POFMA – Evaluating the constitutionality of s 61 by Suang

Evaluating the constitutionality of Section 61, Protection from Online Falsehoods and Manipulation Act 2019 by Suang Wijaya*

Introduction

On 25 June 2019, the Protection from Online Falsehoods and Manipulation Act 2019 (“POFMA”) was published on in the Government Gazette. This article focuses on Section 61 of the POFMA, which provides:-

The Minister may, by order in the Gazette, exempt any person or class of persons from any provision from this Act.

What is the effect of Section 61?

The Explanatory Statement does not explain the persons or classes of persons to whom Section 61 is meant to apply. The Explanatory Statement also does not explain the purposes that are intended to be achieved by Section 61. However, when we consider the other provisions of POFMA, we get a reasonably clear understanding of the nature of the Minister’s proposed powers under POFMA.

The provisions of the POFMA can be divided into three broad categories:-

1. First, there are provisions conferring various powers on Ministers, and setting out the conditions for the exercise of those powers. For instance, Sections 11 to 13 confer on Ministers the power to issue “Part 3 Directions”, while Section 10 prescribes the conditions for the exercise of such power.
2. Second, there are provisions prescribing the remedies are available to persons aggrieved by the exercise of powers by Ministers. There are also provisions setting out the procedures in order to obtain such relief. Thus, Section 17 sets out the remedies and procedures available to persons who have been served with Part 3 Directions.
3. Third, there are provisions which impose criminal liability (“offence-creating provisions”). The POFMA is littered with such provisions. These include Part 2, and Sections 15, 27, 28(3), 32(6), 33(4), 34(5), 36, 37(6), 38, 42, 43(3), 47(4), 50(3) and 54(4).

Although on its terms the Minister has power to “exempt” persons from “any provision” of the proposed Act, Section 61 is unlikely to apply to the first category of provisions set out above.

The ordinary meaning of “exempt” is to free a person from an obligation or liability imposed on other persons.¹ If Section 61 were to apply to the first category of provisions, this would mean that a Minister can, by order in the Gazette, waive the conditions for the exercise of other Ministers’ or even his own exercise of their statutory powers. The outcome of such an interpretation would be manifestly absurd and arbitrary. I trust that the legislative drafters did not intend for Section 61 to have such an effect. However, Section 61 can conceivably apply to the second category of provisions. It is conceivable for the Minister to have the power to exempt persons from specific procedural requirements for the exercise of their rights to seek remedies against orders or directions made by Ministers against them. For instance, the Minister may exempt an aggrieved person from the requirement under Section 17(2) that, before exercising a right of appeal, there must first be an application to the Minister to vary or cancel a Part 3 Direction, and such application must then be wholly or partially refused.

Similarly, the drafters likely intended Section 61 to apply to the third category of provisions. I say this because Section 61 states that the Minister’s powers of exemption apply to “any provision”, and there are numerous offence-creating provisions in the POFMA.

At this juncture, it is useful to elaborate on the legal effects of the Minister having Section 61 powers over offence-creating provisions. On its plain and ordinary meaning, Section 61 empowers the Minister to free a person from liability for an offence provided by the POFMA (a “POFMA offence”) where, but for the Minister’s decision, the person would be liable for such an offence. Section 61 can apply prospectively, in the sense that a person who has not committed a POFMA offence may, moving forward, lawfully do acts which would without the Minister’s intervention have amounted to such an offence.

That is not all, however. The Minister can exercise the Section 61 power retrospectively, by ordering that a person who has already committed a POFMA offence, be exempt from liability for that offence. Taking things even further, the Minister may even exempt a person from liability for a past act, even where criminal proceedings are already afoot. In such a case, the Minister’s order exempting an accused person from criminal liability would mean that a court becomes bound to acquit the accused in question.

It is my respectful view that, on its present terms, Section 61 is arguably unconstitutional. I take this view, even bearing in mind that the exercise of the Section 61 power will, in the usual way, be subject to judicial review. I elaborate.

The separation of powers and the judicial power under Article 93 of the Constitution

It is now firmly established that the principle of separation of powers is a bedrock constitutional principle. As Chao Hick Tin JA delivering the Court of Appeal’s judgment in Prabagaran a/l Srivijayan v PP and other matters² (“Prabagaran”) stated at [56]:-

It is undisputed that the Constitution, based on the Westminster model of constitutional government, incorporates as part of its basic structure the principle of separation of powers: Mohammad Faizal bin Sabtu v PP [2012] 4 SLR 947 (“Faizal”) at [11]. By way of Arts 23(1), 38 and 93 of the Constitution, the executive, legislative and judicial powers of Singapore vest in their respective organs of state… [T]he judicial power of Singapore vests exclusively in the Supreme Court and “such subordinate courts as may be provided by any written law for the time being in force.” This entails that the legislative and executive branches may not interfere with the exercise of the judicial power by the judicial branch (see Faizal at [19]), and such acts of interference may be struck down as unconstitutional.

The more difficult task, however, is ascertaining whether a particular Act of Parliament has in fact interfered with the judicial power. The starting point is to recognise the distinction between, on the one hand, a valid legislative rule of general application, and on the other hand, purported legislation that attempts to achieve a particular outcome for a particular person or group of persons in relation to particular sets of facts. The distinction is vividly described by Blackstone (Commentaries, Introduction, Section II):-

[I]t is a rule: not a transient order from a superior to or concerning a particular person; but something permanent, uniform and universal. Therefore, a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason: this has permanency, uniformity and universality, and therefore is properly a rule.

The above passage was cited by the Privy Council in Liyanage v The Queen³, “the leading modern authority for the proposition that under a written constitution based on the separation of powers, the legislature may not determine by statute the outcome of particular judicial proceedings” (Ferguson v Attorney General of Trinidad and Tobago⁴ (“Ferguson”) at [21]).

Chan Sek Keong CJ in Faizal at [27] summarises the essential judicial task, which is not to be intruded upon by the legislative or executive organs of State, as follows:-

In essence, the judicial function is premised on the existence of a controversy either between a State and one or more of its subjects, or between two or more subjects of a state. The judicial function entails the courts making a finding on the facts as they stand, applying the relevant law to those facts and determining the rights and obligations of the parties concerned for the purposes of governing their relationship for the future.

More specifically in the field of criminal law, “[o] ne of the exclusively judicial functions of government is the adjugment… of criminal guilt” (Nicholas v R⁵ at [16] per Brennan CJ).

The indicia of impermissible legislative interference in the judicial power

In the recent Privy Council decision of Ferguson at [22], Lord Sumption delivering the Board’s judgment observed that legislation may interfere in the judicial power either directly or indirectly. Statutes which directly interfere in the judicial power include bills of attainder (ancient statutory instruments which convicted specific named individuals of offences), legislation that determines innocence or guilt or the penalty to be imposed, or legislation which vests on the executive the power to determine innocence or guilt or the penalty to be imposed.

Indirect legislative interference in the judicial power occurs by “altering general rules of law in a manner which will in practice determine the outcome of particular proceedings or of particular issues in those proceedings, for example by changing the elements of an offence or a tort, or abrogating a special defence, or altering the rules of evidence or a relevant period of limitation, without any transitional provisions to ensure that current proceedings are unaffected” (Ferguson at [24]).

Indirect interference is more common than direct interference, and “gives rise to more difficult problems” (Ferguson at [24]). The key to identifying such indirect interference, according to Lord Sumption, is to recognise that the legislation “should not simply affect the resolution of current litigation but should be ad hominem, ie targeted at identifiable persons or cases” (Feguson at [25]). Unfortunately, there is not a clear bright line between legislation which merely alters the law or affects current legislation, and legislation which is ad hominem. Some general insights can however be gleaned from the cases.

First, “Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings” (Liyanage at 290). In weighing all the facts and circumstances, the court considers the substance and not the form of the legislative scheme. “Parliament cannot evade a constitutional restriction by a colourable device” (Hinds v The Queen⁶ (“Hinds”) at 290). In Liyanage itself, a number of legislative provisions were under challenge. Had each provision been considered alone, there would be no constitutional objection. The provisions purported to provide for general rules of procedure and evidence. However, when the provisions are considered cumulatively, the ad hominem nature of the legislative scheme becomes apparent. By:- (i) changing the rules of admission of evidence; (ii) changing the minimum sentence; (iii) providing specific answers to specific issues in the ongoing proceedings; (iv) making these changes retrospective by applying them to ongoing judicial proceedings; (v) disapplying the legislative scheme from future proceedings by the use of a sunset clause (Ferguson at [26]), the legislation was clearly directed towards securing the conviction and heavy punishment of a targeted group of individuals (and no others). The Privy Council had no difficulties finding that this “constituted a grave and deliberate incursion into the judicial sphere” (Liyanage at 290).

Ferguson is a useful contrast to Liyanage. In Ferguson, the legislation under challenge in essence repealed the limitation defence for criminal proceedings. Before the enactment of impugned legislation, this limitation defence had accrued in favour of the appellants in the Ferguson case. Some of the appellants had even filed applications for summary acquittal, on the basis of the accrued limitation defence. The impugned legislation was retrospective, such that:- (i) accused persons who had an accrued limitation defence were no longer able to rely on that defence; and (ii) those accused persons who had applied for summary acquittal necessarily had their applications dismissed.

The Privy Council accepted that the legislation under challenge did impact ongoing proceeding. However, the Board then held that such the retrospectivity of the legislation was not enough to amount to direct or indirect interference in the judicial power. There was no direct interference because the legislation was a mere alteration to the general criminal law. There was no indirect interference because the appellants had failed to show that the legislation was colourable in the sense that in practice only a limited category of persons would be affected by the legislation. In Lord Sumption’s words, “The Amending Act not only looks like general legislation. It is general legislation” (Ferguson at [31]).

Second, it is not enough to only show that the legislation indirectly affects the issue of liability or penalty in a case, or vests in a member of the Executive a power which, when exercised, indirectly affects the issue of liability or penalty in a case. The Legislature can legitimately provide for rules of general application that have the effect of restricting the range of decisions which the court can reach in a case (see Faizal). The Legislature can also validly prescribe conditions which circumscribe the range of decisions which the court can reach in a case, and then vest in a member of the Executive the power to determine whether those conditions are met (see Prabagaran).

Applying the principles to Section 61

There can be no constitutional objection to the availability of Section 61 powers over the second category of provisions. Any exemption to this category of provisions would not amount to an executive pre-judgment of the ultimate issue of whether the Ministerial order or direction in question should be set aside. It would only affect the conduct of ongoing or future proceedings by persons or classes of persons. As I have explained, this is not enough to constitute direct or indirect interference in the judicial power.

It is my respectful opinion, however, that Section 61 arguably cannot, in conformity with the principle of separation of powers, be applied to the offence-creating provisions of the POFMA (ie, the third category of provisions).

First, I argue that Section 61 arguably constitutes a direct interference in the judicial power. By Section 61, the Legislature confers on the Minister the power to issue a bill of attainder in reverse form (ie, an executive judgment that a person or class of persons shall be innocent of criminal liability). It does not matter that Section 61 provides for an executive power to exempt from criminal liability, as opposed to an executive power to judge, determine, or direct the court to find that a person is not criminally liable. As I have explained, the courts look to the substance and not the form of a legislative scheme. There can be no meaningful difference between, on the one hand, an executive power to direct the court to adjudicate a controversy in a particular way, and on the other hand, an executive power to remove the controversy entirely for a specific person or class of persons (and not others).

The point can be illustrated this way. It cannot be disputed that legislation providing that a person shall be guilty of an existing offence is impermissible. What difference is there between such legislation, and legislation creating a completely new offence, and further providing that a specific person (and no one else) shall be guilty of that offence?

Second, if I am wrong on the view that Section 61 constitutes direct interference, it is my view that Section 61 arguably amounts at least to an indirect interference with the judicial power

As Lord Sumption explains in Ferguson, indirect interference occurs where the legislation in question putatively provides for mere alterations to the general law, but in practical effect is targeted towards a specific outcome for a limited and identifiable class of persons. The fact that Section 61 is framed in terms of exemption rather than determination may suggest that the Minister powers is given only powers of general subsidiary legislation. But the analysis of indirect interference does not stop there. What appears constitutionally objectionable is the fact that the Minister is, on Section 61’s own terms, given the power to determine that specific persons or classes of persons shall not be imposed with criminal liability for doing acts which would, if done by other persons, attract criminal liability. Underscoring the ad hominem nature of the powers sought to be conferred by Section 61 is the fact that Section 61 empowers the Minister to exempt persons after they have committed acts which would ordinarily attract criminal liability, and even after criminal proceedings are afoot. The analysis may be different if Section 61 prescribes general conditions which, if met, would qualify a person or class of persons for exemption from criminal liability. The analysis may be different even if the Minister is vested with the exclusive power to determine if these general conditions are met. That is however not the case with Section 61.

Exemption clauses in other Singapore legislation

It may be noted that many such exemption clauses can be found in other Singapore legislation. For instance, under Section 29 of the Enlistment Act⁷, it is provided that “[t]he proper authority may by notice exempt any person from all or any part of the liability of that person under this Act”. A full examination of whether all the various exemption clauses found in other legislation amount to a legislative interference in the judicial power is beyond the scope of this short article. I can however make a few general observations here. Firstly, it is not the case that an exemption clause necessarily amounts to an unconstitutional interference in the judicial power. As can be seen in this article, I accept that Section 61 of the POFMA would not impinge on the judicial power so far as the second category of provisions is concerned. Secondly, each exemption clause must be scrutinised in light with the entire legislative scheme and context, to ascertain whether the exemption clause:- (a) is a legitimate conferral of powers to make rules of general application in relation to a person’s or class of person’s rights and duties; or (b) is an illegitimate ad hominem legislation targeted at securing a particular outcome for specific persons (or classes of persons). Thirdly, if, however, an exemption clause is construed to be an unconstitutional interference in the judicial power, then the fact that similar exemption clauses can be found in many other legislation cannot save the provision from striking down under Article 4 of the Constitution.

Conclusion

There is no suggestion in this article that the proposed exercise of power under Section 61 shall be anything other than in good faith, with relevant considerations taken into account and irrelevant considerations not taken into account. No doubt, the proposed exercise of the Section 61 power shall be susceptible to judicial review in the normal way. However, as explained in Prabagaran and Faizal, it is a strict rule that any legislation that interferes with the judicial power shall be struck down for breach of separation of powers.

*“Evaluating the constitutionality of s 61, Protection from Online Falsehoods and Manipulation Act 2019”, was the guest article to the 2019 issue of the Singapore Comparative Law Review (“SCLR 2019”). The SCLR 2019 was launched at the Singapore Legal Forum 2019 on 24 August 2019. The publication can be found online at https://tinyurl.com/SCLR-2019-p-258. Suang’s article can be found at page 258.

1. https://en.oxforddictionaries.com/definition/exempt
2. [2017] 1 SLR 173.
3. [1967] AC 259 at 291.
4. [2016] UKPC 2.
5. (1998) 193 CLR 173.
6. 1967] 1 AC 259.
7. Cap 93, 2001 Rev Ed.