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Were rights taken seriously in Jolovan Wham’s case?

By Tan Wah Piow

The recent High Court ruling that a “warning” issued by the police against Jolovan Wham had no legal effect and was not binding has attracted media attention.

To a layperson, this decision appears to be favourable to the litigant Jolovan Wham, and was a slap on the wrist for the Attorney General. One cyberspace commentator interpreted the decision as the court’s “warning the Singapore Police Force not to abuse its power”.

Despite this upbeat public perception of the case’s outcome, the truth is that Jolovan Wham did not get what he wanted from the High Court – which was to have the warning quashed.  Instead he now faces the risk of having to pay the costs of the AG.

Although Judge Woo was complemented for remarks on the “stern warning”, in truth, it was the Attorney General who took pains to persuade the court that such warning had no legal effect.

So what was actually going on in this case?

To understand this case, we need to examine the relationship between the Applicant and the Government. There is also a need to revisit the alleged “scene of the crime”, and the nature of Judicial Review.

The Man

Jolovan Wham is a social activist concerned with the the rights of migrant workers in Singapore. His brushes with the Singapore authorities are chronicled in the 2015 Human Rights Watch submission to the United Nations.

In October 2013, the Ministry of Finance denied the application of the Community Action Network (CAN) to register under the Companies Act, stating that it would be “against national interest.” Specifically, the Finance Ministry found that prior activities to assist migrant workers by applicant Jolovan Wham, the proposed co-director of CAN, meant that CAN might serve as a “vehicle for unwarranted labor agitation, especially among foreign workers.” Yet Wham serves as executive director for the Humanitarian Organization for Migrant Economics (HOME), which is an internationally recognized organization that has received numerous awards and which works in collaboration with the Ministry of Manpower, UN agencies, foreign embassies, and others. In denying the application for CAN, the Finance Ministry also accused Wham of activism that “appears to be divisive and confrontational in nature” and claimed that his work could “negatively impact the bilateral relations between Singapore and those countries” and “impact on the supply of foreign labor or the inflow of foreign investment.” [source: 23.6.2015 Human Rights Watch JUNE 23, 2015 Submission to the Universal Periodic Review of Singapore]

The Alleged ‘Crime’

In October 2014 Jolovan Wham organized a solidarity event at Hong Lim Park in support of the democracy movement in Hong Kong. Mindful that such an event might attract non-Singaporeans, Jolovan took the precaution of issuing a warning on Facebook that in law, foreigners and permanent residents would require a permit in order to participate. The event turned out to be peaceful, attended by 300 people who sang songs, and expressed support for the thousands of people in Hong Kong fighting for universal suffrage. Jolovan Wham did inform foreigners that they were free to attend the event as observers.

Yet it was several months later that the AG directed the Criminal Prosecution Department to issue a stern warning to Jolovan Wham to refrain from conduct amounting to an offence under the Public Order or ‘any other criminal conduct in the future’. The presumption therefore was that a crime had been committed.

When Jolovan Wham refused to sign a written warning in March, the contents were conveyed to him orally by DSP Pannirselvam.  Jolovan Wham was told that the warning was issued in lieu of prosecution for an offence under para 4(1)(b) read with para 4(2) of the Public Order (Unrestricted Area) Order 2013, and that the same leniency might not be shown to him if he were to commit any offence in the future. [for details read the Judgement (Wham Kwok Han Jolovan v Attorney-General [2015] SGHC 324)

In other words, the AG office was alleging that Jolovan Wham had allowed foreigners to take part in the event at Hong Lim Park on the lst October 2014, and if found guilty, he could face a fine of up to S$10,000 or a term of imprisonment of 6 months, or both.

The Law

Instead of bending on his knees to thank the AG office for their ‘magnanimity’, Jolovan Wham refused to endorse the ‘stern warning’ because having posted an advice to foreigners that they would need to apply for a permit to participate in the solidarity vigil, he was adamant that he did not commit any offence, and signing the ‘stern warning’ would amount to an admission of guilt.

Given his previous brush with the Ministry of Finance as mentioned above, Jolovan Wham was understandably wary of leaving such prejudicial ‘stern warning’ in Government’s records. He therefore, took the case to the High Court by way of Judicial Review to have the decision of the AG quashed.

Unfortunately, Judge Woo did not grant permission to Jolovan Wham to pursue the Judicial Review because:

“in my view the warning is still no more than an expression of the opinion of the relevant authority that the recipient has committed an offence. It does not bind the recipient. It does not and cannot amount to a legally binding pronouncement of guilt or finding of fact. Only a court of law has the power to make such a pronouncement or finding and this is not disputed between the parties.”

Judge Woo was right in saying that the ‘warning’ was not legally binding, and could not be relied upon in a court of law. On the substantive request of Jolovan Wham for an order to quash the warning, the Judge took the view that since the warning did not directly or indirectly affect Jolovan Wham’s legal rights, interests and liabilities,  there was no decision for the court to quash.

This is the crux of the legal problem.  In my humble view, there is more to the ‘warning’ than meets judicial eyes.

It is regrettable that at no time during the entire hearing the parties, including the Judge, explore the constitutionality of the AG office in issuing the ‘stern warning’. Two years before this case, a Singapore lawyer, Mr Tan Hee Joek published an article on ‘stern warning’ in the Law Gazette stating:

The practice of issuing stern warnings in Singapore is presently not governed by any statutory provision. There is also no published public literature by the authorities on this area. The genesis of such a practice is unclear.

Mr Tan had, in the article, invited the authorities to look into the provenance of ‘stern warning’, and listed various cases where the ‘stern warning’ was actually considered by the courts in sentencing. Had the Attorney General taken heed of the article at the time, Jolovan Wham would not have the current predicament.

Under Singapore’s Criminal Procedure Code, “The Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code or any other written law.”

In other words, Criminal Procedure Code and written law do not authorize the AG office to issue such a warning to an individual, it was an abuse of power for the AG to issue a ‘stern warning’.

It was wrong to dismiss such a warning as ‘no more than an expression of the opinion’  because a ‘stern warning’ from the AG office,  is likely  to induce a vulnerable innocent lay person to admit to a crime they did not commit out of expediency and fear. It was fortuitous that Jolovan Wham did not succumb to the pressure.

What the law should be?

The unregulated ‘stern warning’ regime in Singapore is a low-quality counterfeit version of the caution system which is part of Criminal Procedure system in England and Wales. Unlike Singapore, the administration of caution is well regulated, sanctioned by statute, and with safeguards to avoid abuse. When properly administered, it avoids the criminalization of first-time offenders and allows the police and the courts to concentrate on more serious cases.

Most suspects, regardless of their innocence or guilt, and however well educated, are vulnerable to inducement, especially if they could get out of the police station as quickly as possible, and to avoid trial. It is for this reason that any system of caution, or warning should be governed by law, with a strict Code of Practice. To avoid abuse, a suspect at the police station in England and Wales is offered the free service of an independent lawyer at the earliest opportunity. This will be followed by a disclosure of the allegations against the suspect, and a private consultation with the lawyer before the formal tape recorded interview with the police. Only after this will the issue of a caution, where appropriate, be administered.

I am therefore surprised to learn that the officer who first presented Jolovan Wham with the ‘stern warning’ had refused him permission to take a copy to his lawyers.

In the UK, a caution can only be issued to a suspect when he admits to committing  the offence. Such a caution will be kept in the police record, and can be produced in court in appropriate circumstances.

In a properly administered caution system, there should be transparency and clarity as to what information is held by law enforcement agency, and strict rules as to the sharing of such information. In Jolovan Wham’s case, this issue was not explored by the court other than that the warning would not be legally binding.

Many cases of similar nature appear before the High Court in England and Wales involving litigants seeking Judicial Review to quash prejudicial records held against them by public agencies.

Should a similar case come before the High Court for Judicial Review in the United Kingdom involving curbs on freedom of speech and assembly, a Judge would prima facie rule that such ‘severe warning’ breaches the person’s right to freedom of speech and assembly. The issue of whether it should be quashed would be one of proportionality and the balance between protecting individual rights and the need to protect the interests of the wider community. It is inconceivable for a Government to get away unscathed in similar circumstances.

In is worrying that a law as ridiculously worded and unenforceable as the Public Order (Unrestricted Area) Order 2013  s4.—(1) (b)  can be in the statute book. The law stipulates that the organizer of a demonstration “must not allow any person who is neither a citizen nor a permanent resident of Singapore to take part in the demonstration”.

By its very nature, a demonstration is a public affair in a public place. Even as in this case where the organizer did forewarn foreigners of the need for them to obtain a permit if they intend to participate, it was not logistically possible for the organizer to monitor the nationality of individuals and immigration status of those at the Hong Lim Park event. How could the organizer prevent a legitimate foreign observer from becoming a participant by clapping or singing?

It is unfortunate that Judge Woo did not consider the impact of the warning on Jolovan Wham’s  Article 14 constitutional rights to freedom of expression and assembly.

Furthermore, since conduct of the office of the AG was arbitrary and therefore, unlawful for reasons I have set out above, was that not a blatant breach of Jolovan’s Article 12 constitutional right to be treated equal before the law?

Taking all these into considerations, the decision of the Attorney General was clearly one which is capable of altering the rights and interests of Jolovan Wham as the existence of such a serious warning in one’s file at the AG office could potentially deter a person from exercising his Article 14 rights in the future.

It is therefore, regrettable that once again rights are not taken seriously.