Constitutional interpretation Constitutional law Right to freedom of speech and expression (Article 14)

Case Comment | Article 14 and the Burden of Proof in POFMA Appeals | By Marcus Teo

Marcus Teo is a Teaching Assistant at the Faculty of Law, National University of Singapore, where he teaches constitutional & administrative law and the Singapore legal system. His research interests include constitutional & administrative law and private international law. Marcus is also an Advocate and Solicitor of the Supreme Court of Singapore. Marcus is grateful to Kevin Y.L. Tan and Kiu Yan Yu for their advice and comments.


In Singapore Democratic Party v Attorney-General (‘SDP’) and The Online Citizen v Attorney-General (‘Online Citizen’) – the first two appeals of Part III or IV Directions issued under the Protection from Online Falsehoods and Manipulation Act 2019 (‘POFMA’) – the High Court grappled with the question of where the burden of proof should lie in such appeals. Should the burden fall on the Minister issuing the order in question to prove that the targeted statement was false, or should it be on the statement-maker to prove that the targeted statement was true?

Under section 17(5)(b), the High Court may set aside a Part III Direction if the ‘subject statement is not a statement of fact, or is a true statement of fact’.[1] However, POFMA does not stipulate who bears the burden of proving the truth or falsity of the impugned statement. In answering the burden of proof question, the High Court found it necessary to consider whether the Directions issued were consistent with Article 14 of the Constitution (freedom of speech and expression), and interestingly, arrived at diametrically opposed conclusions in SDP and Online Citizen. The time is now ripe for the Court of Appeal to provide its guidance on how the burden of proof question should be answered. This post considers how Article 14 was and should be used in determining where the burden of proof lies in POFMA appeals.

POFMA Appeals, SDP and Online Citizen

At the outset, we should note that in POFMA appeals against Part III Directions under section 17(5)(b) – as in the two cases before the High Court – the question the court needs to resolve is a binary one: Is the impugned statement true or false? In answering the question, no issue under Article 14 arises automatically.

Nevertheless, to determine the burden of proof in POFMA appeals, Article 14 can prove useful, as the High Court found in the SDP case. In that case, Ang Cheng Hock J held:

The starting point in this regard is Art 14 of the Constitution… [g]iven that it is the Minister who is contending before the Court that the [SDP’s] constitutional right to free speech should be constrained by the [Direction] because it has made a false statement of fact… it is for the Minister to prove that facts warranting the curtailment of the [SDP’s] rights exist, that is, that a false statement of fact has been made. [2]

Ang J took the constitutional right to free speech under Art 14 as his starting point and extended its logic from there. If the Constitution guarantees an individual citizen free speech, then it can only be restricted under one of the accepted heads in Art 14(2)(a). The burden of proving that the impugned speech falls within one of the grounds in Art 14(2)(a) falls on the state. By parity of reasoning, if the state seeks to make a Part III Direction against a statement, the state necessarily bears the burden of proving that it is false.

In Online Citizen, Belinda Ang J took a very different approach. Her Honour made no reference to Art 14 in deciding the burden of proof issue. Instead, she relied solely on the ‘statutory language forming the legal elements’ to be ‘satisfied before a Part III’ Direction may be set aside, and held that as ‘a matter of statutory construction, the grounds for setting aside’ the Direction ‘require the statement-maker to establish its case’ by proving the truth of the statement ‘rather than to require the respondent to prove the untruth of the statement.’[3] Put another way, the party seeking aside to set aside the Direction bears the burden of proof.

Belinda Ang J did, however, consider Art 14 in light of the discussion in SDP and held that there was no violation of the Constitution because ‘the speech in question is not in the categories of speech covered by Art 14.’[4] Her Honour then went on to explain that Art 14 ‘does not immunise every use of speech’ and ‘does not extend to a wholly unrestricted right to deceive or to maintain a deception by not drawing attention to a falsehood’, citing the dissenting judgment of Sundaresh Menon CJ in Attorney-General v Ting Choon Meng[5] as authority.

Using Article 14 to Resolve the Burden of Proof Question in POFMA Appeals

The two conflicting decisions raise two significant questions. First, should our courts have recourse to Art 14 in determining which party bears the burden of proof in an appeal under s 17(5)(b) of POFMA? Second, is false speech protected under Art 14 of the Constitution? These two questions must be asked in sequence. The first is dealt with here, and the second in the next section.

As a preliminary, it must be noted that, in POFMA appeals under s 17(5), a statement-maker can legitimately challenge the constitutionality of the Direction issued against him. After all, an individual is always entitled to challenge the constitutionality of executive acts relied on against him in any proceedings, even if those proceedings are not judicial review proceedings.[6]

Now consider this. If a challenge to the constitutionality of a Direction is brought in a POFMA appeal, the court must surely address the constitutional question first before assessing the Direction’s merits under s 17(5)(b). After all, if the Direction is unconstitutional, no further enquiry into its merits need to be entertained. Thus, the first question the court must consider is not where the burden of proof in the POFMA S 17(5)(b) enquiry lies, but where the burden of proof in an Article 14 dispute lies.

Interestingly, even though a court would first be assessing a Direction’s constitutionality under Article 14, and not its merits under POFMA s 17(5)(b), it would still be asking itself the same substantive question: Is the targeted statement true or false? To assess the constitutionality of a Direction under Article 14, the court needs to engage with the dominant theory of free speech in Singapore, which has been held to be that ‘false speech, which has been proven as a matter of fact to be false in a court of law, can contribute little to the marketplace of ideas or to advances in knowledge for the benefit of society as a whole.’[7] True speech is valued and false speech is not. Thus, just as the truth or falsity of an targeted statement is central to its merits under POFMA s 17(5)(b), it is also central to a Direction’s constitutionality under Article 14.

However, the important point remains this: If a statement-maker challenges the constitutionality of Directions under Article 14 in a POFMA appeal, the truth or falsity of the targeted statement must first be assessed for the purposes of the Direction’s consistency under Article 14, rather than its merits under POFMA s 17(5)(b). And so, in POFMA appeals where the Article 14 point is raised, the court must first abide by the burden of proof in an Article 14 dispute when determining the truth or falsity of the targeted statement.

The Burden of Proof in an Article 14 Dispute

So, where does the burden of proof in an Article 14 dispute lie? Properly understood, the burden of proof in Article 14 disputes lies on the Government to prove the falsity of a statement, for the purposes of establishing the legitimacy of a Direction under Article 14(2)(a).

Article 14(1)(a) grants citizens ‘the right to freedom of speech and expression’, but Article 14(2)(a) allows Parliament to limit that right, inter alia, ‘in the interests of…public order’ or ‘to provide against… defamation’. Importantly, while the burden of proving the existence of ‘speech’ in Article 14(1)(a) likely lies with the individual,[8] the burden of proving the existence of facts justifying any of the exceptions in Article 14(2)(a) lies with the Government.[9]

But how does the truth or falsity of regulated communications relate to the definition of ‘speech’ under Article 14(1)(a), or to the legitimate restriction on speech under Article 14(2)(a)? One could argue either way. On the one hand, one could argue that the word ‘speech’ under Article 14(1)(a) does not include communications that are false.[10] This was the reasoning adopted by the High Court in Online Citizen.[11] On the other hand, one might argue that the ‘speech’ under Article 14(1)(a) simply means some form of communication, and it is the Government who must prove that they are empowered to restrict that ‘speech’ under an Article 14(2)(a) exception that covers false communications.[12] This was the reasoning adopted by the SDP Court.[13]

The text and context of Article 14 show that the second argument, i.e. that of the SDP Court, is the correct one. The scheme of Article 14 is simple. It guarantees three specific rights to citizens under Article 14(1) – speech and expression, association and assembly – which may be restricted when it would be “necessary or expedient in the interest of” specific exceptional public interests in Article 14(2). When the word ‘speech’ is used, it is used without qualification: Article 14(1)(a) does not state ‘false speech’ but simply speech. The freedom of speech thus includes the freedom to tell lies, provided they are not harmful to the extent that they may be restricted under Article 14(2)(a). Thus, if I told my friend that ‘I descended from Confucius’ when I am not, that communication cannot be restricted unless it falls within one of the specified grounds in Article 14(2)(a).

Moreover, the context of Article 14(1)(a), when read with Article 14(2)(a) and judicial practice in defamation cases, also suggests that ‘speech’ in Article 14(1)(a) refers to all communications, not just true communications. If the term ‘speech’ were interpreted otherwise, the provision in Article 14(2)(a) allowing ‘speech’ to be limited ‘to provide against… defamation’ would be rendered otiose. After all, no claim in defamation could ever be sustained against a statement-maker who has already proven his statement to be true. Thus, in defamation claims against Singaporean defendants, courts always first note that the defendant has a right to free speech under Article 14(1)(a), but then note that that right may be limited through the tort of defamation under Article 14(2)(a) if the plaintiff proves that the defendant’s statement defamed him, and if the defendant cannot then establish that his statement was true or a fair comment.[14] Courts do not say that the defendant must first show that his statement is true before he can even claim a right of free speech under Article 14(1)(a), after which the plaintiff’s claim in defamation is necessarily rendered moot.

The above interpretation of Article 14 is buttressed by the fact that POFMA itself seems to recognise it. S 10(1) read with s 4 of POFMA states that a Part III Direction may only be issued against a statement-maker if he has communicated a false statement of fact and it would be “necessary or expedient” to guard against threats to specified public interests.[15] Importantly, those public interests specified in s 4 bear a striking resemblance to those listed in Article 14(2)(a). Evidently, POFMA itself recognises that Article 14 protects the communication of false statements of fact in general, unless there are exceptional public interest reasons for such restrictions corresponding to Article 14(2)(a).

Conclusion

Thus, a proper interpretation of Article 14(1)(a) guarantees a statement-maker the right to free speech regardless of its truth or falsity, after which the Government must then prove that it may legitimately restrict that communication under Article 14(2)(a). The ramifications for the burden of proof in POFMA appeals are obvious. In all POFMA appeals where the statement-maker is a Singapore citizen, the statement-maker will always have a right to free speech under Article 14(1)(a). This thus places the burden of proving that speech false, and therefore liable to being restricted under Article14(2)(a), on the Government.


[1] Section 29(5)(b) prescribes identical elements for appeals against Part IV Directions.

[2] Singapore Democratic Party v Attorney-General [2020] SGHC 25 at [37].

[3] Online Citizen v Attorney-General [2020] SGHC 36at [20].

[4] Ibid, at [35].

[5] Attorney-General v Ting Choon Meng [2017] 1 SLR 373 at [112].

[6] See e.g. Quek Hock Lye v Public Prosecutor [2012] 2 SLR 1012, where the constitutionality of an executive act, namely the Public Prosecutor’s exercise of prosecutorial discretion, was challenged in criminal (i.e. non-judicial review) proceedings.

[7] Ting Choon Meng, supra note 5at [112] and [115].

[8] This is usually assumed to be the case in constitutional disputes, by virtue of the evidential presumption of constitutionality; see Lim Meng Suang v Attorney-General [2013] 3 SLR 118 at [104]-[105].

[9] Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 at [49].

[10] Ting Choon Meng, supra note 5at [116]-[117].

[11] Online Citizen, supra note 3 at [35]. One might note, however, that Belinda Ang J also appeared to adopt at [36] a reasoning more akin to Ang Cheng Hock J’s reasoning in SDP, when she noted that ‘A Part 3 CD does not inhibit free speech because it does not prevent the statement-maker from maintaining the original text of its published material’ (i.e. that a limitation on speech is justified if it is very minor, such as a limitation requiring the communication to include the Government’s reply rather that the removal of the communication). For brevity’s sake, only the SDP Court’s reasoning will be addressed.

[12] Ting Choon Meng, supra note 5at [118]-[120]. In this regard, Menon CJ noted that, given the low value of false speech, coupled with the ability for falsehoods to be rapidly disseminated online, it would be easy for the Government to show that a limitation on online speech is ‘necessary or expedient in the interests of…public order’ if that speech is false. However, the important point remains that in this scenario the burden of proof for showing a statement’s falsity lies on the Government.

[13] Singapore Democratic Party v Attorney-General [2020] SGHC 25 at [37].

[14] See e.g. Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1990] 1 SLR(R) 337 at [5]; and Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791 at [56] and [60].

[15] Section 20(5)(b) prescribes identical conditions for the issuance of Part IV Directions.

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