Article 15 of the Constitution of Singapore
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Article 15 of the Constitution of the Republic of Singapore guarantees freedom of religion
in Singapore
. 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, 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
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
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
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
. 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
is said to be involved, the courts have deferred to the Government
as to the necessity for the restrictive legislation. The terms public health and morality in Article 15(4) have yet to be judicially interpreted.
is entitled "Freedom of religion" and reads as follows:
In Nappalli Peter Williams v. Institute of Technical Education (1999), 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
, 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
: "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."
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
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.
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; in that case, singing the national anthem
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
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 "[h]ow 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
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.
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), 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
, sing the national anthem
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."
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
in Stanislaus v. State of Madhya Pradesh (1977). The Court adopted a dictionary definition of propagate, which was "to transmit or spread from person from 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
another person who holds a pre-existing religious belief to one's own religion as this would impinge on the "freedom of conscience
" 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 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:
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
. 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". Some have also said that the idea of secularism is also further inferred from reading arts. 15, 16, 12, 150, and Singapore's constitutional history. 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 is constitutionally expressed. In being secular, the Government of Singapore
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. 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 (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.
.
In Chan Hiang Leng Colin v. Public Prosecutor (1994), the Minister of Home Affairs
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
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
rejected this conception of public order. He noted that Singapore had a policy of compulsory military service 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
, 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, 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
to quash the order, alleging that it was ultra vires
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
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 "[t]o 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".
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 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.
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 "[t]he 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 be restrained.
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
issue and declined to allow the appellants to bring an application for judicial review of Order No. 405/1995.
Thio 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 [religious] beliefs must conform with the general law relating to public order and social protection" is incorrect. In making a case against judicial deference
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-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.
of the Canadian Charter of Rights and Freedoms
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
(1986), the Supreme Court of Canada
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
students carrying kirpan
s (ceremonial daggers) for religious purposes was justifiable. Justice Louise Charron
, who delivered the Court's majority opinion
, 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
makes Article 9(1) of the European Convention on Human Rights
, which protects freedom of religion, enforceable in UK domestic law
. 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 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
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
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 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
. He claimed that his religion – the Rastafari movement
– required him to use cannabis
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 of the Constitution of South Africa
. Similar to section 1 of the Canadian Charter, section 36(1) of the South African Constitution provides:
Justice Sandile Ngcobo
, writing for the minority, said that "[t]he 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).
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
accepted that the right to try to persuade another of one's own religious beliefs is included in the "right to manifest [one's] religion 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
, 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.
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
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
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
." The Constitution also requires the Legislature to enact legislation to regulate Muslim
religious affairs and to establish a council to advise the President
concerning matters relating to Islam. The legislation in question is the Administration of Muslim Law Act.
Freedom of religion
Freedom of religion 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; the concept is generally recognized also to include the freedom to change religion or not to follow any...
in Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
. 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, 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
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
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
Religious conversion
Religious conversion is the adoption of a new religion that differs from the convert's previous religion. Changing from one denomination to another within the same religion is usually described as reaffiliation rather than conversion.People convert to a different religion for various reasons,...
another person who holds a pre-existing religious belief to one's own religion. These issues have not yet come before the Singapore courts
Judicial system of Singapore
The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court...
for determination. On the other hand, in 1999 the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
attempted to draw a line between religious practices and secular facts, taking the view that singing the National Anthem
Majulah Singapura
Majulah Singapura is the national anthem of Singapore. Composed by Zubir Said in 1958 as a theme song for official functions of the City Council of Singapore, the song was selected in 1959 as the island's anthem when it attained self-government. Upon full independence in 1965, Majulah Singapura...
and saying the National Pledge
Singapore National Pledge
The Singapore National Pledge is an oath of allegiance to Singapore. It is commonly recited by Singaporeans in unison at public events, especially in schools, in the Singapore Armed Forces and during the National Day Parade.-Origin:...
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
Constitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
, 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
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
. 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
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
is said to be involved, the courts have deferred to the Government
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
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 SingaporeConstitution of Singapore
The Constitution of Singapore is the supreme law of Singapore and it is a codified constitution.The constitution cannot be amended without the support of more than two-thirds of the members of parliament on the second and third readings . The president may seek opinion on constitutional issues...
is entitled "Freedom of religion" and reads as follows:
In Nappalli Peter Williams v. Institute of Technical Education (1999), the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
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
Constitution of Malaysia
The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was initially called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation...
, 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
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
: "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."
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". The High CourtHigh Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
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
Shorter Oxford English Dictionary
The Shorter Oxford English Dictionary, often abbreviated to SOED, is a scaled-down version of the Oxford English Dictionary . It comprises two volumes rather than the twenty needed for the full second edition of the OED...
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
Judicial system of Singapore
The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court...
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 AnthemMajulah Singapura
Majulah Singapura is the national anthem of Singapore. Composed by Zubir Said in 1958 as a theme song for official functions of the City Council of Singapore, the song was selected in 1959 as the island's anthem when it attained self-government. Upon full independence in 1965, Majulah Singapura...
and reciting the National Pledge
Singapore National Pledge
The Singapore National Pledge is an oath of allegiance to Singapore. It is commonly recited by Singaporeans in unison at public events, especially in schools, in the Singapore Armed Forces and during the National Day Parade.-Origin:...
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; in that case, singing the national anthem
O Canada
It has been noted that the opening theme of "O Canada" bears a strong resemblance to the "Marsch der Priester" , from the opera Die Zauberflöte , composed in 1791 by Wolfgang Amadeus Mozart, and that Lavallée's melody was inspired by Mozart's tune...
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
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
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 "[h]ow 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
Purdah
Purdah or pardeh is the practice of concealing women from men. According to one definition:This takes two forms: physical segregation of the sexes, and the requirement for women to cover their bodies and conceal their form....
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.
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), 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
Flag of the Philippines
The national flag of the Philippines is a horizontal flag bicolor with equal bands of royal blue and scarlet red, and with a white equilateral triangle at the hoist; in the center of the triangle is a golden yellow sun with eight primary rays, each containing three individual rays, which represent...
, sing the national anthem
Lupang Hinirang
Lupang Hinirang is the national anthem of the Philippines. Its music was composed in 1898 by Julián Felipe, with lyrics in Spanish adapted from the poem Filipinas, written by José Palma in 1899....
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
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
in Stanislaus v. State of Madhya Pradesh (1977). The Court adopted a dictionary definition of propagate, which was "to transmit or spread from person from 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
Religious conversion
Religious conversion is the adoption of a new religion that differs from the convert's previous religion. Changing from one denomination to another within the same religion is usually described as reaffiliation rather than conversion.People convert to a different religion for various reasons,...
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
Freedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
" 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 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 religionFreedom of religion in Singapore
Freedom of religion in Singapore is guaranteed under the Constitution. However, the Government of Singapore restricts this right in some circumstances. The Government has banned the Jehovah's Witnesses and the Unification Church...
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
Secularism is the principle of separation between government institutions and the persons mandated to represent the State from religious institutions and religious dignitaries...
. 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". Some have also said that the idea of secularism is also further inferred from reading arts. 15, 16, 12, 150, and Singapore's constitutional history. Singapore's secularism is similar to France's secularism
Laïcité
French secularism, in French, laïcité is a concept denoting the absence of religious involvement in government affairs as well as absence of government involvement in religious affairs. French secularism has a long history but the current regime is based on the 1905 French law on the Separation of...
in that both models seek to "protect the state from religion". However, unlike in Singapore, the principle of secularism in France is constitutionally expressed. In being secular, the Government of Singapore
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
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. 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 (Islamic headscarf) to national schools. Section 61 of the Education Act empowers the Minister for Education
Ministry of Education (Singapore)
The Ministry Of Education is a ministry of the Government of Singapore that directs the formulation and implementation of policies related to education in Singapore.-Statutory boards:...
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.
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 WitnessesJehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
.
In Chan Hiang Leng Colin v. Public Prosecutor (1994), the Minister of Home Affairs
Ministry of Home Affairs (Singapore)
The Ministry of Home Affairs is a ministry of the Government of Singapore responsible for public safety, civil defence and immigration. It is also known as the Home Team. It is headed by the Minister for Home Affairs....
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
Watch Tower Bible and Tract Society of Pennsylvania
The Watch Tower Bible and Tract Society of Pennsylvania is a non-stock, not-for-profit organization headquartered in the New York City borough of Brooklyn, United States. It is the main legal entity used worldwide by Jehovah's Witnesses to direct, administer and develop doctrines for the religion...
relating to the Jehovah's Witnesses. The appellants were convicted in a district court
Subordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
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
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
Yong Pung How
Yong Pung How
Yong Pung How, DUT . He was the former Chief Justice of Singapore, serving from 1990 to 2006. Prior to his judicial career, he was a lawyer, banker and senior government official...
rejected this conception of public order. He noted that Singapore had a policy of compulsory military service 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
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
, 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
Ministry of Information, Communications and the Arts
The Ministry of Information, Communications and the Arts is a ministry of the Government of Singapore...
made Order No. 405/1995 banning materials published by the International Bible Students Association, 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
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to quash the order, alleging that it was ultra vires
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
as it contravened, among other things, Article 15(1) of the Constitution. Presiding over the case in the High Court
High Court of Singapore
The High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
, 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
Thio Li-ann 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 Nominated Member of Parliament in Singapore's 11th Parliament.-Early life and...
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 "[t]o 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. The High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
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
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
reversed the judgment on grounds unrelated to Article 9, holding that open air pyres were permissible on a proper construction of the legislation.
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. 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 "[t]he 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 be restrained.
In the appeal against Prakash J.'s judgment to the Court of Appeal
Court of Appeal of Singapore
The Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
, 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
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 appropriate to establishing whether an actual...
issue and declined to allow the appellants to bring an application for judicial review of Order No. 405/1995.
Thio 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 [religious] beliefs must conform with the general law relating to public order and social protection" is incorrect. In making a case against judicial deference
Judicial deference
Judicial deference is a doctrine by which judges seek to avoid frustrating the will of the legislature when deciding cases . It is most commonly found in countries, such as the United Kingdom, which lack an entrenched constitution, as the essential purpose of such documents is to limit the power of...
and for judicial balancing of interests, she says:
In Thio's view, courts should adopt a three-step proportionality
Proportionality (law)
Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...
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-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)Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
states that the freedom of conscience and religion is a fundamental freedom enjoyed by everybody. It is subject to section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
: "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
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
(1986), the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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
Sikhism
Sikhism is a monotheistic religion founded during the 15th century in the Punjab region, by Guru Nanak Dev and continued to progress with ten successive Sikh Gurus . It is the fifth-largest organized religion in the world and one of the fastest-growing...
students carrying kirpan
Kirpan
The kirpan is a ceremonial sword or dagger carried by orthodox Sikhs. It is a religious commandment given by Guru Gobind Singh at the Baisakhi Amrit Sanchar in CE 1699, all baptised Sikhs must wear a kirpan at all times....
s (ceremonial daggers) for religious purposes was justifiable. Justice Louise Charron
Louise Charron
Louise Charron 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...
, who delivered the Court's majority opinion
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....
, 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
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
makes Article 9(1) of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, which protects freedom of religion, enforceable in UK domestic law
Municipal law
Municipal law is the national, domestic, or internal law of a sovereign state defined in opposition to international law. Municipal law includes not only law at the national level, but law at the state, provincial, territorial, regional or local levels...
. 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 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
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
case involving a female Muslim student who wished to wear a jilbab
Jilbab
The term jilbāb or jilbaab is the plural of the word jilaabah which refers to any long and loose-fit coat or garment worn by some Muslim women. They believe that this definition of jilbab fulfills the Quranic demand for a Hijab...
(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
Thomas Bingham, Baron Bingham of Cornhill
Thomas Henry Bingham, Baron Bingham of Cornhill, KG PC QC FBA , was a British judge and jurist. He served in the highest judicial offices of the United Kingdom as Master of the Rolls, Lord Chief Justice and as Senior Law Lord before his retirement, when he focused his work as a teacher and lecturer...
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 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
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
. He claimed that his religion – the Rastafari movement
Rastafari movement
The Rastafari movement or Rasta is a new religious movement that arose in the 1930s in Jamaica, which at the time was a country with a predominantly Christian culture where 98% of the people were the black descendants of slaves. Its adherents worship Haile Selassie I, Emperor of Ethiopia , as God...
– required him to use cannabis
Cannabis
Cannabis is a genus of flowering plants that includes three putative species, Cannabis sativa, Cannabis indica, and Cannabis ruderalis. These three taxa are indigenous to Central Asia, and South Asia. Cannabis has long been used for fibre , for seed and seed oils, for medicinal purposes, and as a...
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 of the Constitution of South Africa
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
. Similar to section 1 of the Canadian Charter, section 36(1) of the South African Constitution provides:
Justice Sandile Ngcobo
Sandile Ngcobo
S. Sandile Ngcobo is former justice in the Constitutional Court of South Africa. He served as Chief Justice from 2009 to 2011.-Education:...
, writing for the minority, said that "[t]he 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
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
of the Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
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).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 CourtSubordinate Courts of Singapore
The Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
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
Sedition Act (Singapore)
The Sedition Act is in Chapter 290 of the Statutes of Singapore. It was last revised in 1985.In September 2005, the Sedition Act was first used on individuals when three men, including a teenager, were charged for making seditious and inflammatory racist comments on the Internet.-Seditious...
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
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
accepted that the right to try to persuade another of one's own religious beliefs is included in the "right to manifest [one's] religion 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
Proselytizing is the act of attempting to convert people to another opinion and, particularly, another religion. The word proselytize is derived ultimately from the Greek language prefix προσ- and the verb ἔρχομαι in the form of προσήλυτος...
, 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)Article 12 of the Constitution of Singapore
Article 12 of the Constitution of the Republic of Singapore guarantees to all persons equality before the law and equal protection of the law. The Article also identifies four forbidden classifications – religion, race, descent and place of birth – upon which Singapore citizens may not be...
prohibits discrimination against Singapore citizens
Singaporean nationality law
Singaporean nationality law is derived from the Constitution of Singapore and is based on jus sanguinis and a modified form of jus soli...
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
Government of Singapore
The Government of Singapore is defined by the Constitution of the Republic of Singapore to mean the Executive branch of government, which is made up of the President and the Cabinet of Singapore. Although the President acts in his personal discretion in the exercise of certain functions as a check...
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
Malays in Singapore
Malays in Singapore are defined by the Singaporean government using the broader and antiquated "Malay race" concept, rather than modern-day Malay ethnic group. Although Malays have inhabited the area that is now Singapore since the 17th century, most of the Malays in Singapore today are immigrants...
, the indigenous people
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
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 language
Malay is a major language of the Austronesian family. It is the official language of Malaysia , Indonesia , Brunei and Singapore...
." The Constitution also requires the Legislature to enact legislation to regulate Muslim
Islam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
religious affairs and to establish a council to advise the President
President of Singapore
The President of the Republic of Singapore is Singapore's head of state. In a Westminster parliamentary system, as which Singapore governs itself, the prime minister is the head of the government while the position of president is largely ceremonial. Before 1993, the President of Singapore was...
concerning matters relating to Islam. The legislation in question is the Administration of Muslim Law Act.
Cases
- Re Mohamed Said Nabi, deceased [1965] M.L.J. [Malayan Law Journal] 121, High CourtHigh Court of SingaporeThe High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
(Singapore). - Chan Hiang Leng Colin v. Public Prosecutor [1994] 3 S.L.R.(R.) [Singapore Law Reports (Reissue)] 209, High CourtHigh Court of SingaporeThe High Court of the Republic of Singapore is the lower division of the Supreme Court of Singapore, the upper being the Court of Appeal. It consists of the Chief Justice of Singapore and the Judges of the High Court. Judicial Commissioners are often appointed to assist with the Court's caseload...
(Singapore). - Chan Hiang Leng Colin v. Minister for Information and the Arts [1995] 2 S.L.R.(R.) 627, H.C. (Singapore).
- Chan Hiang Leng Colin v. Minister for Information and the Arts [1996] 1 S.L.R.(R.) 294, Court of AppealCourt of Appeal of SingaporeThe Court of Appeal of the Republic of Singapore is the nation's highest court and its court of final appeal. It is the upper division of the Supreme Court of Singapore, the lower being the High Court. The Court of Appeal consists of the Chief Justice of Singapore, who is the President of the...
(Singapore). - Nappalli Peter Williams v. Institute of Technical Education [1999] 2 S.L.R.(R.) 529, C.A. (Singapore)..
- Public Prosecutor v. Ong Kian Cheong [2009] SGDC 163, District CourtSubordinate Courts of SingaporeThe Subordinate Courts of Singapore is one of the two tiers of the court system in Singapore, the other tier being the Supreme Court. The Subordinate Courts comprise the District and Magistrate Courts—both of which oversee civil and criminal matters—as well as specialised family, juvenile,...
(Singapore).