Judge refuses to consider ban on protests
unconstitutional
Thursday, 04 December 2008 
Singapore Democrats
In the ongoing trial of four activists charged for attempting to
participate in a procession, Dr Chee Soon Juan asked District Judge
Toh Yong Joo to allow the defendants to question the police on why
it rejected the application for a permit to conduct a rally and
march. The Judge refused.
Dr Chee also asked the Judge to determine that the policy to ban
all demonstrations and processions in Singapore is
unconstitutional. The Judge also refused.
Dr Chee is
charged together with Mr Gandhi Ambalam, Ms Chee Siok Chin and Mr
Teoh Tian Jing for protesting during the WB-IMF meeting in Sep
06.
In his submissions Dr Chee cited a decision made by former Chief
Justice Yong Pung How who had relied on Lord Justice Woolf's
judgment in an English case.
Woolf LJ had ruled that where it is pointed that there has been an
abuse of power and bad faith on the policy maker a criminal court
should allow cross-examination of the prosecution witness to
determine the issue.
The issue stemmed from prosecution witness Deputy Superintendent
Marc E Kwan Szer's testimony that the "policy position of the
police regarding outdoor processions and demonstrations is one of
disallowance."
Dr Chee asked
Judge Toh to rule that this policy contravenes the constitution
that guaranteed Singaporeans the right to freedom of speech and
assembly.
"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," the SDP leader pointed
out.
He added that the police are playing the fool with the Constitution
which according to Article 4 "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...be void."
He cited Lord Justice Woolf's judgement on this issue:
"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."
The Prosecutor
insisted that the only thing that mattered was whether or not the
defendants had a permit to conduct their activity.
But didn't DSP Marc E testify that all applications for
demonstrations and processions would be disallowed?
"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 it give that permit?" Dr Chee posed the question to the
Judge.
"If the
Constitution clearly tells me that I have the right to freedom of
speech and assembly," the SDP leader continued,
"but the police
tell me that it will not grant me a permit for it, then the police
policy is clearly [unconstitutional].
"This being the case, LJ Woolf, to which Yong CJ attached much
importance, tells me that I am not required to comply with such a
policy."
Judge Toh
dismissed Dr Chee's arguments and insisted that the only thing that
was important was the "existence or non-existence of a
permit."
The hearing continues at Subordinate Court 19 at 9:30 am
tomorrow.
Your Honour,
When the defence tried to question the witness, licensing officer
DSP Marc E Kwan Szer, to show that the police had acted in bad
faith when they rejected my application for a rally and march on 16
September 2006, and hence violating my constitutional rights, the
prosecution objected on two grounds:
One, the line of questioning was irrelevant to the charge and, two,
that even if it was relevant, this court is not the forum to hear
such an issue. The proper forum should be by way of a Judicial
Review.
Let me begin by addressing the second question first, that is,
whether this court is the proper forum to canvas issues about bad
faith and mala fide on the part of the police as it relates to the
constitution.
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."
Is there a question of substantive invalidity in the
present case? Of course, there is. I want to place these two
statements side by side. The first statement is Article 14 (1) of
the Constitution which is the supreme law of the land:
(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.
The second statement is from the witness DSP Marc E: "police
position regarding outdoor processions and demonstrations is one of
disallowance...Our policy position is clear: Outdoor processions
and demonstrations are disallowed whether or not there is a major
meeting going on.”
Your Honour, you will first have to rule whether, on the face of
it, this police policy enunciated by DSP Marc E is substantively
invalid vis-a-vis the Constitution.
I recognise that subsection 2 of Article 14 provides that
Parliament may by law impose restrictions. But these restrictions
are imposed only under certain circumstances such as the security
of Singapore is concerned, or where public order is
threatened.
It is does not allow the government, or worse the police, to adopt
a "position" that "outdoor processions and demonstrations is one of
disallowance" and that "all applications are rejected."
The police are playing the fool with the Constitution. They are
making a mockery of our 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."
I had a discussion with lawyer and she had tried explaining to me
what an "element of the charge" was. She used the analogy of a
person being charged for, say, not displaying a parking coupon. An
element of the charge is that there was no coupon displayed at the
time the car was checked.
She went on to explain that 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 was 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. The only way that
we can do this is to adduce evidence through cross-examination of
the present witness, Mr Marc E. Should Your Honour allow us to do
with such cross-examination?
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."
To recap:
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.
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