There was a strange silence in our mainstream media in the third week of April. The continuing trial of Singapore Democratic Party (SDP) leaders, Chee Soon Juan, Chee Siok Chin and Gandhi Ambalan, on 23 – 25 April received no mention at all. One would have thought the prosecution of any political party leader should be newsworthy, especially when the case raises serious questions about how the police and law are deployed.
The three are being tried for illegal assembly. When I say "illegal assembly", many readers may see in their minds another defiant protest deliberately mounted. But in fact, that was not what happened. This charge on Chee et al does not refer to any demonstration, but to an activity we see all around us every day -- that of passing out flyers.
These three together with three others were in the vicinity of City Hall metro station on 10 September 2006, trying to publicise an upcoming protest at Hong Lim Park when police intervened to tell them that they were committing an offence.
The three others were Jeffrey George, Hakirat Kaur and Tan Teck Wee. The first two pleaded guilty in January. Tan is out of the country.
The trial started in January 2009, was then adjourned until April, and after a few days' hearings, adjourned again to July 2009.
The formal words of the charge are these:
You are charged that you, on the 10th day of September 2006 at about 12:15 pm, in the vicinity of Raffles City Shopping Centre, North Bridge Road, Singapore, which is a public place, together with 5 persons did participate in an assembly intended to demonstrate opposition to the actions of the Government, which assembly you ought reasonably to have known was held without a permit under the Miscellaneous Offences (Public Order & Nuisance) (Assemblies & Processions) Rules, and you have thereby committed an offence punishable under Rule 5 of the said Rules.
Mark Chua
Senior Investigation Officer
Central Police Division
29 December 2008
-- Source: SDP website
Section 5, subsection (4) of the Miscellaneous Offences (Public Order and Nuisance) Act (the "statute") says,
(4) Any person who _
(a) organises or assists in organising any assembly or procession in any public road, public place or place of public resort in contravention of any order under subsection (2) or any prohibition or restriction under subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both; or
(b) participates in any assembly or procession in any public road, public place or place of public resort where he knows or ought reasonably to have known that the assembly or procession is held in contravention of an order under subsection (2) or any prohibition or restriction under subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.
However, the charge refers not to the statute, but to the Rules issued by the minister under the statute. The Rules are not freely available online for public reference. From the SDP website, I see that:
Rule 5 of the Miscellaneous Offences (Public Order & Nuisance) (Assemblies & Processions) Rules: Any person who participates in any assembly or processions in any public road, public place or place of public resort shall, if he knows or ought reasonably to have known that the assembly or processions is held without a permit, or in contravention of any term or condition of a permit, be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.
-- ibid
... which is very similar to the wording of the statute.
It is difficult to imagine that the legislative intent of this law was to curb the handing out of flyers, or similar communicative-type activity. I daresay the law was meant to prohibit gatherings that pose a threat to public peace, e.g. gangs out to intimidate or fight, or sit-ins that block traffic. The name of the law, after all, is Miscellaneous Offences (Public order and nuisance) Act.
Most of the time, flyer-distributors work singly, or in pairs, so they do not constitute a gathering of 5 or more persons. But sometimes, especially in areas with very high traffic, there are deployed in large groups.
Moreover, in actual practice, no action is taken against the hundreds, if not thousands, of people who stand at metro stations handing out flyers, or even those who interfere with traffic in some way, e.g. stopping people to sell them insurance or trying to persuade them to attend church (usually without saying so explicitly.)
Another kind of communicative-type activity is walkabouts by members of parliament or aspiring politicians. Somewhere every weekend, this goes on, the MP or aspiring politician accompanied by supporters. Not only do they hand out (or sell) their party newsletter, they go around in a procession greeting residents and voters in the hope that they'd become familiar faces.
Likewise, we have university students going about in a bunch trying to spread the message of recycling and collecting old newspapers.
All this is part and parcel of civic and commercial life. That none of the above examples are regularly stopped by the police only goes to show that the law was never meant for such instances.
What emerged in court during the trial supports this view: that it has never been considered an offence under this law to distribute flyers. Police officers tasked on that day to intervene didn't know why they were ordered to intervene. As reported on the Singapore Democratic Party's website,
Sgt Damien Oh Jin Wei said that when he first confronted Mr Jeffrey George on the day of the incident, he was unsure what offence Mr George was committing.
"But after checking my law book, I realised that there could be an offence under the Miscellaneous Offences Act," the officer added. "But I'm not sure."
"By saying that you are unsure you are also saying that you don't know what the offence is, am I right?" Dr Chee queried.
"Yes," Sgt Oh admitted.
"And with everything that you know about this case right up until now, are you saying that you are still unsure about what offence has been committed?" asked Dr Chee.
"Yes."
[snip]
Mr Oh's colleague, Sgt Derrick Lim Yong Khiang, was also at a loss as to what offence was being committed. Under cross-examination by Ms Chee Siok Chin, the officer admitted that he did not know what the offence was when he confronted Ms Hakirat Kaur.
"So why did you tell Ms Kaur that she was committing an offence?" asked Ms Chee.
"I was under instructions," Sgt Lim replied.
[snip]
Even a commissioned officer was equally flummoxed about the law that he was called to enforce. Inspector Patrick Lim, who was deployed to look out for "public disorder incidents", told the court that the accused persons had not committed an offence.
"From your observation of the defendants distributing flyers, they have not breached the peace?" prosecutor Anandan Bala asked during re-examination.
"Correct," Mr Lim affirmed.
"As far as you're concerned," the DPP went on, "they have not committed a crime?"
"Based on my personal opinion, they are not committing an offence."
DPP Bala tried his best to salvage the situation by hinting to the Inspector about the law under which the defendants have been charged: "On 10th September 2006, were you aware of the subsidiary legislation of the Miscellaneous Offences Act (MOA)?"
"No," came the reply.
-- Source: SDP website.
You can sense that the prosecution realises that it is most unusual to prosecute someone for passing out flyers, from the fact that the charge includes the words "intended to demonstrate opposition to the actions of the Government". It sounds like an attempt to justify the exception.
Yet, this raises even more questions. Do certain kinds of flyers make a crime, while other kinds of flyers don't? How can that be since the law mentions no such thing?
Well, it turns out that there is another clause in the not-available-to-the-public Rules, this time with details not foreshadowed by the statute as passed by Parliament:
SI Yeo is the officer-in-charge of the police's Compliance Management Unit (CMU).
The CMU processes applications for licences including those for rallies, assemblies and processions. It is entrusted with considerable powers to approve or reject applications.
SI Yeo testified that under the subsidiary legislation of the Miscellaneous Offences Rules a group of 5 or more persons intending to demonstrate support or opposition to the views of the Government would require a permit:
2. _ (1) Subject to paragraph (2), these Rules shall apply to any assembly or procession of 5 or more persons in any public road, public place or place of public resort intended _
(a) to demonstrate support for or opposition to the views or actions of any person;
(b) to publicise a cause or campaign; or
(c) to mark or commemorate any event.
-- Source: SDP website.
The three are being tried for illegal assembly. When I say "illegal assembly", many readers may see in their minds another defiant protest deliberately mounted. But in fact, that was not what happened. This charge on Chee et al does not refer to any demonstration, but to an activity we see all around us every day -- that of passing out flyers.
These three together with three others were in the vicinity of City Hall metro station on 10 September 2006, trying to publicise an upcoming protest at Hong Lim Park when police intervened to tell them that they were committing an offence.
The three others were Jeffrey George, Hakirat Kaur and Tan Teck Wee. The first two pleaded guilty in January. Tan is out of the country.
The trial started in January 2009, was then adjourned until April, and after a few days' hearings, adjourned again to July 2009.
The formal words of the charge are these:
You are charged that you, on the 10th day of September 2006 at about 12:15 pm, in the vicinity of Raffles City Shopping Centre, North Bridge Road, Singapore, which is a public place, together with 5 persons did participate in an assembly intended to demonstrate opposition to the actions of the Government, which assembly you ought reasonably to have known was held without a permit under the Miscellaneous Offences (Public Order & Nuisance) (Assemblies & Processions) Rules, and you have thereby committed an offence punishable under Rule 5 of the said Rules.
Mark Chua
Senior Investigation Officer
Central Police Division
29 December 2008
-- Source: SDP website
Section 5, subsection (4) of the Miscellaneous Offences (Public Order and Nuisance) Act (the "statute") says,
(4) Any person who _
(a) organises or assists in organising any assembly or procession in any public road, public place or place of public resort in contravention of any order under subsection (2) or any prohibition or restriction under subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both; or
(b) participates in any assembly or procession in any public road, public place or place of public resort where he knows or ought reasonably to have known that the assembly or procession is held in contravention of an order under subsection (2) or any prohibition or restriction under subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.
However, the charge refers not to the statute, but to the Rules issued by the minister under the statute. The Rules are not freely available online for public reference. From the SDP website, I see that:
Rule 5 of the Miscellaneous Offences (Public Order & Nuisance) (Assemblies & Processions) Rules: Any person who participates in any assembly or processions in any public road, public place or place of public resort shall, if he knows or ought reasonably to have known that the assembly or processions is held without a permit, or in contravention of any term or condition of a permit, be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000.
-- ibid
... which is very similar to the wording of the statute.
It is difficult to imagine that the legislative intent of this law was to curb the handing out of flyers, or similar communicative-type activity. I daresay the law was meant to prohibit gatherings that pose a threat to public peace, e.g. gangs out to intimidate or fight, or sit-ins that block traffic. The name of the law, after all, is Miscellaneous Offences (Public order and nuisance) Act.
Most of the time, flyer-distributors work singly, or in pairs, so they do not constitute a gathering of 5 or more persons. But sometimes, especially in areas with very high traffic, there are deployed in large groups.
Moreover, in actual practice, no action is taken against the hundreds, if not thousands, of people who stand at metro stations handing out flyers, or even those who interfere with traffic in some way, e.g. stopping people to sell them insurance or trying to persuade them to attend church (usually without saying so explicitly.)
Another kind of communicative-type activity is walkabouts by members of parliament or aspiring politicians. Somewhere every weekend, this goes on, the MP or aspiring politician accompanied by supporters. Not only do they hand out (or sell) their party newsletter, they go around in a procession greeting residents and voters in the hope that they'd become familiar faces.
Likewise, we have university students going about in a bunch trying to spread the message of recycling and collecting old newspapers.
All this is part and parcel of civic and commercial life. That none of the above examples are regularly stopped by the police only goes to show that the law was never meant for such instances.
What emerged in court during the trial supports this view: that it has never been considered an offence under this law to distribute flyers. Police officers tasked on that day to intervene didn't know why they were ordered to intervene. As reported on the Singapore Democratic Party's website,
Sgt Damien Oh Jin Wei said that when he first confronted Mr Jeffrey George on the day of the incident, he was unsure what offence Mr George was committing.
"But after checking my law book, I realised that there could be an offence under the Miscellaneous Offences Act," the officer added. "But I'm not sure."
"By saying that you are unsure you are also saying that you don't know what the offence is, am I right?" Dr Chee queried.
"Yes," Sgt Oh admitted.
"And with everything that you know about this case right up until now, are you saying that you are still unsure about what offence has been committed?" asked Dr Chee.
"Yes."
[snip]
Mr Oh's colleague, Sgt Derrick Lim Yong Khiang, was also at a loss as to what offence was being committed. Under cross-examination by Ms Chee Siok Chin, the officer admitted that he did not know what the offence was when he confronted Ms Hakirat Kaur.
"So why did you tell Ms Kaur that she was committing an offence?" asked Ms Chee.
"I was under instructions," Sgt Lim replied.
[snip]
Even a commissioned officer was equally flummoxed about the law that he was called to enforce. Inspector Patrick Lim, who was deployed to look out for "public disorder incidents", told the court that the accused persons had not committed an offence.
"From your observation of the defendants distributing flyers, they have not breached the peace?" prosecutor Anandan Bala asked during re-examination.
"Correct," Mr Lim affirmed.
"As far as you're concerned," the DPP went on, "they have not committed a crime?"
"Based on my personal opinion, they are not committing an offence."
DPP Bala tried his best to salvage the situation by hinting to the Inspector about the law under which the defendants have been charged: "On 10th September 2006, were you aware of the subsidiary legislation of the Miscellaneous Offences Act (MOA)?"
"No," came the reply.
-- Source: SDP website.
You can sense that the prosecution realises that it is most unusual to prosecute someone for passing out flyers, from the fact that the charge includes the words "intended to demonstrate opposition to the actions of the Government". It sounds like an attempt to justify the exception.
Yet, this raises even more questions. Do certain kinds of flyers make a crime, while other kinds of flyers don't? How can that be since the law mentions no such thing?
Well, it turns out that there is another clause in the not-available-to-the-public Rules, this time with details not foreshadowed by the statute as passed by Parliament:
SI Yeo is the officer-in-charge of the police's Compliance Management Unit (CMU).
The CMU processes applications for licences including those for rallies, assemblies and processions. It is entrusted with considerable powers to approve or reject applications.
SI Yeo testified that under the subsidiary legislation of the Miscellaneous Offences Rules a group of 5 or more persons intending to demonstrate support or opposition to the views of the Government would require a permit:
2. _ (1) Subject to paragraph (2), these Rules shall apply to any assembly or procession of 5 or more persons in any public road, public place or place of public resort intended _
(a) to demonstrate support for or opposition to the views or actions of any person;
(b) to publicise a cause or campaign; or
(c) to mark or commemorate any event.
-- Source: SDP website.
