la nausée

Let’s talk about the rights to freedom of speech, expression and assembly in Singapore, with regard to non-citizens.

The inspiration behind this is a series of recent incidents involving foreigners attempting to weigh in on local civic discourse, or to express themselves artistically… and curtly rebuffed by the authorities. These include:

Douglas Sanders
A Professor Emeritus from Chulalongkorn University who had wanted to speak on “Sexual orientation in international law: the case of Asia”, but denied a PEMA licence. See Yawning Bread, “Bark and Crumble”.

Human Rights Torch Relay
The Relay, which spanned across 37 countries, arrived in Singapore, only for local police to seize two of the Torches, and question the event participants. See Singabloodypore, “Singapore Police Size Human Rights Torch ‘For Investigation’”.

Complaints Choir
The Choir, having had its lyrics approved by the MDA, sought a PEMA licence to perform publicly. The police said they would grant a licence only if the foreigners stepped out. The Choir then decided to perform only privately. See theonlinecitizen, “TOC Report: Bureacratic muddle leads to canning of International Fringe Festival event”.

Before I go on, let me (rather belatedly) say two things about the Complaints Choir incident.

First, we should note that the complaints in the lyrics were compiled so as to give voice to the grouses of average Singaporeans. The content wasn’t some highly toxic ‘Western’ idea that is anathema to our conservative society; it came from our society.

Even if there were foreigners in the choir, they were merely repeating (call it ‘performing’ if you wish) the habitual complaints of most Singaporeans. It is a dangerous precedent, I think, if merely echoing someone else’s opinion can be censored, even though the opinion itself is unobjectionable (the lyrics, indeed, had gotten the MDA green-light) and notorious.

Second, the police, in stating that they would allow public performances only if the foreign members refrained from singing, offered what was in fact a poisoned olive-branch. Is it reasonable to expect a choir, having practised so laboriously, to then perform without some of its members, and potentially, its conductor?

Anyway, back to what I want to discuss. Feel free to skip this, because it is rather dry. The discussion, though, is so far quite sketchy, and is purely descriptive.

A Non-Citizen’s Right to Freedom of Speech, Expression and Assembly

Article 14 of the Constitution provides:

Freedom of speech, assembly and association
14. —(1) Subject to clauses (2) and (3) —

(a) every citizen of Singapore has the right to freedom of speech and expression;

(b) all citizens of Singapore have the right to assemble peaceably and without arms; and

(c) all citizens of Singapore have the right to form associations.

Note the phrase “citizen(s) of Singapore”. This is in contrast to the other Part IV (‘Fundamental Liberties’) provisions concerning the right to life and personal liberty, the right to equal protection under the law, and the right to freedom of religion, all of which refer to “persons”.

Thus, in Attorney-General v. Wain (No. 1), where the first three defendants were non-citizens, the High Court held that they had no rights under Article 14, and thus no locus standi to sue under constitutional law.[1]

It would seem, at first glance, that there is no way that a non-Singaporean such as Douglas Sanders can contend that his right to freedom of speech means that he should be permitted to speak here.

Contrast this with the U.S. Bill of Rights, the relevant portion of the First Amendment of which states:

Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As noted by Justice Murphy in Bridges v. Wixon:

[O]nce an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all “persons”, and guard against any encroachment on those rights by federal or state authority.[2] [emphasis added]

Why do the Article 14 rights in Singapore cover only our citizens? The rationale appears to be that the right to freedom of speech is accorded to citizens within a democracy so that they can deliberate on political questions, and arrive at collective decisions that will promote the public good and rationality.[3] Hence, in Whitney v. California, Brandeis J. said, in the American context:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary… They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth… that public discussion is a political duty.[4]

Non-citizens, conversely, are ex hypothesi not bound by the ideals of public reason and civic virtue which a political society is founded on. It is only citizenship of a nation-state (being a political community) which gives rise, on the one hand, to the associative obligations to treat other citizens with equal concern and regard,[5] and on the other hand, to a set of corresponding rights of political participation. Article 14 rights are thus not free-standing and absolute (unlike, say, Article 9 rights), but are bundled within a complex of rights and duties attaching to citizenship.[6] As evidenced by Article 129 of the Constitution, breach of a citizen’s duties may lead his being deprived of citizenship status, and the extinguishing of his rights as citizen.

In Singapore, our political leaders are dogged by a pathological fear of what they deem to be foreign interference in domestic politics. For example, in 1988, the Government of Singapore gave notice to Washington that Mason Hendrickson, the First Secretary at the U.S. Embassy in Singapore, be withdrawn. The Government accused Hendrickson of trying to persuade lawyers opposed to the Government to contest in elections, and of offering to finance their election campaigns. Subsequently, Parliament passed a resolution deploring all foreign interference in Singapore’s affairs.[7]

Similar historical examples are legion. The common thread is “foreign interference”, an epithet suggesting that an excessively generous interpretation of Article 14(2) – which provides that Parliament may by law abridge the Article 14 rights, if “in the interest of the security of Singapore” – is being used.[8] Notably, under our media legislation, the Minister may declare a foreign broadcasting service or a foreign newspaper to be “engaging in the domestic politics of Singapore”, with the result that a range of sanctions may be applied on the broadcaster or publisher.[9]

“Domestic politics” under such media-related legislation is viewed very broadly, as shown in Dow Jones Publishing Company (Asia) Inc. v. Attorney General.[10] The term “domestic politics” relates to “the multitude of issues concerning how Singapore should be governed in the interest and for the welfare of its people”. It comprises the “political, social and economic policies of the government of the day”. To this end, the Asian Wall Street Journal’s published criticisms of the Government over the latter’s setting up of the SESDAQ stock exchange (presumably more an issue of business than policy) was held to amount to “engaging in the domestic politics of Singapore”. Dow Jones thus shows how wide a drift-net “domestic politics” can be.

As far as the media is concerned, therefore, legislation profoundly abridges (via Article 14(2)) any rights to freedom of speech which foreign persons may have. This may well suggest that, even outside the domain of broadcasting and newspaper publishing, the rights to freedom of speech which non-citizens have are heavily qualified.

An Implied Constitutional Right?

We have seen that the Constitution does not expressly provide non-citizens with rights to freedom of speech et al. Two arguments may be raised of the existence of such rights by implication.

First, one may contend, on a loose theory of social contract, that, if a foreigner has resided in Singapore long enough, has absorbed enough of its culture and social mores, and has contributed significantly to its society and economy, then he or she should be afforded some rights of political participation, despite not being on paper a citizen. An analogy can be drawn with how any person may gain Singapore citizenship by registration and by naturalization,[11] upon fulfilling certain requirements (such as residing in Singapore for a minimum duration). However, since, under the Constitution, the citizenship register serves as conclusive evidence for who is a “citizen”,[12] it is unlikely that even a purposive interpretation supports this argument.

A second, more persuasive argument focuses on the scope of the citizen’s right to freedom of speech. In Bennett Coleman v. Union of India, Ray J. held that:

It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.[13] [emphasis added]

Similarly, in Cunliffe v. The Commonwealth of Australia,[14] Deane J. opined that, insofar as Australian citizens enjoy an implied constitutional right to the freedom of political communication and discussion, non-citizens also have indirect protection, flowing from the inherent freedom of citizens.

Seen thus, the right to freedom of speech does not just entail the right to unilaterally voice one’s opinions. Rather, Article 14 conveys a right to engage in free intercourse, conceived of as multi-lateral. Hence, the individual citizen has a right to receive opinions as well as to express them, since one cannot properly articulate his opinions without access to adequate information.[15] The upshot is that while a non-citizen like Douglas Sanders, if prohibited from speaking, may not be able to apply to the courts, a citizen who had hoped to listen to his lecture could potentially sue under Article 14.

Unfortunately, such a broad conception of the right to freedom of speech has been rejected in Singapore. In Dow Jones Publishing Company (Asia) Inc. v. Attorney General,[16] the Minister had declared that the appellant company, which owned the Asian Wall Street Journal, was “engaging in the politics of Singapore”, and reduced its circulation from 5,000 to 400 copies.

The appellant sought to set aside the Minister’s decision, and contended, inter alia, that the right to freedom of speech and expression includes the right to receive information. In support, the appellant cited Thean J. in PP v. Phua Keng Tong, who said:

Thus far I agree with [counsel for the defendant]. In my opinion there is no doubt that the right to freedom of expression includes communication or dissemination of information.[17]

The Court of Appeal appeared to acknowledge the correctness of this statement. However, it distinguished Phua on the basis that Thean J. had not referred at all to the receipt of information, which it held was irrelevant to the constitutional argument in that case.[18]

With respect, this is a curious statement, as Phua seems to have everything to do with receipt of information. The defendant in that case had been charged under s. 5(1) of the Official Secrets Act[19] with receiving a classified document knowing that it was communicated in contravention of that Act. It was in relation to this receipt of information that counsel for the defendant invoked Article 14, contending that s. 5(1) was unconstitutional. Moreover, as the context shows, Thean J.’s statement above was directly addressed to counsel’s submissions. If so, Thean J.’s use of the words “communication” and “dissemination” must have encompassed the receipt of information.

Interestingly, the Court of Appeal in Dow Jones, having distinguished Phua, went on to consider the validity of the appellant’s Article 14 argument as regards the receipt of information. While being wary of “prejudging the issue”, it observed that the appellant’s argument would fail on a factual point: any citizen would find it difficult to show that he was deprived of the right to receive information, given that 400 copies of the Asian Wall Street Journal remained in circulation.[20]

This suggests that the Court of Appeal’s holding was based on a finding of fact rather than law. Its statement that receipt of information is irrelevant to Article 14 is arguably obiter dicta. This leaves the way open for a future court decision to reaffirm Phua, without having to overtly depart from Dow Jones.

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