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
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.