By Timothy Lai
On 14th August 2015, High Court judge, Justice Tay Yong Kwang, rejected the permission to commence a judicial review on the restriction of musical instruments during Thaipusam processions against the Singapore Police Force (SPF).
The case was brought by three Singapore citizens from the Hindu community: Mr Balasubramaniam, Mr Sathiyamoorthy s/o Murugiah and Mr Vijaya Kumar s/o Rajendran. They are represented by lawyer Eugene Thuraisingam.
Judge Tay took the view that the music restrictions constitute a lawful exercise by the Government under Art 15(4) of the Constitution to make restrictions on persons’ religious liberty, for the purpose of maintaining public order.
The three men have till 11th September 2015 to decide whether they wish to appeal the judge’s decision to the Court of Appeal.
However, a $20,000 security deposit needs to be made upfront. It will be used to compensate the cost of the case should the appeal fail. This deposit remains the key obstacle to their appeal.
According to their website, a possible option is to crowd fund the security deposit “from Singaporeans, but especially from the Tamil community”.
Thaipusam is a Hindu festival celebrated in more than ten countries with strong Tamil communities. It is held during the full moon in the Tamil month of Thai, which is around January or February.
The Kavadi dance is an integral part of the celebrations offered to the god Murugan as a recompense of debt bondage. Devotees follow a set route while engaging in acts of devotion. Some choose to carry a kel kavadi that pierces the skin, tongue and cheeks. In Singapore, the procession starts at Sri Srinivasa Perumal Temple and lasts for 4 kilometres, ending at Sri Thendayuthapani Temple.
Followers of the procession in other countries traditionally play loud music, sing, and beat drums to help kavadi-bearers endure the pain.
However, according to “What Did Gandhi Do”, a website dedicated to Thaipusam issues, Singapore is the only country that bans music during Thaipusam.
Mr Thuraisingam argued that the music restriction violates Article 15 which guarantees “freedom of religion”, and Article 12 which provides for “equal protection”, of the Singapore Constitution.
Article 15(1) accords each citizen the right to practice his own religion. The need for a permit to play music, and its denial, questions whether this right has been violated because music is traditionally an integral part of the religious procession.
However, Judge Tay noted in his response that Article 15(4) states that religious practices have to be practiced in accordance to laws regulating “public order, public health or morality”.
According to the affidavit issued by Superintendent Koh Tee Meng, an Assistant Director in the Singapore Police Force (SPF), “as a matter of policy, the Police do not grant a permit for religious foot processions in Singapore.”
However, the SPF has always practised exception for Thaipusam. The SPF has nevertheless consistently upheld its rights to deny the music accompanying the procession.
Under the Public Order Regulations 8(2a) 2009,
“no singing or music, gongs, drums or music-producing equipment shall be played, and no live-streaming of any event shall be shown, during the procession unless authorised by the police officer granting the permit”
The ban has been in place since 1973. The reasons given in parliament included its contribution to road congestion, noise pollution, and that other religious groups are also equally affected by this restriction.
In an earlier press statement by the Hindu Endowment Board (HEB), the local authority on Thaipusam, it noted that it has “received complaints of disamenities and disorderly behavior that impede the progress of devotees in the procession and detract from the spiritual experience.”
Parliament’s reply to the music restriction
Various parliamentarians over the years have brought up questions about the music restriction. These include MP M.K.A. Jabbar in 1981, MP J. B. Jeyaratnam in 1986, and NMP Viswa Sadasivan in 2011.
Each later questioning appealed more and more strongly to the notion that the music ban has been in place for a long time.
Then Minister for Home Affairs, K. Shanmugam, answered in response to NMP Sadasivan’s questions,
“These rules are not new. They have been in place for many years. The restriction on the playing of musical instruments en route the procession, in particular, has been in place since 1973.”
To be fair, there has been some alleviation of the situation. In response to HEB’s feedback, the SPF allowed the singing of hymns by participants along the Thaipusam route in 2011. In 2012, static stations broadcasting hymns along the way were also established.
Nevertheless, the applicants are questioning whether such a restriction on music is constitutional in the first place.
Responses to the music restriction
Since the arrest of three people involved in a scuffle at the Thaipusam procession this year, many have come out in defence of the integral role music plays in the ritual.
Social activist, Gilbert Goh, attempted to hold an event on 14th February 2015 at Hong Lim Park Speaker’s Corner to rally people to the cause of making Thaipusam a public holiday. On the agenda was also the questioning of the music restriction.
However, the SPF turned down his application to hold the event, saying that the event “runs a significant risk of public disorder and could incite feelings of hostility between different racial and religious groups in Singapore.”
Most people, however, have also raised the issue online.
Ravi Philemon, blogger and social commentator, recounted how with the help of “the drums playing around [him] vividly”, he was able to complete the procession. He wrote, “The rhythm of the drums certainly helped me to remain in a trance-like state and enabled me to complete my religious vow satisfactorily.”
A comment on “What Did Gandhi Do” also pointed out Thaipusam was “lifeless without music”.
Goh Meng Seng, Secretary-General of the People’s Power Party wrote, “We are a cultural desert and will remain so as long as there are only restrictions and red tapes put on cultural events like Thaipusam instead of strong government support.”
In an interview with The Online Citizen, Mr Sathiyamoorthy, one of the persons involved in this case, and founder of Facebook page “Voices of Singaporean Indians” said the judicial review was a last resort,
“The Hindu Endowment Board (HEB) claims that playing of musical instruments on public roads is not under their purview, so they push the matter to the SPF. [When] Law Minister K. Shanmugam gave a press conference stating that they would collate all feedbacks and take the necessary steps, nothing constructive was done to resolve the problem. I and others from the Hindu community attended the HEB feedback session but still they have not responded to our questions which were raised by the public.
No Indian ministers in the current government are willing to speak up for the Hindu community, when these kind of religious sentiments are in the heart of the citizens. This is the reason for us to engage in this judicial review.”
When asked what would be the alternative to ensure a minimum public disturbance, Mr Sathiyamoorthy noted technology, surveillance and crowd control techniques have improved over the years. “With all these at their disposal, why can’t they provide the security coverage for this major event Thaipusam?” he asked.
He cited the case of Malaysia to support his claim,
“For 125 years, Thaipusam has been celebrated in Malaysia, Batu Caves & more millions of Hindus take part in the event. In 2015, about 1.6 million devotees attended the Thaipusam Festival in Malaysia, Batu Cave. Malaysia also has the public order act in place in accordance to the constitution. The PDRM (Police Force Division) deploys the necessary manpower resources in order prevent and deter rioting incidents. They take the necessary actions in maintaining peace which serves the public during a major event like Thaipusam. Why can’t the Singapore Police Force provide this service to Singaporeans?”
He continued, “[SPF is] funded by the government in terms of training and development in millions of dollars which are tax payer’s money. Therefore, why can’t the SPF provide their services in maintaining public order, if that is their main concern over the ban of musical instruments during Thaipusam?”
The founder of “What Did Gandhi Do”, who chose to remain anonymous, acknowledged he understood why the music restrictions were necessary. “In the past, education level was low. So we needed these kinds of restrictions if not it will be too messy.”
However, he also noted that people are more educated now and this could be another alternative solution. “Singapore’s society has progressed in a way that education actually works. Education is more workable than these kind of draconian laws. We need to introduce proper crowd control instead of banning,” he added.
As of now, the applicants to the judicial review are looking to appeal the case. However, several obstacles remain in the way, the huge upfront security deposit being the largest.
Mr Sathiyamoorthy noted he is trying to set up a crowd sourcing campaign which aims to raise $25,000. Nevertheless, the campaign is not up yet because there is nobody willing to come forward to provide a safe bank account that people can contribute to. He said that financial integrity on this issue was extremely important to him, thus he needs to pay due diligence into this matter.
Due to this difficulty, the applicants are requesting for an extension from the 11th September cut-off date from the courts for more time to raise the sum needed.