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SDP graphs on local PMET retrenchment “misleading”, says AGC

The graphs made by the Singapore Democratic Party (SDP) based on the Ministry of Manpower (MOM)’s data to demonstrate a rise in local professionals, managers, executives and technicians (PMET) retrenchment were “misleading”.

In a statement on Fri (17 Jan), MOM — citing arguments made by the Attorney-General’s Chambers (AGC) — said that the SDP has, “in the face of the data, tried to suggest several different meanings to its statements, and sought to back up its position with graphs”.

“AGC pointed out to the Court that these graphs were misleading as well. AGC has argued that the statements mean what they plainly say: that local PMET retrenchments have been rising,” the statement read.

MOM noted that the AGC had told the court that it is possible to demonstrate that the SDP’s statement is “clearly false” by examining publicly available information on local PMET retrenchment.

The Ministry also reiterated its stance in issuing the correction directions to the SDP, highlighting that it is crucial to “point out that its statements were false”, especially given the anxieties of “some Singaporeans” in “the current uncertain economic climate”.

“This is why it is important that public debate on the important issue of jobs is based on accurate facts, and not distortions or falsehoods. Honesty is important.

“As MTI [Ministry of Trade and Industry] and EDB [Economic Development Board] pointed out yesterday, more than 32,000 good jobs will be created over the next few years because of the strong investments. These will benefit local PMETs. The Government is focussed on improving employment outcomes for Singaporeans,” concluded MOM.

The Protection from Online Falsehoods and Manipulation Act (POFMA) correction directions — issued by Manpower Minister Josephine Teo on 14 Dec last year — targeted an article on SDP’s website titled “SDP population policy: Hire S’poreans first, retrench S’poreans last”. The posts, dated 8 Jun, discussed employment trends among Singapore PMETs and their foreign counterparts.

The SDP’s appeal against Ms Teo’s POFMA correction directions is the first one made against such correction directions to date.

Deputy Attorney-General Hri Kumar Nair SC argued on the second day of the hearing on Fri at the High Court that matters concerning interpretation do fall under the ambit of POFMA.

“The SDP had said in chambers that the meaning of the article or the statement is up to the minister, who can decide whatever the meaning is. That’s not correct,” he said.

Mr Nair added that while a correction direction can be issued based on the minister’s interpretation, the courts will have the final say on how a reasonable member of the public would interpret the statement in cases where the party receiving correction directions decides to use judicial means to appeal against said directions.

Speaking to reporters after the hearing, Mr Nair said that POFMA covers both express statements and implied statements, and targets statements that are false or misleading — whether in whole or in part, when read on their own or in the context in which they appear, he added.

Responding to the SDP’s argument that MOM had arbitrarily chosen to use data the time period of 2015 to 2018 in its Labour Market Survey — and in reference to SDP including data from 2010 onwards to demonstrate a longer-term upward trend in local PMET retrenchment — he posited: “An ordinary Singaporean reading this is not going to think about the position back in 2010.”

A reasonable person reading the article, he added, would take the article to mean that the alleged trend is a recent one.

“Insofar as the allegation is that PMET retrenchments are increasing, the data shows that is not the position today,” he added.

“Knowing that it cannot sustain its assertion that the number of retrenched local PMETs have been increasingly recently, the SDP has contrived to rely on data going back to 2010,” added Mr Nair, branding the SDP’s alleged action “disingenuous”.

Statements on local PMET employment trends opinions based on rational methodology: SDP chief

SDP chief Chee Soon Juan in the first day of the hearing on Thu (16 Jan) that the two statements made by SDP in the article are opinions grounded upon rational methodology.

Dr Chee — alongside SDP chairman Paul Tambyah and vice-chairman John Tan — in delivering his arguments before High Court judge Ang Cheng Hock on Thu (16 Jan) argued that even if an opinion is supported by seemingly shoddy methodology, POFMA should not apply as it is still an opinion and not a statement of fact.

Touching on the first statement, namely “Local PMET retrenchment has been increasing”, Dr Chee said that it is a true statement, and that it is an opinion that can be qualified based on an internationally-recognised methodology.

Dr Chee said that the SDP based its assertion of the upward trend in local PMET retrenchment upon data sets made available by MOM from the past 10 years, and then drew a best-fit line to determine the trend in PMET retrenchment for the past 10 years.

The party then found that there is an upward trend in local PMET retrenchment over the past decade after drawing a best-fit line.

Dr Chee challenged the Attorney-General’s position that SDP’s statement is false based on the view that there is instead a downward trend of retrenchment among local PMETs in the past couple of years.

He asserted that both SDP’s statements and the Attorney-General’s position are true in reality, in that SDP adopts a macro perspective while the Attorney-General holds a micro perspective.

Rebutting the Attorney-General’s argument that POFMA can apply in a case where a statement has many interpretations and one of those many interpretations can be reasonably interpreted as false, Dr Chee said that the threshold for constituting falsehoods is higher under POFMA than the one suggested by the Attorney-General.

He argued that by the Attorney-General’s own definition, all of the statements listed in Minister Shanmugam’s annex will fall under the purview of POFMA.

In presenting his argument regarding the second statement made in the article — namely that local PMET employment has gone down — Dr Chee pointed out that it is an opinion based on intelligible methodology.

He acknowledged that while the above “may not be the best methodology,” it was the “best basis” upon which the party could analyse the data made available by MOM, as there is no public data available pertaining specifically to employment trends among Singaporeans.

MOM classifies Singaporeans and permanent residents (PR) under one “local” category, and thus the SDP had to rely on a methodology which includes three separate graphs: falling local labour force participation, increasing foreign PMET workforce, and rising PR numbers, Dr Chee explained.

Facts are indisputable and can be objectively verified, not tangential upon the Minister’s interpretation: SDP chief

In what SDP labelled as “the most shocking part” of Ms Teo’s POFMA action against the SDP, Dr Chee said outside of court on Thu (16 Jan) — regarding a statement in MOM’s affidavit — that the following position “defies comprehension”:

“Counsel will elaborate further on the legal position: what has been set out is, in the Minister’s view, the correct, reasonable interpretation, and there is no other reasonable interpretation of the Relevant Sentence.

“The Minister has been further advised however, that the legal position is that, as long as what has been set out is one reasonable interpretation (amongst several possible interpretations) such that it could be said that some people (at the very least) would have adopted that reasonable interpretation, then the CD can be issued if that reasonable interpretation is false.”

“I did a double take when I first read it. I thought it was a prank,” he said.

Dr Chee argued that facts can be objectively verified, and are not subject to interpretation or opinion, and questioned how it would be possible to charge the SDP with making a “false statement of fact” based on the Minister’s opinion or interpretation.

“I’m sure you’ve heard of the adage ‘you are entitled to your own opinion but not your own facts,” he said.

Using the example of the shape of the earth, Dr Chee argued that if the SDP were to say that the earth is flat, it would be correct for MOM to say that such is a false statement of fact, as it can be demonstrated that the earth is “globular”.

“But what the MOM won’t say is that “in the Minister’s view” the earth is round. That’s a ludicrous statement to make,” Dr Chee said.

“Has it come to a point that a Minister’s opinion and interpretation of a statement can dictate what is fact and what is not?” the SDP chief questioned.

Dr Chee also challenged the Attorney-General’s Chambers’ argument that there may be “several possible interpretations” of a statement that “some people would have adopted”.

“How many is some? 3, 10, 100?” he questioned, while reiterating that falsehoods do not rely on opinions or interpretations of “some” people, but rather are indisputably wrong and untrue.

Dr Chee, in his conclusion, said to the judge: “Your Honour, this is a court of law, and a court of law is where reason thrives. For surely, when reason sleeps, absurdities arise.”

“Reason is based on evidence and evidence on facts, not opinions and interpretations – especially the interpretations of a partisan-political player,” he stressed.

Distinction between “statements of fact” and “opinion” not always clear-cut?

While Law and Home Affairs Minister K Shanmugam has on multiple occasions reiterated that POFMA will apply only to statements of fact and not opinions, the distinction between “statements of fact” and “opinion” is “not always clear” as highlighted by 27 journalists in a letter to Minister of Communications and Information S Iswaran on 24 Apr last year.

“Opinion writers regularly cite facts to back up their positions, and a journalist’s interpretation and presentation of a set of facts might contradict a minister’s own understanding of what took place,” stressed the journalists in their criticism of POFMA.

Senior Counsel Harpreet Singh in an op-ed published on The Straits Times‘ website on 1 May last year similarly opined that “it is often difficult to differentiate statements of opinion and statements of fact”.

“Opinions and criticisms are often premised on underlying statements of fact. Even statements of pure opinion carry an implied statement of fact that there is a reasonable basis for the view expressed.

“The Bill, as drafted, may easily be interpreted to extend to criticisms and opinions as long as one of the underlying premises of fact is erroneous,” he argued.

Mr Singh, however, emphasised that Ministers must be statutorily bound to give reasons for making take-down or correction orders, and that such orders must be required to meet standards of proportionality in law.

“This is particularly so given that one cannot vouch for how anyone, much less a future government or minister, might exercise these wide powers in any given case,” added Mr Singh.

Background of the SDP v MOM case

The Ministry of Manpower (MOM) issued correction directions to the SDP on 14 Dec last year for three of the party’s online postings related to employment trends in Singapore.

SDP was directed under POFMA to carry a correction notice that includes a link to the government’s Factually site on each of the three posts, which “debunks” SDP’s statements with MOM’s own data.

While SDP complied with the directions, the party also refuted MOM’s claims that its statements are false and misleading, noting that the information they used in its statements was based on data published by MOM itself.

The party then submitted an application to Ms Teo to have the Manpower Minister cancel the correction directions. However, the application was rejected.

Ms Teo said that the party did not provide sufficient grounds for its appeal. However, no further explanation was given on how the SDP’s application was lacking.

SDP responded that MOM’s rejection and the answer given “is not a rational answer”, and called MOM’s response a “cop-out”. The party contended that it had submitted a “detailed account – including analysing MOM’s own statistics – of the reasons for the statements in our posts.”

SDP also criticised Ms Teo for not offering an adequate explanation for rejecting the appeal despite having the time to do so.

The party wrote: “Minister Josephine Teo, despite having the entire Ministry and its officials at her disposal with two full working days and an entire weekend to refute our specific arguments, has refused or been unable to do so. This is telling.”

SDP then revealed that it was “left with no choice” but to pursue the matter in Court, adding that it has filed an originating summons against MOM in the High Court.

The party’s leaders said that they will not be engaging a lawyer, and will instead will argue the matter themselves.

Commenting on the reason behind initiating legal action against MOM, SDP said that “Ms Teo’s order is an abuse of the law”, and that if the correction directions issued by the minister are upheld, then “the last holdout where important national issues are openly and robustly debated on the Internet in Singapore would be irreparably closed”.

SDP also applied for the case to be heard in open court, which Dr Chee said — the evening prior to the hearing on Thu — is based on the premise that the immediate case is a matter of “public interest”, and thus “the public should be able to attend the hearing”:

However, the High Court rejected their application, which means that the case will now be heard in private chambers.

In a statement on Thu, SDP said that it had earlier applied “to convert the Originating Summons into a Writ” in a bid to call for the “discovery of documents”, and for “MOM officials, including Minister Teo” to be called to “the witness stand and be cross-examined”.

Dr Tambyah also told The Straits Times on Sat (18 Jan) that SDP will be seeking legal advice before filing its written reply to the AGC’s submissions. The party must submit its written response by Wed (22 Jan).

The High Court currently reserves its judgement in the immediate case.

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