Where is the missing subsidiary legislation to POFMA that the Law Minister has mentioned?

As of 25 June, the much debated Protection from Online Falsehoods and Manipulation Act (POFMA) has become the law of the land in Singapore. The bill was first introduced in parliament on 1 April. After a second and third reading on 8 May, the bill was passed in Parliament with 72 votes in support. There were also 9 votes against and 3 abstentions. The legislation was then sent to President Halimah Yacob who assented to it on 3 June before it was published in the Government Gazette online on 25 June, which is when it officially came into effect. As everyone probably knows by now, POFMA  was hotly debated both in Parliament and in the public sphere. The initial introduction of the law drew waves of criticism from local and international experts, activists, and NGOs as well as from locals worried about the possible misuse of the law by errant politicians to further their political agenda. Regional and international organisations such as the Asian Internet Coalition, ASEAN Parliamentarians for Human Rights, the UN Special Rapporteur, Reporters without Borders came out against POFMA almost immediately citing infringement of rights and proposing adjustments to the bill. FORUM-ASIA and CIVIUS described the law as yet another tool for the government to silence dissent and criticism while global tech firm Google said that POFMA would be detrimental to innovation. Local civil society and community groups including but not limited to Pink Dot, AWARE, HOME and Function8 wrote a strong letter of concern over POFMA, urging the government to make several key amendments to include proper safeguards in the bill to prevent misuse and mitigate the deluge of concerns that had been raised. However, the law passed without amendments. In fact, during the one month period between the law being introduced and then passed in parliament, there was much said by government officers who attempted to reassure the public that the law would be for the best for everyone in Singapore. Law and Home Affairs Minister K Shanmugam has consistently asserted that POFMA will not infringe on rights such as freedom of the press and freedom of speech as it is only targeted towards individuals who intentionally spread falsehoods. “99% of people don’t have to worry about it 99% of the time,” he said.

Subsidiary legislation?

However, many remain unconvinced. Several Nominated Members of Parliament (NMP) proposed a number of amendments for the bill which they felt would address concerns over the broad powers that the bill affords to any government ministers in declaring falsehoods. “We are concerned that these broadly worded clauses give the Executive considerable discretion to take action against online communications, without protection in the primary legislation that codifies the assurances given by the Government in explaining the Bill to the public,” said the NMPs. In response to their concerns and recommendations, Mr Shanmugan indicated that the government does in fact intend to make use of subsidiary legislation to supplement POFMA. He also said that POFMA and its subsidiary legislation differs from the Broadcasting Act in one key aspect – territoriality. POFMA extends beyond Singapore borders where the Broadcasting Act does not.

No parliamentary oversight

However, the NMPs asserted that subsidiary legislation would not appropriately address the issues they’ve raised, one of which is the appeals process laid out in Clauses 17, 29, and 35 of POMFA which Ms Ong said could “could potentially limit the ability of appellants to seek judicial oversight because all appeals must be made first to the respective domain Minister”. There is also no time frame outlined in the Act for a decision on the appeal to be made. One of the amendments that the NMPs proposed was to remedy that – to state in Act specifically that “the Minister shall to everything reasonable to ensure the appeals process is expeditious and low-cost”. Mr Shanmugam assured the NMPs that the subsidiary legislation will address their concerns on that and provide for more specific reasons on falsity and better define public interest. However, Ms Ong pointed out that subsidiary legislation “can be amended without coming before Parliament.” Assoc Prof Thesseira later added, “It is crucial that every Government official involved in the exercise of powers abide by a common set of principles in administering the Act. What is the difference between doing so in the Bill, versus leaving it to subsidiary legislation or internal regulation? Sir, the difference is governance. Subsidiary legislation can be changed without a Parliamentary vote. The primary legislation cannot.” He continued, “I think it is important to provide a plain language set of the principles in the primary legislation that cannot be changed by a future Government without returning to Parliament.” Ms Ong had requested that the Law Minister outline the details of subsidiary legislation which is supposed to address the amendments the NMPs had suggested. However, she also cautioned that “any future Minister and/or Government could still make changes in the subsidiary legislation to enact rules to unnecessarily delay the appeal process, obstructing appellants' access to swift judicial oversight.” So the concern with creating subsidiary legislation to strengthen safeguards in POFMA is that there will be no parliamentary oversight and could, instead of allaying concerns, simply serve to worsen them.

Is POFMA in effect without subsidiary legislation?

Additionally, Worker’s Party MP Sylvia Lim said that while the government’s assurances that further controls for POFMA will be enacted are recorded in the official Parliament reports, the government should make POFMA as clear as possible given that it is a law that could potentially catch all Singaporeans who use digital communication. Ms Lim said, “Is it reasonable to expect an ordinary citizen who wants to understand POFMA to have to cross refer from the Act to subsidiary legislation, and then to the parliamentary debates as well?” Before we even get that far though, we should note that the details of this so-called subsidiary legislation have yet taken form even though the law has been passed. So given that this subsidiary legislation is nowhere in sight, what happens to those who are charged now? How will one know what the due process is without the promised subsidiary legislation? Another question is whether there was a rush to push POFMA through Parliament even though the subsidiary legislation isn’t ready? Responding to a question from MP Vikram Singh on whether POFMA will cover past statements made before the law was enacted, the Law Minister said, “The Bill will come into force hereafter, with relevant subsidiary legislation, on a date to be specified, as is usual. Any statement after the Act, assuming it is passed, comes into force, will be covered. It could also cover future statements that may be made by reference to something said in the past, or statements which repeat past statements.” So Mr Shanmugan noted that bill will come into force with the subsidiary legislation. Given that the subsidiary legislation has yet to be published, does that mean that the primary act – POFMA – is not yet in force? TOC has reached out to the Ministry of Law earlier this week to ask about the progress of this subsidiary legislation, specifically when it might be published and made accessible to the public. We have yet to receive a response.