Arrest of 2 peaceful protesters raises

questions on freedom of assembly in

Singapore

Protestor holds a placard outside the Istana. The placard reads: INJUSTICE. Pic: TRS

By Carlton Tan Apr 05, 2015

SINGAPOREPolice arrested two men, aged between 24 and 25, on Saturday
afternoon (Apr 4) as they held up placards outside the Istana in a peaceful protest
against the Government. They were apparently protesting the Governments
repression of free speech. The placards read: Injustice and You Cant Silence the
People (see picture above and below).

According to the police, the duo was arrested for organising a public assembly without
a permit after they had refused to stop the protest despite requests from officers. This
was despite the fact that only two people were involved and there was no disruption of
public order at the time.
If found guilty of an offence under Section 16(1)(a) of the Public Order Act (POA),
Chapter 257A, the two men may be fined up to S$5,000.
Public protests are de facto illegal
In Singapore, public protests are de facto illegal everywhere except within the confines
of Hong Lim Parka 0.94-hectare heritage park that is the only place where
Singaporeans can conduct public demonstrations legally.
Under the Act, Singaporeans have to apply for a permit from the police before they can
hold a protest outside of Hong Lim Park. On the surface, the police make their
decisions on a case-by-case basis based on their assessment of the threat posed to
public order. However, the Act amounts to a blanket restriction on public protests
because the police exercise a strict policy against granting such permits.
In 2006, Deputy Superintendent Mark E Kwan Szer stated that the
polices policy position on outdoor demonstrations and processions is one of
disallowance to explain why Dr Chee Soon Juan applications had been rejected. In
the same explanatory letter, DSP Mark reiterated his position in no uncertain terms:
The policy position has always been to disallow demonstrations and processions. He
also noted that this policy applied regardless of whether there was a major meeting
going on. (See Public Prosecutor v Chee Soon Juan and Others [2010] SGDC 128).
Judicial review?
Despite this policy, Singaporeans have limited legal recourse. In a separate but related
case in 1989, Justice Chan Sek Keong explained that the court has no power to direct
the licensing officer to grant an application. In his decision, he stated that the court
may only direct the officer to consider the application afresh, and only if the applicant
had commenced proceedings for judicial review. (See Jeyaretnam Joshua Benjamin v
Public Prosecutor and another appeal [1989] 2 SLR(R) 419; [1989] SGHC 90).
Furthermore, although Singaporeans whose applications have been denied may appeal
to the Minister for Home Affairs, the Act states that his decision is final. Whether or
not the judiciary is willing to accept that the Ministers decision cannot be subject to
judicial review is still an open question. But if it accepts this, this means that public
protests are effectively illegal in Singapore, and it would illustrate how power is
concentrated in the executive branch of Government.
This would also be contrary to a 1988 decision by the Court of Appeal in Chng Suan

Tze v Minister for Home Affairs. In it, the Court stated that: [T]he notion of a
subjective or unfettered discretion is contrary to the rule of law. All power has legal
limits and the rule of law demands that the courts should be able to examine the
exercise of discretionary power. This means that as a general principle, the judiciary
acknowledges its role as a check and balance on the abuse of power by the executive
branch of Government.
However, in at least one instance where the judiciary attempted to fulfil this role
checking the excesses of the Peoples Action Party (PAP) Governmentits ruling was
quickly undermined by amendments to the Constitution and the relevant law
(see Internal Security Act case). This was possible because of the PAPs nearuncontested dominance in Parliament.

Second protestor holds a placard outside the Istana: YOU CANT SILENCE THE
PEOPLE. Pic: TRS.
Twos a crowd
Optimistic observers frequently point to the Governments relaxation of rules on free
speech as evidence of increasing democratisation in Singapore. The introduction of a
Speakers Corner in 2000, in Hong Lim Park, allowed people to make speeches in an
open area without having to apply for a permit, although they still had to register their
intention with the police. In 2008, the rules were further liberalised and Singaporeans
were allowed to hold demonstrations within the confines of the park.
The PAP portrays this as a cautious attempt to give Singaporeans greater space for
political expression. There is indeed a growing recognition within the ruling party that

Singaporeans are becoming more well educated and would like to see greater
liberalisation. This is coupled with the gradual realisation that an active citizenry is not
necessarily a threat to its dominance and may in fact contribute to the renewal of
talent within the party.
But if the optimists are right, the Public Order Act (POA) represents an instance of the
PAP moving in the opposite direction, contrary to its stated intentions. Instead of
making it easier to organise public protests, they made it harder.
The Act was introduced in 2009 to replace certain provisions in the Public
Entertainments and Meetings Act (PEMA) and Miscellaneous Offences (Public Order
and Nuisance) Act (MOA). But whereas an assembly was defined as a group of 5
persons or more before 2009, an assembly under the POA imposes no such
limitation on the number of persons. As such, by default, even one person can now
constitute an assembly. The two men who protested outside the Istana were thus
arrested for illegal assembly.
In 2009, the Ministry of Home Affairs explained that this rationalises the current
approach of regulating groups of five or more under the MOA and groups of four or
less under the PEMA, (where there is public entertainment). However, there is
nothing rational about calling two protesters an assembly.
In fact, if the purpose of the law is to strike a balance between maintaining public
order and allowing people to express themselves, then factors relevant to that end
should be considered. In this case, the number of people involved is a relevant factor
and it is hard to imagine how an assembly of two people can possibly pose a threat to
law and order. A further rationalisation is necessary.
A diversionary tactic
Regardless of the absurdity of this legal terminology, and regardless of whether
Singaporeans may appeal the Minister of Home Affairs decision in the courts, the
Government has successfully made it prohibitively costly for citizens to engage in
peaceful protests through the requirement of a permit, and later an appeal to the
Minister, under the Public Order Act.
The Act has also allowed it to divert attention away from its policy of prohibiting all
public protests outside of Hong Lim Park to the fact that offenders failed to obtain a
permit. Thus the offense is often euphemistically reported as organising a public
assembly without a permit rather than simply organising a public assembly. For
instance, the state-linked Channel News Asias headline reads: Duo arrested for
organising public assembly without permit outside Istana.

On top of that, this complicated procedureof applying for a permit then appealing to
the Minister of Home Affairs when it is denied (as should be expected)allows the
Government to divert attention away from the issue of its blanket ban on public
protests, and towards the offenders failure to follow the right procedures. It is as if to
say that the fault lies with the offender for failing to obtain a permit, even though it is
practically impossible to succeed, rather than with the Government for its illiberal
policy on public protests.
All this is not to say that the Governments position on public protests is ill-founded,
merely that it is disingenuous. It is akin to a womens modelling agency saying that it
will hire both male and female models on a case-by-case basis.
Why the attempt to hide the obvious? If indeed there are strong grounds for the
blanket ban on public protests outside Hong Lim Park, why not be upfront about it?

Two protestors outside Istana. Threat to public order? Pic: TRS.

A strangely supportive populace
This is also not to say that the Governments justification for restricting freedom of
assembly and freedom of speech is without support. In fact, it remains very much the
opposite. Singaporeans are still largely conservative and the Singapore consensus
remains largely unchallenged. The culture of conducting public demonstrations
disappeared along with the decline of the politically active Chinese-educated trade
unionists and student activists in the 1960s and 70s. Since then, Singaporeans have

accepted Lee Kuan Yews little nugget of wisdom: you stay off the streets and the PAP
will keep you in your jobs. Much remains the same today.
Moreover, Singaporeans view public protests as a poor way to challenge the PAPs
hegemony and a dangerous threat to public order. In fact, very few see the duos
protest as anything more than a foolish move; and almost no one sees the incident as
an example of the Governments repression on free speech.
Singaporeans, it appears, prefer the online media and the ballot boxavenues of
political expression where the cost of participation is low and the risk of repression is
negligible. However, these options are also limited because of the Governments
restrictions on online news websites such as The Online Citizen and because of the
PAPs systematic use of its executive powers to engage in gerrymandering and pork
barrelling. Thus it remains to be seen whether Singaporeans will take to the streets to
force the Government to do more on issues like high housing prices, widespread
underemployment and persistent income inequality. The answer, it seems, still
depends very much on whether the Government fulfils its end of the bargain.
Posted by Thavam