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Why wasn’t Tan Kin Lian’s FB post POFMA’d despite PUB’s clarification?

Despite PUB identifying factual inaccuracies in Tan Kin Lian’s post, no POFMA notice was issued, and he has not amended his post. This raises concerns about selective enforcement, as other cases have seen swift POFMA orders even without prior clarification.

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On 28 September, 2024, former NTUC Income CEO and presidential candidate Tan Kin Lian (TKL) posted on Facebook about the takeover of the Tuaspring Desalination Plant by Singapore’s Public Utilities Board (PUB).

TKL had commented that PUB had acquired the plant “for free, at the expense of the investors and bondholders of Hyflux”.

He also suggested that the Tuas NEWater Factory and the Tuaspring Desalination Plant were located at the same site.

This post drew a public response from PUB, which flagged two significant factual inaccuracies.

PUB clarified that the Tuaspring Desalination Plant and the Tuas NEWater Factory are distinct facilities, located about 6 kilometres apart.

Furthermore, PUB stated that it had not acquired the Tuaspring plant “for free”.

According to the PUB, the plant was independently valued at a negative value, meaning Hyflux would have owed compensation to PUB, which was waived due to Hyflux’s financial crisis.

PUB emphasised that its actions did not disadvantage Hyflux’s investors, contradicting TKL’s assertion.

Despite these corrections, no Protection from Online Falsehoods and Manipulation Act (POFMA) correction notice has been issued against TKL.

However, while PUB’s statement highlights factual inaccuracies, some of Tan’s assertions may carry weight given the circumstances of the takeover and Hyflux’s financial collapse.

The plant was indeed taken over for zero dollars, with PUB waiving compensation from TPL.

The waiver, while justified by PUB as a necessity to safeguard water operations, still meant that Hyflux’s creditors, including 34,000 perpetual securities and preference shareholders owed approximately $900 million, were left empty-handed from the sale of the water plant.

This outcome arguably made the recovery of financial losses less possible for retail investors who had placed their faith in the once-renowned water management firm.

PUB’s statement further explained that its actions did not weaken Hyflux or exacerbate the situation for bondholders.

However, the broader context reveals that Hyflux’s collapse, largely due to mounting debts and mismanagement, severely impacted its investors, many of whom were left with substantial losses.

Whether PUB’s actions could have been different is a matter of debate, as Tan’s criticism reflects the frustration of retail investors who felt sidelined during Hyflux’s downfall.

Double Standards in POFMA Enforcement?

Nevertheless, the case before us raises serious questions about whether POFMA is being applied consistently or if its enforcement is selective.

Under POFMA, government ministers can issue correction notices or takedown orders if a statement about their ministries is deemed false and harmful to the public. However, the decision to invoke POFMA appears inconsistent when examining how similar cases have been handled in the past.

For example, correction orders have often been issued quickly, without first engaging the individual or media outlet responsible for the misinformation to correct their statement or include notes to clarify. This has happened even when the media was merely reporting a statement made by a third party and was not the originator of the alleged false information.

On the other end, you have cases such as how the Singapore Housing and Development Board (HDB) flagged an error in a report by Channel News Asia (CNA) concerning the valuation of the Lease Buyback Scheme, without issuing a POFMA correction notice.

In this case, CNA quietly amended its article and added an editor’s note without any POFMA notice being served.

This lenient approach contrasts sharply with other situations where POFMA orders were swiftly issued, often without public engagement or clarification.

When asked about the standards for issuing POFMA correction directions and when clarifications are made, Minister for National Development Desmond Lee declined to respond. Mr Lee had previously issued four correction directions within a matter of days.

Such instances highlight a lack of consistent engagement before the full force of POFMA is applied.

The law has also been enforced more vigorously in cases involving opposition politicians or sensitive topics.

For instance, during the COVID-19 pandemic, several POFMA orders were issued to social media users for allegedly spreading misinformation about government policies.

Similarly, POFMA orders were issued after Minister K Shanmugam, the architect of the law, directed corrections on matters related to law enforcement and on the controversy surrounding the leasing of Ridout Road properties, in which he was personally involved.

In these cases, no opportunity for clarification or voluntary correction was extended prior to the issuance of POFMA orders, further illustrating the inconsistent application of the law.

While PUB’s clarification addressed the factual errors in TKL’s post, the decision not to issue a POFMA notice raises concerns about selective enforcement.

The broad discretionary power given to ministers under POFMA enables them to decide when a correction is necessary.

This ability to decide, without clear guidelines or standards for intervention, contributes to public scepticism about the fairness of POFMA’s enforcement.

While many disagree with the existence of POFMA, as it risks stifling free speech and open debate, its arbitrary enforcement is an even more serious concern.

The selective use of POFMA indicates a drift towards rule by law rather than rule of law, where the application of legal measures is determined by convenience rather than principle.

Such practices erode trust in the legal system and raise serious concerns about the impartiality of governance in Singapore.

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