Foreign Interference Law – Where Do We Go from Here?

1. The Foreign Interference (Countermeasures) Bill (hereinafter referred to as the “FICA”) was passed through Parliament on 4 October 2021, just before the stroke of midnight. It now awaits the Presidential assent. The parliamentary debates on 4 October 2021 were robust, tense and impassioned, and rightfully so given the broad language therein utilized by the draftsmen.
   
2. The thrust, spirit and intent of the FICA is perhaps stated most succinctly in the long title of the FICA as an “[a]ct to counteract foreign interference in the public interest…”. The FICA seeks to strike the best possible balance between, on the one hand, the risk of foreign interference on local politics and public interest, and on the other hand, the risk of a rogue and ‘trigger happy’ government abusing the provisions.
   
3. The FICA targets two primary mischiefs, namely the following in the words of the Law and Home Affairs Minister Mr. K Shanmugam:
   • The “hostile information campaigns (HICs) conducted by foreign parties…”; and
   • The “foreign interference through local proxies”. In this respect, the FICA also ports over, with the necessary updates, the Political Donations Act (Chapter 236, 2001 Rev Ed).
     
4. One key framework introduced by the FICA is found at Part 2 of the same. There, new offences targeting the mischief of electronic and clandestine foreign interference have been created. Part 3 then introduces a procedure by way of which the Minister can approve mandatory directions sought to be issued against, inter alia, online and media content providers or any social media service.
   
5. However, it can be clearly seen that draftsmen have utilized broad language in defining key terms such as “foreign interference”, “public interest” and “on behalf of a foreign principal”. Pertinently, the critical word “collaboration” has been left undefined. This may potentially criminalize legitimate activity, such as that of campaigning by Singapore citizens who are simply speaking up in line with their constitution freedom of speech^[1] and to let their voices be heard with the aim of improving public policy. Today, as a result of technological advances and its impact on the concepts and methodology of subversion and spying, there is very often a thin, fine line between the foregoing said legitimate activity, and “foreign interference”. Singapore’s government is no stranger to taking on alleged and purported “foreign interference”, having taken on reputable and established names such as The Wall Street Journal in the past. The recent Huang Jing saga also perhaps rings fresh in the minds of many.
   
6. However, have we struck the best possible balance with the framework as enacted in FICA in this respect? Is there a built-in check on a potential rogue government’s abuse of power? Hardly, one might lament. The Court’s jurisdiction to rule on, inter alia, the legality or otherwise of any provisions of the eventual Act and the government’s purported actions pursuant therewith by way of judicial review proceedings have been surprisingly restricted. This is significant. While it is accepted that there cannot be a strict and rigidly demarcated separation of powers as the pure doctrine demands on paper, have we gone too far in curtailing the constitutional right of judicial review? Have we also perhaps gone too far in legislating for (potential) Part 3 directions in being issued and for appeals to be brought to a tribunal, yet disallowing appeals to Court from the tribunal’s decisions? It is little wonder that the critics have had a field day with FICA.
   
7. Ultimately, the FICA marks a new dawn on modern-day subversion and spy tactics in Singapore. The Second Reading in Parliament makes for an extremely informative read, especially as Mr. Shanmugam draws on the exploits of, inter alia, Russia and China on the international stage to justify the FICA. Time will tell if Singapore has struck the best possible balance, or if tweaks are needed to the FICA framework.

_{^[1] Article 14 of the Constitution of the Republic of Singapore}

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