"But, of course, ultimately, the Public Prosecutor exercises his discretion in deciding whether or not to prosecute, based on the particular facts of the case."

Ho was sketching out the intended scope of the newly enhanced Sections 298 and 298A of the Penal Code which deal with racial and religious hate speech.

Why is there a need for the government to update the laws in this area? As Associate Law Professor Tey Tsun Hang explained at a talk he gave on 23 Nov 2007, for many years, the police didn't have to deal with hate speech. The mass media was regulated through other means.

Racial riots in the Kallang area, Singapore, 1964

However, in the last 3 years or so, as blogging took off, there have been more and more cases of hate speech, especially in various youth forums, according to police sources.

Something needed to be done, opined Tey. "If we compare with Malaysia," which experiences much strident racial and religious speech, "there is a constant upping of racial and religious discourse."

This is something we'd want to avoid in Singapore, yet when the "racist bloggers" case came up in 2005, the police found themselves without appropriate laws to prosecute, and ended up relying on the very high signature Sedition Act for what is really a case of, in Tey's words, "naughty boys". [1]

 
The Penal Code

Clearly, a more calibrated approach was needed, and for this reason, Section 298 of the Penal Code had to be enhanced and a new Section 298A added. With the amendments in place, these sections now read thus:

Uttering words, etc., with deliberate intent to wound the religious feelings of any person.

298. Whoever, with deliberate intention of wounding the religious or racial feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, or causes any matter however represented to be seen or heard by that person,

shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.

Promoting enmity between different groups on ground of religion or race, and doing acts prejudicial to maintenance of harmony

298A. Whoever ––

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, knowingly promotes or attempts to promote, on grounds of religion or race, disharmony or feelings of enmity, hatred or ill-will between different religious or racial groups or communities; or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious or racial groups or communities, and which disturbs or is likely to disturb the public tranquility,

shall be punished with imprisonment which may extend to 3 years, or with fine, or with both.

As you can see, the difference between Section 298 and 298A is that in the former, the offence is one of wounding the feelings of a person while the latter is concerned with words and acts that risk group conflict. Section 298 prescribes a lighter maximum sentence of 1 year while 298A's maximum is 3 years.

During question time that followed, I asked whether ethnicity and national origin would be covered by the revised Sections 298 and 298A of the Penal Code. As it is, we're beginning to see hate speech directed against foreign workers and new migrants. We have Singaporean Indians holding very negative views about new migrants from India. We have Singaporean Chinese mouthing off at new arrivals from China. I heard of an incident where a group of Bangladeshi workers were badmouthing Indian foreign workers sharing the same dormitory.

The consensus of the law academics in the room was that as worded, the law doesn't seem to encompass ethnicity and national origin. While potentially a judge could construe "race" to include them, it's unlikely, since a principle of criminal law is to apply meaning narrowly. [2]

Many other countries' hate speech laws include ethnicity, national origin, cultural markers, etc within their ambit. It's striking that Singapore's does not, despite our civil servants having spent 3 years relooking at the Penal Code.

"The fellas who drafted our law should not get any bonus this year," suggested Prof Michael Hor half-jokingly.

 
So where does this leave the Sedition Act?

Now that the Penal Code has been enhanced, "what is the role of the Sedition Act?" asked Tey. "Is it to be confined to political speech? Is it meant for really seditious, politically motivated hate speech?"

Unfortunately, it is hard to answer this question, since "if we look at the history of the employment of the Sedition Act, research yielded nothing in the last 3 decades. There were no prosecutions under this Act during this time until 2005."

 
Maintenance of Religious Harmony Act

Assoc Prof Tey next spoke on the Maintenance of Religious Harmony Act in the second half of his talk. Sketching its genesis, he said this law came out of the so-called "Marxist Conspiracy" of 1987, which in Yawning Bread's opinion, is still an event that nobody is quite sure that they understand. Sixteen people were arrested in one night under the Internal Security Act, alleged to be conspiring to overthrow the government under some religious cover.

In fact, a year before that, "the Internal Security Department (ISD) had issued a report saying that Singapore faced the threat of overzealous proselytisation by various religious groups," noted Tey.

After the arrests, the matter dragged on and became highly public "because there were allegations of torture and subsequent litigation." This exacerbated religious tension considerably.

As a result, the government realised that dealing with religious groups is something that should be done in a quieter manner, and so the Maintenance of Religious Harmony Act (MRHA) was born.

The MRHA is a very different animal from either the Sedition Act or the Penal Code in that its thrust is preventive. Its most striking features are:

• It comes under the Internal Security Department, not the Attorney-General's Office;
   
• It operates by empowering a minister to issue a restraining order on anyone, whether a religious authority figure or a lay person;
   
• Proceedings are secret;
   
• It would be an offence if the person breaches the restraining order (fine up to S$10,000 or a jail term up to 2 years for first offence);
   
• No judicial review (i.e. court challenge) is allowed for any orders and decisions made under the MRHA.

(a) causing feelings of enmity, hatred, ill-will or hostility between different religious groups;

(b) carrying out activities to promote a political cause, or a cause of any political party while, or under the guise of, propagating or practising any religious belief;

(c) carrying out subversive activities under the guise of propagating or practising any religious belief; or

(d) exciting disaffection against the President or the Government while, or under the guise of, propagating or practising any religious belief.

The person can thus be ordered to stop addressing, whether orally or in writing, any congregation or members of the religious group, and to stop editing, publishing or distributing any material.

A minister's restraining order needs to be confirmed by the Presidential Council for Religious Harmony within 30 days of the date of issue, and by the President within 30 days of the Council endorsing the order. All these deliberations are to be held in secret.

How many restraining orders have been issued under this Act since its enactment? Nominated Member of Parliament Thio Li-Ann asked Ho Peng Kee this question in February this year. Ho's answer was:

No Restraining Order has been issued since the Maintenance of Religious Harmony Act was enacted in 1990. We came close to invoking the Act on several occasions to stop local religious leaders from mixing religion with politics and putting down other faiths. These religious leaders stopped their activities after they were warned by ISD. [3]

Singapore's Supreme Court - not needed for the Maintenance of Religious Harmony Act

At question time, many of the academics present expressed discomfort with the fact that judicial review was disallowed for the MRHA. Tey himself said that without judicial review, "there would be no elaboration on the clarity of where to draw the line."

He observed that even though the Act was "meant to operate stealthily", it doesn't mean that judicial review was out of the question. Certain court proceedings can be sealed from the public, for example hearings involving the Official Secrets Act.

Alternatively, proceedings of the Presidential Council for Religious Harmony can be made more transparent. Of course, this would entail some degree of disclosure to the public, which may heighten tensions. But it is not obvious that such consequences need follow. "More likely, the real reason," suggested Tey, "is a distrust of the electorate."

The government may feel that "the electorate cannot be relied upon to be discerning enough."

Michael Hor was more critical. In his view, "the MRHA is extremely subversive of criminal law -- there's no trial, no crime...."

© Yawning Bread