(Delivered in Parliament on 8 May 2019)
Leave It to the Courts
Mr Speaker Sir, the aim to protect Singapore from deliberate online falsehoods that could undermine the democratic foundations of our society is acceptable and good. But this POFMA bill gives the government of the day massive targeted powers that go far beyond this remit and is therefore not acceptable and not good for Singapore in the long run.
It has been said POFMA balances the right and utility of responsible free speech with the necessity for speedy action to prevent the subversion of society in the informational age. I disagree, in my view, this bill is severely imbalanced. Speed is a key premise for POFMA. Speed is distance over time, and the government has chosen to maximize speed, giving itself great powers to cross vast distances in a shortest amount of time. But this speed can have severe detrimental effects for society and also the state itself if it is not properly checked.
I shall deal with three issues: one, the problem with the definition of falsehoods in the hands of the executive; two, the problem with the government defending public confidence in the government itself by force; and three, the government choosing between a legacy and a Trojan Horse.
Ministers Deciding on Facts and Falsehoods
The first issue concerns the definition of falsehoods in this bill. The definition in Section 2 is double-barreled. First, a falsehood has to be a statement of fact. Subsection 2(a) states that “a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact”. This definition rests on the figure of the reasonable person. I just want to note a paradox here. As elaborated by the Minister for Law in his opening speech, the problem we face today is that online falsehoods have undermined public discourse and eroded precisely this figure of the reasonable person.
Whether a statement is a fact or is an opinion goes to the heart of this piece of legislation, as it provides the scope for which statements would be covered by this law. If the reasonable person does not quite exist anymore, how do we determine if a statement is indeed a statement of fact and not an opinion? The fact that the Minister for Law had to go to great lengths to clarify with detailed examples on what are statements of fact and what are statements of opinion show that this distinction between fact and opinion has significantly blurred in public discourse.
It is well and fine if a statement of fact is an established matter in jurisprudence, but we are talking about placing the powers in the executive here. If the reasonable person in the juridical definition of the statement of fact has indeed faded away, how would the executive, specifically the ministers, being not the judiciary steeped in matters of jurisprudence, be able to distinguish between a statement of fact and a statement of opinion in a speedy manner?
This is an important issue, since a wrong application of a correction directive on a statement of opinion can be a miscarriage of justice and even affect electoral results. Ministers have to be extremely cautious even at the first step of the process, to determine whether a statement is a statement of fact or a statement of opinion. The only resolution I can see is that the ministers will have to consult the Minister for Law on this determination, and this will take time, perhaps as much time as a court would have taken to decide on a correction order.
Let me come now to the second part of the definition of falsehoods, which has itself four sub-parts to it. Subsection 2(b) states that, “a statement is false if it is false [pause] or misleading, [pause] whether wholly or in part, [pause] and whether on its own or in the context in which it appears”. The definition of falsehoods should be simply based on fact – a fact is something that is known to be true because of existing information or proven to be so by current evidence. Conversely, a statement of fact is false when it can be shown to be not true by information or evidence, whether existing or new. To add the term “misleading” here is dangerous, as it opens up the judgment of truth to multiple interpretations of connotations and implications.
Furthermore, how can we justifiably and reasonably make people responsible for part of their statements and for statements taken out of context? By this definition, a statement can become misleading by virtue of being interpreted in the worst possible way, whether wholly or in part, whether on its own or in context. So, does this mean that the government can take a statement I make, quote a part of it out of context, choose the worst of all the possible interpretations of the partial statement taken out of context, and then accuse me for misleading the public on a matter of public interest?
Public Confidence is Earned not Enforced by the Government
The second issue has to do with the meaning of “public interest” in Section 4. I have little quibble with the list of areas (a), (b), (c) and (e). I have reservations about (d), concerning elections, but I will focus on (f). I object to (f), which has to do with public confidence in the performance of the government.
Sub-section (f) is worded as “to prevent a diminution of public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board”, I would like to ask which part of life in Singapore is not covered by this incredibly sweeping sub-definition of public interest? This sub-definition makes any disputed statement of fact that merely risks reducing some public confidence in the performance of any action by just a part of the government and statutory boards liable to this law. This is practically any statement of fact critical of the government.
Other than takedowns for posts that endanger our national security, foreign relations, racial and religious harmony, public safety, why is there a need for speed for ALL ministers to impose corrections on alleged falsehoods about the performance of the government? Where is the sense of proportionality? I am not saying that the government shouldn’t act to clarify and correct widespread falsehoods that could undermine public confidence in our public institutions. I am saying that I do not see the NEED FOR SPEED to force a correction, as current, supposedly SLOW practices of correcting falsehoods already work to great effect.
Let me give two examples. The first is the case at the beginning of this year when there was a public online furor over claims that the government had quietly raised the CPF payout eligibility age from 65 to 70 years old. This arose from a misunderstanding arising from the setting of the automatic payouts at age 70 instead of 65. I believe the automatic payouts should be set at the payout eligibility age, that’s my opinion, but factually it was false the government quietly raised the payout eligibility age. This was corrected by the government by press statements and parliamentary answers by the Minister of Manpower in response to questions from Members, which was then carried by the media. This falsehood spurred the government to redouble their public education efforts, producing good materials to educate the public on the policies, which effectively dispelled the falsehood.
The second is the recent case accusing the police of preferential treatment for letting off a male undergraduate for filming a woman in the shower in a NUS hall of residence because the student’s parents were well-connected to powerful people. This example was also cited by the Minister for Law in his speech moving the bill. An objective press statement by the police setting out the facts dispelled the falsehood. As a result, many were chastised by fellow online citizens for spreading baseless assumptions. Furthermore, the way the police went about dispelling the falsehood earned praise from the public, as the police respected the privacy of the offender and obtained permission from his family to reveal their background. Again supposedly slow methods worked effectively.
These two examples show us that public confidence in the performance of the government has to be earned and cannot be enforced. In these two examples, the government is engaging Singaporeans as a partner in conversation. In these two examples, the government is not arbitrating truths ex cathedra, using its authority to force corrections and threaten mistaken citizens with punishment. Instead it is calmly explaining the facts and issuing additional information so that public confidence can be restored and even improved. There is no need for speed. In fact, timeliness and proportionality are key here, not speed. In fact, the responses from the government was not slow at all, and it was not hasty too, it was timely. No need for speed.
Times have changed. The online public dwells in an information-rich environment and has its own norms and etiquette in engaging with debate and discussion. Trust in the government is no longer built on the good performance of its duties alone, but on good communication and public engagement by the government. Educated citizens want to be engaged as peers by the government. As such, the government acting as a party in contentious politics with the online public will erode public confidence in the government in the long run. Giving the ministers and by extension the civil service the powers to force corrections create an easy and speedy way out from the hard work they should be doing instead, which is earning their trust through time-consuming but ultimately fruitful engagement with the public. I don’t understand why the government would want to protect their ministers from the test of fire of public reason.
Leave a Legacy not a Trojan Horse
I now come to the third issue, which represent the Workers’ Party’s fundamental objection to the bill. This law is an important one because it will set the tone for generations to come. I believe, as do my Workers’ Party colleagues, that it is best to leave the arbitration of truths to the courts and not have the executive of the government sullied in mud-fights with the public over falsehoods, and worse, leave Singapore society wide open to abuses by a thin-skinned executive protecting its own institutional interests. We believe that the courts should be the place to arbitrate truths and correct falsehoods, because the courts are the natural place to do this, since this is exactly the function of the courts: the use of reason and objective tests to judge what is true and what is false.
The executive of the government works with truths, but it will have its blind-spots. In other words, the executive, like many other organizations in society and civic society as a whole, is an interested party in the determination of truths. Of course, as the executive of the government upholds the general interest of society, the executive has a lot more capacity to obtain information and generate knowledge. Though it does not have the monopoly on truths, the executive is first among equals in knowing and working with truths. It is the responsibility of the executive to share its depositories of knowledge and truths with the public, so that together with the informed public, the executive can correct falsehoods that could undermine our public institutions. The government should focus on co-correction with the informed public, not the unilateral correction of falsehoods by ministerial fiat. It is a star player in the football team, the captain even, but it should not be the referee.
I do not agree with the very notion that the courts are the final arbiter of truth in this law, because this means that the executive of the government is the initial arbiter of truth. The executive should not arbitrate the truth. It is not its place to do so. If it does, it undermines our collective faith in truths in the long run. Should the executive exercise the powers given in this law, it will short-circuit the process of co-correction with an informed public which I just described. In doing so, the executive forces the truth, let me say it again, forces the truth unto the public, it does not arbitrate the truth.
The argument to give the executive these draconian powers to force the truth is that the executive needs speed to act quickly when it comes to exigent matters of public interest. But there is no reason why the process of applying to the court for corrections and take-downs cannot be sped up. If the government can speed up the appeal process in this proposed regime, and for the POHA interim protection orders, then there is no NATURAL obstacle to do the same for the alternative process of making the executive apply to the courts for corrections and take-downs. The need for speed in certain areas can be met without misplacing arbitral powers in the executive.
But when it comes to public confidence in the performance of the government, there is absolutely no need for speed. Public confidence is a long-drawn affair. Less haste, more effectiveness. Heterodoxies, which may be extremely uncomfortable for the government in the short term, are often useful and beneficial to public institutions in the long term. Many times, the heterodoxies will not go away, and the more authorities tried to forcibly protect the orthodoxy, the stronger the heterodoxies grow. Sometimes, the heterodoxies turn out to be true, once the full force of information and evidence decide the matter. The only right approach is continued public engagement and public education by the authorities, the efforts of which in themselves will help to shore up public confidence in public institutions.
Take for example the anti-vaccination movement. One strand of it grew from academic studies published in scholarly journals about possible association between the diphtheria-tetanus-pertussis or DTP vaccine and Sudden Infant Death Syndrome or SIDS in the United States in the 1980s. These studies, because of its sensational value, were reported in the media, creating alarm among the public and feeding the anti-vaxxers. Over time, medical scientists debunked many of the studies reporting possible association and produced studies that quite conclusively show no association between the DTP vaccine and SIDS.
This enhanced scientific certainty made the public health system more robust and improved public confidence in public vaccination programmes. It could be said that society took one step back and then two steps forward, but if the authorities have intervened to suppress the heterodoxy in the name of protecting public confidence in the public health system in the first place, we would have been stuck with an orthodoxy, a believed truth, rather than one we have scientific certainty of. The DTP-SIDS myth refuses to die till today, but this has spurred public education efforts that have enhanced public awareness of the benefits of vaccination.
Mr Speaker Sir, this is the legacy that each predecessor government should leave to its successor: a culture of public engagement that enhances our collective faith in truths and co-corrects falsehoods with an informed public. This POFMA bill undermines such a legacy and leaves us with a Trojan Horse instead. It is ironic that this government is extolling the current public confidence in it to dismiss concerns of abuse. It is saying in a circular way, thank you for your trust in us, trust us then to use these draconian powers to protect that trust.
What if future governments who do not deserve the trust of the public or even if this government tomorrow, because they are not performing their duties well, seek to prop up the trust and deny public scrutiny using POFMA? There will be nothing to stop such irresponsible governments, for which corrections can pour out of POFMA as quickly as Greek troops pouring out of the Trojan Horse to seize the city of Troy. What matters to us is not the assurances of the Minister for Law of restraint and reason on his part, but the substance of the law as framed in this bill, whether it is a charming but fatal Trojan Horse or a true legacy of protection that deepens our trust and unity as a diverse society that goes online to discuss issues.
In the same shadow of the Trojan Horse, the subsidiary argument that Ministers will face the public at the ballot box for wrong and heavy-handed actions is a terrible argument and poor justification for granting such far-reaching powers to the executive. It is irresponsible political brinkmanship. It is saying to the citizens, “if you are not happy with my decision, I dare you to vote me out”. If Singapore reaches this stage where Ministers have to be tested at the ballot box in this manner, then we are already seeing the erosion of trust in government and in public institutions. It will be too late to turn back by then.
Truth and Justice
Mr Speaker Sir, truth and justice lie at the heart of modern political systems that are progressive and protective of the rights and livelihoods of the people. Truth and justice are not just ideals, but they are pragmatic values that pervade the performance of our public institutions. Truth and justice are closely related, they imply each other. The executive acts on truths to accomplish justice. The judiciary enacts justice by arbitrating disputed truths. It is clear that the protection of society and the government from online falsehoods should lie with the courts. This is the position of the Workers’ Party. We oppose the bill.