equal the constitutional right of a citizen. With regards to the former, while an “attack” on the beliefs of another’s religion cannot be comfortably said to be merely “expressing” one’s religious belief, one must note that it is difficult to draw a clear distinction between an “attack” and an “expression” due to the mutually exclusive viewpoints of different religions: professing one’s religious beliefs often involves preaching that non-believers will suffer spiritual and eternal damnation. In the MRHA White Paper, the use of persuasion through pointing out the differences between religions was acknowledged.41 Proselytization of religion understandably leads to feelings of ill-will, and difficulty arises when one attempts to draw a clear and fair line at which the degree of offence caused is so grave that criminalisation is justified. Wong argues that the distinction between aggressive preaching causing grave offence and mere profession of one’s religious beliefs lies merely in mannerism and tone.42 From this, he argues that the law is ambiguous and requires a clearer distinguishing line.43 Arguably, the focus on so simple a test of “offence” in determining whether speech or publication has a seditious tendency is an inadequate method to justify the criminalisation of such conduct. Moreover, the degree of offence is often difficult to measure, and often varies based on the recipient’s subjective beliefs and opinions. Neo points out that it was “highly problematic” the Court in Ong appeared to rely on the testimony of the Muslim complainants, that they “were angry”,44 and the conclusions made by the police officer and the complainants that “the tracts have a tendency to promote feelings of ill-will and hostility between Muslims and Christians”.45 The Court of Appeal in Chng Suan Tze v. Minister for Home Affairs affirmed that “the notion of a subjective or unfettered discretion is contrary to the rule of law”, upholding the importance of legal certainty in adjudication.46 Outside of the courts, the Minister of Law, K. Shanmugam, has also expressed that Singapore is committed to the rule of law and recognised it as “a foundation of our society and key ingredient of our success”.47 In light of the above arguments, it is submitted that to justify the Act plainly on the ground that seditious material causes grave offence is unsatisfactory, as the subjective nature in which individuals of different temperaments and background take offence and the near-impossibility to ascertain a satisfactory degree of offence at which the law should begin to criminalise leaves the law today in want of legal certainty. Moreover, the flexibility afforded to the courts under this act is unwarranted when one considers the existence of section 298 of the Penal Code, which would satisfactorily penalise would-be offenders in similar circumstances of Koh. Public Order as Harm Public order as a justification is reflected in the common law of seditious libel, where reference is made clearly to the incitement of violence, creation of public disturbance, or disorder against the government.48 In Singapore, it is commonly put forth that race and religion pose the most important challenges to social 41 MRHA White Paper (n 25), para 16. 42 Ronald Wong, Evangelism and Racial-religious Harmony: A Call to Reconsider Tolerance (2011) 29 Sing LR 85. 43 ibid. 44 Ong (n 7), para 59. 45 Jaclyn Ling-Chien Neo ‘Seditious in Singapore! Free Speech and the Offence of Promoting Ill-will and Hostility between Different Racial Groups’ (2011) Sing JLS 351, 362. 46 [1988] SGCA 16. 47 K. Shanmugam, The Rule of Law in Singapore [2012] Sing JLS 357, 365. 48 De Libellis Famosis 77 ER 250 (1572).
order in Singapore and the success of the nation lies on its careful maintenance of its “fragile social cohesion”.49 Moreover, the fear of racial or religiously inspired violence is often reiterated in Singapore’s legislative process.50 It is argued that understanding violent public reactions as “harm” would allow the Act to be justified under Mill’s Harm Principle.51 “Public order” as a justification, however, may also be understood to be a merely arbitrary one. The Sedition Act criminalises the publishing of material on the basis of its seditious tendency. While this was only briefly considered in Ong, it was argued by the defence counsel there that section (3)(1)(e) of the Act must be read in light of Article 14(2)(a) of the Singapore Constitution, such that for the Act to be enforced against a person’s right to freedom of speech and expression, “the publication must expressly or implicitly incite public disorder by encouraging unlawful action”.52 Wong has advocated a narrow understanding of “public order” to mean the likelihood to provoke members of a race or religion to riot, or cause immediate threats to public safety, and ultimately violence.53 On his suggested interpretation of Article 14(2)(a) of the Singapore Constitution and section (3)(1)(e) of the Sedition Act, accused persons proselytising their faith like the couple in Ong should not be liable for the offence if the material in dispute did not have that effect on public order. His view is most strongly supported by section 9A of the Interpretation Act,54 which, following the case of Chee Siok Chin v. Minister of Home Affairs, necessitates a “generous and not a pedantic approach” of “public order”.55 Following this, one is then led to the broader question: to what extent may concerns over public order provide a satisfactory justification for the enforcement of a law which possesses the potential to seriously impede the expression of religion and opinion of citizens, as the Sedition Act does? One might begin with the fact that 83% of Singapore’s population profess a religious faith.56 In the MRHA White Paper, fears of offended religious groups’ “militant” reactions were raised.57 In this context, one may appeal to Mill’s harm principle again in justifying the Sedition Act – upon taking offence at such remarks, violent protests may arise, affecting the physical wellbeing of persons and property.58 Indeed, it appears that racial and religious violence remains a strong justification for the Act: the September 1964 race riots and the Maria Hertogh riots were cited as examples of what the decision in Benjamin Koh had hoped to deter.59 However, these examples have been criticised as an “obsessive hangover” by Wong, who further points out that the riots were exaggerated by foreign press, political influences from the Konfrantasi period, and the inefficiency of the Government of the time in handling the situation.60 Moreover, 49 Chan Sek Keong, Multiculturalism in Singapore the way to a harmonious society (2013) 25 SAcLJ 84. 50 Maintenance of Religious Harmony Act White Paper Cmd. 21 of 1989; Chan Wing Cheong and Michael Hor, Introduction Constitutionalism and Criminal Justice (2013) 25 SAcLJ 651. 51 Mill (n 34). 52 Ong (n 7), para 45. 53 Wong (n 42), 87. 54 Cap 1 2002 Rev Ed Sing. 55 [2006] 1 Sing LR(R) 582 (HC), para 49. 56 2010 Population Census: Demographic Characteristics, Education, Language and Religion <http://www.singstat.gov.sg/publications/publications-and-papers/cop2010/census10_stat_release1> (2010 Census), accessed 20 June 2015. 57 MRHA White Paper (n 25), para 13. 58 Mill (n 35). 59 Koh (n 6), para 6. 60 Wong (n 42), 95; Tom Eames Hughes, Tangled Worlds: The Story
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