Chan Hiang Leng Colin and Others v Minister for Information and the Arts

JurisdictionSingapore
JudgeGoh Joon Seng J
Judgment Date29 February 1996
Neutral Citation[1996] SGCA 7
Date29 February 1996
Subject MatterAdministrative Law,art 4, Part IV Constitution of the Republic of Singapore,arts 4, 14 & 15 Constitution of the Republic of Singapore,Whether right to religious freedom violated,Rights of citizens qua citizens,Whether order over-inclusive,Unlawful society,Ministerial order prohibiting publications of International Bible Students Association,Refusal to do National Service,Judicial review,Freedom of religion,Effect of rights enshrined in Constitution,Whether prima facie case made out,Jehovah's Witnesses,Ministerial order to deregister society,Constitutional Law,Fundamental liberties,Proportionality as independent ground for judicial review,Locus standi
Docket NumberCivil Appeal No 80 of 1995
Published date19 September 2003
Defendant CounselBala Reddy and Soh Tze Bian (Attorney General's Chambers)
CourtCourt of Appeal (Singapore)
Plaintiff CounselWilliam Glen How QC, Leslie Netto and S Magintharan (Netto Tan & S Magin)

This is an appeal from an order of the High Court refusing leave to issue a notice of motion for judicial review. The appellants are ministers of a Christian religious denomination known as Jehovah`s Witnesses. The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) are organizations under the ambit of the denomination. By Order 179 of 1972 issued by the Minister for Home Affairs, the local chapter of the denomination, the Singapore Congregation of Jehovah`s Witnesses (SCJW) was deregistered. At the same time, the Minister for Culture declared the publications of WTBTS prohibited publications by Order 123 of 1972. Neither of these two orders are being directly challenged. By Order 405/94 made under s 3 of the Undesirable Publications Act (Cap 338), the Minister for Information and the Arts (the Minister) prohibited the importation, sale or distribution of publications of IBSA. This order is the subject matter of the present proceedings.

The appellants sought leave to apply for an order of certiorari to remove into the High Court and quash Order 405/94.
The appellants also sought a declaration that Order 405/94 is invalid. The learned judge below struck out the claim for the declaration on the ground that the High Court does not have the jurisdiction to grant a declaration in proceedings under O 53 of the Rules of the Supreme Court (RSC). The learned judge held that the appellants had sufficient locus standi to apply for judicial review. However, she refused to grant the appellants leave. Her judgment is reported at [1995] 3 SLR 644 .

Several issues were raised before us.
After hearing counsel for both sides and a short adjournment, we dismissed the appeal. We now give our reasons.

The first issue was whether the court, in an application under RSC O 53, has any power to grant a declaration.
The appellants contended that a declaration may be obtained in a proceeding under RSC O 53. Mr How for the appellants relied on s 18(2) of the Supreme Court of Judicature Act (Cap 322) and the First Schedule thereof. These provisions give the High Court powers to make `any other orders`, including a declaration.

In our view, s 18(2) does not take the appellants very far.
It does not follow that because the High Court has the power to grant a declaration, it has the power to grant one in an application under RSC O 53. In Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 , Sinnathuray J held at p 225:

The position in Singapore is different from that of England. As I have already said, the procedure that applies for prerogative orders is based on the old English O 53 ... So, as I have sought to show, there is no provision in our substantive law or our rules of court relating to procedure for this court to make orders of declarations or give other ancillary reliefs in an application made under O 53.



A reading of O`Reilly v Mackman & Ors [1982] 3 All ER 1124 will reveal that if a declaration is sought under the old English procedure, then the proper course is to begin an action by writ or originating summons.
In none of the English cases prior to their new O 53 was a declaration granted in a proceeding under O 53. Those cases in which declarations were granted were commenced by ordinary originating processes. Our RSC O 53 is based on the old English O 53. There was never any power to grant a declaration under that Order because a declaration is not a prerogative order. Re Application by Dow Jones (Asia) Inc was rightly decided.

The learned judge held that the appellants had the requisite locus standi to apply for judicial review in this case.
The learned judge based her decision on the fact that the appellants had a general interest, as Jehovah`s Witnesses, in studying the tenets of their faith. Furthermore, they had a particular interest in Order 405/94 as each of them was facing prosecution for possessing banned materials in contravention of Order 405/94.

Before us, however, Mr Reddy for the Minister contended that the appellants had no locus standi.
Mr Reddy made two arguments. The first argument was that by virtue of Order 179 of 1972, the SCJW had been deregistered. It followed that the Jehovah`s Witnesses movement was unlawful. There was no dispute that the appellants are in fact Jehovah`s Witnesses. Hence, unless the appellants can show that their existence as a group is lawful, they cannot challenge Order 405/94. The second argument was that the purpose behind Order 405/94 was to prevent the propagation of the beliefs of Jehovah`s Witnesses. A right to propagate the beliefs of an unlawful society cannot be a right that can be asserted before this court. Mr Reddy then drew an analogy from the sale of pornographic materials. He submitted that in such cases, the persons affected would be persons such as the distributors and copyright holders. It cannot be the case that persons can have the right to complain merely because they wanted to see such publications. Mr Reddy submitted that the same is applicable in this case, and the only persons who can complain about Order 405/94 are officers or members of IBSA.

We are unable to agree with Mr Reddy`s submissions.
Firstly, it appears to us that the appellants are not challenging Order 405/94 as members of any group. They are challenging Order 405/94 in their capacity as citizens. What they are trying to do is to invoke their constitutional rights as citizens to profess, practise and to propagate their religion. The question is, therefore, whether they, as citizens, may do so.

In R v Greater London Council, ex p Blackburn [1976] 3 All ER 184 at p 192, Lord Denning MR said:

I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty`s subjects, then anyone of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate.



In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93, Lord Wilberforce opined at p 96:

... it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and the breach of those said to have been committed. In other words, the question of sufficient interest cannot, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context.



At p 109, Lord Scarman made the following observation:

The sufficiency of the applicant`s interest has to be judged in relation to the subject matter of his application. This relationship has always been of importance in the law.



In the present case, what is complained of is an alleged violation of a citizen`s constitutional right under art 15 of the Constitution to profess, practise and propagate his religion.
Such rights are constitutionally enshrined. If a constitutional guarantee is to mean anything, it must mean that any citizen can complain to the courts if there is a violation of it. The fact that the violation would also affect every other citizen should not detract from a citizen`s interest in seeing that his constitutional rights are not violated. A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights.

There is thus no need for the appellants to show that they are office holders in IBSA or members thereof.
Their right to challenge Order 405/94 arises not from membership of any society. Their right arises from every citizen`s right to profess, practise and propagate his religious beliefs. If there was a breach of art 15, such a breach would affect the citizen qua

citizen.
If a citizen does not have sufficient interest to see that his constitutional rights are not violated, then it is hard to see who has.

It would indeed be strange if the only person who can complain of an alleged breach of art 15 in this case is IBSA, for IBSA is neither a citizen nor resident of Singapore.
If Mr Reddy is right, then no citizen can complain of the alleged breach of art 15 in this case and the only person who can do so is a non-resident foreigner! This would be absurd, for art 15 of the Constitution only speaks of citizens having these rights. In Dow Jones Publishing Co (Asia) Inc v A-G [1989] 2 MLJ 385 , this court held at p 398 that art 14 of the Constitution, which guarantees a citizen`s right to freedom of expression, did not grant any such guarantee on the appellants there, who were not Singapore citizens. Accordingly, the appellants there had no locus standi to complain about a breach of art 14. Hence, it seems to us that the analogy drawn with pornographic materials is not applicable here. The short answer is that a citizen does not have a constitutional right to see pornographic materials. He does, however, have a constitutional right to profess, practise and propagate his religion, and it is alleged that the publications by IBSA are essential for him to carry out these activities.

We are also unable to agree with the argument that what the appellants are doing amounts to an assertion of a right to propagate the beliefs of an unlawful society.
The only effect of Order 179/72 is that the society known as the SCJW had been deregistered and it is, therefore, an offence to be a member of it. It does not, however, follow that it is illegal to profess, practise or propagate the beliefs of Jehovah`s Witnesses. It may be that group participation in the activities of Jehovah`s Witnesses may invoke the presumptions under the Societies Act (Cap 311) of being a member of an unlawful society, but that is a different matter.

The mere
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