Response by the Ministry of Law to Voice of America

5 May 2020 Posted in Replies

1. We refer to the recent Voice of America ("VOA") article, Singapore's Fake News and Contempt Laws a Threat to Media, Journalists Say, on the Protection from Online Falsehoods and Manipulation Act ("POFMA") and the Administration of Justice (Protection) Act ("AJPA").

2. The article contains serious errors and misrepresentations over matters which are widely available in the public domain. Links to some of these public materials are set out in Annex A. We encourage all interested persons to study them carefully and form their own views.

3. POFMA is in fact narrower than existing legislation on dealing with falsehoods.¹ The Government has long had broad powers to order takedowns and limit publication of material. POFMA provides a set of narrower powers than existing legislation already does.

4. The article claims that the laws are being used to "silence and harass independent news outlets", that these laws are open to abuse by the Government and that "a government minister can be an arbiter of truth".

5. On the contrary, POFMA expressly provides for the High Court to decide the truth or falsity of a statement of fact. It is the Court, not the Government, that finally decides whether an assertion was false, and hence whether the POFMA direction was properly issued.² POFMA also prescribes an expedited process for the Court to do so, at little or no cost to the publisher.³ This is in fact how all POFMA appeals have been handled.

6. Furthermore, the Government has undertaken to use corrections as the primary tool, rather than takedowns.⁴ Where corrections are posted alongside, the original articles remain completely accessible. They are neither censored nor amended, enabling readers to see both the primary piece and the correction, and to make up their own minds.⁵ The corrections therefore add to, and take nothing away from, public discourse, contrary to the article.

7. One person quoted in the article, Mr Terry Xu, was involved in such a Court proceeding. Mr Xu invoked the Court process to challenge the Government's direction, and ask the Court to overrule the Government's direction. There is thus no question that the Court ultimately decides the issue. Throughout the Court proceedings and even now, Mr Xu's publication remains entirely accessible by the public in full.

8. The article also quoted Dr PJ Thum saying that "the only real limitation on the law is the benevolence or conscience of government Ministers". But Dr Thum himself has, on his website, described the avenues of appeal to Court, against the Government’s direction.⁶

9. The article goes on to accuse the Select Committee of Parliament that recommended the POFMA legislation of being comprised only of those empowered to enforce the law, and closed to opposing views. It quotes Dr Thum's assertion that the Committee was just a fait accompli, to "justify a decision already taken".

10. Half of the Select Committee were backbencher MPs, including a Nominated Member of Parliament (not aligned to or belonging to any political party). Dr Thum, Mr Xu and Ms Kirsten Han, who were all quoted in the article, all made written representations to the Committee, and also gave extensive oral testimony. The proceedings are on the public record.

11. The Select Committee considered all the views put before it, but it was not bound to accept all of them. Dr Thum admitted when questioned by the Committee "that he had not read or had chosen not to give any weight to accounts... that he acknowledged contradicted his thesis."⁷ The Committee found unanimously that Dr Thum had "misrepresented his academic credentials in his evidence, to suggest that he held more distinguished roles... than the unpaid positions he held", and had "clearly lied" about these "repeated misrepresentations".⁸ This wholly undermined his testimony.

12. The article's conclusions on AJPA are similarly flawed.

13. Laws on contempt have also always existed, at common law. This is neither new nor peculiar to Singapore. They are found in most other common law jurisdictions, including the United States, United Kingdom and Australia. They are fundamental to maintaining trust in the criminal and civil justice system. Singapore's own civil and criminal justice systems were recently ranked 6^th globally by a leading Rule of Law index,⁹ higher than any other common law jurisdiction.

14. The AJPA merely codifies the existing laws on contempt, with one exception.¹⁰ As Minister Shanmugam had explained during the Second Reading in Parliament:¹¹
    
    "Under common law in Singapore, the test is "real risk". In the Bill, the test is "risk". The different heads of contempt, clauses 3 and 4: what amounts to contempt, the Bill sets out the law as it stands now. This is the one change to the current law in the clauses, on the substantive elements of contempt.

15. Thus, save for this specific change, the existing substantive law of contempt was maintained. More certainty was provided, for instance, by setting out the various defences to contempt of court, and imposing limits on the maximum punishment.¹²

16. VOA’s journalistic code espouses "accuracy, balance, comprehensiveness, and objectivity".¹³ Yet this article contains numerous basic errors, which could have been easily avoided by consulting publicly available sources. One glaring error, since removed, was the entirely false contention¹⁴ that the Prime Minister has called the next general elections on 1 June 2020. This could only have been to add a political sting to the criticisms in the article.

17. VOA also professes that "it is essential that accuracy takes priority over speed in our reporting".¹⁵ Yet we were given hardly any time at all to respond to such serious and broad-ranging allegations about laws in Singapore. We were first contacted on 27 April 2020 at 10.30pm Singapore time, and the article was published by 30 April 2020 at 4.42am Singapore time, just two working days later.

18. People can reasonably disagree about laws such as POFMA and AJPA. But to be productive, the discussion must be well founded on accurate facts. We hope that VOA will acknowledge the facts set out in this letter, and correct its story on POFMA and AJPA.

Annex A - Publicly Available Materials (283KB)

MINISTRY OF LAW
5 MAY 2020

^{1. Second Reading Speech by Minister for Law, Mr K Shanmugam on the Protection from Online Falsehoods and Manipulation Bill ("POFMA Second Reading Speech") at [18]-[39], available here. ↩}

^{2. POFMA Second Reading Speech at [250]; Ministry of Law Press Release, "New Bill to Protect Society from Online Falsehoods and Malicious Actors" at [12], available here. ↩}

^{3. POFMA Second Reading Speech at [275]-[278]. ↩}

^{4. POFMA Second Reading Speech at [250]; see also POFMA Office’s guidance, available here. ↩}

^{5. "Transcript of Speech by PM Lee Hsien Loong at the CNA 20th Anniversary Gala Dinner, on 29 Mar 2019” (Prime Minister's Office), available here. ↩}

^{6. Thum Ping Tjin and Kirsten Han, "Singapore's "Fake News" Bill: The FAQ" (New Naratif, 9 April 2019), available here. ↩}

^{7. Report of the Select Committee on Deliberate Online Falsehoods – Causes, Consequences and Countermeasures ("Select Committee Report") at [238], available here. ↩}

^{8. Select Committee Report at [238]. ↩}

^{9. "Rule of Law Index 2020" (World Justice Project, 2020) at pages [28]-[29], available here. ↩}

^{10. Ministry of Law Press Release, "New Bill on Protection of the Administration of Justice" ("AJPA Press Release") at [5], available here. ↩}

^{11. Second Reading Speech by Minister for Law, Mr K Shanmugam on the Administration of Justice (Protection) Bill ("AJPA Second Reading Speech") at [156], available here. ↩}

^{12. AJPA Second Reading Speech at [267] and [290]; AJPA Press Release at [3]-[5]. ↩}

^{13. "VOA Journalistic Code", available here. ↩}

^{14. See Prime Minister Lee Hsien Loong's most recent public remarks reported by Channel NewsAsia, "If we need to do more, we will: PM Lee says economic challenge from COVID-19 very grave, but Government doing all it can" (27 March 2020), available here. ↩}

^{15. VOA Journalistic Code. ↩}

Last updated on 5 May 2020