TOC’s inadequate response to PMO and MDA

Those following The Online Citizen saga are aware that as of yesterday, TOC finally issued a formal press release (which I personally felt was unnecessarily lengthy) and an official reply to its readers regarding both the Prime Minister’s Office indication to gazette it as a political association under the Political Donations Act (PDA) as well as MDA’s notification to register both in 14 days.

I personally believe TOC should not have to be gazetted under the PDA and registered under some MDA license act. Indeed, why should any website have to do so and subject themselves to possible restrictions and greater regulation by a partisan government body? But at the same time that does not mean that there is no legal basis for gazetting. Let’s take a look at their official replies found here.

Disclaimer: I am no law student and may have erroneously mis-interpreted the statutes. Kindly point out any mistakes I have made in the comments below, thank you.

The first letter to the PMO generally states that TOC does not consider itself political enough to be considered a Political Association as defined in the Act. They have in their words, have been only as political as “all Singaporeans” consider themselves political by being merely interested and conversing on such topics:

TOC is familiar to many Singaporeans: we are a website that provides regular Singaporeans with a platform to share their opinions about all aspects of life in Singapore, and we aspire to be the medium through which those neglected by society find their voice. Accordingly, we have run articles about homelessness in Singapore, the widening income gap, migrant workers, civil society, political issues and even have a regular column dispensing sexual advice.

In short, we are a place where Singaporeans can come and talk about what is foremost on their minds. We do not engage in partisan politics, and we have no interest in engaging in partisan politics. TOC is political to the extent and in the exact same way that all ordinary Singaporeans are political: by being interested in, and talking about, political issues that impact us and our country.

But this argument when considered in light of the definition of “political association” as defined in the PDA does not appear to be particularly persuasive:

“political association” means —

(a) a political party or an organisation which has as one of its objects or activities the promotion or procuring of the election to Parliament or to the office of President of a candidate or candidates endorsed by the organisation; or

(b) an organisation (not being a branch of any organisation) whose objects or activities relate wholly or mainly to politics in Singapore and which is declared by the Minister, by order in the Gazette, to be a political association for the purposes of this Act;

 

In particular, (b) states that it only suffices that its activities must be mainly about politics in Singapore. Anyone who has been reading TOC the past 4 years since its inception knows that just about every mainstream media publication considers it a socio-political blog. Who can deny that the Face to Face forum organised by TOC as well as its various campaigns such as calls to suspend the mandatory capital punishment are political in nature? And of course the second part of (b) says that it’s up to the Minister’s discretion to decide if it should be gazetted. Now the big problem for TOC it’s that it’s going to be very hard to argue that it has not been overtly political. TOC has run overtly socio-political campaigns (though not those explicitly endorsing or critical of candidates or public servants) on social issues such as the mandatory death penalty (including an explicit call to suspend all capital punishment), extended coverage of the Yong Vui Kong case, focus on exploited migrant workers, special needs people etc. it’s hard to argue that these aren’t socio-political concerns.

Of course some might argue that these are social issues rather than political ones, but if a purely human-rights-focused group such as Maruah which doesn’t cover electoral issues could be gazetted and treated as a political association, why shouldn’t TOC which had just organised a successful meeting of all the major political parties in Singapore through its Face 2 Face forum last month?

Indeed some of the editorials and articles written by TOC makes clear that they take a strong stand on these issues instead of merely reporting on them as a passive political observer. Let’s quote a few:

On the mandatory death penalty campaign:

The Online Citizen calls on the Singapore Government to impose a moratorium on all executions for those sentenced under the Mandatory Death Penalty (MDP). Our Special Focus Week the next 7 days or so urges the Singapore Government to consider the concerns and issues raised with regards to, in particular, the Misuse of Drugs Act and its provisions. TOC believes that there are serious and valid concerns about the application and provisions of the MDP which mandate a moratorium on executions. We urge the Prime Minister and his Government to consider these concerns and to allow an open and robust discourse with members of the public, the legal fraternity and Members of Parliament so that a true national consensus on judicial executions, based on informed considerations, is arrived at. We begin our appeal to the Government with our editorial position on the matter.

On Yong Vui Kong:

Despite the drizzle, both young and old were there to add their signatures to the call for clemency. The event was organized by the Singapore Anti-Death Penalty campaigners (SADPC) and The Online Citizen (TOC).

…

TOC’s chief editor, Andrew Loh, spoke on what the event was about. “Today is not about Vui Kong’s guilt. Today is not about whether the death penalty is right or needed,” he told the crowd in his speech. “Today is about mercy.” He urged for Vui Kong to be shown clemency despite what he had done – trafficking in 47.27g of heroin into Singapore in 2007.

“Vui Kong was just 19 when he committed the offence. His first offence,” Andrew said. He feels that at that age, such a person – who is also illiterate and comes from a poor family – would make mistakes, just like any other person of that age.

He argued that a justice system must also allow for mercy. “We are not here to talk about the legal process or Yong’s guilt. That has already been decided by the courts,” he said. “Do we have room for repentence, for conversion? Should our justice system not allow for these?”

“Hanging drug mules is not going to solve the problem. The drug barons and the drug lords – who live in their castles with their millions – will just find the next gullible, naïve and ignorant young person to do their dirty deeds. And we will hang the next young boy, and the next one, and the next one – while those who’re truly responsible get away.”

Andrew also asked the mainstream media in Singapore to report the story of Vui Kong so as to enable greater public debate on the issue. “Our media reports are so mechanical. Drug trafficker. Found guilty. Sentenced to death. Full stop.”

There’s another article by Andrew Loh which states more explicitly his beliefs that the mandatory death penalty should be abolished. That article however, comes with a disclaimer that the views expressed are that of Andrew’s and not necessarily TOC’s. But the government is unlikely to acknowledge the difference.

Apart from these who can forget that less than a year ago, TOC ran two stories dedicated to rebutting MCYS Minister Vivian Balakrishnan’s claim on how Al Jazeera TV distorted a homeless couple’s situation to paint MCYS in a bad light. To do this, TOC dispatched on-scene reporters to the homeless couple (I have no idea how they managed to locate them) to interview them.  In addition they also fired off multiple emails to various government organisations to clarify certain points.

Now let’s be clear on this. What TOC did isn’t wrong and I personally support their pro-active coverage especially to clear up the distorted one-sided picture painted by the mainstream media through Minister Balakrishnan’s statements. It’s just that doing so undermines the notion that they are mere passive political commentators, which might have made them less likely to be gazetted as a political association.

Apart from this, TOC also interviewed various groups of Singaporeans to find out what they think of the mandatory death penalty. The series of videos may be viewed here. Also, as part of the year in review for 2010, TOC ran an article by one of its volunteers Kirsten Han:

While the judges reserved their judgement, we at TOC threw ourselves fully into our campaign for a moratorium on the Mandatory Death Penalty. We shot more vox pops, and edited together our TOC campaign video

…

The Minster of Community Development, Youth and Sports had stood up in Parliament and accused Al-Jazeera for not checking its facts in the homeless story that had been done in Singapore. He had also gone on to say that “some irresponsible websites have also caused these falsehoods to circulate widely on the Internet”.

Even before 2010 TOC had been writing reports about various homeless people and families in Singapore, people living in tents at Sembawang Park, Changi Beach, East Coast Park or West Coast Park. TOC had also run a focus week on the homeless issue, and so we assumed that Dr Balakrishnan was referring to us.

Many of us were utterly shocked by the Minister’s comments. We had been working on homeless stories in the hopes that more help would be extended towards these people once their plight had been highlighted. We had never expected that the response from the government would be such accusations and humiliation.

We thus kicked into overdrive, going to speak to the homeless couple – who were understandably distraught – in the Al-Jazeera story so as to be able to prepare our replies to the Minister’s comments. We responded in two parts: Part One, Part Two.

…

An event at Speakers’ Corner called The Elected President is NOT a Rubber Stamp was quickly organised, and a letter-writing campaign to President S R Nathan launched.

I was put in charge of collecting and posting the letters. In that weekend I posted approximately 50 letters to the Istana requesting that the President convene a Constitutional Tribunal to ascertain his powers in the matter. Many letter-writers also requested that the Istana give them some reply within 7 days.

With all of the above  in mind, how can anyone believe TOC’s defence that they are merely a place for interested parties to converse on political and social issues in Singapore? TOC has explicitly taken sides and has pro-actively reached out to Singaporeans on such matters, and were not mere passive observers. Again this is not to say that I disagree that they should have done as they did. I firmly believe there is nothing wrong and such a civic spirit should be encourage but again this does nothing except undermine their defence in the reply to PMO.

The above only covers what they did in 2010. Glancing through their articles for 2009, what I noticed what the lack of campaigns and events they held as compared to 2010. Back then TOC seemed more like a more passive observer and political commentator rather than the activist website they had transformed into in 2010. I surmise that if one goes back even further to 2008 or 2007, one would find greater passivity on their part. So in light of these it seems hard to escape the conclusion that TOC in a way courted and invited the gazetting by behaving more like an activist. If they had been more passive and stuck to their original script for 2007-2009, it appears less likely that they would have been gazetted.

But then again, I stress that personally it’s not me who objects to their activism. I believe that activism should never be viewed as a negative thing. But of course I do not hail from the Prime Minister’s Office and they do not share my view.

TOC’s response to MDA

TOC’s response to MDA is by comparison extremely short and bewildering. Here it is in full:

1. We refer to your letter of 11 January 2011 requiring us to register under the Broadcasting (Class Licence) Notification (“the Letter”).

2. We received your notice one day after the letter from Prime Minister’s Office stating his intention to gazette us as a Political Association under the Political Donations Act. As such, it is clear to us that your request for us to register is tied to the Prime Minister’s intention.

3. TOC has written to the Prime Minister seeking a reversal of the decision to gazette us as a political association and we will not be sending you any information pending the outcome of that appeal.

Firstly it looks as though TOC is confusing the two letters and requests from PMO and MDA. Despite the fact both came within short interval of each other, they should not be taken to be the same. TOC’s reply, as I had indicated in a comment on their article which was not approved (despite the fact that there were plenty of other comments which were posted and approved later), assumes that the latter’s notification to register for a license was somehow conditional or dependent on the PMO’s intent to gazette TOC as a political association:

I am tempted to say that TOC shouldn’t be censoring comments which are critical but not abusive, but I guess protesting it won’t do any good. But back to the point, if one considers the history of other websites which have been notified by MDA to register for a license, in general they have not been gazetted as political associations as well. Take Sintercom for example, the last website to be served notice by the authorities to register for a license. Unlike TOC, they were not similarly gazetted as a political association. TOC’s reply which tries to tie in the PMO’s gazetting together with MDA’s license registration notification serves only to weaken their argument.

Reading through the relevant statute, it appears that what MDA did is not entirely unjustified:

3. An Internet Content Provider who is or is determined by the Authority to be –

a. a political party registered in Singapore providing any programme on World Wide Web through the Internet; or

b. a body of persons engaged in the propagation, promotion or discussion of political or religious issues relating to Singapore on World Wide Web through the Internet,

shall register with the Authority within 14 days of 15th July 1996 or, in the case of an Internet Content Provider who provides the service after 15th July 1996, within 14 days after the commencement of its service, or within such longer time as the Authority may permit.

4. If required by the Authority to do so by notice in writing –

a. an Internet Content Provider who is, or is determined by the Authority to be, in the business of providing through the Internet an on-line newspaper for a subscription fee or other consideration; and

b. an Internet Content Provider who is, or is determined by the Authority to be, an individual providing any programme, for the propagation, promotion or discussion of political or religious issues relating to Singapore, on the World Wide Web through the Internet,

shall register with the Authority within the time stipulated by the Authority in the notice.

If anything the problem with the Broadcasting Act (and relevant guidelines and statutes) is that it’s left intentionally ambiguous. As Alex Au pointed out back in 2007,  it gives the media regulatory authority too much power and freedom to arbitrarily determine how a blog or website should be classified as something which should be compelled to register for a license, whereupon just about any of its articles may be deemed to be against “public interest” and have to be removed or be fined.

At the end of the day, I would argue that what should really be changed is not the PM’s request to gazette TOC as a political association, but rather the need for gazetting at all. Unfortunately because this is written into law, together with MDA’s Broadcasting Act, one may have to change the laws themselves in order to do so. And of course, unjust laws only exist because Parliament gets to pass them. That tells you how serious Singaporeans should take the upcoming elections to be.

Update 16th Jan: TOC has finally approved my comment (dated 14th Jan) on their article, long after various other supportive comments posted up till 16th Jan were approved.

Update 19th Jan: Please see this comment before commenting on this post. Also see this for another example of TOC’s egregious comment moderation. The PMO has also replied to TOC here, and has largely re-iterated the points above that TOC is “not a passive website” and has “organized online and offline campaigns to change legislation and Government policies, a forum for local politicians, and polls on public support for local politicians and on other political issues concerning Singapore”.