9(1) No person shall be deprived of his life or personal liberty save in accordance with law.
(2) Where a complaint is made to the High Court or any Judge thereof that a person is being unlawfully detained, the Court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the Court and release him.
(3) Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be produced before a Magistrate and shall not be further detained in custody without the Magistrate’s authority.
(5) Clauses (3) and (4) shall not apply to an enemy alien or to any person arrested for contempt of Parliament pursuant to a warrant issued under the hand of the Speaker.
(6) Nothing in this Article shall invalidate any law —
(a) in force before the commencement of this Constitution which authorises the arrest and detention of any person in the interests of public safety, peace and good order; or
(b) relating to the misuse of drugs or intoxicating substances which authorises the arrest and detention of any person for the purpose of treatment and rehabilitation,
by reason of such law being inconsistent with clauses (3) and (4), and, in particular, nothing in this Article shall affect the validity or operation of any such law before 10th March 1978.
This appears to be the case, but in Tan Tek Seng‘s case, Gopal Sri Ram JCA held that ‘life’ did not refer to mere existence but included ‘all those facets that are an integral part of life itself and those matters which go to form the quality of life.’
Includes right to seek and be engaged in lawful and gainful employment; receive those benefits that society has to offer to them; and the right to live in a healthy and pollution free environment.
Meaning of ‘personal liberty’?
Government of Malaysia v Loh Wai Kong held that ‘personal liberty’ related only to liberty concerning the body or the individual. Did not include the right to travel overseas nor a right to a passport.
Some constitutional provisions are absolute – eg Article 10
Most others allow for legislative flexibility – ‘save in accordance with law’
Specifically, what is the meaning of ‘law’?
Law = Duly enacted law – Arumugam Pillai v Govt of Malaysia (1975)
Law includes ‘fundamental rules of natural justice’ – Ong Ah Chuan v PP (1981):
In a constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to ‘law’ … refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution.
Quaere: What is covered by these ‘fundamental rules of natural justice’?
Tinsa Maw Naing v The Commissioner of Police, Rangoon (1950):
Rules of natural law are as the mirage which ever recedes from the traveller seeking to reach it … to accept natural law as a higher law which invalidates any inconsistent positve law would lead to chaos. There is no certain standard and no measuring rod by which the so-called principles of natural justice can be ascertained or defined. Each judge administering justice would be a law unto himself.
Haw Tua Tau v PP (1981): It would be ‘imprudent … to attempt to make a comprehensive list of what constitute fundamental rules of natural justice applicable for determining the guilt of a person charged with a criminal offence.’
PP v Mazlan bin Maidin : The right to silence ‘has never been regarded as subsumed under the principles of natural justice.’
Jabar v PP (1995):
Any law which provides for the deprivation of a person’s life or personal liberty, is valid and binding so long as it is validly passed by Parliament. The court is not concerned with whether it is also fair, just and reasonable as well.
Substantive vs Procedural Natural Justice (as recognised in administrative law).
Part XII of the Constitution – special powers to deal with subversion and times of emergency. In particular, Article 150 confers powers on both legislature and executive to make laws that contradict the Constitution
Article 149 – laws enacted may contravene Articles 9, 11, 12, 13, and 14.
Section 74 – Officer may arrest without warrant, any person whom he ‘has reason to believe’ might act in any manner prejudicial to the security of Singapore.
Minister may order person detained for up to 2 years if the President ‘is satisfied’ that it is necessary to prevent that person from acting in any manner prejudicial to the security of, or to the maintenance of public order or essential services of Singapore
Person arrested under ISA has the right to counsel under Article 9(3) and has the right to be informed of the grounds of his arrest as soon as possible.
Can ‘bad faith’ or ‘mala fides’ be challenged?
Karam Singh (1969) – Yes. But onus of proving mala fides rests on applicant Yeap Hock Seng (1975).
Meaning of ‘is satisfied’ – subjective or objective test.
Subjective test – Karam Singh , followed in Lee Mau Seng – Minister’s ‘satisfaction’ and the facts upon which the decision was made was not justiciable.
Objective test – Chng Suan Tze (1989) – Karam Singh & progeny no longer good law. Should apply the objective test – there cannot be an authorization of ‘arbitrary powers of detention’ and only courts can review exercise of these power.
Parliament intervened following Court of Appeal decision in Chng Suan Tze .
Constitution amended (Act 1 of 1989) inserted new Article 149(3):
149(3) If, in respect of any proceedings whether instituted before or after 27th January 1989, 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.
8B(1) … 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.
Article 151(1(b) – ‘no citizen’ may be detained ‘for a period exceeding 3 months unless an advisory board constituted’ under article 151(2) ‘has considered any representation made by him’ and has ‘made recommendations thereon to the President.’
Re Tan Boon Liat (1977) – failure by Advisory Board to make recommendations within 3 month period. Malaysian Federal Court held that the ‘condition precedent’ had not been satisfied and that the detention was thus not ‘in accordance with law’.