Case Summaries

Wham Kwok Han Jolovan v Public Prosecutor

SUPREME COURT OF SINGAPORE

6 November 2020

Case summary

CA/CRF 1/2020

Wham Kwok Han Jolovan v Public Prosecutor [2020] SGCA 111

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Decision of the Court of Appeal (delivered by Judith Prakash JA):

Outcome: The Court of Appeal holds that s 16(1)(a) of the Public Order Act (Cap 257A, 2012 Rev Ed) (“the POA”) is a constitutionally valid derogation from Article 14(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”).

Background

1 The Applicant was charged and convicted on one charge under s 16(1)(a) of the POA of having organised and held a public assembly without having obtained the permit for it that the POA required.

2 The Applicant organised an event called “Civil Disobedience and Social Movements” for the purpose of discussing what he called “the role of civil disobedience and democracy” in effecting social change (“the Event”).

3 Three days before the Event on 23 November 2016, the Applicant was advised by a police officer to apply for the relevant permit under the POA to obtain permission to carry on with the Event. This was because Mr Joshua Wong (“Mr Wong”), a non-citizen of Singapore, was planning to speak at the Event. This took the Event outside the scope of permit exemptions for public assemblies. It was undisputed that during the event, Mr Wong did indeed deliver a speech from Hong Kong by video link.

4 In his defence to the charge under s 16(1)(a) of the POA, the Applicant argued that the requirement to obtain a permit is unconstitutional vis-à-vis Art 14 of the Constitution.

The court’s decision

5 Art 14 of the Constitution grants citizens of Singapore constitutional rights to freedom of speech, assembly and association, subject to certain restrictions. The regulation of public assemblies under the POA involves two control mechanisms. The first regulates which assemblies require a permit. The second, where a permit is required, regulates the grounds for refusing to grant such a permit (at [13]–[16]).

6 As a starting point, permits are required for public assemblies unless they are exempted by the Minister under s 46 of the POA. These include sporting events, celebration of certain festivals, charitable events and some election events. Indoor public assemblies organised by and only involving Singapore citizens are generally exempt from the permit requirement. In this case, a permit was required asMr Wong, a non-Singaporean, had been asked to speak at (and did speak at) the Event (at [17]–[19]).

7 Art 14 rights are not unlimited. These rights are expressly made subject to the limitations that Parliament may impose on them pursuant to the powers granted to it by Art 14(2). In determining whether any legislation passed by Parliament to limit any of the Art 14 freedoms improperly derogates from any of those freedoms, a close examination must be made of the purpose and language of such legislation (at [20] and [21]).

8 Despite the broad language used in Art 14(2)(b), this does not prescribe a wholly subjective approach in that any law that Parliament passes which restricts the right of peaceable assembly is deemed valid. A subjective approach would be inconsistent with earlier decisions of the Court of Appeal (for example, Tan Seet Eng v Attorney-General and another matter [2016] 1 SLR 779). The key question is whether the 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 (at [21]–[24]).

9 There is no presumption of legislative constitutionality. In the analysis of the constitutionality of any law, the court must bear in mind the following principles (at [24]–[28]):

a. Each branch of Government has its own role and space. The separation of powers is part of the basic structure of the Westminster constitutional model.

b. The Constitution both confers a constitutional right and permits that right to be derogated from for the purposes listed under Art 14(2)(b). It is unequivocally for the judiciary to determine whether that derogation falls within the relevant purpose.

10 A three-step framework must be applied in determining whether a law impermissibly derogates from Art 14 of the Constitution. First, it must be assessed whether the legislation restricts the constitutional right in the first place. Second, if the legislation is found to restrict the Art 14 right, it must be determined whether the restriction is one which Parliament considered “necessary or expedient” in the interests of one of the enumerated purposes under Art 14(2)(b) of the Constitution. 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. In the final analysis, it is imperative to appreciate that a balance must be found between the competing interests at stake (at [29]–[33]).

11 In the present case, s 16(1)(a) of the POA imposes a “restriction” on one’s rights to assemble peaceably. It does not go beyond a mere “restriction” as the right to assemble peaceably is still exercisable with the permission of the Commissioner (at [35]–[37]).

12 The purpose of the POA is shown in its name and its long title. The general purpose of the POA was also explained by the Minister during the Parliamentary debates when the POA was passed. Parliament had enacted the permit regime under the POA to prevent public disorder and to fine-tune matters that could impact public order (at [38]–[40]).

13 Upon receiving an application for a permit, the Commissioner must exercise his discretion to either grant or refuse to grant a permit for the proposed public assembly. In doing so, he must have regard to s 7(2) of the POA. Most of the grounds under s 7(2) expressly pertain to considerations of public order. This provision achieves a careful balance between the constitutional right to peaceably assemble and the delineation of the restriction imposed on that right (at [44]–[49]).

14 Parliament cannot be expected to anticipate all the different circumstances that may be relevant or may arise at any given time in relation to decisions as to whether a public assembly ought to be allowed to proceed. It is legitimate and in the interests of society for a permit scheme to operate as this would assure the best prospects of preventing disorder as opposed to attempting to stop disorder which has already taken place. In line with the observations made by Miabhoy J in Indulal K Yagnik v State of Gujarat and Ors AIR 1963 Guj 259, it is entirely appropriate for Parliament to confer the licensing discretion on a public authority (in this case, the Commissioner) (at [50]–[52]).

15 The Applicant was wrong to suggest that he had no real or effective remedy against any decision which had been made by the Commissioner in bad faith. If the permit had been refused, the Applicant could have appealed that decision to the Minister. If the Minister also acted in bad faith, the Applicant could have made an application for judicial review (at [55]–[56]). In this case, since the Applicant never applied for a permit, no decision on his application was ever made. No question of remedies arose at all in the Applicant’s situation.

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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