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Why WP is right to seek court’s decision

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By Andrew Loh

The trial of the Workers’ Party Aljunied-Hougang-Punggol East Town Council (AHPETC) has ended after just two days. Five days had originally been set aside for it.

While the court takes its time to issue its judgment, expected in the latter part of November, it is good to recap why the WP had declined the offer of a composition fine by the National Environment Agency (NEA) for allegedly flouting Section 35 of the Environmental Public Health Act.

There are apparently two reasons for this.

One, the WP town council does not feel that it had done anything wrong in holding the fair.

Two, the WP felt that the NEA’s procedures were in conflict with the town council's statutory responsibilities as laid out under the Town Councils Act.

It is this second issue of its statutory responsibilities under the Town Council Act which is the focus.

Here, the sequence of events will shed light on why the WP felt it was necessary to allow the matter to go before the court.

The WP had first notified the NEA on 20 December and asked if it required a permit to hold the Chinese New Year event.

The NEA said yes, it was required, and duly sent the AHPETC the relevant forms.

It is worth noting that at no time during the exchanges with the AHPETC in the following days did the NEA say or indicate that the AHPETC was not allowed to hold the fair.

The NEA’s only conditions were that the AHPETC submitted the relevant forms and documents in its application.

Indeed, even after the AHPETC informed the NEA that it (the AHPETC) itself was organising and running the fair, the Assistant Director (Operations, Hygiene) of NEA, Kwek Keng Chuan, told the town council on 27 December 2013:

"We note that Aljunied-Hougang-Punggol East Town Council (AHPETC) will not appoint an operator to run the fair. In this case, AHPETC, as the organiser and operator of the fair, is required to obtain a permit from NEA before commencing the fair.

"Please submit the trade fair application with the necessary details to NEA quickly to avoid any delay in issuing the permit."

So, clearly the NEA felt it was ok for town councils to hold such fairs, even without an operator.

The confirmation of this came on 6 January when the NEA sent a reminder to the AHPETC to: "Please proceed to seek approval from the following authorities..."

The NEA was referring to other government agencies such as the Singapore Civil Defence Force.

And finally, on 9 January, the NEA again asked the AHPETC to submit the "documentary approvals from all relevant agencies and local stakeholders for the trade fair to proceed."

If the AHPETC had submitted the application and documents as NEA required and advised, the permit for the fair would in all probability have been approved and granted to AHPETC, or at least it would seem.

However, here is where the conflict arises.

5 days after the fair had started on 9 January, the Ministry of National Development (MND) sent a letter to the AHPETC on 14 January to inform the town council that it has no authority to hold such an event.

The MND letter said:

"We wish to remind the Town Council that Town Councils [sic] are set up to manage, maintain and make improvements to common property in HDB estates. Town Councils are not allowed to engage in commercial activities, including the organisation and operation of fairs, as these activities are not related to the function of management and maintenance of common property."

Why did the NEA apparently feel that it was alright for the town council to hold the fair, as long as it met application requirements, while the MND felt otherwise?

What is even more strange is that the MND’s statement that “Town Councils are not allowed to engage in commercial activities, including the organisation and operation of fairs” does not seem to be stated anywhere in law.

The MND letter itself does not cite the relevant authorities either.

In fact, when news site Yahoo Singapore reported in January that the NEA was taking the AHPETC to court, it said that it too could not find any such rules in the law.

"Checks by Yahoo Singapore in the Town Councils Act do not show such a clause or section. Yahoo Singapore understands that this rule is a policy stance of the ministry’s." (See here.)

If it is indeed a “policy stance”, as Yahoo reported, where is it stated?

If it is an internal ministry policy, then how are town councils (and the public) supposed to know about this?

In fact, the MND letter itself did not say it is a "policy".

To complicate matters further, the application forms which the NEA had sent to the AHPETC had left out the term “town councils” from the list of entities allowed to hold fairs.

In earlier versions, one of which was shown to the court during the trial, it stated “town councils” as one of those organisations allowed to hold fairs.

And to make things even more murky, the AHPETC is told that it has to obtain a “letter of support” from the chairman of the Citizens’ Consultative Committee (CCC) as one of the requirements for the permit application to be valid.

So, what would you do if you are faced with these:

  1. NEA seems to say or indicate repeatedly that AHPETC could hold the fair. It even advised the AHPETC to submit the necessary documents to the NEA "quickly to avoid any delay in issuing the permit."
  2. NEA requires AHPETC to obtain “letter of support” from CCC chairman to apply for a permit to hold the fair, even though the premises where the fair will be held is under the aegis of the AHPETC, as stipulated in the Town Council Act.
  3. NEA application forms, however, mysteriously removed “town councils” as one of the entities allowed to hold the fair.
  4. MND tells AHPETC, after the fair has started, that it is not allowed to hold such fairs, or "to engage in commercial activities, including the organisation and operation of fairs."

There thus seem to be mixed signals from the two authorities involved – the NEA and the MND.

What if the NEA had granted the permit to the AHPETC and the latter had proceeded to hold the fair with NEA’s permit?

Would AHPETC (and in fact, NEA) have contravened MND’s apparent policy that town councils are not allowed to engage in commercial activities?

The WP is thus right in adhering to the NEA requirements as much as possible by submitting the forms it felt were applicable, while at the same time indicating in the forms that the event was not a "fair" but an "event", and to decline the offer of a composition fine because it would not have brought clarity to the issue.

The WP is right in seeking clarity from the courts not just for the above issues and questions, but also to know where exactly the authority and responsibilities of the town councils (including PAP-run ones) lie under the Town Council Act.

This is especially so when the NEA and the MND themselves seem to contradict each other.

“We came to the conclusion that these matters may need to be resolved by the court,” said Sylvia Lim, the chairman of AHPETC, and also chairman of the WP.

Indeed.