Yawning 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.

In the absence of any definition provided in the legislation, the starting point to understand the word "procession" would be to consider the natural and ordinary meaning of the word.

The Cambridge International Dictionary of English gives the meaning of procession as "a line of people who are all walking or travelling in the same direction esp. in a formal way as part of a religious ceremony or public celebration." It gives the examples of wedding and funeral processions. The Oxford English Reference Dictionary states it as "a number of people or vehicles etc. moving forward in orderly succession, esp. at a ceremony, demonstration, or festivity". The Collins English Dictionary puts it this way:

1. the act of proceeding in a regular formation
2. a group of people or things moving forwards in an orderly, regular, or ceremonial manner.

The meanings given by the various dictionaries for the word "procession" cite several key features of a procession and these are:

  • A group of people moving together.
  • As part of an event such as wedding, funeral, ceremony, demonstration or festivity.
  • The manner of the movement is described as in a formal way, in orderly succession, in a regular formation.

The Prosecution's position appears to be that so long as a group of 5 or more people walked from one point to another point in a public place to commemorate an event, the people in that group had participated in a procession for the purposes of the Act and the Rules. I am not able to agree with such a simplistic interpretation to the word "procession". I am not saying that there has to be a structured way for the group to move from point A to point B before it can be considered a "procession". It is conceivable that a procession could be formed by a group of people merely moving en masse down a street without any formation or definite shape to it.

The difficulty in this case is deciding whether what the defendants had done on the afternoon of 16 September 2007 amounted to being a procession. The collective evidence of the witnesses of the prosecution and defence showed that the group of people comprising SDP members, a few bloggers and some journalists had walked mainly on the pedestrian pathways from Hong Lim Park to the vicinity of the Istana, using pavements and sidewalks. The people in this group were at times walking in pairs, at times singly and at times in smaller groups. They had walked casually and ad hoc stops were made for pamphlet distribution and toilet breaks.

Other than a few of them wearing similar white T-shirts with the words "Democracy Now" and "Freedom Now", the group did not attract any significant attention of the public while walking. They did not carry any of the usual paraphernalia associated with a protest or a rally march such as placards and banners.

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:

The walk did not impede or cause any disruption to the flow of vehicular traffic or movement of pedestrians. There were occasions when the participants of the group were walking several metres apart along the way and moving amongst the pedestrians. The group also used pedestrian crossings at traffic light junctions in the same manner as other pedestrians, obeyed the traffic signals and did not move en masse onto the streets in any shape or form.

Based on the evidence in this case, what the defendants had carried out did not in my view amount to a procession.


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.

* * * * *

I happened to speak to John Tan, one of the defendants, yesterday. He told me he had not expected that decision at all. He was so shocked himself, he didn't even look around to observe how others in the court room -- the prosecutor, for example -- reacted.

* * * * *

Judicial review

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:

The issue of the constitutionality of the Miscellaneous Offences (Public Order and Nuisance) Act, Chapter 184 ("the principal Act") and the Rules had been decided in the case of Ng Chye Huay v PP [2006] 1 SLR 157. Although that case was about assemblies, it is equally applicable to processions. It was ruled that the provision in the Rules were not discriminatory. It was noted that licensing and permit schemes are an integral and necessary part of the government's ability to efficiently regulate public behaviour.

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.

Although the legislation does not provide for an appeal mechanism, there is adequate scope for redress as any aggrieved individual is free to challenge a decision of the police through judicial review. There is no basis for the defendants to attack the constitutionality of the legislation.

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.

The defendants raised an ingenuous argument that they cannot be prosecuted for carrying out the event without a permit when it was not possible to obtain such a permit in the first place. The defendants were able to show by their cross-examinations of the prosecution witnesses that there was a policy not to grant any permit for political events to be held outdoors. The defence also showed that previous applications to hold such events were not granted. The prosecution's response to this argument was that it is a non-starter since no application for a permit was made in the first place.

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