Comparative Constitutional Law Research Paper

(LL4012)

JUDICIAL REVIEW OF PREVENTIVE DETENTION FOR

NATIONAL SECURITY REASONS: A COMPARATIVE
ANALYSIS OF USA AND SINGAPORE

by

Indulekshmi Rajeswari

Word Count (excluding footnotes): 5839

 Judicial Review Of Preventive Detention For National Security Reasons

Part I: Introduction
Constitutionalism is a difficult concept in an age where we confront enemies that our
framers never imagined. In the time that most old constitutions were framed, conflict
was defined as two countries fighting it out in the traditional manner, battle-cries and
peace-flags included. The stateless enemy was not very much conceived of, save that
of those in the world of espionage (a concept, once again, tied to a State and nation),
much the nature of threats we face today. Suicide bombings, usage of commercial
airlines as projectiles to destroy buildings, bombings on public transportation,
biological attacks, and some might even say cyberterrorism, perpetrated by stateless
fluid groups of radicals - this is the Whole New World of threats that constitutions and
bills of rights have to deal with.

Though situated in different political climates, Singapore and USA have both resorted
to the use of preventive detention to deal with threats to national security. Most
ironically, Malaysia’s (and by extension) Singapore’s use of the ISA was decried by the
the Bush administration pre-9/11. But in the days, weeks, months and years following
9/11, the US government has radically reversed its position to become a proponent of
this tactic. However, the way the judiciary has reacted to the use of these tactics have
been remarkably different, and in this paper, I seek to prove that both sides have
something to learn from each other.

A) Scope of the paper

While this paper focuses on detention for National Security reasons, it does not
necessarily mean terrorist activities. Most of the cases centre on terrorism-related
detention, but with the respective political histories of the two countries, it can also
include marxist-related activities in Singapore. In today’s day and age, this sounds like
an ideological witch-hunt (and it probably was at the time). However, at the time,
communism was the bogey-man that was the main threat to Malaysia and Singapore1.
Due to the scarcity of contemporary jurisprudence on the issue in Singapore, this is the
one of the few points of reference we have to assess the review of detention for national
security reasons.

B) Security v Liberty: Judiciary v Executive. Quis Custodiet Ipsos Custodies?

In order to prevent attacks from happening, the executive has to have the power to
detain and question the suspected individuals. Problem being, these individuals
cannot be treated as normal criminals, for the harm they pose to the populace is much
greater than ordinary criminal acts. The detained individuals might be valuable sources

1
Michael Hor, “Terrorism and the Criminal Law: Singapore’s Solution”, [2002] 1 SLJS 17

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of information about the rest of the operation or organisation. Also, if the planned act
has not been committed yet, there might be a slight lack of evidence to show probable
cause for their detention2.

While acknowledging the need to empower the executive with means to deal with
questions of national security, one must always keep in mind that individual liberties
are important. The balancing exercise is aptly encapsulated in the now-famous quote
by Lord Parker of Waddington in The Zamora3, “Those who are responsible for the
national security must be the sole judges of what the national security requires."4

We must be clear, furthermore, that there is a difference between challenging your

detention and defending yourself as a criminal, when formally charged. In cases of
preventive detention, the detainees are simply held without being charged or told their
rights, or allowed access to counsel. Hence, when discussing the review process for
detention, we are not speaking of a formal criminal trial, and the issue the court has to
determine is not the detainee’s guilt, but whether it is acceptable to continue holding
him without such a determination. A formal trial has great risk of revealing confidential
or sensitive information, and has different standards of proof. 5 The detainee will apply
for a writ of habeas corpus, which is a general right available to all detainees regardless
of whether they have been detained for national security. In cases of national security,
however, the executive jealously guards its discretion whether to continue holding
someone, and will often have made exceptions to this via the constitution or statutes.

The problems with letting the executive have full control over the process is that there is
a considerable degree of derogation of personal liberty - either because they have
made a mistake, or because they are abusing their powers, for whatever reason 6.
Conversely, the central question in each jurisdiction is how suitable a court is to
determine questions of national security. The main problems involved in letting the
judiciary decide questions related to national security are threefold: that it contravenes
the separation of powers, that an overreaching of the rights might compromise national
security by subjecting the executive to onerous processes, and that it compromises
confidential information by making them public. Any analysis that embarks on finding
a perfect, or near-perfect model must take all this into account.

2
Hor, at 45
3
[1916] 2 AC 77
4
ibid, at 107
5
The question posed in a formal trial is that of the guilt of the defendant as to the crime he is charged
with, for which the standard of proof is always “beyond reasonable doubt”. In a trial involving the
review of the detention, the standard of proof is much lowered.
6
There is considerable concern over this in the Singapore context, marked by the debates in the
Parliament over the ISA - see Sing., Parliamentary Debates, vol. 52, col. 463 at 536 (25 January
1989) (Dr Lee Siew-Choh)

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 Judicial Review Of Preventive Detention For National Security Reasons

Part II: Judicial Review in Singapore

A) Constitutional Regime of Singapore
Art 9 of the Singapore Constitution sets out the right to liberty7, but for our purposes,
that is hardly of any import, for Art 149(1) makes a permanent exception for any
legislation that is targeted at protecting the national security of singapore8. Art 149(3)
makes it very clear that art 93, which enshrines the power of the judiciary, shall not
invalidate any law that is made to review the actions of the executive. Art 1519 further
sets out the restrictions on preventive detention, which are that he shall be informed of
the grounds of his detention10 unless this violates national interest11. It also directs that
Singaporean citizens cannot be detained more than 3 months unless the Advisory
Board makes a recommendation to the President12. This advisory board is to be chaired
by a Supreme Court Judge and two other members appointed by the President in
consultation with the Chief Justice13.

B) The Internal Security Act

The Singapore Internal Security Act (“ISA”)14 is inherited from Malaysia, but has been
modified since the separation. It is a carryover from the Emergency Regulations
Ordinance of 1948 “enacted to tackle the social and economic chaos brought about
by guerrilla warfare carried out by the Malayan Communist Party”.15

S8 of the ISA gives the Minister the power to order the detention of an individual if the
President has been satisfied that the person is a threat to national security for not more
than a period of two years16, which the President can keep renewing for periods of not
more two years17. The existence of this “super-criminal”18 legislation gives the
executive the power to “[swoop] down and [deal] with those suspected of criminal
activity when the Executive perceived that the normal processes of the criminal law are

7
Constitution of the Republic of Singapore (1999 Rev. Ed.), art 9(1) [“Sing Constitution”]
8
Sing Constitution, art 149
9
Sing Constitution, art 151
10
Sing Constitution, art 151(1)(a)
11
Sing Constitution, art 151(3)
12
ibid, art 151(1)(b)
13
ibid, art 151(2)
14
Internal Security Act (Cap. 143, 1985 Rev. Ed. Sing.) [ISA]
15
Eunice Chua, “Reactions To Indefinite Preventive Detention: An Analysis Of How The Singapore,
United Kingdom And American Judiciary Give Voice To The Law In The Face Of (Counter)
Terrorism” (2007) 25 Sing. L. Rev. 3 at 5
16
ISA, s8(1)
17
ISA, s8(2)
18
Michael Hor, “Terrorism and the Criminal Law: Singapore’s Solution”, [2002] Sing JLS 30, at 43

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likely to fail or to create more problems than they solve”. But of course, this power is to
be exercised only in cases where national security is threatened, not for incident
ordinary crimes.

C) Lee Mau Seng v MHA

Lee Mau Seng19 was a case that arose from the strongly anti-marxist sentiments of the
government. After distinguishing the constitutional process from that of India’s, the
court held that they were going to follow the holding in Karam Singh, that “it is not
open to the court in Singapore to examine the grounds and allegations of fact supplied
to the applicant pursuant to art 151(1) and s11(1) of the Act for the purpose of deciding
whether or not some or all of them are so vague, unintelligible or indefinite as to enable
the applicant to make an effective representation against the order of detention”20. To
do otherwise, the court continued, would be “inconsistent with the Act under which
the power to issue a detention order has been made to depend upon the existence of a
state of mind in the President acting in accordance with the advice of the Cabinet
which is a purely subjective condition so as to exclude a judicial enquiry into the
sufficiency of the grounds to justify the detention.”21

The effective result of Lee Mau Seng is that executive decisions can almost never be
reviewed, unless the person entrusted with the power acts outside the limits of his
authority or jurisdiction, procedurally (in other words, on the grounds in Anisminic22

D) Chng Suan Tze v MHA

Chng Suan Tze23 was a case of great importance. It arose out of the arrests of several
Christian/Catholic activists accused of marxist activities, in 1987 24. The detainees took
out writs of habeas corpus against their detentions 25.

The Court of Appeal, faced with this political conundrum, gave an equally politically
smart judgment. They ordered the release of the detainees on the technical ground that

19
Lee Mau Seng v Ministry of Home Affairs [1969-1971] SLR 508 [“Lee Mau Seng”]
20
Lee Mau Seng, at 525
21
Ibid
22
Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147. The executive and legislature,
while acknowledging the inherent judicial power of the court, has sought to evade it by inserting
ouster clauses or coming up with ways to limit the jurisdiction of the courts. Thus was Anisminic
born, cutting a side-road through the bushes for the judiciary in face of the roadblock. The gist of the
complicated decision in Anisminic reinforces Wednesbury, in allowing for the judicial review of the
decision if a tribunal or person acts outside the limits of their jurisdiction or discretion, even if there is
an ouster clause.
23
Chng Suan Tze v Minister of Home Affairs [1988] SLR 132; SGCA 16 [“Chng”]
24
Report of the International Mission of Jurists to Singapore, July 1987
25
Chng, at [1]

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the President’s satisfaction was not proved procedurally26. But after having established
that, they went on to establish dicta that rejected the subjective test that was in place27,
starting with Karam Singh28, and applied locally in Lee Mau Seng. Instead, the court
asserted its inherent jurisdiction to review the legality, and the limits of discretionary
power29, while deferring to the idea that the executive is indeed in charge of looking
out for national security30, following the GCHQ case31

The court at first establishes its jurisdiction to review the grounds of detention - whether
it really has to do with national security:

“Those responsible for national security are the sole judges of what action is
necessary in the interests of national security, but that does not preclude the judicial
function of determining whether the decision was in fact based on grounds of national
security.”32

The court continues on, defining the parameters of discretion, and asserting their
jurisdiction to review both the grounds of the detention and the allegations of fact:

“However, just as the court can determine that a decision was in fact based on
national security considerations, equally the court can in our view determine whether
the matters relied on by the executive in the exercise of discretion can be said to fall
within the scope of s 8 of the ISA.”33

Additionally, the court made the iconic remark (which is still applicable to judicial
review outside matters of national security) that “All power has legal limits and the rule
of law demands that the courts should be able to examine the exercise of discretionary
power”34, in rejecting the subjective test in Lee Mau Seng, and consequently adopting
Lord Atkin’s view in Liversidge35

26
Chng, at [39]
27
Chng, at [55]
28
Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129
29
Chng, at [86]
30
Chng, at [89]
31
Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 (H.L.) further
concretises the judicial power to review decisions even for questions of national security. However
they qualified that they were concerned not with the decision, but the decision-making process. While
the prerogative lies with the executive, the decision, if challenged, must be met by the government
with evidence that the decision was made on the grounds of national security.
32
Chng, at [89]
33
Chng, at [93]
34
Chng, at 86
35
In the Liversidge v. Anderson [1942] A.C.206. Lord Macmillan stated that the Secretary of State
had to consider that sufficient grounds existed for detention and act in good faith. In subsequent
jurisprudence, the dissenting opinion of Lord Atkin has been considered to be the correct view on the
matter.

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 Judicial Review Of Preventive Detention For National Security Reasons

After this decision, the ISA was amended, adding s8B, 8C, 8D such that Chng was no
longer applicable to any detention under the powers of the ISA, reinstating the
subjective test under Lee Mau Seng36.

E) Teo Soh Lung

The detainees were rearrested under the new detention order, this time complying with
procedures, challenged their detention again in Teo Soh Lung 37. This time, the same
Court of Appeal delivered a much tamer judgment that declined to reassert their power
to review on objective grounds, saying it was quite clear that the legislature meant for
the review to be on subjective grounds as in Lee Mau Seng38, by which the court could
not question neither the alleged facts nor grounds of detention, for discretion was
subjective.

After dismissing the appeal, the court decline to comment on “whether s 8B(2) of the
ISA has the effect of precluding the court from reviewing a detention order which is
demonstrably made for a purpose(s) other than national security, or whether, in the
alternative the amendments to s 8 of the ISA are outside the scope of the legislative
powers conferred by the amended art 149 of the Constitution…”39 The court in effect
took a legislative supremacist approach - the amendments to the legislation and
constitution were both valid procedurally, and there was no question of whether they
violated principles of natural justice or a “thick” formulation of the Rule of Law40, which
would be the only way to reconsider the detention order.

F) JI Arrests
15 years after the arrests that rocked the nation, and very shortly after 9/11, Singapore
saw its first use of the ISA against modern-day terrorism, when close to 30 suspects
were arrested by the ISD and held in detention without trial41. The arrests, and the fact
that they meant to attack a public location in Singapore was publicised in the papers42.
To this day, most of them are being held without trial43 and there has been no intention
on the part of the government to give them one44. However, this time, the MHA

36
Internal Security (Amendment) Act No. 10 of 1989
37
Teo Soh Lung v Minister of Home Affairs and Others [1990] SLR 40; [1990] SGCA 5 [“Teo”]
38
Teo, at [20]
39
Teo, at [58]
40
Chua, at 11
41
White Paper on the Jemaah Islamiyah Arrests and the Threat of Terrorism, Cmd. 2 of 2003,
(Published by The Ministry of Home Affairs Singapore), at 2 [“White Paper”]
42
Chua Lee Hoong, “Yishun target in group’s plans” The Straits Times (12 January 2002)
43
Goh Chin Lian, “Three held under ISA released; But JI, MILF men must still abide by certain
restrictions” The Straits Times (17 September 2009)
44
There are various explanations for this, but the need for racial harmony seems to be paramount
(“Should detainees face an open trial?” The Straits Times (26 January 2002), see also Hor, at 48-49)

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released a White Paper detailing the circumstances of the arrest and the status of the
detainees, perhaps in a hope of appearing publicly accountable. Perhaps knowing
their legal options were close to non-existent, the detainees did not take out writs of
habeas corpus despite telling the media they might45.

45
“Should detainees face an open trial?” The Straits Times (26 January 2002)

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Part III: Judicial Review in United States

A) Authorisation for Military Force
The US Supreme Court has long asserted its right to judicial review, beginning from
Marbury v Madison46. But the post 9-11 cases have brought a new kind of challenge to
the jurisdiction of the court. The Authorisation for Military Force (AUMF) issued by
Congress 3 days after the twin towers attack gives the President the discretion to use
whatever force “necessary and appropriate” to eliminate the threat to USA47. It must be
noted that no such declaration was needed for Singapore - due to s149 and ISA, the
authorisation has existed since Independence, constitutionally48.

There are two different regimes of habeas corpus in US - the constitutional and the
statutory. The constitutional habeas corpus can only be suspended through which
could not be suspended except by an act of congress in conformance with the
Suspension Clause, Art I49. The distinction will become important when Boumediene50
is considered later. In comparing Singapore and America, the holding in Boumediene
is the most important one of all, but to understand it, one has to understand the two
prior cases, Hamdi51 and Rasul 52, which built the foundation, rightly or wrongly, for the
Supreme Court’s extraordinary conclusion in Boumediene.

46
5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)
47
Authorisation for Use of Military Force, 115 Stat. 224 (2001)
48
However, it is necessary to note that the real difference is that Singapore retained its anti-
communist legislation and started using it for other purposes, while most of the Subversive Activities
Control Act which served the same purpose in the USA was struck out clause by clause by the
Supreme Court (Alan I. Bigel “The First Amendment and National Security: The Court Responds to
Governmental Harassment of Alleged Communist Sympathizers” 19 Ohio N.U.L. Rev. 885)
49
U.S. Const. Art I, § 9, cl. 2
50
Lakhdar Boumediene, et al., Petitioners v. George W. Bush, President Of The United States 128 S.
Ct. 2229 (2008); 171 L. Ed. 2d 41
51
Yaser Esam Hamdi, Petitioners, v. Donald H. Rumsfeld, Secretary of Defense, et al. 542 U.S. 507,
124 S.Ct. 2633 (2004)
52
Shafiq Rasul et al., Petitioners, v. George W. Bush, President of the United States 542 U.S. 466,
124 S.Ct. 2686 (2004)

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B) Hamdi v Rumsfeld
The Supreme Court broke new ground in Hamdi - where it was held that the executive
had the authority to hold citizens classified as enemy combatants53 but that the
detainees also had the right to challenge their own detention54, especially as this was a
war with no end-date. Even in cases of national security, the detainees deserves
opportunity to present and rebut facts relating to his detention55.

The government argued that

““[r]espect for separation of powers and the limited institutional capabilities of

courts in matters of military decision-making in connection with an ongoing
conflict” ought to eliminate entirely any individual process, restricting the courts
to investigating only whether legal authorization exists for the broader detention
scheme At most, the Government argues, courts should review its determination
that a citizen is an enemy combatant under a very deferential “some evidence”
standard.”56.

The defendant in turn argued that an individual cannot be arbitrarily detained at will of
the executive “without recourse to some proceeding before a neutral tribunal”57. The
District Court ruled that for such a meaningful judicial review, hearsay evidence was
not admissible, and quite extensive discovery of military documents was required58.

The court, striking a balance between these two positions, proposed a new process for
citizen-detainees59 (the holding here does not apply to non-citizens), allowing citizen-
detainees a hearing but holding a lower standard of proof, and allowing a rebuttable
presumption in favour of the government’s evidence60. J O’Connor also proposed a
military tribunal of sorts, which might help safeguard the confidentiality of
information61.

The majority decision has been criticised by some academics, and even in the
judgment by a (surprising) opinion from Justice Scalia, who dissented on the basis that
the executive did not have the power to hold anyone without charging them (Justice
Stevens joining) 62.

53
Hamdi, at 517
54
Hamdi, at 533
55
Hamdi, at 532
56
Hamdi, at 527
57
Hamdi, at 528
58
Hamdi, at 528
59
Hamdi, at 532-533
60
Hamdi, at 533-534
61
Hamdi, at 538
62
Hamdi, at 554

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C) Rasul v Bush
Rasul was a groundbreaking, at least politically. For years after 9/11, the Bush
administration had been using Guantanamo Bay as a detention facility for aliens
captured or seized. It was a way to avoid the due process that would be due to them
should they be held on US soil63. Guantanamo Bay, as we know it to be, is theoretically
Cuban territory, but leased permanently to the US, under its administrative control64.

The question to the court was thus: do the federal courts have “jurisdiction to consider
challenges to the legality of the detention of foreign nationals captured abroad in
connection with hostilities and incarcerated at the Guantanamo Bay Naval Base,
Cuba”65.

As a starting point, Congress has already “granted federal district courts… the authority
to hear applications for habeas corpus by any person who claims to be held “in
custody in violation of the Constitution or the law or treaties of the United States””66. It
has also been accepted that this action is available to aliens held within US custody67.
The court distinguished an earlier precedent, Eisentrager v Forrestal68, which raised the
question of german prisoners being held in Landsberg prison after World War II on
German territory, for which the court declined jurisdiction. The distinguishing feature
was the very different circumstances of the war, and the nature of the territory in
question69. The Cuban government has no presence, no jurisdiction, and certainly
absolutely no legal or physical control of the area70.

D) Boumediene Bush
If the Supreme Court was considered bold in the previous two decisions, it would have
been considered audacious in deciding Boumediene. After Rasul, which opened the
path for aliens detained in Guantanamo Bay to challenge their detention through the

63
David Golove, “Developments -- United States: The Bush Administration's "War On Terrorism" In
The Supreme Court” (2005) ICon 3.1(128)
64
Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval
stations, United States of America and Republic of Cuba, 23 February 1903. Interestingly, Cuba
considers the American possession of the territory illegal and the treaty a violation of the Vienna
Convention of Treaties (Alfred de Zayas, “The Status Of Guantánamo Bay And The Status Of The
Detainees” (The Douglas Mck. Brown Lecture, presented at the University Of British Columbia
Vancouver, 19 November 2003), [unpublished], at 9)
65
Rasul, at 485
66
Rasul, at 473
67
Rasul, at 474
68
174 F.2d 961, 963 (C.A.D.C.1949)
69
Rasul, at 476
70
supra, at 64

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statutory method, Congress passed the Detainee Treatment Act of 2005 (“DTA”)71. The
DTA amended the 28 U.S.C. § 2241 by removing the jurisdiction of the federal courts
to hear application of habeas corpus by enemy aliens72. It also created a new tribunal,
called the Combatant Status Review Tribunal (“CSRT”), and the D.C. Circuit Court had
jurisdiction to review the decision of the CSRT on procedural grounds 73 (which the
Secretary of Defence produces and updates periodically), as well as review the
procedure itself for compliance with the laws and constitution of the US74.

“At the CSRT stage, every petitioner has the right to present evidence that he has been
wrongfully detained. This includes the right to call witnesses who are reasonably
available, question witnesses called by the tribunal, introduce documentary evidence,
and testify before the tribunal.” 75 The CSRT does not allow the detainee access to
counsel, but it does allow him a Personal Representative who is able to review the
confidential information related to his detention and summarise it for him, who is also
able to assist him in finding witnesses and presenting evidence. 76. A few years later, a
new group of detainees brought a fresh challenge to the court, asking if they had the
constitutional (not statutory) privilege of habeas corpus 77. The government considered
this form of review to be in line with the holding in Hamdi in which Justice O Connor
had suggested a military tribunal of sorts78.

However, for the majority, this was considered unconstitutional. J Kennedy opined that
the “procedural protections afforded to the detainees in the CSRT hearings are far more
limited, and… fall well short of the procedures and adversarial mechanisms that would
eliminate the need for habeas corpus review. Although the detainee is assigned a
"Personal Representative" to assist him during CSRT proceedings… that person is not
the detainee's lawyer or even his "advocate."”79

Also, “the Government's evidence is accorded a presumption of validity. The detainee

is allowed to present "reasonably available" evidence, but his ability to rebut the
Government's evidence against him is limited by the circumstances of his confinement
and his lack of counsel at this stage. And although the detainee can seek review of his

71
119 Stat. 2739
72
DTA, §1005(e)(1)
73
DTA, §1005(e)(2)(C)(i)
74
DTA, §1005(e)(2)(C)(ii)
75
Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 154-156, 158-159, 161
76
Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 152, 154-155, 156
77
Boumediene, at 2240
78
supra, at 67
79
Boumediene, at 2260

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status determination in the Court of Appeals, that review process cannot cure all defects
in the earlier proceedings.”80 [internal citations omitted]

80
ibid

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Part IV: A Comparative Analysis

A) Basic Differences and Similarities

A distinctly striking parallel, and one might say, anti-parallel emerges from our
examination of the cases - in Rasul, the court offers a moderate, tentative step towards
extending statutory habeas corpus to aliens. In Chng, a deceptively mild judgment,
asserts the jurisdiction of the court to review detentions objectively. The responses of
the legislature in both situations was to amend the statute such that it effectively
overrules the court decisions, but in the US case, building in additional safeguards,
while in Singapore, simply handing the authority to the executive. In both cases,
appeals were subsequently brought (though in the US case, by a different group of
people). But the court decisions in each case could not have been more different in
result and reasoning. Teo capitulated to legislative supremacy, but Boumediene kicked
down the wall and planted its flag, extending consitutional protection to aliens
detained in Guantanamo in the federal courts.

The DTA and CSRT, one has to be reminded, are brand-new military-related
establishments81, taken in the time of war against a particular sort of enemy, though it is
not clear how long this war is going to last and how it will evolve. The ISA and the
Advisory Board are old, ever-present non-military institutions that were originally
conceived to respond to communist threats, but now responds to every possible
national security threat, including ones we might not foresee in the future. There is a
subtle institutional difference here that might play a role in how we judge them and
their institutional efficacy. We’ve seen the ISA respond to two kinds of threats: the
communist and the terrorist (though some might say there is no real difference except
in the ideology behind the threats), but the DTA and CSRT has been dealing almost
exclusively with the radical Islamic terrorism engineered by particular groups of well-
trained, cell-structured, deeply committed, martyrdom-seeking combatants.

Hence the CSRT is not entirely analogous to the Advisory Board, for the CSRT is a
military tribunal (but not the kind of ad-hoc military tribunals that were considered
objectionable in Hamdan v Rumsfeld). There might be balance of power issues that

81
In comparing, we have to keep in mind that the detentions in the USA exist in a quasi-military
context, as compared to Singapore where it exists in a civilian context. It is all the more confusing as
to exactly what regime the detentions are conducted under, for AUMF is clearly a military directive,
with the President being the Commander in Chief. However the detainees are not treated as Prisoners
of War, but dangerous individuals who have to be detained to prevent harm to the civilian population.
Some of the detainees are those captured in the war in Afghanistan, in the war against the Al-Qaeda.
Guantanamo itself is a military base, and the detentions being examined here are not under the
auspices of the CIA or FBI or other security agencies. Of course, this is reflective of the way the “war
on terrorism” has been conducted so far, blurring the lines.

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might be glossed over in the comparison, especially that of the jurisdiction of civilian
courts over military operations and actions.

The judicial climates of the two countries could not be more different. The Supreme
Court of the United States is considered “activist” by many, whether this be a good
thing or not. It has struck down many laws, contradicted the legislature and executive
on key issues and made life-changing decisions for Americans82. The Singapore
judiciary, on the other hand, is determinedly reserved and non-activist when it comes
to constitutional law, taking a legislative supremacist approach. It has never struck
down a law for being unconstitutional83.

The war on terrorism, against whatever enemy, does not come with a end-date84. There
is no state to conclude a ceasefire agreement with, no way to make sure new cells do
not arise. Terrorism is a many-headed enemy: cut one off and ten others sprout. So for
all intents and purposes, this special state of affairs where the President is authorised to
do almost anything can continue indefinitely85.

In this situation, one needs to be even more circumspect about the use of emergency
powers and the power of the executive86.

B) Framework for analysing the judicial review regimes

Understanding the respective judicial backgrounds of the two States, one can
commence a comparison of how each jurisdiction treats the issue. In doing so, we refer
back to the factors identified above in balancing the executive with the judiciary, and
use this as a framework of analyzing the matter.

i) Judicial review must leave protect detainee’s rights by allowing for

a) correction of mistakes or

b) abuse of the powers of preventive detention

ii) In exercising this review, one must not compromise national security

a) by taking into account the separation of powers, and the fact the judges
are not trained nor entrusted to deal with matters of national security

82
Mark Tushnet, The United States: Eclecticism in the Service of Pragmatism in Interpreting
Constitutions (Jeffrey Goldsworthy, ed., Oxford: 2006), pp. 7-54
83
The closest it has ever come to striking down a law is in Taw Cheng Kong v Public Prosecutor
[2004] 1 SLR 943 at the High Court level, whereupon it was promptly reversed by the Court of
Appeal in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR 410; [1998] SGCA 37
84
Stephen I. Vladeck, “Ludecke’s Lengthening Shadow: The Disturbing Prospect of War Without
End” 2 J. Nat’l Security L. & Pol’y 53 (2006) [“Vladeck”]
85
Vladeck, at 109
86
In the case of the US, Vladeck has convincingly argued for a sunset clause to the AUMF, so as to
check the possibility of the endless war being a permanent clamp on civil rights (Vladeck, at 95)

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b) by making the executive jump through unnecessary hoops which might

impede swift and necessary action

c) by preserving confidentiality of information

The courts in the respective jurisdiction for Teo and Boumediene have not fulfilled
either branches of the framework. In Teo, the court does not go far enough, and in The
courts in the respective jurisdiction for Teo and Boumediene have not fulfilled either
branches of the framework. In Teo, the court does not go far enough, and in
Boumediene, the court went too far, that the dissenting opinion by Justice Roberts
presents the right balance between national security and detainee’s rights.

i) Curbing Executive power

As mentioned above, allowing the executive to run free can have negative
consequences, for it is a strong curtailment of our liberties. As J O’Connor put it:
“Indeed, the position that the courts must forgo any examination of the individual case
and focus exclusively on the legality of the broader detention scheme cannot be
mandated by any reasonable view of separation of powers, as this approach serves
only to condense power into a single branch of government. We have long since
made clear that a state of war is not a blank check for the President when it comes to
the rights of the Nation's citizens.”87 [internal citations omitted]

a) Correction of mistakes

Mistakes happen in the preventive detention process - in trying to act fast, the executive
may have to rely on unverified information.

The CSRT regime has inbuilt controls on correction of mistakes. Justice Roberts quite
persuasively dismantles the plurality in Boumediene by pointing out that the process
that the executive envisions is quite fair to the detainee88. The majority bases most of its
overruling not on whether the CSRT is fair - but on the point that the detainee can’t
introduce exculpatory evidence after the CSRT proceedings are concluded 89. But as
Justice Roberts points out, they can simply request another CSRT. Or he can appeal to
the D.C. Circuit Court, who can review the decision for procedural compliance as well
as whether the procedure itself is in conformity with the US Constitution and its laws
the constitutionality90 of the proceedings at the DC Circuit level91. Should his inability to
introduce evidence be a violation of the US Constitution or its law, bring it up in the

87
Hamdi, at 536
88
Boumediene, at 2279
89
Boumediene, at 2289
90
(DTA, §1005(e)(2)(C)(ii)
91
ibid

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D.C. Circuits92. Also, at the DC Circuit level, the appellant has access to appellate
counsel and access to information surrounding his release93. The Secretary of Defence
is also required to make yearly unclassified review of the status of each prisoner to
Congress 94, as well consider any new exculpatory evidence that has come to light95.

In Singapore, the review over the detention is only on a purely subjective basis, which
means neither the facts not grounds of allegation can be reviewed. This leaves no room
for the correction of mistakes, as the judiciary can only review it for any procedural
issues. Of course, there are other non-judicial corrections on the Singapore detention
process - the Advisory Board has to make a yearly review of the detention96, but once
again, this is not subject to further judicial review.

Perhaps the only problem with the CSRT is that the DTA does not specifically detail that
the DC Circuit court can order the release97(but it has been specified in the
Implementation Memo98) if it finds that the procedure has been compromised. If this
could have been legislatively clarified, there would have been no need to strike out the
clause that limited federal court jurisdiction over the detainee.

b) Abuse of power

Preventive detention is exclusively dependent on the integrity of its officers99. Power

can be corrupting, and the empowerment of arbitrary power can be dangerous and a
violation of the rule of law100 . also have to consider the political reality of both
countries. The Congress in America, compared to Singapore, is politically diverse101 ,
and it is unlikely that the detention process will be used unfairly to detain (peaceful)
political dissidents on the basis of national security102 . That is not to say there is no
danger of it being abused with the best patriotic intentions, but taken too far, with

92
Boumediene, at 2288
93
Boumediene, at 2288-2289
94
DTA, §1005(d)(1)
95
DTA, §1005(a)(3)
96
ISA, s13
97
Boumediene, at 2271
98
Implementation Memo, App. J to Pet. for Cert. in No. 06-1196, at 164
99
Yang Ziliang, “Preventive Detention As a Counter-Terrorism Strategy: They have Stopped Using It
And So Should We” (2007) 25 Sing. L. Rev. 24, at 32 [“Yang”]
100
Yash Gai, “Notions of the Rule of Law Their Applicability to Malaysia and Singapore” (Presented
at The Rule of Law and Human Rights In Malaysia and Singapore, European Parliament, 9-10 March
1989), at 25
101
The Congress, in both the House and Senate, traditionally trade majorities between the Democrats
and Republicans every other election cycle, but the majority usually does not exceed 60%
102
The US does have a history of using the Subversive Internal Security Act to detain individuals but
most of this has been repealed by now (supra, at 48)

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torture of detainees103 and racial profiling 104 When this happens, it becomes all the
more imperative that the judiciary retain some powers of review, for this kind of proof-
less detention might be in violation of the Constitution. Especially when the said
detention is carried out in the legal blackhole of Guantanamo, which is a further
attempt to evade judicial oversigh 105 . The CSRT review procedure set by the Secretary
of Defence is not simply something the CSRT sets for itself, contrary to what one writer
claims106 - he has to submit the procedure, and any changes to the Congress.

Singapore, on the other hand, is a one-party state107 , with a Westminister-style fused

executive and legislature, which makes the need for a strong judicial check and
balance even more necessary. The potential for abuse for political ends is very real -
and has been demonstrated in the detention of the so-called “marxist” activists108 . Since
the Minister making the detention order is part of the ruling party, letting subjective
discretion unchecked poses a threat to the democracy in Singapore. Especially given
that under Lee Mau Seng, even a decision made in bad faith cannot be contested in the
court of law109 . Teo has already declined to consider whether the court has power to
review the detention if it was not in fact made on national security grounds 110 .

103
With the Dick Cheney policies which have included “enhanced interrogation techniques”, the
detention process is particularly susceptible to abuse by over-zealous, but well-intentioned agents
working in the counter-terrorism line (Peter Baker, “Banned Techniques Yielded ‘High Value
Information,’ Memo Says”, The New York Times (21 April 2009) online: The New York Times
<http://www.nytimes.com/2009/04/22/us/politics/22blair.html>.)
104
There is an ugly side to preventive detention: given the nature of the threat that the world is facing
today in the form of (mostly) radical Islamic terrorism, the executive tends to racially profiles its
suspects. It should not surprise anyone that most of the detainees at Guantanamo tend to be Middle-
Eastern and/or Muslim. In fact, detentions made just because the suspects are Muslim, male and might
fit a certain “profile” are extremely common, and most of them are quite innocent, such as the
Uighurs who have been released recently (Andy Worthington, “Who Are the Six Uighurs Released
From Guantanamo to Palau?”, The Huffington Post (3 November 2009) online: The Huffington Post
<http://www.huffingtonpost.com/andy-worthington/who-are-the-six-uighurs-r_b_344068.html>.
105
This is the secondary dimension of the US cases on the status of Guantanamo detainees that gets
ignored in the questions about national security. The executive, relying on a earlier decision
Eisentrager, set up a detention facility in Guantanamo Bay so that they would not be able to avail
themselves of the due process on American soil. Rasul and Boumediene step in to cure this problem.
It has to be seen as a political decision, an open acknowledgement of the de facto sovereignty of the
US government over that area, and as well as the atrocities that have been committed in the legal
blackhole that has been persisting since then. This is what Justice Scalia misses when he says the
legislature was entitled to rely on Eisentrager - that the circumstances are simply not the same, and
the US government cannot continue to abuse this legal blackhole
106
Riddhi Gasgupta, “Commentary: Boumediene V. Bush And Extraterritorial Habeas Corpus In
Wartime” 36 Hastings Const. L.Q. 425 (2009), at 437
107
Since 1959, the PAP has not lost a single election and has not conceded more than 2 seats to the
opposition
108
Lee Mau Seng; see also Chng; Teo
109
Lee Mau Seng, at 526
110
Teo, at [41]

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ii) Judicial Review must not compromise national security

National security, of course, has to be paramount in considering how far the reaches of
judicial review should reach111 .

a) Separation of powers

The judiciary is not trained or equipped to deal with matters of national security, neither
are they entrusted to protect it. The executive is in possession of the material
information and resources to make the determination about who to detain. The
judiciary, then, might not be in the best position to make the judgments. However, the
other side of the separation of powers principles also requires that the judiciary be able
to review administrative actions, as part of being a check on the executive112 . The need
for detainees to receive some amount of due process combined with the patent
disqualification of the courts to make these determinations would lead to the
conclusion that specialised tribunals can be convened to deal with the detainees,
which was suggested in Hamdi113 , as long as this process is subject to some amount of
judicial oversight.

The question then becomes, how much judicial oversight? In the Singapore cases, one
sees a battle between subjective and objective approaches to reviewing detention. In
the US context, the question is not discussed in those terms, hence it is difficult to even
fit the cases into this paradigm, being rooted in a different constitutional and
procedural background. However, in applying a rough comparative perspective, the
fact that the CSRT procedure can be reviewed for constitutionality in addition to
procedural compliance would mean that the courts can check the executive in a more
objective manner. For example, if the CSRT procedure specified that the detention
could continue if the detainee had red hair (a highly simplistic but oft-quoted example),
then that would be presumptively against the constitutional guarantee of equality.

111
While these three categories are the main limbs that one rationally considers in a legal framework,
there is a political element of preventive detention that often goes unmentioned - the preservation of
racial harmony. This is hardly considered in the US context, but forms a big part of how the executive
makes it decisions in Singapore, and might be the reason why the JI detainees never even got a trial
despite the strong evidence against them, for it might stoke strong feelings in the muslim community
and beyond(Hor, at 48; see also “Should detainees face an open trial”, The Straits Times (26 January
2002)). Racial harmony as part of national security is something we have to consider realistically but
perhaps not legally.
112
This is the basis of administrative actions in general, best encapsulated in the starting point of
modern judicial review in Associated Provincial Picture House v. Wednesbury Corporation [1947] 1
K.B.D. 223, see also Chng, at [86]; Council of Civil Service Unions v. Minister for the Civil Service
[1985] A.C. 374 (H.L.), at 385-6
113
Hamdi, at 536

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It is advocated that Singapore return to the objective approach under Chng, or allow for
the court to determine the detention for constitutional consistency. Conversely, the
majority in Boumediene can understand that the determination based upon national
security is the province of the executive, and might see value in a Chng-based
approach which allows for the objective review but not the usurpation of executive
authority, or simply respect the CSRT scheme as detailed above. The recommendation
is not to blindly adopt either system - but in the comparison, one might find parallels
that illuminate the strengths and weaknesses in each system, as well as alternatives.

b) Impedes swift and necessary action

The judicial roadblock to executive action, as long as preventive detention is

legislatively authorised, is not at the initial point of detention, but in continuing to hold
the detainee after a certain period of time. As Justice Roberts points out, even some of
the people let go by the military resumed their terrorist activities114 - if the executive gets
it wrong, what are the chances that a judge would be able to make the determination as
to whether the person continues to pose a threat? The strength of both the CSRT
scheme and of the objective regime in Chng is that it allows for the swift executive
action within the boundaries of their authority while protecting against the abuses.

c) Preserving confidentiality of information

The Boumediene court also erred in this aspect, for a full federal court habeas corpus
review would compromise confidential information, as Justice Roberts points out115 .
The court does not provide an alternative for protection of confidential information if
the detentions were to be reviewed in the federal courts116 . The pre-existing CSRT
regime meant that the detainee himself would not be able to access confidential
information but it could be presented for him by his Personal Representative. No other
process in the world remotely allows the defendant any access to confidential
information relating to his detention117 .

The ISA-Advisory Board regime of course does an excellent job of protecting

confidential information (at the expense of protecting his rights) - in fact, the detainee
need not even be told the grounds of his detention if it compromises confidential
information118 . Neither does he have access to them to be able to present his case. It is

114
Boumediene, at 2294-2295
115
Boumediene, at 2288, at 2295. Justice Roberts brings up an example releasing the evidence to
Attorney can be harmful to national security, when “during the 1995 prosecution of Omar Abdel
Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the "Blind Sheik's"
defense lawyers; that information was in the hands of Osama Bin Laden within two weeks”
116
Boumediene, at 2288
117
Boumediene, at 2289
118
ISA, s8

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suggested that Singapore adopt the scheme of the Personal Representative so as to be

able to strike a balance between the competing needs 119 .

119
Access to counsel is not legally guaranteed, which in itself is problematic, but it is granted in
practice (Hor, at 44)

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Part V: Conclusion
Balancing security and liberty is a question that has haunted humankind for thousands
of years. Finding the appropriate balance can depend on each country, but it is also
valuable to learn what other jurisdictions are doing, especially in dealing with the
current international threat of terrorism. In this case, both Singapore and USA have
something to learn from each other: Singapore can learn to better protect the rights of
the detainees, and USA can learn to better protect national security and respect the
separation of powers. Having said that, the separation of powers doctrine is not a
magic phrase that automatically truncates judicial power, it is a complicated give-and-
take concept that requires both the executive and judiciary (in this case) to find the right
balance of power between them. The courts have to know when to step up and when
to back off, in this complicated little balancing act between national security and
individual liberty.

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