CHERIAN GEORGE (Hong Kong Baptist University) explains why the proposed Maintenance of Racial Harmony Act could be a progressive move, if interpreted and applied well.
Parliament will soon consider the biggest change in Singapore’s history to how the state uses law to deal with provocative speech relating to race. Up till now, the state has been making do with statutes mostly inherited from the British Raj. The colonial approach was designed more than a century ago to maintain order among native subjects, and certainly not to help citizens build a united nation. The Maintenance of Racial Harmony (MRH) Bill, introduced last month, proposes to replace a couple of core provisions in the Penal Code. It’s an understatement to say that their abolition, 63 years after the end of colonial rule, is overdue.
But law is easier to change than governance style and political culture. Both the government and people of Singapore are accustomed to responding to race-related controversies in a formulaic manner. People who feel offended demand intervention by the authorities, who feel obliged to do so. After generations of such dynamics, Singapore’s multiculturalism is less about trust and toleration than complaint and censorship. If these instincts are not consciously resisted in the interpretation and application of the MRH Act, the result would be a case of old whine in new bottles.
Section 298 and wounded feelings
One reason why Singaporeans have not taken a critical look at its system for dealing with race relations is the fear that the country’s peaceful social order is held up by a precarious, Jenga-like structure that could come crashing down if any part of it budges. Some elements are indeed core pillars, such as the ruling party’s commitment to multiracialism. Others are far more questionable. Using criminal law to punish and deter racially controversial expression is in the latter category. The MRH Bill offers two welcome moves: narrowing the types of harm that law should concern itself with, and giving the authorities more calibrated, less coercive tools for dealing with less serious harms.
First, in setting out the harmful acts that need to be criminalised, the Bill rightly outlaws inciting violence on the basis of race. This is broadly consistent with international law. Key international treaties require states to prohibit calling for violence or discrimination against a community because of their racial or other identity.[1] This has always been the case in Singapore. The big change is how the Bill deals with expression that’s far below this internationally accepted “incitement to hatred” threshold. The government has at last decided to consign to the dustbin of history the wording contained in the colonial-era Section 298 of the Penal Code. Under this law, intentionally “wounding the racial feelings of any person” is a crime punishable by up to three years’ jail. Lawyers say the statute has been “interpreted broadly by courts” to cover any “potentially offensive or insulting” public expression of anything to do with race.
Singapore’s Section 298 was amended to delete its mention of religious feelings when the older Maintenance of Religious Harmony Act was revised in 2019. Now that its twin Racial Harmony Act will cover race, Section 298 will be abolished entirely. As I argued before a 2018 Select Committee and in my submission to last year’s public consultation by the MRH Bill’s drafters, Section 298 is bad law, framed by colonial rulers as part of their divide-and-rule regime. It is highly subjective: it is difficult to dispute a person’s claim that his “feelings” have been terribly “wounded”. The authorities may actually have reservations about following up on complaints. But refusing to take action risks further angering an indignant community.
Therefore, in every country that criminalises offensive speech — India, Pakistan, Bangladesh, and Malaysia all inherited the same piece of legislation — community leaders weaponise them by performing offendedness to put the authorities on the spot and trigger police intervention against opponents. Although the problem is much less serious in Singapore, Section 298 incentivises offence-taking here as well: people file police reports for a mix of reasons, not all of which serve the public good. Criminalising offensive speech stifles expression that is potentially useful to society, or that serves as a release valve. It also sends the wrong signal to society, telling citizens they have a right to demand that the state protect their feelings, instead of a responsibility to grow a culture of inter-racial understanding and respect.
When offence serves a public purpose
Another positive move is the inclusion of a public interest defence for racially provocative speech. As I pointed out in my submission, Singapore’s old Sedition Act contained such an exception: one would not be charged with sedition if one were actually seeking to fix a problem. It would be seditious to “promote feelings of ill-will and hostility between different races” — but it would not be seditious to “point out, with a view to their removal” problems that might cause such ill-will and enmity. Since Section 298 lacks such a caveat, the repeal of the Sedition Act in 2022 suddenly meant that civic-minded citizens fighting racism, for example, could be treated just like racial agitators themselves.
In my submission, I noted, “Citizens should be given some latitude when speaking up against existing racism, which the Government says will always exist. Their speech will of course offend and upset Singaporeans who prefer an unfair status quo and who may invoke the value of ‘harmony’ to silence socially valuable speech that sounds discordant to their ears.” The MRH Bill resuscitates the language of the old Sedition Act. It says that if someone is charged with inciting enmity against others, he would be let off if he proves that he was, in good faith, pointing out matters that were causing hostility or contempt toward a racial group, for example.
Gag orders in lieu of prosecution
A second major change is the Bill’s introduction in Part 3 of gag orders as a new way to deal with people who have crossed the legal line. The restraining orders would be issued by the relevant minister without having to go through the court. The system is similar to what the Maintenance of Religious Harmony Act introduced more than 30 years ago.
This may be the most controversial aspect of the Bill. It is a product of the same innovative legal laboratory that created POFMA, and Members of Parliament should scrutinise its provisions closely lest its results are as unsatisfactory. But there are a few reasons why Part 3 may be a step in the right direction and less prone to abuse. First, unlike POFMA, it does not create whole new offences. The harms it addresses — causing or inciting “enmity, hatred, ill‑will or hostility” — are the old familiar ones. Second, it requires the new Presidential Council for Racial and Religious Harmony to review every order, which may be an effective check on overeager executive orders. Third, and perhaps most importantly, the precedents do not suggest that the authorities are itching to use this weapon. Most police investigations and prosecutions of racial provocation are not initiated by the authorities but by members of the public who feel offended by something they see or hear. This is quite unlike POFMA, where the majority of correction orders start with ministers’ reactions to something said online, leaving the public wondering why it was worth the bother. For these reasons, one can hope that MHRA restraining orders’ effect would be substitutive, not additive: used in lieu of criminal prosecutions and without a big jump in the frequency of state interventions.
Questions for Parliament
Lawmaking Singapore-style has always given the executive plenty of room for manoeuvre. The MHRA is no exception. The proposed law’s impact will therefore depend greatly on the government’s long-term goals. Does it want to maintain citizens’ current dependency on coercive regulation? Or develop greater societal resilience, such that disruptions to multiracial social norms can be moderated by the people (including political leaders using their influential voices) without recourse to the law? It can go either way. Therefore, Members of Parliament should seek clarification about how key elements of the Bill are to be interpreted and implemented. Here are just two.
First, what counts as “insult”? Under Section 40, it is an offence to do something that knowingly “insults, vilifies, denigrates, threatens or abuses” others the basis of race. If someone feels insulted by a provocative comment about race — say, a criticism of “Chinese privilege” — would that be enough for charges to be levelled against the speaker? If so, we would be back to square one: the prohibition of racial “insult” would have the same effect as Section 298’s language of wounding racial feelings. A more progressive interpretation of “insult” would treat it as an attack on dignity, which, following the legal scholar Jeremy Waldron, is a societal value that has little to do with wounded feelings. Just as laws against contempt of court are for protecting the judiciary’s status, not the individual judge’s feelings, protecting a racial group from insult should be concerned with whether its standing as equal members of society is being threatened. Based on such a reading, railing against majoritarian privilege would not count as illegal insult even if many felt stung by it, since it’s unlikely to undermine the rights of a dominant community.
Second, the Presidential Council for Racial and Religious Harmony can also go different ways, depending on who’s appointed and how they see their role. In the worst-case scenario, the council would be packed with members who think they have a responsibility to protect the feelings of the most hypersensitive of their respective communities’ members. This is one of the flaws of the current approach to arts and film censorship, which relies on designated community leaders to serve as guardians of their groups’ sensibilities. Once something is deemed controversial, the consultation process usually bends toward censorship. The Presidential Council could play a much more constructive role if its members are required to represent the long-term public interest, not speak for his or her racial group’s least tolerant individuals. As a standing body, the council should be encouraged to develop deep expertise and grow its capacity to make nuanced judgments. It could be given the resources to commission research. It should also publish annual reports to ensure that its wisdom is transferred to the wider public.
Racial identity — including the right to claim hybrid identities or none at all — is important to most Singaporeans. It is also inescapably political. Long gone are the days when race was something Singaporeans were afraid to talk about publicly. The surface calm was a sign of acquiescence, not contentment. As the government has noted, many Singaporeans of all races, especially the young, feel strongly about racial justice. Difficult conversations need to be had. Not all have the experience or skill to couch their expression in dispassionate language. Besides, there is also a time and place to express outrage from the heart. The traditional approach to racial harmony allowed Singaporeans least tolerant of progress in race relations to dictate limits on speech, retarding society’s evolution toward deeper multiculturalism. That culture may prove sticky, so it’s not guaranteed that the new Bill will usher in positive reforms. But it does open a door.
Cherian George is a professor of media studies at Hong Kong Baptist University. This article can be freely republished, subject to conditions that you can read here.
[1] Singapore ratified the International Convention on the Elimination of All Forms of Racial Discrimination in 2017. ICERD’s Article 4 requires states to, among other things, “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof”. Article 20 of the International Covenant on Civil and Political Rights, which Singapore has not signed, states: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”