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

• Jurisdiction: Singapore
• Judgment Date: 07 July 1995
• Date: 07 July 1995
• Docket Number: Originating Summons No 747 of 1994
• Court: High Court (Singapore)

Chan Hiang Leng Colin and others

Plaintiff

and

Minister for Information and the Arts

Defendant

[1995] SGHC 159

Judith Prakash J

Originating Summons No 747 of 1994

High Court

Administrative Law–Judicial review–Application for leave–Applicants challenged order banning publications of de-registered religious order–Whether there was substance in application–Whether order in contravention of right to religious freedom under the Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint)–Parameters of right to religious freedom–Public order, public health and morality–Whether practice of religion contravenes public order–Article 15 Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint)–Administrative Law–Judicial review–Application for leave–Locus standi of applicant–Whether applicant required to show sufficient interest or particular grievance–Administrative Law–Judicial review–Application for leave–Role of court at initial stage–Court to satisfy itself that applicant showed prima facie that the application not frivolous or vexatious and substance in application–Administrative Law–Remedies–Whether declaratory order can be applied for in proceedings under Order 53 Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)

The plaintiffs were members of the Jehovah's Witnesses. They were aggrieved by the decision of the respondent Minister for Information and the Arts (“the Minister”) to ban materials published by the International Bible Students Association (“IBSA”) in Order No 405/95 (“O 405/94”) pursuant to his powers under s 3 (1) of the Undesirable Publications Act (Cap 338, 1985 Rev Ed) (“the Act”). They sought leave to apply for an order of certiorari to remove and quash O 405/94 and a declaration that the order was ultra vires the Act and Arts 12, 14, 15 and 152 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint) (“the Constitution”). These proceedings were made pursuant to O 53 r 1 of the Rules of the Supreme Court (Cap 322, R 5, 1990 Ed) (“RSC”), and the Attorney-General opposed the application on the grounds that O 53 as drafted did not allow for an application to be both for an order for certiorari and a declaration, and the plaintiffs did not havelocus standi to apply for certiorari.

Held, dismissing the application:

(1) While a person charged with the offence of possessing prohibited publications contrary to the Act had an interest in the legality of the order which made the publications he possessed “prohibited publications” as to imbue him with the necessary standing to challenge the order, the applicant must showprima facie that the application was not frivolous or vexatious and that there was some substance in the grounds supporting the application: at [16] and [21].

(2) The applicant's application in this case lacked substance because s 3 (1) of the Act gave the Minister power to prohibit the import of certain publications if he was of the view that they were contrary to the public interest. As long as such power was exercised within the parameters established by Art 15 of the Constitution, no argument could be made that any order pursuant to s 3 (1) was ultra vires: at [31].

(3) The position established in the case of Chan Hiang Leng Colin v PP [1994] 3 SLR (R) 209 was that Art 15 gave a Singaporean the right of freedom of religion to the extent that the profession and practice of his religion did not contradict or infringe a general law which dealt with, or was invoked to preserve, public order, public health or morality. The Jehovah's Witnesses movement had been de-registered and rendered illegal in Singapore since 1972 as the continued existence of a group which preached as one of its principal beliefs that military service was forbidden was contrary to public peace, welfare and good order. As the congregation had been de-registered because they were a threat to the public order of Singapore, publications containing their religious beliefs and doctrines would be an equal threat to such public order. No order banning such material could therefore be ultra vires the Act: at [27], [28] and [31].

[Observation: It was not necessary that the applicant had to have a particular grievance arising out of the executive order complained about to establish the necessary standing to seek an order of certiorari. It was sufficient if there was an abuse of power which inconvenienced someone. The sufficiency of the applicant's interest had to be judged in relation to the subject matter of his application: at [12] and [13].

Art 15 gave a Singaporean the right of freedom of religion to the extent that the profession and practice of his religion did not contradict or infringe a general law which dealt with, or was invoked to preserve, public order, public health or morality. As a consequence, one could not assert that any executive action which would prevent a Singaporean from freely practising his religion was in itself an interference with the constitutional right granted under Art 15 and thus prima facie questionable. A complaint about such an action could only be regarded as being of some substance if it was arguable that the restriction imposed had nothing to do with public order, public health or morality. The burden of showing that such an arguable case existed would be on the applicant for review. The burden would only shift to the Minister after the complainant had been able to show that there was some substance in his complaint: at [27].]

Application by Dow Jones (Asia) Inc, Re [1987] SLR (R) 627; [1987] SLR 505 (folld)

Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association [1990] 3 MLJ 228 (folld)

Chan Hiang Leng Colin v PP [1994] 3 SLR (R) 209; [1994] 3 SLR 662 (folld)

George John v Goh Eng Wah Brothers Filem Sdn Bhd [1988] 1 MLJ 319 (folld)

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 All ER 93 (refd)

R v Greater London Council, ex parte Blackburn [1976] 1 WLR 550; [1976] 3 All ER 184 (folld)

Constitution of the Republic of Singapore (1985 Rev Ed,1992 Reprint)Art 15 (consd);Arts 12, 14,152

Rules of the Supreme Court (Cap 322, R 5,1990 Ed)O 53

Societies Act (Cap 311,1985 Rev Ed)s 24 (1) (a)

Undesirable Publications Act (Cap 338, 1985 Rev Ed)s 3 (1)

Leslie Netto and Magintharan (Netto Tan & S Magin) for the plaintiffs

Bala Reddy and Soh Tze Bian (Attorney-General's Chambers) for the Attorney-General.

Judith Prakash J

Background

1 This type of application has been described as the “threshold stage” of judicial review proceedings. It was filed under O 53 r 1 of the Rules of the Supreme Court 1990 (“RSC”) which requires that the court's leave be obtained before any application for an order ofmandamus, prohibition or certiorari can be made. The plaintiffs are all citizens of Singapore and members of the Christian denomination called Jehovah's Witnesses. They are aggrieved by Order No 405/94 made by the Minister for Information and the Arts, the defendant herein, which has the effect of banning materials published by the International Bible Students Association (“IBSA”), a Jehovah's Witnesses organisation.

2 The specific orders for which the plaintiffs wanted leave to apply were the following:

(a) an order of certiorari to remove into the High Court and quash O 405/94 (which order appeared in the Gazette Notification dated 4 February 1994) made by the defendant prohibiting the importation, sale or distribution of publications of the IBSA; and

(b) a declaration that the O 405/94 isultra vires the Undesirable Publications Act (Cap 338) (“the Act”) and ultra viresArts 12, 14, 15 and 152 of the Constitution of the Republic of Singapore.

3 Although the application was as required by the RSC taken out on an ex partebasis, notice of it was, as also required by the RSC, given to the Attorney-General's Chambers, and copies of the statement and affidavit filed in support of the application were lodged at those Chambers. When the application came on for hearing before me, the Attorney-General appeared by his state counsel and opposed it. After consideration, I dismissed the application. The plaintiffs have now appealed.

The issues

Attorney-General's entitlement to appear

4 During the hearing, both procedural and substantive issues were raised. The first procedural matter related to the entitlement of the Attorney-General to appear at the threshold stage of certiorari proceedings. This issue was raised by the Attorney-General's own representatives. The plaintiffs themselves did not in fact dispute the ability of the Attorney-General to attend the hearing and put forward arguments against the application. They were probably aware of the Malaysian case of George John v Goh Eng Wah Brothers Filem Sdn Bhd [1988] 1 MLJ 319 cited by Mr Reddy in support of the Attorney-General's attendance. That case was a similar ex parte application for leave to apply for certiorari. The applicant there, however, contended strongly that the Malaysian Attorney-General had no locus standi to appear before the court. In response to this objection Lim Beng Choon J held (at 320):

… I cannot accede to the objection of the applicant for the simple reason that an ex parte application merely means that such an application is permitted to be made by one party in the absence of the other. It does not preclude any person who has an interest or who may be adversely affected by the decision of the court in the matter which is to be litigated from appearing to raise any legitimate...