Hopeful Steps on Harassment

By Vassil (CC-BY-3.0), from the Wikimedia Commons

Dr Jack Tsen-Ta Lee
Assistant Professor of Law
School of Law, SMU

THERE IS MUCH to like about the Protection from Harassment Bill[1] that was introduced into Parliament on 3 March 2014.

First, it performs a housekeeping task by consolidating criminal offences relating to harassment into a single Act of Parliament. Thus, sections 13A to 13D of the Miscellaneous Offences (Public Order and Nuisance) Act[2] will be repealed and re-enacted in modified forms in the new Act. The maximum penalties will be enhanced – intentionally causing harassment, alarm or distress to someone can currently be punished with a fine of up to $5,000, but in future a District Court will also be able to impose a jail term of up to six months in appropriate cases.[3]

While the offence of unintentionally causing harassment, alarm or distress presently attracts a maximum punishment of a $2,000 fine, this has been increased to $5,000;[4] and doing something threatening, abusive or insulting which causes a victim to believe that the perpetrator will use unlawful violence against him or her or another person, or with intent to provoke the victim or another person to use unlawful violence against a third party, which now attracts a maximum fine of $2,000, will eventually be punishable by a fine of up to $5,000 or jail of up to 12 months or both.[5]

The original offence of using indecent, threatening, abusive or insulting words or behaviour against a public servant on duty will be extended to “public service workers”, who are defined as individuals who belong “to a prescribed class of employees or workers that provides any service which is essential to the well‑being of the public or the proper functioning of Singapore”.[6] It will be interesting to see which types of workers will be prescribed by the minister responsible for implementing the Act as being covered – my guess is that they will be front-line service staff like bus- and taxi-drivers; MRT station personnel; domestic helpers; doctors, nurses and emergency medical technicians; firefighters and police officers. Maybe even your friendly neighbourhood ‘summons aunty’.

The provisions have been rephrased to make it clear that they apply to all types of “communications”, defined as “any words, image, message, expression, symbol or other representation, that can be heard, seen or otherwise perceived by any person”.[7] This would, of course, include communications over the Internet, which are clearly a target of the bill.

Stalking

The new offence of unlawful stalking that the proposed Act creates is particularly interesting. The bill contains a list of forms of behaviour that amount to stalking, which include communicating or attempting to communicate with the victim; loitering near or outside the victim’s home, office or other place frequented by the victim; giving or sending material to the victim, or leaving it where he or she may find it; and keeping the victim under surveillance. Stalking is also committed if any of the forms of behaviour specified are done to a person related to the victim, defined as “a person about whose safety or well‑being the victim would reasonably be expected to be seriously concerned”.[8]

Perhaps significant in view of Edward Snowden’s revelations about the extent of government surveillance, it will be a defence for a person accused of stalking to prove, among other things, that “the course of conduct was lawfully done under a duty or power under any written law for the purpose of preventing or detecting crime”, or “that the course of conduct was done on behalf of the Government and was necessary for the purposes of national security, national defence or the conduct of international relations”. A relevant Cabinet minister is entitled to issue a certificate stating that an act is done for one of the above purposes, and such a certificate must be accepted by the court as conclusive evidence of this.[9]

Remedies

When the bill is enacted, community orders – such as community service orders requiring the carrying out of cleaning, repair, maintenance and restoration works, or the provision of care services[10] – can be imposed by the court on convicted perpetrators instead of fines and/or imprisonment.[11] Taking a cue from the family violence provisions of the Women’s Charter,[12] it will also be possible for victims to apply for protection orders against perpetrators that can prohibit them from, for instance, contacting the victims and publishing offending communications, or can require them to attend counselling or mediation.[13]

In addition, the proposed Act creates a statutory tort (civil wrong) that will make it possible for victims to take out civil proceedings against perpetrators for harassing or stalking them, and to claim monetary compensation if their suits are successful. To clarify the law, the common law tort of harassment will be abolished.[14] In the 2001 judgment Malcomson v Mehta[15] the High Court had held that such a tort exists, and the Court of Appeal appeared to have confirmed this in an obiter dictum in a 2013 decision.[16] However, the tort’s existence was doubted by another High Court judgment, AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan,[17] also delivered that year. Once the new Act comes into force, the Court of Appeal need not resolve this conflict of opinions.

False statements of fact

Another notable inclusion in the Protection from Harassment bill is a provision entitling a person who has had a false statement of fact published about him or her to apply to the District Court for an order that the publisher also publish a notification “bring[ing] attention to the falsehood and the true facts”. Before making such an order, the Court must be satisfied on a balance of probabilities that the statement of fact is in fact false, and that it is just and equitable for an order to be made.[18] This provision is potentially of wide application, as the making of the statement need not amount to harassment or stalking. There is also nothing in the bill which suggests it cannot be used against false statements that appear on Government documents and websites.

During a conference on harassment organized by the Institute of Policy Studies (IPS) on 18 November 2013, there were suggestions that legislation introduced by the Government should entitle people to directly demand that publishers of statements allegedly containing falsehoods remove the statements, or display a suitable clarification or rebuttal. One participant noted that South Korean law contains ‘safe harbour’ provisions along these lines, under which website operators receiving complaints can either permanently take down content or bring the matter before a court for the dispute to be resolved. Of course, what happens is that most website operators simply take down content and do not bother to start a court action.[19] Since website operators in Singapore would probably act likewise if similar takedown or right-of-reply provisions are introduced here, I was concerned that such provisions would essentially reverse the normal burden of proof – usually, if a person wishes to claim in a court case that information about him or her is false, he or she bears the onus of establishing this fact. I am therefore relieved that the bill requires a complaint to be considered by a District Court before it issues an order requiring publication of a rebuttal.

A possible objection to the new provision is that it will restrict the right to freedom of speech and expression guaranteed to Singapore citizens by Article 14(1)(a) of the Constitution,[20] and does not fall within the range of restrictions that Parliament is entitled by Article 14(2)(a) to impose. For instance, it does not relate to “contempt of court, defamation or incitement to any offence”. I suspect, though, that a court would probably hold that it is a restriction that Parliament “considers necessary or expedient in the interest of… public order” which makes it legitimate, since the courts have generally interpreted public order broadly.

Wish list

During the IPS conference, the Executive Director of the Association of Women for Action and Research (AWARE) called for Singapore law to be strengthened through the enactment of specific provisions dealing with workplace sexual harassment. Her proposals included clauses imposing on employers a statutory obligation to establish anti-harassment policies and procedures for handling complaints, and making them liable for harassment that occurs if they do not take reasonable steps to prevent it; providing for a complaints mechanism that does not need to involve the police or lawyers; and enabling victims to claim compensation for emotional distress caused by harassment.[21]

Unfortunately, this wish list was not fulfilled by the bill. No doubt the Government was reluctant to place regulatory burdens on employers, and felt that the proposed provisions directed against harassers and stalkers will be adequate to deal with the problem. If this proves not to be the case after the new law comes into force, I hope that the stronger legislative provisions suggested by AWARE will be considered.

The writer is an Assistant Professor of Law who teaches and researches administrative and constitutional law at the Singapore Management University.

Update

The Protection from Harassment Act was passed by Parliament on 13 March 2014: see Imelda Saad, “Victims of harassment can get Protection Orders within a day, Channel NewsAsia (13 March 2014).


Notes
1    Protection from Harassment Bill (No 12 of 2014) (“PHB”).
2    Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (“MOA”).
3    Compare the MOA, s 13A, with the PHB, cl 3.
4    Compare the MOA, s 13B, with the PHB, cl 4.
5    Compare the MOA, s 13C, with the PHB, cl 5.
6    Compare the MOA, s 13D, with the PHB, c. 6. Public service worker is defined in the PHB, cl 6(5).
7    PHB, cl 2.
8    PHB, cl 7. Related person is defined in cl 7(10).
9    PHB, cll 7(7)(c) and (d), and cll 7(8)–(9).
10   Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 346(1) read with the Fifth Schedule.
11   PHB, cl 9.
12   Women’s Charter (Cap 353, 2009 Rev Ed), Pt VII.
13   PHB, cl 12. In urgent cases, expedited protection orders can also be sought: cl 13.
14   PHB, cll 11 and 14.
15   Malcolmson v Mehta [2001] 3 SLR(R) [Singapore Law Reports (Reissue)] 379, High Court.
16   Tee Yok Kiat v Pang Min Seng [2013] SGCA 9, Court of Appeal.
17   AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan [2013] SGHC 158, High Court.
18   PHB, cl 15.
19   Sim Jui Liang, Report on Conference on Harassment in Singapore: Realities, Conundrums and Approaches Moving Ahead: 18 November 2013, IPS Update (December 2013; archived here) at pp 20–21.
20   Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Rep).
21   Sim, Report on Conference on Harassment in Singapore at pp 3–5.


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  1. Pingback: Strangers and the Gift of Fear | Owls Well

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