Constitutional law Criminal justice Criminal law Right to freedom of religion (Article 15) Right to freedom of speech and expression (Article 14) Uncategorized

“Everyone should feel safe in Singapore”: The new offences of inciting violence and hatred | Symposium on the 2019 MRHA Amendments | By Daryl WJ Yang

Daryl WJ Yang serves as the Managing Editor of the Singapore Public Law Blog. He graduated with a Bachelor of Laws (First Class Honours) and a Bachelor of Arts with Honours (Magna cum laude) with a minor in Anthropology from the Faculty of Law and Yale-NUS College at the National University of Singapore.

(Cover image by juanwa from Pixabay)

In April 2019, Law and Home Affairs Minister K Shanmugam delivered a ministerial statement on restricting hate speech to maintain racial and religious harmony in Singapore. Defined as “all forms of expression which spread, incite, promote, or justify racial hatred, xenophobia, or other forms of hatred based on intolerance”, the Minister emphasised that hate speech can result in “deep social divides” and “increase people’s prejudices, feelings of being threatened, and propensity to violence”.

Later that year, Parliament passed the Maintenance of Religious Harmony (Amendment) Act which expanded the Government’s arsenal of legislative levers to address hate speech. A new s 17E introduced two new offences relating to inciting violence on religious grounds against any person or group as well as inciting violence against religious persons or groups. In addition, the existing prohibition against the incitement to hatred against religious persons and groups under s 298A of the Penal Code was ported over to a new s 17F.

In his Second Reading speech, Minister for Home Affairs K Shanmugam emphasised that s 17E is “even-handed” because it offers protection to both religious and non-religious groups and members of those groups. In a subsequent Facebook post emphasising this principle of even-handedness, the Minister said that the Government’s clear position was that “everyone should feel safe in Singapore” and “the law is same for all”. However, as Daniel Wong noted in his piece, a closer look at ss 17E and 17F suggests that this may not be an entirely accurate characterisation: the law is not completely the same for everyone. Instead, the new provisions continue to afford greater protection for religious persons and groups.

First, despite the Law and Home Affairs Minister’s recognition that hate speech can dehumanise a targeted group and normalise violence against them in his ministerial statement, non-religious groups continue to enjoy no protection from the incitement to hatred under the new s 17F. Second, while inciting violence generally was already prohibited by s 267C of the Penal Code and was punishable with a maximum imprisonment term of 5 years, s 17E now imposes a much higher punishment of up to 10 years’ imprisonment in two particular scenarios where the incitement to violence is i) motivated by religion or ii) targets religious persons or groups.

According to Senior Parliamentary Secretary to the Minister for Home Affairs Sun Xueling, the enactment of s 17E “sends a strong signal that the weaponisation of religion to urge violence or force to be used against any person is unacceptable in our society”. However, it remains that this new legal regime affords religious persons and groups stronger protection from any form of incitement to violence, whether it was religiously motivated or not. In contrast, non-religious persons and groups enjoy this stronger protection only where the incitement was religiously motivated.

This article first contextualises ss 17E and 17F in the broader legislative landscape before discussing the differences between the offence of inciting violence and inciting hatred. Finally, it considers why non-religious groups may have been excluded from the protection from the incitement to hatred afforded by s 17F.

The legislative landscape prior to the MRHA amendments

The new s 17E and s 17F of the MRHA are neither the first nor the only legislative enactments that criminalise the incitement to violence or hatred. Inciting violence was and continues to be prohibited under s 267C of the Penal Code and is punishable with up to 5 years’ imprisonment. In addition, s 5 of the Protection from Harassment Act (POHA) prohibits provoking the use of violence against another person an offence either by making a threatening, abusive or insulting communication or by publishing identifying information about that person, which is punishable by up to 1 year’s imprisonment. The new s 17E imposes a higher punishment of up to 10 years’ imprisonment where such violence is motivated by religious grounds or where violence is urged against a religious person or group.

Furthermore, promoting feelings of ill-will and hostility between different classes of the population in Singapore constitutes a seditious tendency under the Sedition Act and may attract up to 3 years’ imprisonment. However, it has been suggested that sedition laws should be reserved for regulation of the vertical state between the individual and the State rather than horizontal relationships between individuals or groups within the State.[1] Though earlier prosecutions relied on the Sedition Act to prosecute individuals for causing offence to religious groups, subsequent prosecutions have employed s 17F’s predecessor provisions, ss 298 and 298A of the Penal Code, instead which impose the same maximum punishment of 3 years’ imprisonment.[2]

The new s 17F does not materially change the scope of protection against incitements to hatred as there remains no legislative prohibition against the incitement to hatred other than the Sedition Act where such incitements are targeted at groups that are not distinguished by race or religion.

In summary, the table below lays out the relevant laws relating to the incitement to violence and hatred in Singapore:

Table 1: An overview of the laws relating to incitement to violence and hatred in Singapore

The elements of the new offences under ss 17E and 17F

Section 17E contains two distinct offences in four sub-sections: s 17E(1) and s 17E(2) makes it an offence to incite violence on religious grounds against a person and group respectively while s 17E(3) and s 17E(4) makes it an offence to incite violence against a religious person or religious group respectively.

There are two types of prohibited conduct under s 17F: the inciting of feelings of hatred against a religious group under s 17F(1) and s 17F(3), and the wounding of religious feelings or insulting of another person’s religion under s 17F(2) and s 17F(4). There are two provisions for each prohibited conduct because they govern different actors: s 17F(1) and s 17F(2) regulate the conduct of religious leaders while s 17F(3) and s 17F(4) regulate the conduct of laypersons and impose an additional requirement that the incited feelings of hatred would threaten the public peace or public order.

The table below summarises the elements of the new offences under ss 17E and 17F, including the type of prohibited conduct and the attributes of the victims:

Table 2: An overview of the new offences under sections 17E and 17F

Distinguishing between the incitement to hatred and incitement to violence

There is often an impalpable line between inciting hatred and violence as the Law and Home Affairs Minister acknowledged in his ministerial statement since hate speech can dehumanise a targeted group and normalise violence against them. Nevertheless, they remain distinct offences and past cases involving prosecution for such offences have made clear the differences in the type of conduct that distinguishes them.

In Public Prosecutor v Yue Mun Yew Gary,[4] the accused had posted a Facebook comment containing a link to a Youtube video depicting the assassination of Egypt’s former President, Muhamad Anwar al-Sadat, on 6 October 1981 during Egypt’s annual Victory Day parade. The accused’s accompanying comment read: “We should re-enact a live version of this on our own grand-stand during our national’s parade!!!!!!

The High Court upheld the District Court’s conviction and observed that the word “incitement” is defined as “to instigate, to move to action, to rouse, to spur or to stimulate vigorously into action by, as a prime example, making an inflammatory speech”. This contrasts with a mere threat by a person to commit violence themselves, such as in a 2016 case involving a man who had posted on Facebook asking for other users to “give me the permission to open fire” on the lesbian, gay, bisexual, transgender and queer (LGBTQ) community. He was prosecuted under the POHA for making a threatening, abusive or insulting communication and was fined $3,500.

In contrast, in earlier cases under the Sedition Act, the offence of inciting feelings of enmity, hatred or ill-will seems to have imposed a very low and ambiguous threshold of causing offence. For instance, in Public Prosecutor v Koh Song Huat Benjamin,[5] the court held that the Sedition Act delineates a “redline on the ground” by imposing two “basic ground rules”: first, “the right of one person’s freedom of expression must always be balanced by the right of another’s freedom from offence, and tampered by wider public interest considerations”; and second, “each individual living here… owes it to himself and to the country to see that nothing is said or done which might incite the people and plunge the country into… strife and violence.”

Accordingly, what is prohibited is any speech or conduct that is considered offensive by another group that may provoke them to respond with virulence or violence. This low threshold is congruent with what the Law and Home Affairs Minister articulated in his ministerial statement that the legislative framework prohibits not merely hate speech but also offensive speech.

Non-religious groups’ lack of protection from the incitement to hatred under s 17F

Though s 17E protects all groups – both religious and non-religious – from the incitement to violence on religious grounds, s 17F only protects religious groups from the incitement to hatred. Despite the recognition by parliamentarians that hate speech is dangerous, it was not expressly addressed during the Second Reading why non-religious groups were excluded from the protection afforded by s 17F.

One possible reason is the fact that s 17F’s predecessor provisions under the Penal Code were specifically religion-related offences. However, this may not be an adequate explanation for the exclusion of non-religious groups from s 17F in light of the prevailing parliamentary discourse on hate speech. In his ministerial statement on hate speech, the Law and Home Affairs Minister used the Holocaust as an example of how hate speech can “mobilise a population to commit terrible atrocities”. He also emphasised the impact of hate speech in dehumanising the targeted group and normalising their discrimination and oppression, which demands that the Government “intervene early to prevent such hate speech from being normalised”. Given that these consequences apply equally whether hate speech is targeted at religious or non-religious groups, the exclusion of non-religious groups from the protection afforded by s 17F seems odd.

An exchange between NMP Assoc Prof Walter Theseira and Minister Shanmugam hints at the real reason behind the narrower scope of s 17F. In his speech, Assoc Prof Theseira observed that while the primary aim of the MRHA is to protect religious harmony, he also asked the Minister to “have regard to protecting social harmony”.

Specifically, he highlighted that the “alarmist and unaccommodating” language used by some religious leaders who preach against the repeal of Section 377A “create[s] real risks of discrimination or violence against these minority groups”.

In response, the Minister said that “we as a people should be very careful making public statements about what behaviour we expect from religious leaders”. However, he clarified that “those are matters where we certainly can talk to the religious leaders in a private setting”.

In his speech, Assoc Prof Theseira noted that the MRHA has been effective because it reflects a “shared consensus”. The Minister’s response suggests that there was a lack of consensus in expanding s 17F to non-religious groups because it may affect what religious leaders may preach to their followers, especially with regard to morally controversial issues relating to sexuality and family life.

This is not surprising since religious leaders and their followers have regularly raised concerns about the potential curtailment of their religious freedom that may result from the enactment of laws prohibiting hate speech or discrimination against the LGBTQ community.

“Everyone should feel safe in Singapore”

As Singapore has become more diverse in terms of not only racial and religious differences but also ideological and generational ones, the recent amendments were perhaps a missed opportunity to recognise and affirm the changing pluralism in our society. After all, as the Law and Home Affairs Minister acknowledged, everyone should feel safe in Singapore – not only from the direct incitement to violence but also the dehumanising effect of hate speech, which may ultimately lead to discrimination and violence itself.

Yet, these amendments continue to afford stronger protections from the incitement to violence to religious persons and groups while offering no protection to non-religious persons and groups from the incitement to hatred beyond the Sedition Act, which may not be an appropriate legislation to address the issue.

While the weaponisation of religion is indeed a troubling phenomenon that should be taken seriously, it should not come at the expense of making non-religious persons and groups feel less safe than those who are religious. More can be done to make everyone in Singapore feel safe, regardless whether they belong to a religion or not, and it is time to move beyond laws that privilege the protection of religious groups over others.

[1] Jaclyn Neo, “Seditious in Singapore! Free Speech and the Offence of Promoting Ill-Will and Hostility Between Different Racial Groups” [2011] 2 SJLS 351.

[2] See for instance Public Prosecutor v Koh Song Huat Benjamin [2005] SGDC 272 cf Public Prosecutor v Amos Yee Pang Sang [2015] SGDC 215.

[3] However, as noted above, it is questionable whether the Sedition Act should be employed to regulate the horizontal relationships between groups in Singapore.

[4] [2013] 1 SLR 39; [2012] SGHC 188.

[5] [2005] SGDC 272.

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