Delivered in Parliament on 4 October 2021
We have today before us, a mere 21 days after its First Reading, a 249 page wide-raging Bill which grants sweeping powers to the Minister and competent authorities to counteract foreign influence in our policies and direction. As my Workers’ Party colleagues will point out, we believe in giving relevant authorities clearly defined and effective tools to counter actual acts of foreign interference. Our objections however are raised in both the drafting of wide ranging powers, the problems with oversight mechanisms, and also the way the Bill has been presented.
Outside this Chamber, Singaporeans are just starting the second week of yet another set of tightened Covid rules, while navigating a system of confusing quarantine and testing programmes and regulations, while scrambling to adapt to more home-based working and learning. Our healthcare workers are strained, and we have resorted to activating the SAF to assist a system that was overwhelmed only one month after we further loosened restrictions. Most of us are also receiving numerous requests for assistance from residents in dealing with the confusion of quarantine orders, the new Home Recovery Programme, and also with pressing economic hardship suffered because of the latest round of tightened restrictions.
And in the midst of many Singaporeans being preoccupied with such pressing concerns, this Bill has been tabled and put up for second reading within three weeks, with no public consultations nor select committees convened for the purposes of scrutinising the broad and sweeping powers that it gives the Minister. This is in stark contrast to POFMA, where a cross-party Select Committee convened public hearings over eight days, which saw 79 individuals and organisations testify. I also note that the Bill is 168 pages longer than the POFMA bill, and contains, on the face of it, even broader powers, which should logically mean that more scrutiny must be given before it is passed.
I would therefore like to seek clarification from the Minister about why the pressing need to forge ahead on this Bill now? While I reiterate that the Workers’ Party agrees that appropriate measures need to be put in place to counter the threat of foreign interference, we would like to understand what is the real and imminent threat that Singapore faces that warrants such a rush in passing the Bill? How many instances of suspected foreign interference have there been in each of the last ten years? And more crucially, why are the specific powers and tools contained under the Bill so urgently required by the Minister and various competent authorities that would mean the Bill needs to be rushed ahead and passed into law without further delay at this particular juncture?
I also want to stress that this Bill is not an obscure one that, once passed, will have minimal impact on the lives of Singaporeans. Already, we have seen numerous voices — from a Senior Counsel, various NGOs, Singaporean academics (including a senior research fellow at IPS) — speaking up to voice their grave concerns not only about the speed at which the Bill is to be passed, but also about the substantive provisions contained in the Bill. There is a fear from many that in the rush to pass the Bill to counter foreign interference, we may be throwing the baby out with the bathwater and end up catching many legitimate and innocent people, entities and projects in the dragnet — a fear that has been repeated by numerous voices, including those of, in particular my colleagues Jamus Lim and Gerald Giam.
And the impact of the Bill is not reserved just for the few who are active in politics. The way it has been drafted and passed has the potential to adversely affect ordinary Singaporeans in ways that may not be initially obvious: it is like a Trojan Horse that appears benign at first but unravels upon passage, in two main ways.
Firstly, any uncertainty would create a chilling effect on political discussion and engagement. As a specific example, the wide discretion allowed by the drafting of the Bill to designate who is a “politically significant person” runs the risk of encouraging many to step away from conversation in the public space to avoid the onerous countermeasures that come with being a “designated PSP”. This means local content creators, local activists, local academics: their retraction from our public spaces will mean that we will be worse off and this will dampen the richness of thinking and dialogue on issues that matter to all Singaporeans. It would also be damaging to our standing and connection within the global commons, which has recently already been called into question with concerns raised over the closure of Yale-NUS College.
Secondly, many have echoed our fears that this Bill represents power given to the Government which is not subject to the oversight of the courts. It provides the Minister wide ranging powers that are largely unfettered, with the only exception being a reviewing tribunal that has a narrow scope. Could this be a slippery slope that would lead to less checks on how these powers are wielded, and ultimately, in the hands of possible future rogue Ministers and officials, damage Singapore’s reputation of an open, global business hub where enforcement and application is predictable and certain. Together with the hasty passage of significant Bills such as this with limited or rushed debate, these would risk chilling investment and job opportunities in the process.
I must also sound a note of caution: we must ensure that we do not end up being so shrill and fearful of the threat of foreign interference that we end up neglecting a possibly even more insidious threat — one where domestic players could seize an easy opportunity to whip up nationalism — and anti-foreigner sentiment — to further their own political goals (nefarious or otherwise) in the flimsy name of protecting national interests and sovereignty. We have seen this happening since 2016 in movements and campaigns like Brexit, Pegida and “Make America Great Again”. There has been a rise of far right governments from Brazil to Central and Eastern Europe. Formerly fringe parties such as the Front National and the Alternative für Deutschland have acquired national platforms. All of them have built their success on twisted versions of patriotism and national identity and sovereignty. If similar home-grown ideas and movements are allowed to take root here, whether from the governing party of the day, opposition parties, or otherwise, the damage done to a small society like ours could be catastrophic.
Amendments to bring back judicial oversight
Moving on to the proposed amendments by the Workers’ Party, I will speak on those standing in my name, which are amendments to Clauses 92 to 104, which fall under Part 8 – Oversight Arrangements part of the Bill. These relate to two main points: first, the rights of appeal, and second, the judicial review ouster clause.
I turn first to Clauses 92 and 93, which deal with the rights of appeal against decisions made under the act by both the Minister and the competent authorities. This section is important as it prescribes the methods and processes in place to protect citizens against an abuse of power by the Government of the day.
Clause 92 provides for setting up a Reviewing Tribunal which comprises three individuals, who each have to be Singaporeans and will serve a term of three years. The Government appoints these individuals, and the Chair of the Tribunal has to be a Supreme Court judge. There are no other specific requirements in the Bill relating to the remaining two members of the Tribunal. The remuneration and expenses of the Tribunal are paid by money provided by Parliament, but the Rules for Tribunal proceedings are, under Clause 99, made by the Minister, and are only presented to Parliament after being Gazetted.
The Tribunal can only hear appeals on two narrowly and clearly defined circumstances: for a person issued with a Part 3 direction (that is, a direction to counteract harmful foreign online communications activity), or for proprietors of a proscribed online location — which are locations that are declared by the Minister to be a purveyor of hostile information content. It is notable that the drafting of this section shows that the draftsperson is able to very narrowly and precisely define parameters when it is desirable to do so.
Additionally, all appellants must have first requested the Minister to reconsider the earlier decision before they can be taken to the Tribunal. In particular, it is not clear how or even whether the Tribunal will be able to consider appeals on the substance of the exercise of the Minister’s powers to issue Part 3 directions, given that there is no obligation in the Act for the Minister to explain how he exercises his powers of considering Part 3 directions issued by the competent authority under the Act.
Also, I note that the Tribunal is only empowered to either dismiss the appeal or revoke the decision; it is not within the Tribunals’ power to make any amendments. Finally, the decision of the Reviewing Tribunal is final and there is no further right of appeal.
Individuals designated a Politically Significant Person under Part 4, or issued directives under Part 5 or 6 around countermeasures for foreign donors and activities that are not donor activities but MAY involve a foreign principal in Part 6 have no route of appeal through the Tribunal. Their only route is to the Minister himself, and the Minister’s decision is final. (Clause 93)
I also note that our proposed deletion of Clause 119(2) is a consequential amendment of having deleted the provisions relating to the Reviewing Tribunal.
The Workers’ Party’s position to the approach taken above is that the oversight mechanisms proposed are insufficient to ensure the Act is not abused. First, the Minister is in almost all cases the final decision maker. Only a limited and very narrowly defined subset of cases are subject to appeal to the Reviewing Tribunal. Second, even the small number of cases which are eligible to appeal to the Reviewing Tribunal, are subject to further restrictions, including the provision under Clause 99(b) which states that the Minister may prescribe Tribunal Rules that enables a Reviewing Tribunal to decline to give the appellant the full particulars of the reasons for why a decision was made. This would mean that he would effectively be asked to make his appeal partially blindfolded.
In view of this, we propose that in line with the doctrine of the separation of powers, the judiciary is the appropriate organ of state to exercise oversight over the broad powers granted under this Bill. This proposal means that any person who is subjected to a determination order or decision under the Bill has a right of appeal to the judiciary, that is, to the High Court.
The Reviewing Tribunal is clearly not an effective substitute for the Courts. Firstly, the composition of the Tribunal is decided by the Government, and only one of them is a Supreme Court Judge who is qualified and experienced in scrutinising and determining such appeals. This is also problematic as it effectively is appointed by the Cabinet, in what is effectively a check, by the executive, on an executive decision. This is a classic case of, in the words of the Leader of the Opposition, “Ownself Check Ownself”. The Tribunal is also, unlike the Courts, not part of the Judiciary established under our Constitution, whose independence is also enshrined in our Constitution.
Under our Constitution, judicial power is vested in the Courts. Carving out matters that should be properly determined by the Courts for review, by a Tribunal that cannot be held to account, is deeply problematic.
Additionally, decisions of both the Reviewing Tribunal and the Minister are not subject to correction by any higher authority, especially as the proposed Clause 104 purports to oust judicial review on all but procedural grounds. There is also no mention of either the Tribunal or Minister being guided or bound by precedents of previous decisions which are often instructive and valuable.
To address concerns that judicial trials may compromise national security because of the sensitive nature of a matter, our proposed amendment also allows for such hearings to be held in camera — without the public being allowed to attend — if the court is satisfied that it is in the public interest to do so.
Judicial review ouster
Next, I turn to the proposed Clause 104, which is what is known as a judicial review ouster clause. The substance of this clause is that the Government seeks to protect the Minister’s decisions under FICA from review by the Courts. This offends Article 93 of the Constitution, which expressly states that “judicial power of Singapore shall be vested in a Supreme Court and in such subordinate courts as may be provided by any written law for the time being in force”.
The ouster clause is a breach of the principle of the separation of powers: the Government should not be using its legislative authority to oust the rightful constitutional oversight of a co-equal institution in the Singapore system.
It means that no decision under FICA shall be challenged through the process of judicial review, apart on the very narrow grounds of purely procedural compliance with the Act not being properly followed.
Many of our leading jurists have also expressed their discomfort with ouster clauses. The Court of Appeal has expressed concern in Per Ah Seng that ouster clauses “can be regarded as being incompatible with the rule of law because it should be within the court’s purview to declare the legal limits of discretionary powers”.
Our former Chief Justice Mr Chan Sek Keong too has suggested that ouster clauses — quote “may be inconsistent with Art 93 of the Constitution, which vests the judicial power of Singapore in the Supreme Court” — unquote.
Crucially for our purposes today, the ouster clause does not allow for the courts to consider applications for judicial review of decisions taken by the Minister and competent authorities on the grounds of ILLEGALITY and IRRATIONALITY.
The latter two limbs of judicial review are key in ensuring that, as captured in Chng Suan Tze v Minister for Home Affairs, quote “All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power” — unquote. And we must, as legislators, have the rule of law in mind as we consider the balance of, amongst others, natural justice, national security, and the separation of powers as we decide whether or not a judicial review ouster clause should stand.
For illegality, this arises when a decision-maker exercises a power wrongly, or improperly purports to exercise a power that it does not have. The courts, in their role to check and balance powers granted to bodies, ensure that nobody overreaches and goes beyond the powers given to them. For irrationality, it allows a party to challenge a decision by a public official or body if “it is so unreasonable that no reasonable authority could ever have come to it”.
Disallowing judicial reviews on the grounds of illegality and irrationality takes away an important check on the powers granted to the Government. Imagine if one day, the competent authority designates a six month old baby a PSP under Part 4. This decision is final and cannot be set aside if the Minister upholds this upon appeal. It will not be allowed to be set aside on the grounds of irrationality since judicial review on these grounds are not possible! While this situation may be dismissed as outlandish and would never happen, it is theoretically possible under the provisions of the Bill. Stranger things have happened.
While we might say that we have confidence in current policymakers, intentions, and policies. Yet, no one can guarantee the conduct of future Ministers and competent authorities and their commitment to acting rationally and legally. In fact, were we not told that the logic for the constitutional amendments surrounding the establishment of the Elected Presidency and, in 2016, changes in the remit of the Council of Presidential Advisors, have to do with putting in safeguards against the possibility of irrational or unreasonable behaviour by top decision-makers? Why do these safeguards not apply here, especially as we are granting wide-ranging powers to the Minister?
I wish to also point out that judicial review does not review the merits of cases. It instead is a process by which the courts exercise supervision over decisions made by ministers and other public officials and bodies to ensure that legal limits are enforced where public power is exercised. It is an important part of the checks and balances to ensure that powers are wielded judiciously by the state.
We cannot repeat enough our position that greater powers need greater oversight, and it is therefore with this in mind that our proposed amendments do away with the ouster of judicial review. In other words, we believe that the “sunlight of scrutiny” — to use the phrase of our esteemed colleague Mr Murali Pillai — is more crucial than ever in needing to be applied to this Bill and the broad and alarming powers it purports to introduce. This sunlight is what helps both shine a light on malicious foreign activity, and at the same time, assures all of us that we do not need to worry about the over-expansive use of Government powers.