Singapore Democratic Party v Attorney General  SGCA 96
Between June and December 2019, the Singapore Democratic Party (“SDP”) published (on their website and by way of hyperlinks to Facebook posts), an article on their population policy (the “SDP Article”). The SDP Article said, among other things, as follows:
“The SDP’s proposal comes amidst a rising proportion of Singapore PMETs getting retrenched. Such a trend is partly the result of hundreds of local companies continuing to discriminate against local workers.”
On 2 December 2019, the SDP published a Facebook post with an illustration. The illustration was of two graphs side by side, depicting “local PMET employment” decreasing and “foreign PMET employment” increasing (the “SDP Graphic”). This Facebook post also contained a link to the SDP Article.
On 14 December 2019, three Correction Directions (“CDs”) were issued to the SDP on the authority of the Minister of Manpower. The first two related solely to the SDP Article. The third CD related to both the SDP Article and the SDP Graphic. The “subject statement” in the SDP Article that was said to be false was this: “Local PMET retrenchment has been increasing”.
The allegedly false subject statement that the SDP Graphic was said to have communicated was this: that “local PMET employment has gone down”.
On 8 October 2021, the Court of Appeal (“CA”) set aside the third CD to the extent that it related to the SDP Graphic.
The Judgment addressed many key constitutional issues, as well as issues relating to the parties’ rights under POFMA. The key issues are discussed below.
Constitutional protection over statements identified by the Minister as being false
The CA rejected the Attorney General’s argument that a statement that has been identified as false by the Minister does not attract the right to freedom of speech under Article 14(1)(a) of the Constitution. This is because a statement cannot be taken to be a false statement of fact simply because the Minister has identified it to be so, since the Minister may be mistaken. As such, the Court of Appeal held that a statement that has been identified as a false statement of fact continues to enjoy protection under Article 14(1)(a) of the Constitution “at least until it has been judicially determined to be a false statement of fact”.
The CA considered that it was arguable whether the right of free speech under Article 14(1)(a) of the Constitution protected false speech in cases where the Court has decided that the statement complained of was in fact false.
It is submitted that, since “false speech” is not enumerated under Article 14(2)(a) of the Constitution as an exception to the right of free speech, the recognition of false speech as such an exception would be a new, unenumerated exception to the right of free speech.
This would be a very significant development in Singapore’s constitutional law and the point could be an important one for final decision in a future case.
The CA considered both the positive right of free speech (ie the right to make statements) and the negative right of free speech (ie the right not to be compelled to make statements). The CA decided that the positive right of free speech is not impacted by the issuance of a CD, because it does not curtail the right of the statement maker to continue publishing the statement, so long as he also puts up a correction notice in the form and manner prescribed in the CD.
The CA declined to decide the question of whether or not the negative right of free speech, or the right not to be compelled to make a statement, enjoys the protection of Article 14(1)(a) of the Constitution, but held that, on the facts of this case, even if it did, the doctrine of compelled speech would not apply. This is because, the CA found, in order for a statement to be said to constitute compelled speech, it must be shown that the statement maker was not only compelled to communicate the correction prescribed in the CD; it must also be shown that the statement maker was actually or effectively prevented from communicating, in an equally visible way as the correction notice that it was required to put up, that
the CD was being challenged, and that any grounds for setting it aside remained subject to judicial determination. On the facts of this case, the CA found that no such restriction had been proven to exist.
Proper identification of the subject statement
The CA agreed with the SDP’s argument that the Court cannot go further than the subject statement identified by the Minister in the CD. As such, if what the Minister has identified as the subject statement has not in fact been made or contained in the subject material upon a reasonable interpretation of it, then the court cannot go further and find that the CD may be upheld on the basis of some other subject
statement that has not been articulated in the CD, even if that statement might be thought to be a reasonable meaning of the words used in the subject material.
Meaning of the subject statement
In interpreting the meaning of the subject statement, the CA held that an objective approach is taken – the subjectively intended meaning of the statement is irrelevant. The test to be applied is this: the Court will interpret the statement objectively in its proper context and ask whether, regardless of the subjective intention of the statement maker (including the statement maker’s subjective intended meaning), there would be at least an appreciable segment or a particular class of the potential readership or audience of the subject material in Singapore who would construe it as making or containing the subject statement, or regard the subject statement as a reasonable interpretation of the subject material. In interpreting the subject statement, the court approaches the issue as a matter of impression and will not engage in a fine-tuned legal interpretation or unduly technical analysis.
Burden and standard of proof
The CA took a nuanced approach on this. Although the CA decided that the burden of proof in applications to set aside the CDs was on the statement maker, the learned Judges of Appeal also held that the basis for a CD, which must be identified in a correction notice, must go further than amount to a mere assertion that the subject statement is a false statement of fact. It must state the reasons for the underlying determination that the subject statement is a false statement of fact, including the grounds upon which the determination is made. Presumably, if the grounds given are inadequate, a CD may be set aside on that ground alone. In that sense, the Minister is required to discharge something approaching a burden of proof.
The CA also decided that the standard of proof that a statement maker would have to meet to discharge a CD is the same as the standard that applies to applications for leave to bring judicial review proceedings – and that is that a statement maker need only show a prima facie case of reasonable suspicion that one or more of the grounds for setting aside the CD is satisfied. The CA explained that this initial standard of prima facie case of reasonable suspicion is not a high bar to meet. What is required by this test is that there must be some material which might, on further consideration, turn out to be an arguable case in favour of granting to the applicant the relief claimed.
Construction of the subject statements
It was argued on behalf of the SDP that the subject statement identified by the Minister in the SDP Article-related CDs was that local PMET retrenchment has been increasing in absolute numerical terms. However, the SDP Article spoke only of a rising proportion of unemployment among Singapore PMETs. Hence, the subject statement identified by the Minister was not communicated in the SDP Article and the SDP Article-related CDs should be set aside.
The CA agreed that the subject statement identified by the Minister spoke of absolute numbers and not a proportion. However, the CA went on to hold that since the subject statement did not state the comparator against which the retrenchment of Singapore PMETs was being measured, the ordinary reader would gloss over and attach no weight to the word “proportion” in the sentence complained of. As such, looking at the SDP Article as a matter of impression rather than a fine-grained or unduly technical analysis, the CA was satisfied that at least an appreciable segment or a particular class of the potential readership or audience of the article in Singapore would interpret the statement as referring not to a rising proportion of Singapore PMETs being retrenched, but instead to a rising number of Singapore PMETs being retrenched. As such, the CA upheld the SDP Article-related CDs.
As for the SDP Graphic–related CD, it was argued on behalf of the AG that the word “local” in the SDP Graphic was a reference to Singapore citizens and permanent residents, and on that basis, the statement was false. It was argued on behalf of the SDP that, read in the context of the article of which the SDP Graphic was part, it was clear that the term “local” was a reference only to Singapore citizens. The CA agreed with the SDP that, on an objective reading of the article as a whole, there would not, on a balance of probabilities, have been any appreciable segment or any particular class of the potential readership or audience of the post in Singapore who would have construed the word “local” in the SDP Graphic as
meaning anything other than Singapore citizens, excluding permanent residents. As such, the CA set aside the SDP Graphic–related CD.
To address the difficulty that may arise out of the fact that an unintended meaning may be ascribed by the Minister to a subject statement, the CA suggested that in such cases the statement maker should disavow clearly and unequivocally to the target readership of the subject material in its original published form the Minister’s intended meaning and any association with it. The CA suggested in its judgment that this may provide a viable way to object to the Minister’s intended meaning in respect of the subject statement. As such, it appears that, if the Minister identifies an unintended meaning in a statement, the statement maker should first disavow that meaning, and then apply to set aside the resultant CD.
The judgment seeks to develop a framework for the operation of POFMA, and traverses a great deal of important ground from the constitutional right to free speech to the mechanics of POFMA itself. Useful guidance is given to statement makers whose statements are misinterpreted by the Minister in any CD.
There remain important points that will need to be addressed in future cases, such as whether or not compelled speech falls within the right to free speech and if so the full parameters of that right – it is respectfully suggested that the ability to say that a statement is compelled does not necessarily make the statement any less compelled. Another important issue to be decided is whether or not, in addition
to the exceptions to the right of free speech that are enumerated in Article 14(2)(a) of the Constitution, there exists another, unenumerated exception, which would have it that false speech may be legislated against, even if the subject matter of the false speech does not fall within Article 14(2)(a).
Future cases may also need to explore the parameters of the test to be applied in deciding whether there would be an appreciable segment or a particular class of the potential readership who would understand the relevant subject statement in the manner in which it is interpreted in a CD.
PK Wong & Nair’s Suresh Nair acted as counsel for the SDP in its partially successful appeal.