Delivered in Parliament on 4 October 2021
Introduction
Mr Speaker sir, five Workers’ Party MPs are speaking on the Foreign Interference Countermeasures Act and four have filed amendments to that Act to bring balance to this Bill. Why?
Some Singaporeans might think that this is an arcane and obscure Bill that will probably only impact those “politicos” who comment on or get involved in politics. Shouldn’t we be spending the time talking about Covid, jobs and other bread and butter matters?
We should talk about bread and butter matters and WP MPs make Parliamentary interventions on these matters, even during this sitting, such as PQs on Covid.
But this Bill is important too. It’s important not only because there always have been malicious foreign actors who seek to twist our politics to their own ends and always will be.
It’s also important because the Bill the government has placed before Parliament today promises to give yet more levers of power to the ruling party which can potentially be abused for partisan purposes, to limit criticism and disadvantage political opponents, thus corroding the very functioning of our hard-won democratic society.
Mr Speaker sir, since entering this chamber in 2016 I have had the privilege of participating in debates on the Constitution Amendment Bill, the Administration of Justice Bill and POFMA, all of which altered the rules of our politics in significant ways to increase broad discretion held by the government to affect political outcomes.
Sir, sometimes in life changes happen bit by bit. They are subtle and we don’t notice them. And, like the proverbial frog boiling in water, one day, after many of these changes, will we wake up and find that we are no longer living in a democratic society envisaged in that most Singaporean of documents, our Pledge?
If our rules become more and more and more tilted, biased, skewed towards the ruling party, the government of the day, against its critics, alternative parties or even independent-minded citizens who simply have a point to make in the public square, even at a time when our citizenry is more educated and politically aware than ever before, whither Singapore?
What will happen is that our politics will become less accountable, less contestable, less meaningful. The ideas that get raised in the public square may become more and more limited to a narrow field of opinion. Abuses, mistakes, may not come to light or will get glossed over in public debate when they do. Fear of the enormous discretionary power of the government may poison political discourse.
And if all these things happen to our politics, then that will affect our policy outcomes on Covid, jobs, HDB lease decay, retirement adequacy, reducing inequality and much else.
The Minister for Home Affairs earlier spoke about the political philosophy behind such legislation – that the risk of a rogue government is less than the risk of foreign interference, or words to that effect, among other arguments. The thing about giving the executive more and more power in exchange for stability and economic benefits is that if the government turns rogue and that stability and those benefits no long get delivered, well-meaning patriots and alternative parties may struggle to change that entrenched government because the legal and institutional tools are all stacked against them. By then, it would be too late.
Some may say that such new laws, like POFMA, have not stifled debate. There is still debate and criticism of the government in the public space. I’ll make two points here – it is hard to know what the effect of these laws has been on the quantity and quality of debate versus if these had not been passed. Secondly, hobbling genuine debate is something that could still happen if future governments decide to use these laws to a greater extent than has thus happened – as could well happen one day if a ruling party in the future, for example, faces a political crisis of confidence and decides to use the most draconian provisions latent in these laws to suppress criticism, so as to stay in power.
When we face a danger – fake news, foreign interference, whatever – the first impulse should not be to simply give more and more and more discretionary power to the government of the day. That could well backfire and create ammunition for those who want to disrupt our society, turn people against the state and one another. No, the first impulse should be to build independent institutions and education among our citizens so that we respond as a society to meet that threat, as the Leader of the Opposition alluded to when he spoke of non-legislative measures.
Overall Comments on Bill
Sir, let me move onto the provisions of the Bill. As my colleagues have elaborated on, this Bill fails on three counts, the three “overs”, namely insufficient oversight, executive over-reach and over-looking some areas of policy where foreign interference could act but which the Bill does not provide clear remedies for:
- It provides no independent oversight of the government, save for the flawed mechanism of a government-appointed Tribunal that does not meet the standard of independent oversight that is seen to be independent, a standard that is embodied in our judiciary. The Leader of the Opposition and my colleague Sengkang MP Ms He Ting Ru has elaborated on this and explained why we propose to allow High Court appeals and judicial review.
- It over-reaches by giving the executive government too much power to act, based on suspicions about likely eventualities rather than evidence and with no obligation to state reasons. This creates the potential for abuse of power, especially when we recall that the Minister, like all Ministers regardless of Party, is still a political partisan at the end of the day, with a vested interest in winning arguments over critics and opponents and winning elections. The Minister is also subject to error even with the best of intentions, as are all of us. I am not singling out any Party or Minister for blame here, my point is about system design. The government may respond to such arguments by providing assurances that they will not use the broad powers in FICA in ways that are inappropriate. That is unsatisfactory. It’s is a bit like saying that I should give you a blank cheque but I assure you that I won’t write a figure on that cheque that is more than what you agreed to pay. The fact is you can. The language of the Bill should reflect intent, not assurances given outside of that language.
- It overlooks the potential for foreigners to interfere by influencing senior government figures or even a Minister for Home Affairs himself or herself one day. Who checks the checkers or, to follow the Latin expression “Quis custodiet ipsos custodes”, who watches the watchmen? Surely foreigners with malicious intent would seek influence over those holding more power first of all, and that means Ministers.
Oversight, over-reach and unmet needs overlooked are what the WP’s amendments and speeches seek to address today.
In the rest of my speech, I will touch on three broad themes.
First, on the theme of overlooking needs, what redress does Singapore have in cases where malign foreign influence succeeds in influencing government Ministers or even the Prime Minister and Minister for Home Affairs himself?
Secondly, on the theme of over-reach, a number of miscellaneous clarifying questions.
Thirdly on the theme of oversight, I shall explain the rationale for the amendments I have moved.
Elite capture – who checks the checkers?
First of all, I would like to speak on the danger of foreign interference (FI) successfully directed at ministers or even the Prime Minister or MHA Minister. Of course, I am not suggesting that that has happened in the past or is happening now. But it could. How does this Bill address that? What recourse do Singaporeans have were that to happen?
This Bill does not create an independent investigative authority that could look into all cases of malicious FI, whether directed at ruling party or Opposition politicians. Nor does it specify a clear route of complaint and follow-up action in cases where a member of the public, be they NGOs, researchers or an ordinary citizen, has formed suspicions that a Minister is under inappropriate foreign influence. Instead, the Bill, like other bills in the past, vests broad discretionary powers with the Minister to act against FI directed at others. What is to be done if the FI is directed at him or her and succeeds?
Some academics refer to such a scenario as elite capture. It is not hard to understand why this can happen. A malicious foreign actor bent on interference may find that they have more power to influence Singapore’s politics if they can bring a Minister or even the MHA Minister himself under their influence rather than an Opposition politician. For a malicious foreign actor, influencing the PM and his or her Ministers brings more bang for the buck. This scenario is not academic, arcane or improbable. In the USA, one popular narrative that became a significant political issue, and I am not stating that this is true, was that the previous President had been suborned by a foreign power.
I would like to ask the Minister – how does this Bill enhance Singapore’s ability to check FI directed at Ministers, the MHA Minister and the PM?
This unpacks itself into a few distinct questions.
Firstly, can the MHA Minister under this Bill apply prescribed actions like transparency directives to his Ministerial colleagues and even the Prime Minister, notwithstanding the fact that the Prime Minister, could, presumably, remove him from his job as a consequence but at least the public would see the action before that happens?
Secondly, what is the recourse if the MHA Minister himself falls under foreign influence?
Thirdly, is there going to be a FICA Office under this Bill, along the lines of the POFMA office, staffed by trained professionals who could in theory investigate Ministers? And if so, how would their independence be established in cases where MHA office holders are the target of investigation?
I would like to conclude on this topic by suggesting that the answer to all of these questions could lie in a proposal that has been put forth to this House in the past by Workers’ Party MPs – the creation of the office of an independent Ombudsman. I do not have the time to elaborate on this here but this is a WP Manifesto proposal and I spoke about it at length during the debate in this House last year on access to justice, including rebutting objections to the idea. The office of a public Ombudsman would, if properly designed and resourced, be a good receptacle for public complaints of FI directed at Ministers and would have the organizational independence and separation from the government of the day to be able to investigate Ministers credibly.
Before I leave this subject, I would like to pose two very distinct questions to the Minister for his reply during this debate.
Firstly, does the Minister, in the exercise of his powers under FICA as the Bill stands, agree that he and his office will apply FICA directives and actions equally to foreigners who improperly intervene in domestic partisan politics whether they intervene on the side of the ruling party or the Opposition? Let me offer an illustration. Media reports have described the work of a gentleman residing in Europe who runs a Facebook page that makes frequent interventions concerning partisan politics in Singapore, often to defend the ruling party and criticise the Opposition in Singapore. Just a short quote from one of his more recent posts: “People often accuse me of bias because I never criticize the government in Singapore. As I explained many times, it would be a bit like criticizing Usain Bolt for not running fast enough.” To be sure I am not calling for action to be taken against this person under FICA and I would argue for a more liberal approach towards debate in general, so long as there is transparency. However, does the Minister agree that he will apply FICA directives and actions equally to foreigners who improperly intervene in domestic partisan politics whether on the side of the ruling party or the Opposition?
Secondly, the Bill allows for the government to require reports on foreigners volunteering in political capacities. Does this extend to volunteering for the People’s Association or PA? The PA works with grassroots advisors who are ruling party MPs or individuals associated with the ruling Party. It does not formally work with Opposition MPs. Much of the work of the PA serves to build political capital and visibility for the ruling party by way of the ruling party MP or individual gracing events as the Guest of honour, being featured in publicity materials and so on. Given these political connotations and corollary political effects associated with some of the PA’s activities involving ruling party figures, will foreigners volunteering for the PA also be subject to foreign volunteer reporting? This could be one route along which foreign interference directed at the ruling party travels.
Assurances on miscellaneous points
Next, Mr Speaker sir, I want to pose four clarifying questions for the Minister’s replies and hopefully assurances.
- First, the subject of a Part 3 direction or POL declaration can apply, within a 30 day timeframe, to the Minister for a reconsideration of his or her decision under cl 23(1). However, it appears that the Minister does not have a corresponding deadline against which he or she has to come to a decision on the application for reconsideration. This is problematic given the potentially deleterious effects which such a Part 3 direction could have on the reputations of individuals and entities. Will the Minister commit to such a time frame?
- Second, clause 76(1) requires that all PSPs disclose every reportable arrangement during a reporting period to a competent authority. These reportable arrangements are defined broadly and could cover arrangements where the PSP, in her private sector capacity, secures a new foreign client for her business, for example. The language of the Bill repeatedly states that such arrangements are reportable even if not directed at political ends. This would be very onerous to PSPs who depend on doing business with foreigners for a living or for certain individuals who work with foreigners frequently, like academics. What will the government do to minimise the onerousness while maintaining the flow of information that is potentially actionable? For example, can the reporting arrangements be made to report on classes of foreign clients and partners – such as Multi-National Companies in France or academics in Italian business schools, for example, rather than being required to specify each and every one of the names of the foreign individuals or entities which the PSPs have dealings with? This still flags out the countries that the PSP has dealings with. At this point, I declare my interest as the CEO of an international research consultancy.
- Third, pursuant to clause 93, those who are (i) designated as PSPs or PSEs; or (ii) issued directives under Parts 5 and 6, may only appeal against that decision to the Minister. They have no right of appeal to the Tribunal, unlike those who are issued Part 3 directions. What is the basis for this? I ask this question notwithstanding the fact that my colleague Sengkang MP Ms He has argued for replacing this Bill’s Review Tribunal mechanism with appeals to the Courts.
- Fourth, in the explanatory note on Pg 205 on defining the offence of clandestine acts of foreign interference by electronic means, one example cited that might suggest covert links to a foreign principal would be if the person moves communication with a foreign principal to encrypted communication platforms. Sir, many communication platforms nowadays are encrypted end-to-end such as Whatsapp, Telegram, Facebook Messenger and Signal for example. Does communicating with a foreigner on such a platform, like Whatsapp for example, in and of itself, constitute proof that the communication is covert and clandestine?
Transparency Amendments
To turn to my third broad theme sir, I have moved amendments to this Bill, specifically clauses 47, 48, 78, 79, 81, 84 and 85. I do not propose to repeat these amendments here, which are set out in the Order Paper Supplement.
The overall thrust of these amendments is to require the government to publicise all of its decisions under this Bill, in terms of designating PSPs, issuing directives and taking other actions. The amendments also require that the government publish the reasons why decisions are taken, including reasons for designating persons or entities PSPs (as dealt with in Clause 48) or PSEs (as dealt with in Clause 47).
This will also allow the public to understand the reasons behind the government’s actions and to form their own conclusions about the justifications for those actions. This is important because how FICA’s powers are used is a matter of public interest and deserves public scrutiny.
These amendments require the government to publish this information over the internet in a searchable, sortable and downloadable manner without charge, in the words of my amendment to clause 81 to which other amendments make reference, and this is for the sake of transparency and should be self-explanatory. An exception to transparency in publicising the register of PSEs and PSPs is made for national security grounds, but under the amendments moved by my colleague Ms He, this would be subject to appeals to the High Court and judicial review.
In Clause 48 (1) (b) I have moved an amendment to add the word “reasonable” for the government’s ability to designate someone a PSP if their employment and activities are not obviously political. This enables a person to apply for judicial review of executive action taken against them under Clause 48 (1) (b).
The amendment to clause 78 requires reportable arrangements to be made public. I would add that our call here is for such publicity to be made with due cognizance taken towards commercial sensitivities and individual privacy. This call should be seen in conjunction with my earlier suggestion to make these reportable arrangements less onerous. In general, published information should be concise and focus on key types of foreign interests associated with PSPs and PSEs.
The government has previously said that it would publish some of these details. So why am I moving these amendments? Are they redundant? No, for a few reasons.
- The government did not say that it would publish the reasons behind their FICA decisions, which my amendments to Clause 47, 48, 81, 84 and 85 require the government to do.
- There is an amendment to Clause 48 that requires the government to exercise its executive discretion in designating PSPs reasonably.
- The amendments call on the manner of publishing to be over the internet in a searchable, sortable and downloadable manner without charge, centralised for ease of use by stakeholders and for accountability.
- Notwithstanding the government’s public assurance that it would publish information about FICA, we believe that this should be codified in law so that this government and future governments are obligated to do this under the law. There must be rule of law, not rule by law.
Conclusion
In conclusion sir, I have no doubt that there is a need to safeguard Singapore against foreign interference. However, the Bill as it stands has insufficient independent oversight, enables governmental over-reach and overlooks real dangers like foreign interference directed at Ministers.
Like all dangers Singapore faces, the solution should never be to simply give the government more and more and more broad discretionary powers that can be used against citizens, critics and opposition parties among others.
By staking so much on strengthening state discretionary powers in this manner, we diminish the role of education and trust in the political maturity of our citizens, who are better educated than ever.
We also risk executive over-reach and abuse potentially; and the risk that that over-reach or abuse diminishes trust in our institutions, turns our citizens against one another and harms national unity in the face of these foreign threats.
Sir, I beg to move my amendments as described in the Order Paper supplement. Thank you.