A five-judge Court of Appeal has ruled on Thursday (20th August) morning that a provision under the Public Order Act (Cap 257A, 2012 Rev Ed), which makes it an offence for any person to organise a public assembly or procession without a permit, did not infringe the constitutional right to freedom of speech and expression under Article 14 of the Constitution of the Republic of Singapore.
This ruling was made in the context of a criminal reference by 40-year-old social worker and rights activist Jolovan Wham, who was convicted for offences arising from his involvement with “Civil Disobedience and Social Movements”, a public indoor event which he organised on 26th November 2016.
Wham had been charged for organising a public assembly without a permit (“the POA offence”) and refusing to sign a police statement under section 180 of the Penal Code (Cap 224, 2008 Rev Ed). He was found guilty of both charges, and fined $2,000 and $1,200 respectively (in default, 10 days and 6 days imprisonment respectively).
Wham appealed against his conviction and sentence to the High Court, where he also challenged the constitutionality of the provision creating the POA offence, on the basis that it infringed the constitutional right to free speech. Justice Chua Lee Ming dismissed these arguments and upheld his conviction and sentence in October last year.
Wham then applied for leave to refer questions of law of public interest to the Court of Appeal. The Court of Appeal gave the green light for Wham to proceed with his constitutional challenge against the provision creating the POA offence in March this year, but refused leave in respect of the questions relating to refusal to sign police statements.
At the hearing of the criminal reference this morning, Wham’s lawyer, Mr Eugene Thuraisingam, sought to characterise the provision creating a POA offence as not being a restriction to freedom of speech, but instead as a right which the Executive branch of the government could withhold at its will, such that it stripped the constitutional right under Article 14 of its substance.
Mr Thuraisingam also rehashed the point that there is no practical remedy should the Commissioner of Police or Minister refuses to grant the permit applied for, given that the court could only quash the Executive’s decisions for being invalid or unlawful, but had no power to direct the Commissioner or Minister to grant the permit in such circumstances.
Chief Justice Sundaresh Menon, in acknowledging that Wham’s case was pitched at a high and general level as he had not even applied for a permit in the first place, remarked that “judicial power is not just about invalidating or quashing acts”, and that once the basis of the executive decisions were found to be invalid, the Executive would have to standby the guidance of the courts in relation to the same subject matter.
The Court of Appeal – which included Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – has indicated its intention to issue written grounds of decision detailing their reasons at a later date.
Wham elected to serve his default imprisonment term of 10 days for the POA offence which will commence tomorrow (21st August), while he would be paying the fine of $1,200 for refusing to sign the police statement.