District Judge Chia Wee Kiat disllowed the defence to submit video evidence showing a protest and march by the Consumers Association of Singapore (CASE).
The Judge also refused to allow the defence to adduce evidence that would show bad faith on the part of the police in rejecting the application made by Dr Chee Soon Juan for the protest on 15 Mar 08.
This took place in court today in the on-going trial of 16 Tak Boleh Tahan (cannot take it) protesters who are charged with taking part in an assembly and a procession without a permit.
Yesterday when Dr Chee Soon Juan cross-examined licensing office Mr Yeo Kok Leong on the stand, the Judge and DPP questioned the relevance of Dr Chee’s cross-examination. (See here)
The SDP leader then cited case after case where no less than nine Law Lords in England repeatedly and emphatically ruled that courts hearing criminal cases have a duty to uphold justice by allowing defendants to challenge public bodies such as the police on their decisions in order to show mala fide (bad faith) by the authorities. (See below)
Despite all these case laws presented to him, Judge Chia ruled that the questions were not allowed.
The TBT defendants are trying to show that the policy of the police to ban all outdoor political activities is ultra vires the Constitution.
Dr Chee explained that the evidence needed to be adduced and the Judge can then decide based on the evidence whether the policy is unlawful vis-a-vis the Constitution. He also explained that it was important to show that the police had discriminated against the TBT in favour of CASE and therefore had acted in bad faith.
But the Judge adamantly refused to allow the questions.
“Your Honour, I cling to those words by Lord Irvine that if a law or policy is ultra vires of the Constitution then no citizen should be convicted and punished on the basis of it,” Dr Chee pleaded.
“You will agree with me that in the Boddington case, the House of Lords did not just mention in passing but indeed placed great emphasis on the fact that justice must be done in any court and that under the common law, of which Singapore is part, convicting citizens by not allowing them to challenge the validity of executive policy is clearly unacceptable.
“My fellow co-defendants and I, are not criminals. Just like anyone else in this court room, we are law-abiding citizens. But being a law-abiding citizen does not mean we follow the law blindly.
“Being law abiding also means respecting the rule of law and abiding by our Constitution. I urge you to reconsider your decision.”
“Mr ruling stands,” Judge Chia replied
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 defendant 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.”