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Judge wrong in placing burden of proof on Govt in Pofma cases: AGC

Judge wrong in placing burden of proof on Govt in Pofma cases: AGC

Source: Straits Times
Article Date: 07 Feb 2020
Author: Tham Yuen-C

The Attorney-General's Chambers said the onus should be on the party making the assertion to prove that the statements are true.

The Attorney-General's Chambers (AGC) argued yesterday that a High Court judge was wrong in ruling that the Government must prove the falsity of a statement when its corrections orders are challenged in court.

The onus, instead, should be on the party making the assertion to prove the statements are true, it said in its argument in The Online Citizen's (TOC) appeal under the Protection from Online Falsehoods and Manipulation Act (Pofma).

A day earlier, High Court judge Ang Cheng Hock had issued his ruling in the Singapore Democratic Party's appeal against Pofma.

In it, he said the Government bears the burden of proof because corrections orders under Pofma seek to curtail free speech that is protected under the Constitution.

The judge also questioned if Parliament could have intended to place such an onerous burden on those whose statements are being challenged, given the Government can marshal much more resources to produce the relevant evidence.

TOC, in defending its article on execution methods used in Singapore prisons yesterday, had cited Wednesday's judgment.

The AGC, in rebutting TOC's use of the earlier judgment, said a corrections order under Pofma does not constrain freedom of speech, since the original article remains online and accessible to anyone who wants to read it.

It said it is commonplace that the party that asks the court to make a ruling - in this case, those who appeal a Pofma order - carries the burden to prove. It contended strongly that Parliament could not have intended for the burden of proof to fall on the Government.

That would open the floodgates for anyone to make a false assertion with no basis, just to extract information from the Government, it added.

The Government could then be forced to disclose even sensitive information on security, it said.

In his judgment, Justice Ang had also given a hypothetical scenario in which the Government would always be able to get a Pofma appeal dismissed if the burden of proof were to fall on the other side.

He said both sides could decide not to produce any evidence and there would be no basis for the court to adjudicate on whether a statement is true or false. In effect, he said, the court is limited by the Government's original decision to issue a correction order.

But the AGC said there was "nothing exceptional" in such a situation.

This is what happens in, say, a judicial review, if a person challenging the Government's decision on some matter cannot prove it has been unreasonable, for instance, it said.

TOC said more evidence would be needed, "including but not limited to official communications, statistics, reports, Standard Operating Procedure guidebooks referred to by prison officers, independent verification and so on", for the Government to discharge its burden of proof.

Among other things, TOC said Pofma did not apply as its article was not factual and was "quite blatantly reporting on hearsay", based on allegations by Malaysian rights group Lawyers for Liberty (LFL).

Noting that TOC did not dispute the Government's position on the falsity of the LFL claims, the AGC said it is irrelevant that TOC did not present the claims as its own.

This is because the falsehoods would still harm society, and so Pofma would kick in, it added.

The AGC also said TOC may have misunderstood the corrections order as an exercise in fault-finding and felt it had to seek vindication but, in fact, this is not so and Pofma is aimed at protecting the public from falsehoods.

Justice Belinda Ang, who heard the TOC appeal, will give her judgment at a later date.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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