By Choo Zheng Xi
Before you read on, one caveat: I’ve been asked by Leslie Chew to provide him with my legal opinion while he’s under investigation, so please read this article with that possible bias in mind.
Leslie has, at present, not been formally charged and there are no ongoing Court proceedings.
The following is my personal view of why it would be grossly incorrect for Leslie to be formally charged (as opposed to merely being investigated) for Sedition. I don’t write this in my capacity as Leslie’s legal counsel or lawyer.
The “high signature” Sedition Act
To begin, it’s important to size up what Leslie is being investigated for. As Cherian George has correctly pointed out in a recent blog post, the fact that Leslie is being investigated under the Sedition Act instead of Section 298A of the Penal Code (“promoting enmity between different groups on grounds of religion or race”) has significance.
The Sedition Act encompasses more than causing disaffection between the different races. Under Section 3 (a) of the Sedition Act, a seditious tendency includes bringing “into hatred or contempt or to excite disaffection against the Government”. (emphasis added)
Section 298A of the Penal Code was enacted in the Penal Code amendments of 2007 to provide an alternative to the draconian Sedition Act provisions on race and religion. In passing Section 298A, then Senior Minister of State for Home Affairs Associate Professor Ho Peng Kee made special mention of two racist bloggers who had been convicted under the Sedition Act in 2005: “The cases of the racist bloggers, Benjamin Koh and Nicholas Lim, who were charged and convicted under the Sedition Act, raised the question whether there was a need to prosecute the offenders under such a high signature Act.”
Understanding what Assoc Prof Ho means when he describes the Sedition Act as “high signature Act” is key to unlocking the answer to why Leslie Chew should not be charged.
Sedition: no laughing matter
The concept of the offence of “sedition” originates from the English common law and belongs to a class of offences that could loosely be termed offences of subversion.
This class of offences includes, classically, offences such as treason, incitement to mutiny and armed insurrection. Simply put, these are offences aimed against the State and society.
To give you a sense of how serious sedition, in its classically applied form is, one English Judge in 1868 likened it to treason: “Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by a short interval.”
Under an accurate interpretation in English law, sedition is understood to include an element of public disorder. In an 1820 case, Justice Coleridge defined sedition thus: “The word ‘sedition’ in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form.” (emphasis added)
Unsurprisingly, the English approach has been adopted across the Commonwealth.
The Supreme Court of Canada, in a 1951 case called Boucher v R, held that: “The seditious intention upon which a prosecution for the seditious libel must be founded is an intention to incite violence or to create public disturbance or disorder against His Majesty or the institutions of Government. Proof of an intention to promote feelings of ill-will and hostility between different classes of subjects does not alone establish a seditious intention. Not only must there be proof of incitement to violence in this connection, but it must be violence or defiance for the purpose of disturbing constituted authority”.
Boucher v R concerned a case of a group of Jehovah’s Witnesses circulating a pamphlet attacking the police, public officials and Roman Catholic clergy accusing them of influencing the Courts and the administration of justice to persecute them.
This might have been what Assoc Prof Ho had in mind when describing the Sedition Act as a “high signature Act”, and could have been the basis for amending the Penal Code to create Section 298A: it would simply be too embarrassing to continue prosecuting every other racist blogger under the draconian Sedition Act.
Clearly, in light of the historical and legal definition of sedition, it would hard to apply the Sedition Act to Leslie’s cartoons with a straight face.
Unfortunately, the Sedition Act continued to be liberally applied even after the introduction of Section 298A. In Public Prosecutor v Ong Kian Cheong, Justice Roy Neighbour sentenced a Christian couple to 8 weeks imprisonment each for distributing pamphlets that were insulting to Islam.
Respectfully, in light of the history of the law of sedition in the Commonwealth, Justice Neighbour’s application of sedition in Ong Kian Cheong doesn’t look correct.
What Sedition is not
But I digress. Leslie’s situation is clearly different from the racist bloggers or the Christian pamphleteers.
Leslie is ostensibly being investigated for a cartoon that appears to be critical of the Government’s policies towards Malays, so it would be a bit of a stretch to allege that Leslie is promoting feelings of ill-will and hostility between different races or classes of the population in Singapore.
If Leslie is prosecuted, it would mark the only case I know of in Singapore law where a person has been charged with causing disaffection against the Government.
In any case, Section 3 (2) of the Sedition Act provides that a publication is not seditious if it only has a tendency to:
- “show that the Government has been misled or mistaken in any of its measures”;
- “persuade the citizens of Singapore or the residents in Singapore to attempt to procure by lawful means the alteration of any matter in Singapore”; or
- “to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of ill-will and enmity between different races or classes of the population in Singapore”.
Finally, it’s important to remember that a superior law to the Sedition Act controls the manner in which it should be applied. Article 14 of our Constitution guarantees (with exceptions), every Singaporean’s right to freedom of speech and expression.
Obviously, to honour the spirit and importance of the Constitutional protection of free speech, any exceptions to Singaporeans’ constitutionally guaranteed speech have to be interpreted as narrowly as possible.
Otherwise, we risk making the exception the rule, and the rule more honoured in the breach than the observance. Consider the implications of this: today it’s Leslie, tomorrow it could be you.