HIGH COURT UPHOLDS THAIPUSAM INSTRUMENT BAN

In the courts today, Justice Tay Yong Kwang of the High Court dismissed a challenge against the ban on playing musical instruments during the Hindu procession, Thaipusam.

3 concerned Singaporeans, R. Vijaya Kumar, Balasubramaniam and M. Sathiamoorthy, who participated in this year's Thaipusam, had applied to challenge the ban earlier this year. They wanted to see the allowing of musical instruments such as the urumqi to be played at next year's event.

However, in his judgement grounds released last week, Justice Tay stated that while the playing of instruments in the course of the procession is a religious practice protected by the Constitution, such a provision is restricted by public order concerns as provided in the same laws.

"In my judgment, the police has shown legitimate public order concerns and their measures were directed at preserving public order... The risk of a disruption of public order was not unreal. The connection between the music restriction and the preservation of public order was neither illogical nor unreasonable."

For the past 42 years, the government has forbid the use of musical instruments during the route procession. In recent times however, the rule has been modified as police have authorised religious hymns to be sung throughout the procession and broadcast from public address systems at three locations. Playing of musical instruments is also allowed within the temple grounds at the start and end of the procession.

In representing his 3 clients, lawyer Eugene Thuraisingam argued that his clients' constitutional rights to religious freedom had been breached by the police decision to restrict musical instruments for Thaipusam as this was a religious practice. He told the court during the hearings that "public order" must stem from "some real threat of violence or disturbance to public safety".

However, the Attorney-General claims that there is no case for the applicants to contest the ban because their move was premature. The court pointed out that the Hindu Endowments Board had collected feedback on possible modifications on the ban for future processions, and would discuss the feedback with the Government soon.

The Attorney-General's representative stated that the restrictions were in place to prevent communal disturbance and stressed that the potential risk to public order cannot be underestimated, referring the court to the crowd build-up and congestion during Thaipusam, especially since the procession typically lasts more than 24 hours along a 3KM route and would travel along major roads.

Religious "foot processions" are fundamentally different from non-religious ones as religion is a sensitive issue in Singapore's multi-religious context, the Attorney-General representative argued, adding that the last racial riots in 1964 had arisen out of a religious foot procession.

Justice Tay accepted that the playing of instruments is an essential part of the procession, based on a Hindu expert's report and the applicants' submissions, but found that it is not a universal practice. The judge also accepted that the trio had the legal standing to mount the court judicial review application.

But weighing their challenge with the police's legitimate concerns based on their ground intelligence, Justice Tay felt that the police had a better position than the court to decide what was necessary for public order and safety. He found the police had taken a "calibrated approach", balancing applicants' rights against public order issues.

He also noted that Thaipusam had a religious dimension which attracted "public order considerations of a different degree and kind", compared to the non-religious theme of the Chingay Parade and the secular nature of the St Patrick's Day event, which the applicants had brought up.

"History and current events in Singapore and around the world give ample justification to the police to pay special attention to events involving a religious element," said Justice Tay.

The applicants are appealing to the apex court, while the Attorney-General is also cross-appealing on the decision that the applicants had the requisite standing to mount this application, and the judge's finding that, to some Hindus, the playing of musical instruments during the procession is part of Hindu practice.