SINGAPORE—Police arrested two men, aged between 24 and 25, on Saturday afternoon (Apr 4) as they held up placards outside the Istana in a peaceful protest against the Government. They were apparently protesting the Government’s repression of free speech. The placards read: “Injustice” and “You Can’t Silence the People” (see picture above and below).
According to the police, the duo was arrested for organising a public assembly without a permit after they had refused to stop the protest despite requests from officers. This was despite the fact that only two people were involved and there was no disruption of public order at the time.
If found guilty of an offence under Section 16(1)(a) of the Public Order Act (POA), Chapter 257A, the two men may be fined up to S$5,000.
Public protests are de facto illegal
In Singapore, public protests are de facto illegal everywhere except within the confines of Hong Lim Park—a 0.94-hectare heritage park that is the only place where Singaporeans can conduct public demonstrations legally.
Under the Act, Singaporeans have to apply for a permit from the police before they can hold a protest outside of Hong Lim Park. On the surface, the police make their decisions on a case-by-case basis based on their assessment of the threat posed to public order. However, the Act amounts to a blanket restriction on public protests because the police exercise a strict policy against granting such permits.
In 2006, Deputy Superintendent Mark E Kwan Szer stated that the “police’s policy position on outdoor demonstrations and processions is one of disallowance” to explain why Dr Chee Soon Juan application’s had been rejected. In the same explanatory letter, DSP Mark reiterated his position in no uncertain terms: “The policy position has always been to disallow demonstrations and processions.” He also noted that this policy applied regardless of whether there was a major meeting going on. (See Public Prosecutor v Chee Soon Juan and Others  SGDC 128).
Despite this policy, Singaporeans have limited legal recourse. In a separate but related case in 1989, Justice Chan Sek Keong explained that the court has no power to direct the licensing officer to grant an application. In his decision, he stated that the court may only direct the officer to consider the application afresh, and only if the applicant had commenced proceedings for judicial review. (See Jeyaretnam Joshua Benjamin v Public Prosecutor and another appeal  2 SLR(R) 419;  SGHC 90).
Furthermore, although Singaporeans whose applications have been denied may appeal to the Minister for Home Affairs, the Act states that his decision is final. Whether or not the judiciary is willing to accept that the Minister’s decision cannot be subject to judicial review is still an open question. But if it accepts this, this means that public protests are effectively illegal in Singapore, and it would illustrate how power is concentrated in the executive branch of Government.
This would also be contrary to a 1988 decision by the Court of Appeal in Chng Suan Tze v Minister for Home Affairs. In it, the Court stated that: “[T]he notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.” This means that as a general principle, the judiciary acknowledges its role as a check and balance on the abuse of power by the executive branch of Government.
However, in at least one instance where the judiciary attempted to fulfil this role—checking the excesses of the People’s Action Party (PAP) Government—its ruling was quickly undermined by amendments to the Constitution and the relevant law (see Internal Security Act case). This was possible because of the PAP’s near-uncontested dominance in Parliament.
Two’s a crowd
Optimistic observers frequently point to the Government’s relaxation of rules on free speech as evidence of increasing democratisation in Singapore. The introduction of a Speakers’ Corner in 2000, in Hong Lim Park, allowed people to make speeches in an open area without having to apply for a permit, although they still had to register their intention with the police. In 2008, the rules were further liberalised and Singaporeans were allowed to hold demonstrations within the confines of the park.
The PAP portrays this as a cautious attempt to give Singaporeans “greater space for political expression”. There is indeed a growing recognition within the ruling party that Singaporeans are becoming more well educated and would like to see greater liberalisation. This is coupled with the gradual realisation that an active citizenry is not necessarily a threat to its dominance and may in fact contribute to the renewal of talent within the party.
But if the optimists are right, the Public Order Act (POA) represents an instance of the PAP moving in the opposite direction, contrary to its stated intentions. Instead of making it easier to organise public protests, they made it harder.
The Act was introduced in 2009 to replace certain provisions in the Public Entertainments and Meetings Act (PEMA) and Miscellaneous Offences (Public Order and Nuisance) Act (MOA). But whereas an “assembly” was defined as “a group of 5 persons or more” before 2009, an “assembly” under the POA imposes no such limitation on the number of persons. As such, by default, even one person can now constitute an assembly. The two men who protested outside the Istana were thus arrested for illegal assembly.
In 2009, the Ministry of Home Affairs explained that this “rationalises the current approach of regulating groups of five or more under the MOA and groups of four or less under the PEMA, (where there is public entertainment).” However, there is nothing rational about calling two protesters an assembly.
In fact, if the purpose of the law is to strike a balance between maintaining public order and allowing people to express themselves, then factors relevant to that end should be considered. In this case, the number of people involved is a relevant factor and it is hard to imagine how an “assembly” of two people can possibly pose a threat to law and order. A further “rationalisation” is necessary.
A diversionary tactic
Regardless of the absurdity of this legal terminology, and regardless of whether Singaporeans may appeal the Minister of Home Affairs’ decision in the courts, the Government has successfully made it prohibitively costly for citizens to engage in peaceful protests through the requirement of a permit, and later an appeal to the Minister, under the Public Order Act.
The Act has also allowed it to divert attention away from its policy of prohibiting all public protests outside of Hong Lim Park to the fact that offenders failed to obtain a permit. Thus the offense is often euphemistically reported as “organising a public assembly without a permit” rather than simply “organising a public assembly”. For instance, the state-linked Channel News Asia’s headline reads: “Duo arrested for organising public assembly without permit outside Istana”.
On top of that, this complicated procedure—of applying for a permit then appealing to the Minister of Home Affairs when it is denied (as should be expected)—allows the Government to divert attention away from the issue of its blanket ban on public protests, and towards the offender’s failure to follow the right procedures. It is as if to say that the fault lies with the offender for failing to obtain a permit, even though it is practically impossible to succeed, rather than with the Government for its illiberal policy on public protests.
All this is not to say that the Government’s position on public protests is ill-founded, merely that it is disingenuous. It is akin to a women’s modelling agency saying that it will hire both male and female models on a case-by-case basis.
Why the attempt to hide the obvious? If indeed there are strong grounds for the blanket ban on public protests outside Hong Lim Park, why not be upfront about it?
A strangely supportive populace
This is also not to say that the Government’s justification for restricting freedom of assembly and freedom of speech is without support. In fact, it remains very much the opposite. Singaporeans are still largely conservative and the Singapore consensus remains largely unchallenged. The culture of conducting public demonstrations disappeared along with the decline of the politically active Chinese-educated trade unionists and student activists in the 1960s and 70s. Since then, Singaporeans have accepted Lee Kuan Yew’s little nugget of wisdom: you stay off the streets and the PAP will keep you in your jobs. Much remains the same today.
Moreover, Singaporeans view public protests as a poor way to challenge the PAP’s hegemony and a dangerous threat to public order. In fact, very few see the duo’s protest as anything more than a foolish move; and almost no one sees the incident as an example of the Government’s repression on free speech.
Singaporeans, it appears, prefer the online media and the ballot box—avenues of political expression where the cost of participation is low and the risk of repression is negligible. However, these options are also limited because of the Government’s restrictions on online news websites such as The Online Citizen and because of the PAP’s systematic use of its executive powers to engage in gerrymandering and pork barrelling. Thus it remains to be seen whether Singaporeans will take to the streets to force the Government to do more on issues like high housing prices, widespread underemployment and persistent income inequality. The answer, it seems, still depends very much on whether the Government fulfils its end of the bargain.