Does Nparks have unfettered discretionary powers to impose bans?

By Andrew Loh

The Nparks’ withdrawal of its approval for activist Han Hui Hui to hold a Speakers’ Corner event on 25 October smacks of arbitrary enforcement of the power vested in the Commissioner of Nparks.

The first thing you noticed about the letter the Nparks sent to Ms Han to notify her of the withdrawal is how the Nparks wrongly characterised the interview Ms Han had with the police as “your case”.

This was in the Nparks’ notice received by Ms Han, which said [emphasis mine]:

“… no approval will be granted for any application that you may make to speak or organise any demonstration or performance/exhibition at the Speakers’ Corner until the conclusion of Police investigations or resolution of your case.”

What does Nparks mean by “your case”?

What case?

Ms Han has not been arrested or charged for any offence anywhere, including at Speakers’ Corner on 27 September.

The police’s letter to Ms Han to attend the interview with them also did not say she is being investigated for any offence in fact. Neither did it describe it as “your case”.

The police’s letter merely said:

“Whereas an investigation is being conducted into an offence of Unlawful Assembly [sic] committed at Hong Lim Park on 27 September 2014 and it appears that you may be acquainted with the facts and circumstances of the case.”

Ms Han promptly availed herself at the Cantonment Police Complex for the interview.

And in the NParks own letter to Ms Han, it described the interview as Ms Han “assisting the Police with investigations”.

How then does such assistance constitute a – presumably – police “case” which is now apparently used against Ms Han to ban her from using Speakers’ Corner?

Secondly, Nparks did not just withdraw its approval for Ms Han to hold an event on 25 October. It has also banned her from holding any events at all – indefinitely, or as Nparks said, “until the conclusion of Police investigations or resolution of your case.”

As her lawyer, M Ravi, said, such a ban is indeterminate and oppressive, especially given that neither Ms Han nor any of her colleague has been arrested or charged for any offence, let alone be found guilty of any.

Thirdly, if “assisting” the police in its investigations is enough justification to ban someone from using Speakers’ Corner, then why is not the same being applied to the YMCA or anyone else who have been called up to “assist” in investigations as well?

We understand that some 40 other people, besides the protesters, have been called up by the police for interviews thus far.

Are all these people also banned from holding events at Speakers’ Corner until police investigations are completed?

Nparks does not say. Why not?

In a Channel NewsAsia report on 21 October, it is reported:

“NParks said it will not approve further applications for use of Speakers Corner made by people under investigation for the Sep 27 event, until their cases are concluded.”

Who are these “people under investigation”?

It is unclear.

Nparks cites the Parks and Trees Act (PTA), section 8(3) for its authority to impose the cancellation of the approval given to Ms Han’s application.

However, this may not be correct.

While the Act does say approval from the Commissioner is required for use of Hong Lim Park (where Speakers’ Corner is located), one must also keep in mind several things, when considering if the Commissioner has powers to not grant approval on certain grounds.

One, the Commissioner does not have unfettered discretionary powers to impose a ban willy nilly.

Such decisions must obviously be rational, fact-based, and reasonable.

The PTA, as anyone can see, is focused mostly on Nparks role in protecting the physical environment of our public parks, and to prevent damage to them.

One would therefore – reasonably – feel that any ban on the use of public parks would be based on potential damage to these parks.

But if one also consider that Ms Han and her colleagues have held 4 previous protests events there – along with many others who have held events there as well – there is no reason to suspect that they will damage the park environment.

One would also not expect that Nparks is expected to be the de facto police, to impose ban on those who might be found guilty under the law for various offences.

Nparks’ roles must be limited to environmental protection and upkeep, and not one where it decides who can use its parks based on non-environment related reasons.

Further, one should also consider the spirit behind two things:

1. The Government’s relaxation of the rules for use of Speakers’ Corner
2. The exemptions granted in the Public Order Act (POA)

When Prime Minister Lee Hsien Loong announced the relaxation of rules in his 2008 National Day Rally speech, he said it was part of an “overall thrust… to liberalise our society, to widen the space for expression and participation.”

The National Library website reports:

“Lee announced at the 2008 National Day Rally that outdoor public demonstrations would be allowed at Speakers’ Corner – without the need for police permit.”

So clearly, it was meant to make it easier for Singaporeans to express themselves.

It is hard to fathom that the same Government would then include restrictions in a totally unrelated, and a rather obscure, piece of legislation – the Parks and Trees Act – to curb such freedoms.

If it was the Government’s intention to empower itself to make it harder for Singaporeans to use Speakers’ Corner, would it not make more sense to include such powers in the POA?

However, and on the contrary, under the Public Order (Unrestricted Area) Order 2013, Hong Lim Park is declared as an “unrestricted area” and is thus exempt from certain provisions in the POA.

This includes the stipulation that Hong Lim Park is exempt from the permit requirement for assemblies and processions, as stated in the POA:

“The area in Hong Lim Park and delineated in the Schedule is designated as an unrestricted area whereby no notice under section 6, and no permit under section 7, of the Act shall be required for the holding of all assemblies or processions or both therein.”

In 2009 in Parliament, Law Minister K Shanmugam said, during the debate on the then Public Order Bill:

“In 2008, we exempted outdoor political demonstrations in the Speakers’ Corner.”

He was referring to permit exemptions.

The law, thus, seems to be quite clear that Ms Han did not need to obtain a permit for her march at Hong Lim Park on 27 September, let alone having the need to apply for one.

One would also think that she wouldn’t need one for her 25^th October event too.

Having said all the above, it is also clear that there seems to be a contradiction or conflict between what is stated in the Parks and Trees Act and the Public Order Act.

While the aim of the latter seems to be to make the use of Speakers’ Corner freer – without the requirement for a permit for “assemblies or processions or both therein” – the former seems to contradict this and requires one to have a permit in fact.

So, it is good that Nparks’ notice of withdrawal to Ms Han is being challenged – so that Singaporeans, and especially those who want to make use of Speakers’ Corner – will have clarity on the legal requirements for the use of the park, so that they are not confused by the arbitrary conditions set by the governing authority.

Surely, the spirit of the Government’s intention behind the relaxation of the rules for the use of Hong Lim Park must be taken into consideration.

In July last year, the court laid down that the prime minister does not have “unfettered discretion” when deciding if he should hold a by-election in a constituency where the Member of Parliament has vacated his seat.

Similarly, one would think that the commissioner of Nparks does not have unfettered discretion or powers to arbitrarily decide on who he can ban from using a gazetted free space.

His decision must be rational, fair and fact-based.