"SINGAPORE JUDGES BOW, NOT TO THE CONSTITUTION, BUT TO POWER" - IS TAN WAH PIOW RIGHT?
Recently the Malaysian Federal Court made an important decision which London-based ex-Singaporean Tan Wah Piow commented on his Facebook.
QUOTE:
"Yesterday I belatedly congratulated my friend Amir Hadi for his recent victory in the Federal Court of Malaysia. On August 14, 2022, Amir Hadi, a prominent member of a Malaysian political party, organized a peaceful rally at the Sogo Complex in Kuala Lumpur. The protest aimed to draw attention to an alleged scandal involving a Ministry of Defence contract. He was subsequently charged under subsection 9(5) of Malaysia's Peaceful Assembly Act 2012 (PAA 2012) for failing to provide prior notification to the police, as required by subsection 9(1) of the Act. His legal challenge focused not on the notification requirement itself, but on its criminalization.
In a landmark decision in July 2025, the Federal Court of Malaysia unanimously ruled that Section 9(5) of the PAA 2012 was unconstitutional and no longer a valid law. The court found that this provision, which criminalized the failure to give five days' notice for a peaceful assembly, constituted a "disproportionate intervention" that excessively curtailed the constitutional right to peaceful assembly. This ruling effectively decriminalized the act of not providing prior notice for peaceful assemblies in Malaysia, granting Malaysians greater freedom to protest without fear of criminal prosecution for this specific procedural lapse.
This progressive stance stands in sharp contrast to the experience of Singaporean activist Seelan Palay. In October 2017, Palay staged a performance art piece titled "32 Years: The Interrogation of a Mirror," a tribute to a former political prisoner. While he commenced his performance at the designated Speakers' Corner in Hong Lim Park with a permit, he continued his procession to the National Gallery and Parliament House without the required permit for this extended route.
A Singapore court subsequently found Seelan Palay guilty of conducting a "procession without permit" under Singapore's Public Order Act (POA). He was sentenced to a S$2,500 fine, and upon his refusal to pay, was imprisoned for two weeks. The court rejected his defense that freedom of speech protected his actions, asserting that fundamental rights are not absolute and are subject to limitations. The differing outcomes in these two cases illuminate distinct approaches to civil liberties. In short, the Malaysian judiciary in this judgement takes rights seriously, while Singapore judges bow, not to the Constitution, but to power. Given Malaysia's recent affirmation of the right to peaceful assembly, it is hoped that Singapore's Workers' Party will advocate for a comprehensive review of the nation's laws concerning public protests, ensuring that Singaporeans such as Seelan Palay are not "short-changed" in their exercise of fundamental freedoms."
UNQUOTE
Two core foundations underlie the right to peaceful assembly:
* Universal Declaration of Human Rights (UDHR) (Art 20(1).
* International Covenant on Civil and Political Rights (ICCPR) Art 21.
ICCPR is legally binding on signatories. Malaysia is one. Singapore is not.
While the right is universal, it is not absolute. Most constitutions — including those of Malaysia and Singapore — guarantee this right subject to reasonable restrictions for public order, safety, and the rights of others. These typically include permits or notifications, restrictions on hate speech, and rules on time, place, and manner.
Tan’s statement — "Singapore judges bow, not to the Constitution, but to power" — walks a fine line between legal critique and political accusation. His closing appeal for action undermines the objectivity he claims in framing the issue as constitutional. The remark is potentially defamatory, and arguably misleading. Article 14 of Singapore’s Constitution explicitly allows Parliament to impose restrictions for public order and morality. In Seelan Palay’s case, the requirement for a permit was such a restriction. The court thus did uphold the Constitution, even if it didn’t align with Tan’s liberal ideals.
Instead of using this decision to explain legal principles, Tan casts it in activist terms. As the old Teochew comic duo Wang-Sa and Yeh-Fong might say, “I have one-two,” so let’s unpack this.
What Happened in Malaysia
Amir Hadi was charged under Section 9(5) of Malaysia's Peaceful Assembly Act 2012 (PAA) for failing to give 5 days’ notice before a rally. He didn’t deny failing to notify, but challenged the constitutionality of the criminal penalty under Article 10(1)(b).
Malaysia (and so too Singapore) offers two legal avenues:
* Judicial Review: Administrative review of government decisions—process-focused, not about the law itself.
* Criminal Reference: Refers legal or constitutional questions arising from criminal cases to the Federal Court—which can assess the validity of laws.
Amir’s was a criminal reference. The Federal Court reviewed whether Section 9(5)—which imposed criminal penalties for failing to notify—was proportionate to the constitutional right to assemble. The Court ruled it was not, and struck down 9(5). However, Section 9(1), the requirement to give notice, remains valid.
Implications and Comparison with Singapore
Unlike Malaysia, Singapore requires a police permit, not just notification. Critics like Tan frame this as a tool to suppress dissent. But permits mean advance notice which serves practical needs: avoiding clashing assemblies, traffic disruption, or risks to hospitals, schools, and public order.
So, is the notification requirement now toothless in Malaysia? Not at all. Organisers will still notify the police. Not doing so they lose police protection and risk public liability should anything untoward happen at the event. Amir arguably acted irresponsibly, yet has become a liberal cause célèbre.
The Malaysian government will most certainly reclassify the offence as "strict liability" — where intent (actus rea) doesn’t matter, and penalties are administrative, not criminal. Think speeding tickets: no jail, but likely fines. Still, repeat offenders or non-payment could lead to imprisonment.
Was Tan right to call this a “landmark”? Not exactly. The Court of Appeal already struck down 9(5) in Nik Nazmi v PP (2014), only to have it reinstated by another panel in PP v Yuneswaran (2015). The 2025 Federal Court ruling finally resolved the conflict—but it wasn’t the first of its kind.
In fact, Lee Kwan Woh v PP (2009) was a more profound decision. There, the Federal Court ruled that denying a defendant a chance to present his case violated his constitutional right to a fair trial, and quashed his death sentence.
Tan also claims Singapore courts don’t take rights seriously. But Public Prosecutor v Taw Cheng Kong (1998) showed otherwise. The court struck down a law for violating Article 12 (equal protection), holding that it unfairly discriminated between citizens and foreigners.
Red Light vs Green Light: A Better Frame
Tan framed the case on the narrower issue of individual rights. Since his agenda was actually to expose the "Singapore judges bow, not to the Constitution, but to power" then he should actually have framed it in the broader issue of centuries old judicial debate of "Red Light-Green Light" theory in public law. This is the framework in public law and administrative law that describes two contrasting judicial attitudes towards government power and individual rights. This has influenced debates in Commonwealth countries like UK, Australia and Singapore.
Emphasis:
Red Light - Restricting government power.
Green Light - Trust in administrative expertise and government discretion.
Approach:
Red Light - Intervene to protect rights
Green Light - Defer to Executive decisions.
Focus:
Red Light - Individual rights, judicial review.
Green Light - Efficiency, social policy, government problem solving.
Legal culture:
Red Light - Less legalistic, judicial activism.
Green Light - Legalistic, more managerial or political
Risks:
Red Light - Constitutional conflict and crisis.
Green Light - Quiet erosion of rights.
Legalistic -- Means strict interpretation of the law (constitutionalist); can be rigid and misses justice.
Non-legalistic means : Focus on the Law's spirit or societal effect, thus a broader, value-driven interpretation. Politicised courts, creates new laws, overturning precedent to expand rights. Best examples is the US in present days where Liberal judges are driven by ideologies.
Red Light
* Judicial activism - High
* Institutional conflict - Frequent
* Risk of constitutional crisis - High
* Public trust in courts. - Politicised courts can lose credibility.
Red Light countries like US are more prone to constitutional crises because power is distributed and contested.
Green Light
* Judicial activism - Low
* Institutional conflict - Rare
* Risk of constitutional crisis - Low
* Public trust in courts - Less confrontational courts retain legitimacy.
Green Light countries, especially those with strong Executives and weak checks (like Singapore) are less crisis-prone, but also less democratic in practice with fewer institutional brakes when power overreaches. Caveat is higher risk of slow democratic erosion when power corrupts.
Most courts in Commonwealth countries are not fixated but have toggled between Red and Green lights, depending on 3 fundamentals :
* The sensitivity of the issue (eg tending Green on national security issues)
* Fundamental nature of the rights concerned (tending Red for liberty or equality)
* Whether the government has exceded legal authority.
The US is extremely divided with a bi-partisan judiciary. Liberal judges resemble the Red Light and Conservative judges the Green Light. With Liberals leaning more progressive in the past 3 decades, judicial activism is now in full display in the Conservative Trump admin. We are witnessing an overreach of the judiciary into Executive authority. creating one constitutional crisis after another.
Green Light
* Judicial activism - Low
* Institutional conflict - Rare
* Risk of constitutional crisis - Low
* Public trust in courts - Less confrontational courts retain legitimacy.
Green Light countries, especially those with strong Executives and weak checks (like Singapore) are less crisis-prone, but also less democratic in practice with fewer institutional brakes when power overreaches. Caveat is higher risk of slow democratic erosion when power corrupts.
Most courts in Commonwealth countries are not fixated but have toggled between Red and Green lights, depending on 3 fundamentals :
* The sensitivity of the issue (eg tending Green on national security issues)
* Fundamental nature of the rights concerned (tending Red for liberty or equality)
* Whether the government has exceded legal authority.
The US is extremely divided with a bi-partisan judiciary. Liberal judges resemble the Red Light and Conservative judges the Green Light. With Liberals leaning more progressive in the past 3 decades, judicial activism is now in full display in the Conservative Trump admin. We are witnessing an overreach of the judiciary into Executive authority. creating one constitutional crisis after another.
Red light states resolve tensions in court, in full public view, or through political upheavel. Green Light states resolve tensions quietly through political hierachy. Friction causes political instability.
To get a sense of constitutional stability and where Singapore stands, let's look at some specific countries:
Red Light countries -
UK, India, US, Philippines.
Green Light countries -
Singapore, New Zealand, France, Japan, China, Nordic countries (Norway, Sweden, Denmark, Finland, Iceland).
Malaysia flip-flops from Red-Green. Post 2018 reforms, the courts have become more assertive, ie more Red.
In Asean, Philippines is Red, Indonesia is Red-leaning, Malaysia can be Red at times, Thailand courts are assertive but highly politicised, Singapore is Green - tends to trust, or at least accommodate, the Executive especially on matters of policy, discretion, or public interest, the rest are Green under authoritarian rule.
Nordic countries are Green not because of erosion of democracy or in the Asian deferential sense but because of a trust-based technocratic governance model.
"If society wishes to change laws -- for example on morality or social issues -- the proper channel is through Parliament and the ballot box, not the courts."Singapore courts typically defer to the government and legislature, particularly in areas like national security, public order, morality, religious issues, etc. The courts interpret rights narrowly and almost always side with the state when rights conflict with government policy. Laws restricting speech, protests, press freedom are frequently upheld on grounds of maintaining harmony or order. Singapore has a written constitution, but Parliament has wide latitude, and the judiciary does not position itself as a strong check. The constitution formally allows judicial review, but the courts have rarely struck down laws as unconstitutional.
CJ Yong Pung How
Singapore is a textbook example of a Green Light system. But it is not Tan's version of "courts bow to power". It is the judicial philosophy of the land which now is part of our culture. But when executive decisions exceed legal authority, lack evidential basis, or breach procedural fairness, the courts do act as a check. The courts do side with the public and defend individual rights especially under established grounds of judicial review:
* Illegality - where decisions are beyond executive power.
* Irrationality - Wednesbury unreasonableness
* Procedurial impropriety - where there is denial of fair process.
Singapore courts generally defer to the executive, especially on sensitive issues like security, race, and religion. The Constitution allows judicial review, but few laws are struck down. Yet the courts do act when the executive overreaches or violates due process as in the following cases:
* Taw Cheng Kong (equal protection),
* Tan Seet Eng (unlawful detention),
* Chng Suan Tze (limits to ISA discretion),
* Chee Siok Chin (public order vs rights),
* Eng Fong Ho (equal protection),
* Xu Yuan Chen (Property seizure).
Tan’s framing of Amir Hadi as a constitutional hero—and of Seelan Palay as a victim—is selective. Seelan knew what he was doing, and the legal consequences. His art had political overtones. Singapore’s courts upheld a law consistent with constitutional limits.
Singapore’s legal culture is cautious and state-leaning, but it is not lawless or authoritarian. The courts function within a framework that balances stability, order, and rights, however imperfectly. This may not satisfy liberal maximalists—but it's far from the caricature Tan offers.
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