As the MHA Penal Code Amendment Bill Consultation Paper Invitation for Public Feedback describes it (.pdf file):

Arising from the case of the racist bloggers who were charged under the Sedition Act, we propose amending the Penal Code to provide another option to the Sedition Act, to charge such offenders in future cases. Hence, MHA recommends expanding the scope of s.298 on "Uttering words, etc with deliberate intent to wound the religious feelings of any person" to cover the wounding of racial feelings as well. For future such cases, where appropriate, prosecution can have the option to proceed under the Penal Code or the Sedition Act.

The implication of the case of PP v. Koh Song Huat Benjamin and Another [2005] 272, however, is far less limited than we like to think it is. Recall that both Benjamin Koh and Nicholas Lim plead guilty to section 4(1)(a) of the Sedition Act. Section 4(1)(a) provides that any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act which has or which would, if done, have a seditious tendency shall be guilty of an offense. Hence, what we have is essentially a decision on sentencing guidelines.

The most important section of the Sedition Act is section 3, the language of which, as one can see, is very wide:

3. --(1) A seditious tendency is a tendency --

(3) For the purpose of proving the commission of any offence under this Act, the intention of the person charged at the time he did or attempted to do or made any preparation to do or conspired with any person to do any act or uttered any seditious words or printed, published, sold, offered for sale, distributed, reproduced or imported any publication or did any other thing shall be deemed to be irrelevant if in fact such act had, or would, if done, have had, or such words, publication or thing had a seditious tendency.

The Sentencing Guidelines

Judge Magnus described the sentencing approach as one of 'general deterrence'. He argues in that direction on account of the reasons that "the section 4(1)(a) offence is mala per se; the especial sensitivity of racial and religious issues in our multi-cultural society, particularly given our history of the Maria Hertogh incident in the 1950s and the July and September 1964 race riots; and the current domestic and international security climate." Because of this general deterrence principle, Magnus considers that a court will be "generally inclined towards a custodial sentence for such an offence." [6]

Other things the Court considered included the remedial measures taken. The Judge "notes that the offending acts by the accused persons were nipped early and contained. The accused took action to reduce the offensiveness of their acts...." On the other hand, an aggravating factor is the response of the readers - Benjamin Koh's post attracted 200 comments, some of which included racial slurs. [10,11]

Importantly, the Court reiterated that "the moral culpability of the offender is always an important factor": while sentence will "turn on the peculiar facts of the cases... The Court will not hesitate to impose appropriate salutary and stiffer sentences in future cases" [12]

Questions arising from Sentencing Guidelines and the Imposition of a Custodial Sentence

The general sentencing guideline is one of general deterrence. As such, the Judge recommends a custodial sentence. Is this always a case? Gan Huai Shi, a third racist blogger, was given a probation of 24 months largely because his racist sentiments was perceived to have stemmed from unfortunate childhood experiences (his baby brother's death). From this, we see that the 'moral culpability of the offender' is not only an important factor, but in Gan Huai Shi's case, the most important factor. Which approach is preferable and are there other approaches? For a relatively peaceful nation such as Singapore, would counseling, probation and exposure to other races be a better approach? Judge Magnus also noted that such cases are 'rare' in Singapore.

Furthermore, the moral element is also reflected in the Penal Code section 298 which required a "deliberate intent" to be present for the prosecution to make a case. The Sedition Act seems to put the case too far in terms of making intention irrelevant (S(3)(1). Should a Judge further extend this by suggesting that custodial sentence should be recommended?

While the current domestic and international security climate is very tense due to 9/11, the Iraq war and other related events, and many nations have reacted to the domestic and international security climate by passing legislation similar to Singapore's ISA and the Sedition Act, how will a custodial sentence using the Sedition Act alleviate the tension and improve security in this case? Are these bloggers not reformable? Are they terrorists?

Other Related Questions

What is the impact of section 4(1)(a) being an offence which is considered mala per se (inherently wrong; see this and this)? What if only one reader reads the objectionable remark and calls the police? If its mala per se, why is it so, and how should the police react? Should we then send the originator of that objectionable remark to prison? Section 298 and the proposed 298A is clearer. On first blush, my reading is that 298 and 298A are concerned with intention unlike the Sedition Act.

What about the other problems associated with the Sedition Act? For example, the definition of "seditious tendency" in Section 3(1) is very wide, but it is limited by section 3(2). While a Seditious tendency is one which brings hatred or contempt or to excite disaffection against Government (3(1), it is not seditious if it only has the tendency to show that the Government has been misled or mistaken in any of its measures (3)(2).

What if a remark both suggests that the Government has been misled or mistaken and also excites disaffection? This appears to be caught under the Sedition Act. What if the Government does something so mistaken that if revealed, is bound to excite disaffection. How should a judge react? More generally, what exactly is the place of the Sedition Act in the context of the Singapore constitutional?

How much should the "especial sensitivity of racial and religious issues in our multi-cultural society" guide our laws? Should we have anti-hate speech legislation like other jurisdictions instead of the all-encompassing Sedition Act. The rationale for the sentencing guidelines of section 4(1)(a) might not be justified for other forms of speech covered by the Sedition Act. So will the arguments for custodial sentence apply to other forms of Seditious speech such as exciting disaffection towards the Government?

Questions arising out of Obiter (Things a Judge said that was not central to the holding of the case)

Judge Magnus said: "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." [8] Is this correct?

The Singapore Constitution article 14(1)(a) reads (subject to clause (2)(a)) that every citizen of Singapore has the right to freedom of speech and expression. Article 14(2)(a) provides that Parliament may by law impose on the rights conferred by 14(1)(a) such restrictions "as it is considers necessary or expedient* in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence."

There is no mention of a right of a freedom from offence (there is however contempt of court, defamation ) under Article 14(2)(a) or within the constitution. Is Judge Magnus correct? Does he mean offence to mean contempt of court or defamation? Was there contempt of court or defamation in these cases? Should there be a freedom from being offended?

Or does he mean a general right to be protected from certain speech. As VK Rajah J said in Chee Siok Chin v. MHA [2006] 1 SLR 582, that "All persons have a general right to be protected from insult, abuse or harassment. Those who improperly infringe or intrude upon such a right to draw publicity to their cause, regardless of the extent and sincerity of their beliefs, must be held accountable for their conduct." [136]

While there are protection against insults, abuse and harassment, is there a right to freedom from offence? What if someone, for example my mother, say I am stupid (an insult)? Should I be protected from that? Should not the crux of the matter be when speech becomes harmful and threatens the public peace. Perhaps not. (Read the Chee Siok Chin case for what 'necessary and expedient' entails).

Gan Huai Shi attempted to incite others to have an Holocaust II. That will be an 'incitement to any offence'. What about Nicolas Lim and Benjamin Koh. Will all racist remarks incite others to an offence? What does public order or morality exactly entail? Will it be more appropriate to have simply said that the blogger's speech was immoral or that it threatened public order in this case? Considering the sentencing guidelines and the reasons given, that would have appeared to be a better reading of the restrictions placed on the freedom of expression in this context. Why then should Gan Huai Shi have a probation while Nicolas Lim and Benjamin Koh have a custodial sentence?

Article 152(1) reads that it shall be the responsibility of the Government constantly to care for the interests and religious minorities in Singapore. Can that be better achieved by anti-hate speech legislation, or by 'reading' in a right of another freedom from offence in Singapore?

Similar Questions arising out of Sedition Elsewhere

Many might think the Sedition Act is a clear example of a uniquely Singapore phenomena, but that is false. Sedition Acts are increasing in popularity post-9/11. Together with its cousin--the power for executive powers to arrest and hold suspected terrorists without trial--they are seen as part of the larger strategy against terrorism. The US, Australia and New Zealand have in recent years attracted controversy over its Sedition Laws. The difficulty is manifold. There are somewhat universal questions concerning how we distinguish between a) legitimate speech against governments' mistakes or speech which has a tendency to excite disaffection, b) racist remarks that will cause disorder which require a custodial sentence or stupid ugly racist remarks better resolved by counseling, probation and mediation, and c) the difference between terrorists and racists.