Yawning Bread. November 2006

Hate speech law badly drafted


    

 

 

Among the many proposed amendments to the Penal Code is one that expands the scope of the law against wounding religious feelings.

Currently, Section 298 reads:

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

298. Whoever, with deliberate intention of wounding the religious 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, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.

The new draft is as follows with inserted words in a darker shade. It also includes a whole new section, 298A:

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, 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.

 
In the Consultation Paper, the government explained its reason for these changes thus
:

Arising from the case of the racist bloggers who were charged under the Sedition Act, we propose amending the Penal Code to provide another option to the Sedition Act, to charge such offenders in future cases. [The Ministry of Home Affairs] recommends expanding the scope of s.298 on "Uttering words, etc with deliberate intent to wound the religious feelings of any person" to cover the wounding of racial feelings as well.

In the Explanatory Note, the government explained why, although the Sedition Act already provided for this offence, they still wanted the Penal Code revised to cover it:

2. Offences Relating to Race and Religion

Sedition Act

The Sedition Act carries a very high signature. The proposed amendment provides for an alternative to handle such cases. Having a different option under the Penal Code will provide prosecutors with greater discretion to charge the offence under the most appropriate legislation and provision. This is because the circumstances of different cases differ. The range of punishment in these alternative provisions also differs. Hence, the Public Prosecutor, after examining the facts of the case, can decide the most appropriate statute to charge the offender. This approach is not uncommon as there are other examples Road Traffic Act or Penal Code; Employment of Foreign Workers’ Act or Immigration Act etc.

 
Racist bloggers

Most Singaporeans would recall the "racist bloggers" cases. Three young men (2 in one case and the third in a separate case) were charged last year under the Sedition Act, a law which criminalises any "act, speech, words, publication" that has a "seditious tendency".

A "seditious tendency" is further defined as that which would "promote feelings of ill-will and hostility between different races or classes of the population of Singapore." [1]

 

Nicholas Lim Yew, 25, and Benjamin Koh Song Huat, 27, were found guilty in September 2005 under the Act for posting racist comments over the internet. Lim was jailed for a nominal 1 day and fined S$5,000. Koh was jailed for 1 month.

What started them off was a letter to the press in July the same year from a Malay woman asking why taxi companies did not demand that pet dogs be caged when transported in their vehicles. She said, "dogs may drool on the seats or dirty them with their paws", and that exposing Muslim passengers to possible contact with their saliva would violate their religious beliefs.

Pet lovers Lim and Koh got incensed and went totally overboard in ranting about Islam in their blogs and an online forum.

A month later, in October 2005, the third blogger was charged. 17-year-old Gan Huai Shi was likewise accused of making inflammatory remarks against Malays and Muslims over the internet. Pleading guilty, he was given a probationary sentence by the judge.

His defence lawyer told the court that Gan's feelings of ill will towards the Malay community could be traced to the death of his younger brother when he was only seven years old. His month-old brother had breathing difficulties and needed to be taken to the hospital in a taxi, but a Malay couple refused to let them go first despite his mother's pleas. By the time the family got to the hospital, his brother was already dead. His mother was subsequently diagnosed with post-natal depression.

Why were they charged under the Sedition Act? It appears that the prosecution felt that their rants were directed towards Malays rather than Muslims -– I don't know how they came to this conclusion myself, because I thought otherwise -– and thus the only option available to them was to use the Sedition Act, since that law clearly mentions that it's an offence to ""promote feelings of ill-will and hostility between different races."

The Penal Code's existing section 298 leaves out "race", and only speaks of "wounding the religious feelings" of others.

Now, it seems, the government wants to close this gap, by adding "racial feelings" to the Penal Code's section 298.

 
Prophet Mohammad cartoons

Some Singaporeans have speculated that the expansion of Section 298 and the addition of Section 298A might have been prompted by the saga of the Prophet Mohammad cartoons [2], though no mention of this was made in either the Consultation Paper or the Explanatory Notes. While the cartoon controversy didn't become an issue locally, the authorities might not have felt confident that if it did, the existing Section 298 of the Penal Code would be applicable.

The existing phrasing of Section 298 refers to words, sounds, gesture or objects. Would a cartoon be any of these?

Thus, you would notice that the new Section 298A speaks of spoken and written words as well as "signs or by visible representations or otherwise" -– conceivably including cartoons, symbols and the like.

Its second part, which criminalises "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", is even broader. Its applicability is not based on any enumerated kinds of actions, but on the effect of whatever action the accused has taken.

 
Too broad, yet too narrow

This is where Singaporeans with an interest in civil liberties should become concerned. Is it too sweeping? How does this relate to the constitutional protection for freedom of expression?

You might argue that it is in the nature of legislation that it cannot be too precise; if it did it might be terribly unwieldy. In practice, much must depend on prosecutorial discretion and good judicial judgement. Indeed that is so, but then the question arises: in the Singapore context, how much faith do people have in prosecutorial discretion and judicial independence?

Do we have faith that political considerations would not influence the process?

At the same time, it's too narrow. Why is the law only interested in hate speech that is directed at racial and religious groups? What about hate speech directed at other groups, e.g. foreign labour, women, or HIV-positive persons?

I would have preferred the law to refer to

such words or acts that deliberately intend to promote enmity, hatred and ill-will, or incite injury towards any class of persons identifiable by one or more characteristics in common, such as race, ethnicity, national origin, religion, gender, sexual orientation, physical or medical condition.

 

 

 

Islam and dogs

Most Muslims in Singapore, I am told, adhere to the Syafie school, which teaches that dogs are dirty and that Muslims should not touch them.

I saw somewhere on the internet that other schools, e.g. the Malik school, say it is OK to touch and even keep a dog. How reliable that information is however, is something I cannot determine.

Then there are interpretations that fall somewhere in between, e.g. you can touch a dog, but must wash off its saliva; you can own a dog but not let it enter the house, and so on. See for example, this page from the Islamic Concern website. 

 

I believe my one sentence above takes care of everything. This is due to a difference in approach between the government and me. The government seems to be reacting to various scenarios and designing a band-aid for every scenario that they come up with. As for me, I've taken a simple principle – combatting hate speech – and written a concise, but reasonably flexible statement. I believe my version has the added benefit of covering more bases. The government's version protects against some kinds of hate speech but neglects others.

If tomorrow, some cleric starts calling all scantily-clad women prostitutes deserving of rape, or all those who have had an abortion murderers deserving of assassination, are we going to run back to the drawing board to design another band-aid in our Penal Code?

How many trips are we going to make to the supermarket?

* * * * *

 

Nor do I see the point in having 298 and a 298A that in turn includes parts (a) and (b). These appear superfluous. They seem to cover the same thing, but slices it ever finer.

 

Conceptual problem

The above examples indicate another conceptual problem. Very often, it is those who claim the righteousness of their own religion who initiate an attack on other groups of people. The incident with the Mufti of Australia [3] -- the one who referred to women without headscarves as "uncovered meat" -- must have come to readers' minds by now, while I'd add that hate campaigns against gays and lesbians are often sustained by church groups.


If something like this is legal in Singapore, shouldn't the reverse message be legal?


Would such a sign be covered by our proposed law? The protestor could argue that the "enemy of Islam" is not a racial or religious group, and thus Sections 298 and 298A would not apply to him.
    
  

In such cases, attacks on a religion are more of a counter-punch, when the target group or its allies defends itself.

What our Penal Code does is to stay silent on the punch but come down hard on the counter-punch. A religion can attack a target group (so long as it isn't another religion or race), but when that group shouts back, it risks breaking the law. Is this just? 

More importantly, is this the wisest course? Shouldn't we deal firmly with the guy who initiates the fight, rather than focus on the guy who retaliates?

The Singapore government may feel that they have religious groups under their thumb anyway, so the scenario of religionists getting carried away and mounting a campaign against other groups of people is not realistic. They have various levers, formal and informal, to keep bishops, imams and various preachers in check.

I think they are mistaken. Not long ago, it was revealed that there were plenty of free-lance religious teachers in Singapore, often calling themselves "ustaz", who offer private religious instruction. What message they send out is anyone's guess. There are also numerous independent churches, usually centred on a charismatic leader, who are not affiliated with any governing denominational body. I very much doubt if the government has any leverage over them.

The conceptual problem probably arises from tunnel vision. The government sees only race and religious controversies, and that is perhaps due to our history. I'm not suggesting that race and religion aren't sensitive issues, but they are not the only divides on which hate can be built. We might as well take this opportunity to craft a better law that covers more bases.

* * * * *

For all these reasons, I think the proposed new Sections 298 and 298A are poorly drafted. If you agree with me, I encourage you to write to Reach Singapore (formerly known as the Feedback Unit) to tell them what you think.

© Yawning Bread 


 

 

 

 

Attacking Christian creationism

On the mailing list Young Republic, the hottest thread is currently "Why (fundamentalist) Christianity is dangerous". If you're the sensitive type, you might say, aha, such an accusation that this religion is dangerous wounds the religious feelings of some Christians. Charge them all under Section 298 of the Penal Code!

The fact though is that the thread is about some Christians' attempt to lay their theory of creationism thick upon us, to discredit evolutionary biology and indirectly, the very foundations of scientific rationality. The discussions in Young Republic are first class, full of meaty arguments and citations. There are no rants.

But as the law stands, these rebuttals could be construed as criminal. On the other hand, the creationists who seek to damage the education we provide our young and Singapore's hope of building a science-based future -- they get off scot-free.

As a libertarian you might say, freedom of speech includes the freedom to spread word of creationism. Fair enough. But then shouldn't freedom of speech include the freedom to criticise the religion that promotes creationism?

How does one square that with the Penal Code as written or proposed?

 

Spotted on the Molly Meek blog:

Gay Sex = Minority behavior that is offensive to majority = illegal

Certain races and religions = minority that needs to be protected from the offensive majority = people can be charged under the Sedition Act

 

The proposed changes to the Penal Code are open to public consultation until 9 December 2006.
Link to government's feedback form.

 

Footnotes

  1. Other articles touching on the Sedition Act are Hate speech and seditious white elephants and The Sedition Act  
    Return to where you left off

  2. Essays touching on this cartoon controversy are Danish cartoons stir controversy and  Danish cartoons and the doggiesite.  
    Return to where you left off

  3. There's a sidebar that gives a little background about the al-Hilali incident in Sydney, in the essay The niqab and the freedom of religion.
    Return to where you left off

  4. Other essays touching on other proposed amendments to the Penal Code are Pseudo repeal under cover of smoke? and But if you can't rape your wife, who can you rape?

 

Addenda

None