Pofma curtails constitutional right to free speech, SDP argues in apex court appeal

SINGAPORE – The Singapore Democratic Party (SDP) on Thursday (Sept 17) presented its appeal in the apex court against correction directions issued to it under the fake news law, mounting a fresh argument that the law is a serious restriction on freedom of speech guaranteed in the Constitution.

The party’s lead counsel, Mr Suresh Nair of law firm PK Wong & Nair, argued before five judges in the Court of Appeal that public interest has been defined in the Protection from Online Falsehoods and Manipulation Act (Pofma) in overly broad terms.

He added that it goes beyond the permissible constraints on freedom of speech outlined in Article 14 of the Constitution and is invalid.

The court, comprising Chief Justice Sundaresh Menon and four Judges of Appeal – Justices Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong – reserved judgment.

They gave Mr Nair four weeks to submit his written arguments on the constitutionality of Pofma’s provisions, which had not been made previously in the SDP’s failed appeal in the High Court. Justice Ang Cheng Hock had dismissed the appeal in February.

Another issue arising from the case is the question of whether a correction direction should be upheld even if the court disagrees with the minister’s initial interpretation of the targeted statement.

In the SDP’s case, Manpower Minister Josephine Teo had ordered corrections on the grounds that the SDP had falsely claimed the retrenchment of local Professionals, Managers, Executives and Technicians (PMETs), as an absolute number, was on the rise.

Justice Ang disagreed with this interpretation as the article that attracted the corrections had referred to a “rising proportion of Singapore PMETs getting retrenched”.

Interpreting it to mean an absolute number would ignore the word “proportion”, he had said.

On Thursday, the Attorney-General’s Chambers (AGC) said Justice Ang had taken too literal an approach in focusing on the word “proportion”.

But Justice Phang criticised the AGC’s argument as “so much juggling and semantic manoeuvring” and said it did not make sense.

“In this day and age, I think most people who can read English would understand the word proportion. In my view, trying to interpret that as an absolute number would be unreasonable.”

Despite disagreeing with the interpretation, Justice Ang had upheld the correction after finding an alternative interpretation of the phrase to mean that the share of retrenched local PMETs as a proportion of all local PMET employees had been increasing – which was still false.

Mr Nair argued that Justice Ang had erred in doing so as the correction directions were issued on the basis of the earlier interpretation which had been rejected.

He said the minister should be bound to the interpretation originally set out in the correction and not be free to “move the goalposts” to another interpretation that emerges later on.

Ms Kristy Tan of the AGC responded that the minister has the power to vary the correction direction, but CJ Menon pointed out that Mrs Teo did not do so despite an invitation from the High Court.

Justice Chong said: “We shouldn’t anticipate that the minister will issue the varying subject statement, particularly in this case when, having been invited to do so, she declined to do so. So why should we uphold a subject statement (which had been provided by Justice Ang) in anticipation that the minister will (vary the correction direction)? “

CJ Menon also dealt with the question of where the burden of proof lies in Pofma cases.

In the SDP’s case, Justice Ang Cheng Hock had ruled that the onus is on the Government to prove the targeted statement false, but Justice Belinda Ang had held in TOC’s case that the statement maker bears the burden.

CJ Menon suggested that there could be a third way to approach the matter and characterised a Pofma case as being about “an administrative decision taken by the minister in the exercise of his or her statutory power”.

A person who challenges a correction direction is essentially arguing that the correction was not issued with a proper basis, CJ Menon said, adding that a challenge of statutory powers would usually involve a process known as a judicial review.

Similar to a judicial review, it should be incumbent on the person challenging the correction direction to establish a prima facie case by raising an objective basis for claiming that power was not correctly exercised, said CJ Menon.

“Once you show that and establish that there is something to be examined, then the burden shifts and it becomes incumbent on the minister to make good the falseness of a statement.”

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