It is interesting how the judges came to a (split) decision by depending on the words of the Law Minister, K Shanmugam, in Parliament during the debate on the Bill for the Protection from Harassment Act (PHA).
On the one side, justices Chao and Phang, who upheld the High Court’s decision in favour of TOC/Ting, cited Mr Shanmugam’s speech during the Second Reading of the Bill.
“It is clear that the minister’s focus was solely on human beings (as opposed to other entities),” they said in their judgement.
This, as I’ve said several times before, is the correct reading. In the entire parliamentary debate itself, not a single minister or MP, explicitly spoke about any institution or government or government-linked entity as being entitled to invoke the PHA.
However, on the other side, Chief Justice Sundaresh Menon took the government’s argument and agreed that the PHA included the Government as a “person”. CJ Menon also cited the words of Mr Shanmugam in coming to his decision.
“When asked specifically by a Member of Parliament whether the term “person” included corporations, the Law Minister replied that the definition of “person” in the Interpretation Act indeed applied to the Act, the Chief Justice said.” (CNA)
Do note, however, that Mr Shanmiugam’s remarks in this instance came only AFTER a question was posed to him. And Mr Shanmugam’s answer was a short one, without emphasising that the Government itself would have the right to invoke the PHA. Neither did he take more time to make clear that this is so.
This is why it is important for Singaporeans to pay attention to parliamentary debates. The words spoken by ministers are very important – they not only set out policies, but also the law and how they should be interpreted.
It also shows why MPs’ questions are important too – they need to know their stuff in order to ask the right questions so that there can be no ambiguity in implementation or enforcement.
[Do note that the MP who posed that question to Mr Shanmugam – as mentioned by CJ Menon – was Pritam Singh from the Workers’ Party. No PAP MP asked a similar question. Still believe more opposition MPs are not necessary?]
To me, it is always the spirit of the law that must be supreme.
That is, the context and intent of parliament enacting any law.
And in the case of the PHA, it is clear to me – taking the entire parliamentary debate in context – that it was meant to protect vulnerable natural persons, and not powerful entities – non-persons – like the Government and the Ministry of Defence.
I’ve always maintained, at the start of this case brought against us in 2015, that the Government was abusing the PHA and the court process for political reasons, months before the General Election that year was called, in a period when the Government went on a rampage against online alternative sites and commentators.
I still maintain this view.
Will the Government now go back to Parliament and, to use a footballing term, pasang kaki all of us and amend the PHA to declare itself a “person”?
I won’t be surprised if it did.
And if it did, it would also mean, effectively, our law and courts are useless and these last 2 years spent on interpreting the law was nothing but a wild goose chase – at taxpayers’ expense.
In response to the ruling, a Ministry of Law spokesperson said the Government’s intent is to allow both natural persons as well as the Government and corporations to rely on Section 15 of POHA.
“The Government will study the judgment, and consider what further steps it should take to correct the deliberate spreading of falsehoods,” the spokeperson said.