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

Article 14 of Singapore’s Constitution confers rights to freedom of speech, expression and to assemble peacefully without arms, upon Singapore citizens. However, s 16(1)(a) of the Public Order Act (POA) makes it an offence to organise a public assembly without a permit. Therefore, could the requirement to obtain a permit to organise public assemblies in Singapore be subjecting a citizen’s constitutional rights entirely to the Commissioner’s act of granting a permit?

 

Such was the argument put forth by the offender in Wham Kwok Han Jolovan v Public Prosecutor (Wham Kwok Han). In this case, the Court of Appeal opined that although Article 14 of the Constitution does indeed confer rights to freedom of speech, expression and to assemble peacefully without arms upon Singapore citizens, such rights are subject to restrictions which are considered by Parliament to be necessary or expedient in the interest of the security of Singapore or any part thereof or public order.

 

What are permissible restrictions on our Constitutional Rights under Article 14?

The Court has laid out a framework in Wham Kwok Han for identifying whether restrictions on one’s Constitutional Rights under Article 14 are permissible.

 

1. Does the legislation restrict the constitutional rights granted by Article 14?

First, the court assesses whether the legislation restricts the constitutional right in the first place. Should the legislation not restrict the constitutional right, the later steps in the framework need not be triggered.

 

2. Is the restriction necessary or expedient in the interest of the security of Singapore or any part thereof, or public order?

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 the security of Singapore, or public order. To determine if Parliament deems it necessary or expedient, the Court considers the relevant legislation, parliamentary material and contemporary speeches. Regardless, it is not necessary for Parliament to expressly refer to the restriction of the constitutional right, as long as the Court can infer from the general purposes of the legislation passed by Parliament that it was “necessary or expedient” to restrict that Constitutional right.

 

3. Whether the restriction of the Constitutional rights fall within the relevant and permitted purpose for which the Constitution permits Parliament to restrict that right

Lastly, whether the restriction of the Constitutional rights by PArliament is actually permitted by the Constitution can be demonstrated by showing a connection between the purpose of the legislation in question, and the purpose of being necessary or expedient in the interest of the security of Singapore, or public order.

 

In Wham Kwok Han, the public assembly involved a key speaker who was a political activist from Hong Kong, who was supposed to speak on civil disobedience as a political tool. The Court of Appeal held that the Commissioner could refuse granting a permit pursuant to s 7(2)(b) of the POA, which provides that the Commissioner may refuse to grant a permit if he has reasonable grounds for apprehending that the proposed assembly may be directed towards a political end and will involve the participation of an entity that is not a Singapore entity or of an individual who is not a citizen of Singapore. The SGCA also emphasised that foreigners are not guaranteed constitutional rights under Art 14(1), which only extends to Singapore citizens. Furthermore, the court found that it was entirely appropriate to confer licensing powers on the Commissioner as this licensing scheme was entirely legitimate and in the interests of society, which guarantees the best prospects of preventing disorder as opposed to attempting to stop disorder which has already occurred.

 

Please note that this article does not constitute express or implied legal advice, whether in whole or in part. For your Free First Consultation or if you simply require more information, email us at  walter@silvesterlegal.com

 

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