“Let us not beat around the bush. We are the Singapore Democratic Party and we are in a contest for political power with the PAP. We are asking the Judiciary to protect the rights of the opposition and hence the rights of the citizens of this country.”
Dr Chee Soon Juan made this statement in his submissions during the appeal before Justice Woo Bih Li (pictured) in the High Court last week over the convictions of SDP activists who had conducted the Tak Boleh Tahan (TBT) protest outside Parliament House in March 2008. District Judge Chia Wee Kiat had found the Defendants guilty of participating in an assembly and procession without a permit earlier this year.
In his submissions, Dr Chee cited Chief Justice Chan Sek Keong who observed that there was a “sense of unease” that the Judiciary is seen to be “submissive” to the PAP Government. CJ Chan dismissed this notion that the Courts ignored wrongful executive acts.
Why, Dr Chee asked, did the CJ have to repeatedly dispel the perception that the Judiciary is ignoring or, worse, protecting the wrongful acts by the Executive?
The crux of the case
It is cases like this one, he pointed, that reinforces or negates the public’s confidence in the Judiciary being a check on the Executive. He made clear the crux of the Defendants’ case:
One, Minister for Home Affairs Wong Kan Seng declared in Parliament in February 2008 that the Government would not authorise outdoor political activities. Dr Chee produced a copy of the Hansard of the session.
This blanket prohibition of outdoor political protests is ultra vires (beyond the power) vis-a-vis the Singapore Constitution which guarantees the right of Singaporeans to freedom of peaceful assembly except under certain circumstances.
Two, the Consumers’ Association of Singapore (CASE) conducted not one but two protests in 2007 and 2008 also outside Parliament House, with protesters carrying placards and marching. The CASE events were organised by PAP MPs.
Why was CASE protest allowed while the TBT protest banned? Article 12 of the Constitution expressly forbids such discrimination and abuse of power by the authorities.
DPP Isaac Tan argued that the decisions that the Executive makes should not be a subject of inquiry in the appeal. He added that the proper forum for such an inquiry should be a judicial review.
Dr Chee cited English law, on which Singapore law is derived, which states unambiguously that criminal proceedings, like the one heard by DJ Chia, can and must hear the matter when questions of the abuse of power by the Executive are raised. The House of Lords ruled that
it is open to a defendant to raise in a criminal prosecution the contention of a byelaw or an administrative act undertaken pursuant to it is ultra vires and unlawful and that if he establishes that he has committed no crime.
On the question of the case heard only in a judicial review, Dr Chee pointed out that the Law Lords also stated that
It is not a realistic or satisfactory riposte that defendants can always go by way of a judicial review. In any event although the procedural advantages of raising such damages by way of judicial review have long been recognised, an application for judicial review is not a stright-jacket which must be put on before rights can be asserted.
Based on these authorities, the SDP leader said that the discrimination in this case – favouring PAP’s CASE while prosecuting SDP’s TBT – is so blatant and in your face that the public will find it difficult to accept it if the Singapore Courts did not intervene. Questions about the Judiciary’s role in checking the Executive, as mentioned by CJ Chan, will then persist.
He submitted that if the rule of law is to be respected and practiced in Singapore, Justice Woo must uphold the Defendants’ appeal and rule in favour of the people. Mr Woo reserved judgment.
On another front, Straits Times reporter Selina Lum left out much of Dr Chee’s arguments and censored the part about CASE also conducting a protest outside Parliament House.