In a stunning decision, District Judge John Ng acquitted leaders of Singapore Democrats who were charged with taking part in a procession on 16 Sep 07. Judge Ng said that the walk “did not cause inconvenience to the public, affect traffic flow or make noise which disturbed the public peace.”
Mr Gandhi Ambalam, Mr John Tan, Ms Chee Siok Chin, Mr Charles Tan and Mr Chong Kai Xiong, a human rights activist, were marking the first anniversary of the World Bank-International Monetary Fund (WB-IMF) protest that was held on the same date the year before. Mr Charles Tan is away and was not part of the hearing.
The five who were wearing T-shirts with the words ‘Democracy Now’ and ‘Freedom Now’ with a picture of a lighted candle, had walked from the Speakers’ Corner along North Bridge Road to Parliament House and then along Bras Basah Road to the Istana and then along Orchard Road to the Queenstown Remand Prison on 16 Sep 07.
They were also conducting a vigil for Dr Chee Soon Juan who was in prison at that time for speaking in public.
The group was charged with conducting a procession without a permit under Rule 5 of the Miscellaneous Offences (Public Orcder & Nuisance)(assemblies & Processions) Rules.
Judge Ng wrote in his judgment that in the absence of the definition of what constituted a “procession” under the law, it was important to consider the “natural and ordinary” meaning of the word.
Citing definitions in the Oxford and Collins English dictionaries, the Judge said that he could not accept the Prosecution’s “simplistic” interpretation that “so long as a group of 5 or more people walk[ing] from one point to another point in a public place to commemorate an event” constitutes a procession.
He noted that the group had walked mainly on the pedestrian pathways, using the pavements and sidewalks. They had walked casually and stops were made for pamphlet distribution and toilet breaks.
He concluded: “I am fortified in my views when I consider that the principal [Miscellaneous Offences] Act and the Rules were meant to relate to offences against public order, nuisance and property. The walk which had taken place did not impede or cause any disruption to the flow of vehicular traffic or the movement of pedestrians.”
The defendants maintain that taking part in processions and assemblies in Singapore is part of the fundamental rights of citizens provided for in the Constitution as well as the Universal Declaration of Human Rights.
It is unclear if the Deputy Public Prosecutor Mr John Loo will appeal the decision.
Before we pop the bubbly and celebrate the acquittal of my colleagues by District Judge John Ng over the protest walk on 16 Sep 07, it is important to examine the Judge’s reasoning behind his decision (read the full Judgement here).
Judge Ng had ruled that the Miscellaneous Offences Act (MOA) under which the defendants had been charged was not unconstitutional. He wrote that “There was no basis for the defendants to attack the constitutionality of the legislation.”
Perhaps. But Mr Ng misses the bigger point which is that the police will not approve any application for outdoor political activity. The defendants made this point their main contention.
Put simply: the MOA requires groups of 5 or more to apply for permits. Nothing unconstitutional about this, one might argue. After all the Constitution does provide for certain conditions under which the Government can deny such activity. Applications for permits will allow the police to assess each case on its merits.
But the PAP goes to the other extreme where it determines that no outdoor political activity is allowed under any condition. The Judge acknowledges this: “The defendants were able to show by their cross-examinations of the prosecution witnesses that there was a policy not to grant any permit for political events to be held outdoors.”
Such a policy or administrative act is not backed up by any law and runs contrary to Article 12 of the Constitution.
So while the legislation (MOA) may not be unconstitutional, the administrative act of denying all applications is. This is the nub of our contention: The Government’s decision to ban all political activity in public areas is ultra vires the Constitution.
Defendants had submitted on the case of Boddington v PP in which the UK House of Lords unequivocally and emphatically ruled that if an “administrative act undertaken pursuant to [the parent law] is ultra vires and unlawful and that if he establishes that he has committed no crime.”
Unfortunately, Judge Ng ignored this point and simply said that “whether a permit could or could not be obtained is not an issue and would not be relevant.” He failed to explain why this point is not an issue or how it is irrelevant.
So the main contention of the defence case was not addressed by the Judge. Does this mean that the case is completely unhelpful to the bigger goal of clawing back our fundamental rights as citizens?
No. As my colleague and defendant John Tan said: “This is the first time a judge in Singapore has conceded that not all political activities (in this instance a protest procession) in public places equals public disorder.”
It is a small yet significant concession. Judge Ng acknowledges that the reason why the procession (or walk) did not contravene the MOA and its Rules is because it “did not cause inconvenience to the public, affect traffic flow or make noise which disturbed the public peace.”
Call this judgement a judicial baby-step if you will. But isn’t it true that all things great always first happen with baby-steps?
So what happens next? The Prosecution may appeal, the High Court may overturn Judge Ng’s decision, other judge’s may re-look at the cases that are on-going – who knows? In other words, what will come from this one single judgment is unclear. It may or may not lead to bigger things.
What is absolutely clear, however, is that without challenge, the status quo will remain. I am reminded that failure does not come when we fall short, it comes when we don’t try – a subject I will talk more about in a subsequent piece.