13 September 2005

Seditious, Seditious

It is midnight as Mr Wang begins typing this. He really should be in bed. Or working on his book project. But here he is, composing yet another post on the Case of the Seditious Bloggers.

Mr Wang is feeling ... a bit frustrated. He has just poked around the blogosphere. He gets the impression that many bloggers out there simply do not understand the situation. So Mr Wang feels duty-bound to forgo his sleep again, and help to cast some light into the Collective Darkness of the Blogospheric Superconscious. Well, God bless Mr Wang's noble heart.

Where to begin? First, the name of the statute - the Sedition Act. Woah, soooooo scary. Don't be silly, children. The name in itself tells you nothing. What matters is the substance of the law in it. The word sedition has all kinds of nasty connotations but if you really want to know whether the law is scary, you have to look at the actual provisions.

Under the Sedition Act, first-time offenders can be fined up to S$5,000, or jailed up to three years, or both. As maximum sentences go, this is not particularly scary. The maximum sentence here is roughly the same as that for simple theft (the least serious form of theft), which is punishable with up to three year's imprisonment and fine (no limit specified).

Also note that in practice, maximum sentences are rarely imposed. For example, although the maximum sentence for simple theft is three years and a fine, the reality is that first-time thieves usually get a fine and no jail time at all (if they do get a jail term, it is typically for a day or two).

Maximum sentences are reserved for the most severe kind of cases that you would be able to imagine, for each type of offence. Most of the time, maximum sentences are just theoretical, something that SPH journalists always bother to tell you about, but which hardly happen in real life.

Also Mr Wang wishes to point out that it is not as if the Sedition Act suppresses all speech about race and religion. Mr Wang does not think that any blogger who wishes to engage in serious, sincere debate and discussion about social issues has any real reason to fear the Sedition Act. The Act itself says:
"Any act, speech, words, publication or other thing shall not be deemed to be seditious by reason only that it has a tendency:

(a) to show that the Government has been misled or mistaken in any of its measures;

(b) to point out errors or defects in the Government or the Constitution as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; [or]

(c) to persuade the citizens of Singapore or the residents in Singapore to attempt to procure by lawful means the alteration of any matter in Singapore
..

if such act, speech, words, publication or other thing has not otherwise in fact a seditious tendency."


Mr Wang is aware, of course, that bloggers may respond, "But Mr Wang, all this is pretty subjective, isn't it? Who is to say what constitutes serious, sincere discussion, and who is to say when such discussion will cross over into sedition?"

Well, of course there is an element of subjectivity. But are you unnecessarily frightening yourself? Do the facts of the present case, as we currently know them to be, warrant alarm on your own part? We already know that the two bloggers had advocated ethnic cleansing. One posted a doctored picture clearly designed to insult the Muslim religion. This is really extreme. Were YOU planning to go that far, in your "serious, sincere" discussion?

If so, then be afraid. Be very afraid. And when you too are charged under the Sedition Act, Mr Wang will clap his hands in glee. You deserve it.

On a separate note, Randy Kluver, NTU's well-known Internet expert, wonders why the Maintenance of Religious Harmony Act was not used instead. I am too lazy to poke around and refresh my memory of how the MRHA works. But from what I can recall, I think it is much more preferable to proceed under the Sedition Act.

If I recall correctly, the MHRA has provisions whereby the Minister can directly order action to be taken against the offending persons. As in the Internal Security Act, the MHRA excludes the courts (and the prosecution) from the process. From a civil rights perspective, this is not ideal. It is far better to have the bloggers charged under the Sedition Act, and brought to trial in open court. There is more fairness and transparency.

Also, the MHRA deals with religion, not race. Whereas the bloggers' posts were offensive not just on religious grounds, but also on racial grounds. Thus the MHRA is just not completely right to deal with these bloggers. Whereas the Sedition Act, designed to deal with the promotion of hostility between "different races or classes of the population of Singapore", comes a lot closer to the heart of the matter.

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Useful Link

As usual for hot topics, if you want to know who's saying what about this topic in blogosphere, all you need to do is visit Singapore Angle.

16 comments:

ivan said...

MHRA s18
Decisions under Act not justiciable
18. All orders and decisions of the President and the Minister and recommendations of the Council made under this Act shall be final and shall not be called in question in any court.

you have a mighty fine memory... tips please... i've got my final year coming up....

Anthony said...

Mr Wang,

I agree that these two aren't exactly poster boys. It's a bit like using that Shanmugan dude to defend abolishing the death penalty.

That being said, I cannot help but think that it is precisely the government's objective - try two fall guys in open court, make their cases seem as socially abhorrent and irontight as possible...

...then watch bloggers scamper for their lives.

Here in California, this is the "chilling effects" argument. I submit that the Chinese probably thought of this way before Macchievelli - "Sha1 Yi1 Jing3 Bai3" - kill one to silence a hundred.

The trials of the two bloggers are not defensible -of themselves- but what of the larger questions of what the Sedition Act ACTUALLY covers and whether bloggers are running afoul of it.

I don't buy the argument that Singapore often runs - leave legislation wide, let the prosecutors decide (I know you will have a different view from I about this). To me, that is an out-and-out usurpation of the power of the legislature to decide what is de facto legal and what isn't.

- said...

Anthony,

shall jut say I agree with you...
but just say, what if, what if, what if, what if (i repeat the what IF)

The westminister model of government (quasi-seperation of legislation, executive but full seperation from the judiciary) in Singapore is not really working out real fine..

and sometimes, sometimes, on a case to case basis, i feel sympathy for the view that we should let prosecutors decide - after all, they are human -
compared to say, the "strict letter of the law"

From some where up north of california

cheers

Anthony said...

Singaporeclassics,

That's -exactly- why I feel that there's a problem with prosecutorial discretion - this should have been addressed at the legislative level. It creates three problems

(1) law is transparent, discretion is not

(2) it breeds disrespect for the rule of law

(3) discretion cuts both ways - rational and irrational.

Mr Wang Says So said...

Anthony

Quite a number of things I would want to say in response to your comments - but perhaps another time would be better - I'm not so keen to meander off into non-seditious areas at the present time.

I just wanted to point out that there is a huge difference between the Minister's powers under MRHA/ISA etc, and the prosecution's constitutional rights of discretion.

The prosecution doesn't have the power to lock people up. It only has the right to decide whether or not to prosecute people. If it decides to prosecute, it still has to prove its case in court.

So the courts act as the check on the prosecution's power. The courts require that the prosecution display proper, sufficient evidence to prove its case. The accused gets the right to challenge that evidence, and he can get his own lawyers to help him do that.

None of this happens in the MHRA. If the Minister didn't check the facts properly; if there were relevant factors which the Minister forgot to consider - there is no check on the Minister.

Next - assuming that the prosecution wins, the sentence has to be imposed. This is not up to the prosecution. This is up to the courts. And you know how the law operates. The court cannot pull sentences out of a hat. They have to look at similar cases with similar facts and decide the appropriate sentence. The judge cannot say, "I hate your face, so I'm giving you the max sentence." And there is the right of appeal. If the person appeals against his sentence, the judge is compelled to write out a detailed explanation of why he imposed the sentence that he imposed.

Whereas if the Minister under MRHA says, "I hate your face, so I'm locking you up for good," no one will be able to contest this - the Minister's comment wouldn't even be available on public record.

So I don't think it is quite correct to compare the prosecution's discretion to the Minister's MRHA/ISA powers.

- said...

Mr Wang,

I think
the fact that the PP has a lot of things on his side should be taken into account too...and you probably will know how easy the law and evidence favours the PP in almost every criminal suit..

furthermore, the Prosecution's discretion, might mean simply that the offender is charged under a "lesser" crime, and will not be subject to say a mandatory penalty on another "higher" charge.

of course, courts can revise the charge, but how often do they do that? I mean the difference in a 300(c) and a 299 is a matter of life and death.

the prosecution discretion (with the inevitable bargaining process) might be less transparent than is desired...

of course, this pales in contrast to the Minister's powers under the MHRA/ISA. but this does not make the choice of law by the prosecution more transparent (or right).

it is, in my opinion, still wanting..

this whole seditious circles stink

cheers

Recruit Ong said...

I know whose side the court is on. Remember just a few days ago the court supported the police in disallowing the pinoy murder suspect access to legal rights.

Mr Wang Says So said...

This is spinning off into irrelevant areas. But anyway, a few quick responses:

1. Sedition Act has no special presumptions like Misuse of Drugs Act etc. Prosecution will have to prove its case in the hard, old-fashioned way.

2. I don't think that there are "higher" or "lower" crimes under the Sedition Act (as opposed to, say, different grades of "robbery" under the Penal Code).

3. If you have the impression from newspaper reports that the prosecution always storms into court with a big bundle of powerful evidence, well, the reason is that AGC's general policy is to proceed only in cases where the DPP is very convinced of the person's guilt and has strong evidence to show it. What you don't see is the many, many cases that the DPP does NOT bring to court, because the evidence simply isn't that strong. DPPs generally don't like to anyhow, anyhow prosecute people on mere whim or suspicion.

4. Agree that the prosecutorial process can be improved and made more transparent. I think that Australia's model is a good model. However, I don't think that the present sedition case really highlights any deficiency in Singapore's system.

The Void Deck said...

Mr Wang

Kamsiah for explanation! hehe So that means fierce-sounding Sedition Act in terms of retribution-justice can be less serious than touch stranger-chabor's big boobs at Wine Bar when drunk. Or less serious than overstay on tourist visa and instead illegally work as Phua Chu Kang fix aluminuim window rivets in HDB flats. WTF? Wat is happening? Whack gahment time lor! Wooohoooo. hehe When gahment use Sedition Act we hoot them say they over-react. When we find out penalties for sedition not execution by firing squad but fine not more than $5k we oso hoot them for under-reacting!

Mr Wang Says So said...

Your non-aggravated, basic molest offence (section 354 Penal Code) attracts max sentence of any TWO of the following:

1. caning
2. fine (no limit specified)
3. imprisonment up to 2 years.

Because of the caning, your average molest case would be regarded in law as a much more serious offence than your average simple theft case.

Typical benchmark sentence for the average molest case (back when I was still doing criminal law) was 9 months imprisonment + caning.

Do stay away from the big boobs at the Wine Bar.

ivan said...

void deck: that scenario is only valid if the gov give face, and give you a rap on the knuckles after you hoot them jialat jialat...

there's still the ISA hor... dun play play...

Anthony said...

If I gave the impression that I was comparing prosecutorial discretion to ministerial discretion I apologise.

What I am trying to point out is that the Sedition Act is drafted widely and unnecessarily so. The common "antidote" wide legislation in Singapore that is "We can leave it to the prosecutors to decide who to prosecute".

Mr Wang, you correctly pointed out that a prosecutor's discretion is, in fact, limited. If someone complains about the law, things will HAVE to be done.

Hence, the issue I wish to invoke with prosecutorial discretion is this - wide legislation = bad. Prosecutrial discretion does not save wide legislation. Do away with wide legislation.

Mr Wang Says So said...

I'm not that sure whether Singapore's legislation is particularly "wide", compared to legislation in other countries.

You know that each piece of legislation necessarily has to be fairly general - it is intended to address a certain type of evil, but the evil may present itself in one hundred different ways in 100 different cases.

Eg the two bloggers, instead of posting their remarks on an Internet forum, could have done so by mass email; by distributing flyers into HDB flat mailboxes; by sticking up posters in public places; by passing printed messages to their colleagues; by snail-mailing every friend, relative and acquaintance they have; by making public speeches in Orchard Road; by incorporating their remarks into a play at a theatre; by incorporating their remarks into the form of a song; by printing the message on T-shirts; by carrying a placard and walking around in a park ...... etc etc. And the remarks themselves - there are infinite ways to insult a race or religion.

You know that it would not be possible to draft very specific legislation to specifically catch all these scenarios. So the legislation has to have some degree of generality and "wideness".

Also you might not realise it, but "wideness" does not necessarily help the prosecution. Wideness can make it more difficult for the prosecution to prove its case.

Example is the Prevention of Corruption Act - where the provisions are widely drafted. Just about anything, conceivably, could be "corruption". If I buy you lunch, in the hope that one day you will do business with me, this conceivably could also be "corruption". However, the wideness also makes it easy for the judge to say, "No, I don't think this is it."

See for example, "seditious tendency". One part of the definition says, "tendency to arouse discontent and discord" etc. This is so ambiguous that the judge could jolly well say to the prosecution -

"Where's the evidence? I don't see any such tendency in these messages. Sure, they are racist, but where do I find any people who, after reading these messages, tend to feel discontent and angry with Malays? Can you show me any such people? I don't really think that the messages had any such effect. Please prove your case beyond reasonable doubt."

Contrast this to highly specific, highly narrow definitions, eg rape in the Penal Code. The narrow definition (from statue + case law) gives the prosecution specific points to strive for - if he establishes those points, he wins, the judge can't say no.

We know, for instance, that there must be penetration; it must be vaginal, not anal; penetration must be with the penis, not fingers or objects; ejaculation is not necessary; there must not be "consent", and then there is a lot of case law on what exactly "consent" is or is not.

The specificity, or "narrowness", if you like, actually aids the prosecution because the prosecution knows exactly what it needs to show to establish rape. Contrast sedition or corruption, where this is not so easily achievable.

Anthony said...

On the other hand...

The mere -fact- that these bloggers have been prosecuted using vague legislation has a chilling effect.

IF the government succeeds with their case, they win, and prove that the Act will work for racist comments (almost on a per-se basis I'd hazard to add).

IF the government loses their case, you'll bet the next response will be a legislative amendment ENHANCING the ambit of the Sedition Act to EXPRESSLY INCLUDE this sort of comment.

Either way, the government has managed to get its way. I don't believe this should be the case.

I'm gonna duck back in a while, essentially to address the point on wide legislation being advantageous/disadvantageous.

Anthony said...

Okay back. Funny, I just had a class on cyberspace freedom of speech. :D

Here's my take - wide legislation as a -strategic tool- may be suspect. I concede to your point that it may work against prosecution, save insofar that public prosecutors and police always have a Section 122(6) statement to work off. That's a discussion that should stay out of the ambit of this discussion, so for all intents and purposes, wideness of legislation may work against the prosecutor prosecuting.

What I am concerned about widely drafted legislation is that it creates several inherently detrimental situations.

Further on this point, consider the difference of whether:

(a) advocating ethnic cleansing is seditious under our act; and

(b) exciting discontent over the fact that Muslims are not allowed to become pilots in the Air Force.

Arguably, both fall under Section 3(1)(e) definition, save that the second case =may= be defensible under Section 3(2)(c) and (d).

Now this leads to the following problems:

(1) I don't know when a person's speech falls from legitimate criticism to sedition. You don't know it either. In a situation where the legislation is wide, it creates legal vagueness. Where legal vagueness is available, how do you know if what you are doing is legitimate or illegitimate? When does a legitimate "venting" against the way "gah'men do things" suddenly becomes seditious?

(2) When doubt is created over the application and scope of law, doubt is also created over the respect for the law. This is especially so where accepted social norms (such as grousing against the government) are actually illegal.

I ask these questions because I'm not sure if there are answers. We badly need these answers if we're not going to be another generation of Singaporeans disengaged with government process.

Mr Wang Says So said...

Good points, Anthony. I don't disagree that the sedition case will have some "chilling effect".

I do think, however, that the greatest chilling effect will be on those particular kinds of Internet users who are like the two racist, violence-advocating bloggers who got charged.

As for bloggers who really do blog seriously on social/political issues, I think that if you asked them to tell you honestly whether this sedition case has the effect of making them hesitate to express their views or rethink their blogging habits, they would say, "No, not at all."

I could be wrong. Why don't you try doing a mini-survey? You could survey people like HuiChieh; IzyData; Wows; Wayne Soon; Randy Kluver; Dominic Soon; Merv etc.

Note that expressing dissatisfaction or disapproval with the government's approach in the sedition case is not the same as personally becoming more fearful or hesitant about blogging.

I for one can confidently say that this present sedition case does not make me the slightest bit more nervous about my own blogging. After all, I behave nothing like the two bloggers who got charged.

In the years before I became a blogger, I actively frequented the Young PAP Forum itself, and there I severely criticised PAP policies numerous times. Well, I'm still around.

Admittedly, if someone like Steve McDermott got arrested, then yes, I would live in fear. Nothing like that has happened; he recently sailed past Customs into Singapore without a hitch.

So I for one will not be a Chicken Little, ever fearful of the sky falling down.