page_title: Teo Soh Lung v Minister for Home Affairs
section_title: Constitutionality of the amendments and the basic features doctrine
hierarchical_section_title: Teo Soh Lung v Minister for Home Affairs / High Court judgment / Constitutionality of the amendments and the basic features doctrine
caption_attribution_description: English: The Supreme Court of India, photographed about 170&#160;metres from the main building outside the perimeter wall. Українська: Верховний суд Індії.
context_page_description: 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 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.
context_section_description: 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 (1980) and P. Sambamurthy v. State of Andhra Pradesh (1986), 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.
caption: The Supreme Court of India photographed in May 2007. Counsel for Teo relied on a number of the Supreme Court's decisions to argue that Parliament could not amend the Constitution if the amendments violated the Constitution's basic structure.
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