Court rejected Lord Alexander’s submission that the relevant law governing judicial review on 13 July 1971 included English common law principles on that date. It found that section 8B(1) manifested a clear intention by the legislature to exclude law in any Commonwealth country before, on, or after 13 July 1971.

Case decided on its facts
The Court of Appeal held that the case turned on the factual issue of whether there was any evidence that Teo’s detention was made for reasons that had nothing to do with national security. Before the Court could address the legal issue of whether it could intervene if Teo’s detention order under the ISA had been unrelated to national security, evidence must be produced to show that this was indeed the case. As Teo failed to do so, her submission on the law was not available on the facts.

The Government’s official reason for revoking Teo’s suspension direction was this:

Lord Alexander argued that Teo’s joint press statement only contained a repetition of the statements she had previously made about her innocence. The Government already knew these statements represented her case. Her making of these statements could not revert her status back to that of a security threat, because prior to making the press statement she had already been released on the ground that she no longer posed a national security threat. Thus, it was argued that she was rearrested for making the joint press statement, and not for national security reasons.

However, the Court of Appeal held that this argument was similar to the one advanced by Teo in before the High Court. In the Court of Appeal’s opinion, this argument only held force if the premise on which it is based, that is, that Teo was not involved in the Marxist plot, was true. However, the Government, based on the evidence it possessed, disputed this premise. Since it was not within the Court’s purview to make an objective finding on whether Teo was indeed involved in the alleged Marxist plot, Lord Alexander’s argument could not be proven.

Public interest under section 10 was not confined to national security
It was held that Lord Alexander’s arguments relating to the second detention order applied to the revocation order under section 10, even though he did not direct his submissions specifically to the latter. This is because his argument was that Teo was detained again for the very same reason her suspension direction was originally revoked.

The Court of Appeal held that the “public interest” requirement in section 10, which allowed “the Minister [to] revoke any [suspension] direction if he is satisfied…that it is necessary in the public interest that such direction be revoked”, was not limited to the requirements of national security, since pubic interest is wider than national security interest. Thus, even if a decision to revoke a suspension direction was not made on national security considerations, it could still be valid if it was made on other public interest grounds.

Constitutional questions left open
Teo had argued that the purported amendments to section 8 of the ISA were unconstitutional. However, the Court of Appeal declined to decide on the constitutional arguments advanced by Teo. It did not decide on whether Parliament’s amendments to the Constitution and the ISA had successfully precluded judicial review of detentions made under the ISA.

Neither did the Court of Appeal affirm or reject the High Court’s ruling that the basic features doctrine was inapplicable in Singapore. The Court left that question open, stating that it was "unnecessary" to consider whether the purported amendments to the Constitution were invalid as violating the basic structure of the Constitution. Such constitutional issues were not considered because the appeal was found to fail on its facts.

Release of Teo Soh Lung
Following the Court of Appeal’s decision, Teo remained in detention under the ISA. She was finally released on 1 June 1990 when the Government was satisfied that she “has been rehabilitated enough to be released”. However, Teo’s release was conditional upon her not leaving Singapore, addressing public gatherings, issuing statements or joining any organization without permission. These “limitations on her civic rights” were said to “make it impossible for her to return to normal life”.

The Lee Mau Seng test: Scope of subjective test not settled
In the Court of Appeal, Lord Alexander submitted that the holding in Chng Suan Tze meant that the Court’s role was objective in a limited sense. Though much of the Executive’s discretion is subjective, the Court must be satisfied that there is evidence, beyond the mere assertion of the Executive, that the decision to detain Teo was made on national security grounds. Lord Alexander, therefore, did not draw a sharp distinction between the subjective and objective tests.

The Court of Appeal declined the opportunity to reassert the objective standard, and instead reaffirmed the subjective test of judicial review in Lee Mau Seng. It rejected Lord Alexander’s submission that the court could review legislation on the grounds of illegality, irrationality and procedural impropriety. Moreover, it ruled that even if an objective standard were adopted, the decision to detain Teo had passed the rationality test.

Yet despite the Court of Appeal’s endorsement of the subjective test, it went on to conduct a somewhat objective review of the factual basis of the discretion affecting the appellants’ detention. The Court may in fact have reserved the right to review facts as part of procedural requirement under the subjective test.

The Court of Appeal also seemed to have left open the question of whether the subjective test allows the Court to intervene in a case that had nothing to do with national security. This was because the respondent had not argued that the courts could not intervene if a person is detained for reasons which have nothing to do with national security.

The Court of Appeal’s refusal to take a stand on constitutional issues
Academics have commented that the "economy" of the judgment represented a retreat from the "lofty constitutional sentiments" expressed by the identically constituted Court of Appeal in Chng Suan Tze.

In addition, Michael Hor critiqued the limited precedential value of the current case, noting that although the judges eventually ruled in favour of the Government, much thought appeared to have gone into "damage control". The Court of Appeal seemed to have adopted a strategy of "running away to live and fight again another day", by leaving its stand on constitutional issues shrouded in ambiguity, and pertinent issues untouched or unresolved.

Exclusion of judicial review for cases involving the ISA
The Teo Soh Lung decisions cannot be read apart from Chng Suan Tze and the series of legislative and constitutional amendments made by Parliament. The amendments had the effect of ousting review by the Judiciary and the Privy Council in situations of preventive detention.

The Government’s alteration of the Constitution before this case has been described as "acts of trying to circumvent the supervisory jurisdiction of the courts". Roger Tan commented that such governmental acts "leave little room for the development of public interest litigation" as "judicial decisions and interventions can still be extra-judicially frustrated".

Chng Suan Tze has been dubbed the "single most important constitutional decision in the Singaporean nation". It declared that the idea of any official power being non-justiciable is contrary to the Constitution. The Court's endorsement of the objective standard of review meant that judges could examine whether the Executive's action was in fact based on national security considerations, as well as whether such action fell within the scope of section 8(1) of the ISA. Chng Suan Tze departed from decades of the court abiding by the policy of non-justiciability, and held that "the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power." It declared that the idea of any official power being non-justiciable violated equality before the law and equal protection of the law because a limitless power is a licence for the Executive to take arbitrary action.

Following the amendments to the Constitution and the ISA, the High Court in Teo Soh Lung had the opportunity to reassert the principles set down in Chng Suan Tze. However, it declined to strike down the amendments, instead holding that the amendments were constitutional because, among other reasons, Parliament had satisfied the formal requirements laid down in the Constitution for making the amendments. The view has been expressed that the Court took a "thin" and positivist approach, and that this reasoning seems to imply that the courts will not question any legislation as long as it is procedurally sound, a regression from Chng. Confining judicial review to ensuring compliance with procedures set out in the ISA diminishes the protective role of the Judiciary, and the Court failed to consider whether the safeguards in the ISA are sufficient once judicial supervision is removed.

Whether judicial review can be excluded through executive decision remains a live issue because the 1989 amendments to the ISA reverted the law on judicial review applicable to the ISA to the date that Lee Mau Seng was decided. However, Lee Mau Seng appears to be bad law since it was overruled by the Court of Appeal in Chng Suan Tze. Furthermore, as a High Court decision, Lee Mau Seng may not be the final word on judicial review of action taken under the ISA. In addition, if detainees allege procedural impropriety, this allows a court to consider if there are procedural defects in the Executive's decision-making process, such as the taking into account of irrelevant considerations. Finally, ouster clauses are not barriers to judicial review in modern administrative law because courts can still step in to prevent jurisdictional errors of law.

It is difficult to reconcile the Government's attempt to freeze the law relating to judicial review of acts and decisions taken under the ISA as at 13 July 1971 with doctrines such as the rule of law, judicial independence and the separation of powers. One academic view is that courts should not assume that the ISA has frozen the entirety of the law on judicial review as at 13 July 1971. This is because the statute "does not substitute a new, detailed regime covering all the various issues, such as grounds of review, the rules of natural justice, the meaning of ultra vires, remedies and locus standi". The further development of such matters in the common law should not be ignored. Furthermore, the freezing of the law rejects judicial independence. Rutter believes that as long as the subject matter of judicial review remains within the common law, "courts are the proper and only authentic expositors of what the law is at any given time".

The Court of Appeal’s decision has led some academics to take the view that the Singapore courts effectively preclude substantive review of ISA cases and that the Judiciary has abdicated its role as guardian of individual liberties and a check on state power.

On the other hand, former Chief Justice Chan Sek Keong has cast doubt on these views in his extra-judicial capacity. He noted that the case was decided on its facts, and issues such as the basic features doctrine and the ability of courts to intervene in cases that do not involve national security were left open. Thus, "academics may well have to revisit their analysis on this issue".

The provision for review on procedural grounds has also been criticised by a former lawyer of Teo (in Chng Suan Tze) as inadequate. In his view, it allows for nothing more than "pyrrhic victories" as a win on procedural grounds would likely only result in re-arrest and continued detention. Thus, only reinstatement of judicial review on substantive issues can create adequate safeguards against misuse of the ISA.

Basic features doctrine
Teo Soh Lung is also significant because the High Court denied the application of the basic features doctrine in Singapore. This doctrine, first developed in Indian case law, prevents attempted constitutional amendments which abrogate any of its "basic structure" or "essential features" even if the procedural requirements for constitutional amendments are met. Chua J. held that the doctrine was not applicable to the Singapore 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 Malaysia, the basic features doctrine was also found to be inapplicable by the Federal Court in Phang Chin Hock v. Public Prosecutor. The Court remarked that the Indian Constitution was not drafted by "mere mortals", while the same could not be said for the Malaysian Constitution. The Indian Constitution was drafted by a constituent assembly representative of the Indian people in territorial, racial and community terms, while both the Malaysian and Singapore Constitutions were enacted by ordinary legislatures. Reliance on the drawing of distinctions between the Indian Constitution on the one hand and the Malaysian and Singapore Constitutions on the other on the basis of the history of their framing has been criticized as weak and inadequate.

It has been argued that the basic features doctrine is necessary to provide a legal safeguard for the basic structure of the Constitution. The less permanence judges attach to the Constitution the more easily it can be eroded, and the less stability is accorded to the "supreme law of the land". This fear can be reinforced by the example of Hitler's "legal" rise to power in 1933 – the lack of restrictions on constitutional amendment allowed him to diminish the Weimar Constitution and set up his dictatorship. With the dominance of one party in the Singapore Parliament, it is all the more important to protect the essential features of Singapore's Constitution.

Nonetheless, the rejection of the basic features doctrine may have paved the way for fundamental changes to be made to the Singapore Constitution over the years, including the introduction of Group Representation Constituencies, Non-constituency Members of Parliament, Nominated Members of Parliament and the Elected President. Such changes may not have happened or may have faced the possibility of being pronounced unconstitutional by the courts if the basic features doctrine was applicable in Singapore.

Nevertheless, it should be noted that the Court of Appeal had declined to decide whether the High Court was right in rejecting the basic features doctrine. This absence of endorsement from the highest court of the land should be taken into account in assessing the legal position of the doctrine in Singapore today.

Teo Soh Lung’s case as an example of unjustified preventive detention under the ISA
After Teo Soh Lung, academics have questioned whether the justifications for the ISA still hold. In his paper "Terrorism and the Criminal Law: Singapore’s Solution", Michael Hor discusses some justifications for the use of preventive detention in Singapore. One enduring argument is that preventive detention is necessary because it is often "unduly onerous, if not impossible" to prove in a court of law that terrorism or subversive activity has taken place. Such operations are by their nature covert and clandestine, and any witnesses are likely to be intimidated into silence. Another justification for preventive detention is the need to prevent harm from happening. Preventive detention legislation is therefore unlike criminal law, as the latter focuses on completed crime where harm has already been done.

However, Hor then argues that Teo Soh Lung’s detention cannot be justified on either of these grounds. There was no lack of evidence in her case, as comprehensive written and televised accounts were successfully extracted from the detainees. There seemed to be no legitimate reason why this evidence could not be adduced in court.

Nor could the need to prevent harm justify Teo’s detention. Teo and her fellow detainees were accused of spreading anti-establishment and allegedly "Marxist" ideas which could potentially set the ideological background for violence and disorder in the future. Yet they were not alleged to have actually preached violence or disorder. Hor thus argues that the causative link between the promotion of an ideology that is itself non-violent and the mere possibility of it playing a role in generating violence in the future is "simply too tenuous" and that this ground of justification should not stand. There was no "good reason" why preventive detention was used in Teo’s case.

Possible impetus for the Government’s decision to restrict admission of Queen’s Counsel
On 20 March 1990, the Government Parliamentary Committee for Law and Home Affairs, raised the issue of whether Queen’s Counsel should be admitted to Singapore courts. By 1991, admission was restricted to cases that were, in the Court’s view, of “sufficient complexity and difficulty”. The official reason provided by the Council for this change was that the trend of resorting to Queen's Counsel even for simple cases would inhibit the development of the local bar.

However, Teo opines that the Government’s decision to review the admission of Queen's Counsel was precipitated by her case. She had been represented in the High Court and the Court of Appeal by two prominent Queen’s Counsel, and suspected that their roles in defending her case had angered the Government.