MINDEF and Dr.Ting: It is not over yet

(This article was first published on www.rangosteen.com)

The decision arrived by the Court of Appeal in the case of Dr. Ting Choon Meng and MINDEF may have wider consequences than intended.

In summary, the Courts ruled that the Government cannot invoke an anti-harressment law that allows persons to stop the publication of false statements against them. The question for the courts was this: can the Government be considered a “person” under Section 15 of the Protection from Harassment Act?

What followed next was a 74 page debate over how to decide this. The following is a fleeting overview:

The Judgement calls for the Courts to look into the Parliamentary debates for clues on whether or not Parliament intends for the Act to protect organisations as well as natural persons.

The following passage from the Minister of Law’s speech was scrutinised:

“Going back to public opinion, 82% of those polled by REACH felt that people should have a legal right to require that factual inaccuracies about themselves be corrected. This is the thinking behind clause 15. But there will be no claim for damages and there will be no criminal sanctions. If you choose not to file a criminal complaint, if you choose not to make a civil claim, if you choose to, say, look, I just want to clarify or correct it in some form, and the manner of correction is left to the court, then that is all that you will get. You do not get money, you do not get to send the other person to jail … “

The bold text is made by the Judge to emphasise that these words gave weight to the word “persons” to mean natural persons, not organisations.

What really killed it for MINDEF’s cause, is that the Judge drew attention to a question made by Member of Parliament Pritam Singh.

Mr Pritam Singh queried if the term “person” in the Bill extends to corporate entities. The term “person” is defined in the Interpretation Act, and where this Bill references to “persons”, the Interpretation Act will apply.

The Judge observed that the Minister’s reply was “an isolated (and, with respect, generic) observation that is sandwiched, so to speak, between a couple of responses to other questions that were asked earlier during the parliamentary debates.”

That’s legal speak for being wishy-washy.

However, I find the Judgement deeply unsatisfactory. 

The dissenting Judge disagreed at length on the use of extraneous material, that is to say, Parliamentary debates when trying to discover the meaning of the purpose of the legislation.

Legislative interpretation is a difficult thing to decide upon. It is for this reason that we have the Interpretation Act, a codified means of how to deal with legal interpretation.

Section 2 of the Interpretation Act has very clearly, unambiguously clarified that:

“person” and “party” include any company or association or body of persons, corporate or unincorporate;

It makes perfect logic for the Interpretation Act to be the first port of call when faced with a doubt on the question. Pritam Singh understands this (as was posed in his Question during the sitting), the law minister probably thought that it was such a basic question that he didn’t address it directly.

Searching for answers from Parliamentary debates is a matter that has much much judicial disagreement. Statements made (or not made),questions posed (or not posed), is not necessarily a sign of MPs approval or rejection. Hansard is a risky platform – there is risk that meaning inferred by Courts is not the meaning intended by Parliament.

What is the consequence of all this?

Corporations and organisations will not enjoy the protection of the Protection from Harassment Act. The Judgement has robustly denied the extension of the law to cover non-natural persons. Small companies and organisations without financial and legal muscle, may not be able to rely on this Act if faced with the same nuisance.

The Minister of Law has made a response to this, they have confirmed that the Government’s policy intent was was indeed to allow natural persons, as well as the Government and corporations to rely on Section 15 of the Protection from Harassment Act.

Is this the end of the matter?

Maybe not – the Court of Appeal has confirmed that The Online Citizen had indeed published falsehoods. Harassment is not the only weapon they can enlist, there are other weapons in their legal arsenal.

There will be more to come.

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