Judiciary steps into politics with decision on protests

December 8, 2005
Singapore Democrats

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11 Dec 05

The ruling by Mr V K Rajah mocks the Constitution and the principles of democracy. The decision removes all doubt, if there was any to begin with, that Singaporeans effectively live under a dictatorship.

By making this decision, the courts have signaled its refusal to protect the rights of Singaporean citizens to assemble peacefully to protest against the Government and its policies. This is in spite of the fact that there were only four protesters and the Constitution guarantees that only five or more people constituted an illegal assembly.

It is utter nonsense for the judge to equate public protest to public nuisance or “something even more serious.” This is an insult to decent and right-minded Singaporeans who want to express their unhappiness with the Government through public protests – a freedom enjoyed by civilized and open communities all over the world.

This tired argument has been used by the PAP through the years whenever calls for freedom of speech are made. It is also the kind of antiquated thinking that retards Singapore’s development as a modern nation able to run with democracies of the world.

Mr Rajah’s reference to the words “CPF, NKF, HDB, GIC: Be transparent now!” painted on the protesters T-shirts as “incendiary” truly boggles the mind. If calling for transparency and accountability is “incendiary” (and thus prohibited) what can the Singaporeans call for? Even the Government admits that for (specious) commercial reasons, the GIC cannot be transparent.

The judiciary is effectively saying that it will act as the police and decide what messages are permissible and what are not in a public protest, assuming that protests are allowed. By doing this, are the courts not dragging themselves into the political arena, something that all judiciaries in established democracies assiduously avoid?

What about the National Trades Union Congress protesting against the US Government in 1988 for “interfering” in Singapore’s politics? What if it was the opposition who had tried to conduct that protest? Would the protest then be considered “incendiary”? Which authorities will decide what messages are proper and what are not? Nowhere in the Constitution does it say that a protest of four or less persons shall be allowed only if the message is deemed proper.

And since when was it the courts’ duty to protect the integrity and reputation of public institutions? Already the Government has an iron-grip on the media to ensure that the public gets to watch, read and hear nothing but good news about the Government. The voice of the Government shrieks loud and deafening. What is needed is protection of the citizens’ voice. The one-way traffic of political debate in Singapore is painfully clear to all who are willing to see.

Saying that Singaporeans do not have the right to “picket public institutions” because to do so would be to “question the [institutions’] integrity and cast a slur on their reputation” is tragic beyond words.

The judge has unwisely stepped on a political mine that will explode with serious consequences in the future.

The courts have spoken and they have made clear their stand. There is no recourse left available for citizens to express their dissent in a Constitutional manner.

It is confirmation, if any more is needed, that civil disobedience is the only route open to Singaporeans who wish to see our country embark on the path towards democracy and openness, and to remain faithful to our national pledge “to build a democratic society, based on justice and equality…”

CHEE SOON JUAN

Secretary-General

Singapore Democratic Party

Below is the concluding segment of Mr V K Rajah’s written judgment. The entire judgment can be read at http://uy.http3.net/CPFB_OM/CPFB_OM_VK_RAJAH.pdf

Conclusion

130 The applicants’ claim is struck out on the basis that it discloses no legitimate legal grievance whatsoever against the respondents and/or any other authority. The claim is inescapably flawed by its own legal and factual inadequacies and fallacies which the applicants can neither redeem nor repair. As such it is doomed to fail.

131 The applicants have persistently attempted to elevate the present proceedings to a “constitutional motion” to protect the public right of assembly. They claim that the protest was “peaceful”. This cannot mask the fact that the contents of their T-shirts and the placard are prima facie more incendiary than an ordinary affray or a localised breach of peace. Their protest amounts to a grave attack on the financial integrity of key public institutions. Not even a modicum of effort has been made in the present proceedings to justify the attacks made on these institutions. Why? One might reasonably be inclined to think that the applicants were protesting because they had unearthed some skulduggery or chicanery prevailing in these institutions which they wished to unravel by bringing to the public’s attention. However, nothing has emerged. This is also not in effect a case about the freedom of speech. The applicants’ unequivocal stance seems to be that they have an unfettered right to undermine the legitimacy of public institutions without being held accountable for the consequences of their conduct. The Constitution protects no such right.

It cannot. The existence of such an open-ended “right” would undermine the very existence of public governance which in turn depends on public confidence in institutional integrity.

132 Different countries have differing thresholds for what is perceived as acceptable public conduct; differing standards have also been established when it comes to the protection of public institutions and figures from abrasive or insulting conduct. There are no clearly established immutable universal standards. Standards set down in one country cannot be blindly or slavishly adopted and/or applied without a proper appreciation of the context in another. It is of no assistance or relevance to point to practices or precedents in any one particular country and to advocate that they must be invoked or applied by the court in another. The margins of appreciation for public conduct vary from country to country as do their respective cultural, historical and political evolutions as well as circumstances. Standards of public order and conduct do reflect differing and at times greatly varying value judgments as to what may be tolerable or acceptable in different and diverse societies. In the final analysis, the court will not only be guided but indeed be bound by the manifest intent and purport of both the Constitution and domestic legislation, not by abstract notions of permissible conduct. In so far as the interpretation of the Constitution is concerned, the following remarks made by Thomson CJ several decades ago in The Government of the State of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963] MLJ 355 at 358 remain most apposite:

[T]he Constitution is primarily to be interpreted within its own four walls and not in the light of analogies drawn from other countries such as Great Britain, the United States of America or Australia.

133 The integrity of public institutions and more specifically of the persons entrusted with these institutions, forms an integral part of the foundation that grounds Singapore. It accounts in no small measure for the singularly stable and upright stature Singapore has managed to uphold. Undermining confidence in these institutions and/or the persons responsible for them without any justification, apparent or otherwise, can hardly be described as a “peaceful protest”. Domestically as well as internationally, public governance in Singapore has been equated with integrity. To spuriously cast doubt on that would be to improperly undermine both a hard-won national dignity and a reputable international identity.

134 To all intents and purposes, what the applicants are in fact contending that under present legislation they are at liberty in groups of four or less to picket public institutions, question their integrity and cast a slur on their reputation without any restraint and/or responsibility for what they may wish to say. This is premised on a fundamental misapprehension of their rights. They can certainly voice criticism if they have a veritable factual or other legitimate basis to do so. This must however be done within the parameters of the law. Public conduct cannot be transmuted at will into public nuisances.

135 Despite what the applicants think or say, the present proceedings raise no momentous constitutional issues. It is an adroit attempt to conjure an illusory right elevated on improbable legal stilts. The right of assembly and/or freedom of speech in Singapore is not itself illusory. It has, however, to be exercised responsibly and within the confines of the law. The exercise of constitutional rights is never absolute whether in Singapore or anywhere else. Rights inevitably and invariably entail some responsibilities.

There is neither any authority nor basis for the extravagant proposition that an unconditional right to hold a protest or public meeting at any public place and to make statements without any restraint constitutes a fundamental right of assembly and/or free speech. In Singapore, Parliament has through legislation placed a premium on public order, accountability and personal responsibility. As Lord Reid observed with his customary incisive acuity in Cozens v Brutus ([70] supra) at 862, free speech should not “go beyond any one of three limits. It must not be threatening. It must not be abusive. It must not be insulting.” Free speech is neither impaired nor impeded by ruling out such conduct. Nor is the right of assembly curtailed by expecting or exacting from citizens responsibility for their conduct. While it is axiomatic that in every democratic society those who hold office must remain open to criticism, such criticism must be founded on some factual or other legitimate basis. The object of contesting and changing government policy has to be effected by lawful and not unlawful means. Wild and scurrilous allegations should be neither permitted nor tolerated under the pretext and in the guise of freedom of speech. Disseminating false or inaccurate information or claims can harm and threaten public order.

136 The applicants appear to suggest that as long as there is no actual or threatened breach of peace, they are perfectly at liberty to say or do anything they see fit, wherever and whenever they choose to; they are misguided. They cannot but observe and abide by the civil and criminal laws of defamation, sedition, public nuisance and public order.

Freedom of action invariably ends where conflicting rights and/or interests collide. Contempt for the rights of others constitutes the foundation for public nuisance. All persons have a general right to be protected from insults, abuse or harassment. Those who improperly infringe or intrude upon such a right to draw publicity to their cause, regardless of the extent and sincerity of their beliefs, must be held accountable for their conduct. The right of freedom of expression should never be exercised on the basis that opinions are expressed in hermetically sealed vacuums where only the rights of those who ardently advocate their views matter. That is entirely inappropriate. Freedom of expression when left unchecked may reach a point where protest, criticism and expression culminate in nuisance or something even more serious. The law inevitably has to intervene then.

137 All said and done, two aspects of the applicants’ bold and blatant attempt to place the respondents in the dock stand out. First, the alacrity (passionately articulated through Mr Ravi) with which they invited the court to proceed promptly with the hearing and dispose of the matter, based only on the bare facts of their affidavit, suggests that they had no further factual assertions to make and that their case was complete. Secondly, I cannot ignore the total lack of a factual basis in the supporting affidavit to support the gravamen of their “protest” against the institutions concerned. There was simply no attempt or effort to illustrate that their conduct was reasonable within the meaning of ss 13A(2) and 13B(2) of the MOA. I can only conclude from this that they either did not think it necessary to justify the basis of their “protest” or could not possibly substantiate it. Which was it?

Either way, this matter cannot and should not be allowed to proceed. Putting it as charitably as possible, the applicants have shown a manifest lack of conviction in their assertions. If indeed they had found any disturbing impropriety within the walls of these institutions, they had the perfect opportunity to disclose it – in their affidavits! Their concerns and assertions would prima facie have been legally privileged and protected and would ultimately have been placed under the scrutiny of the court as well as before the bar of public opinion. Instead, they have consciously chosen to avoid such a compelling avenue to advance their purported concerns and reservations about these institutions.

What does this demonstrate? Having proceeded with neither sagacity nor prudence, they cannot expect to be rewarded with the imprimatur of legitimacy by the court. What they have attempted to convey in their “protest” goes well beyond the legitimate cut and thrust of politics and criticism.

138 I have not concluded in this judgment that the protestors have in fact committed offences under the MOA. That is unnecessary for the purposes of the respondents’ application to strike out these proceedings and is, if anything, a matter for a criminal court.

Suffice it to say for the purposes of the present proceedings that the applicants have absolutely no cause for complaint against the respondents and/or the police arising from the incident. The police did not behave unlawfully and/or unreasonably during the incident.

139 The costs of the action (to be taxed if not agreed) are to be paid to the respondents by the applicants.

JUSTICE V K RAJAH

High Court
Singapore