The videos of my speech are here (again, thanks watchtowerv!) with the text transcript (including my exchange with the Minister) below them. Those of you who are unfamiliar with the Ian Tomlinson case, may want to watch the videos at these links:
Mr Siew Kum Hong (Nominated Member): Mr Speaker, Sir, as the name suggests, this Bill deals with public order. In particular, it seeks to regulate public assemblies and public processions; to deal with the control and protection of special events in Singapore; to introduce the move-on powers that I spoke about in the Committee of Supply debate earlier this year; and to criminalise the filming of law enforcement activities in certain circumstances.
I will first touch on the proper framework for considering laws such as this Bill, that curtail Singaporeans' civil liberties in the name of ensuring security and public order, before considering the provisions of this Bill in greater detail.
Sir, this Bill will have the effect of introducing new limitations on the constitutional rights of Singaporeans. So the starting point in considering the Bill must be the Constitution.
I start with Article 13(2), which provides that Singaporean citizens have the right to move freely throughout Singapore, subject to any law relating to security, public order, public health or the punishment of offenders. This Bill clearly purports to be such a law.
Article 14(1)(b) provides for another right, the right of Singaporeans to assemble peaceably. This right is subject to such restrictions as Parliament considers to be necessary or expedient, in the interest of security or public order.
So even as the Constitution provides for Singaporeans' rights to freedom of movement and freedom of peaceful assembly, it nevertheless recognises that those rights are not absolute and that there can be a legitimate need to limit those rights in the interest of security or public order. A balancing exercise is therefore necessary and I am glad to note that the Minister acknowledges the need for a calibrated, balancing approach.
When we debate legislation that purports to limit Singaporeans' constitutional rights in the name of security and public order, we have to consider whether the law in question strikes the correct balance between these competing interests. To my mind, due and proper respect for our fundamental liberties in the Constitution requires Parliament to ensure that the law curtails Singaporeans' rights to the minimal extent necessary to ensure security and public order, and no more. Anything further, any overly broad wording that could permit actions not required by legitimate security or public order concerns, is not justifiable and goes too far.
With these principles in mind, I will now touch on the provisions pertaining to the objectives of the Bill.
Sir, Part II of the Bill seeks to regulate public assemblies, which includes public talks and lectures, and public processions. In principle, I do not agree with the premise that all public assemblies and processions should require prior approval from the authorities. This emasculates our constitutional right of peaceful assembly - how can it be a right, when it is subject to the approval by a bureaucrat? A right to do something necessarily means that the person entitled to the right can do the thing, without having to ask for prior approval. Otherwise, it is not a right. A system based on prior approvals and permits does not strike the correct balance in terms of respecting Singaporeans' constitutional rights to peaceful assembly.
Furthermore, this system of permits and prior approvals opens the door to perceptions and allegations of abuse for political purposes. Singaporeans have strong reservations about how this system has operated in the past, and I must confess that I share at least some of these reservations.
Ms Sylvia Lim has already mentioned an example that was debated in this House last September. Let me just elaborate a little. I had filed a Parliamentary Question (PQ) on the rules governing the organisation of outdoor events by political parties and organisations affiliated with political parties. Ms Sylvia Lim filed a related PQ. The Senior Minister of State, responding to my and Ms Lim's PQs, reiterated that the police will not grant permits for outdoor political events, on the basis of the risk of public disorder inherent in such events. The Senior Minister of State then explained that an outdoor event organised by the PAP Community Foundation (PCF) was not viewed by the police as an outdoor political event, and hence was permissible, even though the PCF is an arm of the PAP and the guest-of-honour was the Prime Minister, and other PAP politicians were also present. With all due respect to the Senior Minister of State, I - and I believe many, if not most Singaporeans - do not find that distinction convincing in the least. It may comply with the technical letter of the law but certainly is difficult to accept as being true to the spirit of freedom of movement and assembly.
If we want to have a proper balance where Singaporeans' right of peaceful assembly is respected and preserved, while remaining mindful of the need for public order and security, then the starting point should be that all assemblies and processions are by default permissible, unless they fall into some prohibited categories, unlike the current system which is the opposite. So the organisers of an assembly or procession should provide advance notice to the Police with appropriate details, not for approval, but to allow the Police to assess the public order and safety implications of the march and its proposed route of the assembly, and to require the organisers to find an alternative venue, or to take an alternative route where reasonably necessary to preserve public order. The only permissible exceptions should be with respect to special events - and we will come to that shortly - or where an assembly or procession promotes an unlawful cause or is unjustifiably provocative, or is reasonably likely to lead to violence. Anything further would simply render Article 14(1)(b) of the Constitution an empty shell.
The Minister has referred to events in other countries, such as the unfortunate events in Pattaya and Bangkok this past weekend to justify this Bill, which has resulted in a country where such events simply do not take place. I do understand the attraction in such an argument. But there is a danger of the pendulum swinging too far in the opposite direction, and I do believe that by requiring all public assemblies and public processions to be subject to prior police approvals, we have gone too far in the past and we continue to go too far in undermining our constitutional rights.
Be that as it may, the Bill before us today preserves this system of prior approvals, for better or for worse. That being the case, I would like to ask the Minister to clarify why the exemption for indoor meetings and talks, in other words, indoor public assemblies, that have only speakers who are Singaporeans, is not explicitly set out in the Bill itself.
Sir, Part III of the Bill relates to the security of special events, which are events that the Minister declares to be such having regard to their nature, the number and kind of expected attendees, Singapore's obligations for holding the event, and other relevant matters. The upcoming APEC summit in November this year would be an example of such a special event.
Members would have seen the shocking footage from Pattaya and Bangkok this past weekend. No doubt, the political divisions in Thailand contributed the problems there. In particular, the reluctance of Thai security forces to enforce the law had aggravated the severity of the situation. But it does provide a timely reminder that if special events go wrong, they could irreparably damage a country's image and reputation. So I would support the principle that special events could justify extraordinary measures and temporary restrictions on Singaporeans' rights of free movement and peaceful assembly provided they are limited to the minimum extent, period and area necessary to prevent disruption of the event and to protect individuals involved in the event.
And in this regard, we have done well in the past. It is a testament to this country's, and, yes, this Government's organisational and security capabilities that we have in recent years held major international events here with minimal or no disruption. So I would like to ask the Minister to clarify why it is necessary to introduce this new Part III of the Bill when the existing system based on the Protected Areas and Protected Places Act has worked. Just looking at last year, the ASEAN Regional Forum at the Shangri-la Hotel, the National Day Parade, the National Day Rally and the Formula One race were all declared as protected areas under that Act, and all of them were events that went off without any security problems.
Furthermore, I would like to ask the Minister whether the scope of the powers to declare an event to be a special event is too broad. I am concerned with the new section 21(3)(b)(iv) in particular, which allows the Minister to declare an event to be a special event where “there is a reasonable likelihood that the event because of its nature might be at risk of an act of terrorism”. That is a very broad definition, and any large gathering of persons in Singapore could potentially be seen as being at risk of an act of terrorism. The Explanatory Statement on section 21 does expand on the relevant factors for determining whether an event should be declared as a special event. But I hope that the Minister could specifically clarify whether the intent is to allow a large gathering of persons to be declared as a special event, simply because there are many people present.
My last point on Part III, Sir, relates to the new sections 21(5) and (6). The declaration of a special event must be gazetted, and sub-section (5) requires the Minister to publish a notice of the making of the declaration “in such manner as will secure adequate publicity for the declaration”. The Minister has to do this, within seven days of the making of the declaration and before the date the declaration comes into force. The Explanatory Statement helpfully explains that this includes the publication of the notice in newspapers.
But sub-section (6) then goes on to state that failure to comply with sub-section (5) does not invalidate the declaration itself. It is easy to fathom the rationale for sub-section (5), but difficult to understand the reason for sub-section (6). Where an event is declared to be a special event, various restrictions on Singaporeans' fundamental liberties come into force. So Singaporeans naturally have a strong interest in knowing that such a declaration has been made. This makes absolute sense. But why then have sub-section (6), which renders sub-section (5) nugatory? Because, then, the Minister could simply ignore sub-section (5), without having to justify his actions and without any consequences. The Minister is given plenty of time, seven days, in fact, to publish the notice in the newspapers. So I hope that the Minister can explain the reasoning behind section 21(6).
I now turn to the new move-on powers, which I had spoken about in the Committee of Supply this year. Given that such powers limit citizens' right to freedom of movement, they have to be limited to the bare minimum extent necessary to preserve public order. We also have to bear in mind, that an abuse or a wrongful use of these powers will result in irreparable loss and damage to citizens. For instance, if a person is unlawfully ordered by a police officer to move on, then that person has lost the opportunity to be present at a certain place at a certain time, and it is impossible to remedy that loss.
In the first place, it does not seem to me that there is a convincing justification for the introduction of these new powers. In an interview published in The Straits Times in January this year, the Deputy Prime Minister had sought to justify these move-on powers on the basis that the police needed new powers to deal with political activists engaged in civil disobedience. But let us look closely at the acts of civil disobedience that we have seen in Singapore to date. They have taken a form of either an assembly or a procession which would be regulated under Part II of this Bill. In this regard, I note that the offences under Part II of this Bill are seizable offences. So there is no lacuna in the police's powers. These move-on powers will be necessary only if there are some loopholes or gaps in the provisions on public assemblies and processions that need to be plugged. But I see no such loopholes.
The Minister in his Second Reading speech said that there was a gap in police powers between post and incident investigations and arrest while the incident is on-going. But, practically speaking, it is always open to Police Officers to give a verbal warning to cease and desist before arresting a person. And I presume that that is what they will usually do in practice. The only thing that these powers do with respect to civil disobedience activists is to add a further offence to the list of offences committed, but ensuring a multiplicity of offences and hence penalties is not a legitimate reason for introducing yet another offence.
In any case, the move-on powers extend far beyond what is needed to deal with civil disobedience. Section 36, as currently worded, with its reference to disorderly behaviour, could extend to situations like teenagers loitering around a void deck, or even the skateboarders and inline-skaters who hang out at the underground plaza at the Esplanade on weekends. They generally cause no harm to anyone. But an overzealous Police Officer may seek to clamp down on what is, in truth, simply boisterous teenage behaviour. Given the ease and expediency with which move-on orders may be given, this is an undesirable outcome that is sadly almost inevitable.
Be that as it may, these move-on powers will become law. In the Committee of Supply debate, I made some suggestions which have unfortunately not been taken up. At the time, the Minister had said that it was premature to deal with those issues, as the Bill was not before the House. That being the case, I hope that the Minister will now explain why these suggestions have not been accepted. I will briefly recap those suggestions.
Firstly, I had stated that the legislation in question should target the objectionable conduct of a person, and not the mere fact that he was in a certain location. And I note from the Minister's speech that he has stated the same position. But if that is the case, if a person behaved offensively in a certain location, and a police officer directs him to move on, and the citizen then ceases the offensive conduct, then the move-on order should cease to have effect. While the new section 35 makes it clear that the subject of a move-on order has to be behaving objectionably before the order can be issued, there is no corresponding provision to state that the move-on order ceases to have effect if the objectionable behaviour ends. Instead, the subject of an order has to leave the vicinity; otherwise he commits an offence. This is regardless of how he continues to behave.
Secondly, I note that the new section 36(1) requires move-on orders to be in writing, which is what I had suggested in the Committee of Supply debate. That is positive. But I did make another suggestion, for all move-on orders to be recorded in a public register, as is the case in Australian territories, like in Queensland, which the Minister has stated was used as a model. This suggestion has not been taken in. But a register is useful to ensure transparency and accountability in how Police Officers use their move-on powers. We have said that we are following the Australian example in introducing such powers, yet studies in Australia have shown a history of abuse of these powers by Police Officers. An official register recording the use of such powers, that is open to the public, could provide a powerful tool for ensuring accountability and for allowing Singaporeans to satisfy themselves that these powers are not being abused, by subjecting the exercise of these powers to public scrutiny.
Thirdly, I had proposed an appeal mechanism, where any person aggrieved by a move-on order can challenge it. But the Bill does not provide for any such mechanism. The Minister has mentioned the possibility of a complaint to the Commanding Officer. But that would presumably trigger an internal investigation at most, which is not transparent and may not be perceived as being fair and independent. In the Straits Times' interview that I referred to earlier, the Deputy Prime Minister acknowledged the need to ensure that aggrieved persons are able to seek redress from the Minister or the Attorney-General's Chambers. Unfortunately, that need has not been met in the present Bill, in respect of the move-on powers.
I come to the final part of my speech, on the new section 38, which deals with the filming of law enforcement activities. This provision has been justified on the basis of the media coverage of the Mumbai terror attacks last November, where the terrorists themselves were able to watch law enforcement operations unfold on Indian TV stations. That is obviously an undesirable state of affairs, and I would support a law to prevent that situation from taking place in Singapore.
Preventing what happened in Mumbai means preventing footage, or indeed any news, about ongoing security operations from being disseminated, where such footage or news could jeopardise the success of the operation or otherwise compromise the safety of law enforcement officers. This objective cannot be objectionable to anyone.
But even as we try to protect law enforcement, we have to ensure that citizens are not prevented from legitimate filming, and especially filming of law enforcement officers engaging in abusive or unlawful behaviour. Ms Sylvia Lim has referred to the recent incident in London involving Mr Ian Tomlinson. So I will not speak further on that.
If there are abuses by law enforcement officers, then surely citizens have the right to know, and to film and record these acts as evidence. The case from London involving Mr Ian Tomlinson shows the importance of this, to prevent cover-ups from taking place. If the other passer-by had been prevented from filming the pushing incident, who knows whether or when the truth would have come to light? I am comforted by the Minister's assurance that the filming of law enforcement abuses is not prohibited by this provision. Yet, there are no explicit controls or checks on how law enforcement officers may exercise that power under section 38, and as with the move-on powers, no formal avenue of recourse for citizens aggrieved by an order made against him.
Imagine a situation such as that of Mr Tomlinson in London. In the midst of a riot, an abuse takes place against an innocent bystander. The duty officer demands that a bystander who films the incident surrender his camera, claiming that the film shows his identity and therefore threatens his safety. What, then, is this innocent bystander to do? The offence in section 38(4) does not contain a defence of reasonable excuse for not complying with an order, unlike in section 37 in relation to non-compliance with move-on orders. In such a situation, the person who made the film of the abuse by law enforcement would have no choice but to surrender the film, otherwise he runs a very likely risk of being charged and prosecuted.
Indeed, section 38(2)(a) empowers law enforcement to require a person to delete the film that is made - but if that is the case, then how is that person, or the police itself, able to subsequently evaluate or verify whether the deletion had been lawfully ordered, without knowing for sure what the content was? It should be adequate that the film be seized, to prevent it from being disseminated.
Furthermore, the new section 38(3) very clearly goes beyond what is legitimately necessary for the objective of protecting law enforcement activities. Section 38(3) permits law enforcement to forfeit any film equipment that has been seized, and to destroy it or dispose of it in such manner as the Commissioner of Police may decide. While seizure of equipment may further the objective of avoiding a compromise of on-going security operations, the forfeiture and destruction of equipment after the fact do not. Instead, it is simply punitive, and hence is not reasonable at all. It, therefore, seems to me that section 38, as currently worded, overreaches and goes far beyond what is needed to prevent media coverage from compromising ongoing law enforcement activities and the safety of officers.
Sir, I have taken great pains to point out the flaws in this Bill as I see them. I do think that they are major flaws, with the potential to greatly affect Singaporeans' lives and their constitutional rights for the worse. That being the case, I would propose that this Bill be sent to a Select Committee for further consideration.
When this House amended the Penal Code in late 2007, there had been extensive public consultations, even though Members would remember that I had strong objections to certain aspects of the Bill and eventually voted against it. Similarly, the proposed amendments to the Criminal Procedure Code had recently undergone a public consultation. In contrast, there was no public consultation at all on this Bill, even though it directly affects Singaporeans' fundamental liberties under the Constitution and also has the potential to greatly impact our day-to-day lives, especially in relation to the new move-on powers. The fact that 12 Members of this House have decided to speak on the Bill shows that it is of immense public interest. Yet, it has only been three weeks or so, since the Bill was first made available to the public after its first reading in Parliament. Because of all this, it would make great sense for this Bill to be sent to a Select Committee, so that the public can be given an opportunity to comment on the Bill.
Sir, for all the reasons that I have mentioned in my speech, I have no choice but to oppose the Public Order Bill in its present form.
The Second Minister for Home Affairs (Mr K Shanmugam):
Mr Siew Kum Hong said the right of assembly being subjected to permits emasculates that right. It is again a surprising point because if you accept that, at present, permits are required, then all they are doing is continuing with the same regime. If the right has not been emasculated until now, how does the POA represent a new emasculation? He also referred to the PAP cycling event, which my colleague had answered in some detail before and I will not deal with it.
Mr Siew also wanted to know if a large gathering of persons can be gazetted as a special event, the answer is "no". It is not a large gathering of persons per se but a special event as the Act describes and as I have set out in my speech.
Mr Siew also acknowledges that there exists now a gap between seizable and non-seizable offences, but he says the Police do not really need the power to deal with the gap because now when they give friendly advice, most people accept the advice and move on, so why do you need move-on powers? But the point is, if everyone was as reasonable as Mr Siew, there would be no problem. The one thing that we all know in society is that there would always be a group which would engage in what I described as farcical antics, and would deliberately go out there and engage in a degree of lawbreaking, and we want to cover that situation as well.
He also suggested, why not have a register where all instances of move-on powers exercised, will be listed. The answer is, we are really trying to keep the move-on powers in a very low-key way; we do not want to make it an offence, we do not want to even keep a register of people who have been subjected to these move-on powers. It is something that is exercised on-the-spot and we move on from it.
Sir, I think I have covered all the points or the points that I can recall. I know that Prof. Thio has made a number of drafting suggestions, and what I would say is that we take her suggestions seriously. We have gone through this Bill very carefully. We will look at the points that she made. If anything needs to be done further later on, we will always consider it. We may even check with her as to what some of the points were.
Mr Siew Kum Hong: Sir, I have four clarifications for the Minister.
My first clarification, Sir, is that he mentioned my point about the right to freedom of assembly having been emasculated. I just want to clarify that, in my view, it has been emasculated even under the current system. So I take his point that there is no difference between the MOA regime and the new POA regime, and that is why it continues to be emasculated.
Sir, my second point. The Minister has referred to a group of persons who insist in engaging what the Minister has described as farcical activities, and he has taken that as a reason to explain why move-on powers are required. Sir, my question is: how will move-on powers actually change their behaviour. Let us just think through the scenarios. If this group of persons are engaged deliberately in civil disobedience - by definition, "civil disobedience" means deliberate flouting and contravention of laws, committing an offence that they disagree with - then they are already breaking the law and are committing an offence. And it is perfectly open for the Police to issue a warning to them to cease and desist, failing which they will be arrested and charged for the offence. If they are not committing an offence, then what is the harm in allowing them to continue to do what they do? The introduction of the move-on powers instead creates an offence. If they are doing something which does not constitute an offence right now and yet they are issued with a move-on order, and then they do not move on, then they would have committed an offence. So, Sir, the loophole is not in the enforcement powers of the Police, the loophole is in the substantive offences that are out there. So I would just like the Minister to clarify that point when he says that there is a loophole in the enforcement powers, when I think it is really a loophole in the substantive offences.
Sir, my third clarification. In my speech, I did propose that the Bill be sent to a Select Committee given that it has only been three weeks since it was first published and first made available to the public until the second reading today. So I hope the Minister can respond to that.
My last point, Sir, is that the Minister has stated that films that are seized can be destroyed only by order of the Commissioner. I think he said that twice in his response. From my reading of section 38, that position is correct only insofar as the films were seized in the first place under section 38(3). However, Sir, I would like to draw the Minister's attention to section 38(2)(a), and if I may just read it out, Sir, an officer may "direct the person reasonably believed to be making, exhibiting or communicating a film or picture, or about to do so, to immediately cease making, exhibiting or communicating the film, and either to immediately delete, erase or otherwise destroy the film or picture, or to surrender the film or picture to the officer". In short, Sir, what section 38(2)(a) says is that an officer has the power at the immediate point to compel a person to destroy the film. And in that scenario, how would we know what the film was, and on what basis can aggrieved person make a complaint?
Mr Shanmugam: Sir, on the first point, whether it continues to be emasculated or being newly emasculated, I hope Mr Siew will be generous enough to accept that I made the point that since 2000, there have been a series of changes that have substantially liberalised the political space. He also fails to acknowledge the impact of the Speakers' Corner and how useful it has been for those with a genuine cause. The real difference between Mr Siew and ourselves is that, really, as a matter of philosophy, people should be allowed to demonstrate whenever they like, without permits, because that is a fundamental right, and that is a fundamental freedom. I think even those who have expressed some concern about this provision will sound very extreme, and they have said so. For example, Prof. Thio acknowledged that you cannot have these rights in vacuo, without concomitant responsibilities. That is a fairly basic point that most lawyers will appreciate.
Second point - Mr Siew asked what is the problem if four persons or fewer come together and carry out activities, which are not illegal per se. I gave a specific example in my responses to the MPs, which is during the ASEAN Summit in 2007, we had this farcical group - groups of four - who played catch-and-mouse game with the Police while the Police were engaged in very high security operation of protecting and making sure the Summit was successful. As Singaporeans, do we really want to face up to this? Or do we want to give the Police the power to ask these people to move on? It is as simple as that. We have to live in a real world with people who do those things.
Mr Siew asked if the Bill is going to be sent to a Select Committee - I think if the answer was not clear to him - it is not going to be sent to the Select Committee. We do not see a need to.
Finally, as regards his point on section 38, the answer I was giving was to the question as to what happened if the film was taken by the Police and there it could be deleted only on the order of the Commissioner. Mr Siew is referring to a situation where the Police is not on the ground to direct the deletion. Sir, I explained the dilemma that we had. These are sometimes fast-moving operations, and the police officers have to make decisions on-the-spot because a film that is taken of an operation that is on-going, if left alone without being seized, could very easily go throughout the world within a matter of minutes. So, it is always this balance that we have to worry about. And when looking at this legislation - people like Mr Siew look at all the extreme possibilities where there could be abuse by the Police - we also have to look at all the other situations where there could be abuse by the individual, and then we have to draw a line somewhere. This is where we have drawn the line. I hope Members can appreciate that these are all difficult situations, and we have to protect both the society and the Police and not look at every Police action as possibly being illegal.
Mr Siew Kum Hong: May I make two points? My first point, Sir, is with the Minister's explanation on the powers under section 38(2)(a). He mentioned that is to address a difficult decision the officer has to make on the ground. Will the Minister not agree then that in every scenario, a smart officer - and I hope all our officers are smart - will then demand that a picture be deleted, instead of seizing it and then submitting it for the Commissioner to decide what to do. Because if he orders for the film to be deleted on the spot, then he does not have to run the risk of being second-guessed subsequently or being found out to have made a wrongful order. That is my first question for the Minister.
My second point, Sir, is with reference to the Minister's response to my first clarification where he says I take an extreme view. I think if the Minister reviews my speech, he will find that I do not think I took an extreme view, in fact, it is a nuanced view. If I may just reiterate, it is not an absolute right to demonstrate anywhere at any time, as Singaporeans please. I advocate a position where Singaporeans have the right to demonstrate but they have to notify the Police and there are certain prohibited classes of processions/assemblies which should not be permitted. If there are any public safety or law and order concerns, then the Police can ask for changes to be made. That is a position which I do not think is extreme at all.
Mr Shanmugam: Sir, on the first point, I think there is a fundamental disagreement. Mr Siew's perception is that all police officers will behave illegally. They will be smart and they will direct deletion because they do not want a record of what they have just done. I come from the opposite perspective. We come from the perspective that our officers are fundamentally honest. It does not mean that no abuses ever take place, but they are fundamentally honest and I do not believe that each time an officer will direct the deletion on- the-spot to prevent a record from existing, And, do not forget, the Act sets out the criteria on which these directions can be given - an officer has to justify why did he direct the deletion on-the-spot as opposed to preserving the evidence.
Second, as regards Mr Siew's point about whether he is being extreme, I think the fact is that he comes from the philosophy that there must be a right to demonstrate and a right to assemble wherever one likes, subject to some restrictions. And he is fundamentally opposed to an imposition of a permit regime where if you want to do so outside of the prescribed areas, you have to apply for a permit. That is where we differ philosophically , and I am not sure I can take the debate much further.