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Constitutional Law 7 - Freedom of Speech


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Constitutional Law 7 - Freedom of Speech

  1. 1. Part IV of the Constitution
  2. 2. <ul><li>Article 14 </li></ul><ul><ul><li>(1) Subject to clauses (2) and (3) — </li></ul></ul><ul><ul><ul><li>(a) every citizen of Singapore has the right to freedom of speech and expression; </li></ul></ul></ul><ul><ul><ul><li>(b) all citizens of Singapore have the right to assemble peaceably and without arms; and </li></ul></ul></ul><ul><ul><ul><li>(c) all citizens of Singapore have the right to form associations. </li></ul></ul></ul>
  3. 3. <ul><li>Article 14 </li></ul><ul><ul><li>(2) Parliament may by law impose — </li></ul></ul><ul><ul><li>(a) on the rights conferred by clause (1) (a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence; </li></ul></ul><ul><ul><li>(b) on the right conferred by clause (1) (b), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order; and </li></ul></ul><ul><ul><li>(c) on the right conferred by clause (1) (c), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, public order or morality. </li></ul></ul><ul><ul><li>(3) Restrictions on the right to form associations conferred by clause (1) (c) may also be imposed by any law relating to labour or education. </li></ul></ul>
  4. 4. <ul><li>Article 14 extends only to citizens . </li></ul><ul><li>Derogable rights that may even be suspended during an Emergency </li></ul><ul><li>Concentrate on Freedom of Speech </li></ul><ul><li>Courts’ role is to determine ambit of constitutional protection afforded under Article 14. </li></ul><ul><li>X Pte Ltd & Anor v CDE (1992) – High Court held that the law relating to confidence and the tort of conspiracy as restrictions on freedom of speech embodied in the common law had been preserved by the Constitution. </li></ul><ul><li>Quaere: Do common law rights trump constitutional liberties? </li></ul>
  5. 5. <ul><li>Sedition </li></ul><ul><li>Immunity in Parliament </li></ul><ul><li>Official Secrets </li></ul><ul><li>Contempt of Court </li></ul><ul><li>Public Morality </li></ul><ul><li>Defamation </li></ul>
  6. 6. <ul><li>Sedition Act </li></ul><ul><li>Section 4 – offence to ‘make, prepare, or to conspire, to do any seditious act, to utter seditious words, and to propagate or import any seditious publications.’ </li></ul><ul><li>Section 3 – meaning of ‘seditious tendency’: </li></ul><ul><ul><li>Bring hatred or contempt to the Government or excite disaffection against the Government </li></ul></ul><ul><ul><li>Excite Singapore citizens or residents to revolt </li></ul></ul><ul><ul><li>Bring into hatred or contempt or excites disaffection against the administration of justice </li></ul></ul><ul><ul><li>Raise discontent or disaffection among countrymen </li></ul></ul><ul><ul><li>Promote feelings of ill-will and hostility amongst inhabitants of the country </li></ul></ul>
  7. 7. <ul><li>PP v Koh Seng Huat Benjamin & Anor (2005) </li></ul><ul><li>Koh was charged with 2 counts under section 4 of the Sedition Act for creating ill-will towards Muslims through his web log postings Phoenyx Chronicles. Nicholas Lim charged with similar offence for postings in forum of </li></ul><ul><li>AG: Remarks were highly inflammatory, and insulting. He parodied the halal logo and placed it next to a pig’s head, spewed vulgarities as the Muslim Malay community, derided and mocked their customs and beliefs and profaned their religion. He even compared their religion to Satanism. </li></ul><ul><li>Held: </li></ul><ul><ul><li>Right to one’s freedom must be balanced by right of another’s rights, tampered by wider public interest considerations. </li></ul></ul><ul><ul><li>Every individual owes it to himself and his country to see that nothing is said or done which might incite people and plunge the country into racial strife and violence. These are the basic ground rules. </li></ul></ul><ul><ul><li>As such, accused have crossed the line. </li></ul></ul>
  8. 8. <ul><li>Chick Publications Case </li></ul><ul><li>Ong Kian Cheong & wife Dorothy Chan sentenced to 8 weeks’ jail for mailing Chick Publications literature – The Little Bride and Who is Allah ? – to Muslim recipients they found out of a telephone directory. </li></ul><ul><li>Chick Publications - fundamentalist Christian outfit in the United States that publishes pamphlets, comic books, videos and similar material that denigrate other cultures and religions in its effort to recruit people into its form of evangelical Christianity. </li></ul><ul><li>Website has since been blocked by MDA. </li></ul>
  9. 9. <ul><li>Parliament </li></ul><ul><li>No constitutional guarantee to protect free speech in Parliament, but Article 63 allows Parliament to regulate its own privileges, immunities and powers </li></ul><ul><li>Section 5 of Parliamentary (Privileges, Immunities and Powers) Act provides for freedom of speech in parliamentary debates – absolute privilege. </li></ul><ul><li>Official Secrets </li></ul><ul><li>Section 5 of Official Secrets Act forbids the communication of any official secret. </li></ul><ul><li>Quaere: What is an official secret? </li></ul><ul><li>Bridges Christopher v PP (1997): </li></ul><ul><ul><li>Information in the public domain is not secret </li></ul></ul><ul><ul><li>Mere classification of a document as ‘Secret’ or ‘Top Secret’ does not make it so </li></ul></ul><ul><ul><li>Depends on the nature of the information so classified. </li></ul></ul>
  10. 10. <ul><li>Contempt of Court </li></ul><ul><li>Already covered as part of Judiciary lectures – use of ‘inherent tendency’ test </li></ul><ul><li>Public Morality </li></ul><ul><li>Article 14(2)(a) – restriction stems from paternalistic concern that moral values may be eroded. </li></ul><ul><li>Long list of legislation regulating public morality, eg: </li></ul><ul><ul><li>Films Act </li></ul></ul><ul><ul><li>Undesirable Publications Act </li></ul></ul><ul><ul><li>Penal Code </li></ul></ul><ul><ul><li>Advertising Act </li></ul></ul>
  11. 11. <ul><li>General Test </li></ul><ul><li>Lowering the plaintiff in the estimation of right-thinking members of society. </li></ul><ul><li>Quaere: Should public figures be given the same level of protection as private citizens? </li></ul><ul><li>New York Times v Sullivan (1964, US Supreme Court): Yes. Defendant only liable if ‘actual malice’ is proven. It is in the general public interest to allow robust criticism and scrutiny of the work of public officials. </li></ul><ul><li>Rejected by Court of Appeal in JB Jeyaretnam v Lee Kuan Yew (1992). Thean J held that NYT v Sullivan inapplicable because Article 14 differs materially from First & Fourteenth Amendments of the Constitution & from Article 10 of the European Convention on Human Rights. </li></ul><ul><li>Also implicit that right to free speech in Article 14 is subject to common law of defamation. </li></ul>
  12. 12. <ul><li>Qualified Privilege for matters of serious public interest? </li></ul><ul><li>Reynolds v Times Newspaper (2001, House of Lords) </li></ul><ul><ul><li>Reputations of public figures should not be besmirched falsely. The question is what restrictions are fairly & reasonably necessary to protect reputations. </li></ul></ul><ul><ul><li>Common law should not develop ‘political information’ as a new ‘subject matter’ category of qualified privilege as it would be an inadequate protection for reputation. </li></ul></ul><ul><ul><li>Should not distinguish political discussion from discussion of other matters of serious public concern </li></ul></ul><ul><ul><li>But interference in free speech should be confined to what is necessary. The press discharges vital functions as bloodhound as well as watchdog. Courts should be slow to conclude that publication was not in the public interest and any lingering doubts should be resolved in favour of publication. </li></ul></ul><ul><li>Applied in Jameel v Wall Street Journal Europe . Model based on responsible journalism & right to political participation </li></ul>
  13. 13. <ul><li>Qualified Privilege for matters of serious public interest? </li></ul><ul><li>Lee Hsien Loong v SDP (2007) </li></ul><ul><ul><li>Since Singapore has rejected the applicability of Article 10 of the European Convention on Human Rights, qualified privilege for responsible journalism does not apply </li></ul></ul><ul><ul><li>Australian cases on right to political participation, coupled with right to receive information and duty to communicate information rejected. </li></ul></ul><ul><li>Affirmed in Lee Hsien Loong v Review Publication (2009) by Court of Appeal </li></ul>