Maintenance of Racial Harmony Bill

Let me take the second point first. If I can summarise the point made by Ms Lim, where the EP disagrees with the Government or the Minister, he becomes the final arbiter, and such a confrontation detracts from the President's normal role. And that we have a number of places in the Constitution, situations where the President has such a role – Reserves, for example. But here, we are dealing with race and is that not a cause for concern?

Let us go to some fundamentals. What are those fundamentals? The Government is being given the power to issue Restraining Orders relating to race. The Minister issues the order. In other countries – first of all, I do not know of other countries which do this sort of thing – but the usual route is having the courts to have a judicial review. The courts sitting in there, dealing with, perhaps, a highly emotive issue and the matter being made a cause célèbre. In my experience, that usually makes things much worse.

We have taken a very different approach. For example, in the Maintenance of Religious Harmony Act, we deliberately went down this route – that we will have Restraining Orders and then, have the final check through a Council and a President.

I do not know if the Workers' Party objected to the Maintenance of Religious Harmony Act with those provisions. In the Internal Security Act, too, we have a similar provision.

If the President disagrees with the Minister, it is a matter of confrontation. It is not the most pleasant of things, but as I said, you have to design these laws with a view to build up institutions for the benefit of Singapore as a whole, predicting a time when most of us may not be around, how does it serve Singapore?

It is a curious reversal of roles, because I am here arguing for an extra layer of check on the Government, whereas Ms Lim is saying, why are we having this additional layer because it brings the President into the fray. I do not think so. Because if you have outstanding people in the Presidential Council and they are advising the President – senior community leaders and leaders of religious groups, together in their collective wisdom, they think that the Government's Restraining Order lacks substance and they advise the President. And the President himself is elected by the people and in that sense, he has a mandate, he is accountable to the people himself while the Minister continues to be accountable in Parliament and, of course, to the judgement of the public.

We take the view that if there is such a confrontation, then what it means is a group of outstanding people, the Presidential Council and a person who was directly elected by the people of Singapore, the President, takes a view which is different from the Minister. And we think that that should be given some value.

I think to suggest that that should be completely ignored, they should not be given that power – I can see where Ms Lim comes from. There are people who can argue that – that it should only be the Executive. But I think the balance here comes down in favour of having this additional check and letting the Minister understand that he has to have a care in how these powers are exercised.

You have power, you try and build in a framework that provides for careful and prudent exercise of that power, but all the time, also remembering that we are a small boat in an ocean and we do need power given to the Government, subject to suitable checks, to move fast and move quick. So, if you have too many checks and balances, nothing gets done. If you have no checks and balances, sometimes, you can go very wrong. So, we are trying to find a balance. That is the best answer I can give.

Her earlier point is a clarification of what she had earlier said. I understand the point and I think I do not need to repeat myself.

Mr Speaker, we are now debating a little bit about the powers of the EP. So, I think it is a relevant question, Minister. What I want to know is, under FICA, the EP does not have the power to veto the Minister's decision, right?

As a matter of fact, that is yes. There are a number of pieces of legislation where the EP does not have the power to veto the Minister's decision. That is so.

Mr Speaker, Sir, I remember when we were debating FICA some years ago, I asked the Minister this question specifically – whether the President has to act according to the recommendation of the Cabinet. And the Minister's reply at that time was yes, the President has to act according to the recommendation of the Cabinet.

In that case, under FICA, the President does not have the power to independently veto the decision of the Cabinet or the Minister. Is that right?

I thought I made that clear. The EP has no discretion under FICA. He has got to act on the advice of the Cabinet.

The Minister has said that the provisions in the new Bill is largely similar to current provisions, but I think there is a big difference in clause 8. Most of my clarifications were with respect to the Restraining Order, which is in clause 8. The main difference is that under current law, decisions are made by the Court on whether it is criminal, but in clause 8, the decision is made by the Minister.

Is the Minister saying that the Minister, in making a decision under clause 8, will be using largely the same procedure as the judges? Because when the Courts make the decision, they are usually bound by legal precedence and there is quite a lot of research involved and it takes time.

Since the purpose of clause 8 is for speed, I do not see how that can be possible. That is why we are trying to find out what is this alternative system that the Minister will be using to make his decision.

Thank you, Sir. Let me try and explain this. Today, we have sections 298 and 298A. The process is as follows. An offence is potentially disclosed. Police investigate. AGC comes in – that is, if it is believed that an offence has been committed. You have to charge the person and you have to prove the case in Court. So, it is very binary. Either you charge or you do not charge.

The Bill, in terms of the offences, clauses 39 and 40, take that approach. So, it ports over sections 298 and 298A, and I made that clear. And that responds to a number of questions Ms Poa had asked about whether something will or will not be an offence. For example, Mr Shaik Amar's words, I think, she asked if they would be an offence today.

Let me be more accurate by looking at what exactly she said. There was, for example, "from the river to the sea", and I quote, "can lead to racial tensions and maybe an offence under section 298A of the Penal Code. Would individuals who use such phrases, such as "from river to sea, Palestinians will be free" online or offline, now we subject to a Restraining Order under this Bill or be prosecuted under clause 40 of the Bill?" Then, she asked about those who use umbrellas painted with watermelon: "Would individuals committing such acts be subject to a Restraining Order or prosecuted under clause 40 of the Bill?"

And my point generally was that, if it was an offence previously, it is an offence now. If it was not an offence previously, it would not be an offence now. I also distinguished between, for example, you carry umbrellas with watermelon motifs or the Palestinian headgear motif, there might be a misunderstanding. If you do that in front of the Istana or if you come to Parliament and do it, or in some other restricted place like the State Courts, you are not being charged because of carrying around a watermelon motif, but because you are breaching the protected places Act. Some places are gazetted, a certain conduct is prohibited and whether or not you are carrying a watermelon motif umbrella, you will be charged if you are engaged in activities that are prohibited. But you are not being charged for breaching sections 298 or 298A.

But if you engage in conduct, for example, "from the river to the sea", you can see the Police statement. Police statement was that it was potentially an offence. And I said if it was an offence then, it may be an offence now. I did not want to go beyond that because Police have issued a statement.

Beyond being a Bill that consolidates provisions, there are parts which are added. In fact, there are five aspects to this Bill, one of which is the porting over. There are four other aspects, one of which is the Restraining Order under clause 8. But if you look at the provisions of clause 8, the essentials that need to be satisfied, they are similar to the requirements of sections 298, 298A, except that the decision is made by the Minister. It is an executive decision. It is not a decision by the Courts. So, that is an add-on to the underlying provisions, and the Minister has to be satisfied. And the earlier discussion with Ms Lim related to the Minister's decision whether it should be final, subject only to scrutiny by Parliament or it should be subject to the safeguards of a veto by the President, if Cabinet takes one view and the Presidential Council takes a different view. So, we have that.

I do not see that that adds an additional layer of substantially restricting free speech or speech on these issues, because the underlying factors that need to be satisfied are similar to what is required under sections 298 and 298A, albeit the decision is made by the Minister. I hope I have clarified.

I do understand the Minister's explanation with regard to clause 39 and clause 40. My main query is on clause 8 – basically, how the Minister makes his decision. As he has pointed out, and this is the Minister making the decision instead of the Courts, the Courts have their own system in the decision-making. So, what I am trying to establish is what is the system that the Minister will be using? What sort of criteria? And will they be bound by legal precedence?

Sir, in the usual way, when there is a potential event which attracts clause 8, bearing in mind this is not in place yet and bearing in mind we have never had to do this under the Maintenance of Religious Harmony Act, but there would be a careful assessment made by the Ministry and obviously, the Ministry's lawyers would be involved; and almost certainly, there would be advice taken from the Government's legal officers. And then, the Minister will make a decision. But it will have to be a process that is swift and fast because of the nature of social media. But at the same time, Members will note that there are procedures for appeals and for the appeals to be dealt with. And ultimately, I have talked about the routes for challenging the Minister's decision.

Thank you, Mr Speaker. Just one last question to the Minister. So, why does the Minister see fit to give the President the veto power under the Maintenance of Racial Harmony Act, but not under FICA?

Sir, we spent some considerable time dealing with FICA. Members may recall that FICA would require the Government to act often on intelligence, on foreign influence. And often that information is not something that we can share with third parties.

Let me give you an example. If you look at FICA foreign influence countermeasures, we talked about different aspects. But let us take something that has happened internationally. Country A gives some money to a politician in Country B. You have seen enough newspaper reports. They do it covertly and they do it for the purpose of influencing the parliamentarians, journalists and others in such situations. I think I am on record as saying that many countries do it. Let us not target just one country or another. Many countries do it.

And there is record of us having been victims and there are other situations where we know that attempts have been made a number of times. Usually, it is subversive. Usually, it is covert. And usually, it is tracked through intelligence, either intelligence by ourselves or sometimes through intelligence exchange with others too.

It would be a serious prejudice to national interest if we were to go out and disclose to anyone beyond a very small group of intelligence officers the nature of this information. The idea that we can have something similar to a Presidential Council, comprising 15 to 20 people who will have access to the most classified of information, which potentially destroys our sources of information, sources of intelligence, in order to counter such influence – I cannot even begin to imagine or think that we will be doing that. So, there, it has to be kept to a very small group intentionally because of national interest.

In the context of someone talking about race, there is nothing particularly related to intelligence because it is public. The person has said what he has said and now, it is a question of assessment as to whether something ought to be done about it. And I did not see any particular issue with taking it through this route and having someone potentially review a decision that I or someone else in my position might make.

I thank the Minister for his reply. I just have one clarification. Could the Minister address my question on how the defence at clause 40(6) will be interpreted? Is it something that is meant to be interpreted narrowly or will it be considered broadly with regard to the full context of the situation at hand that is being examined? So, specifically, if we have an artwork here that is the subject of consideration, will we consider things like the artist's intention as well as the work that is the subject of the consideration?

Yes, look, I mean, it goes back to the factors that make up the offence. We look at the issues of feelings of enmity, hatred, ill will, hostility, contempt, ridicule for any race, insult, vilify, denigrate. And then, we are seeking to give a defence in this case. Unlike some other situations, here, we are actually trying to put in a defence that if the person can show and he is not required to prove it beyond reasonable doubt, but on a balance of probabilities, that his conduct, even though the conduct would be causing these effects, he acted in good faith and he actually tried to remove whatever he had done or said. That can be taken into account in considering the totality of the situation.

It is fairly straightforward. Is there any particular concern about the way it is structured?

The intention is relevant to, first of all, whether an offence has, in fact, been committed. I do not know this particular work, so I do not want to comment without knowing the details. But if you frame it as his intention, in the first place, was to educate and not to bring about enmity and ill will, and if that is believed, one has got to look at the nature of the work, what a reasonable person would think, what was his own intention in doing it; and there are a range of possibilities. One is to say, yes, it is offensive, but we think that this was the reason why he did it, and maybe, we give him a warning to not do it again. Or accept in good faith that actually, this might help in the overall maintenance of racial harmony because of the nature of the work.

Without knowing in detail what the artist has done, I am loathe to go further. But the intention behind section 40(6) was actually to try and add in additional defences to support people who might have made comments in a certain context, but then, in good faith, try and undo the damage.