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