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16 May 2011

The Lawyer is in: Constitutional amendment for new MPs?

Defamation and privacy laws are the twin tools of a media lawyer to help his clients control their image. Both try to prevent information or expressions from being published in an attempt to shield a public figure from potential dip in popularity polls. Fridae’s legal columnist George Hwang explains the two.

During the last election campaign, the reaction of Singaporeans to Dr Vivian Balakrishan’s remarks about opposition candidate, Dr Vincent Wijeysingha’s possible same sex preference has given many public relations consultants new barometers. This applies to media lawyers, too. Whilst the general principles for defamation and privacy may remain, the standards have definitely shifted. 

Being gay is alright, it is hypocrisy which we do not like. 

This is the real Singapore value. One that I have repeated till I am hoarse to our dear government. 

Whilst the amount of supporters for the Parliamentary Petition to repeal s377A and the AWARE saga are evidence of our values on the issue of homosexuality, Balakrishnan’s remarks and press release allowed me to test Singaporeans’ values to legal principles. 

The reaction of netizens and other Singaporeans to Dr Balakrishnan’s statementsis the third time (after the Parliamentary Petition to repeal s377A and response to the AWARE saga) our society has affirmed that it embraces diversity and inclusiveness. As such, we need to repeal s377A. Not to do so is not to honour our founding fathers’ vision and the new Singaporean dream. 



Defamation can be defined as the publication of defamatory statement about a person to a 3rd party. A statement is defamatory if it:

1. tends to lower him in the estimation of right-thinking members of society, generally;

2. exposes him to public hatred, contempt, or ridicule; or

3. causes him to be shunned or avoided.

Inherent in this definition is that defamation is dependent on the values of a society. As such, what is defamatory in one society may not be defamatory in another. Also, what is defamatory a 100 years ago, may no longer be defamatory now. Being raped or seduced by a mad monk, Rasputin, is a good example.

What does Defamation Protect?

It is, therefore, clear that defamation protects a person’s reputation. However, if the statement is true, the subject has no case, regardless of how defamatory the statement is.

Therefore, defamation protects an individual against the casting of false slurs or aspersions.


As what is defamatory is judged against society’s values, what was defamatory 10 years ago, in Singapore, may no longer be defamatory today. Sexual orientation would be one.

Not only is there an outcry against any allusion to Dr Wijeysingha sexual preference by Vivian, the voters of Holland Village-Bukit Timah, where the two were pitched against each other as anchors for their team, gave Dr Wijeysingha a resounding 39.9% approval. This is Dr Wijeysingha first election campaign. For an unknown rookie standing against a Minister, the 39.9% of the valid votes is an amazing feat. One has also got to consider Singaporean politics, not to mention that the constituency is supposed to be pro-PAP, as it is an upper middle income district, people who benefited from PAP’s rule and would vote for the status quo.

This is proof that Singaporeans, except for a small minority, no longer care about a person’s sexual orientation. A person is judged purely on his merits.

Therefore, criticising a certain MP for looking or behaving like a loveless dyke may no longer be actionable. However, it may be rude. Besides, why would any of you, genteel readers, want to insult or offend your lesbian friends (assuming you a gay man or straight reader).

On the more constructive side no public personality needs worry about “coming-out” any longer.


What does Privacy Protect?

Unlike defamation, privacy protects an individual against prying eyes. The information published is always true.

However, because it is obtained in a manner which invades a person’s privacy, its publication may be stopped by an order of court, if discovered in time. Such an order is called “interlocutory injunction”.

An interlocutory injunction is often more important in an infringement of privacy case than a defamation. This is because a person’s reputation can be remedied by a rectification statement. Once personal information is published, there is no way it can be pulled back. This is why such pre-trial injunctions are more often granted when privacy, rather than defamation, is in question.

Definition of Privacy

I would like to define privacy as an action carried out by an individual in a public or semi public space. Nevertheless, this person would still have a reasonable expectation of privacy. An example would be retreating to a secluded corner of a restaurant, shielded by plants. The German court has held that Princess Caroline of Monaco’s privacy was breached when she was so photographed.

Governments, companies and other institutions do not have privacy. They have confidential information.


Unlike defamation which ring-fences freedom of expression in most human rights documents, privacy is a separate good. Therefore, the two are often balanced against each other. Whether or not the court will grant any relief is dependent on the types of information and the status of the individual involved.

Free speech advocates will inform you that freedom of expression is instrumental in a democracy for the revelation of truths, the proper functioning of government and participation in the affairs of the state. As such, some information is being classified as more important because of this role.

Information relating to the governing of the state will be on top of the list. The courts tend to be pro-free speech when such information is in question. Conversely, when it is about the lifestyle of some starlets which hardly contributes towards the development of the democracy, the courts tend to restrain their publication. It may be different if the sex is between a minister and an appointed secretary.

It is a pity that in Naomi Campbell v MGN, the landmark case on privacy, the supermodel conceded that her denial of drug taking to the press has prejudiced her rights to claim privacy for this aspect of her life.

In an earlier case involving a presenter for a long running variety show, “Top of the Pops”, Theakson vs Mirror Group Newspapers, the court held against the plaintiff, Theakson. The High Court of England allowed the press to publish information that he has been to a brothel but not photographs of the incident. The justification is that celebrities who cultivate a clean public image cannot complain when the contrary is unveiled. This follows a line of other cases based on similar reasoning. There is public interest informing the public the truth. The courts think that public figures have a duty to their fans and supporters.

Close analysis of such decisions reveal that the courts are unclear on whether it is the fact of concealment which the judges are against or the damage to the fans caused by the wrong image projected. It cannot be the latter. This is because there can be no damage until the truth is revealed by the press. It is the act of publication rather than image projection that is causing the damage.

I proffer that the values of the judges have influenced their decisions, like in many other cases. In actual fact, the judges disapprove of the hypocrisy of these public figures. This seem to be the very same sentiments many netizens showed.

Dr Balakrishnan, as an individual has a right to free speech, as much as the press. In the words of J Ousely in Theakson v Mirror Group Newspapers, who had to have regard to:

“the freedom of expression not just of the Sunday People (the newspapers), but also the prostitute who too had information of a journalistic nature which she wished to impart.”

Had Dr Vincent Wijeysingha been anti-repeal of s377A or anti-gay, there would have been arguments for “outing” him. Freedom of speech will be on the side of Vivian Balakrishnan. However, this is not the case.

There seems to be a parallel between this Dr Vincent Wijeysingha attending a forum on s377A in his personal capacity and Australian Minister for Transport and Roads, David Campbell, frequenting a gay sauna. The Australian and Communications and Media Authority held that information relating to a person’s sexual preference and activities would be considered personal and private. Footage of the minister attending a venue offering sexual services outside of office hours would be considered private by most Australians. Whilst a sauna is to satisfy physical needs, forums satisfy intellectual needs. By alluding to Dr Wijeysingha’s sexuality, Vivian Balakrishnan could be considered to have breached Dr Wijeysingha’s privacy.

Vivian Balakrishnan in his written statement released on Monday, 25 April 2011, tried to draw the line between Dr Wijeysingha’s personal and public life when he wrote:

“The issue is not Wijeysinha’s sexual orientation. That is a matter for him.”

This statement was co-signed by the rest of his team. It includes Christopher de Souza who spoke against the repeal during the Parliamentary debate in 2007.

In stating this, Vivian Balakrishnan differentiated between what is “in the public’s interest” and what “the public is interested to know”. Anyone who has ever read a tabloid will be able to tell you that what is usually of little “public interest” but “interesting to the public” is the sex life of public figures.

Vivian Balakrishnan is correct to distinguish between Dr Wijeysingha’s sexual orientation and his political agenda. It is definitely in the public’s interest to know an election candidate’s political position. Therefore, Balakrishnan could be said to have a strong public interest argument once he makes this distinction.

What emerges is that Dr Balakrishnan does not seem to have a problem with a gay being his colleague in Parliament. His position on the repeal of s377A is less clear. As for the majority of the public, it is clear that they are not interested in the private life of Dr Wijeysingha.


It is now clear that Singaporeans, in general, makes a distinction between the private and public life of a person, at the workplace. This includes parliament. Therefore, we can say that Singapore is ready for an openly gay MP, now. He will be judged on his merits and not sexuality.

As a lawyer, I have one big problem with this.

S377A carries a maximum sentence of 2 years. Article 45(1)(e), Constitution of Singapore, disqualifies someone who has been in prison for more than a year. The Constitution is the supreme law of the land. It is also a living document. Like universal suffrage in America, it should be interpreted with the times.

To solve this problem, we will have to repeal s377A.

Or would amending the Constitution be the easier route to take?

I have a compulsory licensing paper for a BioEthics workshop, which will take place at the end of June. Therefore, I will not be writing for June. For July, I would like to discuss about workplace equality issues. It will be interesting if you can send in questions relating to discriminatory practices at the workplace. 

Until then, remember, most Singaporeans think it is fine to be gay and it does not reflect your working abilities. Therefore, choose one colleague to say that you are proud of who you are. 

Bon Courage!

George Hwang

The Lawyer Is In is a monthly column. In the columns, George Hwang will answer questions posed by readers on subjects such as personal and civil rights, workplace issues, discrimination, immigration, sexuality, lasting power of attorney and estate planning. To submit a question, email editor@fridae.com. Responses will be made by placing your question (without identifying you) in an upcoming column, and answering it there. We regret that questions cannot be answered privately.


Reader's Comments

1. 2011-05-16 20:37  
I was doing fine with the article until the very last statement.

What in the world did he mean by, "Therefore, choose one colleague to say that you are proud of who you are."

Is he referring to coming out to a colleage, and then using that colleague to testify (if needed) that I'm proud of being a gay me?

Or, to whom should the colleague make that statement? And, for what purpose?
2. 2011-05-16 21:43  
post 1 - he just missed out a word, he meant "to say to". It's common in Singapore.
3. 2011-05-16 22:58  
I think M Ravi should write something as such. That combination of both George's idea and Ravi's will turn out to be a strong argument as whole.
4. 2011-05-17 02:48  
I want to make a few points. If Dr Vincent wins a seat, it's even stronger an evidence that the society has changed and become more tolerant.

Now, there are plans within Dr Vincent's party (SDP) and another opposition party (NSP) underway to co-operate. If this should happen in the next General Election, then Dr Vincent's chances of winning should increase drastically. SDP appeal to the English-speaking segment of the electorate, while NSP, to the Chinese-speaking one. If both parties could tap on each other's appeal, they should perform much better. SDP has Dr Vincent, an eloquent, charismatic orator, and TAN Jee Say, an Oxford PPE graduate, who worked as former secretary to a former Deputy Prime Minister and senior economist. NSP has Nicole Seah, who has become a celebrity- politician, two Cambridge scholars and senior civil servants, and a Chinese-speaking Secretary-General who has earned a good reputation as a down-to-earth family man. If they could work together, I am sure their chances of success in the next GE should be quite high. Time is on their side. With +/- four years to work the ground, this group of opposition politicians who appeal to a comprehensive variety of segments---the young, the older, the PMET, the Eng-speakers, the Chinese-speakers-- of the electorate, should achieve a breakthrough in the next GE.

Having at least one openly gay MP in the parliament is an important assurance to the gay community that we are represented in the parliament. It also gives the gay MP the opportunity to demonstrate that gays, like all others, can contribute to the society and should be treated with respect and fairness. I hope that the SDP's plan to work with NSP will materialise soon and that their co-operation will bear fruits 5 years later.

The only two parties that I am aware of having declared support for the repeal of 377a are SDP and Reform Party (RP). I urge those of you guys who feel strongly that the gay voice needs more representation in the political arena to explore ways in which you could support SDP and RP so that our common goal of having more MPs who openly support equality towards the sexual minorities in the parliament can be realised sooner.

5. 2011-05-17 05:06  
I don't think defamation stands very well against Dr Vivian anyway, or else the same definition could be used by Missy Tin against anyone who broadcasted/commented on her "epics", which resulted in her current state of facing public ridicule...

In any case, sexual minorities were never a protected group in Singapore anyway. SG could risk polarising us, since our numbers are perceived to be too small to cause significant harm anyway, as compared to risking the ire of the Fundamentalist Christians and the more conservative gen.

The number game is more likely to be played when considering "national interest". In this case, it is not in national interest to advocate LGBT acceptance. Unless a national poll could be conducted to assess the level of acceptance. In a democratic country, you need tools like these to prove your point to the legislators. And this has to be done, before the next legislation revision.

Of course, I'm assuming there's still democracy in SG, looking at how oppositions are starting to get into the parliament with the mandates of the people. Perhaps try lobbying with the existing oppositions, so they at least revisit this issue in the parliament?
6. 2011-05-17 21:54  
If a PAP MP or minister says it, it is freedom of speech.

If an opposition MP or member (especially one targetted for the PAP's abuse like JBJ used to be or like CSJ and other SDP members are) says it, it is defamation.

That's the PAP that nows want to change and listen - "rehabilition" is really what is needed. And that's the marsupial nature of the Singapore judiciary.
Comment #7 was deleted by its author on 2011-05-20 04:12
8. 2011-05-20 00:18  
Fridae readers may be interested in the following letter I wrote to the Straits Times. Its editor acknowledged receipt but did not print it.

Dear Sir or Madam,

On 6 May 2011, the Singapore delegate had the unenviable position of trying to justify the Government of Singapore's treatment of gays and lesbians before the UN Human Rights Council.

While the police have been instructed not enforce the law that prohibits private consensual sexual relations between male adults of the same sex, the Government will not amend the Criminal Code out of deference to conservative values. Nevertheless, Singapore's representative maintained that gays and lesbians are protected from discrimination.

Canadian, British, Dutch, and French delegates remained unconvinced. Most of the countries with which Singapore likes to compare itself have legalized same-sex marriage or civil partnerships and provided same-sex partners with significant protections in such areas as employee benefits, pensions and immigration.

Singapore has shown the world that it is possible for people of
different cultures and religions to live in harmony. This has been
accomplished by holding high the rule of law and valuing the dignity of each person. It is time for these values to apply to gay people in
Singapore. And it is time for the laws to reflect those values.


Martin G. Padgett
former Director of Communications,
Canadian Human Rights Commission

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