Penal Code: Proposed changes
'relevant and compassionate'
-- says National Council of Churches of Singapore
THE National Council of Churches of Singapore (NCCS) is of the view that generally speaking, the proposed amendments to the Penal Code (PC) are relevant, timely, compassionate and appear well thought through.
In presenting this feedback, the NCCS is mindful of the role of governing authorities and the Scriptural injunction to Christians on their attitude towards the higher powers (Romans 13:1).
Additionally, in making these comments, the NCCS is aware anecdotally that there are other individuals or groups in society that intend to give appropriate feedback to the Ministry of Home Affairs (MHA) on some of the proposed amendments to the PC from other perspectives (e.g. criminal justice viewpoints) and may proffer analysis of both the underlying policies of the Government and the legal wording.
Therefore, the NCCS confined itself only to the proposed amendments that are likely to be of concern to Christian churches, groups and individuals in Singapore.
In this regard, the NCCS gave three feedback points:
'(a) the proposed section 298A PC ("Promoting enmity between different groups on ground of religion or race, and doing acts prejudicial to maintenance of harmony"). An issue that arises for consideration (quite apart from the legal issue of what is the mens rea [i.e. blameworthy state of mind] involved in this intended offence) is what scenarios are envisaged by the Government as constituting: -
(i) words/signs/visible representations that "[promote] disharmony or feelings of enmity, hatred or ill-will between different religious … groups or communities" or
(ii) acts that are "prejudicial to the maintenance of harmony between different religious … groups or communities … which disturbs or is likely to disturb the public tranquillity"
The deeper or underlying issue is how these intended PC offences correlate with fundamental rights enshrined in Article 15(1) of the Constitution safeguarding the freedom of religion (i.e. the right to profess, practise and propagate one's religion). Will a Christian who shares his/her faith to a non-Christian trigger off the commission of a criminal offence under this section? This issue may not be unique to Christians alone. It may also impact on devotees of other "missionary" religions such as Islam.
Other examples come to mind. If a Christian narrates his testimony of conversion in his web log or personal website and makes reference to how he failed to find fulfilment and meaning in his former religion and only found the same in Christ, could that constitute promoting disharmony or feelings of ill-will (even if it does not meet the conceivably higher threshold of promoting enmity or hatred) between different religious groups/communities?
Assuming that we have a situation of a Muslim convert that wishes to be baptised in a local church … could the act of baptism performed by the pastor be prejudicial to the maintenance of religious harmony and likely to disturb the public tranquillity?
In this regard, it is interesting to note that the language in the proposed section 298A PC is similar to section 8(1) of the Maintenance of Religious Harmony Act (Cap 167A) ("MRHA"). That section allows the Government to make a restraining order against religious leaders where the Minister is satisfied that that person has committed/is attempting to commit acts that cause "feelings of enmity, hatred, ill-will or hostility between different religious groups". As far as we know, no restraining order has been made under the MRHA since that legislation was enacted. However, the present statutory changes envisaged to the PC elevate the commission of such acts to a criminal offence. The danger with this is the possible subjectivity and arbitrariness of the judgment which may be made about which acts transgress the boundaries and which do not. The uncertainty is unsatisfactory.
To remedy the same, one view is that the Government should insert some illustrations and explanatory notes to this statutory provision to clarify what constitutes an offence under this new section and what does not. This approach adheres to the scheme of the PC as originally codified. This will enable the parameters of the criminal offence concerned to be spelt out clearly.
The problem with the approach in the preceding paragraph, however, is that illustrations are not exhaustive. Much will turn on the context and circumstances of the words/acts concerned and an objective analysis of the same. In line with this, the alternative approach to that in the preceding paragraph is therefore to leave it to the courts to be the final arbiters in determining whether a contravention of intended section 298 has taken place or not.
Govt on taking
(b) The Explanatory Notes to the Proposed Amendments issued by the MHA state that "The Public Prosecutor is aware that some offenders are of low IQ or mentally deficient. They take this into account in deciding whether or not to charge the offender." This approach by the Public Prosecutor demonstrates compassion towards low IQ offenders and the NCCS commends the same. The question is whether, given the variety of conditions that exist within the spectrum of mental illness, the statutory general exception for unsoundness of mind (section 84 PC) should be amended substantively to reflect the same. This contrasts with the present approach of leaving the same for prosecutorial discretion.
(c) We are aware that the proposed amendment to delete section 377 PC but on the other hand retaining section 377A PC may be controversial in some quarters. Nevertheless, we consider homosexual acts to be sinful, abhorrent and deviant, whether consensual or not. The NCCS commends the Government on taking a clear, unequivocal and bold stand of neither encouraging nor endorsing a homosexual lifestyle and opposing the presentation of the same as part of a mainstream way of life. At the same time, we do not condemn homosexuals as the Bible calls us to hate the sin but love the sinner. Given that section 377A PC criminalises homosexuality whether done private or publicly, we are of the view that a similar prohibition ought to be enacted in respect of lesbianism, considering that lesbianism (like homosexuality) is also abhorrent and deviant, whether consensual or not.'