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District Judge Thian Yee Sze convicted Dr Chee Soon Juan on two counts of speaking without a permit on Friday. She imposed a fine of $10,000 or 10 weeks imprisonment in default. The execution of the sentence was stayed pending appeal.
Dr Chee is charged with eight counts of speaking in public under the Public Entertainment and Meetings Act. He is already convicted of four, including the present two.
Judges Eddy Tham and Jasvender Kaur had previous found Dr Chee guilty of one count each. The SDP secretary-general served a five-week jail term in 2006 for Mr Tham’s conviction. The sentence for Judge Kaur’s decision in 2008 is still awaiting appeal.
The charges are over Dr Chee and his party colleagues selling The New Democrat during elections in 2006. He had asked for all the eight cases to be consolidated and tried at one go. The AG’s Chambers and courts refuse to do this.
The SDP leader has repeatedly argued that the charge of him not having a permit is a red herring. The Ministry for Home Affairs and police have stated that no permit will be issued for outdoor political events.
Dr Chee pointed out that such a policy to issue a blanket ban on public speaking and assembly clearly violated the Constitution and are therefore legally invaild.
Citing legal authorities in common law jurisdictions, he drew Judge Thian’s attention to the decision of the House of Lords in the UK that “a man commits no crime if he infringes an invalid [policy or administrative act] and has the right to challenge the validity of the [policy] before any court in which he is being tried.”
Judge Thian refused to listen and proceeded to convict Dr Chee.
Chee Soon Juan’s closing submissions
I have been charged under Section 19(1)(a) of the Public Entertainment and Meetings Act, Chapter 257 for speaking without a permit.
We are citizens of Singapore and as citizens, we are guaranteed of our fundamental freedoms under Article 14 of our Constitution which states that:
a. every citizen of Singapore has the right to freedom of speech and expression;
b. all citizens of Singapore have the right to assemble peaceably and without arms; and
c. all citizens of Singapore have the right to form associations.
This Constitution was written and promulgated when we wrestled our country back from the British colonial government. It wasn’t just a flight of fancy on the part of the framers of the constitution when it was written. Every word was scrutinised and considered before its inclusion in the document.
In other words, the Article 14 was written in to ensure that we, as a people, would be able to fully partake of our freedoms of speech and assembly. We were guaranteed these basic political and civil rights that enable us as free individuals to choose our own government instead of having to rely on and be subject to the rule of another sovereign.
The idea of applying for a permit is a red herring. The Minister for Home Affairs Mr Wong Kan Seng stated in February 2003 that the “government does not authorise protests and demonstrations of any nature.”
He repeated in Parliament in February 2009 and I quote the Hansard: “We have stopped short of allowing outdoor and street demonstrations…Our experiences in the past have taught us to be very circumspect about outdoor and street protests.”
As you can see, the Singapore government has stated plainly that it will not allow anyone to hold protests and demonstrations of any nature.
Contrast this with Article 14. The constitution says we have the right to freedom of speech but the Minister says he will not authorise such activity.
Clearly there is a contradiction. In other words what the Minister says and does is in conflict with the Constitution.
There is display of our legal system and the Constitution in the foyer of the Subordinate Courts. One of the display panels describes the “Tools of the Law” and a paragraph in it states that “Any law that conflicts with the Constitution is void and Singapore courts can strike down any legislation or executive acts that go against the Constitution.”
It cannot have been the intention of the framers of Singapore’s constitution that Parliament can exercise its authority to limit free speech in an arbitrary manner. What limits exist must have at least some rational and bona fide basis.
A sweeping ban, one that presumptively eliminates the right of free expression, cannot possibly be one that is genuinely and rationally targeted at any mischief that Parliament can lawfully address.
Moreover, the Constitution of Singapore must be construed, where possible, to be consistent with customary international law. The latter provides for free expression for all citizens everywhere; it does not tolerate bans that are massive, arbitrary and disproportionate.
Still less does the administrative law of Singapore permit the exercise of executive discretion in a manner that is harshly, arbitrarily and disportionately inimical to freedom of expression and assembly.
The across the board refusal of the Executive to issue permits is not consistent with the rule of administrative law, which requires rationality and good faith in the exercise of discretion, a willingness to consider situations on their merits rather than adopting rigid rules that have no basis in enabling legislation, and the interpretation and application of legislation in a manner that is consistent with the basic principles of a human rights, customary international law, Singapore’s solemn international commitments, and parliamentary democracy.
Freedom of expression and assembly are part of the preconditions for a meaningful parliamentary democracy. An interpretation of the constitutional and administrative law of Singapore must take into account all of its components.
It is not reasonable to accept any and all interferences with political liberties that Legislature or Executive attempt, forgetting that it is political freedom and accountability to the public that is the foundation for the exercise of legislative and executive authority. This point was acknowledged by the Supreme Court of the United States in many cases that identify freedom of expression and assembly as “preferred freedoms” because they are absolutely fundamental to the existence and operation of a free and democratic society.
Judges of the Supreme Court of Canada arrived at a similar conclusion in the famous Alberta Press case.
Ironically, the Minister for Home Affairs Mr Wong Kan Seng goes on to couch such a Constitutional breach by invoking the concept of the rule of law: “I believe that Singaporeans understand and support the fundamentals that have made Singapore what it is today. What are these fundamentals? The first fundamental is the rule of law.”
But what really does the rule of law specify and require? The former Chief Justice of India Mr P N Bhagwatie stated that the State must act
“within the limits of power conferred upon it by the Constitution and the laws…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…in other words, where the State or its officers act outside the Constitution on the laws…the rule of law is violated.“
But when the constitution, and by extension the rule of law, is undermined by the executive branch of the government, who is going to ensure that the problem is corrected? Mr Bhagwatie says:
“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…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.”
Chief Justice of Canada, Madam Beverly McLachlin, wrote in December 2005 that “Judges must resist…making ‘law’ out of what cannot be just, and hence, in a profound sense, cannot be legal. To do otherwise is to allow injustice to hide itself under the cloak of false legality.”
But what is she referring to when she talks about making law out of what cannot be just? She is referring to the Universal Declaration of Human Rights (UDHR). She stated plainly that “the drafting and adoption of the Universal Declaration of Human Rights in 1948 was a giant step forward in legal and societal thinking.” (emphasis added)
Explicitly and unambiguously stated in the UDHR, I believe they are Articles 19 and 20, that no person shall be denied his or her right to freedom of speech, association and assembly.
May I point out that Singapore has ratified two United Nations conventions, the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
It is clear that the Singapore accepts the fundamental premise of the UDHR, otherwise we would not have ratified these two Conventions. Underpinned in these Conventions, CEDAW and CRC, are the general rules of which the game is played, so to speak.
In other words the UDHR is the foundational statement from which CEDAW and CRC are born. What this means is that when Singapore raitifies these Conventions, we have to abide by the general rules as laid out in the UDHR. We cannot pick and choose which rules we want to abide by and which ones we want to ignore.
Also at the Commonwealth Heads of Government Meeting in Abuja, Nigeria, in December 2003, Singapore fully endorsed the Commonwealth (Latimer House) Principles on the Three Branches of Government.
This document states that the Commonwealth countries reaffirm their commitment to the Statement on Freedom of Expression adopted in March 2002: “We stand united in our commitment to democracy, the rule of law, good governance, freedom of expression and the protection of human rights…”
In addition, Singapore has ratified the Association of Southeast Asian Nations (ASEAN) Human Rights Charter which states in Article 1(7) that members states will “strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms…”
It is clear that Singapore has agreed to abide by customary international norms regarding the fundamental freedoms of speech and assembly. It is also clear that the Singapore government refuses to honour and practice what its has signed on to.
I will do this by citing the decision of Yong Pung How, then CJ, in Colin Chan v PP (1994) 3 SLR 662. In the decision, Yong CJ had examined a host of authorities and culminated with the citing of an English case Bugg v PP (1993) 2 WLR 628 which was heard by Woolf LJ.
Yong CJ remarked that some “conflicting decisions seem to have been finally determined” by Woolf LJ in Bugg v DPP. I quote Yong CJ to emphasize the weight he placed on Woolf’s LJ judgment, that there was a sense of a finality, and hence great importance, in Woolf’s decision.
Woolf had addressed the issue of the role of a criminal court, such as this one, as it related to the question of substantive validity of a law or subordinate law. Woolf LJ said:
“These developments are, in our judgment, of importance when considering the proper role of a criminal court where a defendant who is charged with breaching a byelaw seeks to challenge the validity of that byelaw. It is possible to identify at least two different situations in which this will arise. The first is where the byelaw is on its face invalid because either it is without the power pursuant to which it was made because, for example, it seeks to deal with matters outside the scope of the enabling legislation, or it is patently unreasonable. This can be described as substantive invalidity.”
Constitution which states in Article 4: “This Constitution is the supreme law of the Republic of Singapore and any law enacted by the Legislature after the commencement of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
It would take someone very reckless to say that there is no substantive invalidity in this police policy. No person, able to reason, would conclude that the policy is not substantially out of line and patently unreasonable with the Constitution, both in spirit and in the letter.
Or course the next question that is: Does this court have the power to consider such a question of substantive validity? Of course, you have. Woolf LJ writes:
“In the criminal proceeding what has to be established is that the byelaw is unreasonable in the way in which it operates. This aspect of substantive invalidity was illustrated by Lord Russell of Killowen CJ in Kruse v Johnson (1898) 2 Q B 91, 99 as occurring, for instance, if the byelaws:’were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men…’ “
Woolf reiterates this point later:
“In the case of substantive invalidity, it is a matter of law whether, for example, a byelaw is unreasonable in operation or is out with the authorising power. No evidence is required; the [criminal] court can decide the issue by looking at the terms of the primary legislation and the subordinate legislation which is alleged to be invalid.“
So the law is utterly clear that the criminal court, that is this present court, can consider the question of whether the written policy of the Singapore Police Force is substantively invalid of the Constitution.
Which brings us to the next question: What does this Court do with a policy that is substantively invalid? On this subject Woolf LJ he didn’tt mince his words:
“Where the law is substantively invalid…No citizen is required to comply with a law which is bad on its face. If the citizen is satisfied that that is the situation, he is entitled to ignore the law.“
Let me use the analogy of a person being penalised for not displaying a parking coupon. An element of the charge is that there was no coupon displayed at the time the car was checked. The driver cannot then say that at that time the shops were all closed and there was no one from whom he could purchase the parking coupon. Such a defence is irrelevant to the element of the charge.
But what if the authorities said they did not sell the coupons? Would the matter now change? The driver had no way of buying such coupons at any time to display on his car. Could he still be charged for parking his without a coupon?
This is exactly what is happening in our present charge. The prosecution maintains that the element of the charge, or at least one of the elements, is that we did not have a permit for the procession. But as you have heard from DSP Marc E, the police’s policy position is that they reject all applications and that they disallow all processions.
The illogic of the charge jars the reasonable mind. Can the police accuse anyone of not having a permit when it makes clear that it will not give that permit?
If the Constitution clearly tells me that I have the right to freedom of speech and assembly but the police tells me that it will not grant me a permit for it, then the police policy is clearly substantively invalid and this being the case Woolf’s LJ decision, to which Yong CJ attached much importance, tells me that I am not required to comply with such a policy.
Clearly there is an abuse of power on the part of the police to not give permits under any circumstance because, as I outlined above, the Constitution does not grant the blanket ban on demonstrations and processions.
We have been trying to demonstrate to the court that there is abuse of power, mala fide and bad faith by the police. Woolf LJ cannot be clearer on this:
“We have particularly in mind cases where it is suggested that there has been an abuse of power because of mala fides on the part of the byelaw maker. In the case of bad faith, there may be an issue which the criminal court can determine and if so, evidence will be required.“
The crux of the matter is that our constitutional rights may not be taken away by the police taking on some “policy position.” Such policy is substantively invalid.
The issue of substantive invalidity of the police policy must be relevant to the charge because it renders the charge null and void. No citizen is expected to obey a law that is substantively invalid to the Constitution.
There is more than a suggestion of bad faith and mala fide on the part of the police. This necessitates our cross-examination of the licensing officer in order for us to adduce evidence.
Because of the issues of substantive invalidity and bad faith, this court has the power to hear the arguments without the need for a Judicial Review.
Your Honour, the law is clearly with the defence and we ask that you administer justice accordingly.
Mr Yap Keng Ho, who was the other defendant, was also convicted. He was fined $2,000. Mr Yap refused to pay the fine and is servng a 20-day jail term in default.