By Thio Li-ann
My chapter is one of a collection of selected essays published by Routledge in Fundamental Rights, Religion and Human Dignity: A Constitutional Journey (edited by Javier Martínez-Torrón and myself) which have their origins in papers presented at the Sixth Conference convened by the International Consortium for Law and Religious Studies (ICLARS), which took place in Cordoba, Spain in September 2022. The conference theme was ‘Human Dignity, Law and Religious Diversity: Designing the Future of Inter-Cultural Societies’.
The chapter focuses on the function of law which transcends the Austinian ‘Command and Control’ vision of law, in the form of legal sanctions, as well as the liberal preoccupation of rights as autonomy-maximising vehicles. Its concern is with the role of law as part of the peace architecture, how it may facilitate conciliation and reconciliation in the event of religious disharmony disputes, within religiously diverse societies, beyond the judicial setting.
It focuses on Singapore, which manifests a distinctive approach towards managing ‘disharmony’ disputes, within the world’s most religiously diverse polity. This is situated squarely within my broader concern with ‘relational constitutionalism’, which views the constitution as an institution, where the constitutional order is founded not only on text or case law, but on what Karl Llewellyn described as ‘a set of ways of living and doing’. The goal of relational constitutionalism is to secure the relational well-being of individuals and groups and to preserve sustainable relationships, which is key to cohesive societies which are religiously and ethnically rifted. This gels with Seow Hon Tan’s Justice as Friendship: A Theory of Law (Ashgate 2015), where friendship as a universal ideal is seen to generate reasonable expectations and obligations between friends, as distinct from ‘enemies’, the key Schmittian dichotomy in describing political relationships. The focus is thus not only on rights, but on maintaining right relationships, which embodies a vision of the virtuous citizen and the common good
Applied to citizens in communitarian democracies like Singapore, justice requires that citizens should inter-relate in a manner which shows concern for the well-being of fellow citizens and the holding of reciprocal obligations to seek peace and pursue it, in the event of a ‘disharmony event’, rather than demonizing and ‘othering’ a person, perpetuating agonistic social relations predicated on rigid villain/victim binaries. This commitment comports with the cardinal value of human dignity, which is grounded in reciprocal respect, translating into a willingness to remedy dignitary harms and build friendly relations.
The principle of ‘racial and religious harmony’, a shared value (White Paper on Shared Values) is arguably an implied constitutional norm or expansive construction of “public order”. Under article 15(4) of the Singapore Constitution, the religious liberty to profess, practice and propagate one’s religion is subject to the restraints of public order, health and morality. ‘Religious harmony’ speaks not to the absence of conflict but the quality of relationship, of solidarity and common purpose, of the constitution as a covenant predicated on enduring partnership and a rejection of tribalism. It points to the importance of a reconciliatory approach to damaged relations, as compared to a rights-based approach which is adversarial, where an open trial may sustain ill-will and hostility between groups. The spectre of the Maria Hertogh trial is often raised in this respect. Law not only governs the rational person, but must make provision for the emotional person; it must take emotions seriously, as befits a polity which has laws relating to the upsetting of ‘religious or racial feelings’, or even a mandatory ‘cooling-off day’ before voting in general elections, to encourage deliberate reflection, to deflate passion.
Religious liberties must be exercised in a manner which do not undermine ‘religious harmony’. In this respect, ‘rights’ in Singapore are treated in structural terms, rather than as ‘trumps’ after the ‘liberalism of fear’, as integral, rather than oppositional, to the common good. Rights optimize liberty, solidarity, order and welfare. The principle of ‘racial and religious harmony’ is not a product of judicial interpretation, but executive interpretation of constitutional norms, part of the ‘constitution beyond the courts.’ In the Singapore context, ‘religious harmony’ may be viewed as a ‘soft constitutional norm’, articulated by the government within a dominant party state in a publicly accessible document which is not legally binding, but has some legal effect. The starting point for the content of what ‘religious harmony’ requires may be found in the 1989 Maintenance of Religious Harmony White Paper, a prelude to the 1990 Maintenance of Religious Harmony Act (MRHA), which was amended in 2019. Religious freedom is predicated on accommodative secularism, which the Court of Appeal in Nappalli v ITE [1999] 2 SLR 569 described as ‘removing restrictions to one’s choice of religious belief.’ Religious harmony requires that the constitutional right to propagate one’s faith to another, for example, must be done in a manner which is sensitive and does not denigrate other belief systems. The tenets of religious harmony in the white paper have been elaborated upon in the 2004 Declaration of Religious Harmony, authored by religious leaders under the supervision of a junior minister, and the 2019 Commitment to Safeguard Religious Harmony, authored by members of the non-government Inter-Religious Organisation (IRO). This forms the normative reference point in the event of a disharmony event, which has ‘precedential’ value and generates expectations and what I have described as a public ritual. That is, when a disharmony event occurs, the offending party should tender an apology to the offended party who should accept this; this may be followed by visits accompanied by the media to demonstrate reconciliation, inter-faith concerts, fellowship meals, conciliatory statements issued by the parties and religious representatives like the IRO extolling the common good of religious harmony.
When peace is brokered, the government, having taken a background role, may then issue an approving statement or Facebook post declaring mutual forgiveness to be the ‘Singapore Way’. I explore this in relation to three incidents which took place over a decade: the Lighthouse Evangelism (2010), Imam Nalla (2017) and Kingdom Invasion Conference (2018) incidents. This shows how soft norms may generate expectations which influence the behaviour of these actors. Finally, I examine the apparent attempt to formalize this informal practice through the unique Community Remedial Initiative (CRI) under section 16H of the Maintenance of Religious Harmony Act (2019 Amendment), which was substantially copied in the recently enacted Maintenance of Racial Harmony Act in February 2025. Essentially, a person who has committed certain MRHA offences such as a blog post which offends a religious group, may not be prosecuted if he voluntarily agrees to a CRI agreement which is focused not on punishment but on rehabilitation and restoration of damaged community relations. The rituals of contrition are not stipulated but could include visiting a place of worship to meet the offended parties and learn about their faith, or tendering apologies, though apologies are not to be coerced as this would be disproportionate, humiliating and would undermine human dignity, freedom of conscience and could constitute compelled speech. Further, insincere apologies would do little to restore relationships.
In this regard, law takes on the function of being an instrument in service of reconciliation, by creating a non-law space where strained relationships and hurt feelings can be addressed, where apology, forgiveness and peace is possible. The CRI is an ‘institutional nudge’ by which the government may intervene with carrots and sticks to shepherd people towards beneficial, desirable behaviour, which may produce meaningful, relational reconciliation. Law then not only relates to obligations; it generates expectations and nurtures aspirations; ‘religious harmony’ thus envisaged engages a broader moral vocabulary than liberal legalism’s preoccupation with sanctions, rights and courts – it considers rights in relations to duties, civic virtues and public goods, reflecting the brand of legal communitarianism extant in Singapore.
Keywords: Relational Constitutionalism, religious freedom, non-judicial dispute settlement; Singapore constitutional law
AUTHOR INFORMATION
Thio Li-ann is Provost’s Chair and Professor of Law at the Faculty of Law, National University of Singapore (NUS).
Email: lawtla@nus.edu.sg