AGC POHA APPEAL: AN ABUSE OF COURT PROCESS, A WASTE OF TAXPAYER’S MONEY

The courts have now given its final decision, after a two year battle involving the Attorney General’s Chambers, representing the Government, and lawyers working on behalf of Dr Ting Choon Meng and website, The Online Citizen (TOC).

On Monday, the three-men panel of the Court of Appeal (CA), in a rare split decision, ruled that the Government is not a legal person, and thus has no recourse to invoke the Protection of Harassment Act (PHA) to defend itself from allegations made by Dr Ting.

In brief, the case court case centred around a report of an interview which TOC conducted with Dr Ting on his own earlier tussle with the Ministry of Defence (Mindef) over patent rights to a military emergency mobile clinic.

Mindef took offence at some of the things claimed by Dr Ting in the interview, which was published in January 2015.

Shortly after, the AGC began legal action against both Dr Ting and TOC, accusing them of propagating false statements.

The court battle lasted two years, until Monday’s ruling by the CA which upheld the original High Court decision in favour of the respondents – that the Government has no legal standing as a “person” to invoke the rights under the PHA.

It has always been evident to this writer that the Government’s action, through the AGC, was an abuse of the PHA and the court process, and a wastage of taxpayers’ money.

If one goes back to the spirit of the law, and the context and intent of Parliament in enacting the PHA in 2014, it is clearly evident that it was meant to avail victims of harassment some sort of redress.

And it is also clear, from the parliamentary debate on the Bill, that victims were real, flesh and blood, natural persons; not corporate entities, government institutions or the Government itself.

Indeed, the CA, in its judgement, said as much.

“[Merely] looking at the text of section 15 shorn of (and in isolation from) its context will result in a distortion of what, in our view, was the actual Parliamentary intention behind the promulgation of this particular provision,” the CA said in its written judgement, referring to the section of the PHA in question.

The two judges who ruled against the AGC, Chao Hick Tin and Andrew Phang, also referred to the parliamentary speech of the Law Minister, K Shanmugam, in arriving at their decision in favour of Dr Ting and TOC.

“It is clear that the Minister’s focus was solely on human beings (as opposed to other entities),” the judges said.

But we really did not need our highly esteemed judges to tell us this.

A simple reading of the parliamentary debate on Hansard, the official Parliament record, shows very clearly Parliament’s intent.

For in the entire debate on the Bill, there was no mention at all by any minister or Member of Parliament (MP) that the Government or a corporate entity or a government-linked institution is to have recourse to the PHA.

This fact did not escape the two judges who said “it is curious that there is no reference whatsoever [during the parliamentary debate] to such other entities.”

“More importantly,” the justices said, “the detailed speech by the Minister points, in our view, to a more general and universal rationale that undergirds s 15 – that s 15 was intended by Parliament to confer upon human beings (only)…”

What is noteworthy is also the facts that upon receiving the initial letter of demand from the AGC, which included a note which the AGC demanded TOC put up on its website together with the report in question, TOC did so immediately.

And this was after TOC had also published Mindef’s response to Dr Ting’s claims, with a url hyperlink to Mindef’s statement on its Facebook page.

TOC had, when it published the report, also invited Mindef to share its views. Mindef, however, chose not to respond to the invitation.

So, when the AGC began legal proceedings against TOC, it was quite a surprise, given how TOC had been opened and prompt in putting up the AGC’s note and Mindef’s statement.

But the bigger issue here is this: should the Government, which itself introduced the PHA and had a lengthy debate in Parliament about it, know better than to have wasted taxpayers’ money by bringing the case to court?

It cannot be that the MPs belonging to the ruling party, which has an overwhelming majority in Parliament, did not at all raise a single question about the PHA’s umbrella of protection for corporate entities and government institution, if that was in fact what was intended.

Indeed, the CA noticed this disparity.

It said that if it were to accept that the PHA was also meant to protect such entities and institutions, the Act would “sit incongruously (and be out of sync) with the other provisions of the Act, especially when the Act is viewed as an integrated as well as holistic whole.”

And note this important explanation the CA provided:

“As already emphasised, the fact that at no time was there any discussion with regard to the rights of entities (other than human beings) pursuant to s 15 is itself telling. We say this because the extension of such a general right (as was argued for by the appellant) would necessarily entail a myriad of possible scenarios (and, more importantly, the accompanying policy issues, if nothing else, because there are so many possible organisations (both governmental and non-governmental and large as well as small) as well as possible scenarios (for example, as between organisations and individuals or as between organisations themselves) that would have merited more discussion as well as elaboration (which might even have led to the tweaking of s 15 or additional provisions or even new legislation)).”

The PHA was enacted following extensive public and private discussions with social workers, schools, parents, etc on the problem of bullying and harassment faced by students, children, women and the vulnerable.

It was thus a welcome and good move by the Government to introduce a law to grant them some protection from this.

Unfortunately and sadly, in its enthusiasm to go after online alternative news sites, bloggers and activists in that period (which saw the government take legal action to close down a popular blog, and sue others for defamation) just months before the General Election of September 2015, it overreached and abused the PHA for its own political ends.

It is thus satisfying that the Court of Appeal has now checked the Government’s actions, and reined it in.

It is ridiculous and indeed laughable that a Ministry of Defence can claim to be harassed by one single blog post.

And even if it can claim that, it is still an abuse of the law and the court process to ask for the right to have the article removed, given, as earlier mentioned, the steps TOC had already taken to highlight Mindef’s side of the story, including writing to Mindef for its views, which the latter apparently declined to give.

“It is a government agency possessed of significant resources and access to media channels,” the CA said in its ruling, referring to Mindef. “In the present case, MINDEF was able to put across its side of the story through traditional media as well as on its Facebook page. 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.”

And the CA added:

“For these reasons, even if we were to accept that s 15 applies to entities such as MINDEF, we would not have found it just and equitable to grant a s 15 order.”

The Government, the AGC and Mindef ought to be ashamed of themselves for first abusing the law for their own selfish aims, and for wasting the court’s time and taxpayers’ money.

The PHA is a good law meant to protect vulnerable people of untoward behaviour.

Keep it that way. And keep the government out of it.

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