Principle of proportionality will enable Courts to become “effective final arbiter”, exercise greater powers over Minister’s Directions: Harpreet Singh SC, on strengthening POFMA, while MinLaw defends the Bill’s scope

The doctrine of proportionality or reasonableness, when applied by the Courts, may rein in the wide and “far-reaching” scope of power given to Ministers to issue correction or take-down orders under the proposed Protection from Online Falsehoods and Manipulation Act.

In a commentary published in the Singapore Law Watch last month, Senior Counsel Harpreet Singh Nehal suggested that in order for the Courts to be an “effective final arbiter” on whether a Ministerial order ought to be reviewed, Parliament should introduce the proportionality principle to enable “greater, not lesser, judicial oversight”.

“In the absence of both reasons and proportionality requirements in the statute, a Court will have no meaningful basis upon which to review a Ministerial order,” he argued.

“Proportionality,” wrote Mr Singh, when included in POFMA, will ensure that any order issued by the Minister will be “proportionate to the nature of the falsehood and the degree of harm to the public interest”.

He went on to suggest that the Parliament could either “keep the Bill as it is and give a Minister the current wide powers under the Bill with no specified limit on how these powers are to be exercised”, or to “put some boundary on these wide powers”.

“The degree of judicial control over Ministerial orders will depend on the limit Parliament puts on these powers. If Parliament imposes no requirement of reasonableness or proportionality, the Court’s role in reviewing a Ministerial order is very narrowly confined.

Citing the test of “Wednesbury unreasonableness”, in which “a decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the matter could have arrived at it”, he illustrates how Parliament’s refusal to include proportionality in POFMA may place alarming constraints on the Court’s power to review a Ministerial order.

A “close reading” of the Bill demonstrates the presence of proportionality: MinLaw

The Ministry of Law, in response to Mr Harpreet’s commentary, however suggested that “the Bill expressly set out the requirement for proportionality when the Government issues directions”.

“As Senior Counsel Siraj Omar points out (A more calibrated approach, May 1), a close reading of the Bill will show that it already contains the proportionality requirement,” said the Press Secretary for MinLaw, Teo Wan Gek.

MinLaw also provided a counterargument to the notion that the Bill’s scope is far-reaching and too broad, stating that “the Bill narrows, rather than extends, the Government’s powers” in key areas.

“Indeed, Mr Singh has had constructive discussions with the Ministry of Law on the Bill. On “fact” and “public interest”, he was told that the definitions in the Bill had been calibrated and were the most workable, given the existing jurisprudence,” added MinLaw.

While the letter does not provide a detailed explanation as to why the doctrine of proportionality should be present in the Bill, MinLaw noted that Mr Singh’s suggestion for Parliament to review the Bill regularly “will be considered and dealt with”.