Delivered in Parliament on 4 October 2021
Mr Speaker, the proposed Foreign Interference (Countermeasures) Act (FICA) is a bill that could potentially better equip our nation to face up to the evolving nature of external threats in the 21st century. In particular, the Bill seeks to better protect Singapore from the risks of foreign principal interference in our domestic political affairs. This principle of noninterference is unobjectionable, and the Worker’s Party stands behind the notion that domestic political matters should determined by our own people.
But the proposed language in a number of areas spelled out by the Bill are troubling. In this speech, I will provide justifications for the amendments that the Worker’s Party has proposed in my name. These pertain to clauses that leave the scope of foreign interference troublingly vague and, relatedly, propose an insufficiently steep hurdle for the applicability of the law, one that we believe begins to border on the policing of thought. The common thread among these amendments is that we need to satisfy a reasonable standard of proof and intent, when we claim that an individual has acceded to the influence of foreign principals.
Risk and the standards of proof (Clauses 17–18, 40, 75)
Let me begin by stating a few propositions that I believe all in this House will have little difficulty agreeing with. We can all accept that there are threats out there, that have to be dealt with. We can all accept that some threats are subtle and, by design, evasive, and hence difficult to identify and prove with absolute certainty.
And we can all accept that establishing facts, even by the strict legal standards upheld in a court of law, will seldom be definitive. Memories may be hazy. Claims may be contradictory. Even eyewitnesses could easily differ in what they perceive—or believe to have observed—from an event. Film classics like Rashōmon and Virumaandi. and parables like the Blind Men and the Elephant, remind us that objectivity may be elusive, even in fair, carefully-litigated circumstances.
Consequently, society—and the legal system—have allowed for a comparatively high burden of proof for claims and accusations, which (at the very least) requires a comparatively high probability of an outcome or event being true. We also have well-understood channels of appeal, to allow for the possibility of overturning rulings that subsequently turn out to be false positives.
But this is not the case in a number of clauses in this Bill, notably the amendments we have proposed to parts of Clauses 17 through 18, 40, and 75. Clause 17(1)(c)(iii) of the Bill, for example, will charge an individual with an offense if he or she engages in electronic communications that involve activity that, “is or is likely to be prejudicial to the friendly relations of Singapore with other countries” (emphasis added).
But what is “likely”? The dictionary definition only states that something that is likely “will probably happen or is expected”; it does not attribute any probability to this likelihood. Statistically, any outcome that has the greater probability of being realized could well be anything ranging from 51 percent to 99 percent.
Thus, establishing that a given action will amount to an offense will require an estimation of likelihood. While courts have a long history of attributing just cause based on strong, credible evidence, this is an enormous leap for any single, largely unchecked individual.
Mr Speaker, nobody denies that foreign interference can occur, facilitated by the medium of electronic communications, that could be prejudicial to the security, public good, domestic harmony, or international relations of Singapore. The desire to draft a law robust enough to capture such possibilities is a sound motivation.
But at the same time, we cannot deny that the vast majority of such communications activity—even when framed in a manner that is potentially incriminating to its sender—could well be innocuous; the frivolous or unfiltered rantings of a troubled mind. Possibilities are insufficient, especially when they call for predictions of an uncertain future.
Were this Bill be passed into law as it stands, we will require not just that our Ministers or relevant competent authorities speculate on the likely mindset and possible actions of individuals, but that such individuals themselves possess the ability to predict whether the information they communicate will affect security, public good, domestic harmony, or international relations. Experts can barely venture such forecasts successfully, much less the average person.
Finally, it is worth adding that by further requiring, as in Clause 17(1)(c) that an individual “knows or has reason to believe” already rules out the possibility of willful ignorance; piling on the need for this selfsame individual to be speculative is excessive.
Precrime and thought policing (Clauses 20–21)
In Clauses 20 and 21 amendments were proposed to raise the level of proof required: from mere suspicion or belief, to at least some degree of evidence or actionable intelligence. This is justice on the basis of precrime, virtually straight out of the film Minority Report. It is the policing of thought.
As much as I may be a fan of Tom Cruise, Stephen Spielberg, and Philip K. Dick, “suspicion” or a “reason to believe” does not rise to the level of actual crime, but represents anticipatory action. At its best, it runs risks abuse and misuse, short-circuiting the free will of individuals to change their minds before they act. At its worst, it rises to the level of thought policing, pinning on suspects actions that have yet to be realized. Even conspiracy—a very indirect attribution of potential involvement in illegal activity—requires evidence.
To be clear, the world can be an unpleasant place, and there may well be instances where the risks of subsequent malicious activity would justify the execution of preemptive actions, that would preclude the possibility of even more insidious outcomes. But the threshold for us to engage must at least be one where we possess evidence, or at the least, actionable intelligence and a reasonable assessment of imminent harm. Short of this, we are relying on gut feeling and instincts to play with people’s lives.
One potential objection to this set of amendments is that the Minister, or relevant competent authority, will always act judiciously and with care. The claim is that, bereft of the flexibility to act on their suspicions, we would compromise the ability of our authorities to protect our citizens.
But this calls us to enshrine into law the propensity of a political office holder to always act in the public interest. This could well be the case today. But would it be the case always? What if—God forbid—an irresponsible party forms government, or someone in government goes rogue? We are walking dangerously close to Manchurian Candidate territory here.
The purpose of the law in any society guided by rule of law is to bind the hands of policymakers, regardless of their beneficence, from the most egregious exercises of arbitrary decisionmaking. Do these specific subclauses satisfy that standard, or should the language of the law be rendered as clear as possible?
Furthermore, we cannot exclude the possibility that even an entirely well-meaning office-holder may carry suspicions—even firmly-held ones—that could turn out to be erroneous. In the press release accompanying the First Reading of this Bill, the Ministry of Home Affairs (MHA) cited the example of an “abnormal spike in online comments critical of Singapore on social media” in late 2018 and 2019. Yet two executives at one major social media platform, Facebook, have publicly stated that it has uncovered no cases of coordinated, inauthentic behavior by foreigners targeting Singapore since 2017. Given the apparent contradiction here, would the MHA share with the House why it believed that the social media activity during that period was foreign-influenced?
Intent (Clauses 5, 17–18, 48)
The proposed amendments to Clauses 17(2) and 18(2) are meant to refine intent. While we agree that clandestine foreign interference may well involve multiple principals, expanding the applicability of the law to include instances where individuals “need not have in mind [any] particular foreign country or… principal” veers uncomfortably into territory where we criminalize those who may have been deceived or misled.
Yet the explanatory notes to the Bill clearly express that covered activities are, “not intended to cover circumstances where a person undertakes an activity with no knowledge, awareness, or direction from the foreign principal, or where the relationship between the person’s activities and the foreign principal’s interests is merely coincidental.”
Indeed, many disinformation campaigns operate via deception. Will we then charge those who have been unwittingly made to operate as pawns of a more sophisticated principal? Lest we rule out as the domain of the naïve—and hence inapplicable to PSPs—it is useful to remind ourselves of how often even experts may end up being duped. Just think of the victims of Bernie Madoff’s ponzi scheme, the Envy Global nickel investment scam, or Elizabeth Holmes’s Theranos, currently playing out in U.S. courts. In the first half of this year, Singaporeans collectively lost a total of $168 million to conmen.
To compound matters, allowing for such possibilities would be extremely costly in terms of resources. Think of the time, energy, and money that would have to be expended to investigate and prosecute cases where it is unclear whether any specific foreign actor is even involved. It could also give rise to either an excessive number of frivolous accusations, or, conversely, inhibit actual victims from stepping up to alert authorities if they suspect they may have been manipulated. The Workers’ Party believes it is far better to strike the balance between efficiency and accountability by eliminating the most ambiguous language from the law, while subjecting cases corroborated by actionable intelligence to judicial scrutiny.
The coincidence of interests, another dimension highlighted as notes remains poorly excluded by the overall language of the Bill. Part (iv) of Clauses 5 and 48—where we have not proposed amendments—refer to the term “collaboration,” which is undefined but, as the notes explain, takes on its “ordinary meaning.” While we understand that the purpose is to capture nefarious collaborations—perhaps inspired by the case of former Lee Kuan Yew School professor Huang Jing—but such broad language raises both theoretical and practical concerns.
For starters, there is very little reason why the simple act of working together—the dictionary definition of “collaboration”—with a foreign entity need give rise to subservience or, for that matter, even mild influence (I am certain we have all had colleagues with whom we disliked, were forced to work together on projects, yet would never imagine wish to emulate or even learn from). Hence, there is little logical reason why one would link collaboration with influence or, more intrusively, interference.
Moreover, in any collaborative relationship—especially when parties carry equal standing—it is frequently impossible to attribute who actually exerts control. By a similar token, it would not be unusual for working relationships dealing with public policy to venture into politically-sensitive, “controversial” (the wording in the Bill) issues—think matters such as climate change, vaccinations, free trade, and gender issues, all of which are controversial, and often evoke partisan leanings—regardless of whether there may have been any intent to direct such efforts toward a political end. This could a chilling effect on already-guarded national discussions, by constraining the ability of our citizens to work with foreigners on matters of national importance, so long as they are politically controversial. Taken together, including the exceedingly vague term “collaborations” into the scope of activities subject to FICA become inherently problematic.
Is it sufficient for us to claim that casual, transparent interactions do not entail collaboration, but deep engagement does? How much must one work with another before they are deemed to have collaborated? In his response to Parliamentary Questions filed by then-NMPs Anthea Ong and Walter Theseira on foreign influence, Minister Shanmugam explained that “there is nothing to prevent politicians, political parties from engaging with foreign parties but you cannot take money from them.” To engage, however, includes the possibility of working with—indeed, working for—someone else.
These theoretical observations are further compounded by the fact, in practice, that Singaporeans routinely collaborate with non-Singaporeans on all manner of critical and noncritical operations. Top generals conduct joint military exercises on a regular basis, and we often send our best civil servants on overseas assignments where they may garner knowledge and experience from citizens of other nations. Our political office holders are often called to perform global public service, serving on committees in international organizations, where they collaborate with high-level officials from other countries.
Mr Speaker, there are additional instances where intent, on the part of the alleged agent, remain uneasily vague. For example, Clause 5(3) states that activities would be covered so long as “both the person and the foreign principal knew or expected that the person would or might undertake that activity.” Surely it is possible that an individual might independently choose to pursue a given course of action, bereft of external influence, yet this choice could still be common knowledge?
By a similar token, the definition of a foreign principals may be excessively broad. While we do not wish to constrain the government’s ability to act on a wide range of potential actors, the existing definitions of “foreign business” and “foreign political organization” could encapsulate perfectly innocuous ties. While we understand that malicious intent is subsequently captured by Clauses 5 through 7, exclusionary language—especially for these two very general categories—may be warranted, something to the effect of a subclause that explicitly spells out how those entities are engaged in political activities. Alternatively, examples and counterexamples could be provided of businesses and political organizations that would be captured (or not) by said definition.
Protecting the right to discuss political matters (Clause 120)
Mr Speaker, till now, the proposed amendments we have flagged speak to what we, as a Party, perceive to be flaws of commission; notably, instances where we believe that the Bill overreaches in its attribution of perceived risks, unwarranted suspicion, and intentionality behind motivations.
In contrast, the amendments we have proposed for Clause 120 are one of omission, namely, the fact that the law fails to incorporate public assurances by the Ministry of Home Affairs—that FICA will not inhibit political speech by citizens not otherwise influenced by foreign principals, or any public, transparent statements made by foreigners on our local political developments—are written into the text of the law.
This is notwithstanding how Clause 105(5) does provide some accommodation for this, by stating that competent authorities “must not exercise any power under this Act for the purpose of furthering or harming the interests of any particular political party.” Yet there is simultaneously language in the Bill that will criminalize the “diminution” of government. Given how there is always, by definition, at least one political party in government, these proposed amendments serve to clarify some of this distinction in the text of the law, not with this current administration or Minister, but potentially with future ones.
Ensuring that political speech is legally protected goes beyond guaranteeing that citizens can speak freely about political matters that are near and dear to their hearts. As a Party, we have always believed in the importance of robust debate over policy alternatives. This will be compromised if our people exercise even more self-restraint or self-censorship as a result of FICA, and our policies and political landscape would be poorer as a result.
As a child, I learned how, boh sompah, buay pasah. Children, evidently, intuitively understand the importance of codification of promises. This set of proposed amendments to Clause 120 essentially do the same for the guarantees promised by the MHA, rather than leaving to the vagaries of enforcement by the government in power.
On foreign influence in a globalized city-state and an internationalized populace
I shall close, Mr Speaker, with a more general reflection on what FICA could mean for a globalized city-state such as Singapore. In our sitting just a mere three weeks ago, we spent enormous amounts of time debating on the merits of economic openness, both historically, and for the future survival of our nation. This willingness to remain open to international flows of trade, finance, and information—even as so many elsewhere have embraced nativism and clamored for closure—truly does distinguish us from much of the rest of the world.
This openness comes at a cost, of course, and it is one that we must surely manage. Last month, the Workers’ Party stressed the importance of ensuring that the winners of globalization compensate the losers, to ensure that liberalization remains sustainable. This month, as we debate how to manage threats from foreign interference, we must likewise not lose sight of the bigger picture, one where our people, companies, and policymakers are deeply and inevitably embedded in a rich mesh of cross-border relationships.
So when we define “foreign businesses” to be any firm “constituted or organized under the law of a foreign country” and a “foreign political organization” to be any “entity constituted or organized under a law of a foreign country… to pursue political objectives,” we are casting an expansive net over the entities we deign as foreign principals. Pair that with the possibility that FICA would criminalize “collaboration” in circumstances where—as I have underscored in this speech—provable intent is hardly concrete, we cast a pall over the internationalism of our nation and the globalized identity of our citizens. I suspect and have reason to believe that FICA, as it is written, is likely to be inadvertently detrimental to our public interest. Sir, I beg to move the amendments as described in the Order Paper supplement.
 Some, such as Sam Tee of the Ministry of Home Affairs, have argued that the scores of academics, activists, lawyers, and legislators that have scrutinized the Bill and issued reservations have somehow “misunderstood” the Bill. If it is true that these individuals have somehow misunderstood the Bill, then it must be the case that the language is sufficiently vague as to be amenable to misunderstanding. Thu, either the language is vague, as claimed, or it is not, in which case these critics should not be accused of misunderstanding. See Ong, J. (2021), “Parliament to Debate Proposed Law to Counter Foreign Interference on Oct 4,” The Straits Times, Oct 2.
 An example is the recent announcement by New Zealand’s legislature of its anti-terror laws, which would criminalize planning and preparing for a terrorist act. See McClure, T. (2021), “Auckland Stabbings: Calls for Tighter Terror Laws After Extremist Allowed to Roam Free,” The Guardian, Sep 4.
 In public statements, the MHA has claimed, with a slew of examples, that a range of activities—such as cultural exchanges, academic coauthorships, business relationships, and official delegations—would not fall under FICA, because they do not qualify as “in the public interest.” But this would surely leave FICA’s collaboration clause toothless when there are actually instances where true covert activity were to have taken place, since any foreign agent worth their salt would channel their malicious activity along a legitimate channel, in order to retain plausible deniability.
 One possibility is to insert a third subclause into Clause 4(a) for “foreign business” and “foreign political organization” that explicitly states, “(iii) has taken on a formal or informal advisory or supervisory role in fostering support and/or opposition.”
 This was the case of the assurances issued under the Protection from Online Falsehoods and Manipulation Act (POFMA), which had claimed that interpretations were not subject to the law, but the Singapore Democratic Party (SDP) was subsequently subject to POFMA for what could easily have been argued to have been interpretive analysis of official data. See Tan, L. (2020), “POFMA Hearing: SDP Argues Correction Directions Not in Line with Laws, Calls on MOM to Release Data,” Today, January 17.
 Clause 4.