Foreign Interference (Countermeasures) Bill – Wrap-Up Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law
Mr Speaker, I thank Members for their questions
Workers’ Party’s Arguments
1. I will first address some of the points made by members of the Workers’ Party (WP).
2. Mr Singh spoke about the need for engagement and responding to feedback. But it appears to me that the Workers’ Party has really not substantively engaged with anything that I have said.
3. We studied their proposals. I explained, in detail, in my opening speech where we agreed, and also where we disagreed and why. I replied on many of the points and why some of the proposed amendments will not work.
4. Mr Singh cites the jurist, Albert Dicey to remind us of the doctrine of separation of powers, and that the Rule of Law requires a system of checks and balances on the exercise of Executive power.
5. He also referred to the concepts that were recently affirmed by the Court of Appeal in Nagaenthran a/l Dharmalingam.
6. Sir, I can tell him, and Members know, these principles are fundamental to us. These are the principles that underpin much of our success.
7. I said in my speech, the starting point is that Rule of Law is fundamental to our existence, and our well-being as a country. And that has shown in our consistently high rankings on law and order indices and our good international standing.
8. It is also fundamental to ensure that we have good investments, low unemployment and a healthy economy.
9. But as I also have explained, we have never taken an absolutist approach. If you take a dogmatic, absolutist approach, it will not work for us and it is not working for many other countries.
10. Rhetoric alone doesn’t solve problems. You can come to this House and have soaring rhetoric. Rhetoric hasn’t solved the Guantanamo Bay (Gitmo) problem of the United States. President Obama said the choice between liberty and security is a false choice. Did he close down Gitmo?
11. Why is it that we continue to be colonized in our minds that there is only one way of doing things properly?
12. I said, what is the answer to the problems we have? Practical answer, not just rhetoric.
13. I said, we need to see how checks need to be made suitable for the context and the risks we faced. I haven’t heard any answer.
14. I said, how are you going to deal with the risks of leaks in Open Court hearings? Or in camera? No answer. I would say, not a squeak.
15. What are the objections to the Tribunal chaired by a High Court judge? No real answer.
16. What we had was not a debate because we’re not dealing with these points.
17. Parliament is not just a forum for reading out speeches with an intent of putting it out in social media eventually. We need to engage on the issues.
18. What are the powers? What are the risks? How are the risks being dealt with in the context of the overall legal landscape?
19. Listening to Mr Singh and Ms He, does that mean that they also suggest we do away with the Internal Security Act (ISA), the Criminal Law (Temporary Provisions) Act (CLTPA), the Land Acquisition Act and various other pieces of legislation?
20. Or they accept that these are needed and if so, why do they say we should not deal with the issues relating to or covered by FICA, some part of it, through a Tribunal given the national security considerations? The answer may be yes, the answer may be no, but we need to engage – what are the reasons?
21. Is it the Workers’ Party’s position that all these tribunals, established under all these laws – that Parliament has approved – should be abolished because it offends the principles of separation of powers and the rule of law?
22. We accept separation of powers. If we did not, and if we did not have rule of law in Singapore, I wouldn’t be here, Mr Singh wouldn’t be here, this Chambers would not look like this, and Singapore would not be like this. In fact, none of you will be here.
23. The reason we are all here because this a country run according to the principles of rule of law. We don’t mind listening to lectures on rule of law. But we subscribe to them too. But we then deal with real problems.
24. If the Workers’ Party’s position is taken to its extreme, as I said, we will have to do away with the CLTPA, the ISA, the Maintenance of Religious Harmony Act, and the Land Acquisition Act. All the laws that have worked well for us.
25. We will have to subject all our laws to judicial review. Will that work for us? In matters of national security, immigration, religious harmony? What is the position?
26. So, it is not a reflexive answer each time there is a problem to say that there is only one solution. The point is, as I said, what is the problem, identify it, what is the best solution to this particular problem, how do you make sure that the Government is given sufficient powers, and how do you make sure there are checks and balances? So the risks, the checks and balances, in the end. what is workable?
27. Why are countries in Western Europe, the United States being opened up by foreign adversaries? All the evidence that you have seen, why is it that they are so open to foreign attacks? Is it because they do not have the technology?
28. There is such a thing called political will and political courage, and that will have to be a recognition that judicial process will not be appropriate. So Parliament is not just a place where you come and because you are seeing that some people are saying certain things or you resort to rhetoric without offering real suggestions. It requires some courage to say this is a problem and we deal with it. This is the way we will deal with it and offer solutions, alternate solutions.
29. And in so far as I have seen, the solutions, I have explained why the High Court process, open court process, does not work. And I have heard nothing in response.
30. The judicial process will not be appropriate in matters where we rely heavily on sensitive intelligence, collaboration with foreign counterparts, many things cannot be publicly disclosed.
31. The Courts themselves have recognised their limitations in such matters. Chng Suan Tze, the Court of Appeal recognised that where a decision, say the ISA detention was based on national security concerns, judicial review of that decision would be precluded.
32. The Court acknowledged that what national security requires, has to be left to those responsible for national security. That would be the Executive.
33. And in such situations, we have found alternative ways of providing for checks and balances, with the view that we must maintain accountability.
34. Mr Perera asked who checks the checkers? What happens if the Prime Minister or Minister for Home Affairs are suborned? Well, what happens in any other country if a Prime Minister or Minister for Home Affairs or any other Minister is suborned? Do the Courts intervene?
35. In the case of the United States, have we seen the United States Supreme Court intervene? The ultimate check are the people. But do you expect the people as a collective body to deal with day-to-day problems of foreign interference? That is why we are elected. And we are in Parliament here to debate what is the best way possible for the people.
36. We talked about consultation. We have had consultations for three years now. Mr Singh read out an answer given by Second Minister Josephine. Yes, she said we will consult, we have to bring people in, which is what we have been doing from the Select Committee Hearing. For three years, we have been doing that. Conferences, Select Committee hearings over eight days if I recall correctly, discussions in Parliament, speeches, extensive discussions. So, we agree entirely on the principles.
37. In fact, if this Government had not stuck to those principles fundamentally, and hadn’t recognised that that is the foundation of our existence – rule of law, separation of powers, doing things according to the law – we would not be here. Not just the PAP, PAP would have been long out of power, but Singapore would not be here. So yes, executive powers must be subject to checks and balances. The question is in what form, and that depends on what is appropriate for this situation.
38. When the Courts are not suitable, we have introduced other types of bodies or tribunals with statutorily imposed safeguards. The further safeguards here, like requiring a Supreme Court Judge to consider the matter. I’ve taken this House through various pieces of legislation where we have vested powers in tribunals as an alternate to the courts, as a form of check and balance.
39. And we also have a series of cases where ouster clauses have been upheld by the Courts. These relate to areas which are traditionally regarded as non-justiciable. National security and foreign relations are classic areas.
He Ting Ru on the Tribunal
40. Ms He made some points on the Tribunal, the scope of what they can review, and their independence. First, on the scope of review.
41. She seems to be under the mistaken impression that the Tribunal’s remit is narrow. That is incorrect. The Tribunal can consider any appeal brought against a Part 3 Direction. And there can be a review of the merits of the decision. It’s not confined to procedural compliance or legality. And the Tribunal – chaired by a Supreme Court Judge – will look at sensitive intelligence and information.
42. Mr Perera, I think, called it a Government-appointed authority. I mean again, rhetoric. Let’s please not insult our High Court judges. Please.
43. And this Tribunal has powers to overrule the Minister’s decision. The Tribunal has been, as I’ve said, expressly vested with the powers to override the Minister’s decisions, and it useful to point out – clause 95(2) of the Bill, insulates the members of the Reviewing Tribunal from pressure and states very clearly that the Minister cannot reduce the salary and terms of office once they are appointed by the President.
44. Mr Singh pointed out that under Clause 99(2)(b), the Tribunal will be able to consider a matter, without the appellant being given full particulars of the conduct which is the subject to the appeal, and he talked about the natural justice.
45. I accept, but I also explained why sometimes we cannot give the full evidence. I gave that in my opening speech, which Mr Singh didn’t refer to at all. There might be times when the evidence might need to be given to the Tribunal for it to be looked at and decide for itself whether it makes sense to make the orders. And it’s proportionate to the kind of orders that can be made. We’re not talking about the liberty of the individual.
46. Also, Clause 99(2)(f) allows the Tribunal to give a summary of any evidence to the appellant.
47. Mr Singh highlighted the importance of education about foreign interference and its dangers. We agree with that. I have explained that FICA is part of a comprehensive strategy to deal with foreign interference. Powers under FICA are only part of the picture, and I have said it is a calibrated piece of legislation to allow us to act surgically against threats.
48. Besides legislation, we have been and will continue to strengthen other defenses – detection and response capabilities, Singaporeans’ ability to discern legitimate and artificial online discourse – though that’s going to be very difficult, to counter the threat of foreign interference.
49. Our security agencies do their best.
50. Public education – the Government has introduced various programmes. Let me give some examples. The Digital Media and Information Literacy Framework was launched by MCI in 2019. It educates the public on using information more responsibly, and the risks and benefits of technology. The S.U.R.E. (Source, Understand, Research, Evaluate) Programme by NLB educates the public to be responsible producers and consumers of information. The Media Literacy Council (MLC) also runs programmes to promote responsible online behaviour.
51. And we have had extensive communications efforts over the past three years, which I have detailed.
52. And we will continue our efforts.
53. And Government can’t do this alone.
54. Mr Giam is right that a whole-of-society effort is required for public education. So, we will welcome everyone’s assistance in helping to engage and educate the population.
55. But these efforts have to be complemented with strong laws, which is the focus of FICA. At the same time, this is something that has been considered at length for at least three years.
56. We have engaged the media to put out examples to increase awareness of the threats happening around us. For example, in CNA, others.
57. We have also engaged various stakeholders since 2019, and their feedback has been incorporated into conceptualising the Bill. Internet companies over a period since 2019, and senior lawyers, academics, security experts, students – many of them were closed-door discussions, some were open panel discussions. So, it has been going on – for three years – which is what Minister Josephine Teo mentioned. I think, perhaps Mr Singh misunderstood that to mean that it will be post whatever she said some months ago. What she meant was – during this entire period.
58. Local academics have also written various commentaries, and these were published online. Some of them were mentioned in Annex F which was distributed earlier. Articles have been published, written by security experts from RSIS.
59. Moving on to foreigners who comment on Singapore politics and whether they are liable. Mr Perera mentioned someone. Again, I think he either missed it or was not listening to my speech. I dealt with it in my opening speech.
60. A foreign commentator putting out his name and commenting is unlikely to be caught, covered, per se. Depends on the facts, and I said this arose from something that Mr Jamus had put out in the context of his amendments. So, I addressed it. If a foreigner puts his name, writes articles – people can assess for themselves what is the weight to be attached. It probably will not come within the proportionality test. But, depending on the facts, there is some covert action, some other factors, or the intensity and the nature of the matter – it is a variety of factors to be considered.
61. For those who have pointed out that the Bill is 249 pages long, in the interest of accuracy, it is 189 pages long. The other 60 pages are Explanatory Statement which is to help Members, and Members will know more than half of it as I said it is based on the Political Donations Act (PDA).
62. Now, I will go on to the other points made by other Members that I have not touched on.
63. Members brought up questions and suggestions in five main areas.
• One, impetus for FICA.
• Second, the scope of the Bill and its application.
• Third, on the rules for the Tribunal.
• Fourth, implementation of the Bill.
• Finally, specific clarifications to clauses of the Bill.
64. I will deal with these issues.
Impetus for FICA
65. Mr Leong Mun Wai asked why FICA is necessary when we already have extensive powers and substantial resources to deal with foreign interference. I have in my speech pointed out how the Internet has opened an entirely new front for hostile action. Information forces are seen as the fourth branch of armed service. This Bill is about updating our powers to ensure they are fit for the Internet age. Given the threats, we think there is a clear and present danger that justifies us acting now.
66. Mr Jamus Lim asked how MHA came to the conclusion that Singapore was being attacked in 2018, when Facebook’s assessment was that there had been no cases of foreign influence operations targeting Singapore since 2017. We do not know how Facebook makes its assessments and whether it depends only on Facebook. We look at a wide variety of communication tools. Based on the information we had available to us, we reached a different conclusion. And I would say to Mr Lim, matters of our national security should not be outsourced to private companies and they should not be made to decide what our fate ought to be.
Scope of FICA and its Application to Various Scenarios
Coverage of FICA
67. Dr Tan Yia Swam and Dr Shahira made the point that there are extensive powers given to the Minister, and the provisions are not clearly defined.
68. Mr Xie Yao Quan asked that we explain the targets of the Bill and how the law will be applied, especially with regard to young people.
69. Several members asked if FICA would affect various types of foreign interactions with academics, businesses, NGOs, clan associations; whether there will be a chilling effect on freedom of speech.
70. The short answer really, is no. I mentioned this in my speech earlier. I’ll just summarise.
71. FICA will not stop individuals, businesses and organisations in Singapore from building overseas partnerships, soliciting overseas businesses, networking with foreigners, sourcing for donations, discussing Government policies or political matters that affect their businesses with foreign colleagues or business partners, or supporting charities.
72. As long as they are done in an open and transparent manner, and not part of an attempt to manipulate our political discourse or undermine public interest such as security.
73. It will also not cover Singaporeans expressing their own views. You know, it goes without saying, Singaporeans have every right to speak up on our domestic politics. They are free to engage in advocacy. That is not touched by FICA.
74. Mr Louis Ng and Mr Zhulkarnain asked how the Government decides what is covert or deceptive.
75. I mean, it’s an assessment that’s got to depend on many factors. No different from many of the other things that the Government does.
76. Primarily, we have to examine the behaviour of the actor involved. Indicators of covert or deceptive behaviour would include attempts to mask the tracks, misrepresent their identity, attempting to launder their narratives by having them amplified by sympathetic or unwitting locals, and these can never be exhausted. Tactics will continue to evolve and become more sophisticated, and I even attempted to set out the full list of tactics or factors that might be used or need to be considered.
77. In response to Mr Zhulkarnain and Mr Perera’s questions on the use of encrypted messages, VPNs, and so on, Use of such services is common. The fact that communications is private, on its own, would not make it hidden or covert. But the use of encrypted messages or VPN to intentionally avoid detection could be a factor in an assessment, but it really must be taken into account with all the other facts and circumstances and the legal requirements set out in the law, including proportionality.
78. Mr Zhulkarnain asked in relation to the offences in Clauses 17 and 18, why we should allow an individual “to get away” if there is no covert or deceptive behavior.
79. I had previously said that this Bill was calibrated, and this is one example of how. There is a line, a fine one, between a campaign to persuade and a campaign to manipulate.
80. When the campaigning is done openly, Singaporeans know who the content is from, they are able to make up their own minds, and you know, free to agree, disagree. It depends on their persuasion. In fact, Singaporeans are free to agree with a foreign idea, if they are so persuaded. So, in our view, that should not be criminalized.
81. But separately, Directions can be given against a foreign party, depending on whether the thresholds have been crossed, which I explained earlier.
Use of Powers
82. Mr Leong Mun Wai said someone can be arrested, no reasons given. And if the evidence is offered later, the Government is not entitled or not obliged to reveal a source. So, you can be detained, tried in absence, no judicial review for all the actions taken against you.
83. Now, this one, of all the things that have been said today, this one takes the cake. I don’t know if he has read the Bill, or if he has read it, I don’t know if he has understood it, because I think we are talking about two different Bills.
84. All these statements are absolutely untrue, so I don’t know what Mr Leong has read.
85. I will ask him to read the Bill carefully, and also ask, I mean you know some preparation before you come to Parliament, and also listen to what is going on in Parliament, including the Minister’s speech.
86. In the Bill, the powers of arrest relate to specific offences which need to be proven in Court, like any other offence, and proven beyond reasonable doubt.
87. Those will be prosecuted in open court
88. I specifically said so in my speech and there is no detention without trial in this Bill. So, to suggest that someone can be detained, tried in absence, no judicial review? All of that is utter nonsense. I don’t know where he got these ideas from. Brings to mind another debate we had a few weeks ago, but this one goes further. So, we are talking about, I think, completely different things. I can tell Mr Leong – there is no detention without trial power in this Bill, there is a power to give some directions. So, perhaps that might help him change his mind on the Bill. Now that we know that he has been talking about some other Bill.
89. These clarifications also address Mr Jamus Lim’s concerns on whether we will charge those who were duped into committing harmful activities. In such circumstances, the elements of an offence would not be made out. There would be no basis for criminal action.
90. Now we come to the Tribunal. The question really is, what kind of powers are needed and how we make the processes work.
91. Mr Pillai and Mr Louis Ng asked how we select and appoint members of the Tribunal and the rules that will be set out, including whether the Tribunal will provide written reasons for their decisions.
92. Mr Zhulkarnain asked if there are safeguards to ensure that the Tribunal does not disclose information that they have access to during the proceedings.
Selection of the Tribunal
93. The Reviewing Tribunal will be a standing Tribunal. There will be a few discrete and fixed panels set up. Members will be selected for their areas of expertise; they will have to undergo security vetting, because they will be receiving highly classified, highly, highly confidential information. They must be people with experience and standing, just like any other tribunals or independent committee, like the ISA Advisory Board. Members will be given the same protection and privileges as a Supreme Court Judge; and they must protect secret information, under the Official Secrets Act.
94. Mr Pillai raised the concern on separation of powers and suggested consulting Chief Justice for the appointment of the Chairperson rather than for the Cabinet to advise the President.
95. While it is not written in law, that is the way Supreme Court judges are appointed to panels. That we consult the Chief Justice, and he suggests the names. I have spoken to the Chief Justice to suggest some names.
96. We will work out the specific rules for the Tribunal in the coming months; as subsidiary legislation; these Rules will be public.
97. Some broad principles: The Government will have to present the evidence to convince the Tribunal. The Tribunal will have powers to call witnesses and compel the production of documents. Information will be disclosed to the appellant to the extent that it is not sensitive from a national security perspective. The Tribunal can take an inquisitorial approach when the information cannot be given to the appellant. And the Tribunal will decide whether to uphold or overturn directions.
98. Mr Zhulkarnain asked about the expeditious proceedings of the Tribunal.
99. The Tribunal can consolidate and hear similar appeals as a single case, or they can take one case as a reference point that will apply to other similar cases. They can also dismiss frivolous or vexatious appeals.
100. Rules of the Tribunal will be set out in subsidiary legislation and the key features will be drawn from reviewing bodies in other laws.
101. Mr Pillai asked why the Minister and not a reviewing tribunal is the appealing authority for PSP decisions, and why there isn’t a requirement similar to the Tribunal for Minister to review the appeal expeditiously. I think Mr Perera may have raised the same question.
102. The level of authorisation required for various powers is calibrated based on the impact of the directions and countermeasures.
103. PSP directions are targeted in their application and scope. They are issued to a specified individual or entity. The impact of PSP directives are limited to that person or entity and compared to the HIC.
104. So, the authorisations are accordingly calibrated. HIC directions are authorised by the Minister, and PSP designations and countermeasures by a civil servant within MHA.
105. The appropriate appellate authority is therefore framed by reference to the level of authorisation and the respective direction appealable to the next level of authority.
106. Mr Liang Eng Hwa asked for more details on the process to how a Competent Authority can designate someone as a PSP, and whether businesses can take rectification measures to remove their designation as PSPs.
107. The processes for designation and appeal are spelt out in Clauses 47 to 49 and Clauses 100 to 102 of the Bill. Operational details on the designation and appeals process are still being worked out and will be introduced in subsidiary legislation as Regulations.
108. Being conferred with an honorary title or degree by a foreign state or university alone is unlikely to be sufficient grounds for designation as a PSP. It is not FICA’s intent to stop these types of interactions and activities. But, you know, again, we will look to see whether there is an attempt by a foreign actor to cultivate a Singaporean to undermine our national interest.
109. Mr Pillai asked if the appointments to the advisory committee to advise the Minister on PSP appeals will be gazetted and made public, and how would the public know that the Minister is not following the advisory committee’s advice.
110. We have no issues with making the appointments public. The committee will comprise third parties to render advice to the Minister.
111. In response to Mr Louis Ng’s question on whether individuals will receive written responses to explain decisions made by the Competent Authority on designating PSPs. This would be done as the specific activities that qualified them for designation will have a direct impact on how the controls will apply to them. For instance, a designated NGO that advocates on a variety of issues will have to report donations that it specifically receives for its activities that are directed towards a political end. The explanation would be important in setting out which are its activities of concern, and those would be the donations that have to be disclosed.
112. Mr Louis Ng asked if MHA will release guidelines and illustrations that can facilitate compliance by good-faith actors.
113. Mr Liang Eng Hwa asked if there will be engagement to help businesses navigate how FICA applies to them.
114. Non-compliance is an offence. A recipient of a direction who fails to comply, can be prosecuted.
115. We agree with the intent of Mr Ng’s and Mr Liang’s questions – there is a need to help good faith actors comply. We will continue to engage stakeholders including tech companies and internet access service providers to understand their capabilities and constraints; identify suitable modes of compliance. And, we will continue to work with the stakeholders to operationalize.
116. The exact mode of compliance with disclosure and declaration obligations, and other requirements from countermeasures that they may be subjected to, will be articulated in subsidiary legislation. The vast majority of foreign dealings between Singaporean companies and their business counterparts will continue unchanged.
Transparency and Comms
117. Mr Xie Yao Quan asked where Part 3 directions will be published, and whether the reasons for actions taken under Parts 3, 4, 5 and 6 be published.
118. Mr Zhulkarnain suggested giving a report on the FICA offences or directions without the need to go into specific details or naming the foreign principals.
119. Mr Darryl David suggested informing the public when there is sufficient evidence that there is foreign interference, and said we should make the entity’s identity and activities known so that we can take a united position against such a country.
120. We have taken the approach not to name the foreign state actors whom we suspect to be involved in these attempts. There are wider national and foreign policy considerations in doing so. However, we will alert Singaporeans when such communications activity has been detected, and if FICA directions were issued to block and contain such foreign interference. All Part 3 directions, except for Technical Assistance Directions, will be published on a website accessible to the public. As Mr Xie has pointed out, national security concerns may make it impracticable to publish the reasons for actions taken. Where possible, we will inform the public on the broad grounds for issuance of directions.
121. In response to Mr Xie’s question on whether appeals made and ruled under FICA would be published, we can consider, although it would depend on the facts and circumstances of the case. The more sensitive the information used, the less likely we are able to do so.
122. Mr Xie suggested making the Registry of Foreign and Political Disclosures accessible online, free of charge, in a searchable, sortable and downloadable format, to maximise its potential for public education and awareness. We will consider his suggestions.
Clarifications to Clauses in the Bill
Clause 16/17 – Offence of Clandestine Foreign Interference
123. Mr Zhulkarnain pointed out that it is easy for a person to deny that he is aware of the purpose of undertaking an activity and asked for the threshold in Clause 16 in determining that a person has intention or belief to undertake the activity for a particular purpose.
124. He also asked if a person would be held liable if he was not aware that he is acting on behalf of a foreign principal.
125. The short answer is no. Member can refer to clause 5(1)(b). Starting point is indeed, that we want to make it an offence to conduct or abet a HIC. But we cannot remove intentionality from the offence elements. Otherwise, we will end up making criminals out of Singaporeans who unknowingly aid an HIC by sharing content without knowing better. Given the sophistication of threat actors, this is more than likely.
126. A deliberate perpetrator may of course deny, which is why we need to set the offence threshold at a reasonable level, “is or is likely to” for example, and making out that case would be the job of our law enforcement agencies.
Clause 49 – Opportunity to Be Heard Before Designation
127. Referring to Clause 49, Mr Louis Ng asked for clarification on what would not be practicable or desirable for individuals to have the opportunity to be heard.
128. If the designated individual is a Singaporean based overseas and not planning on returning to Singapore, it may not be practical to delay his or her designation until he or she is given an opportunity to be heard.
129. Also, if we have received intelligence that a target for designation may already be compromised and countermeasures are required immediately to mitigate the threat, it may not be desirable to wait for the hearing before designation.
130. Mr Speaker Sir, this Bill is intended to address a serious threat that concerns our national security and sovereignty. These are important to ensure that Singaporeans continue to make our own choices on how we should govern our country and live our lives.
131. There is also the question of the Petition as I said in my Second Reading speech. Sir, I will ask that this be treated as being dealt with during this Debate, so that we do not have to postpone that to some other time.
132. Sir, with that, I beg to move.
Watch the speech here