1 This is an appeal from an order of the High Court refusing leave to issue a notice of motion for judicial review. The appellants are ministers of a Christian religious denomination known as Jehovah`s Witnesses. The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) are organizations under the ambit of the denomination. By Order 179 of 1972 issued by the Minister for Home Affairs, the local chapter of the denomination, the Singapore Congregation of Jehovah`s Witnesses (SCJW) was deregistered. At the same time, the Minister for Culture declared the publications of WTBTS prohibited publications by Order 123 of 1972. Neither of these two orders are being directly challenged. By Order 405/94 made under s 3 of the Undesirable Publications Act (Cap 338), the Minister for Information and the Arts (the Minister) prohibited the importation, sale or distribution of publications of IBSA. This order is the subject matter of the present proceedings.

2 The appellants sought leave to apply for an order of certiorari to remove into the High Court and quash Order 405/94. The appellants also sought a declaration that Order 405/94 is invalid. The learned judge below struck out the claim for the declaration on the ground that the High Court does not have the jurisdiction to grant a declaration in proceedings under O 53 of the Rules of the Supreme Court (RSC). The learned judge held that the appellants had sufficient locus standi to apply for judicial review. However, she refused to grant the appellants leave. Her judgment is reported at [1995] 3 SLR 644 .

3 Several issues were raised before us. After hearing counsel for both sides and a short adjournment, we dismissed the appeal. We now give our reasons.

4 The first issue was whether the court, in an application under RSC O 53, has any power to grant a declaration. The appellants contended that a declaration may be obtained in a proceeding under RSC O 53. Mr How for the appellants relied on s 18(2) of the Supreme Court of Judicature Act (Cap 322) and the First Schedule thereof. These provisions give the High Court powers to make `any other orders`, including a declaration.

5 In our view, s 18(2) does not take the appellants very far. It does not follow that because the High Court has the power to grant a declaration, it has the power to grant one in an application under RSC O 53. In Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 , Sinnathuray J held at p 225:

6 A reading of O`Reilly v Mackman & Ors [1982] 3 All ER 1124 will reveal that if a declaration is sought under the old English procedure, then the proper course is to begin an action by writ or originating summons. In none of the English cases prior to their new O 53 was a declaration granted in a proceeding under O 53. Those cases in which declarations were granted were commenced by ordinary originating processes. Our RSC O 53 is based on the old English O 53. There was never any power to grant a declaration under that Order because a declaration is not a prerogative order. Re Application by Dow Jones (Asia) Inc was rightly decided.

7 The learned judge held that the appellants had the requisite locus standi to apply for judicial review in this case. The learned judge based her decision on the fact that the appellants had a general interest, as Jehovah`s Witnesses, in studying the tenets of their faith. Furthermore, they had a particular interest in Order 405/94 as each of them was facing prosecution for possessing banned materials in contravention of Order 405/94.

8 Before us, however, Mr Reddy for the Minister contended that the appellants had no locus standi. Mr Reddy made two arguments. The first argument was that by virtue of Order 179 of 1972, the SCJW had been deregistered. It followed that the Jehovah`s Witnesses movement was unlawful. There was no dispute that the appellants are in fact Jehovah`s Witnesses. Hence, unless the appellants can show that their existence as a group is lawful, they cannot challenge Order 405/94. The second argument was that the purpose behind Order 405/94 was to prevent the propagation of the beliefs of Jehovah`s Witnesses. A right to propagate the beliefs of an unlawful society cannot be a right that can be asserted before this court. Mr Reddy then drew an analogy from the sale of pornographic materials. He submitted that in such cases, the persons affected would be persons such as the distributors and copyright holders. It cannot be the case that persons can have the right to complain merely because they wanted to see such publications. Mr Reddy submitted that the same is applicable in this case, and the only persons who can complain about Order 405/94 are officers or members of IBSA.

9 We are unable to agree with Mr Reddy`s submissions. Firstly, it appears to us that the appellants are not challenging Order 405/94 as members of any group. They are challenging Order 405/94 in their capacity as citizens. What they are trying to do is to invoke their constitutional rights as citizens to profess, practise and to propagate their religion. The question is, therefore, whether they, as citizens, may do so.

10 In R v Greater London Council, ex p Blackburn [1976] 3 All ER 184 at p 192, Lord Denning MR said:

11 In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93, Lord Wilberforce opined at p 96:

12 At p 109, Lord Scarman made the following observation:

13 In the present case, what is complained of is an alleged violation of a citizen`s constitutional right under art 15 of the Constitution to profess, practise and propagate his religion. Such rights are constitutionally enshrined. If a constitutional guarantee is to mean anything, it must mean that any citizen can complain to the courts if there is a violation of it. The fact that the violation would also affect every other citizen should not detract from a citizen`s interest in seeing that his constitutional rights are not violated. A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights.

14 There is thus no need for the appellants to show that they are office holders in IBSA or members thereof. Their right to challenge Order 405/94 arises not from membership of any society. Their right arises from every citizen`s right to profess, practise and propagate his religious beliefs. If there was a breach of art 15, such a breach would affect the citizen qua

15 citizen. If a citizen does not have sufficient interest to see that his constitutional rights are not violated, then it is hard to see who has.

16 It would indeed be strange if the only person who can complain of an alleged breach of art 15 in this case is IBSA, for IBSA is neither a citizen nor resident of Singapore. If Mr Reddy is right, then no citizen can complain of the alleged breach of art 15 in this case and the only person who can do so is a non-resident foreigner! This would be absurd, for art 15 of the Constitution only speaks of citizens having these rights. In Dow Jones Publishing Co (Asia) Inc v A-G [1989] 2 MLJ 385 , this court held at p 398 that art 14 of the Constitution, which guarantees a citizen`s right to freedom of expression, did not grant any such guarantee on the appellants there, who were not Singapore citizens. Accordingly, the appellants there had no locus standi to complain about a breach of art 14. Hence, it seems to us that the analogy drawn with pornographic materials is not applicable here. The short answer is that a citizen does not have a constitutional right to see pornographic materials. He does, however, have a constitutional right to profess, practise and propagate his religion, and it is alleged that the publications by IBSA are essential for him to carry out these activities.

17 We are also unable to agree with the argument that what the appellants are doing amounts to an assertion of a right to propagate the beliefs of an unlawful society. The only effect of Order 179/72 is that the society known as the SCJW had been deregistered and it is, therefore, an offence to be a member of it. It does not, however, follow that it is illegal to profess, practise or propagate the beliefs of Jehovah`s Witnesses. It may be that group participation in the activities of Jehovah`s Witnesses may invoke the presumptions under the Societies Act (Cap 311) of being a member of an unlawful society, but that is a different matter.

18 The mere fact that the beliefs of Jehovah`s Witnesses are also the beliefs of the SCJW does not mean that one is professing, practising or propagating the beliefs of an unlawful society when one professes the beliefs of Jehovah`s Witnesses. There are many aspects of the beliefs of Jehovah`s Witnesses which are common to other Christian denominations. It does not follow that the other Christian denominations are professing the beliefs of Jehovah`s Witnesses or the SCJW when they profess these common beliefs.

19 There is no provision in either the Societies Act or the Undesirable Publications Act which prohibits the holding of a religious belief. It is, therefore, not illegal to profess the beliefs of Jehovah`s Witnesses per se, nor is it an offence to be a Jehovah`s Witness. A citizen`s right to profess, practise or propagate his religious belief, even as a Jehovah`s Witness, has not been taken away. It is the manner of carrying out these activities that is circumscribed by the relevant orders. The relevant orders provide, that in pursuing these activities, Jehovah`s Witnesses may not be a member of the SCJW or any other unregistered society and they may not have access to the prohibited publications.

20 Mr How for the appellants also argued that the Societies Act did not apply to religious associations because s 2 defines `society` to exclude `any company or association constituted under any written law` and that a religious association is constituted under art 15 of the Constitution, which is a written law. We are unable to accept this proposition. Article 15 is an enabling provision guaranteeing the rights of citizens to profess, practise and propagate their religion. We do not see how it can be described as a written law `constituting` any company or association.

21 Although we agree with the learned judge that the constitutional rights to freedom of religion and expression would give the appellants locus standi, we are not able to agree with her that the fact that the appellants were facing prosecution for being in possession of prohibited publications under the Undesirable Publications Act also gives them locus standi. We think that this is an irrelevant consideration in an application for leave to issue certiorari proceedings.

22 Nevertheless, for the reasons we have stated, we agree with the learned judge that the appellants have sufficient interest, as citizens of Singapore, to challenge Order 405/94. In doing so, they are not asserting a right to propagate the beliefs of an unlawful society.

23 The next question concerns what test the court is to apply at the application for leave stage. We start with Lord Diplock`s speech in IRC v National Federation of Self-Employed [1981] 2 All ER 93 at p 106:

24 This passage appears susceptible to two slightly different interpretations. One is that the court should quickly peruse the material put before it and consider whether such material discloses `what might on further consideration turn out to be an arguable case`. The other is that the applicant had to make out a `prima facie case of reasonable suspicion`. In our view, both tests present a very low threshold and it is questionable whether there is really any difference in substance between the two interpretations.

25 In R v Commissioner for the Special Purposes of the Income Tax Acts, ex p Stipplechoice Ltd [1985] 2 All ER 465, the English Court of Appeal held that the applicant had shown `a good arguable case` and has thus, `established a prima facie case` for judicial review. Leave was then granted in that case despite the applicant having twice been refused leave below. It appears that in Re Application by Dow Jones (Asia) Inc,

26 TS Sinnathuray J applied the same test of whether there is an arguable case. It is again questionable whether there is any difference between this test and the one stated in the paragraph above.

27 However, in the Malaysian case of George John v Goh Eng Wah Bros Filem Sdn Bhd & Ors [1988] 1 MLJ 319 , Lim Beng Choon J appeared to have applied the following test:

28 This case was relied on by Mr Reddy. In our view, if this case seeks to impose a higher threshold than that of an arguable case, then we ought not to follow it. This is because it would be against the weight of the other authorities. What is required is not a prima facie case, but a prima facie case of reasonable suspicion. If the latter can be shown, then it cannot be said that the application must necessarily fail, for there would then appear to be an `arguable case`.

29 We now come to the substantive issues. Before doing so, it is useful to set out the relevant legislation. Section 3 of the Undesirable Publications Act provides:

30 It would also be useful to set out the relevant articles of the Constitution. These are as follows:

31 Even though a number of grounds were raised in the application below for challenging Order 405/94, it became quite clear that the main complaint is that Order 405/94 was irrational and far too wide. Mr Reddy argued that it had always been made clear that the sole reason for orders such as Order 405/94 was because of the Jehovah`s Witnesses` refusal to do National Service. In the government`s view, this refusal constituted a serious threat to national security. Mr How conceded that concerns about national security would be a good argument.

32 However, Mr How contended that there must be some facts on which concerns about national security are based. If the Minister`s view on this matter is unreasonable, then it is for the courts to interfere. This is an unremarkable submission. Mr How also submitted that Jehovah`s Witnesses are not a threat to national security. It appears that the nub of that argument is that the size of the population of Jehovah`s Witnesses in Singapore is very small. Hence, every year, only a few male citizens refuse to do National Service. Given the small number involved, relative to the size of the armed forces, they cannot possibly constitute a threat to national security. In any event, even though they refuse to do National Service, they may still perform essential services that are of value to the country.

33 In our view, this line of argument is doomed to failure as it is settled law that issues of national security are not justiciable. The court`s function is only to see that there is evidence that the decision was based on considerations of national security. Reference need only to be made to a few well-known cases. In Council of Civil Service Unions & Ors v Minister for the Civil Service [1984] 3 All ER 935, Lord Fraser expressed the view at p 944:

34 At p 948, Lord Scarman opined:

35 Similarly, Lord Diplock said at p 952:

36 In fact, this same principle has been espoused long ago in the celebrated case of The Zamora [1916] 2 AC 77. In a well-known passage, Lord Parker said in the Privy Council at p 107:

37 It has also been accepted by this court in Chng Suan Tze v The Minister of Home Affairs & Ors and other appeals [1989] 1 MLJ 69 . There Wee Chong Jin CJ stated the principle in the following manner, at p 83:

38 We are aware that we are here only at the application for leave stage, and that the evidence before the court may, therefore, still be scanty. However, it is not disputed that Jehovah`s Witnesses do in fact refuse to do National Service and that this is a central tenet of their faith. It is the appellants` own case that the publications of IBSA are essential for the appellants in the profession, practice and propagation of their faith (had it been otherwise, there would be no question of article 15 being involved and the appellants would have no locus standi). It must follow, then, that these publications are essential for the profession, practice and propagation of beliefs, a central tenet of which is the refusal to do National Service. It seems to us self-evident that this by itself establishes the factual basis that issues of national security are involved here.

39 We are of the view that what follows from this is that Mr How is in fact urging the court to allow him an opportunity to put the issue of Jehovah`s Witnesses` refusal to do National Service before the court in a full hearing for judicial review. This is plainly not justiciable. It is not for the courts to say how many men must refuse to do National Service before the government can legitimately consider that the refusal constitutes a threat to national security. Nor is it for the courts to say what effect allowing even only a handful of conscientious objectors exemption from National Service will have on the morale of those doing National Service or whether it will encourage others to refuse to do National Service. Such issues can only be judged by those on whom the responsibility for national security lies. A refusal to do National Service which is required by law is disruptive of the national ethos and is unquestionably a matter in `the public interest` and relating to `public order`. Hence, we are of the view that even if the appellants could muster all the evidence they could on this issue, they would still not be able to mount an arguable case along these lines, for the simple reason remains that the issue is not justiciable.

40 Then, it was advanced by Mr How that Order 405/94 is far too wide and disproportionate. The argument was that Order 405/94 prohibits all publications by IBSA, and this extends to even innocuous publications such as the King James` version of the Bible. Not only that, the order applies equally to women and senior citizens, who either do not have to or have already done their National Service.

41 Proportionality as a ground of judicial review is not well established. In the GCHQ case, Lord Diplock contemplated the possibility of proportionality being a substantive ground for judicial review in addition to illegality, irrationality and procedural impropriety. However, it is questionable whether proportionality exists as an independent ground for judicial review or whether it is simply an adjunct of irrationality. In fact, this court has twice doubted the independent existence of proportionality previously. In Chng Suan Tze, Wee Chong Jin CJ expressed the view at p 87 that:

42 This test for irrationality, is of course, the well-established one in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.

43 Much the same observation was made by this court in Dow Jones Publishing Co (Asia) Inc v A-G [1989] 2 MLJ 385 .

44 In that case, Chan Sek Keong J (as he then was), stated at p 399:

45 In England, this view was shared in the House of Lords in R v Secretary of State for the Home Department, ex p Brind & Ors [1991] 1 AC 697. This was a case involving directives issued under s 29(3)of the Broadcasting Act 1981 and clauses in the licence made with the British Broadcasting Corp, restricting the broadcast of words spoken by persons appearing or being heard on programmes where such persons represented terrorist organisations. In relation to arguments based on proportionality, Lord Bridge, after referring to irrationality, doubted that proportionality added anything to the case of the appellants there.

46 In the same case, Lord Ackner observed at p 762:

47 In his written submissions, Mr Lester was at pains to record that `There is a clear distinction between an appeal on the merits and a review based on whether the principle of proportionality has been satisfied.` He was prepared to accept that to stray into the realms of appellate jurisdiction involves the courts in a wrongful usurpation of power. Yet in order to invest the proportionality test with a higher status than the Wednesbury test, an inquiry into and a decision upon the merits cannot be avoided. Mr Pannick`s (Mr Lester`s junior) formulation `Could the minister reasonably conclude that his direction was necessary?` must involve balancing the reasons, pro and con, for his decision, albeit allowing him `a margin of appreciation` to use the European concept of tolerance accorded to the decision-maker in whom a discretion has been vested. The European test of `whether the `interference` complained of corresponds to a `pressing social need`` ( The Sunday Times v United Kingdom (1979) 2 EHRR 245, at p 277) must ultimately result in the question `Is the particular decision acceptable?` and this must involve a review of the merits of the decision. Unless and until Parliament incorporates the Convention into domestic law, a course which it is well known has a strong body of support, there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country.

48 At p 766, Lord Lowry expressed the view:

49 And at p 767, he continued:

50 In our view, the above passages succinctly laid out the difficulties involved in accepting Mr How`s argument. Once it is accepted that matters of national security are not justiciable, there is very little room (if any) left for any doctrine of proportionality (assuming it exists) to apply, other than the well-established one of irrationality. To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits. It would require the court to balance the reasons, pro and con, for Order 405/94, albeit with `a margin of appreciation`. However, this is precisely what the courts are not permitted to do, even with `a margin of appreciation`, for that would involve an usurpation of power and responsibility that rightly belongs to the minister.

51 Hence, this leaves the appellants with only the ground of irrationality. At this initial stage of application for leave, we are prepared to accept that Order 405/94 covers innocuous publications printed or published by IBSA such as the King James` version of the Bible. We also accept that Order 405/94 deprives Jehovah`s Witnesses who are women or senior citizens, and who are not required to do National Service, of literature which are necessary for the profession, practice and propagation of their religious belief. We are even prepared to accept that there could well be other less restrictive methods which the minister could conceivably adopt. In particular, we accept that conscientious objectors are already dealt with under the Enlistment Act (Cap 93). In the picturesque words of counsel, we will even assume at this stage that the Minister may have used a sledgehammer to crack a nut when he issued Order 405/94.

52 However, in order for Mr How to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review, that is not sufficient. The test for irrationality is whether no reasonable minister would issue Order 405/94. Using the same metaphor, it is not sufficient for Mr How to show a prima facie case of reasonable suspicion that the minister had used a sledgehammer to crack a nut. He must show what might turn out to be an arguable case that no reasonable minister would use the proverbial sledgehammer to crack the figurative nut. And he must be able to do so within the restriction that issues such as the size of the nut, the thickness of its shell, the force required to crack it, how many attempts one has to crack it, the consequences of failing to crack it, and the adequacy or otherwise of any other alternative such as a smaller nutcracker, are all non-justiciable.

53 In the present case, we are not prepared to say, even accepting all that Mr How has said, that Order 405/94 is one which no reasonable minister would issue. There is no reason why the minister may not consider it necessary to prohibit the King James` version of the Bible printed by IBSA, as part of a broader order banning publications by IBSA, in view of the fact that the same version printed by other sources is readily available. Similarly, the minister may consider that although there are women and other members of the Jehovah`s Witnesses faith who do not have to do National Service, they may have some influence on male members who do have to do National Service or even on male citizens who are not members of the faith. Such considerations are thrown up by simple common sense. In other words, the appellants` case, put at its highest, was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 405/94.

54 Hence, we were of the unanimous view that the appellants had not satisfied the court on even the very minimal requirement that they have something which might turn out to be an arguable case for judicial review. Accordingly, we dismissed their appeal. Appeal dismissed.