Judge fines Chee Soon Juan $10,000 for
speaking in public
Sunday, 06 September 2009
Singapore Democrats
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."
Summary
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.
http://www.yoursdp.org/index.php/news/singapore/2759-judge-fines-chee-soon-juan-10000-for-speaking-in-public
