User:Sgconlaw/Chan Hiang Leng Colin v. Minister for Information and the Arts

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Chan Hiang Leng Colin v Minister for Information and the Arts concerned an application for leave to apply for an order of certiorari and a declaratory judgment under O 53 of the Rules of the Supreme Court (Cap 322, R 5, 1990 Ed). The plaintiffs were members of the Jehovah's Witnesses who were aggrieved by a ban issued by the Minister for Information and the Arts under Order No. 405/94 ("O 405/94") pursuant to his powers under s 3(1) of the Undesirable Publications Act (Cap. 338, 1985 Rev. Ed.) (now ) (“the Act”). The ban related to materials published by the International Bible Students Association (“IBSA”), a Jehovah’s Witnesses organization. This case involved a High Court and a Court of Appeal decision, delivered by Judith Prakash J and M Kathigesu JA respectively.

The High Court held that in order for the applicant to have the necessary standing to seek an order of certiorari, it was sufficient if there was an abuse of power by the Minister which inconvenienced someone. In addition, the sufficiency of the applicant’s interest in relation to the application had to be judged in relation to the subject matter of the application.

The High Court also held that the applicant has to show prima facie that the applicant was not frivolous or vexatious and that there were some substance in the grounds supporting the application. Accordingly, the plaintiff’s application lacked substance as the Minister had the power to prohibit the import of publications if he were of the view that they were contrary to public interest under s 3(1) of the Act. Judith Prakash J held that as the Jehovah’s Witnesses movement had been deregistered and rendered illegal in Singapore since 1972 after Order 179/1972 (“O 179/1972”) as their principal beliefs were contrary to public peace, welfare and good order, publications containing their religious beliefs would equally be a threat to such public order. Thus, no order banning such material could be ultra vires the Minister’s powers pursuant to the Act. Moreover, the plaintiffs could not be aggrieved by the ban as they would still have access to the same bible published by other organisations.

The plaintiffs then appealed to the Court of Appeal. At the Court of Appeal, it was held that their rights to challenge O 405/94 arose from every citizen’s right to profess, practice and propagate his religious beliefs, stemming from Article 15 of the Constitution of Singapore. Further, Kathigesu JA stated that there was no provision in either the or the Act itself which prohibited the holding of a religious belief. Thus, it was not an offence to profess the beliefs of Witnesses per se. The relevant orders basically dictate that they are not to be members of the Singapore Congregation of Jehovah’s Witnesses (SCJW), in line with O 179/1972, and they may not have access to the prohibited publications. The court also reiterated that issues of national security were not justiciable. In this case, issues of national security were involved considering a central tenet of the religion of Jehovah’s Witnesses is the refusal to do National Service.

It was decided at the Court of Appeal that the appellant’s case was insufficient to show that they had something substantial which might turn out to be arguable case for judicial review. Hence, the application was eventually dismissed.

Background


The Jehovah’s Witnesses have beliefs distinct from mainstream Christianity. They are characterized by their door-to-door proselytism, refusal to participate in any political or military conflict, refusal to salute the flag of any land in which they live and worship, and refusal of blood transfusions even in critical medical conditions. They are often greeted worldwide with a mixture of respect and hostility.

In Singapore, the Singapore Congregation of Jehovah’s Witnesses was de-registered by the Singapore Government on 14 January 1972. It was stated in a press statement from the Ministry of Home Affairs that the continued existence of Jehovah’s Witnesses would be prejudicial to public welfare and good order in Singapore, because of their refusal to salute the flag of any nation, perform any form of national service, or participate in public elections. Thus, the activities of Jehovah’s Witnesses have been banned since then.

The action in Chan Hiang Leng Colin v. Minister for Information and the Arts took place on the heels of Chan Hiang Leng Colin v. Public Prosecutor. These actions related to administrative orders affecting the Jehovah's Witnesses congregation in Singapore. The orders stemmed from the Government's increasing concern over the refusal of Jehovah's Witnesses to perform national service. This concern was reflected in the 1989 white paper entitled Maintenance of Religious Harmony, where the Government classified a refusal to perform national service as "criminal conduct" instead of "conscientious objection".

Facts


The plaintiffs are Singapore citizens and members of the Jehovah's Witnesses. The defendant, Minister for Information and the Arts ("the Minister") issued Order No 405/94 ("O 405/94") banning materials published by the International Bible Students Association ("IBSA"), a Jehovah's Witnesses organisation. The ban was imposed pursuant to the Minister's powers under s 3(1) of the Undesirable Publications Act. The plaintiffs were aggrieved by the ban, and sought leave to apply for the following orders:


 * 1) An order of certiorari to remove and quash O 405/94; and
 * 2) A declaration that the order was ultra vires the Act and Arts 12, 14, 15 and 152 of the Constitution of the Republic of Singapore ("the Constitution").

High Court decision
The application was made pursuant to O 53 r 1 of the Rules of the Supreme Court ("RSC"). Before the High Court, the Attorney-General opposed the application on the grounds that O 53 as drafted did not allow for an application to be both for an order for certiorari and a declaration, and that the plaintiffs did not have locus standi to apply for certiorari. Other procedural and substantive issues under administrative law and constitutional law were also raised and discussed. The High Court eventually refused the plaintiffs’ application for leave of court to apply for certiorari and a declaration that O 405/94 was invalid.

Attorney-General's entitlement to appear
The Attorney-General's representatives raised the issue of his entitlement to appear at the threshold stage of certiorari proceedings although this issue was not disputed by the plaintiffs.

In affirming that the Attorney-General was entitled to appear before the court at the threshold stage, the High Court cited the Malaysian case of George John v Goh Eng Wah Brothers Filem Sdn Bhd. In that case, Lim Beng Choon J held that “an ex parte application … does not preclude any person who has an interest or who may be adversely affected by the decision of the court in the matter which is to be litigated from appearing to raise any legitimate objection against, or for that matter any legitimate ground in support of, the application.” This is because the grant of leave to apply for any of the prerogative orders will place the public officer or authority who made the impugned decision in a state of uncertainty as to whether he or it should proceed to implement the administrative decision. Hence, the Attorney-General should be given an opportunity to intervene to remove this uncertainty if there is good ground for him to do so in the interest of the government in particular and the public in general.

Declaration in proceedings under O 53
In deciding that no declaratory order could be applied for in proceedings taken out under O 53, the High Court relied on the case of Re Application by Dow Jones (Asia) Inc. The Singapore position then was similar to the original pre-amendment English O 53, which did not permit both a prerogative writ and a declaration to be asked for in the same proceedings.

Standing for mandamus
In examining the standing required for certiorari, the court examined the English case of Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses and found that the same standing is required for the prerogative orders of mandamus, certiorari and prohibition in practice. In particular, the court stated that the “lower level of interest” required for certiorari should be applied to the different prerogative orders. Where the application is made by a “member of the public who has been inconvenienced”, the remedy is purely “discretionary”. Where the application is made “by a person who has a particular grievance of his own whether as a party or otherwise, then the remedy lies ex debito justitiae”.

Sufficient interest
Before the High Court, both parties addressed the issue of locus standi on the basis that in order to proceed, the plaintiffs had to show that they had a “sufficient interest” in the subject matter of the application.

Although Prakash J noted that there is "no equivalent of … the term ‘sufficient interest’ found in O 53", Her Honour went on to justify the usage of the term by stating that the introduction of "sufficient interest" did not alter the “pre-existing elements required to establish standing”. The learned judge approved Lord Scarman’s observation in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses that the sufficiency of the plaintiff’s interest had to be judged in relation to the subject matter of his application.

Prakash J held that the plaintiffs had standing to apply for an order of certiorari for the following reasons:


 * 1) Plaintiffs had standing to take out these proceedings since the order directly affected their ability to have access to material relating to their religion. This, therefore, interfered with their constitutional right to freely practise their religion under Article 15 of the Constitution
 * 2) As the plaintiffs were prosecuted under the Undesirable Publications Act, they had such an interest in the legality of the order which made the publications they possessed "prohibited publications".

Prakash J also held that the plaintiffs did not need to be IBSA members in order to have sufficient interest in the proceedings.

Significantly, the court, citing Lord Denning in R v Greater London Council, ex parte Blackburn, stated that a citizen had standing to prevent the transgression of the law by the government or a public authority so as to offend many other citizens. In essence, every citizen has the right to challenge an infringement of a constitutional right, including that of the freedom to practise one’s religion.

The court's role
With regard to the court's role in considering a preliminary application for leave to take out a motion for certiorari, both parties relied on Lord Diplock's comments in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses to support their argument. While the plaintiffs relied on the latter part of Lord Diplock’s observations to argue that the court's role at the threshold stage is to consider whether the materials submitted disclose “an arguable case in favour of granting to the plaintiffs the relief claimed”, the defendant laid emphasis on the first portion of the extract which indicated that the applicant had to make a "prima facie case of reasonable suspicion" of an ultra vires action. The defendant also relied on Lim Beng Choon J's view in George John v Goh Eng Wah Brothers Filem Sdn Bhd to argue that “the applicant had to be able to sustain a prima facie case of an unlawful or ultra vires decision”.

Notwithstanding the above, Prakash J cited with approval the Malaysian case of Association of Bank Officers, Peninsular Malaysia v Malayan Commercial Banks Association, which stated that "the guiding principle ought to be that the applicant must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application”.

Reasons, notice and hearing
The plaintiffs argued that O 405/94 was made without any reasons being given for it. Further, they argued that no notice was given prior to imposition of the ban and that there was no opportunity given to refute any reasons as to why IBSA publications ought to be banned. The High Court held that the Minister does not have to give reasons for an order under s 3(1) of the Undesirable Publications Act at the time the order is made. Neither does the Minister have to give notice prior to the making of the order to those who might be affected by it. Further, the Minister is not obliged to give anyone a hearing before exercising his powers under the Act.

Subsequent treatment

In the subsequent case of Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board and another, the High Court found that an administrative body was not obliged to grant a hearing where there are reasons for doing so. In that case, one of the plaintiff's contentions was that the defendant authority had failed to provide an opportunity for the plaintiffs to present their case. The High Court found that the plaintiff had squandered many of the opportunities to present its case to the defendant. Further, the High Court found that the denial of a hearing was justified on the basis that there was no "evidence that at such a meeting anything new would be tendered". Moreover, the committee had already considered the plaintiffs' arguments.

Simple ultra vires
Although the plaintiffs did not argue that O 405/94 was ultra vires s 3(1) of the Undesirable Publications Act, the court nevertheless examined the issue in depth.

Prakash J held that s 3(1) of the Undesirable Publications Act “gave the Minister power to prohibit the import, etc, of certain publications if he was of the view that they were contrary to the public interest”. As long as such power was exercised within the parameters established by Article 15, no argument can be made that any order pursuant to s 3(1) is ultra vires. Since the congregation of Jehovah's Witnesses was de-registered because it was deemed a threat to the public order of Singapore, publications containing their religious beliefs and doctrines would be an equal threat to such public order. Therefore, no order banning such material could be ultra vires the Undesirable Publications Act.

Relevant and irrelevant considerations
The plaintiff argued that the defendant had failed to take into account relevant considerations for the following reasons:
 * 1) He failed to take account of the constitutional right of citizens of Singapore to freedom of religion and expression, in particular the rights of those citizens who for one reason or another are not liable for national service;
 * 2) He did not give a right to such citizens to contradict and correct his purported knowledge of the Jehovah's Witnesses; and
 * 3) He failed to consider any alternative manner or form that could be used to accommodate their beliefs and at the same time not detract from their national service commitments.

Further, the plaintiffs argued that if the Minister had issued O 405/94 for the sole reason that Jehovah's Witnesses refused to do national service, he had taken into account irrelevant considerations. However, the court held that the Minister had neither failed to take into account relevant considerations, nor did it take into account irrelevant considerations when imposing the ban. Given that the freedom of religion is not an absolute right, the Minister did not have a duty to come forward with a way of enabling Jehovah's Witnesses to serve national service and at the same time adhere to their religious beliefs.

Subsequent treatment

In the subsequent case of Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board and another, Prakash J stated that even though the administrative body had taken irrelevant considerations into account, the decision would still be valid so long as the irrelevant consideration was not the "substantial reason" for the implementation of the decision.

The prohibition against the taking into account of irrelevant considerations applies to a prosecuting authority. In Ramalingam Ravinthran v Attorney-General, the Court of Appeal, citing the Privy Council in Teh Cheng Poh v Public Prosecutor, stated that the Prosecutor must not take into account irrelevant considerations when exercising its discretion.

Article 12


Discrimination on grounds of religion

Although the plaintiffs argued that that O 405/94 infringed Art 12 of the Constitution by discriminating against certain citizens of Singapore on the grounds of religion, the High Court found that they did not substantiate their argument and hence did not proceed to examine this ground of argument.

Improper enforcement of ban

The plaintiffs argued that the ban was over-inclusive as it included many publications, such as the King James edition of the Bible, and the Minister could not have formed the opinion that these were contrary to public interest.

The court agreed that the IBSA might publish materials to which the Minister would have no objection, in that they do not expressly propagate Jehovah's Witnesses' doctrines and are also freely available in Singapore via publications of other organisations. However, Prakash J, citing Yong Pung How CJ (as he then was) in Chan Hiang Leng Colin v PP, stated that the width of the ban did not make it unreasonable per se since the Minister’s actions were clearly to stop the dissemination and propagation of beliefs of the Jehovah’s Witnesses. Any order other than a total blanket order would have been impossible to monitor administratively.

Further, the court stated that the plaintiffs did not have sufficient interest to challenge the ban as they would still have access to the King James edition of the Bible published by other organisations. The only persons who would have sufficient interest to challenge the ban would be the members and officers of the IBSA which might be financially affected if it were unable to sell its edition of that bible in Singapore.

Subsequent Treatment

In the case of Eng Foong Ho v Attorney-General, the Court of Appeal clarified the law on improper enforcement. The court stated that the constitutionality of an administrative act depends on whether "there is a reasonable nexus between the state action and the objective to be achieved by the law". Where there is intentional or arbitrary discrimination, the executive act may be unconstitutional.

Article 15


Interpretation

The plaintiffs argued that O 405/94 infringed Article 15 of the Constitution as it interfered with the right of citizens to profess, practise and propagate their religion.

The High Court adopted a holistic approach to interpreting Article 15 and found that “the profession and practice of religious beliefs has to be subject to the overriding need to preserve public order, public health and public morality”.

In reaching this proposition, Prakash J cited the observations of Yong Pung How CJ (as he then was) in Chan Hiang Leng Colin v PP: 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.

Consequently, the High Court held that the plaintiffs would only succeed at the threshold stage if they could show that “the restriction imposed had nothing to do with public order, public health or morality”.

Burden of Proof

The plaintiffs argued that once a complaint of an alleged infringement of Article 15 by a minister had been made, the minister would have an immediate duty to justify the making of the order by establishing that it came within Article 15(4).

However, the High Court held that the burden of proof of an arguable case existed would be on the applicant for review. Consequently, the burden would only shift to the minister after the complainant had been able to show that there was some substance in his complaint.

Constitutionality of O 405/94

The plaintiffs argued that O 405/94 was unconstitutional as it was made pursuant to s 3(1) of the Act, which permitted the Minister to make orders that were wide enough to exceed the restrictions that may be permissibly imposed under Article 15(4) of the Constitution. As such, O 405/94 is unconstitutional because s 3(1) of the Act violates Article 15 of the Constitution. Prakash J held that O 405/94 was constitutional. Her Honour proceeded on the basis that the Jehovah’s Witnesses movement was a banned organisation under O 179/1972. The plaintiffs could not and did not challenge the validity of O 179/1972. Accordingly, Prakash J held that allowing a challenge on O 405/94 would permit the plaintiffs to contravene O 179/1972 by allowing them to distribute or possess unlawful material.

Article 152
The plaintiffs argued that O 405/94 infringed Article 152 of the Constitution as it conflicted with the government's responsibility to care for the interests of [[Minority religion|religious minorities] in Singapore.

However, Judith Prakash J rejected the argument that Article 152 was infringed in relation to an order banning Jehovah Witnesses publications as “a banned organization cannot lay claim to being one of the ‘religious minorities’ which the government has to care for”.

Subsequent Treatment

To date, no racial or religious minority has brought an action based on a claim for the rights of minorities as a collectivity or group.

It has been suggested that Article 152(1) of the Constitution speaks in terms of government obligations, instead of the language of rights. Hence, Article 152 is to be interpreted as addressing the duties and responsibilities of the government, as opposed to the rights and responsibilities of the citizens. Further, it must be noted that Article 152 uses the word “interests”, and not “rights”. Therefore, the constitutional safeguards as provided for in the article should be construed as political rather than legal. Caring for the minorities under Article 152 does not mandate affirmative action for them, and ultimately it should be seen as a ‘shield, rather a sword’.

Court of Appeal decision


The case was brought before the Court of Appeal in Chan Hiang Leng Colin v. Minister for Information and the Arts (Colin Chan (C.A.)). The issues before the court were:


 * 1) Whether the High Court had any power to grant a declaration under O 53 of the RSC;
 * 2) Whether the appellants had the requisite locus standi to apply for judicial review in this case; and
 * 3) What test the court was to apply at the application of leave stage.

The Court of Appeal eventually dismissed the appeal.

Declaration in proceedings under O 53
The Court of Appeal upheld the High Court’s finding that the Singapore O 53 is based on the old English O 53. It affirmed Re Application by Dow Jones (Asia) Inc, holding that the court had no power to grant a declaration in an application under the O 53. The Court of Appeal also cited O'Reilly v Mackman and reiterated that the proper course to seek a declaration is to begin an action by writ or originating summons.

Subsequent treatment

The Court of Appeal in Yong Vui Kong v Attorney-General upheld the decision in Colin Chan (C.A.) that the court had no power to grant a declaration in proceedings commenced under O 53, given that declaratory relief was not a remedy provided for under O 53.

However, the Rules of Court were amended by the Rules of Court (Amendment No. 2) Rules 2011, which came into effect on 1 May 2011.

The High Court in Vellama d/o Marie Muthu v Attorney-General had the opportunity to analyse O 53 after the statutory amendments. The amendment effectively reversed existing case law, by allowing an application for a declaration to be included with an application for a mandatory, prohibiting or quashing order for which leave has been granted. However, the court made it clear that it has "no power to grant a standalone declaration under O 53 if the application for a Mandatory Order which included such declaration, fails”. It was said that the close proximity in time between Yong Vui Kong v PP and the amendment to O 53 in 2011 may suggest that the amendments filled the lacunae observed in Yong Vui Kong v PP.

Locus Standi
The Court of Appeal affirmed that the plaintiff-appellants had locus standi. However, they disagreed with Prakash J that the fact that the appellants were facing prosecution for being in possession of prohibited publications under the Undesirable Publications Act also gave them locus standi.

Standing qua citizen
The respondent argued that since the Singapore Congregation of Jehovah's Witnesses had been deregistered by O 179/1972, the Jehovah’s Witnesses movement was unlawful. Unless the appellants could show that their existence as a group is lawful, they could not challenge Order 405/94.

The Court of Appeal held that the appellants had standing to challenge O 405/94 as they were citizens of Singapore. Citing with approval Lord Denning MR in R v Greater London Council, ex parte Blackburn, the Court of Appeal held that every citizen had a right to challenge an alleged violation of their constitutional rights. The fact that the violation would also affect every other citizen would not affect the interest of a citizen to ensure that his constitutional rights are not violated. Further, “[a] citizen should not have to wait until he is prosecuted before he may assert his constitutional rights”.

Given that O 405/94 allegedly violated a citizen's constitutional right under Art 15 of the Constitution to profess, practise and propagate his religion, such a breach would affect the citizen qua citizen. Hence, as Singapore citizens, the appellants were held to have standing to challenge O 405/94. The appellants did not have to show that they were office holders in IBSA or members thereof.

Propagation of beliefs of unlawful society
The respondent argued that a right to propagate the beliefs of an unlawful society was not a right that could be asserted before the court. Given that the purpose behind O 405/94 was to prevent the propagation of the beliefs of Jehovah's Witnesses, the respondent argued that the only persons who had standing to challenge O 405/94 were officers or members of IBSA.

However, the Court of Appeal held that the appellant’s challenge of O 405/94 did not amount to an assertion of a right to propagate the beliefs of an unlawful society. The only effect of O 179/1972 was to de-register the Singapore Congregation of Jehovah's Witnesses and make it an offence for any person to be a member of the congregation. However, it did not follow that it became illegal to profess, practise or propagate the beliefs of Jehovah's Witnesses. O 405/94 therefore did not take away the right to profess, propagate and practise one’s religion, but merely circumscribed the manner of carrying out these activities.

Further, the Court of Appeal disagreed with the respondent’s contention that only officers or members of IBSA could challenge O 405/94. As Art 15 of the Constitution only confers rights upon Singapore citizens, it would be "absurd” to deprive Singapore citizens of standing and yet allow IBSA members, who are non-citizens, to challenge O 405/1994.

Appellants facing prosecution
The Court of Appeal disagreed with Prakash J that the fact that the appellants were facing prosecution for being in possession of prohibited publications under the Undesirable Publications Act also gave them locus standi. It held that this was an irrelevant consideration in an application for leave to issue certiorari proceedings.

Subsequent treatment

Chan Sek Keong CJ (as he then was), in an extra-judicial lecture, opined that Singapore seems to have accepted the same “sufficient interest” test as applied in Colin Chan (C.A.). However, he doubted that the courts in Singapore would apply this test with “as much rigour as the UK courts”. In the UK, citizens have managed to effectively challenge executive decisions through the “sufficient interest” test even though they did not have a direct interest in the outcome. This leads to a greater degree of encroachment into the duties of the Executive, subjecting them to more judicial scrutiny. Chan Sek Keong suggests that a balance is to be struck between maintenance of Executive efficiency and allowing meritorious cases to be brought to the courts without being hindered by too many technicalities. Thus, in accordance with the green-light approach of judicial review adopted in Singapore, it was proposed that the “sufficient interest” test should not be applied with as much rigour as that in the UK, to protect the separation of powers between the different branches of government.

In Eng Foong Ho v Attorney-General, the Court of Appeal did not refer to the test of "sufficient interest" enunciated in Colin Chan (C.A.). The appellants were temple devotees and members of the Buddhist association seeking the constitutional protection of their Art 12 right to equal protection of the law after the compulsory acquisition of a Buddhist temple property. It was held that the appellants had locus standi in their capacity as members of the Buddhist association, which is the beneficial owner of the temple. In response to the respondents' contention that a "stricter test" is required for a relief under O 15 r 16 of the Rules of Court, the court held that the test in Karaha Bodas Co LLC v Pertamina Energy Trading Ltd was not concerned with the violation of constitutional rights. Importantly, the court held that there is no difference between the locus standi required for a dispute involving a constitutional right and a dispute involving other rights.

In the subsequent case of Tan Eng Hong v Attorney-General, Lai Siu Chiu J questioned the applicability of the “sufficient interest” test in Singapore. He stated that Karthigesu JA in Colin Chan (C.A.) was not articulating a new test that specifically applied to constitutional rights, but merely treating constitutional rights as being vested in every citizen. The judge doubted the creation of a new locus standi requirement for constitutional rights in Colin Chan (C.A.), as the Court of Appeal in Eng Foong Ho v Attorney-General did not make reference to any new test. Lai J also referred to Chan Sek Keong’s extra-judicial lecture for support that there is no authority for a lower standard of locus standi. Accordingly, Lai J held that the test applied in Colin Chan (C.A.) should not be viewed as the introduction of a new test of “sufficient interest” of locus standi for constitutional cases. Instead, it should be interpreted as “merely saying that to satisfy the “substantial interest” test, a putative litigant has to allege a violation of his constitutional rights.” In other words, she rejected the equation that “constitutional right = sufficient interest = locus standi”.

The court's role
The respondent relied on George John v Goh Eng Wah Bros Filem Sdn Bhd to argue that “the applicant must produce sufficient evidence to sustain a prima facie case that a public officer or authority that made the decision had acted unlawfully or that he or it had in its exercise of discretion acted ultra vires the power given to him or it under the relevant statute”.

However, the court held that the standard required is that of a prima facie case of reasonable suspicion, and not a prima facie case as the respondent suggested. If the case of George John v Goh Eng Wah Bros Filem Sdn Bhd seeks to impose a higher threshold than that of an arguable case, it would not be followed in Singapore.

Further, the court, after examining Lord Diplock's speech in Inland Revenue Commissioners v National Federation of Self-Employed, doubted whether there is any difference in substance between “an arguable case” and a “prima facie case of reasonable suspicion”.

Subsequent treatment

The Court of Appeal in Public Service Commission v Lai Swee Lin Linda affirmed the test in Colin Chan (C.A.) and stated that it was not the duty of the court to embark upon a "detailed and microscopic analysis" of the material placed before it, but to peruse the material quickly and appraise whether such material disclosed an "arguable and a prima facie case of reasonable suspicion". Further, the court stated that leave would be granted if there appears to be a point which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed.

Subsequently, in Teng Fuh Holdings Pte Ltd v Collector of Land Revenue, the Court of Appeal followed the decision in Colin Chan (C.A.). In the former case, the appellant’s land was acquired under the Land Acquisition Act. However, the land was not redeveloped, but was instead leased back to the appellant who remained in occupation as licensee. The Court of Appeal held that a period of unexplained inaction may give rise to an arguable case or a prima facie case of reasonable suspicion. In doing so, the court did not distinguish between the standard of “arguable case” and that of a “prima facie case of reasonable suspicion”.

Further, in UDL Marine Singapore Pte Ltd v Jurong Town Corp, the High Court applied the test in Colin Chan (C.A.), stating that the court only had to consider if the material before it revealed a prima facie case of reasonable suspicion that the applicant would obtain the remedies he had sought. After examining the case of ''Yong Vui Kong v Attorney-General", the High Court stated that the court may consider the application for judicial review on the merits while hearing the application for leave. However, the court declined to do so because of the presence of factual disputes.

Finally, in the High Court case of Ramalingam Ravinthran v Attorney-General, the court affirmed the approach in Colin Chan (C.A.) by stating that what is required for leave to be granted for judicial review “is not a prima facie case, but a prima facie case of reasonable suspicion”. More importantly, the court held that where there was no dispute of fact and only pure questions of law had to be considered, the application for leave as well as the merits of the application for the orders in question should be heard together.

Irrationality and Proportionality
Proportionality



The appellants argued that O 405/94 is far too wide and disproportionate as the prohibition extends to even innocuous publications such as the King James' version of the Bible. Further, the order applies equally to women and senior citizens, who either do not have to or have already done their National Service.

The Court of Appeal then questioned whether the ground of proportionality, as contemplated by Lord Diplock in the Council of Civil Service Unions v Minister for the Civil Service (GCHQ), existed as an independent ground for judicial review or whether it is simply an adjunct of irrationality. The court further noted that the Court of Appeal had twice doubted the existence of the ground of proportionality as an independent ground for judicial review in Chng Suan Tze v Minister for Home Affairs and Dow Jones Publishing Co (Asia) Inc v Attorney-General.

More importantly, given that matters of national security are non-justiciable, applying any higher test than the Wednesbury test would require the court to examine the merits of a decision. This is precisely what the courts are not permitted to do, as that would involve a usurpation of power and responsibility that rightly belongs to the Minister.

Irrationality

The Court of Appeal held that the only ground available to the appellants was the ground of irrationality. In affirming the principle in Associated Provincial Picture Houses v Wednesbury Corporation, the court stated that the test is whether no reasonable minister would issue O 405/94. It is insufficient for the appellant to show that the minister did not act proportionately in imposing the ban.

The court held that the appellant had failed to prove an arguable case that the Minister had acted irrationally. Even if the court was prepared to assume that the minister had acted disproportionately, it is conceivable that a reasonable minister would impose a ban of similar width. This is because the King James' version of the Bible is readily available from other sources. Further, women and other members of the Jehovah’s Witnesses faith may have some “influence” on the male members even though they did not have to perform national service.

Subsequent Treatment

The Wednesbury principle was applied in Chee Siok Chin v Minister for Home Affairs. In that case, the three applicants held a protest outside the Central Provident Fund Building and were told to disperse by a police officer. In finding that the police officer had not acted unreasonably in the Wednesbury sense, the court held that [I]t is hornbook law that the standard of unreasonableness, is from a jurisprudential perspective, pragmatically fixed at a very high level. Affirming the approach in Colin Chan (C.A.), the court stated that judicial review is limited to the decision-making process and does not extend to a review of the merits of the decision itself.

In the case of Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board,the court held that the mere taking into irrelevant considerations did not amount to Wednesbury unreasonableness. Finally, in the case of Ramalingam Ravinthran v Attorney-General, the Court of Appeal held that the decision to reduce quantity of drugs in order to reduce the charge is not unreasonable in the Wednesbury sense.

In an extra-judicial lecture, Chan Sek Keong CJ (as he then was) stated that the court in Colin Chan (C.A.) was careful to say only that it was “not well established” and “questionable” whether proportionality existed as an independent ground for judicial review or was simply a facet of irrationality. In other words, Colin Chan (C.A.) did not foreclose the possibility of adopting the principle of proportionality in an appropriate case.

Non-justiciability
The appellants submitted that Jehovah's Witnesses are not a threat to national security as the refusal of only a few male citizens to do National Service cannot possibly constitute a threat to national security. However, the Court of Appeal held that the appellants’ line of argument was “doomed to failure” as issues of national security are not justiciable. Citing Lord Fraser in GCHQ, the court stated that its function is only to see that there is evidence that the decision was based on considerations of national security. Given that the appellants have conceded that the publications of IBSA are essential for the profession, practice and propagation of a faith which prohibits its members from performing national service, there is a factual basis that issues of national security are involved.

Subsequent Treatment

In the subsequent case of Civil Aeronautics Administration v Singapore Airlines Ltd, the court stated that the issue of whether Taiwan was a state was non-justiciable. Courts should not "get involved in international relations" nor reach a conclusion inconsistent with that of the Executive.



In the landmark case of Lee Hsien Loong v Review Publishing Co Ltd, Sundaresh Menon JC (as he then was) underscored the importance of a contextual and commonsensical approach in deciding issues of justiciability. In particular, His Honour identified several principles in determining justiciability:


 * 1) Justiciability depends, not on the source of the decision-making power, but on the subject matter that is in question. Where it is the executive that has access to the best materials available to resolve the issue, its views should be regarded as highly persuasive, if not decisive.
 * 2) Where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate because of their limited training, experience and access to materials, the courts should shy away from reviewing its merits.
 * 3) Where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview, the courts should abstain.
 * 4) In all cases of judicial review, the court should exercise restraint and take cognisance of the fact that our system of government operates within the framework of three co-equal branches. Even though all exercise of power must be within constitutional and legal bounds, there are areas of prerogative power that the democratically elected Executive and Legislature are entrusted to take charge of, and, in this regard, it is to the electorate, and not the Judiciary, that the Executive and Legislature are ultimately accountable.