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.
Homosexual
lifestyle:
NCCS
commends
Govt on taking
bold stand
(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.'