What the Constitution gives, the State takes away

Judge refuses to consider ban on protests unconstitutional
Singapore Democrats, 4 Dec 08

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 not 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.

Full text of Dr Chee's submissions

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 PP. 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 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 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 a 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.