|Chan Hiang Leng Colin and Others v Public Prosecutor|
 SGHC 207
|08 Aug 1994|
|Yong Pung How CJ|
|William Glen How QC and Leslie Netto (Netto & Netto) for the appellants, Bala Reddy and Soh Tze Bian (Deputy Public Prosecutors) for the respondent|
This was an appeal brought by the appellants against their convictions in the district court for being in possession of publications published by the Watch Tower Bible & Tract Society (WTBTS), which are prohibited by gazette notification No 123 dated 14 January 1972 (Order 123), made pursuant to s 3 of the Undesirable Publications Act (Cap 358) (the UPA). The appellants were convicted under s 4(2) of the UPA. Fines of $800, $500, $500 and $700 were imposed on the four appellants respectively. A fifth accused who was jointly tried with the appellants was acquitted. After hearing the submissions of counsel for both parties, I dismissed the appeal. I now set out my reasons. (1) whether Order 123 was ultra vires the UPA; and (2) whether Order 123 was ultra vires art 15 of the Constitution of the Republic of Singapore. (1) Where in any proceedings in a subordinate court a question arises as to the interpretation or effect of any provision of the Constitution, the court hearing the proceedings may stay the proceedings on such terms as may be just to await the decision of the question on the reference to the High Court. (2) An order staying proceedings under this section may be made by the court of its own motion or on the application of any party and shall be made at such stage of the proceedings as the court may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the High Court in deciding the question which has arisen and to the speedy and economical final determination of the proceedings. (3) Where an order for stay of proceedings has been made under this section, the court shall state the question which in its opinion has arisen as to the interpretation or effect of the Constitution in the form of a special case which so far as may be possible shall state the question in a form which shall permit of an answer being given in the affirmative or the negative. (4) The court shall cause the special case to be transferred to the High Court and the High Court shall hear and determine the constitutional question arising out of the case in the exercise of its original jurisdiction. (5) Notice of the hearing of the special case by the High Court under this section shall be given to the Attorney-General who shall have a right to be heard. (1) The High Court shall have such powers as are vested in it by any written law for the time being in force in Singapore. (2) Without prejudice to the generality of subsection (1), the High Court shall have the powers set out in the First Schedule. (3) The powers referred to in subsection (2) shall be exercised in accordance with any written law or Rules of Court relating to them. Prior to the hearing of the appeal proper, I heard two criminal motions, from both the appellants and the public prosecutor. Mr How submitted that if the orders were proved to be invalid, this would be a complete defence to the charges laid. According to him, it was in the interest of justice for the court to make a decision on such questions of law of public and constitutional importance based on the most complete evidence before it. The appellants thus applied by criminal motion for various orders seeking leave to adduce additional evidence (Criminal Motion No 16 of 1994). These orders were generally for: (1) an order under s 257(1) of the CPC that counsel for the appellants be at liberty upon hearing of the appeal to adduce and read the additional evidence set out in the motion; (2) an order under s 58 of the CPC directing: (a) the production of the files and documents of the respective ministries in making Orders 123 & 179; (b) a full response from the respective ministries to interrogatories which the appellants intend to send with respect to the making of Orders 123 and 179; (3) an order permitting counsel for the appellants to call an expert witness to give evidence, either viva voce or by affidavit, of the beliefs and practices of the Jehovah`s Witnesses for the purpose of correcting alleged misstatements relied upon by the Minister for Home Affairs in making Order 179. (125) No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the Department concerned, who shall give or withhold such permission as he thinks fit, subject, however, to the control of the President. (126) No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure. I shall now deal with the prosecution`s criminal motion (Criminal Motion No 19 of 1994). By it, they sought to adduce additional evidence by way of the affidavits of the following: (1) Peter Chan Jer Hing, Permanent Secretary of the Ministry of Home Affairs. (2) Goh Kim Leong, Permanent Secretary of the Ministry of Information and the Arts. (3) Lieutenant-Colonel Lim Theam Poh, Assistant Director of Manpower of the Ministry of Defence. (4) Lee Kee Yong, Director of Personnel, Ministry of Education. (a) whether Order 179 was ultra vires the Constitution; (b) whether Order 123 was ultra vires the Constitution; (c) whether Order 123 was patently invalid or ultra vires the UPA; and (d) whether the ministerial decision in making Order 123 and 179 was so unreasonable and arbitrary as to violate the fundamental liberties of individuals as enshrined in the Constitution. (1) Every person has the right to profess and practise his religion and to propagate it. (2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own. (3) Every religious group has the right - (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law. (4) This Article does not authorise any act contrary to any general law relating to public order, public health or morality. (1) If the Minister is of opinion that the importation, sale or circulation of any publication or series of publications published or printed outside Singapore or within Singapore by any person would be contrary to the public interest, he may in his discretion, by order published in the Gazette, prohibit the importation, sale or circulation of that particular publication or series of publications or all publications published or printed by that person. (2) If an order made under subsection (1) specifies by name a publication which is a periodical publication, the order shall, unless a contrary intention be expressed therein, have effect with respect to - (A) all past and subsequent issues of such publication; and (b) any publication published or printed under any other name if the publishing or printing thereof is in any respect a continuation of, or in substitution for, the publishing or printing of the publication named in the order. (3) If an order made under subsection (1) prohibits the importation, sale or circulation of all publications published or printed by a specified person that order shall, unless a contrary intention is expressed therein, have effect not only with respect to all publications published or printed by that person before the date of the order but also with respect to all publications so published or printed on or after that date. (4) An order made under subsection (1) shall, unless a contrary intention is expressed therein, apply to any translation into any language of the publication specified in the order. (5) The Minister may at any time revoke, vary or amend any order made under this section.
The facts were largely undisputed. On 2 July 1992, a team of police officers seized a total of 173 booklets, including those which formed the subject-matter of the charges in the district court, from the five accused persons in and around Blk 12, Marsiling Drive. These publications were sent to the Ministry of Information and the Arts (MITA). A subsequent report from the Controller, Undesirable Publications, identified 13 publications which were prohibited under s 3 of the UPA. Not all of these publications were published solely by WTBTS. Several were published jointly by WTBTS and an organization known as the International Bible Students Association (IBSA) whereas some were published solely by IBSA. In the court below, the district judge held that the publications published solely by IBSA were not within the scope of Order 123 although they were identical with some of those published by WTBTS. The charges against the accused persons were accordingly amended and, as a result, the fifth accused was acquitted. This finding was not in issue in the appeal.
The appellants were adherents of the sect known as the Jehovah`s Witnesses. The Jehovah`s Witnesses have little or no association with other Christian denominations. Theologically, they differ from orthodox Christianity in many respects. The most controversial aspect of the Jehovah`s Witnesses` doctrine is their belief that `Satan is the God of this world`. They maintain a complete separation from governments and regard world powers and political parties as the unwitting allies of Satan (see The New Encyclopedia Britannica Vol 6, p 525). As a result, Jehovah`s Witnesses refuse to salute the flag of any nation or perform any form of national service or participate in public elections. It was on this aspect that on 14 January 1972 the Singapore Government de-registered the Singapore Congregation of Jehovah`s Witnesses. In a press statement from the Ministry of Home Affairs, it was stated that:
... its [the Jehovah`s Witnesses] continued existence is prejudicial to public welfare and good order in Singapore. The doctrine of the sect and nature of its propaganda are based on its claim that Satan and its dispensation are responsible for all organized Government and religion. The result of the impending `Armageddon` will be the destruction of everyone except Jehovah`s Witnesses who will inherit the earth. By virtue of this doctrine the sect claims a neutral position for its members in wartime. This has led to a number of Jehovah`s Witnesses in the National Service to refuse to do any military duty. Some of them even refuse to wear uniforms.
The dissolution of the Singapore Congregation of Jehovah`s Witnesses as a society was ordered by the Minister for Home Affairs pursuant to his powers under s 24(1) of the Societies Act (Cap 311) and via gazette notification No 179 (Order 179). At the same time, the Minister for Culture (now MITA) by Order 123 banned all publications by WTBTS, the parent body of the Jehovah`s Witnesses, pursuant to his powers under the UPA.
In the trial below, the accused persons elected to remain silent when they were called upon for their defence. Instead, they called one Francis Wan (DW1), a self-professed Jehovah`s Witness for 24 years who had known the five accused persons for several years, as a defence witness. Wan disagreed with the press statement and said that it was not part of the claim of the Jehovah`s Witnesses that all governments act for Satan. According to Wan, the Jehovah`s Witnesses `did not foment rebellion or resistance to the police and are willing to submit to the laws of the land`. He denied that the Jehovah`s Witnesses preached that national service should not be undertaken by their adherents and that they, in fact, advocated an official policy to tell persons not to break the law. His `qualifications` as an expert witness, outlined in a `confidential professional profile`, were not challenged by the prosecution. It seemed to me however that his evidence had to be treated with caution as, for reasons which will be addressed below, this aspect of the doctrine of the Jehovah`s Witnesses appeared to be of great significance.
The appellants did not dispute that they were caught in possession of the prohibited publications. Instead, they raised before me through their counsel the same issues which were canvassed before the district judge. At the commencement of the trial below, the following issues were raised by way of a preliminary objection:
Suffice it to say for now that the district judge dismissed these preliminary objections. An additional ground was contended before me at the hearing of this appeal. The appellants also sought to declare that Order 179 was ultra vires and unconstitutional. The two orders were alleged to have unlawfully denied the appellants and other Jehovah`s Witnesses the free exercise of their religious liberty as guaranteed under the Constitution. Further, the appellants contended that the two orders were null and unenforceable as having been promulgated arbitrarily and by a denial of natural justice, without notice or hearing, on secret evidence wholly irrelevant to the public interest. The appellants also claimed that the official statement from the Ministry of Home Affairs was inaccurate and misleading, and that no opportunity was given to respond to it.
A crucial aspect of this case was the fact that the lower court was a subordinate court and this court was of course now sitting as an appellate court. The jurisdiction of the district court was limited, as there was no provision in the Subordinate Courts Act (Cap 321) which was equivalent to para 1 of the First Schedule to the Supreme Court of Judicature Act (Cap 322) (SCJA) which conferred upon the High Court the power of judicial review. As such, the district court could not have determined the constitutional issues raised.
The position in Singapore is unique. It is provided in the recently enacted s 56A(1) of the Subordinate Courts Act that a proceeding can be stayed for reference of questions on the Constitution to the High Court when the subordinate court is faced with such issues. Section 56A reads:
The issues raised in this case clearly fell within the scope of this provision. Unfortunately, the district judge did not make such a reference to the High Court as he ought to have done. However, there was no error in law on his part as the wording of s 56A implies that any such reference is at the discretion of the court and is not mandatory. The purpose of this discretion is simple. It is to prevent unnecessary stays of proceeding each time a party purports to raise a constitutional issue. The merits of the case can then be considered by the district judge before deciding whether such a reference ought to be made to the High Court.
In any event, the district judge ruled that he had no jurisdiction to review the exercise of discretion by the minister. However, he held that the accused persons were entitled to raise as a defence the validity of Order 123 and that the court was entitled to rule on whether there was a patent invalidity in that order, in the sense that it was ultra vires its parent Act. This was limited to the examination of the wording of the provisions and no more. Anything over and above this amounted to an exercise of the powers of judicial review. The district judge proceeded to rule that there was no patent invalidity in Order 123. He did not find anything in the wording of the order to suggest that it was ultra vires s 3(1) of the UPA, and that, by virtue of s 116 of the Evidence Act (Cap 97, 1990 Ed), he was entitled to presume that the minister had regularly exercised the powers conferred on him by s 3(1). He further ruled that Order 123 was not ultra vires the Constitution, as the order which was made under s 3(1) concerned the safeguarding of public interest and was within the scope of s 3(1) of the Act. Although no authorities were cited by the district judge, his findings with respect to the scope of his powers in dealing with the issues raised before him were clearly correct.
Mr How accepted that the district judge was correct in his preliminary rulings. However, he contended that this court had the unlimited jurisdiction to determine all the issues which he raised as it was possessed of the necessary powers under art 93 of the Constitution and s 18 and para 1 of the First Schedule to the SCJA. Section 18 reads as follows:
Paragraph 1 of the First Schedule referred to above is in the following terms:
Power to issue to any person or authority directions, orders or writs, including writs of the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any others, for the enforcement of any of the rights conferred by any written law or for any purpose.
Quite clearly, the High Court has the powers of judicial review as outlined. However, Mr How`s submissions were too simplistic. They overlooked the fundamental basis of these proceedings before me. These proceedings, as noted above, were conducted in the court`s appellate jurisdiction. As such, this court`s powers were necessarily limited to that of the subordinate court from which the appeal emanated ( PP v Lee Meow Sim Jenny ). I think it is useful to highlight some of the observations of the Court of Appeal in that case, at p 889:
Mudholkar J in delivering the judgment of the (Indian) Supreme Court (in Jagat Bahadur v State of Madhya Pradesh AIR  SC 945) quoted with approval from the judgment in Sitaram v Emperor  7 Nag LR 109 also reported in 11 Ind Cas 788 the following:
`Nevertheless, it is a rule underlying the whole fabric of appellate jurisdiction that the power of an appellate court is measured by the power of the court from whose judgment or order the appeal before it has been made ... It is a fundamental principle that every Court of Appeal exists for the purpose, where necessary, of doing, or causing to be done, that which each court subordinate to its appellate jurisdiction should have, but has not, done, or caused to be done, and nothing further. Therefore, the jurisdiction in appeal is necessarily limited in each case to the same extent as the jurisdiction from which that particular case comes. It is a proposition which cannot be disputed that all powers conferred upon an appellate court, as such, must be interpreted as subject to the general rule above stated.`
And from Muthiah v Emperor  ILR 29 Mad 190, the following:
`We think that the power given to an appellate court ... is not an unlimited power to make such an order in any circumstances, but is to be taken as giving the appellate court power to do only that which the lower court could and should have done.`
`An appeal court is after all `a court of error`, that is, a court established for correcting an error. If, while purporting to correct an error, the court were to do something which was beyond the competence of the trying court, how could it be said to be correcting an error of the trying court.`
We entirely approve of the submissions made by counsel and the judgment of the Indian Supreme Court in Jagat Bahadur v State of Madhya Pradesh.
The issues which the appellants contended before me were essentially matters which in my view ought to have been properly adjudicated and determined in proceedings before the High Court for judicial review under Order 53. In view of the fact however that this court was exercising its appellate jurisdiction in a criminal proceeding, and bearing in mind the limitations of the lower court, I had to consider whether this court was precluded from considering all these issues. Here, the relevant minister`s order was not directly challenged by the application of a prerogative writ but instead arose in criminal proceedings where the validity of the respective orders was raised as a defence. It was on this basis that Mr Bala Reddy, the deputy public prosecutor, conceded that this court had the power to hear and determine the constitutional issues raised before it. He submitted that, notwithstanding the remedy of judicial review, it was always open to the defence in criminal proceedings to raise the issue that a ministerial order was ultra vires. The net effect of s 18 and para 1 of the First Schedule to the SCJA did not preclude this right but in fact conferred jurisdiction on this court. He further contended that the High Court had such power under its supervisory jurisdiction over the subordinate courts. This power of revision was contained in s 23 of the SCJA:
The High Court may exercise powers of revision in respect of criminal proceedings and matters in subordinate courts in accordance with the provisions of any written law for the time being in force relating to criminal procedure.
Mr Reddy referred to s 268(1) of the Criminal Procedure Code (Cap 68) (CPC), being the relevant written law, which reads as follows:
The High Court may in any case, the record of the proceedings of which has been called for by itself or which otherwise comes to its knowledge, in its discretion exercise any of the powers conferred by sections 251, 255, 256 and 257.
Section 256 of course refers to the powers of the High Court exercisable in an appeal from a subordinate court.
At the same time, Mr Reddy sought to distinguish Lee Meow Sim Jenny on the basis that it was a criminal reference which dealt with a narrow and restrictively worded question:
Whether the High Court, in exercising its jurisdiction in an appeal as to sentence, has the power to enhance the sentence beyond the limit of the power of the subordinate court which imposed the sentence.
He contended that the decision there only dealt with the limitation of the powers of an appeal court to enhance sentences and no more. As such, he submitted before me that Lee Meow Sim Jenny was not relevant here. In summary, his submissions were to the effect that it was in the interests of justice that the issues raised by the appellants should be determined in this proceeding once and for all, and not be constrained by such procedural technicalities.
Be that as it may, both parties did not provide me with any substantive legal propositions to support their contentions that this court has an unlimited jurisdiction. In this context, the general principles referred to in Lee Meow Sim Jenny
1are equally applicable here. Undoubtedly, ss 18 and 23 and the First Schedule to the SCJA set out the general powers of the High Court. However, it is one thing to say that the court has a specific power and another to imply that the court can exercise that power in every proceeding brought before it. This is especially so when issues of public law rights are raised.
There is no local case law directly on point. In the court below, PP v MM Pillay was cited by the appellants. It is useful to examine the facts. The defendant was charged with contravention of r 3 of the Motor Vehicles (Restricted Zone and Area Licences) Rules 1975 (viz entering into the restricted zone without an area licence). It was alleged that the rules were ultra vires s 90(1) of the Road Traffic Act (Cap 276), in the sense that it did not confer any power on the minister to make rules to prohibit, except upon payment of a fee, cars from using any road. The magistrate accepted the contention and acquitted the defendant. In doing so, he was of the view that there was no statutory provision which prohibited a subordinate court from considering the validity of subsidiary legislation in the course of a criminal proceeding. The learned Chief Justice allowed the appeal by the prosecution. He did not consider the magistrate to have acted wrongly in assuming that he had jurisdiction to rule that the rules were ultra vires. Instead, he held that the magistrate had erred in interpreting the words of the enabling Act. He was of the view that the rules were enacted to regulate traffic into and within the restricted zone and that their purpose was not to collect fees. The imposition of a fee was merely the means adopted to achieve the purpose of the Act and was incidental to it. In my opinion, PP v MM Pillay is not a strong authority for the purpose of the appeal before this court. On the facts in that case, the challenge to the subsidiary legislation was not with respect to the exercise of a minister`s discretionary power. In the circumstances, it would be desirable to embark upon an examination of the English authorities.
In England, until the alteration to O 53 of the Rules of Supreme Court and the enactment of s 31 of the Supreme Court Act 1981, it was always assumed that a court could decide on the validity of subsidiary legislation when raised as an issue, without proceeding to judicial review ( R v Rose, ex p Mary Wood , Kruse v Johnson ). However, in the landmark decision of O`Reilly v Mackman , Lord Diplock, delivering the unanimous judgment of the House of Lords, held at p 285 that it would:
... as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of [RSC] O 53 for the protection of such authorities.
However, in the next paragraph, he noted:
... I have described this as a general rule; for though it may normally be appropriate to apply it by the summary process of striking out the action, there may be exceptions, particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.
Despite Lord Diplock`s observations, uncertainty arose as to the extent to which O`Reilly v Mackman affected the traditional position on collateral challenge. In Wandsworth London Borough Council v Winder , the House of Lords held that O`Reilly did not extend to the situation where ultra vires was raised as a substantive defence in civil proceedings. It was decided that the validity of a decision of a local authority could be raised as a defence to an action for breach of contract. Wandsworth LBC had instituted civil proceedings for an order of possession and rent, and for non-payment by the defendant of rent, which was increased by the authority`s exercise of statutory powers. The defendant was held to be entitled to raise the contention that the authority`s decision to increase the rent was ultra vires. Lord Fraser observed at p 509 that:
It would ... be a very strange use of language to describe the [tenant`s] behaviour in relation to this litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is merely seeking to defend proceedings brought against him by the appellants. In so doing he is seeking only to exercise the ordinary right of any individual to defend an action against him ...
The position for civil proceedings was therefore settled. Uncertainty remained with respect to criminal proceedings until recently. In Quietlynn Ltd v Plymouth City Council , the defendant company was convicted in the magistrates` courts of operating a sex shop without licence by the local authority. The company argued that its application for a licence was refused in circumstances which rendered the refusal ultra vires. This was raised as a defence to the prosecution before the magistrates. The divisional court was asked in effect whether on a prosecution, the magistrates` court had jurisdiction to `investigate and determine the validity of the licensing authority`s decision`, and it was held that it did not. The court held that O`Reilly v Mackman applied. Webster J in delivering the judgment of the court observed at p 131 that:
It has, of course, long been the practice for justices to decide for the purposes of a case immediately before them upon the validity of bye-laws ... But those practices were established long before applications for judicial review were given statutory recognition in s 31 of the Supreme Court Act 1981. The law relating to judicial review has become increasingly more sophisticated in the past few decades, and in our view justices are not expected to have to assume the functions of the divisional court and consider the validity of decisions made by a local authority under this Act in the light of what is now a complex body of law. If a bona fide challenge to the validity of the decision in question is raised before them, then the proceedings should be adjourned to enable an application for judicial review to be made and determined. In our view, therefore, except in the case of a decision which is invalid on its face, every decision of the licensing authority under the Act is to be presumed to have been validly made and to continue in force unless and until it has been struck down by the High Court; and neither the justices nor a Crown Court have power to investigate or decide upon its validity.
The exception of invalidity on its face was derived by the court from the House of Lords decision in DPP v Head . The court did not only invoke considerations of the competence of the court but also took into account matters of consistency and legal certainty. There was a concern that the issue in question might arise in different proceedings in a different court and that the other court might reach a different conclusion. The court observed that a ruling on whether an act was ultra vires is `binding in no other case and it could not be suggested that justices or the Crown Court are a competent authority to strike down [an official] decision in the sense of declaring it invalid for all purposes`.
On the other end of the scale is the competing interest of ensuring that all issues properly arising in a particular proceeding are decided and settled in that proceeding. The divisional court reverted back to the traditional view in R v Reading Crown Court, ex p Hutchinson . Lloyd J disapproved of Quietlynn in so far as the judgment called into question the jurisdiction of magistrates to inquire into the validity of a bye-law when such invalidity was raised by the defendant as a defence and applied Winder instead. Such a jurisdiction did exist and it was not an abuse of the process of the court to raise such issues by way of a defence as the process was instituted by the prosecution and not by the defendant. Initially, Quietlynn was thought of as having confined Winder to cases where a defendant was complaining of the infringement of a private law right. However, Lloyd J at p 395 noted:
I find it hard to follow the distinction between civil and criminal proceedings in this context. If the validity of a decision of a local authority is an essential element in the proof of the crime alleged, then I can see no reason why it should not be challenged in the magistrates` court or the Crown Court as the case may be.
Further, Lloyd J was of the view that it could not be possible to distinguish Quietlynn on the grounds that it involved a challenge to an individual administrative decision whereas ex p Hutchinson involved a challenge to a bye-law. Significantly, Mann J who also sat in Quietlynn agreed with Lloyd J and considered that the result in Quietlynn was correct but that he did not consider that case to be applicable to a challenge to bye-laws. Support for ex p Hutchinson was provided by a separate divisional court in R v Oxford Crown Court, ex p Smith .
The conflicting decisions seem to have been finally determined by the divisional court in the recent case of Bugg v DPP . Woolf LJ identified two situations in which a defendant charged with the breach of a bye-law seeks to challenge the validity of that bye-law:
The first is where the bye-law is on its face invalid because either it is without the power pursuant to which it was made because, for example, it seeks to deal with matters outside the scope of the enabling legislation, or it is patently unreasonable. This can be described as substantive invalidity.
The second situation is where there is what can be described as procedural invalidity because there has been non-compliance with a procedural requirement with regard to the making of that bye-law. This can be due to the manner in which the bye-law was made; for example, if there was a failure to consult. When the bye-law itself is alleged to be substantively invalid because of Wednesbury unreasonableness ( Associated Provincial Picture Houses Ltd v Wednesbury Corp  1 KB 223), for present purposes what has to be attacked is not the decision to make the bye-law but the bye-law itself. That decision would have to be the subject of judicial review. In the criminal proceeding what has to be established is that the bye-law is unreasonable in the way in which it operates.
As can be seen, substantive invalidity has been given a narrow meaning. After reviewing the authorities, including Quietlynn and ex p Hutchinson , Woolf LJ held that a criminal court has jurisdiction to consider a defence alleging that a bye-law is substantially invalid but cannot consider whether the bye-law is procedurally invalid. A bye-law can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it. Any challenge to the exercise of the discretion, as noted in the last part of the passage above, should be properly brought by judicial review. At p 652, Woolf LJ held:
So far as procedural invalidity is concerned, the proper approach is to regard bye-laws and other subordinate legislation as valid until they are set aside by the appropriate court with the jurisdiction to do so. A member of the public is required to comply with bye-laws even if he believes they have a procedural defect unless and until the law is held to be invalid by a court of competent jurisdiction. If before this happens he contravenes the bye-law, he commits an offence and can be punished. Where the law is substantively invalid, the position is different. No citizen is required to comply with a law which is bad on its face. If the citizen is satisfied that that is the situation, he is entitled to ignore the law.
Woolf LJ offered two explanations for the distinction. First, a criminal court cannot inquire into allegations of procedural invalidity because it is not part of its jurisdiction to do so and a criminal court is not properly equipped to carry out the necessary investigation. Secondly, the evidence with respect to a particular allegation of procedural invalidity is highly significant and may result in differing outcomes in different proceedings whereas there is no need for evidence to establish substantive invalidity.
There is no provision in England similar to our s 56A. The English position can therefore be distinguished in this respect. However, in the context of this case, I am of the view that the English principles are relevant. Section 56A can be read as being confined to constitutional issues alone. The issues raised here include challenges to the validity of orders on the basis that they are ultra vires. Ultra vires issues are not necessarily issues arising out of or with respect to an interpretation of the Constitution and therefore cannot be referred to the High Court under s 56A. As I have stated earlier, the district judge`s ruling on these preliminary issues was correct. I would add however that it should also be subject to the refinement enunciated by Woolf LJ in Bugg v DPP . It is clearly not proper to raise ultra vires issues which extend beyond substantive validity, in the sense of being clearly wrong on the face of it, in subordinate court proceedings.
Having considered the relevant principles, I had to still take into account the fact that both parties were in fact ad idem with each other as to this court`s competence in determining all the issues raised. I think that this is an appropriate case for the application of Lord Diplock`s second exception in O`Reilly v Mackman
.5 Neither party has objected. Most significantly, the public prosecutor has considered that the issues here were of such considerable importance that they outweighed other considerations. The facts of this case are undoubtedly exceptional. I am of the view that in the interests of justice and in consideration of the fact that the invalidity of the orders, if proved, would constitute substantive defences to the charges, this court, despite sitting as an appellate court in a criminal proceeding, is competent to address itself to all the issues. As I have stated, this is an exceptional case and does not do damage to the principles already considered above.
The additional evidence referred to in (i) were mainly publications and articles relating to the Jehovah`s Witnesses and were in fact prohibited publications by way of Order 123 and s 3(1) of the UPA. The appellants` purpose in adducing all the additional evidence was to establish their contention that the doctrines of the Jehovah`s Witnesses were not against the public interest and that Orders 123 and 179 were therefore ultra vires the constitutional guarantee of freedom of religion.
Section 257(1) dictates that any additional evidence may only be adduced if it is necessary and, I repeat what I have previously held in Juma`at bin Samad v PP , that means `necessary in the interests of justice`. The relevant principles governing the grant of leave to adduce additional evidence were also set out in Juma`at at p 343:
The question is whether the above evidence is `necessary`. Certain principles are to be applied in determining this question and these were considered by the Court of Criminal Appeal in Rajendra Prasad v PP  2 MLJ 1 . The court held that in applying s 55(1) of the Supreme Court of Judicature Act (Cap 322) (SCJA), which is materially similar to s 257(1) of the CPC, the principles encapsulated in the following statement from Denning LJ`s judgment in Ladd v Marshall should be observed:
`In order to justify the reception of fresh evidence for a new trial, three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible although it need not be incontrovertible.`
These three conditions - non-availability, relevance and reliability - are, of course, similar to those enunciated by Lord Parker CJ in R v Parks  3 All ER 633 and which have been time and again affirmed in the Singapore and Malaysian courts: Mohamed bin Jamal v PP, Lo Fat Thjan v PP, Khamis v PP, Che Din bin Ahmad v PP, Dol bin Lasim v PP.
In short, the circumstances in which an application to introduce fresh evidence will be allowed are extremely limited.
Mr How had contended before me that, as the court below did not have the jurisdiction to consider all the issues fully, such evidence was therefore not of relevance there. As such, it could not also have been obtained at the trial. In this appeal, in relation to the validity of the respective orders, the main purpose of adducing the additional evidence was to show that the Jehovah`s Witnesses were a respectable religious group whose fundamental tenets could not have been in any sense objectionable and contrary to public order and the public interest. Having heard counsel`s submissions on this, it must be pointed out that there had never been a suggestion that the adherents of Jehovah`s Witnesses were not otherwise law-abiding citizens. The contention that they were respectable citizens was not in dispute either. The issue at hand was simply their belief which prohibits any form of military or national service, which is a fundamental tenet in Singapore. Anything which detracts from this should not and cannot be upheld. In the course of listening to submissions, it was evident to me that Mr How was wholly unfamiliar with the context of the society in Singapore and was inevitably handicapped in his submissions under the circumstances.
I did not find the conditions as stated in Juma`at bin Samad to be satisfied here and accordingly dismissed the appellants` motion. I could not see the relevance of the publications and articles which the appellants sought to adduce with respect to this appeal. Such evidence was unnecessary and would only prolong the hearing to no purpose. For the same reasons, this would include the expert evidence on the beliefs and practices of the Jehovah`s Witnesses which was sought to be adduced. This evidence was directed essentially towards the same contention that they were respectable, peace-loving individuals, whose good faith and bona fides were not disputed by the court. On the other hand, the bone of contention was simply their refusal to do national service.
As for the production of files and documents of the respective ministries, Mr How made a broad submission that the interests of justice required that the court inspect such documents to see whether they were relevant and whether the suppositions in which the respective ministers had proceeded upon were founded on fact. In my view, this could not be allowed unless the prohibition under ss 125 and 126 of the Evidence Act (Cap 97, 1990 Ed) was surmounted. The relevant provisions are in the following terms:
Although the court has wide powers under s 58, this clearly did not affect the substantive provisions of ss 125 and 126. Mr Reddy cited to me, and I quote with approval, the maxim `salus populi est suprema lex` , ie the safety of the people is the supreme law. Having heard the submissions of both counsel, I was not convinced, even apart from ss 125 and 126, that the public interest dictated that such documents be produced before this court. The importance of preserving the confidentiality of state papers need not be stressed. As such, the appellants` application for such papers was dismissed.
As for the response to interrogatories, there is no legal provision in Singapore with respect to criminal proceedings which allows either the prosecution or the defence to obtain evidence from the opposite party by such means. Save for the bland submission that it was in the interest of justice, Mr How failed to indicate to me any legal basis for the making of such orders. Further, it seemed to be obvious that the only response the appellants would get from such interrogatories would simply be the statement that the de-registration and prohibition orders were based on the Jehovah`s Witnesses` refusal to do national service.
Mr Reddy submitted that, as the appellants were raising the invalidity of the ministerial orders as a defence, it was necessary and relevant to have before the court the above additional evidence, which would enable the court to inquire fully into the challenges raised. He adopted the contention of the appellants that, as the court below could not determine all the issues, the evidence was therefore unavailable then. He further contended that no prejudice would be suffered by the appellants in admitting them. Upon an examination of the contents of the various affidavits, it appeared to me that, to a certain extent, they in fact amounted to what was sought by the appellants in their motion, primarily, the explanations and reasons for the making of the respective orders. In the circumstances, I found that they were relevant to the issues in the appeal and I could not see any objection to admitting this additional evidence. The motion was accordingly granted.
Prior to the hearing of the appeal, Mr How had applied to cross-examine the deponents of the affidavits. He contended that the affidavits contained broad allegations based on mere speculation and were without any factual basis. He claimed that he ought to have a right to question them and that the evidence should not be admitted on its own.
It is settled law that cross-examination on such affidavits is never allowed in judicial review proceedings. Although the proceeding at hand here was not strictly a judicial review, this rule was clearly applicable as this court was essentially exercising the same powers. In O`Reilly v Mackman , Lord Diplock observed at p 282:
It may well be that for the reasons given by Lord Denning MR in George v Secretary of State for the Environment (1979) 77 LGR 689, it will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise upon judicial review. The facts, except where the claim that a decision was invalid on the ground that a statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority`s findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v Bairstow  AC 14, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon which the exclusive jurisdiction to determine facts has been conferred by Parliament.
Even then, the Malaysian Supreme Court has held in Yii Suok Ting v Sibu Municipal Council , that the above passage was made with reference to the provision in O 53 r 8 in the English rules which expressly provides for the cross-examination of deponents of affidavits in judicial review proceedings. There is no similar provision in Malaysia or Singapore. As a result, the Malaysian Supreme Court was of the view that the applicable test was the narrower test which existed before the amendments to the rules, ie that leave can only be granted in very special circumstances as laid down in R v Stokesley, Yorkshire, Justices ex p Bartram . Wan Suleiman SCJ, in delivering the judgment of the court, concluded at p 236:
We would agree with learned judge in the court below that the conflict of evidence here does not constitute the sort of exceptional circumstances envisaged in the Stokesley Justice case which would justify an order to cross-examine, and also since our procedure in its unamended state is dissimilar to the corresponding English O 53 after its 1977 amendment, the test for allowing cross-examination should not be `whenever the justice of a particular case so requires`, but the more stringent one in the Stokesley case.
I would respectfully adopt the above propositions and state that this is also the position in Singapore. I accepted Mr Reddy`s contention that there was no dispute of facts nor any exceptional circumstance which required the cross-examination of the deponents of the affidavits. I could not see how the proposed cross-examination could have been relevant to the legal issues raised in this appeal. The application was accordingly dismissed.
Turning to the appeal proper, the grounds of appeal raised were essentially these:
For the reasons which I have stated above, I accepted that these grounds could be raised as a defence in this appeal. It must be borne in mind that this appeal is not primarily concerned with the right of the Jehovah`s Witnesses to exist as a religion. The de-registration of the Jehovah`s Witnesses as a society was never the subject of challenge in the court below. Nevertheless, I shall deal with it as it has been raised before me and would amount to a substantive defence, if proved. The relevant provisions of art 15 of the Constitution are as follows:
As was stated by Sir Harry Gibbs, the former Chief Justice of Australia, in Law, Justice & the Judiciary: Transnational Trends , the court has the power and duty to ensure that the provisions of the Constitution are observed. The court also has a duty to declare invalid any exercise of power, legislative and executive, which exceeds the limits of the power conferred by the Constitution, or which contravenes any prohibition which the Constitution provides.
It must be stated at the outset however that where the principal issue is the interpretation of the Constitution, the observations of Thomson CJ in Government of the State of Kelantan v Government of the Federation of Malaya & Anor are pertinent:
... the Constitution is primarily to be interpreted within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States of America or Australia.
This approach was recently affirmed by the Malaysian Supreme Court in PP v Pung Chen Choon. I am clearly of the view that this would also reflect the position in Singapore.
In the course of the hearing of this appeal, Mr How referred me to various judicial pronouncements in the United States on the right to freedom of religion. There is a fundamental difference between the right to freedom of religion under the First Amendment to the United States Constitution and art 15. The American provision consists of an `establishment clause` which proscribes any preference for a particular religion ( Congress shall make no law respecting an establishment of religion) and a `free exercise clause` which is based on the principle of governmental non-interference with religion ( Congress shall make no law prohibiting the free exercise thereof) . Significantly, the Singapore Constitution does not prohibit the `establishment` of any religion. The social conditions in Singapore are, of course, markedly different from those in the United States. On this basis alone, I am not influenced by the various views as enunciated in the American cases cited to me but instead must restrict my analysis of the issues here with reference to the local context.
As I have referred to earlier, the main contention of the appellants was that the respective orders were without any factual basis. The appellants contend that the Ministry of Home Affairs`s press statement was wrong and misleading, save for the point that they were a non-violent group which declined to join the military. The ban was therefore described by the appellants as being, in the circumstances, irrational, oppressive, unreasonable, overboard, a violation of the freedom of religion as enshrined in the Constitution and also a violation of international declarations of human rights. All things being said, I think that the issues here are best resolved by a consideration of the provisions of the Constitution, the Societies Act and the UPA alone.
The basic proposition in judicial review is that the court will not question the merits of the exercise of the ministerial discretion. 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. The court cannot substitute its own view as to how the discretion should be exercised with that actually taken. It is pertinent to note the observations of Abdoolcader J in Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia in connection with proceedings for the issue of a writ of habeas corpus with respect to preventive detention:
... the court does not sit in appeal against the decision of the minister regarding materials on which the detention order was made. The court does not examine the adequacy or truth of these materials and cannot interfere with the decision on the ground that if the court had examined them it would have come to a different conclusion.
In addition, there is a presumption that the orders were valid and the burden of proving that they were ultra vires or unconstitutional therefore lay on the appellants who challenged them on such grounds ( Chng Suan Tze v Minister for Home Affairs ). The appellants had to show that the ministers had acted ultra vires in the sense that they had exercised their discretion on irrelevant grounds, or that they had exceeded their powers under the enabling statutory provisions, or that the actions were unconstitutional as contravening art 15(1) of the Constitution.
Mr How`s first contention was that a purposive construction ought to be adopted in considering art 15. He claimed that the right of freedom of religion was required for the protection of the religious liberties of minority groups. In support of this contention, he cited arts 9(1) and 152(1) of the Constitution which read:
No person shall be deprived of his life or personal liberty save in accordance with law.
It shall be the responsibility of the Government constantly to care for the interests of the racial and religious minorities in Singapore.
Mr How`s submissions centred upon the concept of broad unreasonableness, and little legal argument was presented in support of this allegation. However, if I understood him correctly, one of the challenges he was making was with respect to whether the minister had exercised his discretion based upon the correct criteria as stipulated under the relevant empowering sections. He attacked the dissolution of the Jehovah`s Witnesses in Singapore as impinging on the affected individuals` right of religious freedom, and referred to art 15(4), which provides that the right of freedom of religion can only be constrained if public order, public health or morality is affected, and s 24(1)(a) of the Societies Act, which states that registered organizations can be dissolved on the ground that they are a threat to public peace, welfare or good order. At the same time, the decision of Abdoolcader J in the Malaysian case of Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia was cited:
The expression `public order` is not defined anywhere but danger to human life and safety and the disturbance of public tranquillity must necessarily fall within the purview of the expression... The test to be adopted in determining whether an act affects law and order or public order is this: Does it lead to disturbance of the current of life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?
It was then contended that there was nothing which showed that the activities of the Jehovah`s Witnesses, being a small, non-violent Christian group, were in any way against public order. Mr How contended that the membership of the Jehovah`s Witnesses in Singapore was small and the alleged prejudice to public welfare was therefore insignificant. Further, he submitted that there needed to be a clear and immediate danger to public order before the right of freedom of religion could be curtailed, and, in this case, the de-registration orders could not have been justified since there was no such threat at all. In my view, Mr How`s submission that it must be shown that there was a clear and immediate danger was misplaced for one simple reason. It cannot be said that beliefs, especially those propagated in the name of `religion`, should not be put to a stop until such a scenario exists. If not, it would in all probability be too late as the damage sought to be prevented would have transpired. In my opinion, any administration which perceives the possibility of trouble over religious beliefs and yet prefers to wait until trouble is just about to break out before taking action must be not only pathetically naive but also grossly incompetent.
There has been judicial pronouncement on the Jehovah`s Witnesses` right of freedom to exercise their beliefs. The High Court of Australia had the opportunity of determining, by way of a case stated, whether s 116 of the Constitution of the Commonwealth of Australia (which, inter alia, prohibits the making of any law which prevents the free exercise of any religion) prevented Parliament from legislating to restrain the activities of the Jehovah`s Witnesses ( Adelaide Co of Jehovah`s Witnesses Inc v Commonwealth ). In stating the case, Starke J described the beliefs of the Jehovah`s Witnesses at p 118 as these:
... Jehovah`s Witnesses are Christians entirely devoted to the Kingdom of God, which is `The Theocracy`, that they have no part in the political affairs of the world and must not interfere in the least manner with war between nations. They must be entirely neutral and not interfere with the drafting of men of nations that go to war. And also that wherever there is a conflict between the laws of Almighty God and the laws of man the Christian must always obey God`s law in preference to man`s law. All laws of men, however, in harmony with God`s law the Christian obeys. God`s law is expounded and taught by Jehovah`s Witnesses. Accordingly, they refuse to take an oath of allegiance to the King or other constituted human authority, though they do not object to take an oath in a court of law to speak the truth nor do they refuse the protection of the King`s Courts or other constituted human authority.
In that case, in January 1941, the Governor-General, pursuant to the authority conferred by the National Security (Subversive Associations) Regulations, declared certain bodies, including the Adelaide Company of Jehovah`s Witnesses Incorporated, as `prejudicial to the defence of the Commonwealth and the efficient prosecution of war`. As a result, possession of the Jehovah`s Witnesses` premises in Adelaide was taken over by the government. The Jehovah`s Witnesses sought an injunction and contended, inter alia, that the Regulations impinged on the Constitution. The court was of the unanimous view that Parliament was not prohibited from making laws which prohibited the advocacy of doctrines and principles which, though advocated in pursuance of religious convictions, were prejudicial to the prosecution of a war engaged by the Government. Latham CJ held at p 147 that the Governor-General was fully justified in making the declarations as:
It needs no argument to show that the doctrine that the Commonwealth is an organ of Satan is prejudicial to any defence of the Commonwealth against any enemy.
The appellants have claimed that the Jehovah`s Witnesses in Singapore were a responsible, honest and law-abiding group, which kept strictly out of politics. As I have noted above, none of these contentions were in issue in this appeal. The only real complaint, as the appellants finally conceded, was their refusal to undertake national service. I think it is quite settled, in the light of the evidence adduced, that adherents of the Jehovah`s Witnesses clearly believed that military duty was prohibited by their religion, and, as a result, they refused to do national service.
The appellants contended that there was no evidence produced or even alleged to show that the Jehovah`s Witnesses were a threat to public order. Article 15(4) clearly envisages that the right of freedom of religion is subject to inherent limitations and is therefore not an absolute and unqualified right. This was succinctly described by Hashim Yeop Sani CJ in Minister for Home Affairs, Malaysia v Jamaluddin bin Othman :
The freedom to profess and practise one`s religion should not be turned into a licence to commit unlawful acts or acts tending to prejudice or threaten the security of the country.
I am of the view that religious beliefs ought to have proper protection, but actions undertaken or flowing from such beliefs must conform with the general law relating to public order and social protection. The right of freedom of religion must be reconciled with `the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery` ( Commissioner, HRE v LT Swamiar ). The sovereignty, integrity and unity of Singapore are undoubtedly the paramount mandate of the Constitution and anything, including religious beliefs and practices, which tend to run counter to these objectives must be restrained.
I think it is useful to consider parts of the additional evidence submitted by the prosecution. The Assistant Director of Manpower of the Ministry of Defence had stated in his affidavit that from 1972 until May 1994, 108 persons, who claimed to be Jehovah`s Witnesses and who were liable to serve national service, had been disciplined under s 17 of the Singapore Armed Forces Act (Cap 259) for wilfully refusing to comply with orders to put on military uniforms. Their reasons were that they were unable to render any form of military service, including obeying military orders or even saluting the flag, because their religion forbade them from doing so. The Assistant Director expressed the concern that such wilful disobedience of orders would affect the motivation of the Singapore Armed Forces and noted that `the beliefs subscribed to by persons who profess to be Jehovah`s Witnesses would, if recognized, mean that persons who enjoy the social and economic benefits of Singapore citizenship and permanent residence are excused from the responsibility of defending the very social and political institutions and structure which enable them to do so`. This concern was in fact reflected in arts 128 and 131 of the Constitution under which a citizen may not renounce his citizenship unless he has discharged his liability for national service. It would appear that this problem was not limited to the armed forces alone. The Permanent Secretary of the Ministry of Home Affairs referred to the fact that since the establishment of the Singapore Civil Defence Force in 1986, eight national servicemen have been disciplined for failing to wear uniforms on the ground that they were Jehovah`s Witnesses.
During the Second Reading of the Maintenance of Religious Harmony Bill ( Hansard , 23 February 1990, p 1181), the then Minister for Trade and Industry and Second Minister for Defence (Services), BG Lee Hsien Loong noted:
National Service is clearly a secular issue in Singapore. Most religious groups recognize that. But one group maintains otherwise - the Jehovah`s Witnesses. They refuse to do National Service, claiming that their religion does not allow them to do so. They do so in all sincerity, with great courage of conviction. Each year, a few dozen young men who are Jehovah`s Witnesses have to be court-martialled because they refuse to do National Service, and then sentenced to detention. After two years, when they are released, the enlistment order is served upon them again. They refuse again, so we court-martial them again. They serve a second period of detention until, after two periods, we call it quits and deem it equivalent to your having served National Service. This was the first issue which I learnt about when I went into Mindef when we were dealing with these people harshly. So I asked, as a young officer, `Why do we do that? It is a matter of conscience.`
But we have no alternative, as I learned, because they are violating the law. In many Western European countries, they would count as conscientious objectors. But the idea of conscientious objection does not apply in Singapore. There is no such tradition in Singapore. If we try to introduce the practice here, the whole system of universal National Service will come unstuck. Many other people will ask: why should I also not decide to have conscientious objections and therefore exempt myself from National Service? And of course, even in Western Europe, not all countries acknowledge conscientious objectors. In Switzerland, those who do not do National Service also go to jail. Therefore, the Enlistment Act in Singapore does not recognize conscientious objection. National Service is a secular issue, subject to government laws. Everybody accepts this, including all the other religious groups. In this case, the line between religion and politics is drawn clearly. But it is not drawn in the same place as in other countries.
To summarize the appellants` contentions so far, the appellants merely alleged that there were no facts to support the de-registration in the sense that their practices and beliefs were not prejudicial to public peace, welfare or good order. Likewise, they contended that Order 123 was also ultra vires: as the relevant minister had to form the opinion that it was contrary to the public interest, and as the press statement only referred to the ban as there being `no further need for such literature`, it was clearly an irrelevant consideration for making the prohibition order.
In my view, it was not for this court to substitute its view for the minister`s as to whether the Jehovah`s Witnesses constituted a threat to national security. As I have outlined earlier, the appellants had the burden of showing that the minister had exercised his powers wrongly. This court was not here to review the merits of the decision and conclude that the Jehovah`s Witnesses were or were not a threat to public order. From the evidence adduced, it appeared that the minister was of the view that 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. That was, in essence, the relevant finding. I could not see how the concept of public order as envisaged under art 15(4) is dissimilar to the notion of public peace, welfare and good order within s 24(1)(a) of the Societies Act. Therefore, Order 179 could not have contravened art 15(1) or been ultra vires s 24(1)(a).
I now come to Order 123. Section 3 of the UPA reads:
For the same reasons, the court cannot interfere by substituting its own judgment for that of the minister. Section 3(1) clearly confers a discretion on the minister to order the prohibition of a publication if he is of the opinion that the importation, sale or circulation of that publication would be contrary to public interest. The court can only interfere with this opinion to the extent of ensuring that the minister exercises his discretionary powers according to the statutory limitations. The minister`s reasons for the ban emanated from considerations of national security and that the continued existence of the Jehovah`s Witnesses `would be prejudicial to public welfare and good order in Singapore`. Such considerations are clearly related to the public interest, and there could therefore be no objection that the prohibition order was made on an irrelevant ground. At the same time, I am of the view that it was a necessary corollary to the dissolution of the Jehovah`s Witnesses that their publications be prohibited. In essence, Order 123 reinforced the ban on the movement proper.
As the prohibition under Order 123 was with respect to all publications by WTBTS, it was argued that the order was unexpected, undiscriminating, excessive and sweeping. It was contended that such power to prohibit all publications of a specified publisher should only be exercised when the publisher habitually published materials contrary to the public interest. It was argued that many of the publications could not have been regarded as contrary to the public interest. Counsel illustrated this contention by stating that the ban would extend to the King James Version of the Bible as well, as long as it was printed and published by WTBTS. It was argued that this was wholly unreasonable as the King James Version was widely circulated in Singapore.
I do not see the merit of this contention. The fact that one publication is unobjectionable as to its contents, be it the King James Version or `Alice in Wonderland`, does not make the ban unreasonable per se. Instead, it was not unreasonable, in my view, for the minister to prohibit all publications by WTBTS. The minister`s actions were clearly to stop the dissemination and propagation of beliefs of the Jehovah`s Witnesses and this would of necessity include every publication by WTBTS. Any order other than a total blanket order would have been impossible to monitor administratively.
Mr How also argued that Order 123 was flawed in the sense that the Minister for Culture did not himself exercise his discretion but had acted on the basis that the Minister for Home Affairs had made a decision under a different statute, being the Societies Act. It was contended that this amounted to a failure to exercise on a lawful basis the discretion that belonged to him. He cited the decision of Willis J in H Lavender & Son Ltd v Minister of Housing and Local Government . In that case, the respondent minister refused planning permission on the ground that the Minister of Agriculture, Fisheries and Food had objected. Willis J quashed the minister`s order. In doing so, he held that the minister had failed in the proper exercise of his discretion as he had improperly delegated his duties in relation to the making of the order with which he was entrusted to the Minister of Agriculture who had no status to make the effective decision.
I think that the circumstances leading up to the making of Order 123 were different from those in H Lavender v Minister of Housing and Local Government . The Permanent Secretary of the MITA deposed in his affidavit that the then Minister for Culture was satisfied that the Jehovah`s Witnesses` teachings and beliefs contained in publications published or printed by WTBTS would be contrary to the public interest, in that they were prejudicial to the Government`s efforts in nation building, in setting up the national armed forces and in maintaining national security, unity, integrity and sovereignty, and the minister therefore consequently exercised his powers under s 3(1) of the UPA. It was clear to me that the process of de-registration and the prohibition of the publications were a joint operation by both ministers. The logical inference from the evidence could not be otherwise. This submission was therefore equally without merit.
The next submission made by the appellants was on the ground that the respective orders were made in breach of the requirements of natural justice - `audi alteram partem` . They contended that the orders were made without any notice or hearing and that the affected parties were not given an opportunity to explain or correct the allegations against them. This submission, of course, tied in with the appellants` contention that there was no evidence that the interests of the State were in immediate and grave danger. In this respect, the respective provisions of the Societies Act and the UPA should be examined. On doing so, I can see no express requirement in either s 24 of the Societies Act or s 3 of the UPA for the relevant minister to give the affected parties a right to be heard before the orders are made. If so, can it then be said, as the appellants have argued, that the ordinary principles of natural justice should still be complied with? I think it is pertinent to note that the orders here were both made with respect to the public interest and the public order. The objective was therefore clearly for the preservation of national security. In this respect, the ordinary principles of natural justice have to be modified accordingly (per Lord Denning MR in R v Secretary of State for Home Affairs, ex p Hosenball ). As such, there is no room for the appellants` contention that the requirements of natural justice must to be complied with fully.
The relevant ministers have to be satisfied that the matters relied on by them fall within the scope of the specified provisions. As alluded to above, the appellants have not shown to this court that the ministers had based their conclusions on facts which were false or unfounded. It cannot be disputed that it is part of the Jehovah`s Witnesses` doctrine that military service is prohibited for its adherents. The ministers were entitled to consider and conclude that this fact was contrary to national security and therefore contrary to public order and the public interest. Since the basis for the orders clearly could not be disputed, no purpose would be achieved if a hearing or inquiry was held.
The final submission made by the appellants was that the orders were disproportionate to the interests of the State and operated unfairly. The Court of Appeal has already held in Chng Suan Tze that the principle of proportionality was not a separate ground for judicial review but was subsumed under the ground of `irrationality` in the sense that no reasonable authority could have come to such a decision.
As I understood it, the respective ministers were clearly of the view that the continued existence of the Jehovah`s Witnesses was prejudicial to the national interest. The basis for the de-registration clearly flowed from the danger of allowing absolute freedom of religion which might create a complete denial of a government`s authority and ability to govern individuals or groups asserting a religious affiliation. The Jehovah`s Witnesses were not mere conscientious objectors to national service but were engaging in conduct which was prejudicial to national security. The activities of the Jehovah`s Witnesses were therefore restricted on the basis that they were against the `public order`. Equally, the prohibition on their publications was a natural consequence and was therefore in the `public interest`. In my view, the respective decisions were not irrational or disproportionate.
For the reasons indicated, I found no merit in the appeal and dismissed it accordingly.
(1) whether Order 123 was ultra vires the UPA; and
(2) whether Order 123 was ultra vires art 15 of the Constitution of the Republic of Singapore.
(1) Where in any proceedings in a subordinate court a question arises as to the interpretation or effect of any provision of the Constitution, the court hearing the proceedings may stay the proceedings on such terms as may be just to await the decision of the question on the reference to the High Court.
(2) An order staying proceedings under this section may be made by the court of its own motion or on the application of any party and shall be made at such stage of the proceedings as the court may see fit having regard to the decision of such questions of fact as may be necessary to be settled to assist the High Court in deciding the question which has arisen and to the speedy and economical final determination of the proceedings.
(3) Where an order for stay of proceedings has been made under this section, the court shall state the question which in its opinion has arisen as to the interpretation or effect of the Constitution in the form of a special case which so far as may be possible shall state the question in a form which shall permit of an answer being given in the affirmative or the negative.
(4) The court shall cause the special case to be transferred to the High Court and the High Court shall hear and determine the constitutional question arising out of the case in the exercise of its original jurisdiction.
(5) Notice of the hearing of the special case by the High Court under this section shall be given to the Attorney-General who shall have a right to be heard.
(1) The High Court shall have such powers as are vested in it by any written law for the time being in force in Singapore.
(2) Without prejudice to the generality of subsection (1), the High Court shall have the powers set out in the First Schedule.
(3) The powers referred to in subsection (2) shall be exercised in accordance with any written law or Rules of Court relating to them.
Prior to the hearing of the appeal proper, I heard two criminal motions, from both the appellants and the public prosecutor. Mr How submitted that if the orders were proved to be invalid, this would be a complete defence to the charges laid. According to him, it was in the interest of justice for the court to make a decision on such questions of law of public and constitutional importance based on the most complete evidence before it. The appellants thus applied by criminal motion for various orders seeking leave to adduce additional evidence (Criminal Motion No 16 of 1994). These orders were generally for:
(1) an order under s 257(1) of the CPC that counsel for the appellants be at liberty upon hearing of the appeal to adduce and read the additional evidence set out in the motion;
(2) an order under s 58 of the CPC directing:
(a) the production of the files and documents of the respective ministries in making Orders 123 & 179;
(b) a full response from the respective ministries to interrogatories which the appellants intend to send with respect to the making of Orders 123 and 179;
(3) an order permitting counsel for the appellants to call an expert witness to give evidence, either viva voce or by affidavit, of the beliefs and practices of the Jehovah`s Witnesses for the purpose of correcting alleged misstatements relied upon by the Minister for Home Affairs in making Order 179.
(125) No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the Department concerned, who shall give or withhold such permission as he thinks fit, subject, however, to the control of the President.
(126) No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure.
I shall now deal with the prosecution`s criminal motion (Criminal Motion No 19 of 1994). By it, they sought to adduce additional evidence by way of the affidavits of the following:
(1) Peter Chan Jer Hing, Permanent Secretary of the Ministry of Home Affairs.
(2) Goh Kim Leong, Permanent Secretary of the Ministry of Information and the Arts.
(3) Lieutenant-Colonel Lim Theam Poh, Assistant Director of Manpower of the Ministry of Defence.
(4) Lee Kee Yong, Director of Personnel, Ministry of Education.
(a) whether Order 179 was ultra vires the Constitution;
(b) whether Order 123 was ultra vires the Constitution;
(c) whether Order 123 was patently invalid or ultra vires the UPA; and
(d) whether the ministerial decision in making Order 123 and 179 was so unreasonable and arbitrary as to violate the fundamental liberties of individuals as enshrined in the Constitution.
(1) Every person has the right to profess and practise his religion and to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right -
(a) to manage its own religious affairs;
(b) to establish and maintain institutions for religious or charitable purposes; and
(c) to acquire and own property and hold and administer it in accordance with law.
(4) This Article does not authorise any act contrary to any general law relating to public order, public health or morality.
(1) If the Minister is of opinion that the importation, sale or circulation of any publication or series of publications published or printed outside Singapore or within Singapore by any person would be contrary to the public interest, he may in his discretion, by order published in the Gazette, prohibit the importation, sale or circulation of that particular publication or series of publications or all publications published or printed by that person.
(2) If an order made under subsection (1) specifies by name a publication which is a periodical publication, the order shall, unless a contrary intention be expressed therein, have effect with respect to -
(A) all past and subsequent issues of such publication; and
(b) any publication published or printed under any other name if the publishing or printing thereof is in any respect a continuation of, or in substitution for, the publishing or printing of the publication named in the order.
(3) If an order made under subsection (1) prohibits the importation, sale or circulation of all publications published or printed by a specified person that order shall, unless a contrary intention is expressed therein, have effect not only with respect to all publications published or printed by that person before the date of the order but also with respect to all publications so published or printed on or after that date.
(4) An order made under subsection (1) shall, unless a contrary intention is expressed therein, apply to any translation into any language of the publication specified in the order.
(5) The Minister may at any time revoke, vary or amend any order made under this section.