The police have arrested three individuals for allegedly holding and participating in a public assembly without a permit. The individuals had held up placards, some of which read “#FIX SCHOOLS NOT STUDENTS” and “trans students will not be erased” – made in connection to the recent saga where a transgender student alleged that the Ministry of Education (MOE) had interfered with her hormone replacement therapy.
These arrests have caused public outrage no less because those arrested were students who have not otherwise run afoul of the law and who were peacefully standing up for an issue that is close to their hearts. They were shining a spotlight on inequality and had (as video footage would show) not caused any violence, trouble or disturbance. In fact, no one was even paying much attention apart from the plainclothes policemen and members of the press.
To the casual observer, it may therefore seem ridiculous that the police even bothered to intervene (with more than ten police officers on the scene within minutes) especially when Minister for Law and Home Affairs, K Shanmugam (Shanmugam) had said that the police were so overstretched in Parliament.
However, in accordance with the Public Order Act (the Act) enacted in 2009 and propounded by Shanmugam himself, as ridiculous as it seems, the students have prima facie broken the law and the police do have a right to intervene (see below).
The question, however, is whether the Act is actually fit for purpose and whether or not it intended to penalise upstanding and harmless students in this case?
WHAT IS A PUBLIC ASSEMBLY WITHOUT A PERMIT?
Public assemblies in Singapore are regulated under the Act, and organising or participating in a public assembly without a Police permit is illegal. The Act defines “Assembly” as a gathering or meeting of persons for any of the following purposes:
- to demonstrate support for or opposition to the views or actions of any persons/groups/government;
- to publicise a cause or campaign; or
- to make or commemorate any event.
The Act also states that a demonstration by a single person can also constitute an Assembly or Procession (a march, parade, or other procession gathered at a place of assembly to move from that place substantially as a body of persons for any of the abovementioned purposes. What makes a Procession different from an Assembly is the movement from the place of assembly “by a common route” by those participating in the Procession.) A marked difference from the previous legal definition of an unlawful assembly which was five persons or more.
According to the Act, “Public” is very widely defined to mean any place to which members of the public have access to by right or virtue, regardless of payment or time restrictions; or a place that the occupier has allowed members of the public to enter.
The Act requires any person wanting to Assemble Publicly to apply for a Permit, this applies to even an assembly by one person.
Permits for Assemblies and Processions will not be granted if the police believe that the event may:
- cause public disorder or damage to public/private property;
- create a public nuisance;
- give rise to an obstruction in any public road;
- place the safety of any person in jeopardy;
- cause feelings of enmity, hatred, ill-will or hostility between different groups in Singapore;
- induce others to commit acts of terrorism;
- be held within or enter a prohibited area; or
- be directed towards a political end with involvement from non-Singaporean persons/entities.
Pursuant to the Act, police officers are permitted to arrest participants of an illegal assembly or procession (public assembly or procession without a valid permit) even without a warrant. However, they also have the alternative of issuing participant(s) with a direction to move on (Move On Order) if the officer is above the rank of a sergeant.
THE HISTORY BEHIND THE ACT
When the Act was first mooted by Shanmugam, he had said that he wanted to ensure that adequate space for an individual’s right to expression is balanced against society’s need for order and stability.
Theoretically, this makes complete sense. But if one takes a deeper look at the political landscape of the time, one could surmise that the Act was less about balance but more about Government control.
Notably, a number of Members of Parliament stood to voice their concern and objection to how the law was tabled during the second reading of the bill.
Ms Sylvia Lim who was a Non-Constituency Member of Parliament back in 2009 said then,
The change in definition of “assembly” and “procession” is more disturbing. As the Explanatory Statement to the Bill says, these words are no longer restricted to gatherings of five persons or more. This means even one person alone can constitute illegal assembly, thus giving the State complete control over an individual citizen’s freedoms.
First, to say that one person constitutes an assembly is certainly an abuse of the word. Secondly, is the Government making the change because there had been incidents involving less than five persons which had disrupted public life? Unless there is compelling evidence to prove to us that expanding the definition of assembly and procession is needed, this expansion does not deserve our support.
In response, Shanmugam said, “Having a threshold creates an artificial numerical criterion which can lead to a cat-and-mouse game with the Police. This distracts the Police from their responsibility to secure the safety and security of the event. We debate in this House with the often implicit assumption that people behave reasonably. But the unfortunate truth is that there is always a small minority which get up to endless farcical antics outside there and the law has to deal with that. If one is too low a number, what number should be chosen? Five? Four? Three? Different countries have different regulatory regimes for outdoor activities. There are countries which have regimes similar to ours and with a threshold of three persons but it is better for us simply to focus on the effect of the activities.”
He used an incident which involved then 23-year-old artist Seelan Palay who staged a hunger strike outside the Malaysian Embassy in the well-heeled Tanglin district of Singapore from 31 December 2007 for five days. He was protesting against the detention of five Hindraf organisers who were arrested under the ISA in Malaysia.
In 2007, a couple of activists had attempted to enter the vicinity of the Shangri-La Hotel to draw awareness to democratic rights in Myanmar at the 2007 ASEAN Summit which was held there. A group of Myanmese students had also put up a banner along Orchard Road for a few minutes before police officers told them to leave. While they left peacefully, it became obvious that the police may not easily arrest these protesters even it wanted to as the Minister pointed out that they were gathered in groups of four.
Former Nominated Member of Parliament, Prof Thio Lee Ann said then: “We are not hermits but citizens who share a common space. Rights carry responsibilities. Article 29(2) of the Universal Declaration of Human Rights states that rights such as peaceful assembly are subject to legal limitations designed to secure “recognition of the rights of others” and to meet “the just requirements of morality, public order and the general welfare in a democratic society.” and questioned, “Has the Public Order Bill managed to strike a happy equilibrium where rights are meaningfully enjoyed rather than illusory?”
Pointing out that the Bill confers broad discretionary powers on the Minister, Commissioner and Police which curtail rights of expression, assembly and personal liberty, through arrest and move-on powers and asked if the Bill provide clear guidance on how to exercise discretion so as to avoid arbitrariness and to realise the Act’s purposes.
Looking at how widely the Act is drafted against the above said examples and how it has been used over the past years, it is not unreasonable to surmise that the Act was enacted to give the police the power to take swift action against anything that it may deem undesirable.
BALANCING THE INDIVIDUAL’S RIGHT TO EXPRESSION VERSUS SOCIETY’S RIGHT TO STABILITY AND ORDER
In what way have the three students in this case affected stability or order?
It is clear that no public property was destroyed, no noise was generated and there was absolutely no threat of violence whatsoever. There was no incitement of violence and no signs of escalation. They were merely holding placards that stated their opinions on the matter.
If we went back to basics, the right balance of individual expression and society’s right to stability and order is to leave the students be, unmolested because the fact of the matter is that society was completely unaffected by the students.
By contrast, in arresting the students, you are penalising the students for the potentially unfounded speculation that society’s stability would be disturbed. In this case, the balance has been unduly and unfairly shifted to favour the speculative value of society over the individual’s right to expression and without basis too.
The students have claimed their right to express themselves and society has not been harmed. Going back to Shanmugam’s ethos behind the Act, surely the students have not upset the balance at all!
Is the Act intended to catch incidences like this? Or has the Government placed its need for speculative control over the individual’s right to expression (and especially on incidences of inequality such as this?).
Furthermore, as Terry Xu has shown in his recent application to obtain a legal permit to protest, the Police Commissioner does not seem to exercise any discretion in denying application for an assembly for cause. Making it impossible for the students to obtain a permit to have done what they did in the first place.
What these arrests have shown is that the said original intent of the Act may have been lost as a result of it being drafted far too widely. If something is producing unwanted results that deviate from the original intentions, surely the Government ought to revisit the issue?
After all, it bears remembering that before the Act was passed, it is enshrined in the Constitution under article 14 that the individual’s right to expression is sacrosanct.