Constitution does not provide for defamation action: Ngerng’s defence

By Ariffin Sha

The defamation case brought by Mr Lee Hsien Loong against blogger Roy Ngerng was heard in chambers at the High Court on Thursday.

Justice Lee Seiu Kin presided over the hearing.

At issue was the application by Mr Lee for a summary judgment from the courts to the lawsuit against Mr Ngerng.

Mr Ngerng is asking the court to allow him leave to defend himself in a court hearing, instead of granting Mr Lee the application.

Mr Lee, who was represented by Mr Davinder Singh from law firm Drew and Napier, had initiated legal proceedings against Mr Ngerng over an article which Mr Ngerng had written and published on his blog earlier this year.

Mr Lee contends that the article had defamed him by alleging that Mr Lee was guilty of misappropriation of Singaporeans’ Central Provident Fund (CPF) savings.

Mr Ngerng’s defence was centred on two areas, namely, the misinterpretation of Roy’s article by Mr Lee, and how the Defamation Act does not actually restrict Singaporeans’ constitutional right to freedom of speech.

Interpretation of blog article

Mr Ravi argued that the gist of Mr Ngerng’s article drew parallels between the actions of five leaders of the City Harvest Church (CHC) which were deemed to be a criminal breach of trust because monies meant for the church were being channelled to other purposes.

Similarly, all that Mr Ngerng’s article was saying was that the Singapore Government channels CPF monies to various entities (Temasek Holdings, GIC and MAS) which invests the CPF monies and makes profits from these investments.

The Government then enriches itself and its reserves by not returning all profits made from the use of CPF monies to CPF account holders. Instead the Government retains part of the profits legally.

Mr Ravi thus submitted that there was absolutely no allegation from his client against Mr Lee or the Government that they were doing anything unlawful.

Mr Singh, however, maintained that the meaning of the article remained, and that Mr Ngerng had accused his client of criminal misappropriation of the CPF funds. Mr Singh supported his claims with the words used by Mr Ngerng in his blog article.

Mr Ravi argued that the selected portion of the article, when viewed in isolation, might suggest that Mr Lee is indeed guilty of criminal misappropriation.

However, when the article is read as a whole, it is completely untenable that the ordinary reasonable reader would understand from reading the entire blog article, that the Plaintiff is guilty of criminal misappropriation.

Mr Singh nonetheless urged the Court to attach the “greatest weight” to the admissions of guilt by Mr Ngerng.

Mr Ravi argued that on the contrary, the Plaintiff’s own arguments had relied on past authorities which said that any admissions regarding matters of law “are generally of very little weight” because these are “necessarily founded on mere opinion.”

Therefore, Mr Ravi said, Mr Ngerng’s opinion, in the form of his admission, is in fact completely irrelevant to the case before the courts.

Plaintiff’s submissions

Mr Lee submitted that Mr Ngerng cannot rely on the latter part of the blog article as a defence by claiming that he was referring to the Government and not to Mr Lee, and that thus there was no defamation.

Ravi pointed out that this argument was completely disingenuous as the ordinary reasonable reader would know that the Mr Lee is the head of the Singapore Government and the GIC, and that his wife is also the head of Temasek Holdings.

Therefore, it is clear that any reference to the Singapore Government would be relevant in interpreting what the pictorial representations mean, Mr Ravi said.

He added that it is thus not open to Mr Lee to argue that the latter portion of the article is irrelevant in interpreting the article as a whole and for Mr Lee to claim that he is separate from the Government.

Only Parliament can restrict speech

Mr Ravi also argued that Article 14 of the Singapore Constitution declares that “every citizen of Singapore has the right to freedom of speech and expression”, and that any restrictions on such freedom may only be restricted “by law” and can only be “abrogated at the very least by an express Parliamentary provision”.

“Any ‘law’ that purports to restrict freedom of speech must be closely scrutinised with a view to ascertaining whether it meets the precise requirement of the Freedom of Speech Guarantee,” Mr Ravi submitted, referring to the constitutional guarantee of free speech.

In other words, while the law provides for limits to free speech, such restrictions can only be made by a specific body, and in this case, it is Parliament.

But Singapore’s Defamation Act , enacted through Parliament, does not provide restrictions on speech, Mr Ravi said.

Instead, all that the Act does “is to provide for certain modifications and qualifications for a restriction of speech – the common law of defamation”, Mr Ravi explained.

“Nowhere in the Defamation Act does Parliament purport to enact the law of defamation itself,” he added.

The Defamation Act only provides defences to defamation action.

It does not provide that someone can be sued for defamation as a cause of action, unlike in some other jurisdictions.

Rebutting Mr Lee’s lawyers’ claims that the Defamation Act “is premised on the assumption that there is a cause of action for defamation in common law”, Mr Ravi said that Parliament had not, through the Defamation Act itself, “actually enacted that defamation shall be an actionable wrong.”

Common law is thus not applicable as it is not an enactment by Parliament.

The crux of Mr Ravi’s argument is that Article 14 guarantees free speech and this can only be restricted by Parliament by way of an act of Parliament.

There are no such provisions in Singapore’s Constitution, Mr Ravi said.

A citizen’s constitutional right to speech “simply cannot be restricted by the side-wind of a generally worded provision located at the other end of the Constitution which makes absolutely no reference to speech at all,” Mr Ravi said.

“The requirements of the Freedom of Speech Guarantee have not been met by the Defamation Act,” he reiterated.

Nonetheless, Mr Ravi said that ultimately, it is up to the judge to decide if Mr Ngerng’s blog article would be interpreted by an ordinary reasonable reader, who is not avid for scandal, upon reading the article as a whole, that Mr Lee is guilty of criminal misappropriation

Justice Lee has reserved judgment and will give his decision at a later date on whether to grant Mr Lee a summary judgment as Mr Lee has requested.

Additional reporting by Andrew Loh)