Gilded with Law

Priy­ageetha Dia has gil­ded Singa­pore with gold foil, again. And a lot of people have called her urb­an art inter­ven­tion illeg­al, again. But what if she and her art had been on safe leg­al ground all along? What if it wasn’t so clear wheth­er the remov­al of her golden flags was leg­al or not?

It’s just over a year since the golden stair­case appeared, and then dis­ap­peared, at Block 103 Jalan Rajah. Now Priy­ageetha has done it again. Same place. Like the first time she has earned some applause on social media. Like the first time the applause wasn’t as loud as the slat­ing. In fact, like the first time a ver­it­able shit­storm broke in on her.

Some not only denied Priy­ageetha the status of an artist – that seems to be a giv­en – but offered good advice. For example, she ought to rein in her tend­ency to seek atten­tion and work on her humil­ity. Oth­ers sug­ges­ted that she go away. After she had apo­lo­gised to every­one whose feel­ings she had hurt, of course.

Was the first time not enough? ‘Dia, u nev­er give up, do not u’, as someone asked on Facebook.

What had this brat done?

The Golden Flags

Well, Priy­ageetha had hung gold foil on the para­pet of each floor of her HDB block. Res­cue blankets to be exact. They were hanging there like nation­al flags every year in August.

On her Face­book page there was a short video with a short poem called absent — present.

These golden flags were hanging for three days. Then Jalan Besar Town Coun­cil took them down. Res­id­ents had com­plained, it said.

The Media Reflection

The mat­ter caught the atten­tion of the media, art­icles were pub­lished. Art­icles come with com­ment sec­tions. Priy­ageetha was toast.

As the reac­tions have shown again, a debate of the what and the how of art in pub­lic space is still rel­ev­ant in Singa­pore. Unfor­tu­nately, though, it happened on social media only. It wasn’t always what you’d call civ­il­ised. Moreover, it was short-lived.

Many com­ments were bey­ond crit­ic­al. A few met the threshold of crime. There was sex­ism, racism and the occa­sion­al defam­a­tion. From a leg­al point of view, beha­viour like this isn’t dif­fi­cult to assess, which is why I shan’t both­er. That is not to say this beha­viour is tol­er­able. I just don’t feel like giv­ing it anoth­er for­um. I hope those who have com­mit­ted offences will be dealt with in accord­ance with the law. In the mean­time, don’t feed the trolls.

Pure Gold Doesn’t Fear Furnace

My focus lies on the artist and her coun­ter­part, Jalan Besar Town Council.

On the artist, because she has towered her haters. Spoil­er alert: her beha­viour was unob­jec­tion­able. And on the Town Coun­cil, because it had to hike into unfa­mil­i­ar ter­rain. In Singa­pore, that’s an art in itself. Priy­ageetha did that.

Quite a lot of people have cri­ti­cised Priy­ageetha for how illeg­al her actions were. In par­tic­u­lar, for not get­ting per­mis­sion from the HDB or the Town Council.

But did she really have to ask for per­mis­sion? No, she didn’t.

Here’s why.

The Fundamental Liberty: Freedom of Expression

There is such a thing as a fun­da­ment­al liberty. The Con­sti­tu­tion of Singa­pore stip­u­lates some of them includ­ing, for Singa­pore cit­izens like Priy­ageetha, the free­dom of expression.

This free­dom is often called in the same breath with the free­dom of speech. But ‘free­dom of speech and expres­sion’ is no tau­to­logy. The Con­sti­tu­tion doesn’t use tau­to­lo­gies. Expres­sion indic­ates a broad­er scope than mere speech. Any act of com­mu­nic­at­ing inform­a­tion or ideas, basic­ally. This means any Singa­por­ean artist has the fun­da­ment­al liberty to com­mu­nic­ate her ideas through speech or oth­er­wise. Through art for example.

This is the ten­et. And it reveals an author­it­ari­an affil­i­ation if one doesn’t know (or acknow­ledge) the free­dom of expres­sion as fun­da­ment­al, but believes it’s the oth­er way around: that you need Gahmen’s per­mis­sion before you may com­mu­nic­ate an idea.

To those Singa­por­eans who are so affil­i­ated: I’m sorry to break it to you, but exer­cising your free­dom of expres­sion doesn’t have to be sanc­tioned, com­mis­sioned or approved. Priyageetha’s action was okay in principle.

The Restriction by Statute

Is there any­thing to affect this result?

There’s hardly a prin­ciple without an excep­tion. Hardly a free­dom without restric­tion. Indeed the Con­sti­tu­tion expressly allows restrict­ing the free­dom of expression.

More accur­ately, it allows Par­lia­ment to do that. By law. As Par­lia­ment pleases? No.

Leg­al restric­tions by Par­lia­ment are per­miss­ible as far as it con­siders them neces­sary or expedi­ent in the interest of the secur­ity of Singa­pore or any part there­of, friendly rela­tions with oth­er coun­tries, pub­lic order or mor­al­ity. In addi­tion, restric­tions are per­miss­ible provided they are designed to pro­tect the priv­ileges of Par­lia­ment or to provide against con­tempt of court, defam­a­tion or incite­ment to any offence.

None of this seems to be rel­ev­ant in the case of gold foil hanging from the para­pet. Except the part about pub­lic order perhaps.

Public Entertainments Act

Par­lia­ment has enacted the Pub­lic Enter­tain­ments Act to provide for the reg­u­la­tion of pub­lic enter­tain­ments. Accord­ing to this act, no pub­lic enter­tain­ment shall be provided except in an approved place and in accord­ance with a licence.

Pub­lic enter­tain­ment includes any arts enter­tain­ment, and arts enter­tain­ment means any dis­play or exhib­i­tion of oth­er still objects or art generally.

As the wind was play­ing with the gold foil, it wasn’t really ‘still’, but I guess that’s not what they mean by that. In any case, the golden flags fell under art gen­er­ally. In prin­ciple, Priy­ageetha needed a licence to dis­play them.

Exemptions

How­ever, the Pub­lic Enter­tain­ments Act allows the Min­is­ter for Inform­a­tion, Com­mu­nic­a­tions and the Arts to exempt any pub­lic enter­tain­ment from the pro­vi­sions of this Act, sub­ject to such con­di­tions or restric­tions as may be spe­cified in the order.

And the Min­is­ter has done so, by way of the Pub­lic Enter­tain­ments and Meet­ings (Spe­cified Arts Enter­tain­ment) (Exemp­tion) Order 2005. This Order exempts spe­cified arts enter­tain­ment from the pro­vi­sions of the Pub­lic Enter­tain­ments Act, and spe­cified arts enter­tain­ment includes dis­plays or exhib­i­tions of art objects.

Subject to Conditions or Restrictions

What are the con­di­tions or restric­tions for an exemp­tion? Well, the spe­cified art shall include noth­ing of a reli­gious nature, noth­ing which den­ig­rates any race or reli­gion or is likely to cause feel­ings of enmity, ill-will or hos­til­ity between racial or reli­gious groups. Also, no viol­ent, lewd or obscene act, song, remark, mes­sage, dis­play or exhib­it shall be made, per­formed or included in the arts enter­tain­ment. No trans­vest­ite per­form­ance. No con­tra­ven­tion of oth­er law. If anoth­er approv­al (out­side the Pub­lic Enter­tain­ments Act) is required, it has to be obtained duly. The gold foil com­plied with all that. I’ll deal with the reli­gion bit in more detail below.

Addi­tion­al note­worthy con­di­tions for out­door arts enter­tain­ment are: noth­ing polit­ic­al, which the golden flags weren’t. Noise mit­ig­a­tion and cer­tain hours of activ­ity time, to ensure people’s peace at night and in the morn­ing. Not well applic­able to hanging flags.

Noti­fic­a­tion of the arts enter­tain­ment has to be made to any police officer on duty at any Neigh­bour­hood Police Post, Neigh­bour­hood Police Centre or the Police Land Divi­sion at least sev­en days before the arts enter­tain­ment. Noti­fic­a­tion, mind, not: applic­a­tion for approv­al. I believe Priy­ageetha did noti­fy the police in time. Didn’t she?

Then, her hanging of the golden flags was exempt from the licen­cing require­ment of the Pub­lic Enter­tain­ments Act.

Other Public Order Restrictions

Par­lia­ment has also enacted the Pub­lic Order Act, the Pub­lic Order (Pre­ser­va­tion) Act and the Mis­cel­laneous Offences (Pub­lic Order and Nuis­ance) Act. But they are silent about gold foil. They are really made for oth­er things.

The Pub­lic Order Act is about assem­blies, pro­cesses and spe­cial event areas, mainly. The Pub­lic Order (Pre­ser­va­tion) Act reg­u­lates the main­ten­ance and res­tor­a­tion of pub­lic order in areas in Singa­pore where pub­lic order is ser­i­ously dis­turbed or ser­i­ously threatened. We’re talk­ing about threats more ser­i­ous than hanging golden flags. The Mis­cel­laneous Offences (Pub­lic Order and Nuis­ance) Act is an act relat­ing to offences against pub­lic order, nuis­ance and prop­erty. The nuis­ances covered by this act are more severe ones as well. For example, the nuis­ance of burn­ing mater­i­al or dis­char­ging fire­arms in pub­lic roads. Or the nuis­ance of riot­ous, dis­orderly or inde­cent beha­viour in cer­tain places. Or that of depos­it­ing a corpse or dying per­son. Yes, there’s a law for that.

None of these acts of Par­lia­ment author­ise the Town Coun­cils anyway.

Environmental Public Health Protection

With a little ima­gin­a­tion we may con­sider the Envir­on­ment­al Pub­lic Health Act an act about pub­lic order. Mainly, it’s an act on envir­on­ment­al pub­lic health with rules for the pre­ven­tion and dis­pos­al of waste. But it also con­tains rules to remove or abate all nuis­ances of a pub­lic nature. This is inter­est­ing in our context.

How­ever, nuis­ance under this law is defined as some­thing which adversely affects the senses or is cap­able of doing that. Or some­thing which harms or is dan­ger­ous to health or prop­erty. And as the name of the act sug­gests, an indic­at­ive cata­logue of nuis­ances is more about envir­on­ment­al pol­lu­tion. There is talk of gut­ters, sew­ers or drains in a foul state or so situ­ate as being a nuis­ance or dan­ger­ous to health. Or of places where there exists, or is likely to exist, any con­di­tion giv­ing rise, or cap­able of giv­ing rise to the breed­ing of flies or mos­qui­toes. Or of places from which there is noise or vibra­tion as an amount to a nuisance.

Again, none of this really applies to hanging gold foil. And again, this act doesn’t author­ise the Town Coun­cils. It author­ises the Nation­al Envir­on­ment Agency.

Littering

How about lit­ter­ing? Were the golden flags lit­ter? Quick answer: no, they weren’t. Because Priy­ageetha didn’t dump them.

Subsidiary Legislation

Two pieces of sub­si­di­ary legis­la­tion deal with lit­ter­ing. First, the Envir­on­ment­al Pub­lic Health (Pub­lic Cleans­ing) Reg­u­la­tions, made by the Nation­al Envir­on­ment Agency. Second – con­cern­ing the Town Coun­cil rel­ev­ant here – the Town Coun­cil of Jalan Besar (Com­mon Prop­erty and Open Spaces) By-laws 2016, made by said Town Council.

Both the Reg­u­la­tions and the By-laws make it illeg­al to throw or depos­it things, or caus­ing or per­mit­ting things to be thrown or deposited.

The golden flags weren’t thrown, they were fastened to the parapets.

Were the golden flags depos­ited? Not if you require depos­it to have an aspect of aban­don­ment, of dump­ing. But what about oth­er ways of inter­pret­ing it? It is pos­sible to under­stand depos­it in a dump­ing-free sense.

Maybe. But that’s the thing. When it comes to restrict­ing a fun­da­ment­al liberty gran­ted by the Con­sti­tu­tion, you must inter­pret the restric­tion nar­rowly. In a way that upholds the liberty. In par­tic­u­lar, if there’s more than one way to achieve the pub­lic order pur­poses of a reg­u­la­tion or bye-law, then you must choose the one least restrict­ive to the free­dom of expres­sion of fel­low Singaporeans.

The Reg­u­la­tions and By-laws are about envir­on­ment­al pub­lic health and, argu­ably, social coex­ist­ence. These pur­poses can be achieved – per­haps even bet­ter so – if depos­it with­in the mean­ing of the Reg­u­la­tions and the By-laws requires an ele­ment of dumping.

Constitutional Law Swerve

By the way, the use of sub­si­di­ary legis­la­tion to restrict a fun­da­ment­al liberty raises an inter­est­ing ques­tion of con­sti­tu­tion­al law.

The reg­u­la­tions and bye-laws men­tioned above are based on par­ent acts. The Envir­on­ment­al Pub­lic Health Act enables the Nation­al Envir­on­ment Agency to make reg­u­la­tions. The Town Coun­cil Act enables the Town Coun­cils to make bye-laws.

How­ever, the Con­sti­tu­tion says restric­tions of the free­dom of expres­sion may only be imposed by Par­lia­ment and by law. This is a strong com­mit­ment to demo­cracy and to the rule of law.

May Par­lia­ment del­eg­ate its respons­ib­il­ity, by way of par­ent acts of law, to agen­cies and coun­cils who report to a min­istry? Wouldn’t this be tan­tamount to author­ising the exec­ut­ive power to restrict a fun­da­ment­al liberty guar­an­teed by the Con­sti­tu­tion? When the Con­sti­tu­tion wants this to be done by the legis­lat­ive – because this power reports to the electorate?

Indeed if Par­lia­ment had dumped all its con­sti­tu­tion­al respons­ib­il­ity, this would be a prob­lem. There are reas­ons to assume the chosen solu­tion is alright, though. That’s because Par­lia­ment main­tains its con­trol func­tion and account­ab­il­ity. For example, the Envir­on­ment­al Pub­lic Health Act decrees all reg­u­la­tions made under it shall be presen­ted to Par­lia­ment as soon as pos­sible after pub­lic­a­tion. And the Town Coun­cils con­sist of Mem­bers of Parliament.

Fire Safety

Are res­cue blankets a fire haz­ard at least, so we can bring the golden flags under the Fire Safety Act some­how, although this act is more of a pub­lic safety law than a pub­lic secur­ity or pub­lic order law?

Neg­at­ive. A res­cue blanket is less flam­mable than the nation­al flags which are all over every HDB wall around Nation­al Day time.

And no, the Town Coun­cils aren’t author­ised by this act either.

Criminal Mischief

Anoth­er pub­lic order aspect is the offence of mis­chief. But Priy­ageetha didn’t com­mit any. Because to do so, prop­erty must be des­troyed or its value or util­ity des­troyed or dimin­ished or affected injur­i­ously. This didn’t happen.

Vandalism

Of course there were some who brought the charge of van­dal­ism against Priy­ageetha. A pub­lic order thing alright. Just that, like the first time, it was too far-fetched.

The gold foil didn’t break any­thing. Neither were the golden flags posters or the like, the hanging of which could have been vandalism.

But under the Van­dal­ism Act it’s also van­dal­ism if you, without the writ­ten author­ity or con­sent of the right per­son, hang, sus­pend, hoist, affix or dis­play on any pub­lic or private prop­erty any flag, bunt­ing, stand­ard, ban­ner or the like with any word, slo­gan, cari­ca­ture, draw­ing, mark, sym­bol or oth­er thing.

I don’t know if a plain res­cue blanket, trimmed to flag-size, is a flag with­in the mean­ing of the law. Maybe it is. Cru­cially, though, there was no word, slo­gan, cari­ca­ture, draw­ing, mark, sym­bol or oth­er thing. It was pure gold foil.

Hence, no vandalism.

The Other Fundamental Liberty: Freedom of Religion

Apart from restric­tions which the Con­sti­tu­tion itself allows Par­lia­ment to make by law, each fun­da­ment­al liberty guar­an­teed by the Con­sti­tu­tion finds its bound­ar­ies where it touches on the fun­da­ment­al liberty of oth­ers. For example, the free­dom of religion.

The Con­sti­tu­tion says, every per­son has the right to pro­fess and prac­tise his reli­gion and to propag­ate it. Have the golden flags viol­ated anyone’s right to do that?

This ques­tion does arise because the Town Council’s offi­cial reas­on for tak­ing down the gold foil were com­plaints from res­id­ents who said they felt reminded of joss paper. Which in their view is an inaus­pi­cious thing.

Was that some­thing religious?

Wiki­pe­dia tells us joss paper are sheets of paper and/or paper-crafts made into burnt offer­ings com­mon in Chinese ancest­or wor­ship. Chinese ancest­or wor­ship is also called Chinese pat­ri­arch­al religion.

Okay. But how does it hinder you from prac­tising this reli­gion if someone hangs golden flags on the wall?

The answer is: it doesn’t.

Discomfort

The reas­on for the com­plaints seems to be anoth­er. Many people seem to shun the con­front­a­tion with death. It makes them feel uncomfortable.

Under­stand­ably, per­haps. But being reminded of the inev­it­able doesn’t have any reli­gion-imped­ing aspect to it. That is to say: Chinese ancest­or wor­ship doesn’t seem to ban ref­er­ences to, remind­ers of, or con­front­a­tions with death. Quite the contrary.

Thus, to feel reminded of death doesn’t viol­ate anyone’s free­dom of reli­gion. Dis­com­fort res­ult­ing from it is not deserving of pro­tec­tion. Hence it doesn’t restrict a Singa­por­ean citizen’s con­sti­tu­tion­al right to express her­self by hanging up gold foil.

Or, as Popspoken put it more bluntly: ‘If they wish to pick on its aes­thet­ic qual­ity simply because it uses gold foil, they should ban Fer­rero Rocher from the snack tables dur­ing Chinese New Year.’

The Non-Constitutional Right: Property

So the free­dom of reli­gion of oth­ers doesn’t restrict Priyageetha’s right to an urb­an art inter­ven­tion using gold foil. Is there a Con­sti­tu­tion-intrins­ic restric­tion that does lim­it her free­dom to express herself?

It’s undis­puted she had attached her golden flags to someone else’s prop­erty. Isn’t any own­er free to deal with his prop­erty at his dis­cre­tion? As such, isn’t he free to exclude oth­ers from every influence?

Yes, that’s the way it is. But here’s a fun fact: in Singa­pore own­er­ship rights don’t have con­sti­tu­tion­al status. Prop­erty is not a fun­da­ment­al right. Yes, ordin­ary law does pro­tect it. But this pro­tec­tion is sub­or­din­ate to the Con­sti­tu­tion and the rights gran­ted by it, includ­ing the con­sti­tu­tion­al restric­tions of these rights. This may be sur­pris­ing, but it’s the way it is. It’s the suprem­acy of the Constitution.

But the Rules!

But but but – all our Town Coun­cil bye-laws! All our HDB, NEA and oth­er reg­u­la­tions! If the above were true, all these bye-laws and pub­lic order reg­u­la­tions and even prop­erty law would be sub­or­din­ate to a Singaporean’s free­dom to express him­self! Even when he uses com­mon prop­erty for it! So long as there’s no van­dal­ism or his free­dom isn’t law­fully restric­ted oth­er­wise. Surely this is not what you are saying?!

This is pre­cisely what I’m saying.

Freedom of Expression versus Freedom of Expression

Noth­ing stood in the way of Priy­ageetha hanging gold foil. No pub­lic order con­sid­er­a­tion, no one’s free­dom of reli­gion or prop­erty right.

And you know what, this is exactly the res­ult desirable.

Anarch­ic nonsense?

On the con­trary. Just as Priy­ageetha was allowed to hang her golden flags, oth­er Singa­por­eans were allowed to take them down. Or to do some­thing else with them. Without dam­aging them, of course. That would have been crim­in­al mischief.

The thing is, no Singa­por­ean did. The Town Coun­cil did. It’s not a cit­izen, though, it doesn’t have the free­dom of expression.

Oh, per­haps the Town Coun­cil acted on behalf of oth­er Singa­pore cit­izens. The ones who had com­plained. Per­haps the Town Coun­cil helped them exer­cise their free­dom of expression.

Yes, per­haps this is totally what happened. Only that, if so, even the Town Coun­cil doesn’t seem to be very aware of what it did.

It would have been bet­ter if a fel­low Singa­por­ean had taken down the golden flags. This way, it would have been this person’s free­dom of expres­sion versus Priyageetha’s. It could have been part of a debate about what is urb­an art, or art in gen­er­al, and what isn’t. Not just on social media, exer­cising the free­dom of speech from afar. But under the block, exer­cising the free­dom of expres­sion where it’s hap­pen­ing – why are void decks so void any­way? Gov­ern­ment needn’t be the middle­man of everything.

The law allows it.

The Golden Rule

There’s good reas­on why the law allows it. Exer­cising the right of expres­sion would help awaken the cre­ativ­ity we’ve been yearn­ing for. And which we’ve real­ised we need to foster. Even real­ised by Gov­ern­ment by the way, albeit for her own, the usu­al reas­ons.

Can this be? If we start to express ourselves more often, wouldn’t there be intol­er­able results?

Maybe there would, some­times. Then what? Then we would deal with it! (Gasp.) But we would also see things that Singa­pore isn’t exactly fam­ous for yet: impetus from soci­ety or new ideas not pre-chewed and pre­di­gested by ‘the rel­ev­ant authorities’.

In this respect, Priy­ageetha and her peers are our generation’s avant-garde. Not all of us can be, but that’s okay – not all of us have artist­ic tal­ent, or the pas­sion. But most of us have a tal­ent, and the pas­sion, to debate. Those of us, let’s be the rear guard.

Priy­ageetha remained well with­in her rights. She didn’t break the law. Indeed she observed the golden rule. This can’t be said of all oth­er par­ti­cipants in the debate.

It isn’t her or the Town Coun­cils that need to up up their cre­at­ive, debat­ing or even law-abid­ance skills. It’s the rest of us. When will we start doing it?

Maybe when the next golden moment comes.

(All pho­tos by Priy­ageetha Dia. Except the one of her; that one’s by the Straits Times)