Case Summary and Outcome

The Court of Appeal of Singapore dismissed a criminal reference on the question of whether the creation of an offence for failing to obtain a permit for an assembly under section 16(1)(a) of the Public Order Act is a constitutionally valid derogation from Article 14(1) of the Constitution of the Republic of Singapore, which protects the right of peaceable assembly.  The Applicant, Mr Wham Kwok Han Jolovan, had failed to obtain a permit in respect of a public event organised by him for the purpose of discussing what he referred to as “the role of civil disobedience and democracy” in effecting social change. The Court found section 16(1)(a) of the Public Order Act to be valid under the Constitution despite the restriction it imposed on the right of Singaporeans to assemble peaceably because the whole permit system came within the range of permitted purposes of derogations allowed under Article 14(2)(b) of the Constitution. Accordingly, the Court found that there was no reason to set aside the Applicant’s conviction under the section.

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Facts

On November 26, 2016 in a public venue, the Applicant held an event called “Civil Disobedience and Social Movements” for the purpose of discussing “the role of civil disobedience and democracy” in effecting social change. Joshua Wong, a Hong Kong citizen, delivered a speech from Hong Kong by video link at the event. The Facebook event page that had been used to publicize the event specified that Joshua Wong would share with certain local activists “their thoughts on the role of civil disobedience and democracy in building social movements for progress and change”.

Three days prior to the event, a police officer had advised the Applicant to apply for the relevant permit under the Public Order Act (POA). This was legally required under the Public Order (Exempt Assemblies and Processions) Order 2009 (S 489/2009) given that Joshua Wong was a non-citizen of Singapore and planned to speak at the event. The Applicant did not apply for the permit. As a result, the Applicant was charged under section 16(1) POA. At the trial, the District Judge rejected the Applicant’s submission that the requirement to obtain a permit was unconstitutional under Article 14 of the Constitution. The Applicant was convicted.

In his appeal to the High Court against conviction and sentence, the same submission was again rejected, and his appeal was dismissed in its entirety. The Applicant then made a criminal reference to the Court of Appeal on the question of whether section 16(1)(a) POA is a constitutionally valid derogation from Article 14(1) of the Constitution of the Republic of Singapore.

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Decision Overview

The question for the Court was whether the offence created for failing to obtain a permit for a public assembly under s 16(1)(a) of the Public Order Act amounted to an unconstitutional restriction on the right of peaceable assembly and, if so, whether s 16(1)(a) of the POA is valid under the Constitution despite the restriction it imposes on the right of Singaporeans to assemble peaceably.

Section 16(1)(a) Public Order Act

The purpose of the Public Order Act (POA) is, inter alia, to regulate assemblies in public places, provide powers necessary for preserving public order, and supplement other laws relating to the preservation and maintenance of public order in public spaces [para. 14]. Section 16(1)(a) POA creates an offence of organising a public assembly “in respect of which no permit has been granted under section 7 or no such permit is in force, where such permit is required by this Act”. The maximum sentence is a SGD 5,000 fine.

The Court identified two controls for regulating public assemblies which would be scrutinized: (1) which assemblies require a permit, and (2) where a permit is required, the grounds for refusing to grant such a permit.

As a starting point, permits are required for public assemblies unless exempted by the Minister under section 46 POA. The event in question did not qualify for any of the exemptions set out in the First Schedule to the subsidiary Order. In particular, it did not qualify for the exemption for indoor public assemblies organized by and only involving Singapore citizens, for two reasons: (i) the event in question was to “publicise the cause of civil disobedience”, and (ii) Mr Joshua Wong, a non-Singaporean activist, had been asked to speak, and did speak, at the event.

Article 14 of the Constitution

Article 14 of the Constitution of the Republic of Singapore (“Freedom of speech, assembly and association”) confers on Singapore citizens the right, inter alia, to “assemble peaceably and without arms”. This right is subject to such restrictions as Parliament considers “necessary or expedient” in the interest of the security of Singapore or for public order (Article 14(2)(b)).

The rights conferred by Article 14(1) on Singapore citizens are not unlimited. Article 14(2) grants power to Parliament to impose limitations on them, constrained, however, by the list of permissible derogations set out in Article 14(2).

The starting point in this case was to analyse Article 14(1)(b) (right to peaceable assembly), with Article 14(2)(b) (Parliament’s power to impose restrictions). Despite the broad language of Article 14(2)(b), an “objective approach” must be applied to the question of whether a restriction is permitted by the Constitution or not. A wholly subjective approach would allow Parliament a “carte blanche” to pass any law that restricts the right to peaceable assembly so long as it deems it subjectively necessary or expedient in the interests of public order. Such an approach would render Article 14(1)(b) “wholly toothless” and “purely symbolic … without any real force or effect” [para. 22], and would be inconsistent with earlier Court of Appeal decisions that upheld an objective approach to scrutinizing Ministers’ decisions (e.g. Tan Seet Eng v Attorney-General and another matter [2016] 1 SLR 779).

It must be recognized, however, that the Constitution “vests the primary decision-making power regarding whether a derogation from the right is necessary or expedient on Parliament” [para. 24]. Therefore, the Court has only the limited role of reviewing the legislation and legislative materials (e.g. speeches and explanatory notes) to ascertain whether objectively, the statutory derogation is “within the permitted space provided for this purpose in the Constitution” [para. 24]. The key question, therefore, is “whether the statutory derogation is objectively something that Parliament thought was necessary or expedient in the interests of public order and whether Parliament could have objectively arrived at this conclusion” [para. 24].

To answer this question, the Court must “consider the nexus between the object of an impugned law and one of the purposes listed under Art 14(2)(b)”. So long as the law in question can be fairly considered necessary or expedient for one of the purposes in Article 14(2), it is constitutional (Chee Siok Chin and others v Minister for Home Affairs and another [2006] 1 SLR(R) 582).

As for standard of review, “legislation will not presumptively be treated as suspect or unconstitutional”, there was no “presumption of legislative constitutionality” that would not be “lightly displaced” in the Court’s assessment (as had been suggested in Chee Siok Chin). Furthermore, the Court would bear in mind the principles of the separation of powers and the unequivocal role of the judiciary to determine whether a given derogation falls within the relevant purpose listed in Article 14(2)(b) [para. 28].

Three-step framework

With these principles in mind, the Court set out a three-step framework to assist courts in determining the permissibility of a derogation from Article 14:

1. “First, it must be assessed whether the legislation restricts the constitutional right in the first place” ([30]).
2. “Second, if the legislation is found to restrict the right guaranteed by Art 14, it must be determined whether the restriction is ‘necessary or expedient’ in the interests of one of the enumerated purposes under Art 14(2)(b) of the Constitution” [para. 31]). The Court may consider the relevant legislation, parliamentary material, contemporary speeches, and documents to determine Parliament’s purpose. Parliament need not have “expressly referred to the restriction for the constitutional right” of the legislation in question; the Court may still, in such circumstances, infer from Parliament’s general purposes for the legislation that it had considered it “necessary or expedient” to restrict the constitutional right in question.
3. “Third, the Court must analyse whether, objectively, the derogation from or restriction of the constitutional right falls within the relevant and permitted purpose for which, under the Constitution, Parliament may derogate from that right” [para. 32]. In this regard, the Court must identify “a nexus between the purpose of the legislation in question and one of the permitted purposes”. Furthermore, “it is imperative to appreciate that a balance must be found between the competing interests at stake” [para. 33], for example, the competing interests of the constitutional right to peaceably assemble and the interests of public order.

Applied to section 16(1)(a) POA, the Court found as follows:

Whether section 16(1)(a) restricts the constitutional right

Section 16(1)(a) does impose a restriction under Article 14(2)(b) on a person’s constitutional right to peaceably assemble under Article 14(1)(a), as it subjects the exercise of the right to criminal prosecution and punishment where no permit under POA is obtained [para. 36]. The Court rejected the Applicant’s submission that the section deprived persons of the right to peaceably assemble more fundamentally than a mere restriction should, because the discretion to grant or decline a permit was “not an untrammeled and arbitrary one” [para. 36].

Whether the restriction was “necessary and expedient” in the interests of a permitted purpose

The long title of the POA, and relevant Ministeral statements, made it clear that the general purpose of the Act was to “impose restrictions for the purpose of maintaining public order”, which is compatible with Article 14(2)(b) [para. 39].

Whether, objectively, the derogation/restriction falls within the relevant and permitted purpose

There is a sufficient nexus between the legislative restriction and its relevant and permitted purpose—namely, public order—which can be gleaned from the POA’s guidelines for the exercise of the discretion to grant or refuse to grant a permit.

When a Commissioner receives an application for a permit under section 7 POA, he must exercise his discretion having regard to whether any of the circumstances set out in section 7(2) POA exist or are likely to occur if the permit is granted. Where they have “reasonable ground for apprehending that the proposed assembly or procession may” result in any of the listed circumstances, the Commissioner has a discretion to refuse to grant the permit sought. Applied to the event in question, all of the circumstances listed in section 7(2) “may occur” as a result of it, especially that listed in section 7(2)(h), namely that the assembly may “be directed towards a political end and be organised by, or involve the participation of, any of the following persons […] (ii) an individual who is not a citizen of Singapore.” Since most of the listed results in section 7(2) “expressly pertain to considerations of public order”, the requirement of a sufficient nexus between the restriction and public order was met. Additionally, it was noted that “foreign involvement in domestic politics” posed danger.

Section 7(2) POA achieves a “careful balance between the constitutional right to peaceably assemble and the delineation of the restriction imposed on that right”. All the circumstances listed in section 7(2) are “situations in which threats to the interest of public order or its maintenance could conceivably arise” [para. 48]. Conversely, the Commissioner is nevertheless “not obliged to refuse to grant” a permit where he has reasonable grounds to apprehend that one of the listed circumstances apply.

As a further consideration, “foreigners are not guaranteed constitutional rights under Art 14(1)”, therefore meriting an “even more generous standard of review by the Court” vis-à-vis derogations directed at foreigners’ participation [para. 49].

The Court also affirmed the system of delegating discretionary powers to Commissioners to grant permits, referring to the observations of N M Miabhoy J in the High Court of Gujarat decision of Indulal K Yagnik v State of Gujarat and Ors AIR 1963 Guj 259 and the Privy Council’s decision in Arthur Francis v Chief of Police [1973] AC 761. It also affirmed the legitimacy of a permit scheme generally, which would “assure the best prospects of preventing disorder as opposed to attempting to stop disorder which has already taken place” ([52]). Overall, the system of a licensing discretion conferred on a public authority (i.e. the Commissioner) was “entirely appropriate”, and was the better alternative to prohibiting all public assemblies directed at a political end and which involved a foreign entity/individual altogether. The Court added that the decision of the Commissioner is not necessarily final, provision for appeal to the Minister being included in section 11 POA.

Finally, the Court noted that the Applicant, on the facts, had not applied for the relevant permit despite having been advised to do so. Therefore, the outcome of this criminal reference could not give the Applicant a route to resist conviction on the charge unless it is shown that the entire POA is “ex facie invalid”. This “clearly could not be accepted” [para. 55]. On this issue, the Court rejected the Applicant’s submission that he had no real or effective remedy against any adverse decision by the Commissioner, because the POA provided a mode for appealing a decision to the Minister, and the Minister’s decision could in turn be subjected to judicial review. In any event, the Act could not be assessed for constitutional validity on the premise that those entrusted with the discretion conferred by it would exercise it in bad faith or for improper purposes [para. 56].

In conclusion, the Court found section 16(1)(a) POA is valid under the constitution.

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