SDP Pofma case: Too bad SDP, but thank you anyway

By Bertha Henson

I’m glad the Singapore Democratic Party challenged the Corrective Order in court, even though it lost. Truth to tell, I didn’t think it had much of a leg to stand on, no matter how hard it tried to attach different time frames or use different terms to support its assertion that “a rising proportion of Singapore PMETs (were) getting retrenched’’.

 It’s a statement, not an opinion, Justice Ang Cheng Hock declared. 

If the SDP had been more meticulous about its phrasing, it would have got the statement right – that the proportion of Singapore PMETs retrenched out of total numbers retrenched, was rising. And for good measure, date the data and name the source. 

As it is, it complicated matters with a chart with two arrows pointing in opposite directions on the employment of local and foreign PMETs. No need to guess which way which arrow pointed.

So what was the argument about?

It’s not about whether readers can understand the term “proportion’’, which Deputy Attorney-General Hri Kumar Nair had argued was jargon beyond the ken of the ordinary person. It’s about what the proportions relate to – total number of Singaporeans employed or PMETs as whole, just Singaporean PMETS or whether it includes permanent residents and the various ways which the SDP had tried to parse the sentence in court. 

The net effect would be that someone reading any of the two posts and one online article it had published would assume that citizen PMETs were having a tougher time than foreigners in holding down their jobs and can expect worse to come. 

What I am pleased with:  we now have a judge explaining how the Protection from Online Falsehoods and Manipulation Act works. This is a neutral party, not someone in the G defending a law that it had got through Parliament. Not someone who has a say-so on what is true or false. Not the government’s lawyer. 

What is being argued here about the statements SDP made? That they are not factual statements? That it is really an opinion and hence not covered by POFMA?  Or different interpretations of a fact? 

From what I can tell, it is about how the SDP’s statements can be interpreted, and whether this interpretation is the right one. So in this case, the Manpower Minister said that the SDP’s statements are false because people would think that local PMET numbers are going down and more Singaporeans PMETs, compared to foreign PMETs, are getting retrenched. 

Should it matter if the minister’s interpretation is one of several that can be made? DAG Kumar had argued that POFMA is a broader law than defamation and if just one interpretation can be false,  the Correction order should stand. The judge didn’t agree nor disagree with this Single Meaning or Multiple Meanings argument. (You can read about this here) He said it was not essential to the case before him and noted that the SDP side didn’t have legal counsel to flesh out the issue. 

But he seemed to be concerned enough to ask the G side elaborate. 

“In addressing the Court’s concern that this would permit the Minister to fixate on one meaning which is false out of many which are true, and on that basis activate the use of the POFMA, DAG Nair argues that, in reality, there would probably by only two or three possible reasonable meanings that can arise from any statement or depiction.’’ 

(So can the next person who challenges POFMA please get legal counsel?) 

What, in my view, was the most important part of the judgment was about who should bear the burden of proof. Should the onus be on G side to show why its Correction directives should stand, or should it be the person who receives the order to prove that those directives were wrongly conceived? 

The G side argued that the minister had already given her reasons, and rejected the SDP’s appeal. If, after this process, the SDP wants to appeal to the courts, it should be up to the appellant to argue that what it had said was “true’’.

DAG Nair said: “If the statement-maker elects to bring the matter to Court even after learning of the Minister’s reasons and evidence, logic dictates that he ought to bear the burden of proving that the statement is true in those proceedings.’’ 

The SDP side said no, adding that the minister must prove his/her case since this was an imposition on a citizen’s right of free speech. 

“Members of the public making various statements online cannot be reasonably expected to discharge the burden of proof because they do not have access to the required documents and data, most of which, would be held by the government,’’ it said.

The judge agreed with the SDP: “The constraint on the appellant’s right to free speech in the form of the CD would not exist but for the Minister’s attempt to impose it, and accordingly, it is the Minister who desires this Court to give judgment that the appellant’s rights should be curtailed.’’

He added that POFMA rules provide that the appeal should be “by way of re-hearing’’. As he saw it, this meant that whatever the minister had said earlier in the directives, which is an “administrative (non-judicial) decision”, shouldn’t tie down the judiciary’s deliberations.  

Justice Ang also did not think that it was the intention of Parliament to have the statement-maker bear the burden of proof, or the law would have been clearer on this. 

“There is a clear information asymmetry between the Minister on one hand, and the maker of a statement being challenged under POFMA on the other. Unlike the Minister, who is able to rely on the machinery of state to procure the relevant evidence of falsity, the maker of a statement often has to contend with far more limited resources. For a statement-maker, who may be an individual, to bear the burden of proof would put him in an invidious position.’’ 

To cut a long story short, he thinks it must be for the minister to prove that the statement is false — and give evidence to support his reasons.  

“The respondent’s argument that the appellant should bear the burden of proof means that, in a hypothetical situation where the Minister or respondent completely fails to provide any evidence of the falsity of a particular subject statement, the respondent could still succeed in having the appeal … dismissed. This is despite the fact that it is the appellant’s right to free speech which the Minister seeks to infringe upon.’’ 

What does this have to do with the case at hand? 

For the SDP, nothing, as the judge accepted that the minister had made her case or “discharged the burden of proof’’. 

What was interesting was how the judge ticked off both sides for carping about each other’s intentions with labels such as “dishonest’’ and “disingenuous’’. POFMA doesn’t care about intentions and this was an originating summons, not a criminal case, anyway. And for good measure, he added that the “desirability” of policies wasn’t the judiciary’s business.

But this judgement has wider implications for transparency. It means that it is not enough for ministers to merely assert that something is false. He or she has to put out some hard evidence to support his case. In other words, evidence of the statement’s falsity. It’s a win for those who feel that the ordinary citizen is disadvantaged when it comes to an argument with the G. Even though it is a small win. 

Thank you SDP.