Tuesday, April 07, 2015

On hate speech law and governance—A reply to Carlton Tan

The Amos Yee case has roused netizens to revisit the issue of hate speech law (Section 298) in Singapore. Over at Asian Correspondent, Carlton Tan alleges three problems surrounding this law: it is unnecessary and redundant, cannot be consistently applied, and liable to be abused.

The hate speech law may be problematic but I cannot agree with Carlton that those purported three are the problems.

While I do not know if Carlton is legally trained, I have to say that I am not. So my opinion is opened for correction by those who are.

Unnecessary and Redundant?
Carlton states that the purpose of Section 298 is “meant to protect individuals from feeling offended,” and this was “never Parliament’s intention” as its purpose is to “safeguard racial and religious harmony” and “preserve the social fabric of the country”.

He sees the upholding of this law as “mollycoddling” citizens and an “insult to the forbearance of religious groups” as it implies these groups will cause social unrest when offended, which will not happen.

Carlton also points out that Section 298A is meant for the same purpose, so “Section 298 is redundant.”

In short, Carlton is saying that since Section 298 and 298A share the same objective, then the former has to go as it underestimates citizens’ integrity.

I see three problems with Carlton’s view. First, as I understand them, Section 298 and 298A do not have the same objective. There are five laws (Section 295, 296, 297, 298, and 298A) under Penal Code Chapter XV that address “Offences Relating to Religion or Race.” 

Section 298 is against “Uttering words, etc., with deliberate intent to wound the religious or racial feelings of any person.” I will be charged under this law if I intentionally mock someone’s religion or race. For instance, the statement: “Joshua’s religion makes people stupid, and the fact that he is Chinese explains it.”

Section 298A is specifically against “Promoting enmity between different groups on grounds of religion or race and doing acts prejudicial to maintenance of harmony.” I will be charged by this law if I provoke hostility between factions of the society based on religious or racial reason, which I may or may not offend either group. Perhaps an example is someone saying, “Group X and group Y killed each other in the past; they are sworn rivals, so they should continue killing each other here in Singapore,” without him being in either group.

Section 298 prevents individual from hurting others’ religious and racial sentiment, while Section 298A attempts to avert (what Samuel Huntington calls) “clash of civilizations” which the instigator may or may not offend any individual’s religious or racial sentiment. Carlton could not see their difference and so think that Section 298 is redundant.

Again, I have to emphasize that I am not legally trained, so my interpretation is opened for correction.

The other reason why Carlton thinks that Section 298 is unnecessary is because it underestimates citizens’ and religious groups’ integrity. I think this is a misperception of the rule of law.

It is not the concern of law whether it underestimates anyone’s integrity. If it is, then the very existence of the legal system is as guilty because all laws assume the possibility of violation. For instances, law against rape assumes the possibility that people could rape, law against murder assumes the possibility that people could murder, etc.

If as Carlton argues, that law is insulting to people because it implies that people could commit crime, then should we abolish laws against rape and murder because they imply that people could rape and be homicidal? I am sure no one in their right mind would want this. Therefore it is erroneous to argue that a law is unnecessary because it underestimates citizen’s integrity.

Thirdly, Carlton’s optimism on religious groups’ forbearance ignores the potency of religious violence. As much as religion is a source for personal wellbeing and peace, it is also a powerful ideological basis that fuels much violence affecting the world today.

Many major religions have an inherent logic that can be interpreted to justify violence. As the renowned sociologist of religious violence Mark Juergensmeyer remarks, 
“Although it may seem paradoxical that images of destruction often accompany a commitment to realizing a harmonious form of existence, there is a certain logic at work that makes this conjunction natural.”
(Mark Juergensmeyer, Global Rebellion: Religious Challenges to the Secular State, from Christian Militias to al Qaeda [USA: University of California Press, 2008], 213.)
The religious potency for violence is one thing that no government or citizen of every country can afford to treat lightly. It requires insurmountable dose of optimism on Carlton’s part to be able to dismiss this at a time when Islamic militants are beheading people in Syria, violent monks are inciting hostility in Sri Lanka, Christian militia are rampaging Central African Republic, Hindus are persecuting religious minorities in India, and Muslim separatists are orchestrating mass-stabbing in China.

Cannot be consistently applied and liable to be abused?
Carlton alleges that Section 298 is problematic because it cannot be consistently applied. He writes, 
“It’s impossible to legislate and police against every single instance when they are. Instead, only those who come under the national spotlight and become the subject of multiple police reports get prosecuted — people like Yee who posted his video in the middle of the mourning period for the late Lee Kuan Yew and became the subject of over 20 police reports… because this law cannot be equally enforced against every violator, it is also liable to be abused. Prosecutors have a certain degree of freedom to choose who to prosecute and who not to, but it cannot make its decision on political grounds, because the prosecutor is there to serve the public interest, not the Prime Minister’s interest (when they come into conflict).”
I think the inconsistency is not so much in the application of the law, but in the public’s reaction towards contemptuous act that is based on religious and racial ground.

In other words, it is not that the authority does not consistently apply Section 298 on cases of similar nature. Rather, the public does not react consistently to cases of similar nature, such as making more than 20 police reports on all known cases and not only on Amos Yee.

If the public has responded consistently to all known cases of similar nature by making more than 20 police reports on each, then the authority would probably have attended to every case consistently. This is rightly so because the authority exists for the interest of the public (as Carlton also recognizes), and so they act based on the public responses.

Hence this is not a case where the law is inconsistently applied for political interest, as Carlton alleges. Rather, it is the inconsistency of public response to every case of similar nature that led to the authority’s variegated response to each. If the public has responded consistently, then the authority will respond accordingly.

On Government’s security measure
Lastly, Carlton accuses the government for “systematically inculcated a sense of vulnerability in Singaporeans and sought to establish its right to rule on that basis—as a protector of racial and religious harmony.”

As I have commented on the Asian Correspondent site, I admire Carlton for his optimism in society’s social resilience. Such optimism is scarce in view of what is happening around the world, not to mention with Singapore’s neighbours in the present. However, turning such optimism into a critique of governance is perhaps overstretching it.

I worked on a cruise ship previously. All crews are required to go through safety training lessons from time to time. During one lesson I learned that there was a Surveillance Department on board the ship. Its purpose was to monitor every public areas of the ship through hundreds of surveillance cameras. Working closely with the department was the Security Department, consisted of 50 to 100 security officers, of which many of them were former Ghurkha soldiers. I remember one officer said during briefing, “The Surveillance and Security Departments are very important in this ship. All it needs to sink the ship is only one person tries something crazy.”

The officer was telling us about the safety measures of our ship which was the size of about 3 football fields, with an average of 2,600 passengers and 1,600 crews.

I wonder what kind of safety measure is needed for a country the size of Singapore with 5,000,000 occupants?

If there is little space for optimism in trusting the 4000 plus people on board will not try something crazy, what more for a country?

It is therefore a mistake to think that we can lower our gut when society seems to be more civil now. That was the mistake Norway has paid with 77 lives in 2011. Regardless of the degree of peace a society is currently enjoying, all it needs is one Anders Behring Breivik to try something crazy.

One could dismiss the Norway’s case as an exception. Yet it is precisely for such exception that the law is there to safeguard against. If it is the norm, then it will be a state of emergency already.

Therefore Carlton’s point that the government has been cultivating a sense of vulnerability to establish its rule needs to be rethought. After all it is the job of all governments to constantly be aware of possible and actual vulnerability of their own country and take the necessary pre-emptive measures.

No doubt these measures can be interpreted (as Carlton has) to establish the government’s rule. Yet to ask the government not to administer them is to ask them not to do their job. Even one life is too much for the government to risk.

Carlton writes well. He should continue writing. What he should not do is to apply for a job in the Surveillance or Security Department of a ship. In this case, accusing the government for its “rule by anxiety”.

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