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2019 Sing. Comp. L. Rev. 258 (2019)
Evaluating the Constitutionality of S61, Protection from Online Falsehoods and Manipulation Act 2019

handle is hein.journals/singclr2019 and id is 258 raw text is: 








Evaluating the constitutionality of Section 61, Protection from

Online Falsehoods and Manipulation Act 2019

                                                     Suang Wijaya, Eugene Thuraisingam LLP


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 provison
    from this Act.

What is the efect of Section 6 ?

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:-

  a. 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.
  b. 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.
  c. 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. 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

1      https://en.oxforddictionaries.com/definition/
exempt

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