SDP Pofma case: About facts or interpretation of data?

By Bertha Henson

I thought Singapore’s first POFMA case would be swiftly despatched. But no, it’s going into Day 2 today.  

I should have known better. This wasn’t a case between an individual who thinks that he has been wrongly accused by the G for publishing incorrect information. This was a political party which would have wanted a bigger stage to make its point. At 5pm, the Singapore Democratic Party still hadn’t finished making its case that the Manpower Minister was wrong to issue it with Correction Directives on employment/retrenchment statistics that the party had published.

An even bigger, public stage had been denied to the SDP earlier in the morning. Because it’s an appeal case under the Protection from Online Falsehoods and Manipulation Act, the recourse to the courts was by way of an originating summons. This meant that the case would be heard by a judge in chambers. SDP would have its say, the G side would have its say, the judge will ask questions and, hopefully, give a quick ruling. This would be line with promises to make the court process quick and easy. The SDP, however, wanted to convert its originating summons to a writ of summons so that it can have its say in open court. It also wanted to call the Manpower ministry as a witness to clarify the statistics.  

I was disappointed when SDP didn’t succeed in its application, even though this would mean a new hearing date and a lengthier trial process. I thought the first case of POFMA deserved a public airing. But it was not to be. 

Deputy Attorney General Hri Kumar Nair, representing the G side, told reporters that Justice Ang Cheng Hock agreed with him that there was no special reason for the case to be heard in open court.

It seemed that only two cases have made the cut so far. The first was in 2006 when the court allowed a case that Ms Chee Siok Chin was involved in to move from chamber to court. Mr Nair said that was because she had another case pending in open court which dealt with the same issues. I asked him about another case between clan associations Teochew Poit Ip Huay Kuan and Ngee Ann Kongsi that The Straits Times had referred to in an earlier news report. He was less certain of this (I’m not sure if the SDP raised it) but a check showed that the judge moved it because one side was disputing the facts of the case, and it is only through a writ that documents can be obtained through the judicial process known as “discovery’’. 

Mr Nair said that all other requests for open court hearings had failed, even on constitutional matters such as when human rights lawyer M Ravi filed a legal challenge against changes to the elected presidency in 2017.

The SDP was, of course, aggrieved. 

Speaking to reporters, Dr Chee said that job security and employability issues, including the hiring of foreign PMETs, are of “immense public interest”.

“MOM’s case is that there are interpretations and opinions,” he said. “And that being the case, the public should hear from both sides… The fact that MOM has not publicly stated its reasons for rejecting our application, all the more the public then should be able to hear it for themselves in this court.’’

That bit of legal wrangling took more than an hour. Ten minutes later, both parties were back in chambers. The SDP side was represented by its secretary-general Chee Soon Juan (yup, the Miss Chee cited above is his sister), chairman Paul Tambyah and vice-chairman John Tan. 

And I thought the saga which began on Dec 14 when the  SDP was told to append the Correction Directions on two Facebook posts and one article it posted online would be quickly settled… 

Since the case was heard in chambers, we can only depend on what the SDP leaders tell us about what happened. Mr Nair, a former PAP MP, declined to speak, saying that the case had not ended. In fact, he hadn’t even begun to give the G side of the story.

I thought to myself: Surely, it can’t be so difficult for the judge to decide whether the two falsehoods which the Manpower minister pointed out were really falsehoods? It’s either yes or no, isn’t it? 

Based on what the SDP leaders said had happened in chambers, many other aspects came into play, so much so that I was beginning to think that hearing was about the exercise of POFMA in general, rather than about specific falsehoods. 

To summarise, the SDP thinks that POFMA should be directed at “obvious’’ and deliberate falsehoods rather than interpretations of data and fine details, such as the number of data points and the time frame. In other words, POFMA was wrongly used in the SDP case. 

The facts the SDP put out are verifiable and based on the ministry’s own data, said Dr Chee. MOM’s objections had to do with finer details, such as whether the right time-frame or correct denominator was used. There will always be disputes over how the data is used, what sorts of data and conclusions drawn, and “we can argue till the cows come home’’, he added. The minister, however, was putting out data in different ways to make the point that SDP was wrong. She was also maintaining that some people would misinterpret the SDP data, although POFMA doesn’t cover interpretations of fact, Dr Chee said.

I asked him if making “misleading’’ statements which POFMA also covers, was applied then.  He replied that the term used by MOM was “false statement of fact’’, not misleading. 

Both Dr Chee and Dr Tambyah said that this point on “how the average person would understand the facts’’ was also raised by the judge. They told the judge that average person would look at the facts published based on his own experience of having to compete with foreign PMETs who are willing to work for less. “And there was enough data, plus published data from mainstream media,’’ maintained Dr Tambyah. He added that the average guy isn’t going to get into statistical analysis and data sets which only academics like himself would be interested in.

Asked about the cost of the hearing, Mr John Tan said the party had spent more than $900 so far on filing fees. Part of this sum includes $500 for the filing of Originating Summons, according to existing court rules. This is higher than the $200 fee individual appellants have to pay because the SDP is standing in court as a political entity. The party had wanted all three representatives to speak at the hearing but the Supreme Court’s practice directions stated that only one legal counsel represented in each party can make submissions and question witnesses. In this case, it was Dr Chee himself since the SDP did not engage a lawyer.

Later in the evening,  the SDP  put out its own news report of what happened in chambers – and I was wondering if the G side would put out its own. (That’s the trouble when there is no objective observer of an event.) What the G did do, however, was put out a statement saying that the AGC will address the issue of the time period of the labour statistics today when it presents the MOM’s arguments to the judge.

No doubt, the AGC will do more than that.

So were the facts SDP put out “facts’’ or were the facts “twisted’’ and therefore false, and where does interpretation of nitty-gritty data come in? Whether the decision goes one way or the other, let’s hope the judge will shed more light.

My thanks to NUS undergraduates Daryl Choo, Liang Lei, Wong Shiying and Sean Lim for helping me with the reporting and research.