Judiciary must ensure rule of law by standing up to the PAP

Below is Dr Chee Soon Juan’s submissions he made during his appeal before High Court Judge Tay Yong Kwang.

Tay Yong KwangYou may be aware that the trial in November last year was problematic in several ways.

Even though some of these rather out-of-the-ordinary occurrences in District Judge Eddy Tham’s court are alarming and merit attention, I do not intend to raise them in this appeal because I do not want them to distract you from the main subject that I wish to highlight today.

P N BagawathieLet me do this by introducing a few lines from a speech made in 1997 by one of your brethren judges in the Commonwealth, the former Chief Justice of India, P N Bagawathie, entitled Democracy and the Rule of Law:

“There are a few institutions which are vital to the maintenance of democracy and the rule of law. They constitute the life breath of the democratic way of life and the supremacy of law. Drain away this life breath, and democracy will perish, the rule of law will end.

Inevitably authoritarianism will take their place. History shows that the first step which a ruler takes when he assumes authoritarian power is to impair the integrity and independence of these institutions.

The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution and the laws and, thereby, making the rule of law meaningful and effective. Most countries have a written constitution which provides the structure allocating and regulating power relations amongst the different organs of the State. The Constitution confers power on the various organs of the State and also lays down the limits within which such power may be exercised.

It is not enough merely to place limitations on the power of the various organs of the State, but it is also necessary to ensure that these limitations are observed and there is no abuse or misuse or excess of power. I would use the provocative phrase “state lawlessness” to describe the situation where there is abuse or misuse or excess of power by the State or its officers or, in other words, where the State or its officers act outside the Constitution on the laws, and thereby, the rule of law is violated…

This ‘state lawlessness’ has to be curbed and controlled by the judiciary. This is the essence of the rule of law, and it goes to the roots of constitutionalism. It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power.

It should be the goal of the rule of law that these multifarious and diverse encounters are fair, just and free from arbitrariness, and it is, therefore, necessary to structure and regulate the power of the executive so as to prevent its abuse or misuse or arbitrary application or exercise…

The judiciary stands between the citizen and the State as a bulwark against executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitations by the executive as well as the legislature…”

Let me point out again that this is not some Jeffersonian principle enunciated by a judge from a Western jurisdiction that the PAP Government revels in denigrating. These are words made by the Chief Justice of a country whose “Asian-ness” Singapore could never hope to match.

Mr Bagawathie even cites Hindu teachings to buttress his view that it is the sworn duty of a Judiciary to stand up for the ordinary citizen against a hegemonic Executive.

Which brings me to the issue at hand. There can be no question, during our trial in November 2006 under Mr Eddy Tham, that the police had been on the lookout for the opposition in general, and the Singapore Democratic Party (SDP) in particular, when we were conducting our activities.

In his testimony, Sgt Lester Wong said that officers were briefed to alert their superiors when they received calls related to “sensitive” cases, code for cases of a political nature (from Notes of Evidence):

Chee: Do you normally inform your team leader on every phone call you receive?

Sgt Wong: Not every one.

Chee: Which phone calls do you feel that you have to inform your team leaders?

Sgt Wong: Phone calls which I think are sensitive cases.

Chee: What do you mean by sensitive cases?

Sgt Wong: Cases which are mentioned during the briefing before I started my work.

Chee: Can you tell me what the briefing was about?

Sgt Wong: I was briefed that once I receive these cases regarding political issues, I should relay such calls to operations room.

Assistant Superintendent Colin Wong, another prosecution witness, went even further and equated such sensitive cases with crimes such as house-breaking and murder. Listen to this exchange in court:

Chee: Can I assume that a message like SDP members giving a talk is “sensitive”?

ASP Wong: Yes.

Chee: Together with house-breaking and murder?

ASP Wong: Yes.

ASP Colin Wong had also told the court that he had briefed his officers the day before our activity took place.

But why should cases involving party politics be considered “sensitive” by the police, as sensitive as murder cases for that matter? Was it because it involved the elections and the fact that the opposition was contesting the Peoples’ Action Party (PAP) for seats in Parliament? If so, did the ruling party have a hand in directing the police to lookout for and harass its opponents conducting election activities? If yes, isn’t this an abuse of power by the ruling party?

Given the fact that it is the duty of the Judiciary to ensure that instruments of the state, as pointed out by Mr Bagawathie and as ordered by our own Constitution, not be misused by the Government to handicap the opposition, especially during elections, should not Judge Tham, at the very least, be curious enough to want to find out why the police considered political issues “sensitive”?

But the Judge was not the least bit interested. Listen to the exchange between Colin Wong, the DPP, Judge Tham and myself:

Chee to ASP Wong: Why do you think this is sensitive?

DPP Lee Lit Cheng: I don’t see the relevance.

Chee to Judge Tham: This affects the issue on how the whole case is conducted. It goes into the entire matter of showing that they have a political master to secure the conviction.

Judge Tham: Not relevant.

Chee: It is important for the Court to know that there is no abuse in the law. This is in the context of political elections. The Government being the Executive holds sway over the elections. I just want to find out why he thinks it is sensitive. I want to know if it is because we are a political opponent of the ruling party. One would imagine that a Judiciary that is interested in impartiality should find out if they (the police) acted in bad faith. I want to ask if PAP members were campaigning, would it be sensitive too. If I can show that there is discrimination that SDP is treated with a different yardstick, then that is no equality before the law.

Judge Tham: Not relevant.

So the trial judge had prevented the Defendants from adducing evidence that could have shown that the PAP had abused its powers. Yet the Courts seem not to mind this one bit and, in fact, prevented us from pursuing this line of questioning which could have revealed information that the PAP Government had in fact resorted to discrimination against the opposition.

So the issue before you this morning, Your Honour, is whether you agree that preventing the Defendants from finding out whether the police had acted in bad faith to cripple the opposition’s efforts to campaign for votes is right or wrong.

If you find that Judge Tham had erred, then you are saying that the Defence was right in seeking to apply the principle of equality before the law as guaranteed in the Constitution.

If, however, you agree with Judge Tham, then we will know that our Constitution is not worth the paper it is written on.

The second matter before this Court today regards the issuance of permits for outdoor political activities. Minister for Home Affairs, Wong Kan Seng, is on record saying: “The government does not authorize protests and demonstrations of any nature.”

If this is in fact the case it is clearly unconstitutional because the Constitution allows for permits to be denied only under certain circumstances. It clearly does not allow for the Government to issue a blanket prohibition of all outdoor political activity.

The constitutional question aside, we were found guilty of not having a permit. You don’t need a legal expert to tell you that if the Government has decreed that it will not issue permits for outdoor political rallies and talks, it certainly cannot accuse the Opposition for not having for one.

Common sense screams out that the state has been disingenuous in charging and convicting my colleagues and I for not having a permit when there was no way we could have obtained one.

Yet, Judge Tham said that this was not an issue: “Why you cannot get a permit is not an issue before this Court.”

Of course it is an issue. If the Court finds that the police had discriminated against the Opposition and that it acted in bad faith, isn’t this a violation of the rule of law. And if it is a breach of the rule of law, why is this not an issue for the Courts?

If such a fundamental violation of the constitution and the rule of law is not the business of the Courts, then why have a Judiciary in the first place?

Judge Tham’s statement is confusing on another front: The PAP Government clearly allows outdoor political activity when it is conducted by its own members such as the NTUC protest against the US in 1988 and more recently in 2005 when it allowed some women PAP MPs to stage a walk-a-thon to commemorate International Women’s Day.

There are many other cases of discrimination against opposition-organised activities. There is a prima facie case to be made against the Government for its discriminatory practice against the Opposition. Everyone in Singapore can see that.

Should the Courts, under the equality principle, at the very minimum not be curious enough to want to see if indeed such discriminatory practices are being carried out by the PAP?

Let me repeat what Chief Justice Bagawathie said:

“This ‘state lawlessness’ has to be curbed and controlled by the judiciary. This is the essence of the rule of law, and it goes to the roots of constitutionalism. It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power.

It should be the goal of the rule of law that these multifarious and diverse encounters are fair, just and free from arbitrariness, and it is, therefore, necessary to structure and regulate the power of the executive so as to prevent its abuse or misuse or arbitrary application or exercise…”

So the question isn’t one of whether the issue is rightly before District Judge Tham. It is one of whether the Judiciary has the courage to exercise its solemn duty as provided for under the Singapore Constitution, as demanded by the very concept of the rule of law which AG Chao Hick Ting recently professed that Singapore adhered to.

If it is not an issue that could be looked into at the District Court level, then I ask Your Honour as a High Court Judge to make that decision to look into the matter. If you tell me that because of some legality this Court does not have the power to look into the question, then for goodness sake please stop passing the buck and tell me once and for all which part of the Judiciary can do so.

But if it is not because of some legal procedure that prevents you from looking into this matter but rather because the Judiciary does not want to confront the PAP, then let us admit it: There is no rule of law in Singapore.

At the end of the day let us dispense with all this legalese. If the legal system cannot conduct itself in a manner that makes sense to the ordinary citizen, then what good does it serve?

If what transpires in the Courtroom insults the people’s sense of what is right and wrong, if it offends the people’s notion of what is just and unjust, if it assaults one’s idea of what constitutes inequity, then what are we to make of the role of the Judiciary in Singapore?

Obviously the legal community in this country is keen on developing itself and for its system to be accepted by the international legal community. Otherwise, it would not have invited the International Bar Association (IBA) to hold its annual conference here later this year.

The IBA has indicated that the rule of law will be a subject of discussion at its event. If at all possible, I would like to raise the matter of this appeal at the conference to see if it makes any sense that our Courts continue to refuse to look into the matter of whether the PAP Government has abused its powers and misused the law to discriminate against the Opposition and cripple our activities.

I hope that my submissions is heard not only by you, Judge Tay, but also by all lawyers, legal scholars, and law students in Singapore. I hope to challenge them to think more critically and honestly about the situation that exists in our country today.

If I make no sense then let us discard what I have said and go on with our lives. But if I have appealed to your conscience and your sense of justice, then I ask that you be true to yourselves and your profession and start righting the wrong that has been perpetrated through the decades.

I have been to jail many times regarding this issue of speaking without a permit and I will continue to go to jail for it. Prison is the last place that I want to be in but sometimes we are called to serve and I have accepted that this is my lot. I will serve my country and my countrymen and women the way I know how and that is by speaking up when I see the desecration of the Constitution and the rule of law as well as the abandonment of what is just and right in this country.

An Opposition without rights is a people without rights. A people without rights is a people bullied and humiliated. A people bullied and humiliated will find no loyalty and patriotism to the state.

Few individuals, individuals like yourself, have been placed in positions of privilege and power. It is good sometimes to look deep into our souls and ask ourselves why some of us have been given the ability to serve in such capacities. I believe the answer is that we are called to do what is just and not to look the other way when injustice stares us in the face.

Let us not cower behind our titles, status and earthly riches when faced with oppressive powers. Let us instead stand courageously and speak truth to power. I am reminded of a Biblical teaching: For what so profit a man who gains the whole world and yet loses his own soul?

Let me re-cap. There are two issues before you today:

One, that Judge Eddy Tham erred when he stopped us from adducing evidence to show that the police had unfairly targeted the SDP during our election activities in April 2006.

Two, that it is unconstitutional for the Government to continue to ban outdoor political activities for opposition parties while allowing them for its own party.

My words this morning may not change the outcome of this appeal; I do not believe they will. So why am I here? Why do I go to such lengths to utter them? Because, if you believe in a God like I do, then you will also know that this matter will not go away. It will continue to haunt us until the wrong is made right.

That is all.

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