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Article 15 of the Constitution of the Republic of Singapore guarantees
freedom of religion
Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
in
Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, borde ...
. Specifically, Article 15(1) states: "Every person has the right to profess and practise his religion and to propagate it."
The terms ''profess'', ''practise'' and ''propagate'' are not defined in the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
, but cases from Singapore and other jurisdictions may shed light on their meaning. The word ''profess'' in relation to a religion was defined in a 1964 Singapore case not involving the Constitution as meaning "to affirm, or declare one's faith in or allegiance to". A 2001 Malaysian decision suggested that the profession of religion does not encompass the renunciation of a religion or the profession of an irreligious viewpoint. As regards the word ''propagate'', in 1977 the
Supreme Court of India
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
held that it confers on an individual the right to transmit or spread his or her religion by an exposition of its tenets, but not the right to
convert
Conversion or convert may refer to:
Arts, entertainment, and media
* "Conversion" (''Doctor Who'' audio), an episode of the audio drama ''Cyberman''
* "Conversion" (''Stargate Atlantis''), an episode of the television series
* "The Conversion" ...
another person who holds a pre-existing religious belief to one's own religion. These issues have not yet come before the
Singapore courts for determination. On the other hand, in 1999 the
Court of Appeal attempted to draw a line between religious practices and secular facts, taking the view that singing the
National Anthem
A national anthem is a patriotic musical composition symbolizing and evoking eulogies of the history and traditions of a country or nation. The majority of national anthems are marches or hymns in style. American, Central Asian, and European n ...
and saying the
National Pledge were the latter. Thus, rules that compelled a teacher to engage in these activities in an educational institution could not be regarded as having infringed his right to practise his religion.
Freedom of religion under Article 15(1) is not absolute as it is qualified by Article 15(4) of the Constitution, which provides that the rights secured by Article 15 do not authorize any act contrary to any general law relating to public order, public health or morality. These limitations upon the freedom of religion are an important aspect of Singapore's
secularism
Secularism is the principle of seeking to conduct human affairs based on Secularity, secular, Naturalism (philosophy), naturalistic considerations.
Secularism is most commonly defined as the Separation of church and state, separation of relig ...
. The Singapore courts have interpreted the term ''public order'' to be equivalent to the concepts of "public peace, welfare and good order" referred to in section 24(1)(a) of the , rather than taking the narrower view that public order means freedom from unlawful physical violence. There has also been academic criticism of the fact that the courts have not applied any form of balancing test to determine whether freedom of religion has been reasonably restricted. On the contrary, where
national security
National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
is said to be involved, the courts have deferred to the
Government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
as to the necessity for the restrictive legislation. The terms ''public health'' and ''morality'' in Article 15(4) have yet to be judicially interpreted.
Text of Article 15
Article 15 of the
Constitution of the Republic of Singapore is entitled "Freedom of religion" and reads as follows:
In ''
Nappalli Peter Williams v. Institute of Technical Education'' (1999),
['' Nappalli Peter Williams v. Institute of Technical Education'' ]999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Books
* ''999'' (anthology) or ''999: T ...
2 S.L.R.(R.) 'Singapore Law Reports (Reissue)''529, Court of Appeal (Singapore). the
Court of Appeal affirmed that the Constitution generally adopts what is known as accommodative secularism by "removing restrictions to one's choice of religious belief".
Article 15(1) is ''
in pari materia'' with Article 11(1) of the
Constitution of Malaysia
The Federal Constitution of Malaysia ( ms, Perlembagaan
Persekutuan Malaysia) which was promulgated on 16 September 1963, is the supreme law of Malaysia and contains a total of 183 articles. It is a written legal document which was preceded ...
, from which it was adopted following
Singapore's independence from Malaysia in 1965. The latter states: "Every person has the right to profess and practice his religion and, subject to clause (4), to propagate it." Article 15(1) also contains similarities to Article 25(1) of the
Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
: "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion."
Meaning of ''profess'', ''practise'' and ''propagate''
''Profess''
The word ''profess'' in Article 15(1) is not defined in the Constitution, but the case ''Re Mohamed Said Nabi, deceased'' (1964) may provide guidance. The issue in the case was the meaning of the word ''Muslim'' in the Muslims Ordinance 1957 which was defined as "a person who professes the religion of Islam".
[''Mohamed Said Nabi'', para. 8.] The
High Court held that to come within the definition, one must be shown to be an orthodox Muslim and must have outwardly manifested and practiced Islam; merely having been born into that religion was insufficient.
More specifically, Justice F.A. Chua referred to the ''
Shorter Oxford English Dictionary
The ''Shorter Oxford English Dictionary'' (''SOED'') is an English language dictionary published by the Oxford University Press. The SOED is a two-volume abridgement of the twenty-volume ''Oxford English Dictionary'' (''OED'').
Print editions ...
'' and noted that the word ''profess'' means "to affirm, or declare one's faith in or allegiance to (a religion, principle, God or Saint etc.)".
However, to determine if one has in fact "professed" a religion, a proper scrutiny of the entire circumstances is necessary. On the facts, the deceased was brought up as a Muslim, married under Muslim rites, and had held Muslim religious ceremonies in his house which he had taken part in. This was strong evidence that he professed the religion of Islam, despite the fact that he had also engaged in the heterodox practices of drinking alcohol and eating pork. The judge held that such practices did not amount to a renunciation of the religion, and added that someone who had been born into the religion must be held to be a member of that religion unless it is proved he has adopted some other religion.
The Malaysian interpretation of the term ''profess'' in Article 11(1) of the Malaysian Constitution may be relevant as that provision is worded similarly to Article 15(1) of the Singapore Constitution. In ''Daud bin Mamat v. Majlis Agama Islam'' (2001), it was held that the act of exiting one's religion does not fall under the meaning of professing and practising one's religion. In the judge's view, "to accept that professing no religion equated to 'a religion' or the 'right to profess and practice it' would stretch the definition in Article 11 too far". On the other hand, it might be argued that the freedom to renounce one's religion or to profess not to have a religion is a corollary of the freedom to profess a religion. This issue has not yet come before the
Singapore courts for determination.
''Practise''
The Constitution is also silent on what constitutes practising a religion for the purposes of Article 15(1). The local courts have defined the word ''practise'' by indicating what types of acts are not considered religious practices. In ''Nappalli'',
[ the Court of Appeal held that singing of the ]National Anthem
A national anthem is a patriotic musical composition symbolizing and evoking eulogies of the history and traditions of a country or nation. The majority of national anthems are marches or hymns in style. American, Central Asian, and European n ...
and reciting the National Pledge were not religious practices but rather expressions of national patriotism, which were secular acts. The Canadian case ''Donald v. The Board of Education for the City of Hamilton'' (1945) was distinguished
The ruling made by the judge or panel of judges must be based on the evidence at hand and the standard binding precedents covering the subject-matter (they must be ''followed'').
Definition
In law, to distinguish a case means a court decides th ...
; in that case, singing the national anthem
A national anthem is a patriotic musical composition symbolizing and evoking eulogies of the history and traditions of a country or nation. The majority of national anthems are marches or hymns in style. American, Central Asian, and European n ...
was held to constitute a religious practice because the anthem contained a prayer hymn which "unquestionably reflected some religious character".
In ''Nappalli'', the appellant was dismissed from an educational institution for his refusal to participate in the aforementioned acts. Central to his claim was the submission that these acts were religious practices that went against his belief as a Jehovah's Witness
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The group reports a worldwide membership of approximately 8.7 million adherents involved in ...
and thus infringed his constitutional right to practice and profess his religion guaranteed by Article 15. However, the Court held that since "religion" in Singapore under the Constitution is restricted to "a citizen's faith in a personal God" and does not include "a system of belief in one's own country", the acts in question were not religious practices. Hence, the appellant's rights had not been contravened. The Court took the view that "the appellant's interpretation of the pledge and anthem ceremony as a religious ceremony was a distortion of secular fact into religious belief". If the appellant's interpretation was correct, this would result in Article 15(1) losing operative effect, for " w can the same Constitution guarantee religious freedom if, by asking citizens to pledge their allegiance to country, it is (as the appellant suggests) coercing participation in a religious ceremony? This excruciatingly absurd interpretation cannot have been what was envisaged by the authors of the Constitution."
The courts in Malaysia have taken a similar approach in defining the meaning of religious practice under Article 11 of the Malaysian Constitution. Furthermore, they have also consulted religious texts to determine what type of acts might constitute religious practices. In ''Halimatussaadiah v. Public Service Commission, Malaysia'' (1992), the appellant claimed she had been wrongfully dismissed from her employment due to her refusal to comply with employment conditions that prohibited any attire that covered a female public servant's face while on duty. According to the appellant, this contravened her right to religious practice on grounds that the wearing of the ''purdah
Pardah or purdah (from Hindi-Urdu , , meaning "curtain") is a religious and social practice of female seclusion prevalent among some Muslim and Hindu communities. It takes two forms: physical segregation of the sexes and the requirement that wom ...
'' was part of her religious practice as a Muslim. However, the court disagreed and held that the ''purdah'' was not considered a religious practice as it was not a requirement under Islam since there was no express mention of such a requirement in the Quran
The Quran (, ; Standard Arabic: , Classical Arabic, Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation in Islam, revelation from God in Islam, ...
.
However, in the Philippines, the courts have accorded the individual autonomy to decide what constitutes religious practice. It is up to the individual to decide what constitutes religious practice so long as such acts do not offend public interest. This was the view proffered in ''Ebralinag v. Superintendent of Schools of Cebu'' (1993),[''Ebralinag v. Superintendent of Schools of Cebu']
[1993] 219 S.C.R.A. 256
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
(Philippines), archived fro
the original
on 27 May 2011. in which the issue was whether the petitioners, who were Jehovah's Witnesses, ought to be expelled from schools for refusing to salute the flag
A flag is a piece of fabric (most often rectangular or quadrilateral) with a distinctive design and colours. It is used as a symbol, a signalling device, or for decoration. The term ''flag'' is also used to refer to the graphic design empl ...
, sing the national anthem
A national anthem is a patriotic musical composition symbolizing and evoking eulogies of the history and traditions of a country or nation. The majority of national anthems are marches or hymns in style. American, Central Asian, and European n ...
and recite the oath of allegiance as required by the Republic Act No. 1265 of 11 July 1955 and other legislation. Cruz J. held that the state could not interpret the Bible for the petitioners as "only they can read it as they see fit. Right or wrong, the meaning they derive from it cannot be revised or reversed except perhaps by their own acknowledged superiors. But certainly not the State. It has no competence in this matter."[
]
''Propagate''
Singapore courts have not yet interpreted the word ''propagate'' in Article 15(1) of the Constitution.
Article 25(1) of the Indian Constitution, which is in the same terms as in Article 15(1) of the Singapore Constitution, guarantees to individuals the right to freely "profess, practise and propagate" their religions. The term ''propagate'' was considered by the Supreme Court of India
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
in '' Stanislaus v. State of Madhya Pradesh'' (1977). The Court adopted a dictionary definition of ''propagate'', which was "to transmit or spread from person to person or from place to place". Accordingly, it held that the word as used in Article 25(1) confers on an individual the right to transmit or spread one's religion by an exposition of its tenets. In other words, an individual has the right to spread his or her religion by explaining to others the principles and beliefs underlying that particular religion. However, in the Court's opinion Article 25(1) does not confer the right to convert
Conversion or convert may refer to:
Arts, entertainment, and media
* "Conversion" (''Doctor Who'' audio), an episode of the audio drama ''Cyberman''
* "Conversion" (''Stargate Atlantis''), an episode of the television series
* "The Conversion" ...
another person who holds a pre-existing religious belief to one's own religion as this would impinge on the "freedom of conscience
Freedom of thought (also called freedom of conscience) is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints.
Overview
Every person attempts to have a cognitive proficiency by ...
" provided for in the Article, which accords each individual with the freedom to hold or consider a thought, fact or viewpoint independent from those of others. In short, the constitutional right to propagate one's own religion is protected insofar as an individual who exercises this right respects the freedom of persons following other religions. The Indian jurist Hormasji Maneckji Seervai
Hormasji "Homi" Maneckji Seervai (1906–1996) was an Indian jurist, lawyer and writer. He is also considered to be a renowned Constitutional expert, and his works are cited popularly in various Indian cases as well as journals.
Early life ...
has criticized ''Stanislaus'' and has said it should be overruled. He argued that when a person propagates his religion to another, that act does not violate the other person's free conscience but allows that person an opportunity to freely choose a religion:
Restrictions on the freedom of religion
Under Article 15(4) of the Constitution, a person's freedom of religion
Freedom of religion or religious liberty is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom ...
can be restricted by a general law relating to public order, public health or morality. The term ''general law'' is not defined in the Constitution, but may refer to a law that applies to all persons or places belonging to a particular class.
The restrictions on freedom of religion are an important reflection of Singapore's secularism
Secularism is the principle of seeking to conduct human affairs based on Secularity, secular, Naturalism (philosophy), naturalistic considerations.
Secularism is most commonly defined as the Separation of church and state, separation of relig ...
. Although the Constitution does not express the doctrine of secularism explicitly, the report of the 1966 Constitutional Commission described Singapore as a "democratic secular state".[.] Singapore's secularism is similar to France's secularism in that both models seek to "protect the state from religion". However, unlike in Singapore, the principle of secularism in France
(; 'secularism') is the constitutional principle of secularism in France. Article 1 of the French Constitution is commonly interpreted as discouraging religious involvement in government affairs, especially religious influence in the determina ...
is constitutionally expressed. In being secular, the Government of Singapore
The Government of Singapore is defined by the Constitution of Singapore to mean the executive branch of the state, which is made up of the president and the Cabinet. Although the president acts in their personal discretion in the exercise ...
does not reject religion. Instead, it has been said to practise "accommodative secularism".
The Government's adherence to secularism has been criticized in that the unwritten principle of secularism has trumped the constitutional protection of freedom of religion.[Thio, "The Secular Trumps the Sacred".] For instance, in 2002 a controversy arose upon the suspension of four Muslim girls from school when their parents insisted that they wear the ''tudung
The tudong ( Indonesian: ''tudung'', Jawi: تودوڠ) is a style of headscarf, worn as interpretation of the Islamic hijab, prevalent amongst many Muslim women in the Malay-speaking world; Indonesia, Brunei, Malaysia, and Singapore. Today, the ...
'' (Islamic headscarf) to national schools. Section 61 of the Education Act empowers the Minister for Education to regulate schools, including prohibiting students from wearing anything not forming part of an official school uniform. The parents of the schoolgirls took the view that the Ministry of Education's school uniform policy was unconstitutional as it violated the girls' freedom of religion under Article 15(1). While the parents eventually did not pursue legal proceedings against the Ministry, the controversy showed the Singapore Government's steadfastness in insisting on secularism and the difficulties in reconciling secularism and freedom of religion in Singapore.
Meaning of ''public order'', ''public health'' and ''morality''
''Public order''
The term ''public order'' is not defined in the Constitution but has been judicially deliberated in a series of important legal cases involving the Singapore Congregation of Jehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The group reports a worldwide membership of approximately 8.7 million adherents involved in ...
.
In '' Chan Hiang Leng Colin v. Public Prosecutor'' (1994), the Minister of Home Affairs
An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...
had deregistered the Jehovah's Witnesses by Order No. 179/1972 made pursuant to section 24(1)(a) of the Societies Act. This provision allows for the dissolution of registered organizations considered to be threats to public peace, welfare or good order. The Minister had also made Order No. 123/1972 and Order No. 405/1994 pursuant to section 3(1) of the Undesirable Publications Act, prohibiting publications by the Watch Tower Bible and Tract Society
The Watch Tower Bible and Tract Society of Pennsylvania is a non-stock, not-for-profit organization headquartered in Warwick, New York. It is the main legal entity used worldwide by Jehovah's Witnesses to direct, administer and disseminate do ...
relating to the Jehovah's Witnesses. The appellants were convicted in a district court for possession of prohibited publications. They appealed and sought to challenge the constitutionality of the Minister's prohibition order and the deregistration of the Jehovah's Witnesses, arguing that their right to freedom of religion guaranteed by Article 15(1) of the Constitution had been infringed.
Counsel for the appellants submitted that the Jehovah's Witnesses in Singapore were a small, non-violent group and that there was no evidence their activities were against public order in any manner. He relied on the Malaysian case ''Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia'' (1976), which considered the meaning of ''public order'' in the context of section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (Malaysia):
Chief Justice Yong Pung How
Yong Pung How (11 April 1926 – 9 January 2020) was a Malayan-born Singaporean judge, lawyer and banker who served as the second chief justice of Singapore between 1990 and 2006, appointed by President Wee Kim Wee. He also served as the cha ...
rejected this conception of public order. He noted that Singapore had a policy of compulsory military service
Conscription (also called the draft in the United States) is the state-mandated enlistment of people in a national service, mainly a military service. Conscription dates back to antiquity and it continues in some countries to the present day un ...
known as National Service, and that the Minister had taken the view that the continued existence of the Singapore Congregation of Jehovah's Witnesses, which held the belief that military service was forbidden, was contrary to public peace, welfare and good order. As such, since the Minister had formed the view that the Jehovah's Witnesses were a threat to national security
National security, or national defence, is the security and defence of a sovereign state, including its citizens, economy, and institutions, which is regarded as a duty of government. Originally conceived as protection against military atta ...
, it was not open to the court to take a different view on the matter. Yong C.J. said in his judgment: "I could not see how the concept of public order as envisaged under Art 15(4) is dissimilar to the notion of public peace, welfare and good order within s 24(1)(a) of the Societies Act." He emphasized that the right to religious freedom was not an absolute right as it was subject to the inherent limitations set out in Article 15(4). The right of freedom of religion had to be reconciled with the "right of the state to employ the sovereign power to ensure peace, security and orderly living, without which the constitutional guarantee of civil liberty would be a mockery". Accordingly, the appeal was dismissed.
In 1995, the Minister for Information and the Arts made Order No. 405/1995 banning materials published by the International Bible Students Association
A number of corporations are in use by Jehovah's Witnesses. They publish literature and perform other operational and administrative functions, representing the interests of the religious organization. "The Society" has been used as a collective ...
, an organization associated with the Jehovah's Witnesses. In '' Chan Hiang Leng Colin v. Minister for Information and the Arts'' (1995), the plaintiffs sought leave to apply for an order of ''certiorari
In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
'' to quash the order, alleging that it was ''ultra vires
('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
'' as it contravened, among other things, Article 15(1) of the Constitution. Presiding over the case in the High Court, Justice Judith Prakash referred to Yong C.J.'s holding in ''Chan Hiang Leng Colin v. P.P.'' (1994) concerning the meaning of ''public order''.
In a 1995 commentary on ''Chan Hiang Leng Colin v. P.P.'' (1994),[ Professor ]Thio Li-ann
Thio Li-ann (born 10 March 1968) is a Singaporean law professor at the National University of Singapore. She was educated at the University of Oxford, Harvard Law School and the University of Cambridge. In January 2007, she was appointed a ...
noted that in other jurisdictions a lack of public order includes the notion of "endangerment to human life and safety as well as the disruption of public tranquillity", and argued that " establish that public order is threatened, it appears that some degree of violence or unlawful physical violence must be shown". Using this as a point of reference, she criticized Yong C.J.'s equation of public order with "public peace, welfare or good order".
''Public health'' and ''morality''
The Singapore courts have not yet interpreted the meaning of the terms ''public health'' and ''morality'' in Article 15(4).
The UK case of ''R. (Ghai) v. Newcastle City Council'' (2009) is therefore interesting for purposes of comparison. The claimant, an orthodox Hindu, applied to his local authority for land to be dedicated for traditional open air funeral pyres. The local authority refused the request, relying on subsidiary legislation that made it an offence to burn human remains other than in a crematorium. The claimant then applied for judicial review, submitting that the decision infringed his right to manifest his religion or belief which was protected by Article 9(1) of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
. The High Court found that the statutory interference with the claimant's right was justified as it was necessary for the protection of public morals and of the rights and freedoms of others. The Court of Appeal reversed the judgment on grounds unrelated to Article 9, holding that open air pyres were permissible on a proper construction of the legislation.
Test for determining if restriction of right is appropriate
Singapore
In ''Chan Hiang Leng Colin v. P.P.'' (1994), counsel for the appellants argued that there had to be a "clear and immediate danger" to public order before the right of freedom of religion could be restricted, and in this case the restriction was unjustified since there had been no such threat at all.[''Chan Hiang Leng Colin v. P.P.'' (1994), pp. 233–234, para. 59.] However, Yong C.J. said that attempt to apply the "clear and immediate danger" test was misplaced:
However, Yong C.J. did not articulate any alternative test for determining if a restriction upon freedom of religion is appropriate. Quoting Malaysian Chief Justice Hashim Yeop Sani's judgment in the case ''Minister for Home Affairs, Malaysia v. Jamaluddin bin Othman'' (1989), he agreed that " e freedom to profess and practise one's religion should not be turned into a licence to commit unlawful acts or acts tending to prejudice or threaten the security of the country". Yong C.J. considered that since "the sovereignty, integrity and unity of Singapore are undoubtedly the paramount mandate of the Constitution", religious beliefs and practices which tended to run counter to these objectives had to be restrained.[''Chan Hiang Leng Colin v. P.P.'' (1994), p. 235, para. 64.]
In the appeal against Prakash J.'s judgment to the Court of Appeal, also called ''Chan Hiang Leng Colin v. Minister for Information and the Arts'' (1996), counsel for the appellants argued that the restriction placed by the Minister on the importation, sale and distribution of the Jehovah's Witnesses publications was too wide and disproportionate. Applying an approach similar to that taken in ''Chan Hiang Leng Colin v. P.P.'' (1994), the Court of Appeal noted that the appellants were essentially seeking to challenge the view taken by the Minister that Jehovah's Witnesses' refusal to carry out National Service was a threat to national security. The Court regarded this as a non-justiciable
Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...
issue and declined to allow the appellants to bring an application for judicial review of Order No. 405/1995.
Professor Thio Li-ann has argued that since Article 15(1) is the general statement of principle that guarantees freedom of religion while Article 15(4) is an exception to the general principle, Yong C.J.'s assertion that "actions undertaken or flowing from eligiousbeliefs must conform with the general law relating to public order and social protection" is incorrect.[Thio, "The Secular Trumps the Sacred", p. 78.] In making a case against judicial deference
Judicial deference is the condition of a court yielding or submitting its judgment to that of another legitimate party, such as the executive branch in the case of national defense. It is most commonly found in countries, such as the United Kingdo ...
and for judicial balancing of interests, she says:
In Thio's view, courts should adopt a three-step proportionality approach when interpreting constitutional fundamental liberties. A judge should first "identify the interests behind two competing rights ''eg'' the value of religious liberty as a source of private and public virtue as well as being an aspect of free conscience as against the value of having public order and a stable environment. Secondly, these factors are all to be placed on the Libra
Libra generally refers to:
* Libra (constellation), a constellation
* Libra (astrology), an astrological sign based on the star constellation
Libra may also refer to:
Arts and entertainment
* ''Libra'' (novel), a 1988 novel by Don DeLillo
Musi ...
-like balancing scales of justice so that their merits and demerits can be assessed against each other. ... Thirdly, all things considered, the Judge is to deliver his judgment as to where the balance should lie." In the light of this approach, Yong C.J.'s acceptance of the Minister's view "as conclusive, refusing to question it on the basis of not wanting to transgress the legal/merits dichotomy" resulted in a failure to balance the interest of the appellants against that of the State.
Other jurisdictions
The situation in Singapore may be contrasted with the application of a proportionality analysis in other jurisdictions ''vis-à-vis'' the constitutional protection of freedom of religion. Section 2(a) of the Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
states that the freedom of conscience and religion is a fundamental freedom enjoyed by everybody. It is subject to section 1: "The rights and freedoms set out in the Canadian Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
In the important decision ''R. v. Oakes
''R v Oakes'' 9861 SCR 103 is a case decided by the Supreme Court of Canada which established the famous ''Oakes'' test, an analysis of the limitations clause (section 1) of the ''Canadian Charter of Rights and Freedoms'' that allows reas ...
'' (1986), the Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
held that a two-part test must be satisfied before a limitation infringing a right can be "saved" by section 1. First, the limitation must have "an objective related to concerns which are pressing and substantial in a free and democratic society"; and, second, it must be shown "that the means chosen are reasonable and demonstrably justified". The second part is described as a "proportionality test" which requires the invoking party to show:
In '' Multani v. Marguerite-Bourgeoys (Commission scolaire)'' (2006), the issue was whether a ban in a public school on Sikh
Sikhs ( or ; pa, ਸਿੱਖ, ' ) are people who adhere to Sikhism, Sikhism (Sikhi), a Monotheism, monotheistic religion that originated in the late 15th century in the Punjab region of the Indian subcontinent, based on the revelation of Gu ...
students carrying ''kirpan
The kirpan is a curved, single-edged dagger or knife carried by Sikhs. Traditionally, it was a full-sized sword but modern Sikhs have reduced the length to that of a dagger or knife due to modern considerations based on societal and legal chang ...
s'' (ceremonial daggers) for religious purposes was justifiable. Justice Louise Charron
Louise Charron, (born March 2, 1951) is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge. (This distinction has sometimes been attributed to Lo ...
, who delivered the Court's majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.
Not all cases have ...
, applied the ''Oakes'' test to section 2(a) of the Charter. She held that the school could not discharge its burden of proving that prohibiting the ''kirpan'' was a reasonable limit on the student's constitutional freedom of religion.
The UK Human Rights Act 1998
The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Con ...
makes Article 9(1) of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
, which protects freedom of religion, enforceable in UK domestic law
Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, ...
. Article 9(2) states when the freedom of religion may be restricted: "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society __NOTOC__
"Necessary in a democratic society" is a test found in Articles 8–11 of the European Convention on Human Rights, which provides that the state may impose restrictions of these rights only if such restrictions are "necessary in a democra ...
in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." '' R. (Begum) v. Headteacher and Governors of Denbigh High School'' (2006) was a House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
case involving a female Muslim student who wished to wear a '' jilbab'' (a long, coat-like garment) to comply with her understanding of the requirements of her faith, but was disallowed from doing so. Lord Bingham of Cornhill
Sir Thomas Henry Bingham, Baron Bingham of Cornhill, (13 October 193311 September 2010), was an eminent British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. He was described as the greatest lawyer of ...
said that under Article 9(2), for a restriction to be justified it must be "prescribed by law and necessary in a democratic society for a permissible purpose, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect". In the end, a majority of the Law Lords
Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House of ...
hearing the appeal (including Lord Bingham) held that the appellant's rights had not been interfered with. However, the court held unanimously that even if they had been, there were justifiable grounds for such interference, one of which was the need to protect the rights of other female students at the school who would not wish to be pressured into adopting a more extreme form of Muslim dress.
In ''Prince v. President of the Law Society of the Cape of Good Hope'' (2002), the appellant challenged, among other things, the constitutionality of the South African Drugs and Drug Trafficking Act 1992 before the Constitutional Court of South Africa
The Constitutional Court of South Africa is a supreme court, supreme constitutional court established by the Constitution of South Africa, and is the apex court in the South African judicial system, with general jurisdiction.
The Court was fi ...
. He claimed that his religion – the Rastafari movement
Rastafari, sometimes called Rastafarianism, is a religion that developed in Jamaica during the 1930s. It is classified as both a new religious movement and a social movement by scholars of religion. There is no central authority in control o ...
– required him to use cannabis
''Cannabis'' () is a genus of flowering plants in the family Cannabaceae. The number of species within the genus is disputed. Three species may be recognized: ''Cannabis sativa'', '' C. indica'', and '' C. ruderalis''. Alternatively ...
and argued that the Act, which prohibited the possession of this drug, infringed his right to freedom of religion protected by section 15 of Chapter 2 Chapter Two, Chapter 2, or Chapter II may refer to:
Film, television, and theatre
* ''Chapter Two'' (play), a 1977 play by Neil Simon
* ''Chapter Two'' (film), a 1979 adaptation of Neil Simon's play
Television episodes
* "Chapter 2" (''American H ...
of the Constitution of South Africa
The Constitution of South Africa is the supreme law of the Republic of South Africa. It provides the legal foundation for the existence of the republic, it sets out the rights and duties of its citizens, and defines the structure of the Govern ...
. Similar to section 1 of the Canadian Charter, section 36(1) of the South African Constitution provides:
Justice Sandile Ngcobo
Sandile Ngcobo (born 1 March 1953) is former justice in the Constitutional Court of South Africa. He served as Chief Justice from 2009 to 2011.
In 2017, the Southern African Public Law journal published a special issue in volume 32 of the jou ...
, writing for the minority, said that " e limitation analysis ... involves the weighing up of competing values and ultimately an assessment based on proportionality", and that in weighing competing interests and evaluating proportionality it was "necessary to examine the relation between the complete ban on the sacramental use or possession of cannabis by the Rastafari and the purpose of the limitation as well as the existence of the less restrictive means to achieve this purpose". Ultimately, though, a majority of the Court held that although the appellant's freedom of religion had been infringed, the infringement was justifiable in that the restriction was proportionate to the "war on drugs" policy of the State – a general exemption for religious purposes would be virtually impossible to police and would interfere materially with the government's ability to enforce its drug control legislation, and other proposed control schemes would be administratively unworkable.
A key distinction between the bills of rights of the Commonwealth jurisdictions referred to above and the Singapore Constitution is that in the latter document, the grounds set out in Article 15(4) for restricting freedom of religion are not expressly subject to any requirement of reasonableness or necessity in a democratic society. One may query whether this is sufficient justification for a Singapore court to decline to apply a proportionality analysis to Article 15(4).
Burden of proof
An applicant has the burden of proving that a legislative restriction on the freedom of speech has nothing to do with public order, public health or morality. There must be some substance in the applicant's complaint – the Government does not have an immediate duty to justify making a decision that restricts the applicant's right to freedom of speech simply because the applicant complains of an alleged infringement of Article 15(1).
Instances of restrictions
Right of propagation
Propagation of religion is not protected when it amounts to an act contrary to any general law relating to public order, public health, or morality under Article 15(4) of the Constitution. In ''Public Prosecutor v. Koh Song Huat Benjamin'' (2005), a District Court held that the right to propagate an opinion is not an unfettered right:
In ''Public Prosecutor v. Ong Kian Cheong'' (2009), the District Court said that the above statement, which referred to opinions on race, applied with equal force to insensitive and denigrating opinions about religious beliefs. The case involved two accused persons who were convicted under the Sedition Act and the Undesirable Publications Act for distributing religious literature that was considered seditious and objectionable to Muslims. Section 3(1)(e) of the Sedition Act defines a seditious tendency as including a tendency to "promote feelings of ill-will and hostility between different races or classes of the population of Singapore". In the course of spreading their own faith, the accused persons had offended public order by distributing religious materials that were objectionable to Muslims, and the Court regarded this to be beyond the bounds of the constitutional right to propagate religion. The Court was of the view that although a person is free to choose his or her own religion and to practise it, religious fervour to spread faith must be constrained by considerations of sensitivity, tolerance and mutual respect for the faith and religious beliefs of another. Individuals cannot claim to be ignorant of the sensitivity of race and religion in Singapore's multi-racial and multi-religious society.
''Larissis v. Greece'' (1999) points to other grounds on which the right to propagate one's religion might reasonably be restricted in Singapore. In that case, the European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
accepted that the right to try to persuade another of one's own religious beliefs is included in the "right to manifest ne'sreligion or belief" provided for by Article 9(1) of the European Convention on Human Rights. However, this right is not void of limitations. Article 9(2) of the Convention prescribes limitations to the freedom to manifest one's religion "in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". The Court clarified that Article 9(1) does not protect improper proselytism
Proselytism () is the policy of attempting to convert people's religious or political beliefs. Proselytism is illegal in some countries.
Some draw distinctions between ''evangelism'' or '' Da‘wah'' and proselytism regarding proselytism as invol ...
, such as when one offers material or social advantages to entice another to adopt certain religious beliefs, or when one applies improper pressure with a view to gaining new members for a religious group. On the facts of the case, the Court found that Article 9 had not been infringed by the prosecution of three air force officers for proselytizing to their subordinates, since the hierarchical nature of military life meant it was difficult for a subordinate to rebuff the approaches of persons of superior rank. Thus, a conversation which might be regarded as a harmless exchange of ideas in a civilian context could be seen in a military setting as harassment or the imposition of undue pressure in abuse of power.
Other constitutional provisions
In addition to Article 15, there are other provisions in the Constitution that protect religious freedom. Article 12(2) prohibits discrimination against Singapore citizens on the ground of, among others, religion in any law; in the appointment to any office or employment under a public authority; or in the administration of any law relating to the acquisition, holding or disposition of property, or the establishing or carrying on of any trade, business, profession, vocation or employment.
Related to this is Article 16, subsection (1) of which prohibits discrimination against citizens of Singapore on the ground only of, among others, religion in the administration of public educational institutions (and, in particular, as regards the admission of students or the payment of fees), and in providing financial aid from public funds for the maintenance or education of students in any educational institution. The Constitution declares that religious groups have the right to establish and maintain institutions for the education of children and to provide them religious instruction in those institutions, but provides that people cannot be discriminated against on the ground only of religion in laws relating to such institutions or the administration of such laws. Furthermore, no person may be compelled to receive instruction in or take part in any ceremony or act of worship of a religion apart from his or her own.
The Government
A government is the system or group of people governing an organized community, generally a state.
In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...
has a constitutional responsibility "constantly to care for the interests of the racial and religious minorities in Singapore". In particular, the Government must exercise its functions in such a way as to recognize the special position of the Malays, the indigenous people
Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
of Singapore. Accordingly, it has the responsibility to "protect, safeguard, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language
Malay (; ms, Bahasa Melayu, links=no, Jawi alphabet, Jawi: , Rejang script, Rencong: ) is an Austronesian languages, Austronesian language that is an official language of Brunei, Indonesia, Malaysia, and Singapore, and that is also spo ...
." The Constitution also requires the Legislature to enact legislation to regulate Muslim
Muslims ( ar, المسلمون, , ) are people who adhere to Islam, a monotheistic religion belonging to the Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God of Abrah ...
religious affairs and to establish a council to advise the President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
concerning matters relating to Islam. The legislation in question is the Administration of Muslim Law Act
The ''Administration of Muslim Law Act'' is a 1966 Act of the Parliament of Singapore. According to an article published The Straits Times
''The Straits Times'' is an English-language daily broadsheet newspaper based in Singapore and curr ...
.[.]
See also
*Freedom of religion in Singapore
Freedom of religion in Singapore is a guaranteed constitutionally protected right under Article 15 of the Constitution of Singapore which states: "Every person has the right to profess and practise his religion and to propagate it." and allows bel ...
*Maintenance of Religious Harmony Act
The Maintenance of Religious Harmony Act 1990 ("MRHA") is a Singapore statute which, according to its long title, provides for the maintenance of religious harmony, for the establishment of a Presidential Council for Religious Harmony ("PCRH") ...
Notes
References
Cases
*''Re Mohamed Said Nabi, deceased'' 965M.L.J. 'Malayan Law Journal''121, High Court (Singapore).
*.
*''Chan Hiang Leng Colin v. Minister for Information and the Arts'' 995
Year 995 ( CMXCV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 17 May - Fujiwara no Michitaka (imperial regent) dies.
* 3 June: Fujiwara no Michikane gain ...
2 S.L.R.(R.) 627, H.C. (Singapore).
*'' Chan Hiang Leng Colin v. Minister for Information and the Arts'' 996
Year 996 ( CMXCVI) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* February - Chotoku Incident: Fujiwara no Korechika and Takaie shoot an arrow at Retired Em ...
1 S.L.R.(R.) 294, Court of Appeal (Singapore).
*'' Nappalli Peter Williams v. Institute of Technical Education'' 999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Books
* ''999'' (anthology) or ''999: T ...
2 S.L.R.(R.) 529, C.A. (Singapore).
*.
*''Public Prosecutor v. Ong Kian Cheong'' 009 009 may refer to:
* OO9, gauge model railways
* O09, FAA identifier for Round Valley Airport
* 0O9, FAA identifier for Ward Field, see List of airports in California
* British secret agent 009, see 00 Agent
* BA 009, see British Airways Flight 9
* ...
SGDC 163, District Court (Singapore).
Other works
*.
*.
Further reading
Articles
*.
*.
*.
*.
*.
*.
*.
*.
Books
*.
*.
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{{DEFAULTSORT:Article 15 of the Constitution of Singapore
Freedom of religion in Singapore
Law about religion in Singapore
Singaporean constitutional law