08 October 2005

Judge Magnus On The Seditious Bloggers

Today the Straits Times has reproduced key points from the ruling of Senior District Judge Richard Magnus. In routine cases, the Subordinate Court judges usually do not explain their decisions at all, unless there is an appeal against their decision. In the present sedition cases, the fact that:

(a) Magnus, the No. 1 judge in the Subordinate Court hierarchy, personally heard the case; and

(b) Magnus bothered to articulate his grounds of decision in court;

shows that the courts recognise these sedition cases to be quite significant, from a public policy perspective. Let's take a look at what Magnus had to say:
'WHILE an offence under section 4(1a) of the Sedition Act is rare, it is necessary for this court to make it clear that such an offence will be met, upon conviction, with a sentence of general deterrence.
The phrase "general deterrence" tells you that the court is going to give a heavy sentence. When a judge says "general deterrence", this means that he wants to impose a sentence that will send a warning to the public and tell people that they had better think twice before committing a similar offence. The other kind of deterrence is "individual deterrence", where the judge is imposing a heavy sentence to deter that particular offender from committing the same crime again.
Racial and religious hostility feeds on itself. This sentencing approach of general deterrence is because of three main reasons:

The section 4(1a) offence is mala per se (heinous in or of itself);

The especial sensitivity of racial and religious issues in our multicultural society, particularly given our history of the Maria Hertogh incident in the 1950s and the July and September 1964 race riots;

The current domestic and international security climate. The court will therefore be generally inclined towards a custodial sentence for such an offence.
The third reason is interesting. In fact, in my private email discussions with one of my readers, Asoka Lotus, I had mentioned this factor as one likely to shape the authorities' view of the matter. The rise of terrorism has arguably made peaceful, conservative Muslims (ie the extremely vast majority of Muslims in Singapore) somewhat less certain of their place in this country, and it is important that we do not allow any behaviour that makes them feel that they might not be welcome or accepted here - this is probably what Magnus is saying.
The virtual reality of cyberspace is generally unrefereed. But one cannot hide behind the anonymity of cyberspace, as each of the accused has done, to pen diatribes against another race or religion.

The right to propagate an opinion on the Internet is not, and cannot be, an unfettered right. 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.

It is only appropriate social behaviour, independent of any legal duty, of every Singapore citizen and resident to respect the other races in view of our multiracial society.
The three paragraphs look rather obvious, but somewhere in their midst lies a rather subtle point. Many of you would not notice it, unless Mr Wang pointed it out. The point, however, is very significant, because this is Magnus speaking, and the Senior District Judge's ruling on this matter is what the other judges will scrutinise, and follow, in future similar cases. Here is the subtle point again:
"The right of one person's freedom of expression must always be balanced by the right of another's freedom from offence ..."
Why is this significant? Because when we talk about the freedom of expression, we always end up talking about the grounds on which it can be legitimately limited. Then we would turn to consider two broad principles.

The first is known as the harm principle, which says that the freedom of expression can be limited if the words or ideas expressed would cause undue harm to society. The second is known as the offence principle - that is to say, the freedom of expression can be limited if the words or ideas expressed would cause undue offence to society.

The offence principle is more controversial than the harm principle. Proponents of free speech are much more wary of the the offence principle than the harm principle. Let's illustrate the difference with a simple example.

Consider a speaker whose remarks are likely to incite racial riots. In such riots, people would be killed or injured. The harm principle says that this person's freedom of speech should be limited, so as to prevent harm from happening to society.

Then consider a person whose remarks will not cause racial riots at all, but will offend members of a particular race, say, the Indians. No harm is actually caused, except that the Indians feel very offended. The offence principle says that the speaker's freedom of speech should be limited, so as to prevent the offence from happening.

What Magnus is saying is that he will support limiting free speech on the basis not just of the harm principle, but also the offence principle. And Magnus's view is significant because, as I said, his ruling and reasoning as Senior District Judge is to be followed by all the other Subordinate Court judges.

What else did Magnus say?
... the remarks posted by Benjamin Koh on his blog were particularly vile, to use the words of the learned Deputy Public Prosecutors. Paragraph 10 of the learned DPPs' submission on sentence said: 'He...spewed vulgarities at the Muslim Malay community, derided and mocked their customs and beliefs and profaned their religion. He even compared their religion to Satanism.'
That is all we will learn from the court's judgment about what the two bloggers actually said.
His remarks provoked a widespread and virulent response. They sparked off more than 200 comments, some of which involved the slinging of racial slurs at Chinese and Malays. This is an aggravating factor.
In other words, if your seditious remarks attract lots of readers, you get a heavy sentence.
In the case of Nicholas Lim, the learned DPPs say that his comments are less serious than those by Benjamin Koh. This is borne out by a comparison of the offending materials.

The quantum of sentence on each of the accused persons, therefore, varies according to their level of blameworthiness.
As I mentioned in my preceding post, Magnus is paying careful attention to the actual content of the remarks made.

Finally a word of warning from Magnus:
The court will not hesitate to impose appropriate salutary and stiffer sentences in future cases.

12 comments:

Huichieh said...

Trackback: I commented on the "offence" thing as well.

The Legal Janitor said...

The problem with the 'offence principle', is that it is essentially subjective. There is no way to gauge what is offensive or not, anything and everything can be offensive or sensitive depending on the person reading the text.

Of course, I'm not suggesting that the courts won't be able to determine the degree of potential offensiveness... but then you can't say that all judges are as equally discerning as Judge Magnus, no?

An example of not offending certain people taken to the extreme:

Telegraph - Making a pig's ear of defending democracy

Alas, the United Kingdom's descent into dhimmitude is beyond parody. Dudley Metropolitan Borough Council (Tory-controlled) has now announced that, following a complaint by a Muslim employee, all work pictures and knick-knacks of novelty pigs and "pig-related items" will be banned. Among the verboten items is one employee's box of tissues, because it features a representation of Winnie the Pooh and Piglet. And, as we know, Muslims regard pigs as "unclean", even an anthropomorphised cartoon pig wearing a scarf and a bright, colourful singlet.

Cllr Mahbubur Rahman is in favour of the blanket pig crackdown. "It is a good thing, it is a tolerance and acceptance of their beliefs and understanding," he said. That's all, folks, as Porky Pig used to stammer at the end of Looney Tunes. Just a little helpful proscription in the interests of tolerance and acceptance.

Mr Wang Says So said...

I don't think you need to be particularly discerning in the present case to know that Koh's and Lim's remarks were very offensive.

That is why I say that the subjectivity problem is usually grossly exaggerated. For example, people sometimes talk in the abstract about the dividing line between porn and art -

but in reality, how often have you been confused as to whether a porn film you were watching was really a porn film, not an artistic film;

and whether an art film you were watching was really an artistic film, not a porn film?

To me, the fact that things are subjective is also no reason to say that since things are subjective, all things should be allowed.

- said...

mr wang,

with plenty of respect, i will disagree with the reading of your case --

i think the reasoning is
cause lots of offence = actual potential harm based on historical and current circumstances = rightful limits on speech...

I read this based on the context of the judgment in which the Judge spoke deeply about our historical circumtances, our current domestic and international security climate. I believe that this reflects the concern and consideration there is a lot of potential harm this hate speech might cause...

Instead of the reading that Offence = limits on speech

based on this reading, thats why if you cause more offence = you cause more potential of harm = you deserve greater punishment to deter other to do as such..

no blood-letting by the learned Judge...well reasoned and principled. does not depart from establish judicial preference for arguments for utilitarian concerns.

Elia Diodati said...

Trackback: e pur si muove, Bloggers Charged Under Sedition Act

Anthony said...

With due respect to Mr Wang's analysis, I humbly submit that his interpretation of the harm-offence dichotomy is suspect.

I don't think there's an argument that the harm principle is narrower than the offence principle. What the Singapore courts has therefore allowed is criminalising conduct that is offensive but not harmful.

The heart of the problem is this - using the "offence" principle to justify censorship means that the most intolerant becomes de-facto censors. In the usual Singapore fashion, I don't see -any- discussion on the right to free speech beyond the mere invocation of that right, only the limitations on free speech. That, to me, is not balanced analysis - that's ex post facto justification for censorship.

Mr Wang Says So said...

I think that the correct way of looking into this is as follows:

First there is the freedom of speech. Some would say that it should have no restrictions. Some would say that it should.

Members of the second category would say that it can be restricted on the basis of the harm principle.

Some members of the second category would go one step further and say that it can also be restricted on the basis of the offence principle. Magnus belongs here.

However, I think it would very, very strange to find a person who supports restrictions on the basis of the offence principle, but does not also support it on the harm principle.

I think that Magnus has indicated clearly that he (and his judges, since he is after all the SDJ) will support the offence principle, because his ruling seems very clear to me on that point -

"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. It is only appropriate social behaviour, independent of any legal duty, of every Singapore citizen and resident to respect the other races in view of our multiracial society."

Huichieh said...

Then the question becomes: how does an "offence principle" reading of the ruling relate to the Sedition Act? As far as I can tell, the natural reading of the Act is in the ballpark of the harm principle...

Anthony said...

Mr Wang,

The reverse isn't true is it? Those who support the harm principle do not have to support the offence principle?

DJ Magnus clearly -could- have ruled -solely- using the harm principle without resorting to the offence principle. In doing so he's created problems of the lowest common denominator effectively dictating what gets posted.

He who is least tolerant gets most power to dictate speech - a situation that is scary at best.

- said...

sigh..think tat this debate is misleading ...

basic summary of what i think:

In this case for the learned judge to apply the Sedition Act rightly, he has to look at offence. Offence = ill-will" and "hostility".

However - to say that this is used as a form of "principle" to my mind is simply wrong.

sigh..

the only principle used for interpretating any law proscribing limits on free speech to prevent "public disorder" has always been harm.

in other words, when the Magnus used the word offence - he meant it as offence which has the likelihood to cause harm. in fact - it does not even matter whether he meant it specifically or whether he believes it or not - the words "ill-will" and "hostility" read in the context of the consitution assumes that...in order that that the Sedition Act is not Ultra Vires.

Reading it without the likelihood that this "offence" is likely to cause harm will make, based on a constitutional reading, the sedition act ultra vires s14. i assuming since anthony/mr wang are learned in the law, you know what i mean..

A judge, and an ex-pp "should" will probably know this much better -- on the issue whether feelings of illwill and hostility is likely to lead to public disorder(policy decisions) -- the judiciary will generally defers to the legislature opinion on whether such offensive stuff will have the likelihood to cause public disorder.

and if the legislation is there - it is there because ...for the usual reasons..

hence... all the judge need to do is apply his mind to the question whether the words can cause feelings of ill-will and hostility...this in no way suggest that offence is THE principle...

sigh...

offence as a principle in singapore has only been considered in the other context of public morality...if you want to make the argument that the offence principle is used because the sedition act is used based on the public morality exception - well its will probably fail to meet the first consitutional requirement for the sedition act to be valid (for the proper purpose)..

sigh..

the sedition act is clearly an act to prevent public disorder.


full version of the same analysis at:

http://singaporeclassics.blogspot.com/2005/10/freedom-of-speech-harm-and-offence-in.html

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