By: Andrew Loh

The Court of Appeal (CA), in its recent judgement on the case between the Attorney General’s Chambers (AGC) and Dr Ting Choon Meng & The Online Citizen (TOC), laid down that the Government is not a legal person who can invoke the Protection from Harassment Act (PHA) for its benefit.

The response by the Law Ministry (MinLaw) to the court’s decision suggests that the Government will seek ways to circumvent the CA’s judgement, most probably by amending the PHA itself at a future sitting of Parliament, to declare itself a “legal person” covered by the PHA.

The opposition Workers’ Party (WP) on Sunday expressed concerns that the Government may indeed do so, “that the Government is looking into taking further action on the matter.”

The WP said:

“The focus of the debate in Parliament on the PHA in 2014 was to protect individuals from harassment. For the POHA to be used to protect the Government from “harassment” risks weakening Singapore’s climate of free speech and robust debate. It risks turning the POHA into the latest in the many tools that the Government can use against Singaporeans who publicly express different views from the Government on its policies and actions.”

The party called on the Government to “be upfront about the legislative intent of the Bills it proposes.”

“The Minister had cited reasons of justice and protection for vulnerable individuals throughout the Parliamentary debate,” the WP said, arguing that protecting individuals was the intention of the law, instead of protecting the Government and companies.

Shortly after the WP’s statement, MinLaw responded.

It claimed, as reported by TODAY, that “the issue in hand is about false information, or “fake news”.”

“At a time when false information can affect election results, contaminate public discussions and weaken democratic societies,” MinLaw was reported to have said, “it is important for the Government, as well as corporations and individuals, to be able to respond robustly to false statements that could poison public debate and mislead decision-making.”

Unfortunately, MinLaw seems to have conveniently thrown forth a red herring argument.

The issue here is not whether the Government, companies and individuals have a right to “respond robustly to false statements” being circulated. Of course they do and indeed must, at times, react empathetically to such falsehoods being perpetuated.

No one is decrying or objecting to their right to respond.

Let us be clear about this.

The Ministry of Defence (Mindef), which was the complainant in the case in which the CA laid down its judgement, has a right to respond to what it saw as false statements from Dr Ting.

And, from the two year court case which it filed against Dr Ting and TOC, Mindef did indeed respond robustly.

So the right to respond is not an issue, contrary to what MinLaw said in its reply to the WP.

The issue here, in fact, is that the Government does not and should not have recourse to the PHA, even as it has the right to respond to allegations or false statements.

The reason for this, as the justices of the CA explained clearly, is because the Government is not a vulnerable individual without means to respond through other channels than to invoke the PHA.

The CA said:

“Additionally, MINDEF was anything but a helpless victim. It is a government agency possessed of significant resources and access to media channels.”

It is worth noting the precise words of the justices: Mindef possesses “SIGNIFICANT RESOURCES AND ACCESS TO MEDIA CHANNELS”.

And one would think this applies to all other government ministries, statutory boards and institutions as well.

This is unlike the case for the ordinary person in the street, the vulnerable individuals who do not have such resources or access, which the PHA seeks to protect.

MinLaw’s reply is thus an attempt to distract from this fact – its right to respond is not begrudged. It can, and even should, respond.

What it cannot do is to invoke the PHA because it is an entity which is not devoid of significant means to respond through other means, including via media channels.

And as for those who the government may accuse of publishing falsehoods, it is also important to note the steps taken by TOC in response to Mindef’s complaint.

As noted by the justices:

The Online Citizen had, in fact, published MINDEF’s statement in full and provided a link to it from the offending article. Given all this, it is difficult to see what discernible impact the Allegations and The Online Citizen’s publication of the Allegations could have had on MINDEF’s reputation or public image.”

TOC had also written to Mindef and invited it to offer its response to the article in question, and TOC had also offered to publish any such response from Mindef.

Mindef chose not to even acknowledge the offer or invitation.

We can only conclude that the Government was not interested at all in a discussion or debate on the issue.

It only wanted to demand that TOC removed the article or include a note – from Mindef’s lawyers – in the original article, notifying readers that the claims in the article (by Dr Ting) were untrue.

TOC, in fact, acquiesced to Mindef’s demands.

Still, the ministry chose to file against TOC under the PHA.

So, let’s be clear again – TOC had done everything it could to offer Mindef a right to reply, and acceded to Mindef’s demands to post the note, and even included a hyperlink to MIndef’s statement on its (Mindef’s) Facebook page.

It is thus puzzling why the Government still chose to waste taxpayers’ money and the courts’ time, in dragging out, over two years, what is a simple case where the Government had every means to get its views across, both in the mainstream media which it fully controls, and in the alternative online media, where TOC offered it the right to respond.

One therefore can only speculate on the real reasons for the Government invoking the PHA.

What is of grave concern now is that the Government, which enjoys an overwhelming majority in Parliament, will introduce an amendment to the PHA to include itself as a “vulnerable individual”, a “legal person”, who has protection under that law.

If it does, it would be an utterly regrettable act – and it would have consequences on how we should have (or not have) faith in our laws, and whether it is worth the time and effort to seek the courts’ wisdom to clarify points of law, if the government can simply change the law if the courts do not decide in its favour.

It would be circumventing the law, the very same law which the government wants everyone else to obey.

Let’s hope the Government will abide by the law which it had itself introduced, and which the courts have now clarified.

Otherwise, the Government would be making an ass of the law.