Saturday, January 05, 2013

The Dummy guide to avoiding AimED fire in Singapore’s DMZ (Defamation Means Lawsuit Zone)

It has now become apparent to all and sundry that hazards, booby traps and land mines abound in the DMZ for well known bloggers , commentators and keyboard warriors great and small. The rules governing defamation in Singapore and what defines defamation are to put it mildly a lot stricter and the politicians more hypersensitive over both allegations and innuendo of actual or perceived wrongdoing. The art of getting one’s points across, whilst avoiding AIMed fire or a threat of lawsuit and or a demand for apology will involve an understanding of word play, ground rules and creativity.

Having getting used to Hong Kong’s high level of freedom, both in speech and expression, the recent legal actions against various bloggers and politicians alike, really sound ridiculous to me. Well, if you were to tell any Hong Kongers that these people could well get into legal troubles by such circumstances, they would have WOW in disbelief. It is rather strange that both Hong Kong and Singapore have adopted the Commonwealth law system but ended up with very different level of tolerance of free expressions on politics, issues and matters of public interests. While I hope that we as citizens should push for a reform in the Defamation Law in Singapore to include Comments on issues of public interests to be included as a legitimate defence against defamation suit, I would also want to share with bloggers at large on how not to step on these bombs for the time being.

Historically from Tang Liang Hong onwards, the mere innuendo or allegation of individual criminal wrong doing has been enough to warrant an actual law suit. On a lesser note, JBJ was sent to the Parliamentary Special Privilege Committee to be censured when he suggested in parliament that CPIB should investigate the HPL saga of giving the Lee family hefty discounts. The defence since then has been to shift from allegations of individual criminal conduct to suggestions to some degree of improper behaviour on the part of the organization to which the individual heads. It has been interesting to note that the PM specifically referred to himself as one of the “individuals” and thus aggrieved and within his right to suffer damage from defamation. The rule of thumb is that allegations of any form should be directed primarily at the Party, and or the PAP.

“The PAP likes to cast itself as the party of scrupulous integrity. On this matter they have a lot to answer for or they will be seen as the opposite foul and dirty, this is not a case which can be dismissed as the mistake of one lone PAP person. The moves they made involve nearly all the PAP MPs in the town council across the board. “

At this juncture one should be aware that the substance of the allegation is a matter of care just as much as to whom the allegation to which it is directed. The substance of the legal letter of demand from Drew and Naiper has made clear that senior political figures in Singapore are sensitive even to allegations of the “possibility” of criminal conduct. The roots of this can be seen in the case against TLH where the mere appearance of an allegation of criminal conduct was enough to constitute defamation in a court of law.

The danger for commentators is that allegations about the possibility of criminal conduct are treated similarly by politicians as allegations about the innuendo of criminal conduct. Unless any one particular commentator has the where withal to withstand extended court cases, what is fair comment or not and whether allegations about “possible” criminal conduct represents defamation before the law can never be decided because it has never been brought before the courts.

In short the answer lies as Alex has done in his articles in raising and critiquing the answers given, calling for investigations and clarifications but resisting all temptation at raising any allegation of criminal wrong doing.

In short the PAP might have made a mistake made disingenuous comments, have not been forthcoming, the town councils might not have followed its own procurement rules, there exists substantive conflicts of interest, Teo Ho Pin has been economical with the truth and less than forth coming on some issues, but that is currently the only way to stay out of the DMZ.

It may not be good to Singapore’s well being in maintaining proper checks and balances politically to have such stringent rules or laws on defamation law but we will have to live with it for the moment. Until the time that we press our MPs in parliament to change the defamation law to include comments which may even suggest impropriety or wrong doings, be it criminal or otherwise, but have legitimate and reasonable deductions on the matters and issues of public interests to become legitimate defence, we will have to live with that. Yes, such defamation law really make us look silly like a dinosaur in the world, especially those practice common laws, but what to do?

My point is that it is only good to have such reform on the Defamation Law, both for citizens, politicians from PAP and opposition likewise. Once this reform is done, there is no need for PAP MPs or ministers to jump up and down with a letter of demand every time a blogger wrote something unwittingly suggesting some criminal wrong doing. They could just politely write to the blogger to clarify and ask that their clarification to be published. There will be no pressure for the politicians to jump into legal action just to show that they are above board. On the other hand, it is quite impossible for anyone to raise the red flag if there is truly wrong doings, be it criminal or otherwise, if such Defamation law is to stay.

One must understand that to lose in a Defamation law is not equating to say that what has been uttered is necessarily falsehood. It is just the case that what has been uttered cannot be proven to be true. TT Durai has successfully sued a couple of individuals for defamation when he was heading NKF, even though, on hindsight, now we know what these individuals have alleged was true! It is only when TT Durai tried to sue SPH but SPH happened to be able to prove what they have published was true, and then TT Durai just fell from the top. But in order to prove anything on such wrong doings will need quite a lot of resources like SPH has. Thus, the investigation should be left to be done by the professional institutions and I believe, this is the best way to clear the names of those people alleged to have done wrong, instead of going through defamation suit that may not be conclusive on whether one is right or wrong at all, as in the case of TT Durai.

On the other note of Dr Vincent Wijeysingha of SDP issuing an apology to Minister Tan Chuan Jin, it is a common mistake people made on asserting someone is dishonest or lying when what he said contradicted the “truth”. This is wrong even when what he has said is contrary to what is known as truth. To assert someone “lying” or “dishonest” means that you have assumed him of KNOWING the TRUTH but chose to say otherwise. That is an attack on his integrity of deliberately telling lies. There could be a case whereby, he is saying is NOT TRUE because he DOESN'T KNOW the TRUTH in the first place. Thus, one could assert what someone has said is NOT true, but NOT jump into conclusion that he is “lying” or “dishonest”.

My simple conclusion is that for the time being, bloggers and politicians alike, should thread very carefully by not suggesting any criminal wrong doing even though there are obvious reasons to come to that conclusions. People with a clear mind would come to that conclusion themselves. At the same time, we should push for a total reform on our Defamation Law to allow comments on issues of public interests immune to defamation law suits. Time has changed and from the recent development, we know that people of high positions could do wrong…. from sex scandals to corruptions. People may know certain information but not enough to prove conclusive on the truth. Such investigation should best be left to professional institution to carry out.

On the side note, Separation of Powers is also an important reform we should push for. The current set up of high concentration of powers is unhealthy for real democracy to prevail. It is only when there is a real Separation of Powers, like what Hong Kong has, whatever findings by the law enforcement unit will be highly respected and not disputed. This is so for Hong Kong whereby the ICAC is highly independent, under the purview of a retired judge or equivalent, instead of the political office. Whatever findings from ICAC will be highly regarded and very few would dispute that.

I may not see all these reforms on Defamation Law and Separation of Powers in my life time but I believe such reforms are necessary if we are to progress democratically.

Goh Meng Seng

Co-writer M.Y.

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