expressly or impliedly incited public disorder by encouraging unlawful action.22 This leaves the question of whether and how section 3(1)(e) of the Act should be read in determining whether a publication has a seditious tendency unanswered. The implications of Article 15 (the right to profess and propagate one’s religion) were also not discussed in the case. The right is not unlimited, and Article 15(4) provides grounds upon which the right may be qualified, among them is “public order”, which is arguably satisfied by the prevention of religious violence. Moreover, for a more complete understanding of the constitutional context behind the Sedition Act and its interpretation, one must note the existence of what has been termed by Thio as “soft constitutional laws” (“SCLs”) in Singapore.23 These SCLs are comprised of “regulatory instruments and mechanisms of governance” implicating “some kind of normative commitment” independent of “binding rules or in a regime of formal sanctions”.24 The 1991 Shared Values White Paper25 has been argued to function as a quasi-constitutional hermeneutical tool,26 and a form of SCL.27 Of the five shared values listed, the first, “nation before community and society above self ”, and the fifth, “racial and religious harmony”, are particularly relevant in considering the place of the Sedition Act in Singaporean Law.28 SCLs enhance the interpretation of law beyond the narrow focus on just our constitutional text. Thio argues that SCLs regulate state-citizen relationships and “promotes a national identity through a form of constitutional patriotism in aid of non-liberal or communitarian democratic values in racially and religiously divided societies”.29 This is pertinent to the Court’s interpretation of the Sedition Act and the understanding of fundamental rights not as absolute trumps but defeasible interests, a contrast to more liberal societies. Despite the existing constitutional safeguards, Singapore’s judicial approach towards the constitutional rights of citizens remains highly restrained. Interpretation of constitutional rights are said to take place within its own four walls and not in the light of analogies from other countries.30 Further difficulties arise when one considers the range of conduct which appear to fall within the ambit of the Sedition Act: A comparison between Koh and Ong demonstrate the scope of actions that may be caught under the Act, and the difficulties of the “seditious tendency” test, within which the intention of the accused to offend is irrelevant, and only knowledge of the seditious material is taken into consideration. In Koh, the accused had posted a blog post containing “highly inflammatory and insulting” material.31 On the other hand, in Ong, the seditious material (religious tracts) was not made by the defendants, and the couple were distributing it with the intention only to propagate their faith.32 While the accused did not possess an intention to injure the religious feelings of another, the Court was willing to find from facts 22 Ong (n 7), para 45. 23 Thio Li-ann, ‘Constitutional ‘Soft’ Law and the Management of Religious Liberty and Order: The 2003 Declaration on Religious Harmony’, (2004) Sing JLS, 414. 24 Anna DiRobilant, Genealogies of Soft Law, 54 Am J Comp L 499, 499 (2006). 25 Maintenance of Religious Harmony Act White Paper Cmd. 21 of 1989. 26 Benedict Sheehy, ‘Singapore ‘Shared Values’ and Law: Non East versus West Constitutional Hermeneutic’, (2004) 34 HKLJ 67, 73. 27 Thio Li-ann, Soft Constitutional Law in non-liberal Asian Constitutional Democracies (2010) 8 IJCL 4, 766. 28 MRHA White Paper (n 25). 29 Thio (n 27). 30 Chan Wing Cheong and Michael Hor, Introduction Constitutionalism and Criminal Justice (2013) 25 SAcLJ 651, 653. 31 Koh (n 6), para 11. 32 Ong (n 7).
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surrounding the case that the accused couple had been “made a conscious and deliberate decision not to investigate further” and had thus been wilfully blind, legally satisfying actual knowledge and hence could not use the defence available under section 6(2) of the Act.33 The mental element of the offence today appears to be unclear, wide and over-inclusive. It also lacks legal certainty to which society can rely upon. It is therefore argued that the Act and its related case precedents create an unsatisfactory legal environment today. JUSTIFICATIONS AND SHORTCOMINGS OF THE SEDITION ACT Offence Supporters of the Sedition Act would justify it on two grounds: firstly, the prevention of offence to individuals of other beliefs, and secondly, the prevention to the disruption of social order. Firstly, on the ground of offence, under the strict limits theorised in Mill’s harm principle – “that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”34 – it is argued that a person’s whose conduct is deplorable and is frowned upon when judged by others would naturally suffer a disadvantage in society’s treatment towards him, and therefore offence should not be a reason to criminalise conduct.35 Despite this, Mill’s definition of harm remains broad and it is difficult to divine a clear and meaningful definition of offence in his work. It is useful to contrast Mill’s argument to Joel Feinberg’s argument that offence stands as a good reason to criminalise.36 It is put forth that if “mediated by balancing tests” in a “very precise way”, the offence principle provides a plausible reason to criminalise so as to protect offended victims.37 An adjudicatory balancing process from Koh was indeed applied by the court in Ong, although it is argued that the state of law remains problematic. Firstly, while the Sedition Act refers only to race and “classes of people”, Ong determined that religion would fall within these categories.38 This conflation of race and religion in both Koh and Ong, and the similarity and interchangeability of the Sedition Act and section 298A of the Penal Code calls into question the former’s place in the “latticework” of law we have today.39 Secondly, offence as a justification and the focus on and manner in which the Court today examines the “seditious tendency” of material leaves the law today in want of legal certainty. Generally, the principle of legal certainty is that the law must provide those subject to it with the ability to regulate their conduct. In its decisions concerning the Act, two competing factors appear to be balanced by the Court: the constitutional right of one to express his religious belief against the right of another to be protected from religious offence.40 With regards to the latter, it must be noted that there is no common law or constitutional right protecting against such offence, and it is surprising that such an interest can be determined to trump or 33 ibid., para 51. 34 J S Mill, On Liberty (1849). 35 ibid. 36 J Feinberg, The Moral Limits of the Criminal Law Vol 2: Offense to Others, vol. 2 (OUP 2003), 20. 37 ibid., 176. 38 Ong (n 7). 39 Koh (n 6). 40 Thio Li-Ann, Contentious Liberty: Regulating Religious Propagation in a Multi-Religious Secular Democracy [2010] Sing J Legal Stud 484, 507.