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


26 August 2019

Suang Wijaya has contributed a guest article, “Evaluating the constitutionality of s 61, Protection from Online Falsehoods and Manipulation Act 2019”, to the 2019 issue of the Singapore Comparative Law Review (“SCLR 2019”).

Distinguished Fellow of the NUS Law Faculty and former Chief Justice Chan Sek Keong, in his Foreword to the SCLR 2019, has this to say about Suang’s article:-

Suang Wijaya, Eugene Thuraisingam LLP provides a companion piece to Commentary piece number 4. It focuses on s61 of [the Protection from Online Falsehoods and Manipulation Act 2019] (“The Minister may, by order in the Gazette, exempt any person or class of persons from any provision of this Act”). Wijaya points out that the Explanatory Statement does not explain (a) the persons or classes of persons to whom s61 is meant to apply, or (b) the purposes that are intended to be achieved by s61. He argues that s61 is unconstitutional on the principle of the separation of powers in the Constitution (see Prabagaran a/l Srivijayan v PP [2017] 1 SLR 173) if it is intended to allow the Minister to free any person who has committed an offence under the Act. He argues that s61 would constitute a direct or indirect interference with the judicial power, citing Steve Ferguson v The Attorney General of Trinidad and Tobago [2016] UKPC 2.

Wijaya accepts that legislation may contain exempt provisions, e.g., s29 of the Enlistment Act. But he argues that 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).

Wijaya has raised an interesting issue as to the extent of the powers of the Minister under s61. Can he exempt any person or class of persons from (a) any or all of the offence-creating provisions of the Act; or (b) all the provisions of the Act? Will any such classification violate Article 12(1)?

The SCLR 2019 was launched at the Singapore Legal Forum 2019 on 24 August 2019. The publication can be found online at https://issuu.com/theukslss/docs/sclr_issuu_final__1_?fbclid=IwAR3tySdupu83WCXE6VMiufT2HTEeboRrsdxci1eUdOgpB-NsUyZcLY7BR1g. Suang’s article can be found at page 258.

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