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Do the police in Singapore have the right to ban public demonstrations and processions purely based on their “policy position”? Or is such a policy ultra vires (beyond the scope of its power) of the Singapore Constitution?
This question was asked of District Judge Toh Yong Joo in the on-going trial of the four activists charged with attempting to stage a procession during the World Bank and International Monetary Fund meeting in September 2006.
Last Thursday Dr Chee Soon Juan, one of the defendants, asked the Judge to make a ruling on the matter. Judge Toh, however, refused.
On Friday, Dr Chee pressed the point again. Citing authorities, including a judgment by England’s Lord Justice Woolf which former Chief Justice Yong Pung How had relied on, the Singapore Democrats’ secretary-general said that the Subordinate Courts had the power to rule on such a matter.
“Lord Justice Woolf stated in his decision that a criminal court can determine the matter if a policy of the executive is ‘on the face of it’ contradictory of the constitution.” Dr Chee pointed out.
“I decline to making any such findings, I reserve my judgment until after hearing all evidence,” Judge Toh replied.
But in Woolf’s decision, it was determined that such an issue “is a matter of law whether, for example, a byelaw [policy] is unreasonable in operation or is out with the authorising power.” And it such an instance “no evidence is required; the court can decide the issue by looking at the terms of the primary legislation [Constitution] and the subordinate legislation [policy] which is alleged to be invalid.” (emphasis added)
One of the prosecution witnesses, licensing officer Marc E, had already testified that the police have a written document that expressly forbids demonstrations of any nature. What other evidence does a judge need to rule on this matter?
But the Judge still refused: “I repeat my stand, I decline to making any such findings.”
Sensing that the Judge was unsure of the issue, Dr Chee then asked him to refer the matter to the High Court for adjudication, a mechanism provided for in the Subordinate Courts Act where a lower court judge has the discretion of referring a constitutional issue to the High Court.
The Judge again refused: “I decline to exercise my power to refer this matter to the High Court under section 56A of the Sub Courts Act as I see no reason why the case should not proceed.”
“We are talking about fundamental freedoms of not just the four of us seated here in this courtroom but the freedoms of all Singaporeans,” Dr Chee pressed on. “This issue goes to the heart of our Constitution and whether we are a nation of laws. As I have pointed out, the Constitution is the supreme law of the land. What the police have done is substantively invalid of the Constitution.”
Deputy Public Prosecutor Lee Lit Cheng interjected and, in an unbelievable adulteration of logic, argued that the police have said that they would reject any application for a demonstration.
“This clearly shows that there was no discriminating policy, and therefore no basis to suggest that there was any contravention of the Constitution,” the prosecutor comically offered. But she was dead serious.
Dr Chee replied: “You don’t need to have a PhD to see that there is a contravention of the Constitution. If you can read and reason, you will be able to see that Article 14 of the Constitution says one thing and the police are doing something diametrically opposite.
“It seems that the Singapore establishment is the only place that cannot see this contravention. Everyone else, including the International Bar Association, legal scholars, senior lawyers, sees this. No one believes that this kind of policy is not in direct contravention of our Constitution.
“If Your Honour can see that the two are in conflict, then rule in our favour. If not, rule against us and we can then get on with the rest of the hearing. But either way make a ruling, don’t procrastinate. And if you cannot decide then refer the matter to the High Court.”
The Judge declined to do all three, indicating that he would decide on this at the close of the prosecution’s case.
The trial at Subordinate Court 19 resumes on Tuesday.