Madan Mohan Singh v Attorney-General

• Judge: Quentin Loh J
• Judgment Date: 25 February 2015
• Neutral Citation: [2015] SGHC 48
• Published date: 02 March 2015
• Docket Number: Originating Summons No 38 of 2011 (Summons No 3725 of 2014)
• Subject Matter: Civil Procedure,Administrative Law,Judicial review,Striking out
• Court: High Court (Singapore)
• Hearing Date: 19 January 2015
• Defendant Counsel: David Chong SC, Ruth Yeo, Germaine Boey, Ailene Chou and Jamie Pang (Attorney-General's Chambers)
• Plaintiff Counsel: Ravi s/o Madasamy (L F Violet Netto)

Quentin Loh J:

Mr Madan Mohan Singh (“the Applicant”) filed this Originating Summons (“the present OS”) on 15 January 2014 applying for leave to bring judicial review proceedings under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) against the Singapore Prison Service (“the SPS”).

The Applicant sought the following prayers: a Quashing Order to quash the labelling of Sikh Prisoners as being either “practising” and/or “non-practising” (“the Quashing Order”); and a Declaration to be granted that the SPS has, contrary to Art 15(1) of the Constitution, violated the Applicant’s right to propagate the Sikh religion in his capacity as the Sikh Religious Counsellor to the Sikh inmates (“the Declaration”).

The application was resisted by the Attorney-General (“the Respondent”). The Respondent filed Summons 3725 of 2014 on 24 July 2014 to strike out the present OS under O 18 r 19 of the Rules of Court.

The parties appeared before me on 19 January 2015. Mr David Chong SC (“Mr Chong SC”) appeared for the Respondent on the striking out application and Mr Ravi s/o Madasamy (“Mr Ravi”) appeared for the Applicant. At the end of submissions, Mr Ravi invited me to treat his submissions against the striking out application as his submissions on the application for leave since the facts and arguments in this case for a striking out application and for leave under O 53 r 1 of the Rules of Court overlapped significantly. Mr Chong SC had no objections. I accordingly treated the parties as having made all the necessary submissions on the leave application as well. I pause to note that the burden of proof in the two applications are quite different but I see the sense in Mr Ravi’s submission that if I strike out the application, as Mr Chong SC was urging me to, which was on a higher burden of proof, then it follows that I would not grant leave under O 53 which calls for a lower burden of proof. If I did not strike out the application, since Mr Ravi would not have raised anything new or different from his submissions against a striking out, I could proceed to decide on the granting of leave under O 53 on those same submissions and grounds put forward by Mr Ravi.

Background

The facts are largely undisputed. The Applicant was a Sikh religious counsellor with the Singapore Anti-Narcotics Association Sikh Aftercare (Counselling) Services (“SANA Services”). Around July 2000, SANA Services had identified the Applicant to serve as a volunteer Sikh religious counsellor at the SPS. Upon acceptance by the SPS, the Applicant was issued a volunteer pass by the SPS to facilitate his entry into prisons. His main role was to provide religious services and counselling to prison inmates on Sikh-related matters.1Goh Leng Chuang Terrence’s Affidavit (“GLCTA”) at para 5. This included “teaching or making the Sikh inmates more conscious and aware of the fundamental and inviolable tenets of Sikhism.”2Applicant’s 1st Affidavit (“AA1”) at para 4.

On 31 August 2010, after serving approximately ten years as a volunteer, the Applicant wrote to the SPS for the first time requesting a review of the SPS’s hair grooming policy for inmates (“the Hair Grooming Policy”).3Applicant’s 2nd Affidavit (“AA2”) at para 71. It is important to set out the Hair Grooming Policy in some detail as it is the very thing that the Applicant seeks to quash.

The Hair Grooming Policy

The SPS has a strict hair grooming policy for its inmates. In general, all inmates in the custody of the SPS are required to have their hair and beard cut close.4GLCTA at para 22. The rationale for such a requirement stems from the fact that a prison is a “unique and strict environment with a strong focus on discipline, safety, security and order”.5GLCTA at para 22. It is meant to instil discipline in inmates by subjecting them to a regimented lifestyle and ensuring that inmates are uniform in appearance. It is further intended to prevent the concealment of weapons or other contraband items.6GLCTA at para 23.

However, the SPS has an exception to this general rule. Inmates who declare their religion to be Sikhism and who have unshorn hair and beard at the point of admission (“unshorn Sikh inmates”) would be exempted from the general rule and be allowed to keep their hair and beard unshorn during their period of incarceration.7GLCTA at para 24. On the other hand, inmates who profess to be adherents of Sikhism, be it at the point of admission or subsequently during incarceration, but who had by their own volition shorn hair and/or shorn beard at the time they were admitted to prison (“shorn Sikh inmates”), will not be allowed to keep their hair and beard unshorn during their period of incarceration.8GLCTA at para 24. This policy has been in place for the past 40 years or so. The concession granted to unshorn Sikh inmates is justified by the SPS as a historical one, and the SPS has maintained it since its inception.

According to the Applicant, somewhere in 2010, the SPS began to label unshorn Sikh inmates as “practising Sikhs” and shorn Sikh inmates as “non-practising Sikhs”, and applied the Hair Grooming Policy accordingly.9AA2 at para 58. This was what allegedly prompted the Applicant to request a review of the Hair Grooming Policy. It is important to note that the SPS abandoned the “practising” and “non-practising” terminology in February 2013. They have instead adopted the terms “unshorn” and “shorn” to distinguish between the inmates for the purposes of the Hair Grooming Policy.

The subsequent events

During the period between November 2010 and March 2011, the Applicant continually engaged the SPS, the Sikh Advisory Board (“SAB”), SANA Services and the Ministry of Home Affairs (“MHA”) on the Hair Grooming Policy.10See e.g. AA1 at pp 54, 63, 67, 74, 81, 84, 138, 101, 102, 110 & 140. The Applicant sought, inter alia, to have the Hair Grooming Policy reviewed, especially the terminology of “practising” and “non-practising” adopted by the SPS. The Applicant also wanted certain incidents in which the Hair Grooming Policy was allegedly not complied with to be looked into.11See e.g. AA1 at p 140. The Applicant was of the view that “religiosity is a very personal decision and a Sikh inmate should be allowed, if he wishes and in accordance with his constitutional right, to keep unshorn hair, even if he decides to do so only after his admission to prison.”12AA1 at p 140.

Between 5 March 2011 and 9 March 2011, the SPS noticed a sudden spike in the number of Sikh inmates requesting to keep their hair long. The SPS then proceeded to commence investigations as such a sudden spike was “unusual”. 13GLCTA at para 33. The SPS interviewed the Applicant and 27 Sikh inmates who had attended the Applicant’s counselling sessions. The Applicant was also requested to stop providing counselling to the inmates during the course of the investigations. The Applicant agreed to this.14AA1 at p 64.

At the conclusion of investigations, the SPS decided that it was no longer appropriate for the Applicant to continue volunteering at the SPS. The SPS was of the view that the Applicant had “actively and persistently encouraged [the inmates] to keep their hair and beard unshorn in prisons and to challenge the Hair Grooming Policy by putting up requests to this effect”.15GLCTA at para 37. The SPS deemed the Applicant’s alleged actions to be a serious threat to the discipline, security, safety and order of the prison.

Undeterred by this, the Applicant continued to write to the various organisations seeking review of the Hair Grooming Policy. On 7 July 2011 and 19 July 2011, SANA Services, the SPS and the MHA had two dialogue sessions, during which the MHA and the SPS accounted for the implementation of the Hair Grooming Policy for specific Sikh inmates. At the end of the sessions, SANA Services was satisfied that the SPS had acted fairly towards Sikh inmates and had not deviated from its Hair Grooming Policy.16Dilbagh Singh’s Affidavit at para 6.

The SPS officially informed the Applicant in a letter dated 27 December 2011 that his volunteer pass would expire on 31 December 2011 and that it would not be renewed.17GLCTA at p 56. After the expiry of the Applicant’s volunteer pass, there appeared to be a period of silence lasting almost one year. It was only on 6 November 2012 and 8 November 2012 that the Applicant filed two police reports in relation to two separate incidents where an inmate’s hair was allegedly forcibly cut.18AA1 at pp 124 & 128.

In January 2013, the Applicant started writing again to the SPS. On 8 February 2013, the SPS sent an email to the Applicant reiterating the Hair Grooming Policy and informing the Applicant that it would no longer be responding to the Applicant’s emails regarding this matter. On 25 February 2013, the Applicant acknowledged receipt of the SPS’s email of 8 February 2013, and indicated to the SPS that he was in talks with some senior Sikh community leaders. According to the Applicant, these leaders had requested the Applicant to refrain from engaging this issue at least until the end of March 2013 while they attempted to resolve it at their level.19Applicant’s Core Bundle of Documents (“ACBD”) at p 73.

On 23 January 2013 and 18 June 2013, two separate dialogue sessions were held between the Sikh Welfare Council, the SAB, the SPS and the MHA, during which the MHA and the SPS stated that a review of the Hair Grooming Policy had been undertaken and that both organisations concluded that it was inappropriate to grant the existing concession given to unshorn Sikh inmates to shorn Sikh inmates.20Manmohan Singh’s Affidavit (“MSA”) at para 11.

On 18 December 2013, the Applicant filed Originating Summons No 1212 of 2013 (“OS 1212/2013”) with a Sikh inmate, Jagjeet Singh, on the same subject matter as the present OS, seeking declarations under O 15 r 16 of the Rules of Court that Jagjeet Singh’s...