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.