Chan Hiang Leng Colin v. Public Prosecutor is a 1994 judgment of the High Court of Singapore delivered by Chief Justice Yong Pung How which held that orders issued by the Government deregistering the Singapore Congregation of Jehovah's Witnesses under the and banning works published by the Watch Tower Bible and Tract Society ("WTBTS") under the Undesirable Publications Act (Cap. 338, 1985 Rev. Ed.) (now ) did not violate the right to freedom of religion guaranteed by Article 15(1) of the Constitution of Singapore.
The Court said that the constitutionality of the orders had to be presumed, and the appellants bore the burden of establishing that the orders were unconstitutional or ultra vires. The orders had been issued because Jehovah's Witnesses refuse to perform national service, which the Government regarded as contrary to public peace, welfare, and good order. The Court could not question the Government's exercise of discretion in this regard. Thus, the orders were laws relating to public order, which are exceptions to freedom of religion set out in Article 15(4). The Court also emphasized that any religious belief and practice which offends the sovereignty, integrity and unity of Singapore must be restrained. In reaching its decision, the High Court applied a "four walls" approach to interpreting the Constitution and declined to examine foreign case law. There is academic criticism of the fact that the Court interpreted the concept of public order broadly, and did not balance the appellants' fundamental liberties against the public interest.
The High Court also held that the orders were neither irrational nor disproportionate. The order banning all WTBTS publications was reasonable as it would be administratively impossible to monitor any order other than a blanket ban. As for the deregistration order, the Court accepted that the Jehovah's Witnesses' refusal to perform national service prejudiced national security, and was thus appropriately issued in the interest of public order. The Court noted that Singapore's administrative law does not recognize proportionality as a distinct ground of judicial review.
Although the appellants argued that natural justice had been breached because they had not been consulted prior to the issuance of the orders, the High Court observed that where the public interest is at stake the English courts have held that principles of natural justice must apply in a modified manner. In a 1977 case, the Court of Appeal of England and Wales held that the audi alteram partem ("hear the other side") principle did not need to be complied with if the public interest so demanded.
Facts
Jehovah's Witnesses is a Christian denomination whose members refuse to engage in any political or national practices, such as saluting the flag or performing national service. This was deemed prejudicial to the public welfare and good order of Singapore, and on 14 January 1972 the Government issued two orders to deal with the perceived threat to public order. First, Gazette Notification No. 123 of 1972 ("Order 123") was issued by the Minister for Culture pursuant to section 3 of the Undesirable Publications Act ("UPA") ("UPA"), s. 3 (now , s. 5). to ban works published by the Watch Tower Bible and Tract Society ("WTBTS"), the primary corporation used by Jehovah's Witnesses..
Additionally, Gazette Notification No. 179 of 1972 ("Order 179") by the Minister for Home Affairs ordered the dissolution of the Singapore Congregation of Jehovah's Witnesses pursuant to his powers under section 24(1) of the Societies Act ("SA"). ("SA"), s. 24(1).
The appellants were Jehovah's Witnesses. On 2 July 1992, police seized publications from them, thirteen of which turned out to be publications prohibited under Order 123. The appellants were charged under Order 123 for possession of publications by the WTBTS, an offence punishable under section 4(2) of the UPA.Chan Hiang Leng Colin, p. 215, para. 2.
Trial judge's decision The case was first heard in the District Court. The appellants contended by way of a preliminary objection that Order 123 was ultra vires, or beyond the powers, of the UPA and contravened Article 15(1) of the Constitution of Singapore,, now the . which enshrines the right to freedom of religion. The trial judge dismissed the preliminary objection, holding that Order 123 was valid and constitutional, as the order concerned the public interest and was permitted under s 3(1) of the UPA. Accordingly, the appellants were convicted for possession of the banned publications. They appealed to the High Court against the trial judge's decision.Chan Hiang Leng Colin, p. 216, paras. 6–7.
High Court decision
Grounds of appeal The appellants raised three main grounds of appeal which involved administrative and constitutional law issues:Chan Hiang Leng Colin, p. 230, para. 48.
Whether Order 179 was unconstitutional and ultra vires section 24(1)(a) of the SA. Whether Order 123 was ultra vires section 3(1) of the UPA or unconstitutional. Whether Order 123 was unreasonable and disproportionate.
The appeal was heard by Chief Justice Yong Pung How, sitting as a judge of the High Court.
Preliminary procedural issue One preliminary issue that the High Court had to determine was whether it could, in its appellate capacity, hear the appeal which involved constitutional matters. The High Court could hear the constitutional issues only in the exercise of its original jurisdiction. However, in the present case the High Court was sitting as an appellate court in a criminal proceeding. The Court, referring to Public Prosecutor v. Lee Meow Sim Jenny (1993),Public Prosecutor v. Lee Meow Sim Jenny 3 S.L.R.(R.) 369 at 373–374, paras. 13–14. held that its powers were "necessarily limited to that of the Subordinate Court from which the appeal emanated".Chan Hiang Leng Colin, p. 218, para. 14. Since the District Court did not have the power to address the constitutional issues raised, the High Court could not hear the constitutional matters in its appellate capacity.Chan Hiang Leng Colin, p. 216-217, para. 8.
However, the High Court recognized that both parties had agreed on the Court's competence in determining constitutional issues. The appellants had also raised issues regarding the constitutionality of the government orders, and if the orders proved to be invalid, it would afford the appellants a substantive defence to the criminal charges and would affect the administration of justice. Therefore, the High Court made an exception and heard the case in its appellate jurisdiction. In doing so, the Court emphasized that the constitutional issues raised were of significant importance and the facts of the case were "exceptional".Chan Hiang Leng Colin, p. 225, para. 33.
Right to freedom of religion
Order 179
At the outset, Chief Justice Yong emphasized that the court would not question the merits of the Minister's exercise of discretion. He stated that "there can be no enquiry as to whether it was a correct or proper exercise or whether it should or ought to have been taken".Chan Hiang Leng Colin, p. 232, para. 55. There was a presumption of constitutionality for the orders, and the burden was on the appellants to prove that they were unconstitutional or ultra vires.Chan Hiang Leng Colin, p. 232, para. 56.
The appellants contended that under Article 15(4) of the Constitution restrictions on the right of freedom of religion could be imposed only if public order, public health or morality is affected, and section 24(1)(a) of the SA provides for registered organizations to be dissolved only if they threaten public peace, welfare or good order. The appellants therefore submitted that there had to be a clear and immediate danger to public order before freedom of religion can be circumscribed. Since the activities of Jehovah's Witnesses posed no such threat, the deregistration order was unconstitutional and ultra vires the SA.Chan Hiang Leng Colin, p. 233, paras. 58–59.
However, Chief Justice Yong rejected the appellants' argument and held that Order 179 was constitutional. The mere "possibility of trouble over religious beliefs" was held to be sufficient cause for the Minister to take action. To this end, the danger did not have to be clear and immediate.Chan Hiang Leng Colin, p. 233, para. 59.
Chief Justice Yong held that any religious belief and practice which offended the "sovereignty, integrity and unity of Singapore" must be restrained.Chan Hiang Leng Colin, p. 235, para. 64. While there was no dispute that Jehovah's Witnesses were law-abiding citizens and their religious activities held no political agendas, their refusal to perform national service was, in the Minister's view, contrary to public peace, welfare and good order.Chan Hiang Leng Colin, p. 237, para. 68. In this regard, Chief Justice Yong considered the concerns of the assistant director of Manpower of the Ministry of Defence – if the beliefs of Jehovah's Witnesses were recognized, a select group of people would enjoy the social and economic benefits of their country without having to share the responsibility of defending the community's social and political institutions.Chan Hiang Leng Colin, p. 235, para. 65.
Since the court had no capacity to review the merits of the decision and conclude whether Jehovah's Witnesses were a threat to public order, it was sufficient that the Minister had made Order 179 with the view that the existence of Jehovah's Witnesses, which forbade national service, was contrary to public peace, welfare and good order. The judge also remarked that notion of public peace, welfare and good order in the SA was similar to the concept of public order envisaged by Article 15(4) of the Constitution. Thus the rationale of maintaining public order behind Order 179 fell within the permitted categories spelt out in both section 24(1)(a) of the SA and Article 15(4) respectively.
Order 123 Section 3(1) of the UPA confers a discretion on the Minister to prohibit any publication if he opines that it is contrary to the public interest. Again, the High Court held that it would not review the merits of the ministerial discretion. Since the Minister had decided that the existence of Jehovah's Witnesses would be "prejudicial to public welfare and good order", which clearly related to the public interest, Order 123 was based upon relevant considerations and not ultra vires section 3(1) of the UPA. Moreover, Chief Justice Yong felt that Order 123 sought to reinforce the ban on the Jehovah's Witnesses' movement effected by Order 179. Hence, the appellants' constitutional and administrative challenges were dismissed on the basis that once the executive's considerations were in relation to public interest, "there could therefore be no objection that the prohibition order was made on an irrelevant ground".Chan Hiang Leng Colin, p. 238, para. 70.
Evaluation of the High Court's ruling on the freedom of religion
Minister's subjective discretion In Thio Li-ann's view, it appears that the High Court allowed the matter to be decided according to the subjective discretion of the Minister. The only explanation given for deregistration was that the Jehovah's Witnesses' refusal to perform national service was contrary to the public interest. The Court did not require the executive to elaborate on exactly how a failure to perform national service would be contrary to public interest. It accepted the executive's discretion to derogate a fundamental right without a close scrutiny of the executive's rationale and explanations..
Interpretation of exceptions