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 sure legal ground all along? What if it wasn’t so clear whether removing her golden flags was lawful 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. Like so.
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.
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.
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 religion 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.
How about littering? Were the golden flags litter? Quick answer: no, they weren’t. Because Priyageetha didn’t dump them.
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.
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.
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.
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.
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.
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)