Possible amendment to POHA: Should Singaporeans listen to ‘experts’ or Appeal Court, Pritam Singh asks

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Singapore Management University law don Eugene Tan speaking to Today newspaper said that since there are dozens of online platforms passing off falsehoods as “citizen journalism”, and since individuals are increasingly empowered by social media to harass organisations, the possibility of amending the Protection from Harassment Act (Poha) to include entities such as the Government is a welcome one.

“Otherwise, a public body might have to spend (an) inordinate (amount of) time and other limited resources to defend itself … In today’s world of pervasive social media, the ability of an individual to harass an organisation is real and the real threat posed by false information cannot be underestimated.”

He added the Poha, if applied to non-natural persons, will “fill a lacuna in the law”. Mr Tan was responding to the recent Appeal Court’s 2-1 split decision ruling that government agencies do not fall under the legal definition of “persons” in Section 15 of the Poha. He claimed that it is not a question of whether entities require protection from harassment and falsehoods, but that it was about protecting public bodies from having to devote resources in what may amount to a “war of attrition”, and ensure as little misinformation as possible.

Two other lawyers interviewed by the newspaper agreed with Mr Tan’s views as well.

The Workers’ Party (WP) recently voiced concerns that the Government may amend the Poha, and promised to “vigorously oppose” any such move to amend Section 15 to allow the Government to invoke it.

The Ministry of Law (MinLaw) responded to WP saying, “everyone, including the Government, should be entitled to point out falsehoods which are published, and have the true facts brought to public attention”.

The WP issued a sharp rejoinder to MinLaw’s reply saying it did not address key points raised in the Workers’ Party’s original statement, namely:

  • If the intent of the POHA was to protect the government, be it from either false information or harassment, why was this not stated in Parliament in an upfront and unambiguous manner? When moving the Bill in March 2014, why was the need to protect the government not directly explained at all? The government’s Parliamentary speeches in moving the bill focused on protecting individuals from harm – a fact highlighted by the Court of Appeal in its majority judgment in AG Vs Ting Choon Meng. Had the government intended the POHA to be used to protect itself, it ought to have explained and defended this application of the law explicitly and directly during the Parliamentary debate rather than focusing that debate on the protection of individuals.
  • Why does the government need these extensive provisions under the law to protect itself, whether from false information or harassment, given the vast media resources at its disposal to put across information in the public domain?

Writing in Facebook about the law don’s and the other lawyers’ views as reflected in the Today newspaper, WP’s assistant secretary-general Pritam Singh asked if Singaporeans should listen to the “experts” or to the Court of Appeal.

He shared the Court of Appeal’s judgment on the case to his post and in particular the para which read:

“such efforts to present different sides of the story should be encouraged. Additionally, MINDEF was anything but a helpless victim. It is a government agency possessed of significant resources and access to media channels….” – para 45 of the Court of Appeal judgment in “Attorney-General vs Ting Choon Meng and Anor” [2017] SGCA 6

and said that the experts should “engage the issues more deeply and consider the incredible disparity between the position and power of the Government (as alluded to in the judgment) and that of ordinary individuals and corporates.”

He added: “That point is at the heart of this debate which, lest we forget, takes place in the context of a powerful one-party dominant state.”

Past precedents show that the PAP government is not averse to amending Laws after losing their case in Court. For example, in the case of the alleged Marxist conspiracy, the government amended the Law to prevent appeals to the highest court then – the Privy Council.

The law relating to appeals to the Judicial Committee of the Privy Council was also changed after it ruled in 1988 that opposition stalwart, the late J B Jeyaretnam, be restored to the roll of advocates and solicitors.

More recently, the Court of Appeal twice pronounced that in cases of Contempt of Court, government must prove real risk – overruling the previous test of inherent risk – of undermining the administration of justice.

Applying the real risk test, prominent blogger Alex Au was cleared of Contempt of Court by the High Court for publishing an article which referred to legal proceedings brought by a man who claimed he was harassed into resigning from department store Robinsons because he is gay. Au wrote in his blog that he did not have high hopes for the case as his confidence in the judiciary was “as limp as a flag on a windless day”.

The government then introduced the Administration of Justice Act which amended the Law and restored the previous test of inherent risk.