In the continuing trial of the 16 Tak Boleh Tahan activists, the defence attempted to introduce video evidence of the protest that the Consumer Association of Singapore (CASE) conducted the day after the TBT event.
The protesters, who were speaking up on the dramatic rise in the cost of living last year, are charged with participating in a procession and an assembly outside Parliament House on 15 Mar 08.
Dr Chee Soon Juan was at the point of questioning licensing officer Mr Yeo Kok Leong on the video footage of CASE’s protest march when both trial judge Mr Chia Wee Kiat and DPP Mr Isaac Tan wanted to know the relevance of the video and the subsequent line of questioning.
Dr Chee also wanted to establish with the witness whether the police adhered to the policy of banning all “outdoor political events” as announced in Parliament by Ministers Wong Kan Seng and Ho Peng Kee.
He explained that it was the defence case that the police had acted in bad faith and ultra vires (beyond its powers) of the Constitution in not allowing the TBT protest while permitting the one for CASE. In such a situation it was important for the defence to adduce evidence from the witness to prove its case.
He also lay the foundation for the defence case by first citing Lord Irvine in an English case: “Any system of law under which the individual was convicted and made subject to a criminal penalty for breach of an unlawful byelaw would be inconsistent with the rule of law.”
The SDP secretary-general went on to cite authorities on why the defendants had the right to challenge the lawfulness of the police’s decision. He quoted several Law Lords who had ruled on various cases in England:
Lord Irvine: “… it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings.”
Lord Nicholls: “the proper starting point” must be a presumption that “an accused should be able to challenge, on any ground, the lawfulness of an order the breach of which constitutes his alleged criminal offence:”
Lord Irvine: “In my judgment only the clear language of a statute could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a byelaw or administrative decision where his prosecution is premised on its validity.”
Lord Browne-Wilkinson: “It is sufficient for the decision of the present case to agree with both my Lords in holding that a man commits no crime if he infringes an invalid byelaw and has the right to challenge the validity of the byelaw before any court in which he is being tried.” (All emphases added)
Lord Slynn: “I hold that it is open to a defendent to raise in a criminal prosecution the contention of a byelaw or an administrative act undertaken pursuant to it is ultra vires and unlawful and that if he establishes that he has committed no crime.”
Lord Steyn: “There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence.”
Lords Brooke and Kay: “It is now well established that the courts have power to examine the way in which public servants like the police use discretionary powers given to them under a statutory regime. The wider the power, and the more it impinges on persinal liberty, the more anxious the court will be to ensure that it is used to achieve the purpose for which it was granted and not for any ulterior or extraneous purpose.”
Lord Reid: “[I]f the Minister (or police), by reason of having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy of the objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.”
Following Dr Chee’s submissions, the DPP asked for a couple of hours to prepare his rebuttal. When the session resumed, DPP Tan argued that the cases that Dr Chee cited were all English cases that are persuasive but not binding on Singapore courts.
He then countered with a few cases of his own, one of which was former Chief Justice Yong Pung How’s ruling that when the validity of an act by the executive was questioned, the Subordinate Courts had no power to hear the matter. Rather the matter should be heard at a Judicial Review.
Ironically, Dr Chee pointed out, CJ Yong in his judgment had himself relied on an English case (Bugg v DPP) where Mr Yong cited Lord Woolf extensively.
Even more ironic Lord Woolf qualified himself in his judgement that “In the case [where the defendant alleges] bad faith, there may be an issue which the [subordinate] court can determine and if so, evidence will be required.”
Dr Chee closed the defence arguments saying that the defence case hung on its ability to demonstrate that the police had abused their power and acted in bad faith.
“If you stop us from questioning the witness on this point then you cut the legs from under our case that would result in terrible injustice,” Dr Chee said.
Judge Chia Wee Kiat adjourned the hearing to deliberate on the arguments and will render his decision tomorrow in Subordinate Court No 5.