Yawning Bread. 8 September 2009

Proscribing seditious and hate speech

    

  

 
Ong Kian Cheong, 50, and his wife Dorothy Chan, 46, will soon be starting their eight weeks' jail term. They were convicted under the Sedition Act for mailing Chick Publications literature, specifically, the tracts The Little Bride and Who is Allah? to Muslim recipients.

 

Chick Publications is a 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. Even in the US, it is highly controversial and many mainstream Christians object to the way it goes about its mission.

Singapore's Sedition Act defines sedition in broad ways, going further than the original meaning of the word 'sedition', which is any act that incites rebellion against a government. The law defines "seditious tendency" thus:

Seditious tendency. 

3. ­(1) A seditious tendency is a tendency ­ 

(a) to bring into hatred or contempt or to excite disaffection against the Government; 

(b) to excite the citizens of Singapore or the residents in Singapore to attempt to procure in Singapore, the alteration, otherwise than by lawful means, of any matter as by law established; 

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Singapore; 

(d) to raise discontent or disaffection amongst the citizens of Singapore or the residents in Singapore; 

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Singapore.

Ong and Chan were found guilty through the limb (e). By their actions, they were said to be causing offence to Muslims, thus creating ill-will between classes, undermining civil peace in society.

The intent of this law is similar to Sections 298 and 298A of the Penal Code.

Uttering words, etc., with deliberate intent to wound the religious or racial 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 3 years, or with fine, or with both.

Promoting enmity between different groups on grounds 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

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

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

The principle behind criminalising hate speech beyond a certain degree is sound. There is a larger public interest in not allowing anyone to deliberately provoke conflict between classes of people. Everybody suffers when civil peace breaks down.

The problem lies in both the wording of the laws and, arising from that, the way they may be implemented.

For example, the Sedition Act does not appear to require foreknowledge or intent to make the crime, and by any principle of justice, this seems improper. Section 298A is perhaps too narrow, restricting itself to race and religion. What about national origin, gender or sexual orientation?

Section 298 is the most problematic of all, in my view. It criminalises insult on a personal level, as opposed to group level. All it takes is for one person to say "You have wounded my feelings with respect to my racial or religious views" and hey presto, it's a crime.

The first issue I have with 298 is that the offence is outsourced to the subjective views of the listener. He himself could have kooky, unscientific, irrational views, e.g. that his race is superior to all others, his god is superior to all others, or that according to his religion, females should be subordinate to males and female genital mutilation is part of his covenant with his god. So long as he can claim that they are part of his racial or religious identity, is everybody else supposed to shut up?

The second issue I have is related. Does this not pull the rug out from under others' freedom of speech? This freedom is a critical asset to any society. It is the means by which a society reflects upon its habits and norms and cures itself of misguided beliefs, practices and injustice. The right to offend by speaking against prevailing ideas, whether held by few or many, is essential to the proper working of this freedom.

A slide put up by lawyer George Hwang (right) at a recent forum on censorship -- the event was part of Indignation, People Like Us' Gay/lesbian Pride season -- puts it succinctly: The freedom to offend, shock and disturb is fundamental to pluralism, tolerance and broadmindedness without which there is no democratic society.

Singapore, by contrast, takes the opposite view. While agreeing that pluralism, tolerance and broadmindedness are our objectives as a society, the route there is via censorship and the suppression and criminalisation of offensive speech. Enforced politeness is preferred over airing and learning.

Considering that we've made virtually no progress in the last 40 years in terms of privately-held racist views, and the increasing religious ghettoisation of our society, how can we say that such a policy works?

Is this tension between the need for civil peace and freedom of speech impossible to reconcile? Must one be at the expense of the other? How can we define hate speech in a way that is still consistent with, or at least, less antagonistic to, freedom of speech?

Another slide put up by Hwang pointed a way forward.

Hwang did not discuss the details of the case Kuhnen v Federal Republic of Germany, though I'm sure a web search is all that is needed if anyone is interested. Basically, Michael Kuhnen was a neo-Nazi (he was also homosexual) who was arrested for his views and activities. The case went all the way up to the European Court of Human Rights which ruled on whether it was lawful for Germany to proscribe neo-Nazi speech.

Outlining a matter of principle, the Court said that a state may ban hate speech since "absolute tolerance may lead to the tolerance of the ideas promoting intolerance, and the latter could then destroy the tolerance."

By extension therefore, proscription of hate speech is justifiable when it is used to defend democracy and others' freedom of expression. That is to say, speech that seeks to vilify a class of people in order that that class will be widely treated with intolerance, contempt and prejudice can be banned because such speech will have the effect of curtailing the civil rights of the targetted class. The latter's right to be full citizens of society, with access to equal, peaceful, suspicion-free interaction with others, including access to jobs, housing, education, medical care and participation in civic life, their right to dialogue with other sections of society with their views given due hearing -- all these coming under the rubric of tolerance -- will be infringed if vilifying speech is allowed to make headway.

 

About The Little Bride

Chick Publications' website is banned by the Media Development Authority of Singapore. If you try www.chick.com, you will get a nearly blank page unless you get around the proxy servers of internet service providers.

However, it does not take much effort to find an online version of The Little Bride.

It's a cartoon strip that says a number of things, chief among which are that the Prophet Mohamed is a paedophile and that the Prophet's teachings are false.

It also pushes creationism. "Jesus [yes, Jesus, not the Christian god] created the universe in six days," Susy, the protagonist, tells her friends, "not millions of years like our teachers tell us."

The claims are remarkably simple-minded. It says by way of proof that Allah is false because He "is not the God of the Bible." But duh? It claims that Mohamed is a charlatan while Jesus is the real thing because Mohamed's "body's still in the grave," while Jesus "rose up from the dead." Like wow.

Most outrageous is the claim that the Prophet was a pedophile. This claim is based on the Hadiths recounting that one of Mohamed's wives, Aisha, was nine when he married her.

I found on the web a translation that said:

"The Prophet engaged me when I was a girl of six (years). We went to Medina and stayed at the home of Bani-al-Harith bin Khazraj. Then I got ill and my hair fell down. Later on my hair grew (again) and my mother, Um Ruman, came to me while I was playing in a swing with some of my girl friends. She called me, and I went to her, not knowing what she wanted to do to me. She caught me by the hand and made me stand at the door of the house. I was breathless then, and when my breathing became Alright, she took some water and rubbed my face and head with it. Then she took me into the house. There in the house I saw some Ansari women who said, "Best wishes and Allah's Blessing and a good luck." Then she entrusted me to them and they prepared me (for the marriage). Unexpectedly Allah's Apostle came to me in the forenoon and my mother handed me over to him, and at that time I was a girl of nine years of age. (Translation of Sahih Bukhari, Merits of the Helpers in Madinah (Ansaar), Volume 5, Book 58, Number 234)"

(I make no claim about its veracity)

But a similar accusation can be made of the leading figures in Christianity. Jesus' mother, Mary, was about 13 when she was married off to Joseph. She had probably been betrothed to him at about age 8 or 9.

What we're dealing with here is the traditional social practice of Middle-eastern tribes in that era. Females were married off as soon as they reached puberty.

To use judgemental terms like "paedophilia" flies in the face of historical context.

 
At first sight, the difference in emphasis appears slight, but it is crucial. By this formulation, hate speech is not the words and actions that hurt feelings. It is not to be equated with causing offence. Hate speech is such words and actions that seek to isolate and denigrate a class of people, such that the targetted class will suffer a loss of civil rights and civic participation, thus undermining freedom and democracy for all.

In the light of this, examine the conviction of Ong and Chan. While a case may be made that Chick Publications' material constituted hate speech in the way Muslims and Islam are portrayed, it is perhaps important to note that Ong and Chan mailed the material to Muslims, not to third parties. They were clearly out to provoke and offend Muslims, but did their actions constitute an attempt to cause third parties to treat Muslims with contempt? This I think is debatable. For this reason, I find this case troubling.

On the other hand, if one considers Chick Publications' material to constitute hate speech, then surely, the importation -- Ong and Chan were said to have ordered the items online -- would constitute distribution of hate speech. Does it make any sense to say the production of material is wrong, but not the distribution of it?

Indeed, this is a very difficult issue, so all the more, I think, it is important for Singaporeans to discuss it. What do we mean by the term "hate speech"? Where do we draw the line between tolerable offensive speech and legally intolerable hate speech? The Kuhnen decision offers a good starting point in my view and I hope the discussion takes note of it.

© Yawning Bread 

 

 

 

By this measure, do the utterances of Thio Li-Ann et al targetting gay people, calling for their criminalisation and making other associations that heightens prejudice, constitute hate speech? Is the effect of her speech one of raising intolerance of and contempt for a class of people, thereby impinging on their civil rights?

 

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