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Wednesday, 07 October 2009 |
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Chee Soon Juan
 Before we pop the bubbly and celebrate the acquittal of my colleagues by District Judge John Ng over the protest walk on 16 Sep 07, it is important to examine the Judge's reasoning behind his decision (read the full Judgement here).
Judge Ng had ruled that the Miscellaneous Offences Act (MOA) under which the defendants had been charged was not unconstitutional. He wrote that "There was no basis for the defendants to attack the constitutionality of the legislation."
Perhaps. But Mr Ng misses the bigger point which is that the police will not approve any application for outdoor political activity. The defendants made this point their main contention.
Put simply: the MOA requires groups of 5 or more to apply for permits. Nothing unconstitutional about this, one might argue, at least not in this part of the Act. After all the Constitution does provide for certain conditions under which the Government can deny such activity. Applications for permits will allow the police to assess each case on its merits.
But the PAP goes to the other extreme where it determines that no outdoor political activity is allowed under any condition. The Judge acknowledges this: "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."
Such a policy or administrative act is not backed up by any law and runs contrary to Article 12 of the Constitution.
So while the legislation (MOA) may not be unconstitutional, the administrative act of denying all applications is. This is the nub of our contention: The Government's decision to ban all political activity in public areas is ultra vires the Constitution.
Defendants had submitted on the case of Boddington v PP in which the UK House of Lords unequivocally and emphatically ruled that if an "administrative act undertaken pursuant to [the parent law] is ultra vires and unlawful and that if he establishes that he has committed no crime."
Unfortunately, Judge Ng ignored this point and simply said that "whether a permit could or could not be obtained is not an issue and would not be relevant." He failed to explain why this point is not an issue or how it is irrelevant.
So the main contention of the defence case was not addressed by the Judge. Does this mean that the case is completely unhelpful to the bigger goal of clawing back our fundamental rights as citizens?
No. As my colleague and defendant John Tan said: "This is the first time a judge in Singapore has conceded that not all political activities (in this instance a protest procession) in public places equals public disorder."
It is a small yet significant concession. Judge Ng acknowledges that the reason why the procession (or walk) did not contravene the MOA and its Rules is because it "did not cause inconvenience to the public, affect traffic flow or make noise which disturbed the public peace."
Call this judgement a judicial baby-step if you will. But isn't it true that all things great always first happen with baby-steps?
So what happens next? The Prosecution may appeal, the High Court may overturn Judge Ng's decision, other judge's may re-look at the cases that are on-going - who knows? In other words, what will come from this one single judgment is unclear. It may or may not lead to bigger things.
What is absolutely clear, however, is that without challenge, the status quo will remain. I am reminded that failure does not come when we fall short, it comes when we don't try - a subject I will talk more about in a subsequent piece.
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Perspective 
For argument sake, I see some incongruities with the judge's rather loose understand of "procession". He seems to have acquitted the SDP gang on three facts, that the walk/frog-march/stroll/traipse :
- Did not attract any significant attention of the public.
- Was devoid of any of the usual paraphernalia associated with a protest or rally march such as placards and banners.
- Did not impede or cause any disruption to the flow of vehicular traffic or the movement of pedestrians.
Firstly, I hesitate to believe that a procession must necessarily attract public attention for it to be considered one. The fact could be that the public is totally disinterested, or even turned off by the messages offered, as was probably the case here. This is despite the attention-yearning intents of groups such as SDP for such a parade.
Secondly, whether the group carries paraphernalia such as placards or banners is immaterial. Messages could be carried visually via other forms, eg. emblazoned on their clothes or bodies, as was the case here. To qualify that processions must be accompanied by placards or banners is too prescriptive. I won't even bother to argue why processions need not necessarily be disruptive to traffic or human flow.
The judge also stated that the defendants raised an INGENIOUS 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.
I really wonder why the judge was so easily impressed. Every criminal can take the same argument to its limit by justifying iniquitous acts since he is unlikely to get permits for these.
CSJ is right -- there is hardly any grounds for celebration, especially based on the justifications laid out by the judge which seem to be rather ..... arguable.
My recommendation to SDP is not to expect all judges to be as befuddled (with due respect) as this one.