Anti-foreign interference Bill - 3 areas of concern: Opinion
The Fica Bill as currently drafted is problematic because of its extremely broad language, restrictions on judicial review and questionable procedural rules.
The Foreign Interference (Countermeasures) Bill (Fica) was recently introduced in Parliament. It seeks to reduce the risk of acts of foreign interference by strengthening the Government's ability to prevent, detect and disrupt such interference.
The Bill creates new offences which target clandestine online activity. It also imposes substantial financial reporting obligations on politically significant persons, as well as obligations on parties providing social media services and online content.
Foreign interference is a matter of growing concern, especially for small states, in a fast-changing geopolitical context where significant players are seeking to strengthen their reach and carve out spheres of influence. Any responsible government needs to be adequately equipped to protect the public interest by counteracting such acts of foreign interference.
The challenge is to craft balanced legislation that effectively addresses undesirable foreign influence while not curtailing legitimate citizen-led activity. Here are three aspects of the Bill which give cause for grave concern.
First, the extremely broad language of the Bill risks capturing perfectly legitimate collaborative activity undertaken by Singapore citizens and local non-governmental organisations (NGOs) to influence and improve our laws and public policies.
To appreciate the broad sweep of the Bill, it is important to note that apart from creating new offences targeting clandestine foreign interference via hostile information campaigns, Part 3 of the Bill empowers the minister to approve a wide range of mandatory directions against individuals, organisations and social media service and online content providers. Failure to comply is a serious offence. Individuals can be fined and/or jailed. Corporate entities may be subject to fines of up to $1 million. Importantly, the minister is empowered to authorise these wide-ranging directions even if foreign interference is merely suspected and no offence has been committed by any party.
The Bill defines "foreign interference" and "public interest" so broadly that legitimate online activity undertaken by Singaporeans to influence our laws and public policies potentially risks being the subject of a Part 3 direction by the minister, even in the absence of any manipulation or influence by a foreign government or its agents.
As currently drafted, "foreign interference" is not limited to influence by a foreign government, a foreign political organisation or a foreign government agent. A "foreign principal" is defined to include any foreigner, even a private foreign citizen who has no links whatsoever with a foreign government or its agents.
The Bill also provides that conduct or activity "on behalf of" the foreign principal is not limited to acts undertaken on the order of or under the control, direction or supervision of the foreign principal, or activity undertaken with foreign funding. Instead, the Bill's broad language provides that conduct undertaken "on behalf of a foreign principal" includes any activity "in collaboration with the foreign principal". "Collaboration" is undefined. In plain language, it covers a very wide range of participation.
"Public interest", too, is defined very broadly to include not just matters related to the security of Singapore or to public health, public order or public finance but also any activity "directed towards a political end in Singapore". Under the Bill, the words "directed towards a political end in Singapore" include activity which seeks to influence views on matters "that have become the subject of a political debate in Singapore". That basically covers issues that Singaporeans are most concerned about.
Taken together, even open, non-clandestine "collaboration" between a Singaporean and any ordinary, private foreign citizen to improve any aspect of our laws and public policies constitutes "foreign interference", notwithstanding the absence of any foreign state manipulation or foreign funding.
One can easily imagine a wide range of public policy issues that are currently, or which may in future become, the subject of political debate in Singapore where there is legitimate reason for concerned Singaporeans to "collaborate" with international experts, researchers and NGOs. These could include:
• Climate change, including whether any of our laws and policies need to be reviewed and updated. This is an issue with international dimensions.
• Trade policy and movement of persons which, again, is not a localised issue.
• Social issues on which there is in-principle international consensus, but which still attract healthy debate, such as further improving women's rights and entrenching gender equality.
• Treatment of foreign workers within Singapore which, again, at least raises some legitimate concerns by NGOs and citizens of the sending state.
• Treatment of businesses and tax policy.
As currently drafted, the Bill empowers the minister to authorise intrusive Part 3 orders in relation to online activity that seeks to influence these and other areas of public policy so long as it is the result of any form of "collaboration" between Singaporeans and any non-Singaporean.
It is difficult to see any legitimate basis for such a broad sweep, particularly where the relevant "collaboration" on these policy issues involves no foreign government actor or agent and is undertaken under the control or direction of Singapore citizens. In such cases, there is no covert activity or clandestine operation to speak of. Nor is the initiative being funded by or is the product of manipulation by a foreign government or its agents.
Legitimate activity undertaken by Singaporeans cannot translate into illegitimate "foreign interference" simply because of a mere collaboration with private foreign citizens. Such citizen-led activities are par for the course in any democracy.
If it is not the Government's intention to prohibit such types of private collaboration, the legislation should be amended to make this clear. COURTS' ROLE
Second, the Bill seeks to very substantially restrict the role of the Singapore courts to review the legality of the Government's exercise of powers under the legislation. This is a troubling intrusion into the judicial powers granted to our Supreme Court under the Constitution.
In a constitutional system of governance such as Singapore's, our courts are ordinarily vested with the power to decide all disputes. Judicial review is that area of law where our judges review the legality of the Government's actions. It is a very important role that the Constitution entrusts to the judiciary. In 2019, a five-judge bench of our Court of Appeal in Nagaenthran v PP unanimously reiterated that the court's judicial review powers cannot be excluded by any ordinary piece of legislation.
This is because that judicial power flows from the Singapore Constitution which is the supreme law of the land.
The court emphasised that "any society that prides itself in being governed by the rule of law, as our society does, must hold steadfastly to the principle that (a)ll power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power". The notion of unfettered power is contrary to the rule of law.
Given these observations, it is odd that the Bill seeks to restrict the jurisdiction of our courts from reviewing the legality of Fica decisions and orders.
• The Bill seeks to establish a "reviewing tribunal" to whom persons subject to Part 3 Directions (among others) may appeal.
• Importantly, while the chair of every reviewing tribunal must be a Supreme Court judge, the reviewing tribunal is not part of the Supreme Court of Singapore established under the Singapore Constitution. It is not part of the Singapore judicial system nor subject to the de rigueur appeal process within our court system.
• Surprisingly, despite the full court's observations in the Nagaenthran case, clause 104 of the Bill (entitled "Limited judicial review") provides that the minister's and the reviewing tribunal's decision is "final" and "is not to be challenged, appealed against, reviewed, quashed or called in question in any court" except regarding any question of procedural non-compliance.
The Bill, thus, seeks to limit the court's powers of judicial review to procedural compliance when the grounds for judicial review at law are broader. This attempted restriction impermissibly infringes upon the court's powers. Even if technically permitted, why would it be desirable to prohibit our courts from independently reviewing the legality of the minister's and reviewing tribunal's decisions?
Our courts have in numerous judgments emphasised that it is illegitimate for the judiciary to overstep its constitutional role and usurp Parliament's power by acting as a "mini-legislature". Conversely, it is equally important for Parliament not to attempt to curtail judicial powers which have been enshrined under the Constitution.
Third, the Bill further seeks to empower the minister to make extensive new rules of practice and procedure for hearings before the reviewing tribunal which risk undermining the ability of persons to fairly challenge the Government's decisions under Fica.
It is unclear what the eventual rules of procedure will be and how they will impact the ability of persons to fairly challenge ministerial and other decisions under Fica.
The sub-sections of the Bill, however, give a clue. It is not inconceivable that the new rules may:
• Alter the burden of proof and rules on admissibility of evidence from those which apply in court proceedings. If so, these changes could have far-reaching implications for persons affected by Fica orders.
• Require the reviewing tribunal to hear appeals without the affected person "having been given full particulars of the reasons for any conduct" which is the subject of the appeal. This begs an important question: How is an affected person to fairly challenge Fica orders if he or she is not given full particulars of the reasons for any conduct?
• Enable or require the reviewing tribunal "to give a summary of any evidence taken in its absence" to the affected person. One of the principal features of the court system is the right of a person to have evidence taken in his presence and to challenge any adverse evidence. The Bill's new rules seem to contemplate a fundamental inroad into this important principle.
• Appoint a person to represent the interest of the party which files the appeal to the reviewing tribunal. This suggests that affected persons may not have the right to appoint their own lawyers in reviewing tribunal proceedings. This, too, is of concern.
The cumulative effect of the eventual rules can be very far-reaching indeed. They could well operate to unfairly prejudice the ability of affected persons to challenge Fica orders.
Given these potential implications, prudence dictates that Parliament should direct that the rules should not take effect automatically. Instead, the rules should be separately approved by Parliament so that members may scrutinise them and assess their fairness.
One final point. Given the importance of this Bill and the legitimate concerns which arise concerning its provisions, a hurried passage should be avoided. The Bill and its Explanatory Statement run into 249 pages, covering 127 separate clauses. It is a very substantial piece of legislation.
If the Bill is debated at Parliament's next sitting on Oct 4 to 5, that leaves just under three weeks from introduction to debate. If so, it is difficult to understand why the passage of this Bill is being rushed or why the debate on the Bill cannot be pushed back by one to two months to allow for proper scrutiny and consultation with a wider range of stakeholders.
Just earlier this year, the Government established a two-month-long public consultation process for the Copyright Bill.
A rushed passage of the Fica Bill would be undesirable.
• Harpreet Singh Nehal is a Senior Counsel and managing partner of Audent Chambers LLC.
Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.