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Adelaide Co of Jehovah's Witnesses Inc v Commonwealth

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 This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (August 2007)

Adelaide Co of Jehovah's Witnesses Inc v Commonwealth
Coat of Arms of Australia.svg
Court
High Court of Australia
Full case name
Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth of Australia
Decided
14 June 1943
Citation(s)
(1943) 67 CLR 116, [1943] HCA 12
Case history

Prior action(s)
none
Subsequent action(s)
none
Case opinions

(5:0) the National Security (Subversive Associations) Regulations did not contravene section 116 of the Australian Constitution (per curiam)
(5:0) the power under the regulations to seize any building containing property connected to a subversive association was beyond the Commonwealth's defence powers under s51(vi) of the Constitution (per curiam)
Court membership

Judge(s) sitting
Latham CJ, Rich, Starke, McTiernan & Williams JJ
Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 was a court case decided in the High Court of Australia on 14 June 1943.
In January 1941, acting pursuant to the National Security (Subversive Organisations) Regulations 1940, the Government of Australia declared Jehovah's Witnesses to be "prejudicial to the defence of the Commonwealth" and to the "efficient prosecution of the war". Police immediately occupied premises of the organisation.
In September 1941, Jehovah's Witnesses applied to the High Court for an injunction to restrain the Commonwealth from further trespassing on their premises, and seeking damages. The Witnesses argued that the regulations contravened the express constitutional protections for freedom from religious discrimination contained in section 116 of the Australian Constitution, which states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The court unanimously held that the National Security (Subversive Organisations) Regulations 1940 did not infringe against section 116, but that the government had exceeded the scope of the Commonwealth's "defence power" in section 51(vi) of the Constitution.
This was only the second case to consider section 116. The first had been Krygger v Williams (1912). In that case, the protections afforded by section 116 had been defined very narrowly.
See also[edit]
Australian constitutional law
  


Categories: High Court of Australia cases
Australian constitutional law
Rights in the Australian Constitution cases
Defence power in the Australian Constitution cases
1943 in Australian law
Jehovah's Witnesses litigation
1943 in case law
History of Adelaide
Christianity and law in the 20th century





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Adelaide Co of Jehovah's Witnesses Inc v Commonwealth

From Wikipedia, the free encyclopedia

Jump to: navigation, search



 This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (August 2007)

Adelaide Co of Jehovah's Witnesses Inc v Commonwealth
Coat of Arms of Australia.svg
Court
High Court of Australia
Full case name
Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth of Australia
Decided
14 June 1943
Citation(s)
(1943) 67 CLR 116, [1943] HCA 12
Case history

Prior action(s)
none
Subsequent action(s)
none
Case opinions

(5:0) the National Security (Subversive Associations) Regulations did not contravene section 116 of the Australian Constitution (per curiam)
(5:0) the power under the regulations to seize any building containing property connected to a subversive association was beyond the Commonwealth's defence powers under s51(vi) of the Constitution (per curiam)
Court membership

Judge(s) sitting
Latham CJ, Rich, Starke, McTiernan & Williams JJ
Adelaide Co of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116 was a court case decided in the High Court of Australia on 14 June 1943.
In January 1941, acting pursuant to the National Security (Subversive Organisations) Regulations 1940, the Government of Australia declared Jehovah's Witnesses to be "prejudicial to the defence of the Commonwealth" and to the "efficient prosecution of the war". Police immediately occupied premises of the organisation.
In September 1941, Jehovah's Witnesses applied to the High Court for an injunction to restrain the Commonwealth from further trespassing on their premises, and seeking damages. The Witnesses argued that the regulations contravened the express constitutional protections for freedom from religious discrimination contained in section 116 of the Australian Constitution, which states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The court unanimously held that the National Security (Subversive Organisations) Regulations 1940 did not infringe against section 116, but that the government had exceeded the scope of the Commonwealth's "defence power" in section 51(vi) of the Constitution.
This was only the second case to consider section 116. The first had been Krygger v Williams (1912). In that case, the protections afforded by section 116 had been defined very narrowly.
See also[edit]
Australian constitutional law
  


Categories: High Court of Australia cases
Australian constitutional law
Rights in the Australian Constitution cases
Defence power in the Australian Constitution cases
1943 in Australian law
Jehovah's Witnesses litigation
1943 in case law
History of Adelaide
Christianity and law in the 20th century





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R v Boucher

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R v Boucher
Supreme Court of Canada
Supreme Court of Canada

Hearing:
 Judgment: December 18, 1950

Full case name
Aime Boucher v. His Majesty the King
Citations
[1951] S.C.R. 265
Prior history
Judgment for the Crown in the Quebec Court of King's Bench, Appeal Side.
Ruling
Appeal allowed.
Holding
The criminal offence of seditious libel requires language that is calculated to promote public disorder or physical force or violence.
Court Membership
Chief Justice: Thibaudeau Rinfret
Puisne Justices: Patrick Kerwin, Robert Taschereau, Ivan Rand, Roy Kellock, James Wilfred Estey, Charles Holland Locke, John Robert Cartwright, Gerald Fauteux
Reasons given

Majority
Kerwin J.
Concurrence
Rand J.
Concurrence
Kellock J.
Concurrence
Estey J.
Concurrence
Locke J.
Dissent
Rinfret C.J.
Dissent
Taschereau J.
Dissent
Cartwright J., joined by Fauteux J.
R v Boucher [1951] S.C.R. 265 is a famous Supreme Court of Canada decision where the Court overturned a conviction for seditious libel on the grounds that criticizing the government was a valid form of protest.


Contents  [hide]
1 Background
2 Opinion of the Court
3 Footnotes
4 External links

Background[edit]
Aimé Boucher was a farmer in Beauce, Québec, and a practicing Jehovah's Witness. In 1946, [1] he was arrested while distributing pamphlets entitled "Québec's Burning Hate for God and Christ and Freedom Is the Shame of all Canada." The pamphlets criticized the Québec government suppression of the Witnesses and the courts for doing nothing to prevent it. Boucher was charged for seditious libel - for endeavouring to promote public disorder - under section 133(2) of the Criminal Code of Canada. At trial, the jury found Boucher guilty, which was upheld on appeal.
Opinion of the Court[edit]
In a 5 to 4 decision, the Court held that the mere publishing of critical statements, without any intention to incite violence against the government, could not be seditious libel.
Footnotes[edit]
1.Jump up ^ Supreme Court of Canada. Boucher v. the King, S.C.R. 265. p. 305
External links[edit]
Full text of Supreme Court of Canada decision at LexUM and CanLII
Flag of CanadaJustice icon This article about Canadian law is a stub. You can help Wikipedia by expanding it.




Stub icon This Jehovah's Witnesses-related article is a stub. You can help Wikipedia by expanding it.




  


Categories: Canadian freedom of expression case law
Supreme Court of Canada cases
1951 in Canadian case law
Jehovah's Witnesses litigation
Religion in Canada
Canadian criminal case law
Christianity and law in the 20th century
Canadian law stubs
Jehovah's Witnesses stubs




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R v Boucher

From Wikipedia, the free encyclopedia

Jump to: navigation, search


R v Boucher
Supreme Court of Canada
Supreme Court of Canada

Hearing:
 Judgment: December 18, 1950

Full case name
Aime Boucher v. His Majesty the King
Citations
[1951] S.C.R. 265
Prior history
Judgment for the Crown in the Quebec Court of King's Bench, Appeal Side.
Ruling
Appeal allowed.
Holding
The criminal offence of seditious libel requires language that is calculated to promote public disorder or physical force or violence.
Court Membership
Chief Justice: Thibaudeau Rinfret
Puisne Justices: Patrick Kerwin, Robert Taschereau, Ivan Rand, Roy Kellock, James Wilfred Estey, Charles Holland Locke, John Robert Cartwright, Gerald Fauteux
Reasons given

Majority
Kerwin J.
Concurrence
Rand J.
Concurrence
Kellock J.
Concurrence
Estey J.
Concurrence
Locke J.
Dissent
Rinfret C.J.
Dissent
Taschereau J.
Dissent
Cartwright J., joined by Fauteux J.
R v Boucher [1951] S.C.R. 265 is a famous Supreme Court of Canada decision where the Court overturned a conviction for seditious libel on the grounds that criticizing the government was a valid form of protest.


Contents  [hide]
1 Background
2 Opinion of the Court
3 Footnotes
4 External links

Background[edit]
Aimé Boucher was a farmer in Beauce, Québec, and a practicing Jehovah's Witness. In 1946, [1] he was arrested while distributing pamphlets entitled "Québec's Burning Hate for God and Christ and Freedom Is the Shame of all Canada." The pamphlets criticized the Québec government suppression of the Witnesses and the courts for doing nothing to prevent it. Boucher was charged for seditious libel - for endeavouring to promote public disorder - under section 133(2) of the Criminal Code of Canada. At trial, the jury found Boucher guilty, which was upheld on appeal.
Opinion of the Court[edit]
In a 5 to 4 decision, the Court held that the mere publishing of critical statements, without any intention to incite violence against the government, could not be seditious libel.
Footnotes[edit]
1.Jump up ^ Supreme Court of Canada. Boucher v. the King, S.C.R. 265. p. 305
External links[edit]
Full text of Supreme Court of Canada decision at LexUM and CanLII
Flag of CanadaJustice icon This article about Canadian law is a stub. You can help Wikipedia by expanding it.




Stub icon This Jehovah's Witnesses-related article is a stub. You can help Wikipedia by expanding it.




  


Categories: Canadian freedom of expression case law
Supreme Court of Canada cases
1951 in Canadian case law
Jehovah's Witnesses litigation
Religion in Canada
Canadian criminal case law
Christianity and law in the 20th century
Canadian law stubs
Jehovah's Witnesses stubs




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Chan Hiang Leng Colin v Public Prosecutor

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Chan Hiang Leng Colin v Public Prosecutor
OldSupremeCourtBuilding-Singapore-20070409.jpg
The Old Supreme Court Building, photographed in April 2007

Court
High Court of Singapore
Full case name
Chan Hiang Leng Colin and others v. Public Prosecutor
Decided
15 September 1994
Citation(s)
[1994] SGHC 207
 [1994] 3 S.L.R.(R.) 209
Case history

Prior action(s)
The appellants were convicted in the District Court for possession of banned publications.
Related action(s)
Chan Hiang Leng Colin v. Minister for Information and the Arts [1995] 2 S.L.R.(R.) 627, H.C.; [1996] 1 S.L.R.(R.) 294, C.A.
Case opinions
The deregistration of the Singapore Congregation of Jehovah's Witnesses and banning of Watch Tower Bible and Tract Society publications are neither unconstitutional nor ultra vires. The right to freedom of religion guaranteed by Article 15(1) of the Constitution can be restricted on the ground of public order.
Court membership

Judge sitting
Yong Pung How C.J.
Chan Hiang Leng Colin v. Public Prosecutor is a 1994 judgment of the High Court of Singapore delivered by Chief Justice Yong Pung How which held that orders issued by the Government deregistering the Singapore Congregation of Jehovah's Witnesses under the Societies Act (Cap. 311, 1985 Rev. Ed.) and banning works published by the Watch Tower Bible and Tract Society ("WTBTS") under the Undesirable Publications Act (Cap. 338, 1985 Rev. Ed.) (now Cap. 338, 1998 Rev. Ed.) did not violate the right to freedom of religion guaranteed by Article 15(1) of the Constitution of Singapore.
The Court said that the constitutionality of the orders had to be presumed, and the appellants bore the burden of establishing that the orders were unconstitutional or ultra vires. The orders had been issued because Jehovah's Witnesses refuse to perform national service, which the Government regarded as contrary to public peace, welfare and good order. The Court could not question the Government's exercise of discretion in this regard. Thus, the orders were laws relating to public order, which are exceptions to freedom of religion set out in Article 15(4). The Court also emphasized that any religious belief and practice which offends the sovereignty, integrity and unity of Singapore must be restrained. In reaching its decision, the High Court applied a "four walls" approach to interpreting the Constitution, and declined to examine foreign case law. There is academic criticism of the fact that the Court interpreted the concept of public order broadly, and did not balance the appellants' fundamental liberties against the public interest.
The High Court also held that the orders were neither irrational nor disproportionate. The order banning all WTBTS publications was reasonable as it would be administratively impossible to monitor any order other than a blanket ban. As for the deregistration order, the Court accepted that the Jehovah's Witnesses' refusal to perform national service prejudiced national security, and was thus appropriately issued in the interest of public order. The Court noted that Singapore's administrative law does not recognize proportionality as a distinct ground of judicial review.
Although the appellants argued that natural justice had been breached because they had not been consulted prior to the issuance of the orders, the High Court observed that where the public interest is at stake the English courts have held that principles of natural justice must apply in a modified manner. In a 1977 case, the Court of Appeal of England and Wales held that the audi alteram partem ("hear the other side") principle did not need to be complied with if the public interest so demanded.


Contents  [hide]
1 Facts
2 Trial judge's decision
3 High Court decision 3.1 Grounds of appeal
3.2 Preliminary procedural issue
3.3 Right to freedom of religion 3.3.1 Order 179
3.3.2 Order 123
3.3.3 Evaluation of the High Court's ruling on the freedom of religion 3.3.3.1 Minister's subjective discretion
3.3.3.2 Interpretation of exceptions

3.4 Unreasonableness and disproportionality
3.5 Fettering of discretion
3.6 Breach of natural justice
3.7 Treatment of foreign jurisprudence: the "four walls" doctrine
4 Social implications of the case
5 See also
6 Notes
7 References 7.1 Cases
7.2 Other works
8 Further reading

Facts[edit]



 The New World Translation of the Holy Scriptures, published in various languages by the Watch Tower Bible and Tract Society
The Jehovah's Witnesses are members of a religious group that refuse to engage in any political or national practices, such as saluting the flag or performing national service. This was deemed prejudicial to the public welfare and good order of Singapore, and on 14 January 1972 the Government issued two orders to deal with the perceived threat to public order. First, Gazette Notification No. 123 of 1972 ("Order 123") was issued by the Minister for Culture pursuant to section 3 of the Undesirable Publications Act ("UPA")[1] to ban works published by the Watch Tower Bible and Tract Society ("WTBTS"), the parent body of the Jehovah's Witnesses.[2]
Additionally, Gazette Notification No. 179 of 1972 ("Order 179") by the Minister for Home Affairs ordered the dissolution of the Singapore Congregation of Jehovah's Witnesses pursuant to his powers under section 24(1) of the Societies Act ("SA").[3]
The appellants were Jehovah's Witnesses. On 2 July 1992, police seized publications from them, thirteen of which turned out to be publications prohibited under Order 123. The appellants were charged under Order 123 for possession of publications by the WTBTS, an offence punishable under section 4(2) of the UPA.[4]
Trial judge's decision[edit]
The case was first heard in the District Court. The appellants contended by way of a preliminary objection that Order 123 was ultra vires, or beyond the powers, of the UPA and contravened Article 15(1) of the Constitution of Singapore,[5] which enshrines the right to freedom of religion. The trial judge dismissed the preliminary objection, holding that Order 123 was valid and constitutional, as the order concerned the public interest and was permitted under s 3(1) of the UPA. Accordingly, the appellants were convicted for possession of the banned publications. They appealed to the High Court against the trial judge's decision.[6]
High Court decision[edit]
Grounds of appeal[edit]
The appellants raised three main grounds of appeal which involved administrative and constitutional law issues:[7]
1.Whether Order 179 was unconstitutional and ultra vires section 24(1)(a) of the SA.
2.Whether Order 123 was ultra vires section 3(1) of the UPA or unconstitutional.
3.Whether Order 123 was unreasonable and disproportionate.
The appeal was heard by Chief Justice Yong Pung How, sitting as a judge of the High Court.
Preliminary procedural issue[edit]
One preliminary issue that the High Court had to determine was whether it could, in its appellate capacity, hear the appeal which involved constitutional matters. The High Court could hear the constitutional issues only in the exercise of its original jurisdiction. However, in the present case the High Court was sitting as an appellate court in a criminal proceeding. The Court, referring to Public Prosecutor v. Lee Meow Sim Jenny (1993),[8] held that its powers were "necessarily limited to that of the Subordinate Court from which the appeal emanated".[9] Since the District Court did not have the power to address the constitutional issues raised, the High Court could not hear the constitutional matters in its appellate capacity.[10]
However, the High Court recognized that both parties had agreed on the Court's competence in determining constitutional issues. The appellants had also raised issues regarding the constitutionality of the government orders, and if the orders proved to be invalid, it would afford the appellants a substantive defence to the criminal charges and would affect the administration of justice. Therefore, the High Court made an exception and heard the case in its appellate jurisdiction. In doing so, the Court emphasized that the constitutional issues raised were of significant importance and the facts of the case were "exceptional".[11]
Right to freedom of religion[edit]
Order 179[edit]



Yong Pung How, then Chief Justice of Singapore, who heard the case in the High Court
At the outset, Chief Justice Yong emphasized that the court would not question the merits of the Minister's exercise of discretion. He stated that "there can be no enquiry as to whether it was a correct or proper exercise or whether it should or ought to have been taken".[12] There was a presumption of constitutionality for the orders, and the burden was on the appellants to prove that they were unconstitutional or ultra vires.[13]
The appellants contended that under Article 15(4) of the Constitution restrictions on the right of freedom of religion could be imposed only if public order, public health or morality is affected, and section 24(1)(a) of the SA provides for registered organizations to be dissolved only if they threaten public peace, welfare or good order. The appellants therefore submitted that there had to be a clear and immediate danger to public order before freedom of religion can be circumscribed. Since the activities of Jehovah's Witnesses posed no such threat, the deregistration order was unconstitutional and ultra vires the SA.[14]
However, Chief Justice Yong rejected the appellants' argument and held that Order 179 was constitutional. The mere "possibility of trouble over religious beliefs" was held to be sufficient cause for the Minister to take action. To this end, the danger did not have to be clear and immediate.[15]
Chief Justice Yong held that any religious belief and practice which offended the "sovereignty, integrity and unity of Singapore" must be restrained.[16] While there was no dispute that Jehovah's Witnesses were law-abiding citizens and their religious activities held no political agendas, their refusal to perform national service was, in the Minister's view, contrary to public peace, welfare and good order.[17] In this regard, Chief Justice Yong considered the concerns of the Assistant Director of Manpower of the Ministry of Defence – if the beliefs of Jehovah's Witnesses were recognized, a select group of people would enjoy the social and economic benefits of their country without having to share the responsibility of defending the community's social and political institutions.[18]
Since the court had no capacity to review the merits of the decision and conclude whether Jehovah's Witnesses were a threat to public order, it was sufficient that the Minister had made Order 179 with the view that the existence of Jehovah's Witnesses, which forbade national service, was contrary to public peace, welfare and good order. The judge also remarked that notion of public peace, welfare and good order in the SA was similar to the concept of public order envisaged by Article 15(4) of the Constitution. Thus the rationale of maintaining public order behind Order 179 fell within the permitted categories spelt out in both section 24(1)(a) of the SA and Article 15(4) respectively.[17]
Order 123[edit]
Section 3(1) of the UPA confers a discretion on the Minister to prohibit any publication if he opines that it is contrary to the public interest. Again, the High Court held that it would not review the merits of the ministerial discretion. Since the Minister had decided that the existence of Jehovah's Witnesses would be "prejudicial to public welfare and good order", which clearly related to the public interest, Order 123 was based upon relevant considerations and not ultra vires section 3(1) of the UPA. Moreover, Chief Justice Yong felt that Order 123 sought to reinforce the ban on the Jehovah's Witnesses' movement effected by Order 179. Hence, the appellants' constitutional and administrative challenges were dismissed on the basis that once the executive's considerations were in relation to public interest, "there could therefore be no objection that the prohibition order was made on an irrelevant ground".[19]
Evaluation of the High Court's ruling on the freedom of religion[edit]
Minister's subjective discretion[edit]
In Thio Li-ann's view, it appears that the High Court allowed the matter to be decided according to the subjective discretion of the Minister. The only explanation given for deregistration was that the Jehovah's Witnesses' refusal to perform national service was contrary to the public interest. The Court did not require the executive to elaborate on exactly how a failure to perform national service would be contrary to public interest. It accepted the executive's discretion to derogate a fundamental right without a close scrutiny of the executive's rationale and explanations.[20]
Interpretation of exceptions[edit]
Article 15(1) of the Constitution lays down the general principle guaranteeing the freedom of religion, while Article 15(4) allows an exception to the general principle if any religious act is contrary to any general law relating to public order, health or morality. In Chan Hiang Leng Colin, Chief Justice Yong stated that acts flowing from religious beliefs must "conform" to general legislation.[16] This implies that legislation derogating from rights is presumptively constitutional, and Article 15(4) restrictions take precedence over fundamental liberties. Thio has criticized this, stating that "exceptions swallowing up general principles can make a mockery of any constitutional liberty".[21]
Although the Court held that the activities of the Jehovah's Witnesses were against "public order", Chief Justice Yong did not explain in detail how such activities disrupted public order.[20] The term public order was also not defined in the judgment. Counsel for the appellants cited the Malaysian case Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia (1976),[22] in which the meaning of public order in section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 was described as follows:[23]

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 ... [T]he 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 tranquility of the society undisturbed?[24]
While Chief Justice Yong acknowledged counsel's submissions, he did not address the suggested test. Instead, he discredited the "clear and immediate danger test" by remarking that for any administration to allow the possibility of trouble over religious beliefs to exist and wait until trouble is about to break out before taking action would be "pathetically naive" and "grossly incompetent".[25]
Thio has argued that this "nip it in the bud" approach spells dire consequences for the preservation of civil liberties. She notes that this "exaltation of efficiency over all other interests" creates a mala fides ("bad faith") situation which allows for the relevant decision-makers to simply point to a lower standard of a "possibility" of trouble before curtailing a constitutional liberty. She advocates that at least a certain degree of possible danger must be established prior to such a curtailment of rights. Otherwise, rights would flow from the state instead of flowing from something intrinsic to one's humanity, and this judicial treatment results in a "flimsy basis for human rights".[26]
Thio has also commented that the case seems to enunciate a more extensive conception of "public order", since this required the curtailing of a "passive threat" to a governmental policy considered to be the "cornerstone of national security".[27]
The Court did not conduct any balancing exercise in weighing the appellants' fundamental liberties against the public interest. Instead, it adopted a categorization approach in which the presence of any factor indicated in Article 15(4) of the Constitution is accepted as conclusive regardless of its impact on public order.[28] This reveals a judicial deference to the ministerial judgment in issuing orders curtailing constitutional liberties. In this case, the "right of religious freedom was not given due weight" as there was no judicial pronouncement on the value of one's religion.[29] Thio has commented that in Singapore, utilitarian rather than dignitarian considerations pervade judicial reasoning.[30] By subscribing to ministerial discretion, the court abdicates its "watchdog role over individual rights".[29]
Unreasonableness and disproportionality[edit]
The blanket ban on all WTBTS publications by Order 23 was alleged by the appellants to be unreasonable and excessive. Their counsel contended that WTBTS produced publications that were not contrary to public interest, such as the King James Bible. However, all publications by WTBTS were banned under Order 123 regardless of their content.[31]
The High Court held that the Minister's order to prohibit all publications by WTBTS was not excessive. Any order other than a total blanket order would have been impossible to monitor administratively. Therefore, the fact that the contents of one publication were unobjectionable did not, by itself, make the ban unreasonable.[32]
Chief Justice Yong also held that the orders were not irrational or disproportionate. He accepted the Minister's view that the Jehovah's Witnesses' refusal to perform national service was prejudicial to national security. The activities of the Jehovah's Witnesses had been properly restricted on the basis that they were against "public order", and the prohibition on their publications was a natural consequence in view of the "public interest".[33]
Citing Chng Suan Tze v. Minister for Home Affairs (1988),[34] the High Court in Chan Hiang Leng Colin affirmed that disproportionality was not an independent ground of judicial review, and any issue of proportionality was subsumed under the ground of irrationality. Therefore, the Court gave no consideration to whether the publication ban was unreasonable or over-inclusive.[35]
Thio Li-ann has criticized the Court's prioritization of administrative convenience and efficiency over individual fundamental rights. She has argued that this has allowed "state interests to trump rights rather than vice versa".[36] This means that so long as the Minister's motives for the orders were "based on national security considerations and good order, the nature of the ban or its scope is apparently not reviewable".[37] This "manifested a clear bias towards bureaucratic concerns", and gave the Minister excessive power.[38]
Thio has also questioned the impossibility of ascertaining whether each WTBTS publication constitutes a threat to public order. She was personally informed by Colin Chan, the lead appellant in the case, that the Jehovah's Witnesses' publishing arm publishes only three works a year. Hence, in the case "there appears to be an overriding concern for efficiency over fairness".[39]
Fettering of discretion[edit]
The appellants contended that Minister had fettered his discretion when making Order 123. They alleged that publications had been banned because of the deregistration of the Jehovah's Witnesses and not because Minister had been satisfied of their undesirability.[40]
Chief Justice Yong, referring to the affidavit of the Minister for Culture, held that Order 123 was made after the Government had been satisfied that the teachings and beliefs contained in publications of the WTBTS were contrary to the public interest. The Minister had viewed the teachings of Jehovah's Witnesses as being prejudicial to the Government's nation-building efforts, and hence he had rightly exercised his discretion to prohibit such publications.[41]
Breach of natural justice[edit]
One of the submissions raised by the appellants was that the prohibition and deregistration orders were made in breach of the natural justice principle of audi alteram partem, or "hear the other side".[42] This is regarded as a cardinal principle of natural justice, requiring that no person shall be condemned unless he or she has been given prior notice of the allegations against him or her and a fair opportunity to be heard.[43] In general, Article 12(1) of the Constitution protects rights such as this. Audi alteram partem has been referred to by the Court of Appeal as one of the two rules that make up the administrative law rules of natural justice, the other being nemo iudex in causa sua ("no man a judge in his own cause").[44]
The appellants contended that the orders had been made without any notice or hearing, and they were not given an opportunity to explain or correct the allegations against them. This was contrary to natural justice, which requires a person to be given the right to be heard before his or her interest is violated. As natural justice is an essential aspect of both the rule of law and the equal treatment by the law of all persons, the appellants argued that the deprivation of their right to a fair hearing was a violation of Article 12(1) of the Constitution, which affords to all persons equality before the law and equal protection of the law.[45]
First, the High Court held, upon an examination of section 3 of the UPA and section 24(1) of the SA, that there was no express requirement for the Minister to have given the affected parties a right to be heard before the orders were made. Further, there was no room for the appellants' contention that the principles of natural justice had to be complied with fully. The orders had been made with respect to both the public interest and the public order, and their objective was clearly the preservation of national security. The Court affirmed the conclusion of Lord Denning, the Master of the Rolls, in R. v. Secretary of State for Home Affairs, ex parte Hosenball (1977)[46] that in such situations the ordinary principles of natural justice have to be modified to accommodate the public interest.[42][47]
In ex parte Hosenball, Lord Denning referred to Lord Reid's comments in R. v. Lewes Justices, ex parte Secretary of State for Home Department (1972),[48] that there was a public interest for certain documents in the police's possession not to be produced during court proceedings, otherwise members of the public might withhold information from the police if they realized the potential existed for the information to be disclosed to the Gaming Board. Such withholding of information would prevent the police from properly discharging their statutory duty of ensuring that unsuitable persons were not granted licences to run gaming establishments. Lord Reid stated that the requirement for natural justice in that case was clearly outweighed by the public interest.[49]
The Minister had decided that the Jehovah's Witnesses' doctrine prohibiting its adherents from taking part in military service was contrary to national security and, thus, to public order and the public interest. Notably, the Court held that because the basis for the Minister's conclusion clearly could not be disputed, there was no need for any hearing or inquiry as no purpose would have been achieved. The appellants had not shown that the Minister had based his conclusions on false or unfounded facts; thus, unless the conclusions were irrelevant, the Court could not interfere with the Minister's opinion since his discretionary power had been exercised within statutory limitations.[50]
It has been argued, however, that there exists a problem if a government minister simply needs to state that a national security interest is involved in a matter, upon which the rules of natural justice are immediately compromised. Thio Li-ann has commented that when important constitutional rights such as the freedom to religion are curtailed by legislation, it may be advisable for the court to impose a duty on a public authority to give reasons establishing that an order imposed by the authority is objectively valid.[51]
Treatment of foreign jurisprudence: the "four walls" doctrine[edit]
The appellants also contended that the ban was a violation of the international declarations of human rights. The High Court held that the issues would be best resolved by a "consideration of the provisions of the Constitution, the Societies Act and the UPA alone". Consequently, there was no consideration of international declarations of human rights in the judgment.[52] Instead, Chief Justice Yong endorsed the "four walls" approach applied in Government of the State of Kelantan v. Government of the Federation of Malaya (1963).[53] and imported the principle into the common law of Singapore.[54] In Kelantan, Chief Justice Thomson had commented that:[55]

[T]he 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.
Chief Justice Yong noted that the "social conditions" in Singapore were "markedly different" from those in the US, concluding, "[o]n 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."[56] He went on to reject the American cases dealing with freedom of religion on the basis that the Singapore Constitution did not prohibit the "establishment' of any religion unlike the American Constitution which had an anti-establishment clause.[56] Nonetheless, the Chief Justice went on to approve an Australian case, Adelaide Company of Jehovah's Witnesses v. Commonwealth of Australia (1943),[57] with respect to limitations on the religious freedom of Jehovah's Witnesses.[58] This may imply that Singapore courts embrace foreign cases "selectively".[59]
The four walls doctrine has been invoked in subsequent cases. In Nappalli Peter Williams v. Institute of Technical Education (1998),[60] Justice Tan Lee Meng recognized that "there are differences between the American position and the Singapore constitution and that social conditions in Singapore are markedly different from those in the United States".[61] However, no explanation was given as to how the social conditions are different. The judge went on to approve foreign cases to buttress his argument. Hence it appears that the four walls doctrine "is sometimes used as a device for rejecting certain lines of foreign authority while accepting others".[62]
In comparison, there was more active judicial engagement with international law in Nguyen Tuong Van v. Public Prosecutor (2005),[63] as opposed to the decisive disapproval in Chan Hiang Leng Colin. In Nguyen Tuong Van, the Court of Appeal commented that a "clearly and firmly established" rule of customary international law can be adopted by the courts,[64] but if there is a conflict between such a rule and a domestic statute, the latter takes precedence.[65] The Court analysed whether there was an established international norm against execution by hanging before deciding if should be applied in Singapore, revealing a more open-minded approach to international law.[66]
Social implications of the case[edit]
Amnesty International has noted that the Jehovah's Witnesses are deemed to be a "potential threat to public order and peace" in Singapore, and are subject to imprisonment and fines for refusing to serve national service and distributing prohibited publications.[67] As a result, Jehovah's Witnesses live under a "constant fear of being arrested, of losing their jobs, not getting business licenses or government flats, and fearing their children will face trouble in school".[68] However, it has been asserted that religions with pacifist tenets are not predisposed to the kind of violence that would normally be associated with a threat to public peace.[69]
During the Second Reading of the Maintenance of Religious Harmony Bill (later enacted as the Maintenance of Religious Harmony Act)[70] in Parliament on 23 February 1990, Lee Hsien Loong, who was then the Minister for Trade and Industry and Second Minister for Defence (Services), said that Jehovah's Witnesses object to armed national service as a matter of conscience due to their faith, but Singapore cannot accept conscientious objection because this will lead to a slippery slope – more people will object to national service based on religious and "conscience" reasons, and this will result in a breakdown in the system of national service.[71]
It has been said that Jehovah's Witnesses do not entirely oppose the idea of national service, but rather the notion of armed military service.[69] Thio Li-ann has commented that it may be administratively possible to devise a non-military national service for Jehovah's Witnesses, who are very few in number.[72]
See also[edit]
Article 15 of the Constitution of Singapore
Persecution of Jehovah's Witnesses in Singapore
Notes[edit]
1.Jump up ^ Undesirable Publications Act (Cap. 338 , 1985 Rev. Ed.) ("UPA"), s. 3 (now Cap. 338, 1998 Rev. Ed., s. 5).
2.Jump up ^ Chan Hiang Leng Colin v. Public Prosecutor [1994] ICHRL 26, [1994] SGHC 207, [1994] 3 S.L.R.(R.) [Singapore Law Reports (Reissue)] 209 at 214–215, paras. 1 and 3, archived from the original on 26 October 2012, High Court (Singapore).
3.Jump up ^ Societies Act (Cap. 311, 1985 Rev. Ed.) ("SA"), s. 24(1).
4.Jump up ^ Chan Hiang Leng Colin, p. 215, para. 2.
5.Jump up ^ Constitution of the Republic of Singapore (1992 Reprint), now the Constitution of the Republic of Singapore (1985 Rev. Ed., 1999 Reprint).
6.Jump up ^ Chan Hiang Leng Colin, p. 216, paras. 6–7.
7.Jump up ^ Chan Hiang Leng Colin, p. 230, para. 48.
8.Jump up ^ Public Prosecutor v. Lee Meow Sim Jenny [1993] 3 S.L.R.(R.) 369 at 373–374, paras. 13–14.
9.Jump up ^ Chan Hiang Leng Colin, p. 218, para. 14.
10.Jump up ^ Chan Hiang Leng Colin, p. 216-217, para. 8.
11.Jump up ^ Chan Hiang Leng Colin, p. 225, para. 33.
12.Jump up ^ Chan Hiang Leng Colin, p. 232, para. 55.
13.Jump up ^ Chan Hiang Leng Colin, p. 232, para. 56.
14.Jump up ^ Chan Hiang Leng Colin, p. 233, paras. 58–59.
15.Jump up ^ Chan Hiang Leng Colin, p. 233, para. 59.
16.^ Jump up to: a b Chan Hiang Leng Colin, p. 235, para. 64.
17.^ Jump up to: a b Chan Hiang Leng Colin, p. 237, para. 68.
18.Jump up ^ Chan Hiang Leng Colin, p. 235, para. 65.
19.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 70.
20.^ Jump up to: a b Thio Li-ann (1995), "The Secular Trumps the Sacred: Constitutional Issues Arising from Colin Chan v Public Prosecutor", Singapore Law Review 16: 26–103 at 77, archived from the original (PDF) on 21 October 2012.
21.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 78.
22.Jump up ^ Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1976] 2 M.L.J. [Malaya Law Journal] 83, High Court (Ipoh, Malaysia).
23.Jump up ^ Emergency (Public Order and Prevention of Crime) Ordinance 1969 (No. 5 of 1969) (Malaysia), reproduced on the United Nations High Commissioner for Refugees' Refworld website.
24.Jump up ^ Tan Boon Liat, pp. 86–87, citing Kanu Biswas v. State of West Bengal A.I.R. 1972 S.C. 1656 at 1658–1659, Supreme Court, (India), archived from the original on 20 October 2012.
25.Jump up ^ Chan Hiang Leng Colin, pp. 233–234, para. 59.
26.Jump up ^ Thio, "The Secular Trumps the Sacred", pp. 88–90.
27.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 76.
28.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 97.
29.^ Jump up to: a b Thio Li-ann (1997), "An 'i' for an 'I'? Singapore's Communitarian Model of Constitutional Adjudication", Hong Kong Law Journal 27: 152–186 at 156.
30.Jump up ^ Thio, "An 'i' for an 'I'?", p. 168.
31.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 71.
32.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 72.
33.Jump up ^ Chan Hiang Leng Colin, p. 240, para. 78.
34.Jump up ^ Chng Suan Tze v. Minister for Home Affairs [1988] SGCA 16, [1988] 2 S.L.R.(R.) 525, C.A. (Singapore), archived from the original on 24 December 2011.
35.Jump up ^ Chan Hiang Leng Colin, p. 240, para. 77.
36.Jump up ^ Thio Li-ann (2009), "Reception and Resistance: Globalisation, International Law and the Singapore Constitution", National Taiwan University Law Review 4 (3): 335–386 at 348, archived from the original (PDF) on 21 October 2012.
37.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 43.
38.Jump up ^ Thio Li-ann (2009), "Singapore Human Rights Practice and Legal Policy: Of Pragmatism and Principle, Rights, Rhetoric and Realism", Singapore Academy of Law Journal 21: 326–362 at 340.
39.Jump up ^ Thio, "Singapore Human Rights Practice and Policy", p. 341.
40.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 73.
41.Jump up ^ Chan Hiang Leng Colin, p. 239, para. 74.
42.^ Jump up to: a b Chan Hiang Leng Colin, p. 239, para. 75.
43.Jump up ^ Tan Tiang Hin Jerry v. Singapore Medical Council [2000] 1 S.L.R.(R.) 553 at 568, para. 23, Court of Appeal (Singapore).
44.Jump up ^ Yong Vui Kong v. Attorney-General [2011] SGCA 9, [2011] 2 S.L.R. 1189, para. 88, C.A. (Singapore).
45.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 44.
46.Jump up ^ R. v. Secretary of State for Home Affairs, ex parte Hosenball [1977] 1 W.L.R. 766, Court of Appeal (England & Wales).
47.Jump up ^ Ex parte Hosenball, p. 779.
48.Jump up ^ R. v. Lewes Justices, ex parte Secretary of State for Home Department [1973] A.C. 388, House of Lords (UK).
49.Jump up ^ Lewes Justices, p. 402, cited in Ex parte Hosenball, p. 767.
50.Jump up ^ Chan Hiang Leng Colin, pp. 239–240, para. 76.
51.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 77.
52.Jump up ^ Chan Hiang Leng Colin, p. 232, para. 54.
53.Jump up ^ Government of the State of Kelantan v. Government of the Federation of Malaya [1963] M.L.J. 355, H.C. (Kuala Lumpur, Malaysia).
54.Jump up ^ Chan Hiang Leng Colin, p. 231, para. 52.
55.Jump up ^ Kelantan, p. 358, cited in Chan Hiang Leng Colin, p. 231, para. 51.
56.^ Jump up to: a b Chan Hiang Leng Colin, p. 231, para. 53.
57.Jump up ^ Adelaide Company of Jehovah's Witnesses v. Commonwealth of Australia (1943) 67 C.L.R. 116, High Court (Australia).
58.Jump up ^ Chan Hiang Leng Colin, p. 234, para. 60.
59.Jump up ^ Victor V[ridar] Ramraj (2002), "Comparative Constitutional Law in Singapore", Singapore Journal of International and Comparative Law 6: 302–334 at 315, archived from the original (PDF) on 26 October 2012.
60.Jump up ^ Nappalli Peter Williams v. Institute of Technical Education [1998] SGHC 351, H.C. (Singapore).
61.Jump up ^ Nappalli Peter Williams, para. 42.
62.Jump up ^ Jack Tsen-Ta Lee (2007), "Interpreting Bills of Rights: The Value of a Comparative Approach", International Journal of Constitutional Law 5 (1): 122–152 at 126, doi:10.1093/icon/mol042.
63.Jump up ^ Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47, [2005] 1 S.L.R.(R.) 103, C.A. (Singapore), archived from the original on 15 November 2010.
64.Jump up ^ Nguyen Tuong Van, p. 126, para. 88.
65.Jump up ^ Nguyen Tuong Van, p. 128, para. 94. See also Yong Vui Kong v. Public Prosecutor [2010] SGCA 20, [2010] 3 S.L.R. 489 at 529–531, paras. 87–92, C.A. (Singapore).
66.Jump up ^ Nguyen Tuong Van, pp. 127–128, paras. 89–94.
67.Jump up ^ Amnesty International Report 1997 – Singapore, Amnesty International (reproduced on Refworld, United Nations High Commissioner for Refugees), 1 January 1997, retrieved 26 October 2012.
68.Jump up ^ Thio Li-ann (2004), "Pragmatism and Realism Do Not Mean Abdication: A Critical and Empirical Inquiry into Singapore's Engagement with International Human Rights Law", Singapore Year Book of International Law 8: 41–91 at 79, archived from the original (PDF) on 26 October 2012.
69.^ Jump up to: a b Chris Lydgate (11 April 1998), "Fighting faith of stoic witness to repression", The Sydney Morning Herald (reproduced on Chris Lydgate's website), archived from the original on 8 July 2011.
70.Jump up ^ Maintenance of Religious Harmony Act (Cap. 167A, 2001 Rev. Ed.).
71.Jump up ^ Brig.-Gen. Lee Hsien Loong (Minister for Trade and Industry and Second Minister for Defence (Services)), speech during the Second Reading of the Maintenance of Religious Harmony Bill, Singapore Parliamentary Debates, Official Report (23 February 1990), vol. 54, cols. 1181–1182, cited in Chan Hiang Leng Colin, p. 236, para. 66.
72.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 93.
References[edit]
Cases[edit]
Chan Hiang Leng Colin v. Public Prosecutor [1994] ICHRL 26, [1994] SGHC 207, [1994] 3 S.L.R.(R.) [Singapore Law Reports (Reissue)] 209, archived from the original on 26 October 2012, High Court (Singapore).
Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47, [2005] 1 S.L.R.(R.) 103, Court of Appeal (Singapore), archived from the original on 15 November 2010.
Other works[edit]
Thio, Li-ann (1995), "The Secular Trumps the Sacred: Constitutional Issues Arising from Colin Chan v Public Prosecutor", Singapore Law Review 16: 26–103, archived from the original (PDF) on 21 October 2012.
Further reading[edit]
Tan, Kevin Y[ew] L[ee] (2011), "Fundamental Liberties III: Freedom of Expression • Association • Assembly • Religion", An Introduction to Singapore's Constitution (rev. ed.), Singapore: Talisman Publishing, pp. 186–203 at 197–203, ISBN 978-981-08-6456-9.
Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (2010), "Freedom of Religion", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 1197–1344, ISBN 978-981-236-795-2.
Thio, Li-ann (2012), "Freedom of Religion", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 869–923, ISBN 978-981-07-1515-1.


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Chan Hiang Leng Colin v Public Prosecutor

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Chan Hiang Leng Colin v Public Prosecutor
OldSupremeCourtBuilding-Singapore-20070409.jpg
The Old Supreme Court Building, photographed in April 2007

Court
High Court of Singapore
Full case name
Chan Hiang Leng Colin and others v. Public Prosecutor
Decided
15 September 1994
Citation(s)
[1994] SGHC 207
 [1994] 3 S.L.R.(R.) 209
Case history

Prior action(s)
The appellants were convicted in the District Court for possession of banned publications.
Related action(s)
Chan Hiang Leng Colin v. Minister for Information and the Arts [1995] 2 S.L.R.(R.) 627, H.C.; [1996] 1 S.L.R.(R.) 294, C.A.
Case opinions
The deregistration of the Singapore Congregation of Jehovah's Witnesses and banning of Watch Tower Bible and Tract Society publications are neither unconstitutional nor ultra vires. The right to freedom of religion guaranteed by Article 15(1) of the Constitution can be restricted on the ground of public order.
Court membership

Judge sitting
Yong Pung How C.J.
Chan Hiang Leng Colin v. Public Prosecutor is a 1994 judgment of the High Court of Singapore delivered by Chief Justice Yong Pung How which held that orders issued by the Government deregistering the Singapore Congregation of Jehovah's Witnesses under the Societies Act (Cap. 311, 1985 Rev. Ed.) and banning works published by the Watch Tower Bible and Tract Society ("WTBTS") under the Undesirable Publications Act (Cap. 338, 1985 Rev. Ed.) (now Cap. 338, 1998 Rev. Ed.) did not violate the right to freedom of religion guaranteed by Article 15(1) of the Constitution of Singapore.
The Court said that the constitutionality of the orders had to be presumed, and the appellants bore the burden of establishing that the orders were unconstitutional or ultra vires. The orders had been issued because Jehovah's Witnesses refuse to perform national service, which the Government regarded as contrary to public peace, welfare and good order. The Court could not question the Government's exercise of discretion in this regard. Thus, the orders were laws relating to public order, which are exceptions to freedom of religion set out in Article 15(4). The Court also emphasized that any religious belief and practice which offends the sovereignty, integrity and unity of Singapore must be restrained. In reaching its decision, the High Court applied a "four walls" approach to interpreting the Constitution, and declined to examine foreign case law. There is academic criticism of the fact that the Court interpreted the concept of public order broadly, and did not balance the appellants' fundamental liberties against the public interest.
The High Court also held that the orders were neither irrational nor disproportionate. The order banning all WTBTS publications was reasonable as it would be administratively impossible to monitor any order other than a blanket ban. As for the deregistration order, the Court accepted that the Jehovah's Witnesses' refusal to perform national service prejudiced national security, and was thus appropriately issued in the interest of public order. The Court noted that Singapore's administrative law does not recognize proportionality as a distinct ground of judicial review.
Although the appellants argued that natural justice had been breached because they had not been consulted prior to the issuance of the orders, the High Court observed that where the public interest is at stake the English courts have held that principles of natural justice must apply in a modified manner. In a 1977 case, the Court of Appeal of England and Wales held that the audi alteram partem ("hear the other side") principle did not need to be complied with if the public interest so demanded.


Contents  [hide]
1 Facts
2 Trial judge's decision
3 High Court decision 3.1 Grounds of appeal
3.2 Preliminary procedural issue
3.3 Right to freedom of religion 3.3.1 Order 179
3.3.2 Order 123
3.3.3 Evaluation of the High Court's ruling on the freedom of religion 3.3.3.1 Minister's subjective discretion
3.3.3.2 Interpretation of exceptions

3.4 Unreasonableness and disproportionality
3.5 Fettering of discretion
3.6 Breach of natural justice
3.7 Treatment of foreign jurisprudence: the "four walls" doctrine
4 Social implications of the case
5 See also
6 Notes
7 References 7.1 Cases
7.2 Other works
8 Further reading

Facts[edit]



 The New World Translation of the Holy Scriptures, published in various languages by the Watch Tower Bible and Tract Society
The Jehovah's Witnesses are members of a religious group that refuse to engage in any political or national practices, such as saluting the flag or performing national service. This was deemed prejudicial to the public welfare and good order of Singapore, and on 14 January 1972 the Government issued two orders to deal with the perceived threat to public order. First, Gazette Notification No. 123 of 1972 ("Order 123") was issued by the Minister for Culture pursuant to section 3 of the Undesirable Publications Act ("UPA")[1] to ban works published by the Watch Tower Bible and Tract Society ("WTBTS"), the parent body of the Jehovah's Witnesses.[2]
Additionally, Gazette Notification No. 179 of 1972 ("Order 179") by the Minister for Home Affairs ordered the dissolution of the Singapore Congregation of Jehovah's Witnesses pursuant to his powers under section 24(1) of the Societies Act ("SA").[3]
The appellants were Jehovah's Witnesses. On 2 July 1992, police seized publications from them, thirteen of which turned out to be publications prohibited under Order 123. The appellants were charged under Order 123 for possession of publications by the WTBTS, an offence punishable under section 4(2) of the UPA.[4]
Trial judge's decision[edit]
The case was first heard in the District Court. The appellants contended by way of a preliminary objection that Order 123 was ultra vires, or beyond the powers, of the UPA and contravened Article 15(1) of the Constitution of Singapore,[5] which enshrines the right to freedom of religion. The trial judge dismissed the preliminary objection, holding that Order 123 was valid and constitutional, as the order concerned the public interest and was permitted under s 3(1) of the UPA. Accordingly, the appellants were convicted for possession of the banned publications. They appealed to the High Court against the trial judge's decision.[6]
High Court decision[edit]
Grounds of appeal[edit]
The appellants raised three main grounds of appeal which involved administrative and constitutional law issues:[7]
1.Whether Order 179 was unconstitutional and ultra vires section 24(1)(a) of the SA.
2.Whether Order 123 was ultra vires section 3(1) of the UPA or unconstitutional.
3.Whether Order 123 was unreasonable and disproportionate.
The appeal was heard by Chief Justice Yong Pung How, sitting as a judge of the High Court.
Preliminary procedural issue[edit]
One preliminary issue that the High Court had to determine was whether it could, in its appellate capacity, hear the appeal which involved constitutional matters. The High Court could hear the constitutional issues only in the exercise of its original jurisdiction. However, in the present case the High Court was sitting as an appellate court in a criminal proceeding. The Court, referring to Public Prosecutor v. Lee Meow Sim Jenny (1993),[8] held that its powers were "necessarily limited to that of the Subordinate Court from which the appeal emanated".[9] Since the District Court did not have the power to address the constitutional issues raised, the High Court could not hear the constitutional matters in its appellate capacity.[10]
However, the High Court recognized that both parties had agreed on the Court's competence in determining constitutional issues. The appellants had also raised issues regarding the constitutionality of the government orders, and if the orders proved to be invalid, it would afford the appellants a substantive defence to the criminal charges and would affect the administration of justice. Therefore, the High Court made an exception and heard the case in its appellate jurisdiction. In doing so, the Court emphasized that the constitutional issues raised were of significant importance and the facts of the case were "exceptional".[11]
Right to freedom of religion[edit]
Order 179[edit]



Yong Pung How, then Chief Justice of Singapore, who heard the case in the High Court
At the outset, Chief Justice Yong emphasized that the court would not question the merits of the Minister's exercise of discretion. He stated that "there can be no enquiry as to whether it was a correct or proper exercise or whether it should or ought to have been taken".[12] There was a presumption of constitutionality for the orders, and the burden was on the appellants to prove that they were unconstitutional or ultra vires.[13]
The appellants contended that under Article 15(4) of the Constitution restrictions on the right of freedom of religion could be imposed only if public order, public health or morality is affected, and section 24(1)(a) of the SA provides for registered organizations to be dissolved only if they threaten public peace, welfare or good order. The appellants therefore submitted that there had to be a clear and immediate danger to public order before freedom of religion can be circumscribed. Since the activities of Jehovah's Witnesses posed no such threat, the deregistration order was unconstitutional and ultra vires the SA.[14]
However, Chief Justice Yong rejected the appellants' argument and held that Order 179 was constitutional. The mere "possibility of trouble over religious beliefs" was held to be sufficient cause for the Minister to take action. To this end, the danger did not have to be clear and immediate.[15]
Chief Justice Yong held that any religious belief and practice which offended the "sovereignty, integrity and unity of Singapore" must be restrained.[16] While there was no dispute that Jehovah's Witnesses were law-abiding citizens and their religious activities held no political agendas, their refusal to perform national service was, in the Minister's view, contrary to public peace, welfare and good order.[17] In this regard, Chief Justice Yong considered the concerns of the Assistant Director of Manpower of the Ministry of Defence – if the beliefs of Jehovah's Witnesses were recognized, a select group of people would enjoy the social and economic benefits of their country without having to share the responsibility of defending the community's social and political institutions.[18]
Since the court had no capacity to review the merits of the decision and conclude whether Jehovah's Witnesses were a threat to public order, it was sufficient that the Minister had made Order 179 with the view that the existence of Jehovah's Witnesses, which forbade national service, was contrary to public peace, welfare and good order. The judge also remarked that notion of public peace, welfare and good order in the SA was similar to the concept of public order envisaged by Article 15(4) of the Constitution. Thus the rationale of maintaining public order behind Order 179 fell within the permitted categories spelt out in both section 24(1)(a) of the SA and Article 15(4) respectively.[17]
Order 123[edit]
Section 3(1) of the UPA confers a discretion on the Minister to prohibit any publication if he opines that it is contrary to the public interest. Again, the High Court held that it would not review the merits of the ministerial discretion. Since the Minister had decided that the existence of Jehovah's Witnesses would be "prejudicial to public welfare and good order", which clearly related to the public interest, Order 123 was based upon relevant considerations and not ultra vires section 3(1) of the UPA. Moreover, Chief Justice Yong felt that Order 123 sought to reinforce the ban on the Jehovah's Witnesses' movement effected by Order 179. Hence, the appellants' constitutional and administrative challenges were dismissed on the basis that once the executive's considerations were in relation to public interest, "there could therefore be no objection that the prohibition order was made on an irrelevant ground".[19]
Evaluation of the High Court's ruling on the freedom of religion[edit]
Minister's subjective discretion[edit]
In Thio Li-ann's view, it appears that the High Court allowed the matter to be decided according to the subjective discretion of the Minister. The only explanation given for deregistration was that the Jehovah's Witnesses' refusal to perform national service was contrary to the public interest. The Court did not require the executive to elaborate on exactly how a failure to perform national service would be contrary to public interest. It accepted the executive's discretion to derogate a fundamental right without a close scrutiny of the executive's rationale and explanations.[20]
Interpretation of exceptions[edit]
Article 15(1) of the Constitution lays down the general principle guaranteeing the freedom of religion, while Article 15(4) allows an exception to the general principle if any religious act is contrary to any general law relating to public order, health or morality. In Chan Hiang Leng Colin, Chief Justice Yong stated that acts flowing from religious beliefs must "conform" to general legislation.[16] This implies that legislation derogating from rights is presumptively constitutional, and Article 15(4) restrictions take precedence over fundamental liberties. Thio has criticized this, stating that "exceptions swallowing up general principles can make a mockery of any constitutional liberty".[21]
Although the Court held that the activities of the Jehovah's Witnesses were against "public order", Chief Justice Yong did not explain in detail how such activities disrupted public order.[20] The term public order was also not defined in the judgment. Counsel for the appellants cited the Malaysian case Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia (1976),[22] in which the meaning of public order in section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 was described as follows:[23]

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 ... [T]he 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 tranquility of the society undisturbed?[24]
While Chief Justice Yong acknowledged counsel's submissions, he did not address the suggested test. Instead, he discredited the "clear and immediate danger test" by remarking that for any administration to allow the possibility of trouble over religious beliefs to exist and wait until trouble is about to break out before taking action would be "pathetically naive" and "grossly incompetent".[25]
Thio has argued that this "nip it in the bud" approach spells dire consequences for the preservation of civil liberties. She notes that this "exaltation of efficiency over all other interests" creates a mala fides ("bad faith") situation which allows for the relevant decision-makers to simply point to a lower standard of a "possibility" of trouble before curtailing a constitutional liberty. She advocates that at least a certain degree of possible danger must be established prior to such a curtailment of rights. Otherwise, rights would flow from the state instead of flowing from something intrinsic to one's humanity, and this judicial treatment results in a "flimsy basis for human rights".[26]
Thio has also commented that the case seems to enunciate a more extensive conception of "public order", since this required the curtailing of a "passive threat" to a governmental policy considered to be the "cornerstone of national security".[27]
The Court did not conduct any balancing exercise in weighing the appellants' fundamental liberties against the public interest. Instead, it adopted a categorization approach in which the presence of any factor indicated in Article 15(4) of the Constitution is accepted as conclusive regardless of its impact on public order.[28] This reveals a judicial deference to the ministerial judgment in issuing orders curtailing constitutional liberties. In this case, the "right of religious freedom was not given due weight" as there was no judicial pronouncement on the value of one's religion.[29] Thio has commented that in Singapore, utilitarian rather than dignitarian considerations pervade judicial reasoning.[30] By subscribing to ministerial discretion, the court abdicates its "watchdog role over individual rights".[29]
Unreasonableness and disproportionality[edit]
The blanket ban on all WTBTS publications by Order 23 was alleged by the appellants to be unreasonable and excessive. Their counsel contended that WTBTS produced publications that were not contrary to public interest, such as the King James Bible. However, all publications by WTBTS were banned under Order 123 regardless of their content.[31]
The High Court held that the Minister's order to prohibit all publications by WTBTS was not excessive. Any order other than a total blanket order would have been impossible to monitor administratively. Therefore, the fact that the contents of one publication were unobjectionable did not, by itself, make the ban unreasonable.[32]
Chief Justice Yong also held that the orders were not irrational or disproportionate. He accepted the Minister's view that the Jehovah's Witnesses' refusal to perform national service was prejudicial to national security. The activities of the Jehovah's Witnesses had been properly restricted on the basis that they were against "public order", and the prohibition on their publications was a natural consequence in view of the "public interest".[33]
Citing Chng Suan Tze v. Minister for Home Affairs (1988),[34] the High Court in Chan Hiang Leng Colin affirmed that disproportionality was not an independent ground of judicial review, and any issue of proportionality was subsumed under the ground of irrationality. Therefore, the Court gave no consideration to whether the publication ban was unreasonable or over-inclusive.[35]
Thio Li-ann has criticized the Court's prioritization of administrative convenience and efficiency over individual fundamental rights. She has argued that this has allowed "state interests to trump rights rather than vice versa".[36] This means that so long as the Minister's motives for the orders were "based on national security considerations and good order, the nature of the ban or its scope is apparently not reviewable".[37] This "manifested a clear bias towards bureaucratic concerns", and gave the Minister excessive power.[38]
Thio has also questioned the impossibility of ascertaining whether each WTBTS publication constitutes a threat to public order. She was personally informed by Colin Chan, the lead appellant in the case, that the Jehovah's Witnesses' publishing arm publishes only three works a year. Hence, in the case "there appears to be an overriding concern for efficiency over fairness".[39]
Fettering of discretion[edit]
The appellants contended that Minister had fettered his discretion when making Order 123. They alleged that publications had been banned because of the deregistration of the Jehovah's Witnesses and not because Minister had been satisfied of their undesirability.[40]
Chief Justice Yong, referring to the affidavit of the Minister for Culture, held that Order 123 was made after the Government had been satisfied that the teachings and beliefs contained in publications of the WTBTS were contrary to the public interest. The Minister had viewed the teachings of Jehovah's Witnesses as being prejudicial to the Government's nation-building efforts, and hence he had rightly exercised his discretion to prohibit such publications.[41]
Breach of natural justice[edit]
One of the submissions raised by the appellants was that the prohibition and deregistration orders were made in breach of the natural justice principle of audi alteram partem, or "hear the other side".[42] This is regarded as a cardinal principle of natural justice, requiring that no person shall be condemned unless he or she has been given prior notice of the allegations against him or her and a fair opportunity to be heard.[43] In general, Article 12(1) of the Constitution protects rights such as this. Audi alteram partem has been referred to by the Court of Appeal as one of the two rules that make up the administrative law rules of natural justice, the other being nemo iudex in causa sua ("no man a judge in his own cause").[44]
The appellants contended that the orders had been made without any notice or hearing, and they were not given an opportunity to explain or correct the allegations against them. This was contrary to natural justice, which requires a person to be given the right to be heard before his or her interest is violated. As natural justice is an essential aspect of both the rule of law and the equal treatment by the law of all persons, the appellants argued that the deprivation of their right to a fair hearing was a violation of Article 12(1) of the Constitution, which affords to all persons equality before the law and equal protection of the law.[45]
First, the High Court held, upon an examination of section 3 of the UPA and section 24(1) of the SA, that there was no express requirement for the Minister to have given the affected parties a right to be heard before the orders were made. Further, there was no room for the appellants' contention that the principles of natural justice had to be complied with fully. The orders had been made with respect to both the public interest and the public order, and their objective was clearly the preservation of national security. The Court affirmed the conclusion of Lord Denning, the Master of the Rolls, in R. v. Secretary of State for Home Affairs, ex parte Hosenball (1977)[46] that in such situations the ordinary principles of natural justice have to be modified to accommodate the public interest.[42][47]
In ex parte Hosenball, Lord Denning referred to Lord Reid's comments in R. v. Lewes Justices, ex parte Secretary of State for Home Department (1972),[48] that there was a public interest for certain documents in the police's possession not to be produced during court proceedings, otherwise members of the public might withhold information from the police if they realized the potential existed for the information to be disclosed to the Gaming Board. Such withholding of information would prevent the police from properly discharging their statutory duty of ensuring that unsuitable persons were not granted licences to run gaming establishments. Lord Reid stated that the requirement for natural justice in that case was clearly outweighed by the public interest.[49]
The Minister had decided that the Jehovah's Witnesses' doctrine prohibiting its adherents from taking part in military service was contrary to national security and, thus, to public order and the public interest. Notably, the Court held that because the basis for the Minister's conclusion clearly could not be disputed, there was no need for any hearing or inquiry as no purpose would have been achieved. The appellants had not shown that the Minister had based his conclusions on false or unfounded facts; thus, unless the conclusions were irrelevant, the Court could not interfere with the Minister's opinion since his discretionary power had been exercised within statutory limitations.[50]
It has been argued, however, that there exists a problem if a government minister simply needs to state that a national security interest is involved in a matter, upon which the rules of natural justice are immediately compromised. Thio Li-ann has commented that when important constitutional rights such as the freedom to religion are curtailed by legislation, it may be advisable for the court to impose a duty on a public authority to give reasons establishing that an order imposed by the authority is objectively valid.[51]
Treatment of foreign jurisprudence: the "four walls" doctrine[edit]
The appellants also contended that the ban was a violation of the international declarations of human rights. The High Court held that the issues would be best resolved by a "consideration of the provisions of the Constitution, the Societies Act and the UPA alone". Consequently, there was no consideration of international declarations of human rights in the judgment.[52] Instead, Chief Justice Yong endorsed the "four walls" approach applied in Government of the State of Kelantan v. Government of the Federation of Malaya (1963).[53] and imported the principle into the common law of Singapore.[54] In Kelantan, Chief Justice Thomson had commented that:[55]

[T]he 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.
Chief Justice Yong noted that the "social conditions" in Singapore were "markedly different" from those in the US, concluding, "[o]n 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."[56] He went on to reject the American cases dealing with freedom of religion on the basis that the Singapore Constitution did not prohibit the "establishment' of any religion unlike the American Constitution which had an anti-establishment clause.[56] Nonetheless, the Chief Justice went on to approve an Australian case, Adelaide Company of Jehovah's Witnesses v. Commonwealth of Australia (1943),[57] with respect to limitations on the religious freedom of Jehovah's Witnesses.[58] This may imply that Singapore courts embrace foreign cases "selectively".[59]
The four walls doctrine has been invoked in subsequent cases. In Nappalli Peter Williams v. Institute of Technical Education (1998),[60] Justice Tan Lee Meng recognized that "there are differences between the American position and the Singapore constitution and that social conditions in Singapore are markedly different from those in the United States".[61] However, no explanation was given as to how the social conditions are different. The judge went on to approve foreign cases to buttress his argument. Hence it appears that the four walls doctrine "is sometimes used as a device for rejecting certain lines of foreign authority while accepting others".[62]
In comparison, there was more active judicial engagement with international law in Nguyen Tuong Van v. Public Prosecutor (2005),[63] as opposed to the decisive disapproval in Chan Hiang Leng Colin. In Nguyen Tuong Van, the Court of Appeal commented that a "clearly and firmly established" rule of customary international law can be adopted by the courts,[64] but if there is a conflict between such a rule and a domestic statute, the latter takes precedence.[65] The Court analysed whether there was an established international norm against execution by hanging before deciding if should be applied in Singapore, revealing a more open-minded approach to international law.[66]
Social implications of the case[edit]
Amnesty International has noted that the Jehovah's Witnesses are deemed to be a "potential threat to public order and peace" in Singapore, and are subject to imprisonment and fines for refusing to serve national service and distributing prohibited publications.[67] As a result, Jehovah's Witnesses live under a "constant fear of being arrested, of losing their jobs, not getting business licenses or government flats, and fearing their children will face trouble in school".[68] However, it has been asserted that religions with pacifist tenets are not predisposed to the kind of violence that would normally be associated with a threat to public peace.[69]
During the Second Reading of the Maintenance of Religious Harmony Bill (later enacted as the Maintenance of Religious Harmony Act)[70] in Parliament on 23 February 1990, Lee Hsien Loong, who was then the Minister for Trade and Industry and Second Minister for Defence (Services), said that Jehovah's Witnesses object to armed national service as a matter of conscience due to their faith, but Singapore cannot accept conscientious objection because this will lead to a slippery slope – more people will object to national service based on religious and "conscience" reasons, and this will result in a breakdown in the system of national service.[71]
It has been said that Jehovah's Witnesses do not entirely oppose the idea of national service, but rather the notion of armed military service.[69] Thio Li-ann has commented that it may be administratively possible to devise a non-military national service for Jehovah's Witnesses, who are very few in number.[72]
See also[edit]
Article 15 of the Constitution of Singapore
Persecution of Jehovah's Witnesses in Singapore
Notes[edit]
1.Jump up ^ Undesirable Publications Act (Cap. 338 , 1985 Rev. Ed.) ("UPA"), s. 3 (now Cap. 338, 1998 Rev. Ed., s. 5).
2.Jump up ^ Chan Hiang Leng Colin v. Public Prosecutor [1994] ICHRL 26, [1994] SGHC 207, [1994] 3 S.L.R.(R.) [Singapore Law Reports (Reissue)] 209 at 214–215, paras. 1 and 3, archived from the original on 26 October 2012, High Court (Singapore).
3.Jump up ^ Societies Act (Cap. 311, 1985 Rev. Ed.) ("SA"), s. 24(1).
4.Jump up ^ Chan Hiang Leng Colin, p. 215, para. 2.
5.Jump up ^ Constitution of the Republic of Singapore (1992 Reprint), now the Constitution of the Republic of Singapore (1985 Rev. Ed., 1999 Reprint).
6.Jump up ^ Chan Hiang Leng Colin, p. 216, paras. 6–7.
7.Jump up ^ Chan Hiang Leng Colin, p. 230, para. 48.
8.Jump up ^ Public Prosecutor v. Lee Meow Sim Jenny [1993] 3 S.L.R.(R.) 369 at 373–374, paras. 13–14.
9.Jump up ^ Chan Hiang Leng Colin, p. 218, para. 14.
10.Jump up ^ Chan Hiang Leng Colin, p. 216-217, para. 8.
11.Jump up ^ Chan Hiang Leng Colin, p. 225, para. 33.
12.Jump up ^ Chan Hiang Leng Colin, p. 232, para. 55.
13.Jump up ^ Chan Hiang Leng Colin, p. 232, para. 56.
14.Jump up ^ Chan Hiang Leng Colin, p. 233, paras. 58–59.
15.Jump up ^ Chan Hiang Leng Colin, p. 233, para. 59.
16.^ Jump up to: a b Chan Hiang Leng Colin, p. 235, para. 64.
17.^ Jump up to: a b Chan Hiang Leng Colin, p. 237, para. 68.
18.Jump up ^ Chan Hiang Leng Colin, p. 235, para. 65.
19.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 70.
20.^ Jump up to: a b Thio Li-ann (1995), "The Secular Trumps the Sacred: Constitutional Issues Arising from Colin Chan v Public Prosecutor", Singapore Law Review 16: 26–103 at 77, archived from the original (PDF) on 21 October 2012.
21.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 78.
22.Jump up ^ Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1976] 2 M.L.J. [Malaya Law Journal] 83, High Court (Ipoh, Malaysia).
23.Jump up ^ Emergency (Public Order and Prevention of Crime) Ordinance 1969 (No. 5 of 1969) (Malaysia), reproduced on the United Nations High Commissioner for Refugees' Refworld website.
24.Jump up ^ Tan Boon Liat, pp. 86–87, citing Kanu Biswas v. State of West Bengal A.I.R. 1972 S.C. 1656 at 1658–1659, Supreme Court, (India), archived from the original on 20 October 2012.
25.Jump up ^ Chan Hiang Leng Colin, pp. 233–234, para. 59.
26.Jump up ^ Thio, "The Secular Trumps the Sacred", pp. 88–90.
27.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 76.
28.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 97.
29.^ Jump up to: a b Thio Li-ann (1997), "An 'i' for an 'I'? Singapore's Communitarian Model of Constitutional Adjudication", Hong Kong Law Journal 27: 152–186 at 156.
30.Jump up ^ Thio, "An 'i' for an 'I'?", p. 168.
31.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 71.
32.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 72.
33.Jump up ^ Chan Hiang Leng Colin, p. 240, para. 78.
34.Jump up ^ Chng Suan Tze v. Minister for Home Affairs [1988] SGCA 16, [1988] 2 S.L.R.(R.) 525, C.A. (Singapore), archived from the original on 24 December 2011.
35.Jump up ^ Chan Hiang Leng Colin, p. 240, para. 77.
36.Jump up ^ Thio Li-ann (2009), "Reception and Resistance: Globalisation, International Law and the Singapore Constitution", National Taiwan University Law Review 4 (3): 335–386 at 348, archived from the original (PDF) on 21 October 2012.
37.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 43.
38.Jump up ^ Thio Li-ann (2009), "Singapore Human Rights Practice and Legal Policy: Of Pragmatism and Principle, Rights, Rhetoric and Realism", Singapore Academy of Law Journal 21: 326–362 at 340.
39.Jump up ^ Thio, "Singapore Human Rights Practice and Policy", p. 341.
40.Jump up ^ Chan Hiang Leng Colin, p. 238, para. 73.
41.Jump up ^ Chan Hiang Leng Colin, p. 239, para. 74.
42.^ Jump up to: a b Chan Hiang Leng Colin, p. 239, para. 75.
43.Jump up ^ Tan Tiang Hin Jerry v. Singapore Medical Council [2000] 1 S.L.R.(R.) 553 at 568, para. 23, Court of Appeal (Singapore).
44.Jump up ^ Yong Vui Kong v. Attorney-General [2011] SGCA 9, [2011] 2 S.L.R. 1189, para. 88, C.A. (Singapore).
45.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 44.
46.Jump up ^ R. v. Secretary of State for Home Affairs, ex parte Hosenball [1977] 1 W.L.R. 766, Court of Appeal (England & Wales).
47.Jump up ^ Ex parte Hosenball, p. 779.
48.Jump up ^ R. v. Lewes Justices, ex parte Secretary of State for Home Department [1973] A.C. 388, House of Lords (UK).
49.Jump up ^ Lewes Justices, p. 402, cited in Ex parte Hosenball, p. 767.
50.Jump up ^ Chan Hiang Leng Colin, pp. 239–240, para. 76.
51.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 77.
52.Jump up ^ Chan Hiang Leng Colin, p. 232, para. 54.
53.Jump up ^ Government of the State of Kelantan v. Government of the Federation of Malaya [1963] M.L.J. 355, H.C. (Kuala Lumpur, Malaysia).
54.Jump up ^ Chan Hiang Leng Colin, p. 231, para. 52.
55.Jump up ^ Kelantan, p. 358, cited in Chan Hiang Leng Colin, p. 231, para. 51.
56.^ Jump up to: a b Chan Hiang Leng Colin, p. 231, para. 53.
57.Jump up ^ Adelaide Company of Jehovah's Witnesses v. Commonwealth of Australia (1943) 67 C.L.R. 116, High Court (Australia).
58.Jump up ^ Chan Hiang Leng Colin, p. 234, para. 60.
59.Jump up ^ Victor V[ridar] Ramraj (2002), "Comparative Constitutional Law in Singapore", Singapore Journal of International and Comparative Law 6: 302–334 at 315, archived from the original (PDF) on 26 October 2012.
60.Jump up ^ Nappalli Peter Williams v. Institute of Technical Education [1998] SGHC 351, H.C. (Singapore).
61.Jump up ^ Nappalli Peter Williams, para. 42.
62.Jump up ^ Jack Tsen-Ta Lee (2007), "Interpreting Bills of Rights: The Value of a Comparative Approach", International Journal of Constitutional Law 5 (1): 122–152 at 126, doi:10.1093/icon/mol042.
63.Jump up ^ Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47, [2005] 1 S.L.R.(R.) 103, C.A. (Singapore), archived from the original on 15 November 2010.
64.Jump up ^ Nguyen Tuong Van, p. 126, para. 88.
65.Jump up ^ Nguyen Tuong Van, p. 128, para. 94. See also Yong Vui Kong v. Public Prosecutor [2010] SGCA 20, [2010] 3 S.L.R. 489 at 529–531, paras. 87–92, C.A. (Singapore).
66.Jump up ^ Nguyen Tuong Van, pp. 127–128, paras. 89–94.
67.Jump up ^ Amnesty International Report 1997 – Singapore, Amnesty International (reproduced on Refworld, United Nations High Commissioner for Refugees), 1 January 1997, retrieved 26 October 2012.
68.Jump up ^ Thio Li-ann (2004), "Pragmatism and Realism Do Not Mean Abdication: A Critical and Empirical Inquiry into Singapore's Engagement with International Human Rights Law", Singapore Year Book of International Law 8: 41–91 at 79, archived from the original (PDF) on 26 October 2012.
69.^ Jump up to: a b Chris Lydgate (11 April 1998), "Fighting faith of stoic witness to repression", The Sydney Morning Herald (reproduced on Chris Lydgate's website), archived from the original on 8 July 2011.
70.Jump up ^ Maintenance of Religious Harmony Act (Cap. 167A, 2001 Rev. Ed.).
71.Jump up ^ Brig.-Gen. Lee Hsien Loong (Minister for Trade and Industry and Second Minister for Defence (Services)), speech during the Second Reading of the Maintenance of Religious Harmony Bill, Singapore Parliamentary Debates, Official Report (23 February 1990), vol. 54, cols. 1181–1182, cited in Chan Hiang Leng Colin, p. 236, para. 66.
72.Jump up ^ Thio, "The Secular Trumps the Sacred", p. 93.
References[edit]
Cases[edit]
Chan Hiang Leng Colin v. Public Prosecutor [1994] ICHRL 26, [1994] SGHC 207, [1994] 3 S.L.R.(R.) [Singapore Law Reports (Reissue)] 209, archived from the original on 26 October 2012, High Court (Singapore).
Nguyen Tuong Van v. Public Prosecutor [2004] SGCA 47, [2005] 1 S.L.R.(R.) 103, Court of Appeal (Singapore), archived from the original on 15 November 2010.
Other works[edit]
Thio, Li-ann (1995), "The Secular Trumps the Sacred: Constitutional Issues Arising from Colin Chan v Public Prosecutor", Singapore Law Review 16: 26–103, archived from the original (PDF) on 21 October 2012.
Further reading[edit]
Tan, Kevin Y[ew] L[ee] (2011), "Fundamental Liberties III: Freedom of Expression • Association • Assembly • Religion", An Introduction to Singapore's Constitution (rev. ed.), Singapore: Talisman Publishing, pp. 186–203 at 197–203, ISBN 978-981-08-6456-9.
Tan, Kevin Y[ew] L[ee]; Thio, Li-ann (2010), "Freedom of Religion", Constitutional Law in Malaysia and Singapore (3rd ed.), Singapore: LexisNexis, pp. 1197–1344, ISBN 978-981-236-795-2.
Thio, Li-ann (2012), "Freedom of Religion", A Treatise on Singapore Constitutional Law, Singapore: Academy Publishing, pp. 869–923, ISBN 978-981-07-1515-1.


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Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village of)

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Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village of)
Supreme Court of Canada
Supreme Court of Canada

Hearing: January 19, 2004
 Judgment: June 30, 2004

Citations
{{{citations}}}
Court Membership
Chief Justice: Beverley McLachlin
Puisne Justices: Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, Louis LeBel, Marie Deschamps, Morris Fish
Reasons given

Majority
McLachlin C.J., joined by Iacobucci, Binnie, Arbour and Fish JJ.
Dissent
LeBel J., joined by Bastarache and Deschamps JJ.
Dissent
Major J.
Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village of), 2004 SCC 48, is a leading Supreme Court of Canada decision in Canadian administrative law. The case applied the Baker framework for analysing the duty of fairness owed by an administrative decision-maker to a zoning request made to a municipality and found that the municipal government owed a duty of procedural fairness to the applicant in the way that it assessed and responded to their rezoning application.


Contents  [hide]
1 Facts
2 Reasons of the court 2.1 The Duty of the Municipality
2.2 Remedy
3 See also
4 Notes
5 External links

Facts[edit]
The Congrégation des témoins de Jéhovah de St-Jérôme-Lafontain ("the congregation") desired to build a place of worship in the village of Lafontaine, Quebec. According to the Act respecting land use planning and development,[1] such a religious establishment must be on land with a "P-3" zoning designation. The congregation was not able to locate any suitable land for sale with such a designation. Consequently, the congregation entered into an agreement to purchase a plot of land with a different zoning, the sale being conditional on the municipality authorizing the re-zoning of the land. The municipality refused the request to re-zone the land after conducting an extensive study and providing detailed reasons for the decision, which primarily related to residential tax rates.[2] The congregation responded to the municipality's decision by finding a different piece of land and again applied for rezoning of that land. The municipality then summarily denied that rezoning application, noting only that P-3 land was available elsewhere. When the congregation was again unable to find suitable land zoned P-3, after a four-year-long search, they applied for a third time to the municipality to rezone a piece of land which they could purchase. The municipality again summarily denied their application without providing reasons. At this point, the congregation turned to the courts to challenge the fairness of the municipality's decision.
Reasons of the court[edit]
The Duty of the Municipality[edit]
In order to determine the duty that the municipality owed to the congregation, the court applied the five-part test from Baker. The court concluded that the municipality owed a duty of fairness to the congregation after assessing the five factors:
1.The nature of the decision and the decision-making process employed by the public organ
2.The nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates
3.The importance of the decision to the individuals affected
4.The legitimate expectations of the party challenging the decision
5.The nature of the deference accorded to the body
Specifically, the court ruled that the content of the duty of procedural fairness owed the congregation was that the municipality was required to carefully evaluate the congregation's applications for a zoning variance and to give reasons for refusing the applications.[3]
Remedy[edit]
The court found that "the Municipality acted in a manner that was arbitrary and straddled the boundary separating good from bad faith."[4] Accordingly, the court set aside the second and third rezoning refusals as they did not comply with the law. The court ordered the municipality to reconsider the congregation's application. The congregation had argued that such as a remedy was inadequate because it argued that the municipality was likely to again refuse the application, though with proper reasons. However, the court rejected this argument because it implies that the congregation was entitled to a particular substantive decision, instead of merely to a fair process. Additionally, the court was unable to conclude on the facts whether or not the municipality was acting in bad faith in denying the congregation's second and third rezoning applications.[5]
See also[edit]
List of Supreme Court of Canada cases
Notes[edit]
1.Jump up ^ http://www.canlii.org/en/qc/laws/stat/rsq-c-a-19.1/latest/rsq-c-a-19.1.html
2.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 19.
3.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 12.
4.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 30.
5.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 33.
External links[edit]
Full decision on LexUM
  


Categories: Canadian administrative case law
Jehovah's Witnesses litigation
Supreme Court of Canada cases
2004 in Canadian case law
Christianity and law in the 21st century
2004 in religion


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Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village of)

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Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village of)
Supreme Court of Canada
Supreme Court of Canada

Hearing: January 19, 2004
 Judgment: June 30, 2004

Citations
{{{citations}}}
Court Membership
Chief Justice: Beverley McLachlin
Puisne Justices: Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie, Louise Arbour, Louis LeBel, Marie Deschamps, Morris Fish
Reasons given

Majority
McLachlin C.J., joined by Iacobucci, Binnie, Arbour and Fish JJ.
Dissent
LeBel J., joined by Bastarache and Deschamps JJ.
Dissent
Major J.
Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village of), 2004 SCC 48, is a leading Supreme Court of Canada decision in Canadian administrative law. The case applied the Baker framework for analysing the duty of fairness owed by an administrative decision-maker to a zoning request made to a municipality and found that the municipal government owed a duty of procedural fairness to the applicant in the way that it assessed and responded to their rezoning application.


Contents  [hide]
1 Facts
2 Reasons of the court 2.1 The Duty of the Municipality
2.2 Remedy
3 See also
4 Notes
5 External links

Facts[edit]
The Congrégation des témoins de Jéhovah de St-Jérôme-Lafontain ("the congregation") desired to build a place of worship in the village of Lafontaine, Quebec. According to the Act respecting land use planning and development,[1] such a religious establishment must be on land with a "P-3" zoning designation. The congregation was not able to locate any suitable land for sale with such a designation. Consequently, the congregation entered into an agreement to purchase a plot of land with a different zoning, the sale being conditional on the municipality authorizing the re-zoning of the land. The municipality refused the request to re-zone the land after conducting an extensive study and providing detailed reasons for the decision, which primarily related to residential tax rates.[2] The congregation responded to the municipality's decision by finding a different piece of land and again applied for rezoning of that land. The municipality then summarily denied that rezoning application, noting only that P-3 land was available elsewhere. When the congregation was again unable to find suitable land zoned P-3, after a four-year-long search, they applied for a third time to the municipality to rezone a piece of land which they could purchase. The municipality again summarily denied their application without providing reasons. At this point, the congregation turned to the courts to challenge the fairness of the municipality's decision.
Reasons of the court[edit]
The Duty of the Municipality[edit]
In order to determine the duty that the municipality owed to the congregation, the court applied the five-part test from Baker. The court concluded that the municipality owed a duty of fairness to the congregation after assessing the five factors:
1.The nature of the decision and the decision-making process employed by the public organ
2.The nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates
3.The importance of the decision to the individuals affected
4.The legitimate expectations of the party challenging the decision
5.The nature of the deference accorded to the body
Specifically, the court ruled that the content of the duty of procedural fairness owed the congregation was that the municipality was required to carefully evaluate the congregation's applications for a zoning variance and to give reasons for refusing the applications.[3]
Remedy[edit]
The court found that "the Municipality acted in a manner that was arbitrary and straddled the boundary separating good from bad faith."[4] Accordingly, the court set aside the second and third rezoning refusals as they did not comply with the law. The court ordered the municipality to reconsider the congregation's application. The congregation had argued that such as a remedy was inadequate because it argued that the municipality was likely to again refuse the application, though with proper reasons. However, the court rejected this argument because it implies that the congregation was entitled to a particular substantive decision, instead of merely to a fair process. Additionally, the court was unable to conclude on the facts whether or not the municipality was acting in bad faith in denying the congregation's second and third rezoning applications.[5]
See also[edit]
List of Supreme Court of Canada cases
Notes[edit]
1.Jump up ^ http://www.canlii.org/en/qc/laws/stat/rsq-c-a-19.1/latest/rsq-c-a-19.1.html
2.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 19.
3.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 12.
4.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 30.
5.Jump up ^ Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, para. 33.
External links[edit]
Full decision on LexUM
  


Categories: Canadian administrative case law
Jehovah's Witnesses litigation
Supreme Court of Canada cases
2004 in Canadian case law
Christianity and law in the 21st century
2004 in religion


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Kokkinakis v. Greece

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Jump to: navigation, search

Kokkinakis v. Greece (application No. 14307/88) is a landmark case of the European Court of Human Rights, decided in 1993 and concerning compatibility of certain sanctions for proselytism with Articles 7 and 9 of the European Convention on Human Rights.


Contents  [hide]
1 Facts
2 Court's judgment
3 References
4 External links

Facts[edit]
The crime of proselytism, according to Greek law, meant in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety. Greek court has later clarified that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited.[1]
Mr. Minos Kokkinakis, a Jehovah's Witness, and his wife, called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her, described by Ms. Kyriakaki as follows: They immediately talked to me about Olof Palme, whether he was a pacifist or not, and other subjects that I can’t remember. They talked to me about things I did not understand very well. It was not a discussion but a constant monologue by them. ... If they had told me they were Jehovah’s Witnesses, I would not have let them in. I don’t recall whether they spoke to me about the Kingdom of Heaven. They stayed in the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don’t know why they told it to me. I could not know at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs... [However,] the discussion did not influence my beliefs. Mrs Kyriakaki’s husband, who was the cantor at a local Orthodox church, informed the police and Mr. Kokkinakis was convicted for proselytism.[2]
Mr. Kokkinakis has appealed to the ECtHR under Articles 7, 9, 10 and 14 of the European Convention on Human Rights.[3]
Court's judgment[edit]
The court held that the measure complained of was prescribed by law and was in pursuit of a legitimate aim under Article 9 of the European Convention on Human Rights, namely the protection of the rights and freedoms of others.[4] However, it has found a violation of Article 9 (by six votes to three), reasoning that the interference with Kokkinakis' freedom of religion was not necessary in a democratic society since: a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others. Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case. The Court notes, however, that in their reasoning the Greek courts established the applicant’s liability by merely reproducing the wording of section 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding. That being so, it has not been shown that the applicant’s conviction was justified in the circumstances of the case by a pressing social need. The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued.[5]
The Court rejected (by eight votes to one) applicant's claim that the provision of Greek law serving as ground for his conviction was not sufficiently precise and clear, violating Article 7.[6]
The Court held unnecessary to examine the case under Article 10 or 14.
Judge Pettiti submitted a partly concurring opinion, considering that the criminal legislation in Greece on proselytism was in itself contrary to Article 9. Judge De Meyer submitted a short concurring opinion.
Judges Foighel and Loizou, jointly, and Judge Valticos filed two dissenting opinions, regarding Article 9 as not violated.
Judge Martens filed a partly dissenting opinion, offering his own rationale for the finding of violation of Article 9 and also considering Article 7 to be violated.
References[edit]
1.Jump up ^ ECtHR judgment, paras. 16-17
2.Jump up ^ ECtHR judgment, paras. 7-12
3.Jump up ^ ECtHR judgment, para. 27
4.Jump up ^ ECtHR judgment, paras. 37-44
5.Jump up ^ ECtHR judgment, paras. 48-49
6.Jump up ^ ECtHR judgment, paras. 51-53
External links[edit]
ECtHR judgment
  


Categories: Article 9 of the European Convention on Human Rights
Article 7 of the European Convention on Human Rights
European Court of Human Rights cases involving Greece
Jehovah's Witnesses litigation
1993 in case law
Religion in Greece
Christianity and law in the 20th century


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Kokkinakis v. Greece

From Wikipedia, the free encyclopedia

Jump to: navigation, search

Kokkinakis v. Greece (application No. 14307/88) is a landmark case of the European Court of Human Rights, decided in 1993 and concerning compatibility of certain sanctions for proselytism with Articles 7 and 9 of the European Convention on Human Rights.


Contents  [hide]
1 Facts
2 Court's judgment
3 References
4 External links

Facts[edit]
The crime of proselytism, according to Greek law, meant in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety. Greek court has later clarified that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited.[1]
Mr. Minos Kokkinakis, a Jehovah's Witness, and his wife, called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her, described by Ms. Kyriakaki as follows: They immediately talked to me about Olof Palme, whether he was a pacifist or not, and other subjects that I can’t remember. They talked to me about things I did not understand very well. It was not a discussion but a constant monologue by them. ... If they had told me they were Jehovah’s Witnesses, I would not have let them in. I don’t recall whether they spoke to me about the Kingdom of Heaven. They stayed in the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don’t know why they told it to me. I could not know at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs... [However,] the discussion did not influence my beliefs. Mrs Kyriakaki’s husband, who was the cantor at a local Orthodox church, informed the police and Mr. Kokkinakis was convicted for proselytism.[2]
Mr. Kokkinakis has appealed to the ECtHR under Articles 7, 9, 10 and 14 of the European Convention on Human Rights.[3]
Court's judgment[edit]
The court held that the measure complained of was prescribed by law and was in pursuit of a legitimate aim under Article 9 of the European Convention on Human Rights, namely the protection of the rights and freedoms of others.[4] However, it has found a violation of Article 9 (by six votes to three), reasoning that the interference with Kokkinakis' freedom of religion was not necessary in a democratic society since: a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others. Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case. The Court notes, however, that in their reasoning the Greek courts established the applicant’s liability by merely reproducing the wording of section 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding. That being so, it has not been shown that the applicant’s conviction was justified in the circumstances of the case by a pressing social need. The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued.[5]
The Court rejected (by eight votes to one) applicant's claim that the provision of Greek law serving as ground for his conviction was not sufficiently precise and clear, violating Article 7.[6]
The Court held unnecessary to examine the case under Article 10 or 14.
Judge Pettiti submitted a partly concurring opinion, considering that the criminal legislation in Greece on proselytism was in itself contrary to Article 9. Judge De Meyer submitted a short concurring opinion.
Judges Foighel and Loizou, jointly, and Judge Valticos filed two dissenting opinions, regarding Article 9 as not violated.
Judge Martens filed a partly dissenting opinion, offering his own rationale for the finding of violation of Article 9 and also considering Article 7 to be violated.
References[edit]
1.Jump up ^ ECtHR judgment, paras. 16-17
2.Jump up ^ ECtHR judgment, paras. 7-12
3.Jump up ^ ECtHR judgment, para. 27
4.Jump up ^ ECtHR judgment, paras. 37-44
5.Jump up ^ ECtHR judgment, paras. 48-49
6.Jump up ^ ECtHR judgment, paras. 51-53
External links[edit]
ECtHR judgment
  


Categories: Article 9 of the European Convention on Human Rights
Article 7 of the European Convention on Human Rights
European Court of Human Rights cases involving Greece
Jehovah's Witnesses litigation
1993 in case law
Religion in Greece
Christianity and law in the 20th century


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 http://en.wikipedia.org/wiki/Kokkinakis_v._Greece








R v Blaue

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 This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (February 2014)

R v Blaue

Court
Court of Appeal
Decided
9 July 1975
Citation(s)
[1975] 1 WLR 1411; [1975] 3 All ER 446; (1975) 61 Cr App R 271; [1975] Crim LR 648; (1975) 119 SJ 589
Keywords
Novus actus interveniens; causation; blood transfusion
R v Blaue (1975) 61 Cr App R 271 is an English criminal law case in which the Court of Appeal decided that the refusal of a Jehovah's Witness to accept a blood transfusion after being stabbed did not constitute a novus actus interveniens for the purposes of legal causation.
Facts[edit]
The defendant entered the home of an 18 year old woman and asked for sex. When she declined his advances, he stabbed her four times; the wound penetrated her lung which necessitated both a blood transfusion and surgery in order to save her life. After refusing treatment because of her religious beliefs (as a Jehovah's Witness) she died. Medical evidence showed that she would not have died if she had received treatment. In his final speech to the jury, counsel for the Crown accepted that the girl’s refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the defendant was suffering from diminished responsibility. The defence argued that the victim’s refusal to accept medical treatment broke the chain of causation between the stabbing and her death.
Judgment[edit]
Lawton LJ ruled that, as a matter of public policy, those "who use violence on others must take their victims as they find them.", invoking the thin-skull rule.
See also[edit]
English criminal law
Flag of United KingdomJustice icon This article relating to law in the United Kingdom, or its constituent jurisdictions, is a stub. You can help Wikipedia by expanding it.




Stub icon This crime-related article is a stub. You can help Wikipedia by expanding it.




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Categories: English criminal case law
1975 in England
1975 in case law
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 http://en.wikipedia.org/wiki/R_v_Blaue








R v Blaue

From Wikipedia, the free encyclopedia

Jump to: navigation, search



 This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (February 2014)

R v Blaue

Court
Court of Appeal
Decided
9 July 1975
Citation(s)
[1975] 1 WLR 1411; [1975] 3 All ER 446; (1975) 61 Cr App R 271; [1975] Crim LR 648; (1975) 119 SJ 589
Keywords
Novus actus interveniens; causation; blood transfusion
R v Blaue (1975) 61 Cr App R 271 is an English criminal law case in which the Court of Appeal decided that the refusal of a Jehovah's Witness to accept a blood transfusion after being stabbed did not constitute a novus actus interveniens for the purposes of legal causation.
Facts[edit]
The defendant entered the home of an 18 year old woman and asked for sex. When she declined his advances, he stabbed her four times; the wound penetrated her lung which necessitated both a blood transfusion and surgery in order to save her life. After refusing treatment because of her religious beliefs (as a Jehovah's Witness) she died. Medical evidence showed that she would not have died if she had received treatment. In his final speech to the jury, counsel for the Crown accepted that the girl’s refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the defendant was suffering from diminished responsibility. The defence argued that the victim’s refusal to accept medical treatment broke the chain of causation between the stabbing and her death.
Judgment[edit]
Lawton LJ ruled that, as a matter of public policy, those "who use violence on others must take their victims as they find them.", invoking the thin-skull rule.
See also[edit]
English criminal law
Flag of United KingdomJustice icon This article relating to law in the United Kingdom, or its constituent jurisdictions, is a stub. You can help Wikipedia by expanding it.




Stub icon This crime-related article is a stub. You can help Wikipedia by expanding it.




Stub icon This Jehovah's Witnesses-related article is a stub. You can help Wikipedia by expanding it.




  


Categories: English criminal case law
1975 in England
1975 in case law
Court of Appeal of England and Wales cases
Jehovah's Witnesses litigation
1975 in British law
Christianity and law in the 20th century
United Kingdom law stubs
Crime stubs
Jehovah's Witnesses stubs








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 http://en.wikipedia.org/wiki/R_v_Blaue








Roncarelli v Duplessis

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 This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (January 2015)

Roncarelli v Duplessis
Supreme Court of Canada
Supreme Court of Canada

Hearing: June 2–6, 1958
 Judgment: January 27, 1959

Full case name
Frank Roncarelli v The Honourable Maurice Duplessis
Citations
[1959] S.C.R. 121
Ruling
Trial judge correct, amount awarded at trial increased by $25,000.
Court Membership
Chief Justice: Patrick Kerwin
Puisne Justices: Robert Taschereau, Ivan Rand, Charles Holland Locke, John Robert Cartwright, Gerald Fauteux, Douglas Abbott, Ronald Martland, Wilfred Judson
Reasons given

Majority
Martland J., joined by Locke J.
Concurrence
Kerwin C.J.
Concurrence
Rand J., joined by Judson J.
Concurrence
Abbott J.
Dissent
Taschereau J.
Dissent
Cartwright J.
Dissent
Fauteux J.
Roncarelli v Duplessis, [1959] S.C.R. 121, was a landmark constitutional decision of the Supreme Court of Canada where the Court held that Maurice Duplessis, the premier of Quebec, had overstepped his authority by revoking the liquor license of one of Jehovah's Witnesses. Justice Rand wrote in his often-quoted reasons that the unwritten constitutional principle of the "rule of law" meant no public official was above the law, that is, they could neither suspend it or dispense it. Although Premier Duplessis had authority under the relevant legislation, his decision was not based on any factors related to the operation of the licence, but was made for unrelated reasons, and was therefore held to be exercised arbitrarily and without good faith.[1]


Contents  [hide]
1 Background
2 Decision of the Court
3 Dissent
4 See also
5 References
6 External links

Background[edit]
Frank Roncarelli was one of Jehovah's Witnesses and a restaurant owner in Montreal. He used his wealth to provide bail security for members who had been arrested by the municipal government.
At the time, tension and unprovoked violence by the dominant Roman Catholic community against Jehovah's Witnesses saw increasing arrests of Jehovah's Witnesses for distributing their magazines without the necessary permits under a city by-law which was later determined to be unconstitutional in Saumur v. The City of Quebec.
Roncarelli furnished bail for 375 of Jehovah's Witnesses in three years, many of whom were arrested multiple times.
The Chief Prosecutor of the city, Oscar Gagnon, overwhelmed by the number of Witnesses being arrested and then set free by Roncarelli's intervention, contacted the Premier who spoke to Edouard Archambault, Chairman of the Quebec Liquor Commission. Roncarelli's liquor licence was subsequently revoked. Extensive testimony showed the government actors believed Roncarelli was disrupting the court system, causing civil disorder, and was therefore not entitled to the liquor licence. Roncarelli was told that he was barred from holding a liquor licence and that the action was a warning that others would similarly be stripped of provincial "privileges" if they persisted in their activities related to the Witnesses.
Roncarelli received news of the revocation in December 1946, and while he tried to keep his business open without the licence, it was not profitable and he put it up for sale within six months. Consequently, he brought an action against Duplessis for $90,000 in damages.
At trial, the Québec Court of Queen's Bench found in favour of Roncarelli, however it was overturned on appeal.
Decision of the Court[edit]
In a 6-to-3 decision, the Supreme Court of Canada reinstated the trial decision, holding that Duplessis wrongfully caused the revocation of Roncarelli's liquor licence.
The six judges who sided with Roncarelli used different legal reasoning to reach their decision. Three judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier; two judges stated that although Duplessis had the power to order the cancellation, he had done so in bad faith; and the sixth judge concluded the premier was not entitled to immunity as a public official.
Roncarelli was awarded $33,123.53 in damages, a fraction of his claim, plus costs in the Court of Queen's Bench and the Supreme Court of Canada. Roncarelli's son, however, maintained that it was a significant moral victory in his father's struggle against the system.
Roncarelli's legal counsel throughout were A.L. Stein and Professor Frank Scott.
Dissent[edit]
Cartwright wrote a dissenting judgement which argued that it was within the power of the commission to refuse to grant Roncarelli a permit, as the act only fettered the commission by delineating circumstances under which the granting of a permit was forbidden and circumstances in which the cancellation of a permit was mandatory. Cartwright argued that as this was an administrative tribunal, and not a judicial one, it was "a law unto itself" and did not need to base its decision on anything more than policy and expediency. Cartwright went on to argue that even if the commission were to be considered quasi-judicial, in which case procedural fairness guarantees would apply, that still would not entitle the plaintiff to monetary damages.
See also[edit]
List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
References[edit]
1.Jump up ^ Sarah Blake, Administrative Law in Canada, 5th edition, pages 99 - 100.
External links[edit]
full text of decision from canlii.org
text of decision
CBC Archives: The Roncarelli Affair
  


Categories: Canadian constitutional case law
Canadian civil rights case law
Supreme Court of Canada cases
Jehovah's Witnesses litigation
1959 in Canadian case law
Canadian freedom of religion case law
Anti-discrimination law in Canada
Christianity and law in the 20th century





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 http://en.wikipedia.org/wiki/Roncarelli_v_Duplessis








Roncarelli v Duplessis

From Wikipedia, the free encyclopedia

Jump to: navigation, search



 This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (January 2015)

Roncarelli v Duplessis
Supreme Court of Canada
Supreme Court of Canada

Hearing: June 2–6, 1958
 Judgment: January 27, 1959

Full case name
Frank Roncarelli v The Honourable Maurice Duplessis
Citations
[1959] S.C.R. 121
Ruling
Trial judge correct, amount awarded at trial increased by $25,000.
Court Membership
Chief Justice: Patrick Kerwin
Puisne Justices: Robert Taschereau, Ivan Rand, Charles Holland Locke, John Robert Cartwright, Gerald Fauteux, Douglas Abbott, Ronald Martland, Wilfred Judson
Reasons given

Majority
Martland J., joined by Locke J.
Concurrence
Kerwin C.J.
Concurrence
Rand J., joined by Judson J.
Concurrence
Abbott J.
Dissent
Taschereau J.
Dissent
Cartwright J.
Dissent
Fauteux J.
Roncarelli v Duplessis, [1959] S.C.R. 121, was a landmark constitutional decision of the Supreme Court of Canada where the Court held that Maurice Duplessis, the premier of Quebec, had overstepped his authority by revoking the liquor license of one of Jehovah's Witnesses. Justice Rand wrote in his often-quoted reasons that the unwritten constitutional principle of the "rule of law" meant no public official was above the law, that is, they could neither suspend it or dispense it. Although Premier Duplessis had authority under the relevant legislation, his decision was not based on any factors related to the operation of the licence, but was made for unrelated reasons, and was therefore held to be exercised arbitrarily and without good faith.[1]


Contents  [hide]
1 Background
2 Decision of the Court
3 Dissent
4 See also
5 References
6 External links

Background[edit]
Frank Roncarelli was one of Jehovah's Witnesses and a restaurant owner in Montreal. He used his wealth to provide bail security for members who had been arrested by the municipal government.
At the time, tension and unprovoked violence by the dominant Roman Catholic community against Jehovah's Witnesses saw increasing arrests of Jehovah's Witnesses for distributing their magazines without the necessary permits under a city by-law which was later determined to be unconstitutional in Saumur v. The City of Quebec.
Roncarelli furnished bail for 375 of Jehovah's Witnesses in three years, many of whom were arrested multiple times.
The Chief Prosecutor of the city, Oscar Gagnon, overwhelmed by the number of Witnesses being arrested and then set free by Roncarelli's intervention, contacted the Premier who spoke to Edouard Archambault, Chairman of the Quebec Liquor Commission. Roncarelli's liquor licence was subsequently revoked. Extensive testimony showed the government actors believed Roncarelli was disrupting the court system, causing civil disorder, and was therefore not entitled to the liquor licence. Roncarelli was told that he was barred from holding a liquor licence and that the action was a warning that others would similarly be stripped of provincial "privileges" if they persisted in their activities related to the Witnesses.
Roncarelli received news of the revocation in December 1946, and while he tried to keep his business open without the licence, it was not profitable and he put it up for sale within six months. Consequently, he brought an action against Duplessis for $90,000 in damages.
At trial, the Québec Court of Queen's Bench found in favour of Roncarelli, however it was overturned on appeal.
Decision of the Court[edit]
In a 6-to-3 decision, the Supreme Court of Canada reinstated the trial decision, holding that Duplessis wrongfully caused the revocation of Roncarelli's liquor licence.
The six judges who sided with Roncarelli used different legal reasoning to reach their decision. Three judges wrote that Duplessis had ordered the cancellation which was outside his authority as premier; two judges stated that although Duplessis had the power to order the cancellation, he had done so in bad faith; and the sixth judge concluded the premier was not entitled to immunity as a public official.
Roncarelli was awarded $33,123.53 in damages, a fraction of his claim, plus costs in the Court of Queen's Bench and the Supreme Court of Canada. Roncarelli's son, however, maintained that it was a significant moral victory in his father's struggle against the system.
Roncarelli's legal counsel throughout were A.L. Stein and Professor Frank Scott.
Dissent[edit]
Cartwright wrote a dissenting judgement which argued that it was within the power of the commission to refuse to grant Roncarelli a permit, as the act only fettered the commission by delineating circumstances under which the granting of a permit was forbidden and circumstances in which the cancellation of a permit was mandatory. Cartwright argued that as this was an administrative tribunal, and not a judicial one, it was "a law unto itself" and did not need to base its decision on anything more than policy and expediency. Cartwright went on to argue that even if the commission were to be considered quasi-judicial, in which case procedural fairness guarantees would apply, that still would not entitle the plaintiff to monetary damages.
See also[edit]
List of Supreme Court of Canada cases (Richards Court through Fauteux Court)
References[edit]
1.Jump up ^ Sarah Blake, Administrative Law in Canada, 5th edition, pages 99 - 100.
External links[edit]
full text of decision from canlii.org
text of decision
CBC Archives: The Roncarelli Affair
  


Categories: Canadian constitutional case law
Canadian civil rights case law
Supreme Court of Canada cases
Jehovah's Witnesses litigation
1959 in Canadian case law
Canadian freedom of religion case law
Anti-discrimination law in Canada
Christianity and law in the 20th century





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This page was last modified on 13 March 2015, at 00:12.
Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.
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 http://en.wikipedia.org/wiki/Roncarelli_v_Duplessis








Saumur v Quebec (City of)

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Jump to: navigation, search


Saumur v Quebec (City of)
Supreme Court of Canada
Supreme Court of Canada

Hearing: December 9–12, 15-17, 1952
 Judgment: October 6, 1953

Full case name
Laurier Saumur v The City of Quebec
Citations
[1953] 2 S.C.R. 299
Ruling
Saumur appeal allowed
Court Membership

Reasons given

Majority
Kerwin J.
Concurrence
Rand J.
Concurrence
Kellock J.
Concurrence
Estey J.
Concurrence
Locke J.
Dissent
Rinfret C.J., joined by Taschereau J.
Dissent
Cartwright J., joined by Fauteux J.
Saumur v Quebec (City of) [1953] 2 S.C.R. 299 is a famous constitutional decision of the Supreme Court of Canada which struck down a municipal by-law prohibiting the distribution of literature to the public.
Laurier Saumur (6 Feb. 1921 - 22 Mar. 2007) was born and raised Catholic, but grew disillusioned as a youth and studied the teachings of the Jehovah's Witnesses. He was baptized as a Witness in 1944 and soon began to work as a door-to-door missionary for the Witnesses, first in Montreal and then in Quebec City. At the time, police harassment of Witnesses was widespread in Quebec, and Mr. Saumur had been arrested 103 times for distribution of Witness literature when he decided to challenge the legal basis for the arrests.
A group of Jehovah's Witnesses, along with Saumur, challenged a Quebec City municipal by-law that prohibited the distribution of literature in the street without the proper authorization of the city's Chief of Police on the basis that it was outside of the municipality's jurisdiction and that it had the effect of religious and political censorship. The case reached the Supreme Court in 1953.
In a 5 to 4 decision, the Court held that the subject matter of the law was in relation to "speech" or "religion" which were both in the exclusive legislative jurisdiction of the federal government. The majority noted that the law had the effect that the chief of police would act in the role of a censor, deciding whether certain literature was objectionable. The result, they observed, would be that unpopular groups such as the Jehovah's Witnesses would be censored.
The dissent focused on the purpose of the law, observing that it was intended to protect the public and keep the streets clean. They found no basis for Saumur's claim that it prevented the Jehovah's Witnesses from their religious practice.
This decision was subsequently used to dismiss more than 1000 cases against Witnesses in the Province of Quebec. It was one of a series of cases the Supreme Court dealt with concerning the rights of Jehovah's Witnesses under the Duplessis government of Quebec. Previous to this there was the case of R. v. Boucher [1951] S.C.R. 265 according to which mere criticism of the government does not constitute seditious libel. Subsequent to Saumur was the case of Roncarelli v. Duplessis [1959] S.C.R. 121 which punished Duplessis for revoking a Jehovah's Witness liquor license.
External links[edit]
Full text of decision from canlii.org
Obituary of Laurier Saumur, Toronto Globe and Mail 5 May 2007
  


Categories: Canadian constitutional case law
Canadian freedom of expression case law
Supreme Court of Canada cases
1953 in Canadian case law
Jehovah's Witnesses litigation
Religion in Canada
History of Quebec City
Christianity and law in the 20th century


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 http://en.wikipedia.org/wiki/Saumur_v_Quebec_(City_of)








Saumur v Quebec (City of)

From Wikipedia, the free encyclopedia

Jump to: navigation, search


Saumur v Quebec (City of)
Supreme Court of Canada
Supreme Court of Canada

Hearing: December 9–12, 15-17, 1952
 Judgment: October 6, 1953

Full case name
Laurier Saumur v The City of Quebec
Citations
[1953] 2 S.C.R. 299
Ruling
Saumur appeal allowed
Court Membership

Reasons given

Majority
Kerwin J.
Concurrence
Rand J.
Concurrence
Kellock J.
Concurrence
Estey J.
Concurrence
Locke J.
Dissent
Rinfret C.J., joined by Taschereau J.
Dissent
Cartwright J., joined by Fauteux J.
Saumur v Quebec (City of) [1953] 2 S.C.R. 299 is a famous constitutional decision of the Supreme Court of Canada which struck down a municipal by-law prohibiting the distribution of literature to the public.
Laurier Saumur (6 Feb. 1921 - 22 Mar. 2007) was born and raised Catholic, but grew disillusioned as a youth and studied the teachings of the Jehovah's Witnesses. He was baptized as a Witness in 1944 and soon began to work as a door-to-door missionary for the Witnesses, first in Montreal and then in Quebec City. At the time, police harassment of Witnesses was widespread in Quebec, and Mr. Saumur had been arrested 103 times for distribution of Witness literature when he decided to challenge the legal basis for the arrests.
A group of Jehovah's Witnesses, along with Saumur, challenged a Quebec City municipal by-law that prohibited the distribution of literature in the street without the proper authorization of the city's Chief of Police on the basis that it was outside of the municipality's jurisdiction and that it had the effect of religious and political censorship. The case reached the Supreme Court in 1953.
In a 5 to 4 decision, the Court held that the subject matter of the law was in relation to "speech" or "religion" which were both in the exclusive legislative jurisdiction of the federal government. The majority noted that the law had the effect that the chief of police would act in the role of a censor, deciding whether certain literature was objectionable. The result, they observed, would be that unpopular groups such as the Jehovah's Witnesses would be censored.
The dissent focused on the purpose of the law, observing that it was intended to protect the public and keep the streets clean. They found no basis for Saumur's claim that it prevented the Jehovah's Witnesses from their religious practice.
This decision was subsequently used to dismiss more than 1000 cases against Witnesses in the Province of Quebec. It was one of a series of cases the Supreme Court dealt with concerning the rights of Jehovah's Witnesses under the Duplessis government of Quebec. Previous to this there was the case of R. v. Boucher [1951] S.C.R. 265 according to which mere criticism of the government does not constitute seditious libel. Subsequent to Saumur was the case of Roncarelli v. Duplessis [1959] S.C.R. 121 which punished Duplessis for revoking a Jehovah's Witness liquor license.
External links[edit]
Full text of decision from canlii.org
Obituary of Laurier Saumur, Toronto Globe and Mail 5 May 2007
  


Categories: Canadian constitutional case law
Canadian freedom of expression case law
Supreme Court of Canada cases
1953 in Canadian case law
Jehovah's Witnesses litigation
Religion in Canada
History of Quebec City
Christianity and law in the 20th century


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This page was last modified on 13 March 2015, at 00:12.
Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.
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 http://en.wikipedia.org/wiki/Saumur_v_Quebec_(City_of)