How should one interpret the Cooling-Off Day rules?
Who gets to speak on Cooling-Off Day?
That was a question I asked days after the news broke that the Elections Department had lodged police reports against alternative news website The Independent Singapore and individuals Teo Soh Lung and Roy Ngerng.
In filing the police report, the Elections Department was alleging that Teo and Ngerng had broken the law governing election advertising on the eve of the Bukit Batok by-election.
This accusation triggered some confusion: if the rules were targeted at election advertising from political parties, candidates and related organs, why were two individuals – not running the elections or campaigning for any party – being accused of breaking the law?
Section 78B of the Parliamentary Elections Act says that no person shall, on the eve of Polling Day and on Polling Day itself, "knowingly publish, or knowingly cause or permit to be published, any election advertising in or among any electors in the electoral division".
However, subsection (2) of that section lists certain exemptions, including: "the telephonic or electronic transmission by an individual to another individual of the first-mentioned individual’s own political views, on a non-commercial basis".
In 2012 Dr Jack Lee, an Assistant Professor of Law at the Singapore Management University, explained how subsection (2) could be interpreted:
"Unfortunately, the way the provision is drafted suggests that you are only permitted to communicate your personal political views to another individual, perhaps by e-mail or by SMS. If you use some medium such as Facebook or Twitter that allows your message to be read by third parties (including, potentially, Hougang voters), then it might be said that this is not a “transmission by an individual to another individual”."
Yet if one looks at the Election Department's website, the wording of the exemption with regard to individuals is different from what is stated in subsection (2):
The wording of the exemption as listed on the Elections Department website appears to invite a different interpretation. By saying "individuals to other individuals", it seems to say that one person could transmit his or her personal political views to more than one other person, using the Internet, telephone or electronic means. Surely a Facebook post – a transmission of personal views to a number of people using the Internet – would fall under this exemption then?
So what is the law actually trying to do?
The amendment to the Parliamentary Elections Act that introduced the Cooling-Off Day regulations were first tabled in 2010. This was what the Law Minister K Shanmugam said during the second reading of the amendment bill:
"...instead of allowing only individual transmission of personal political views on the Internet (on a non-commercial basis), we have widened the exception to cover any form of telephonic or electronic transmission of personal political views by individuals to other individuals (on a non-commercial basis). This is to take into account new forms of individual personal communication."
Looking at his speech, Shanmugam had said this to explain that the exceptions to election advertising that previously applied to Polling Day – which allowed for the "individual transmission of personal political views on the Internet, on a non-commercial basis" – had been also applied to Cooling-Off Day, and extended to allow for telephonic or electronic transmission of personal political views, to take into consideration new methods of communication, perhaps like instant messaging services such as WhatsApp.
But if that particular subsection was meant to be a widening of the exception, then why is the transmission of personal political views on the Internet no longer included in the wording of the law?
I'm no lawyer, so I've been trying to find an answer to this question in the hopes of gaining more clarity on the issue. It would not only shed light on the investigations into Roy Ngerng and Teo Soh Lung, but would also be vital to Singaporeans' understanding of the Cooling-Off Day regulations in relation to the sharing of their personal political views online.
The lack of answers would also have the opposite effect – more confusion among the populace over the rules, potentially leading to unintentional breaches in the future. If the law is unclear, could we really blame people for getting it wrong?
Teo Soh Lung – herself a trained and formerly practising lawyer – believed that the Cooling-Off Day rules only applied to political parties, candidates and their campaigns, and not to individuals like herself. She therefore told the investigating officers that she had simply been exercising her constitutional right to express her opinion on politics. She hadn't thought about the day or the time when she posted on her Facebook page, as she didn't think the laws applied to her in the first place. Looking at the exemption as written on the Elections Department website, one can see how she could have arrived at that conclusion. Was she wrong?
I had first raised this question in my Yahoo! Singapore blog post on 29 May 2016, even before the investigations began. No one (that I saw, anyway) came up with an answer. Hoping for some explanation, I sent the following questions to the Elections Department at 5:35pm on 1 June, Wednesday:
- The wording of the exemption of individuals in the statutes is this: "the telephonic or electronic transmission by an individual to another individual of the first-mentioned individual’s own political views, on a noncommercial basis".
However, if one looks at the ELD's website, the wording of the exemption is different: "the transmission of personal political views by individuals to other individuals, on a non-commercial basis, using the Internet, telephone or electronic means".
The different wording of the text could suggest different interpretations. My question is: why is the wording different? Would it not give the public a mistaken understanding of the law?
- What is the name of the Assistant Returning Officer who had lodged the police report? Why was this person not identified?
- Why was the report lodged so late, rather than closer to the time of the by-election?
- Why does the ELD believe that individuals like Roy Ngerng and Teo Soh Lung have breached the law, considering the exemption in relation to individuals?
I have not yet received a response.
It was pointed out in a discussion on Facebook that one needs to read on in the Hansard to get a clearer understanding of the intention behind the wording of the law.
This is what the minister said in response to questions:
"Ms Ellen Lee asked whether the expression of opinions on current affairs would also be deemed election advertising. She also asked about "status updates", comments on "Walls" and "Photos" on Facebook. To take any one situation that Ms Lee has raised and to try and apply the definition to it, risks over-simplification or over-generalisation. Each case would have to turn on its own facts. But the definition of election advertising is clear. If the material can reasonably be regarded as intended to promote or procure electoral success for any party or candidate, or to enhance their standing with the electorate, then it is likely to be considered election advertising. What format this advertising takes, whether in new media or traditional media, does not make a difference to the legal interpretation.
But as I have said earlier, during my Second Reading speech, individual-to-individual transmission of personal political views, on a non-commercial basis, is not caught by the prohibition on Cooling-Off day and Polling Day. So, if a person posts a message on his blog or on a website which everyone can read, asking readers to vote for a particular party or candidate, that would probably be election advertising. But if he sends an email or SMS to a friend to share his personal political views about the election and provided he does not collect money for doing so, then that would not be caught."
This comment, then, makes it appear that a public Facebook post is not exempted from the Cooling-Off Day rules after all, and that only (relatively) one-on-one communications are exempted.
But if this is the case, some questions still remain:
- Would only public Facebook posts, which everyone can read, be banned? What about friends-only Facebook posts, which not everyone can read, but could still reach quite a lot of people if one has many friends?
- Emails and SMSes (or instant messaging, which is more commonly used now) can also be set to an awful lot of people at one time, and then be forwarded on and on. It can therefore still reach a lot of people. Why is this considered different from posting on social media?
And, most importantly, one has to come back to the original question:
- If the intention of the law is to confine it to (relatively) one-on-one transmissions, why does the Elections Department website carrying wording that invites such a different interpretation?