POFMA II: An Interview with Prabu Devaraj

Written by: Sit Jie Ren (19-I4)

Interviewer: Sit Jie Ren (19-I4)

Designed by: Jo Yeoul (19-A2) and Athena Lim (19-A4)

Prabu Devaraj is a member of the Community for Advocacy and Political Education (CAPE), a student organisation based in Yale-NUS College, which was founded in 2017 by students from Yale-NUS College and the Law Faculty of the National University of Singapore (NUS).

Q: We have recently heard of the bill tabled, The POFMB, and given that we live in such a highly globalised world where anyone can be a content creator and do you think that this bill is justified and necessary?

A: I definitely feel that the bill is quite necessary, because I think recent events must have informed all of us that is a scourge online when it comes to fake news, and I think disinformation is one of mankind’s biggest enemies. Hence, it’s very important for us to battle disinformation on the realm and on the online realm.

Q; However, there are many contentions over certain clauses in the wording. Perhaps could you explain exactly what could be classified as a falsehood under this bill?

A: With regard to my understanding of the bill, it’s effectively a deliberate false statement of fact. This means that if you had communicated a fact online, knowing or having relevant knowledge that it is false, this would come under the category of falsehood. I understand that this definition is slightly tautological in some senses. But, all laws have two functions, two threads to it. One is the AR, the other is the MR – actus reus * and mens rea**. Actus reus is the action – which is communicating online. The mens rea is the intention. In this particular law, the action is to have knowledge of the false fact, and the point is that I think it’s quite difficult to prove that someone had knowledge that they have a false fact. So I think there are a lot of concerns with regard to this bill, understandably, with regards to killing free speech, making the internet a more policed environment and all that. But I do think that these concerns are slightly blown out of proportion. This is because the bill directly attacks people who deliberately wish to push forward disinformation. The language is predominantly phrased in a way that catches these people. So if you went on to say that: “EJC is on fire”, online, and it goes viral, and EJC is not in fact on fire, that is a false statement of fact and you can be subjected to a “Correction Direction”, which is a part 3 order according to the bill. So a “Correction Direction” effectively is a minister saying that this information is untrue, and you are then issued with an order to write that this information is untrue and it shall be corrected, or you have to post the correct information beside the false information. That is a “Correction Direction Order”. There are many other Part 3 correction orders such as the “Stop Communication Order” and takedown orders etc., but those are not of particular concern. Because you must understand when it comes to the bill, the Ministry always has to produce a large repository of weapons. Whether they will use it is a different story. And we have a pattern in Singapore where laws are passed but not necessarily enforced or used. Because when you pass a law, you can form new boundaries for consciousness and action and that’s what laws are meant to do sometimes, not particularly be enforced. So the concerns although understandable, are blown out of proportion.

 

Q: You mentioned a “Correction Direction”. How does the mechanism behind our correction directive differ from that of other countries?

A: So the “Correction Direction” here deals with any minister being able to determine whether certain things are false or true. But here is where a lot of people are sticklers for the matter because you are saying that the minister then becomes the arbiter of truth. But this is manifestly untrue because according to the bill, you actually have a right of action to the court. So not only are you allowed to appeal to the minister directly, if the minister rejects your appeal, you then have the right of access to the courts, and then the court gets to determine if a certain matter is true or false. And you must understand that when it goes to court, it is actually the prosecution’s job, which is, in this case, the government, to prove that something is false. It is not your job to prove something is true. The burden of proof is on them, not you. So it’s actually quite a comfortable measure to make sure that the truth is actually properly decided on in institutions that are made to decide these things. How we differ from other countries is that in other countries there are direct orders that can be made through the court system. So it cuts out the ministerial function. So in Singapore, you’ve got the minister, and only when you wish to challenge the minister do you go to court. But then in other countries, you normally go straight to court. So the government has to file the injunction, the injunction is passed, and then you can fight the injunction in court. So it’s a purely judicial procedure in many other countries. There are benefits to both ways, but one can argue that the Singaporean way is a bit more efficient because by allowing the minister to decide something is true or false, you actually cut down the amount of time that it takes to stop false information. Whereas if you go to the court, court processes can take some time which might then allow for the disinformation to be propagated in great numbers, making the stop order or the correction order completely pointless.

Q: There have been many concerns that the government could misuse this to suppress voices of dissent in a political sense. The UN Special Rapporteur For Freedom Of Opinion And Expression, David Kaye, has even issued a statement on this issue. Do you think these concerns are valid?

A: I think the concerns are valid of course. But whether these nuances will eventuate is another matter. Because honestly, I think for them to abuse it, the propensity is there. The capacity for them to use it, there. But are they going to abuse it? That’s another question. Because honestly, at this point, people are making a lot of noise for this thing. My stance is: Just wait. If they do it, then I tell you, society won’t stay quiet. I don’t think the government, or the PAP particularly is stupid. I think for them to wield such a blunt tool to explicitly go against political enemies, is only a very bad image for them. The fear is real, but I don’t think they will do it.

 

Q: Several NMPs have issued a list of proposed amendments to this bill, due to some “broadly defined clauses”. Do you think what they proposed is sufficient or even necessary to rectify these issues?

A: I actually personally have not looked at the proper notice for the amendment because it was released 2 days ago, but I know the general content direction that they were going for. It really depends, because if certain terms are defined more narrowly, this might constrict the ability and reduce the overall efficacy of the bill. Because sometimes you need broad-based discretion to do something immediately so that you are able to stop the harm. Because you must first understand what’s the point of the bill? What’s the point of most bills? Its to prevent harm. And if your ability to prevent harm is constrained, then the point of the bill becomes very needless. So we want to have the opportunity to practice the discretion, strongly, quickly, but at the same time have proper mechanisms that check the abuse, if any, of the power. So the amendments although welcomed, I don’t think will be adopted.

Q: So apart from the concerns which have been discussed, do you or CAPE have any other concerns?

A: I think CAPE is generally very discursive, and we’ve had many many people falling on both sides of the bill. We have people in the camp who are very very against the bill, and then we have people like me who are slightly a bit more centre and in support of the bill. We have worked with the Ministry of Law, and we have actually introduced and suggested some illustrations to help clarify the bill. We will be working with the Ministry to help demystify the bill in some ways because I think, as we have discussed, the Bill has some massive PR problems, and people are misunderstanding, especially academics, which is slightly concerning. And I think the primary issue that remains an extra grind for me is the line between opinion and fact. I think that is so very difficult, but I don’t think that’s going to be figured out until we have a judge who says this is a fact or opinion, there is no other way we can decide it. Because it’s a very philosophical question and I don’t think anyone in parliament or lawmakers can do that.

Q: Do you have anything to add?


A: I think we just have to be careful in general when we speak about this bill or any bills in the future. I think it’s very hazy to say: “Oh this bill is terrible, I don’t agree with it or this!” But I think we should just be very careful about being informed. So if you want to talk about it, know what you’re talking about. Don’t just run the talk, it’s better to know more than to know less.

Editor’s Note

One should always raise their concerns with the government if they are concerned about issues. This can include emailing the Ministers or REACH, speaking with your Member of Parliament or petitioning Parliament. It is through active political involvement that one can improve civic discourse and society’s political literacy.

* actus rea — action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused.

** mens rea — A criminal intent

NOTE: The original wording of the interview has been amended for brevity and clarity.

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With great power comes great responsibility.

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