Bread. 8 October 2009
More thoughts on the 'Not a procession' judgement
Much as the Straits Times tried to give the government front page treatment, with a big photo of Prime Minister Lee Hsien Loong meeting with new Japanese PM Hatoyama, for politically interested Singaporeans, the big story yesterday was the acquittal of five members and supporters of the Singapore Democratic Party (SDP) over a charge of holding an illegal procession.
On 16 September 2007, Gandhi Ambalan, John Tan, Chee Siok Chin, Chong Kai Xiong and Yap Keng Ho had walked from Hong Lim Green to Parliament, the Istana, finally reaching Queenstown Remand Prison where party leader Chee Soon Juan was then incarcerated. At different times during the walk, there were varying numbers of people, but these were the five hauled to court for what the prosecutor called a "procession".
District Judge John Ng didn't agree. He said the circuitous walk undertaken by these persons did not constitute a procession in the ordinary meaning of the word.
It is an interesting enough decision that I will now, for the record, quote significant chunks of. The judge began by noting that although both the Miscellaneous Offences (Public Order and Nuisance) Act, hereinafter called "the Act", and its subsidiary legislation, the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules, hereinafter called "the Rules", used the word "procession", it was not defined.
The judge was quick to say however, that a body of people could still amount to a procession even if they didn't carry banners or placards, if it exhibited other features of a procession.
In this case however, he found they did not:
I fully expect the prosecution to appeal. I think they will ask the High Court to find the District Judge's reasoning faulty, and thereby reverse the verdict. Along the way, they may also ask the High Court to issue a definitive interpretation of the word "procession" as used in the Act and the Rules.
Whether the High Court then finds its own voice on the matter will be interesting to watch.
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While most attention will be focussed on this part of the decision, I personally thought another part was equally interesting. One of the defence arguments was that the Act and the Rules were unconstitutional, hence they should not be required to abide by them and obtain a police permit.
The judge dismissed this argument. This is what he wrote:
I believe the case of Ng Chye Huay v PP was a High Court case, and thus a District Court judge would be bound by it.
Note the words "judicial review". I will come back to it.
One of the arguments made by the defence to flesh out their claim that the Act and Rules were unconstitutional was that in practice, applications for permits were always denied. Interestingly, the following sentences in the judge's decision virtually makes a finding of fact that this is in fact the situation. He recognised that the defendants were able to tease out of prosecution witnesses the fact that there exists a standing policy never to issue licences for political processions.
This is where I come back to judicial review. But first, for the layman: What is judicial review? It is an enquiry by a court into the actions and decisions of a government official or entity to judge if such actions or decisions are lawful, and "lawful" includes whether they are constitutional.
You see: Even if the Miscellaneous Offences (Public Order and Nuisance) Act is constitutional, as well as its subsidiary Rules, the actual decision by the police to deny a permit may not be. More importantly, the standing policy to always deny permits, on the face of it, does look unconstitutional or unlawful, and can be a subject of review.
After all, the constitution states that people shall have the freedom of expression and assembly. It modulates that right by saying that Parliament may make such laws and rules as may be necessary to regulate the exercise of this freedom.
"Regulate" is not the same as "ban". "Regulate" ought to mean a measure of enabling, perhaps with conditions attached to ensure an orderly exercise of that freedom. If in the exercise of its powers, the police effectively ban all political assemblies and processions, then the administrative actions of the police flout the spirit of the constitution.
The name of the law itself, especially the four words in parenthesis, suggests the legislative intent behind it. It is called Miscellaneous Offences (Public Order and Nuisance) Act. It is meant to regulate so as to prevent public disorder and nuisance. Are we to equate all political assemblies and processions with disorder and nuisance? Surely, that cannot be. Singapore's own political history, let alone virtually all other countries' experience, shows that political assemblies and processions are not necessarily disorderly or a nuisance. That is plain fact. In that case, blanket bans cannot possibly be the legislative intent of the law. Remember too, a few decades ago, the same law was used to approve licences for political gatherings and processions, including the People's Action Party's victory processions after each general election.
So the law is fine. The Rules are fine. It is the decisions (and the standing administrative policy that compels those "No" decisions every time) that violate the spirit and intent of both the Constitution and Parliament. And someone should launch a judicial review to get them declared as unlawful.
And you know what? The government itself knows its actions are unlawful. It knows that if ever a judicial review is conducted enquiring into its standing policy and individual decisions, the court will likely rule against them. A court with integrity will rule against them.
What grounds have I to arrive at this perspicuous insight? Simple, my dear Watson. You can tell who are the guilty parties from the way they sneak about.
It's like this: The police almost never give a reply to any application for a permit until the very last minute. Typically, they convey their "No" decision on the evening before the date of the planned event.
(Not just the police. The Media Development Authority is also like that.)
This timing is meant to minimise the chance that the aggrieved applicant will apply for judicial review. He just won't have the time to do so.
I am told by a lawyer that our courts' practice is to refuse to hear cases where the date of the event has already lapsed. They will only take up a case if it is a "live" one. So, if your event is on Saturday and you have only got your "No" answer on Friday night, after office hours, the earliest opportunity for you to file for judicial review would be Monday, but by then, the court will say the matter is moot, and refuse to hear your case.
The police appear to be exploiting this to avoid scrutiny.
So how? Again, the solution is simple, if only some people in high-up places have balls. All it takes is for a court to recognise that by a habit of issuing "No" replies at the last minute, the executive is exploiting court practice to avoid scrutiny and this exploitation is suspicious in itself. Thus, in the interest of justice, the court itself has to lift its own rule of only hearing "live" cases.
It might not save an event whose date has passed, but it can strike down the standing policy and require in future, that each application for a procession must be considered on its own merits and an answer to the applicant given in a timely manner. This way, if the applicant for a future event is still dissatisfied with the answer, he has a chance to file for judicial review of that particular decision before the date of his planned event is past.
© Yawning Bread