Constitutional law Right to freedom of religion (Article 15) Uncategorized

Symposium on the 2019 MRHA Amendments | An Overview of the 2019 MRHA Amendments| By Daniel Wong

Daniel Wong is a fourth year double degree student in Law and Liberal Arts at the National University of Singapore and Yale-NUS College. His research interests are in constitutional law and the intersections between law and other disciplines.

(Cover Image by Goran Babic from Pixabay)


Introduction

The Maintenance of Religious Harmony Act (“MRHA“)[1] was passed in 1990 and came into effect in 1992. The initial raison d’etre of the MRHA was set out in a white paper published in 1989.[2] The paper acknowledged the multi-religious, multi-racial, and multicultural reality of Singapore, which gave rise to the need for “[c]onscious efforts” to preserve harmony amidst the diversity.[3] Therefore, the MRHA was enacted to address conduct that harmed religious tolerance by conferring the Minister with powers to issue orders restraining such conduct, and to set up a Presidential Council for Religious Harmony (“PCRH“) to consider such orders.

Now, some 27 years later, the MRHA has been amended to “refresh [the government’s] tool box of legislative levers,” in response to the changing circumstances of today’s society.[4]

It is not the scope of this comment to discuss some of the more technical issues arising from amendments. Instead, this comment will cover the key changes to the MRHA and some related concerns.

Porting Over of Religion-Related Offences

One of the purposes of the amendments is to “consolidate offences involving religious vilification”.[5] To this end, the religious-related offences from the Penal Code (PC) were ported over to the MRHA.

The MRHA enacts two new criminal provisions: first, section 17E proscribes “knowingly urging the use of force or violence on religious grounds or against target persons/groups”; second, section 17F proscribes “knowingly engaging in conduct that incites feelings of enmity, hatred, ill-will or hostility, or contempt for or ridicule of, a target group, or that wounds the religious feelings of a target person”. These new provisions take the place of sections 295, 296, 297 as well as the religious aspects of the sections 298 and 298A of the PC, which would be accordingly repealed and amended. Due to the fact that the new provisions borrow the language of the old ones—specifically, the ‘wound[ing]’ of ‘religious feelings’, issues plaguing Section 298 persist with the new offences.[6]

New Protections for Non-Religious Groups

It is noteworthy that the new sections 17E(1) and (2) allow for action to be taken against a religious person/group who attacks a target person/group on religious grounds. It was made clear that the latter person/group may be “made up of atheists, individuals from a specific racial community, who share a similar sexual orientation or have a certain nationality or descent like foreign workers or new citizens”[7] (henceforth referred to as other minority groups’). Members of the LGBTQ community have been heartened that the community has been explicitly recognised for the first time as being in need and worthy of legal protection.[8] The protection is also timely given the current section 377A challenge that has just been heard in the High Court,[9] which may spark conflict between pro-LGBTQ and anti-LGBTQ camps.

However, the protection of these other minority groups has to be caveated by the fact that they are less protected than religious groups. The former can only seek vindication when violence is urged against them, while the latter may have recourse simply because their religious feelings have been wounded. Furthermore, while religious groups are protected against both religious and non-religious groups, the other minority groups may only seek vindication when the offending person/group has urged violence against them on religious grounds.[10] Indeed, this is unsurprising given that the amendments are meant to address the potential for religion to be weaponised[11] and not to introduce hate speech legislation for the general protection of other minority groups. The greater protection of religious groups is also justified by the fact their constitutional recognition,[12] and the lesser protection of the other minority groups by their lack thereof. Nonetheless, it may be easy for religious groups to escape prosecution under the new amendments by simply framing their call to violent action in non-religious language.[13] The forthcoming article in this symposium by Daryl WJ Yang will offer a further discussion on the new sections 17E and 17F, and whether they sufficiently protect different groups in Singapore.

Expanded Powers to Make ROs and Increased Oversight over Foreign Influence

To counter the increased threat of weaponized religiosity, the amendments empower the state to make ROs under more circumstances.

First, presently, the Minister may make a restraining order against a religious person/group where the Minister is satisfied that the person has committed or is attempting to commit certain acts that may cause religious disharmony.[14] The amendments expand this to also include the situation where the Minister is satisfied that the religious person/group is committing or is likely to commit those acts.

Second, where now the Minister is required to give the person against whom the RO is proposed to be made and the head or governing body of the religious group notice of the intention to make such order, and to give them 14 days to make representations,[15] under the amendments such notice would not be required.[16]

Third, the amendments empower the making of ROs against religious persons/groups so as to counter foreign influence over the affairs of religious groups.[17]

In addition to strengthening the powers to make ROs, the amendments also include additional safeguards to militate against foreign influence. The new section 16B requires religious groups to disclose foreign affiliations to a competent authority through an annual foreign affiliations report. In addition, the new section 16C requires that religious groups disclose the composition of its governing body in a key management report. The requisite information in this report would include the identity, nationality, amongst other particulars of every individual who is or becomes a member of the governing body of the religious group and of every responsible officer[18] of the religious group. There is also a general prohibition against non-citizens and non-permanent residents holding positions as responsible officers of the religious group,[19] and a requirement that more than half of the total number of seats in its governing body be held by citizens.[20] Accordingly, new offences have been set out for the contravention of these requirements.[21]

Concerns have been raised that these amendments would constitute a ‘heavy-handed’ and ‘controlling’ management of the Singapore’s religious landscape.[22] In response, Minister for Home Affairs K Shanmugam appeared to suggest that, notwithstanding the increased power to make ROs, community-centric and non-legal means of resolution would be preferred.[23]

Indeed, the present MRHA’s utility lies not so much in its legal sanctions—no ROs have been issued since the Act came into force. Instead, the MRHA has been described to have an “educative” and “deterrent” function.[24] Framed in a more theorized manner, the MRHA has been described to be valuable as a legal background against which more informal and reconciliatory means of conflict resolution may operate.[25] Hence, these amendments enhancing the powers to make ROs may be seen as bolstering the existing legal background, and intensifying the “signalling effect” of the MRHA in response to the increased weaponisation of religion in the current years.[26]

In other words, should the government continue to employ their current approach of using the MRHA, alongside soft constitutional instruments[27] and the norms they engender, to find nonjudicial solutions to religious conflicts, the amendments should pose no real impediment to the religious freedom guaranteed in Article 15 of the Constitution.[28] In the same vein, though new requirements limit foreign leadership, the government seems willing to make exceptions where there are no security concerns. For example, where a religious group serves primarily foreigners who live and work in Singapore.[29]

Nonetheless, one may wonder whether such legislation may enable a future government that favours a harder approach to make ROs too freely such that free speech may be unduly chilled, or to enforce leadership requirements too rigidly such that foreigners are effectively deprived of their constitutional right to religious freedom.[30]

Community Remedial Initiative

One of the key additions in the amendments is the Community Remedial Initiative (CRI)—and agreement between the Minister and an alleged offender for the latter to undertake remedial actions or activity to promote religious harmony in Singapore. This may include a public apology or the taking part in community programmes at the alleged offender’s expense.[31] As mentioned above, the government has taken non-legal actions to resolve religious disputes. Thio argues that these actions have evolved into certain protocols that “[standardize] desired patterns of action”—and now constitute a kind of public ritual. This ritual usually involves the “offending and offended parties [taking] center stage, while the legal framework and watchful government recede to the background and reemerge only after the reconciliatory public ritual is successfully executed to ratify the settlement.”[32]

The inclusion of the CRI represents a formalisation of such public rituals. However, while formalised, it should be acknowledged that the CRI remains voluntary.[33] This is important given that the efficacy of public rituals in the maintenance of religious harmony is grounded on an alleged offender’s ability to voluntarily take steps to mend ties. If an alleged offender is simply coerced into doing so, the symbolic value of the action that is undertaken loses its meaning, and the alleged offender may be deemed insincere.

The formalisation has may have certain benefits. First, it signals a continued commitment of the present government to pursue reconciliatory methods of religious dispute resolution, as well as ensures that the baton would not be dropped by a future government or appointed Minister.

Second, it brings the hitherto informal dispute resolution method under the purview of legislation—and in turn under the oversight of some degree of administrative law. In the past, the utilization of public rituals as opposed to more legal solutions to religious disputes was completely in the discretion of the relevant authorities. The inclusion of CRIs into legislation may ensure that there is some legislative backbone to the remedial actions that is undertaken by the parties, and that religious parties are treated with parity when entangled in disputes. Nevertheless, a wide ministerial discretion is writ large since the provision states that the “Minister may offer… [CRI]”, under the given circumstances, rather than the “Minister shall offer”. It may therefore be hard to imagine an aggrieved alleged offender succeeding in an administrative action against a Minister’s decision not to offer CRI in lieu of prosecution.

Conclusion

All in all, given the socio-political and religious climate of the world today, the MRHA amendments are much welcomed. Our small nation-state should be commended for the way it has dealt with religious diversity thus far, and it is my hope that the amendments would carry this success into the future. Towards that end, though the amendments potentially include both hard and soft methods for the resolution of religious disputes, it is hoped that the government continues to address these conflicts with proportionate responses that encourage reconciliation between parties, rather than overly penal ones that may deepen religious wounds.


[1] Cap 167A, 2001 Rev Ed Sing (MRHA).

[2] Maintenance of Religious Harmony White Paper (White Paper, Cm 21, 1989) (MRH white paper).

[3] ibid, para 13.

[4] Senior Parliamentary Secretary to the Minister for Home Affairs Sun Xueling in Maintenance of Religious Harmony (Amendment) Bill Second Reading 7 November 2019, vol 94 (Second Reading).

[5] Explanatory Statement in Maintenance of Religious Harmony (Amendment) Bill 25/2019 (MRH Bill).

[6] ibid.

[7] ibid.

[8] See eg ‘New legislation protects LGBTQ community from religiously motivated violence but law is ‘same for all’’ Today Online (Singapore, 14 October 2019) <https://www.todayonline.com/singapore/new-legislation-protects-lgbtq-community-religiously-motivated-violence-law-same-all> accessed 30 December 2019.

[9] See eg ‘Sexual orientation cannot be wilfully changed, say lawyers fighting to repeal Section 377A’ The Straits Times (18 November 2019) <https://www.straitstimes.com/singapore/sexual-orientation-cannot-be-wilfully-changed-say-lawyers-fighting-to-repeal-section-377a> accessed 30 December 2019.

[10] The new section 17E, see section 14 of MRH Bill.

[11] Senior Parliamentary Secretary to the Minister for Home Affairs Sun Xueling in Second Reading.  

[12] Art 15(3) of the Constitution of the Republic of Singapore 1965 (Constitution).

[13] However, it should be noted that other Penal Code Cap 224, 2008 Rev Ed Sing provisions such as Section 267C may be employed to deal with this. The provision states that “[w]hoever… communicates any electronic record, containing any incitement to violence or counselling disobedience to the law or… likely to lead to any breach of the peace shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with both”.

[14] Section 8(1) of the MRHA.

[15] Section 8(4)–(6) of the MRHA

[16] Explanatory Statement in MRH Bill.

[17] ibid; see the amended Section 8(1A).

[18] ‘Responsible officer’, for a religious group means, “where the religious group is a body corporate, the person for the time being holding the office of chairman, managing director or company secretary of, or any position analogous to any of those offices”. MRH Bill.

[19] The new section 16D, see section 13 of the MRH Bill.

[20] The new section 16E, see section 13 of the MRH Bill.

[21] The new section 17, see section 14 of the MRH Bill.

[22] Nominated Member of Parliament Anthea Ong in Second Reading.

[23] Minister for Home Affairs K Shanmugam in Second Reading

[24] Member of Parliament Christopher de Souza in Second Reading.

[25] Thio Li Ann, ‘Irreducible Plurality, Indivisible Unity: Singapore Relational Constitutionalism and Cultivating Harmony Through Constructing a Constitutional Civil Religion’ [2019] GLJ 1007, 1018.

[26] See eg Minister for Home Affairs K Shanmugam in Second Reading.

[27] See generally Thio Li Ann, ‘Relational Constitutionalism and the Management of Religious Disputes: The Singapore ‘Secularism with a Soul’ Model’ [2012] OJLR 1.

[28] Indeed the religious freedom guaranteed may be derogated from should public order mandate it under Art 15(4) of the Constitution.

[29] Senior Parliamentary Secretary to the Minister for Home Affairs Sun Xueling in Second Reading.

[30] Art 15 of the Constitution confers the freedom of religion to “[e]very person”, which includes foreigners.

[31] Explanatory Statement in MRH Bill.

[32] Thio (n 25) 1028.

[33] Non-completion of CRI activities is not a criminal offence, see Explanatory Statement in MRH Bill.

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