Archive for freedom of expression

Fait Accompli: Singapore Again Upholds Section 377A Criminalising Homosexuality

Co-authored by guest contributors Paras Ahuja and Rahul Garg. 

Paras Ahuja is an undergraduate student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. 

Rahul Garg is an undergraduate student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

On 30th March, 2020, the Supreme Court of the Republic of Singapore in Ong Ming Johnson v. Attorney-General upheld the constitutional validity of Section 377A of the Singapore Penal Code, 1871. Section 377A punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The judgement marks itself as a regressive touchpoint in Singapore’s progression towards inclusiveness and equality. 

Article 14(1) (a) of the Constitution of Singapore guarantees every citizen the right to freedom of speech and expression. The petitioners in this case contended that Section 377A derogated this right by failing to recognize one’s sexual orientation to be a part of the term “expression” within Article 14. While interpreting the term “expression,” the court applied the rule of “ejusdem-generis”. The rule postulates that wherever there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in context of the specie term(s) (here, “speech”) and not in its widest possible construction. The court, upon application of this rule, observed that “expression” is therefore restricted only to verbal “speech” and excludes sexual identity of a person. It, therefore, held that the right to freedom of expression is encompassed within the right to freedom of speech, reducing the term “and expression” to redundancy and surplusage. 

We argue that that is an erroneous application of ejusdem-generis. It is settled law that ejusdem-generis should not be applied in a way that makes the usage of the genus term redundant in a provision. This is a fundamental principle of statutory interpretation pointed out in case laws citing Sutherland. The Singaporean court’s interpretation, on the other hand, renders the term “expression” otiose and goes against the principle that legislature doesn’t use words in vain. 

Additionally, the court relied on the marginal note of Article 14 [i.e. “Freedom of speech”, assembly and association] to ascertain the scope of the provision in order to buttress its holding that “expression” is subsumed within “speech”, since the marginal note mentioned only “speech”. This reliance conflicts with the Singapore Supreme Court’s former observation in the case of Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd, where marginal notes were held to be non-exhaustive and imprecise and therefore, not determinative enough of the true contents of a provision. 

The court, furthermore, conveniently maneuvered its way to protect Section 377A from the violation of right to life and personal liberty, enshrined under Article 9(1) of the Constitution. In refusing to include the protection of “homosexual-identity” within the scope of personal liberty, the court aligns its reasoning by saying that the right to personal liberty was not an absolute one, but was qualified. It stated that “unenumerated rights were not capable of specific protection.” However, this seems particularly faulty, as “personal liberty” by itself is an abstract right; it is a collection of rights involving several aspects of a person’s life and doesn’t guarantee any specific individual right singularly. In this context, the exclusion of “unenumerated rights” from the scope of personal liberty will leave it hollow and subject to arbitrary discretion as to its scope. 

In its reasoning, the court also observed that Section 377A does not criminalise a male homosexual for his “homosexual orientation”, but only for the actus reus consisting of performance of a homosexual activity with another man. The court additionally stated that a heterosexual man would be equally liable if he were to commit a homosexual act. This distinction between criminalising the “state of homosexuality” and the conduct, that is, the “homosexual act” is farcical and theoretical. This distinction fails as it renders the manifestation of the sexual identity impractical by punishing the conduct. Identifying the flaw in such an argument, the US Supreme Court in the case of Lawrence v. Texas noted that when the act that is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as criminal. 

The court, in its subtlety, eschewed from answering the question of whether or not the sexual orientation of a person is an immutable factor. The question of immutability was deemed central by the court since the granting of the right to life and personal liberty in this case was considered to be contingent on the recognition of sexual orientation as immutable. However, frustrated with overwhelming scientific evidence from both sides in this regard, the court eventually declared this question outside the realm of legal discussion, belonging rather to the area of scientific controversy. We argue that there is no relevance of a conclusive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is vacuity in the reasoning of the court as to why a chosen sexual orientation should not be entitled to the same constitutional protection in as much as an immutable sexual orientation would be, along the “born-with-it”/“it-is-my-choice” spectrum. Therefore, regardless of homosexuality falling anywhere between this immutability/choice spectrum, the larger human rights violation relates to the resultant stigma associated with criminalization. The judgment ultimately legitimises an assumed sense of normalcy which according to the court, is only heterosexuality. At the same time, it portrays homosexuality as an anomaly not protected by fundamental rights. 

The judgement, therefore, observes a false understanding of various provisions and judicial tools of interpretation, seemingly to achieve a predestined holding. The bench microcosmically imposes its own ideas of heteronormativity on the Singaporean society, which is not only upsetting, but also mistaken.

A Year After Jamal Khashoggi’s Assassination, The War On Truth Continues

By: Kyoko Thompson, staff writer at RightsViews

“A commission is coming from Saudi Arabia tomorrow; they have something to do in the Consulate. They will have something to do on my floor in the office.” – October 1 2018, 21:48

At 1:15 PM on Tuesday, October 2, 2018, Washington Post contributor and longtime journalist Jamal Khashoggi entered the Saudi consulate in Istanbul, Turkey, and was never seen again. His death was not the first of its kind. According to the United Nations, more than one thousand journalists have been murdered since 2006. Yet it drew international attention from governments and individuals alike, many of whom demanded justice. The events that followed challenged the limits of international law and U.S. foreign policy. One year later, an investigation yields more questions than answers, such as: What does justice for Khashoggi look like? Is his death a manifestation of a deeper, more insidious trend? And: What is the future of free speech in an era where authoritarianism and misinformation are not an outlier, but the norm?

 

“He has arrived.” – October 2, 2018; 13:13

 

In November 2018, Turkey shared audio of Jamal Khashoggi’s October 2nd visit to the Saudi consulate with Britain, France, Germany, Saudi Arabia, and the United States. In it, Saudi officials can be heard discussing Khashoggi’s imminent arrival and assassination. The recordings, obtained from inside the consulate itself, provide gruesome confirmation of what was already strongly suspected by journalists and politicians alike: Jamal Khashoggi was lured to the consulate under the false pretense of obtaining documents required for his marriage to then-fiancee Hatice Cengiz, and brutally executed, dismembered, and disposed of by Saudi authorities. 

Much of the narrative available to the public today is the result of the efforts of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Dr. Agnes Callamard—who, with the assistance of the recordings, consulate security footage, and Turkish authorities, was able to piece together the events immediately leading up to, and following, Khashoggi’s death. An expert in human rights, Dr. Callamard possesses extensive experience in the field, having previously worked with Amnesty International, Humanitarian Accountability Partnership (HAP), and ARTICLE 19. In December 2018, she began a six-month investigation that culminated in the release of her report on the inquiry into the unlawful death of Jamal Khashoggi at the 41st session of the Human Rights Council in June of this year. Her findings, which criticize the international response to Khashoggi’s murder—including the response of Saudi and U.S. officials—shed a harsh light on the consequences of free speech, and the limitations of international law. Her official opinion? This was a state-sanctioned killing. 

While Saudi authorities have continued to insist that Khashoggi’s death was a domestic matter, “I completely disagree with this analysis,” said Dr. Callamard at an event at Columbia Law School last month. On the contrary, she says, Khashoggi was murdered by fifteen Saudi officials—named in her report—“fourteen of whom in my opinion have worked together before.” And, while she did not assign individual liability, she did strongly assert that Khashoggi’s death “constituted an extrajudicial killing for which the State of the Kingdom of Saudi Arabia is responsible.” Moreover, the killing—and Saudi Arabia’s procedural and official response to it—violated multiple international laws, including the Vienna Convention on Consular Relations. According to Dr. Callamard, the impact is clear: this was a crime “of such a nature, in my view, that it qualified as an international crime, and therefore that it could lead to universal jurisdiction.” 

 

“How could this happen in an embassy?” – Jamal Khashoggi, October 2, 2018; 13:22

 

Khashoggi, who left Saudi Arabia in self-imposed exile in September of 2017, was a well known Saudi dissident and critic of Crown Prince Mohammad bin Salman. He claimed that the government had banned him from using Twitter and pressured his publishers to fire him; and in fact his column in Al-Hayat, a popular Arabic daily, was canceled earlier that year. Determined not to be censored, Khashoggi moved to the United States so that he might continue to write for the Washington Post. In an opinion piece shortly after, he wrote “I have made a different choice now. I have left my home, my family and my job, and I am raising my voice. To do otherwise would betray those who languish in prison. I can speak when so many cannot. I want you to know that Saudi Arabia has not always been as it is now. We Saudis deserve better.” 

Human Rights Watch has confirmed that Saudi Arabia has a history of stifling free expression. In 2015 alone, more than six writers and advocates were arrested and punished for peacefully expressing their opinions. According to Human Rights Watch, “One was sentenced to death and the others to lengthy prison terms. At least four were also banned from traveling abroad for five to 10 years.” Usually, the sort of opinions that cause pushback from the Saudi government are those that characterize it, or its leadership, unfavorably. Khashoggi, however, believed he was being silenced because of remarks he made at an event in November of 2016. At the event—a panel discussion at the Washington Institute for the Near East—Khashoggi warned that Saudi Arabia should be wary of a Trump presidency because his stances on the Middle East were contradictory, which wasn’t likely to change. Ironically, Trump has actually remained steadfastly supportive of Saudi Arabia since taking office—so supportive, in fact, that he turned a blind eye to Khashoggi’s murder.

Trump and Prince bin Salman in 2017

Nearly two months after Kashoggi’s disappearance and after weeks of seeming to avoid commenting on the incident, President Donald Trump finally announced that he was “standing with Saudi Arabia.” In many ways, this is not surprising; according to the Council on Foreign Relations, Saudi Arabia is a “critical strategic partner in the region,” and the countries’ cooperation in mutual business and security interests survived even 9/11.  In his statement, issued in November 2018, Trump cited mainly economic reasons—not the least of which was oil—for his continued support of a state that even the CIA concluded ordered the extrajudicial killing and dismemberment of a U.S. resident and Washington Post journalist. “After my heavily negotiated trip to Saudi Arabia last year, the Kingdom agreed to spend and invest $450 billion in the United States. This is a record amount of money. It will create hundreds of thousands of jobs, tremendous economic development, and much additional wealth for the United States.”

If Donald Trump was to radically diverge from the course set by previous administrations and stand against Saudi Arabia, one imagines that it would not be spurred by the untimely death of a journalist. He has, after all, shown little respect for journalists and their trade. Notorious for denouncing publications that describe him unfavorably, Trump has referenced “fake news” in his Tweets no less than 578 times since winning the 2016 presidential election—that’s once every two days. Perhaps even more appallingly, on October 24th, 2019, Trump canceled subscriptions to two publications that will henceforth no longer be delivered to the White House. White House Press Secretary Stephanie Grisham defended the decision, saying that “hundreds of thousands of taxpayer dollars will be saved” as the administration moves to force other federal agencies to cancel their subscriptions, as well. The publications that were banned? The New York Times and the Washington Post—two publications that frequently criticize Trump and his administration (the infamous September 2018 op-ed in The New York Times is a rather memorable example). 

Is it a coincidence that the very publication Jamal Khashoggi, a Saudi journalist whose government made numerous attempts to silence before murdering him in cold blood, contributed to is one which Trump himself has slandered and suppressed? Maybe. It is certainly eerie, though, that months before Khashoggi’s death, in February of 2017, the newspaper—which has not had an official slogan since its founding in 1877—changed its headline to “Democracy Dies in Darkness.” Washington Post associate editor Bob Woodward said it wasn’t so much a response to Trump as it was about “the dangers of secrecy in government, which is what I worry about most.” In fact, Woodward credits federal judge Damon J. Keith for the slogan. Keith wrote “Democracies die behind closed doors” in his 2002 ruling on Detroit Free Press v. Ashcroft, which centered around closing immigration cases off from the press and public if they were of special interest to national security. He continued, “The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately…When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” 

Judge Damon Keith passed away earlier this year, but his contributions to the law, civil rights, and free expression endure; and so do his parallels to today’s events. Because, you see, Judge Keith was famously sued personally by President Richard Nixon over his 1971 ruling against warrantless wiretaps—the sort of warrantless wiretaps used in the Watergate break-in a year later. Nixon, the president who used executive privilege to defy subpoenas, concealed information from Congress, and fired those that opposed him. The president whose close advisors were indicted for obstruction of justice. The president who was certain to be impeached in the House after a single, revelatory phone call. 

Free expression is a human right. It is protected in international human rights instruments such as the Universal Declaration of Human Rights,  the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, among a plethora of others. Its significance is explicitly described and protected in documents such as the Office of the High Commissioner for Human Rights General Comment No. 10, 11, and 34; not to mention the U.S. Constitution. So important is free expression, says the American Civil Liberties Union (ACLU), that without it, no liberty is secure; without it, “other fundamental rights, like the right to vote, would wither and die.”

There is no denying it: the United States is at war with information. Perhaps it always was. From Russia’s campaign to influence the 2016 presidential election to Mark Zuckerberg’s and Rupert Murdoch’s meetings with Trump officials, information is actively hidden, obscured, and weaponized by those in power at great risk to our Republic. And on the front lines of this battle are the warriors of free expression; that human right upon which so many others precariously stand. Warriors like Jamal Khashoggi—activists, advocates, and journalists. Courageous individuals who face the darkest of dark, where democracies go to die, and dare to turn on a light.

“The stout man with the gray goatee and the gentle demeanor dared to disagree with his country’s government. He told the world the truth about its brutality toward those who would speak out. And he was murdered for it.” 

– Karl Vick, Time Magazine, 2018 “The Guardians and the War on Truth”