Dr Chee Soon Juan applied in court to the trial judge to dismiss the charges brought against the 17 activists because these charges go against the Singapore Constitution. He made these points to District Judge Chia Wee Kiat. The activists are charged with participating in a protest in March this year. Below are Dr Chee's arguments.
My associates and I have been charged under the Miscellaneous Offences Act (MOA) for participating in an assembly as well as a procession on 15 March 2008.
We had assembled outside Parliament House to mark World Consumer Rights Day (WCRD) which is celebrated by an organisation called the Consumers International.
We are citizens of Singapore and as citizens, we are guaranteed of our fundamental freedoms under Article 14 of our Constitution which states that:
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.
This Constitution was written and promulgated when we wrestled our country back from the British colonial government. It wasn't just a flight of fancy on the part of the framers of the constitution when it was written. Every word was scrutinised and considered before its inclusion in the document.
In other words, the Article 14 was written in to ensure that we, as a people, would be able to fully partake of our freedoms of speech and assembly. We were guaranteed these basic political and civil rights that enable us as free individuals to choose our own government instead of having to rely on and be subject to the rule of another sovereign.
Fast forward to present-day Singapore. The MOA forbids any gathering of 5 or more persons in a public area without a permit. Hence this present and several upcoming trials. We are also forbidden to speak in public without a permit under the Public Entertainment and Meetings Act. I have been prosecuted and convicted four times for this "offence". But that's another matter for another forum.
For now I would like to focus on the right of assembly in this country.
My charge reads that I "ought reasonably to have known that the assembly was held without the prior permission of the Deputy Commissioner of Police..."
The idea of applying for a permit is a red herring. The Minister for Home Affairs Mr Wong Kan Seng stated in February 2003 that the "government does not authorise protests and demonstrations of any nature."
He repeated in Parliament in February this year, and I quote the Hansard: "We have stopped short of allowing outdoor and street demonstrations...Our experiences in the past have taught us to be very circumspect about outdoor and street protests."
As you can see, the Singapore government has stated plainly that it will not allow anyone to hold protests and demonstrations of any nature.
Contrast this with Article 14. The constitution says we have the right to peaceful assembly but the Minister says he will not authorise such assemblies.
Clearly there is a contradiction. In other words what the Minister says and does is in conflict with the Constitution. So what do you do when the there is such a conflict?
There is display of our legal system and the Constitution in the foyer of this courthouse. One of the display panels describes the "Tools of the Law" and a paragraph in it states that "Any law that conflicts with the Constitution is void and Singapore courts can strike down any legislation or executive acts that go against the Constitution."
It cannot have been the intention of the framers of Singapore’s constitution that Parliament can exercise its authority to limit free speech in an arbitrary manner. What limits exist must have at least some rational and bona fide basis.
A sweeping ban, one that presumptively eliminates the right of free expression and assembly in public areas, cannot possibly be one that is genuinely and rationally targeted at any mischief that Parliament can lawfully address.
Moreover, the Constitution of Singapore must be construed, where possible, to be consistent with customary international law. The latter provides for free expression for all citizens everywhere; it does not tolerate bans that are massive, arbitrary and disproportionate.
Still less does the administrative law of Singapore permit the exercise of executive discretion in a manner that is harshly, arbitrarily and disportionately inimical to freedom of expression and assembly.
The across the board refusal of the Executive to issue permits is not consistent with the rule of administrative law, which requires rationality and good faith in the exercise of discretion, a willingness to consider situations on their merits rather than adopting rigid rules that have no basis in enabling legislation, and the interpretation and application of legislation in a manner that is consistent with the basic principles of a human rights, customary international law, Singapore’s solemn international commitments, and parliamentary democracy.
Freedom of expression and assembly are part of the preconditions for a meaningful parliamentary democracy. An interpretation of the constitutional and administrative law of Singapore must take into account all of its components.
It is not reasonable to accept any and all interferences with political liberties that Legislature or Executive attempt, forgetting that it is political freedom and accountability to the public that is the foundation for the exercise of legislative and executive authority. This point was acknowledged by the Supreme Court of the United States in many cases that identify freedom of expression and assembly as "preferred freedoms” because they are absolutely fundamental to the existence and operation of a free and democratic society.
Judges of the Supreme Court of Canada arrived at a similar conclusion in the famous Alberta Press case.
Ironically, the Minister for Home Affairs Mr Wong Kan Seng goes on to couch such a Constitutional breach by invoking the concept of the rule of law: "I believe that Singaporeans understand and support the fundamentals that have made Singapore what it is today. What are these fundamentals? The first fundamental is the rule of law."
But what really does the rule of law specify and require? The former Chief Justice of India Mr P N Bhagwatie stated that the State must act
within the limits of power conferred upon it by the Constitution and the laws...thereby, making the rule of law meaningful and effective. Most countries have a written constitution which provides the structure allocating and regulating power relations amongst the different organs of the State. The Constitution confers power on the various organs of the State and also lays down the limits within which such power may be exercised...in other words, where the State or its officers act outside the Constitution on the laws...the rule of law is violated.
But when the constitution, and by extension the rule of law, is undermined by the executive branch of the government, who is going to ensure that the problem is corrected? Mr Bhagwatie says:
The judiciary is one such institution on which rests the noble edifice of democracy and the rule of law. It is to the judiciary that is entrusted the task of keeping every organ of the State within the limits of power conferred upon it by the Constitution...It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power.
It should be the goal of the rule of law that these multifarious and diverse encounters are fair, just and free from arbitrariness, and it is, therefore, necessary to structure and regulate the power of the executive so as to prevent its abuse or misuse or arbitrary application or exercise...
The judiciary stands between the citizen and the State as a bulwark against executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitations by the executive as well as the legislature.
Chief Justice of Canada, Madam Beverly McLachlin, wrote in December 2005 that "Judges must resist...making 'law' out of what cannot be just, and hence, in a profound sense, cannot be legal. To do otherwise is to allow injustice to hide itself under the cloak of false legality."
But what is she referring to when she talks about making law out of what cannot be just? She is referring to the Universal Declaration of Human Rights (UDHR). She stated plainly that "the drafting and adoption of the Universal Declaration of Human Rights in 1948 was a giant step forward in legal and societal thinking." (emphasis added)
Explicitly and unambiguously stated in the UDHR, I believe they are Articles 19 and 20, that no person shall be denied his or her right to freedom of speech, association and assembly.
May I point out that Singapore has ratified two United Nations conventions, the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convenmtion on the Rights of the Child (CRC).
It is clear that the Singapore accepts the fundamental premise of the UDHR, otherwise we would not have ratified these two Conventions. Underpinned in these Conventions, CEDAW and CRC, are the general rules of which the game is played, so to speak.
In other words the UDHR is the foundational statement from which CEDAW and CRC are born. What this means is that when Singapore raitifies these Conventions, we have to abide by the general rules as laid out in the UDHR. We cannot pick and choose which rules we want to abide by and which ones we want to ignore.
Also at the Commonwealth Heads of Government Meeting in Abuja, Nigeria, in December 2003, Singapore fully endorsed the Commonwealth (Latimer House) Principles on the Three Branches of Government.
This document states that the Commonwealth countries reaffirm their commitment to the Statement on Freedom of Expression adopted in March 2002: "We stand united in our commitment to democracy, the rule of law, good governance, freedom of expression and the protection of human rights..."
In addition, Singapore has ratified the Association of Southeast Asian Nations (ASEAN) Human Rights Charter which states in Article 1(7) that members states will "strengthen democracy, enhance good governance and the rule of law, and to promote and protect human rights and fundamental freedoms..."
It is clear that Singapore has agreed to abide by customary international norms regarding the fundamental freedoms of speech and assembly. It is also clear that the Singapore government refuses to honour and practice what its has signed on to.
Sir, please don't see us as troublemakers and persons who are just up to no good. We are not much different from anyone else in this room: the counsels sitting before you, court officers, the prosecutors, and even you, Your Honour. Like you we have aspirations. Like you we want to live comfortably. Like you, we are fathers, sisters, mothers, husbands and sons.
We would rather not have to come to court and face these charges. Two of the defendants, Jufri and Suraya, have a two-year-old baby daughter who is suffering from a severe case of tonsilitis and needs an operation which is scheduled to take place shortly.
I had spoken to them about this and we discussed the possibility of them pleading guilty so that they would not have to undergo this trial and stay home to look after little Misha. I had left it to them to make the decision.
They are here today because they see the importance of standing up for their rights and for justice.
I am so proud to be standing here with them and the other accused persons. I regret not one moment of choosing this path less traveled.
We have not gone out and committed a crime and harmed our fellow citizens. We have not stolen or robbed anyone or damaged anything.
What we have done is to care for our nation and our fellow men and women. You don't know how tempting it is to give up right now and just walk away. But we know that if we do, we kill a part of ourselves that we hold dear, the part that makes us what we are -- humans.
Your Honour, I have been through more than ten trials all of which I have been convicted. I have been jailed seven times. In such circumstances, it is easy to become cold and cynical. But I will not allow myself to be crushed by cynicism. No matter how difficult it is, I will continue to have faith and believe that one day I will be able to persuade the courts to see the importance of what I am saying and working for.
And so this morning, Your Honour, we come before the courts once again and ask you to protect our rights as citizens, rights enshrined in our constitution, rights that the judiciary have the bounden duty to uphold.
I have demonstrated to you that the law and the Minister's actions, and by extension these present charges, contradict the Constitution. Because of this we ask that the present charges against the 17 of us be quashed and our rights fully restored.
(24 Nov 2008)