Delivered in Parliament on 4 October 2021
Mr Speaker, I rise to speak on the Bill. Before I begin, I do not recall coming across a Bill that is understood in such diametrically opposing way by, on the one hand, members of the public – including at least two Senior Counsels, many civil society activists, former NMPs and journalists, and by the Executive on the other. This anomaly in our public discourse regarding this Bill is significant and it bears deep reflection on how our laws are made, and communicated to the public.
Sir, my speech has four parts.
One, is a summary of the amendments filed by Workers’ Party MPs;
Two, is on how exceptional executive power requires robust judicial oversight to ensure accountability;
Three, is on how the Government should have sought public feedback on this Bill; and
Four, is on how the Government has been largely muted as to the non-legislative measures to combat foreign interference and why this needs to be corrected urgently.
Amendments proposed by the WP MPs
Let me first summarise the amendments proposed by Workers’ Party MPs who will explain the substantive basis of their amendments in their respective speeches.
Ms He Tingru, Mr Leon Perera, Mr Gerald Giam and Mr Jamus Lim filed amendments to the Bill on 27 September 2021. The thrust of the amendments is in four areas: Accountability, Fairness, Transparency and Effectiveness.
The first area is Accountability. The Government must be accountable when it implements this law and uses executive powers against individuals and entities. There should be robust oversight of executive action by the Supreme Court. This must be the default position for a parliamentary democracy that recognises the centrality of the separation of powers under our Constitution.
The second area is Fairness. The law must more precisely scope the extent of executive powers to minimise the prospect of abuse of power. Phrases such as ‘is likely to’ and ‘where the Minister suspects’ create low thresholds of proof that could be unfairly used against entities and individuals if power is in the wrong hands. While the Bill targets foreign interference, Singaporeans are the central focus, and it is important that their constitutional rights are respected.
The third area is Transparency. There has to be greater clarity and transparency on the entities and individuals affected by this Bill. I note in this regard that the Ministry of Home Affairs (MHA) has made a statement in the middle of last week that it will publish details of designated persons or entities, but surely this should be made more explicit in the Bill.
The fourth area is Effectiveness. The Workers’ Party has no objection to the additional requirements that are ported to this Bill in connection with the repeal of the Political Donations Act. However, we do question whether the list of Politically Significant Persons is far-reaching enough. Our civil service has a significant footprint in the success of Singapore, with its central role in influencing government policy. As key nodes in decision-making, civil servants from Deputy Secretary upwards should be designated as Politically Significant Persons. As the Ministry of Home Affairs’ press release on the First Reading of the Foreign Interference (Countermeasures) Bill shows, the danger of elite capture is an insidious threat. It would be unwise to assume that only politicians, civil society activists and journalists are vectors for foreign interference. To this end, it would important for the public to understand the Government did not think it necessary to designate such individuals as PSPs in the original Bill. MP Gerald Giam will speak more on this subject.
Of the four areas of amendments, foremost is Accountability of the Executive, because without that, fairness in scoping powers and greater transparency are shadow puppets.
More Powers = More Oversight
That is why the second part of my speech is on how exceptional executive power requires the strongest of oversight to ensure accountability.
Mr Speaker, the starting position of the Workers’ Party is that the ubiquity of the threat of foreign interference and its low-cost ecosystem, particularly online, is neither a figment of the imagination, nor can it be wished away. It follows that the Government must have powers, and even potentially intrusive powers, to intervene in the appropriate case. However, if we accept that such broad-ranging, broadly defined powers should be legislated to deal with foreign interference, then this House must ensure the legislation of equally robust oversight mechanisms to prevent abuse of power.
If a poll were to be conducted among ordinary Singaporeans on concepts like the separation of powers doctrine and its centrality to our system of government, such a poll is likely to elicit quizzical looks. One can hazard a guess that not a small number of our citizens would be unsure of how important such principles are to our political system.
Let me add a historical dimension. Members of this House may have noticed a compact wooden bookcase at one end of the Parliament library. This bookcase and a number of books on parliamentary and constitutional subjects were presented by the UK’s House of Commons to then Speaker of Parliament P. Coomaraswamy on 16 Nov 1966, to mark Singapore becoming the 22nd nation of the Commonwealth to gain independence. This House passed a resolution recognising the receipt of these gifts on the 5th of December that year. One of the famous books in this bookcase is the Law of the Constitution by Albert Dicey where that hallowed phrase central to the separation of powers in all parliamentary democracies is found. I quote: “Powers, however extraordinary, which are conferred by or sanctioned by statute, are never unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges.” Unquote.
The separation of powers doctrine and its close relationship with the rule of law was affirmed in the recent judgment of Nagaenthran a/l K Dharmalingam v PP. The Court of Appeal observed that the separation of powers is, and I quote, “embodied in the Singapore constitution by virtue of Article 23 (which vests the executive authority in the President and the Cabinet), Article 38 (which vests the legislative power in the President and Parliament) and Article 93 (which vests the judicial power in a system of courts).” Unquote.
The Court of Appeal also observed, and I quote, “any society that prides itself in being governed by the rule of law, as our society does, must hold steadfastly to the principle that ‘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.
In stark contrast, the Bill before us today envisages the creation of a Reviewing Tribunal within the Executive branch with quasi-judicial powers with regard to the right of appeal against authorisation for Part 3 directions, or against the decisions of a competent authority. Clause 99 appears to go so far as to completely displace natural justice from the oversight process as drafted in this Bill. One of its paragraphs states that the Rules may enable or require a Reviewing Tribunal to hear or consider any proceedings or appeal without the person who brought the appeal having been given full particulars of the reasons for any conduct which is the subject of the proceedings or appeal. Read it carefully. I would forward that it shocks the sensibilities of many, and it goes some way to explain how this Bill has been framed and understood by the public since its first reading three weeks ago.
Mr Speaker, the Workers’ Party rejects such an appeals mechanism. We propose an amendment of clause 104 to allow first for an appeal to the Minister and thereafter to the High Court with full judicial scrutiny. Of course, there is provision for a private hearing where national security is at risk. Workers’ Party MP for Sengkang GRC He Ting Ru will go through these amendments in detail.
Mr Speaker, the books presented to Speaker Coomaraswamy in 1966 and their subject matter may only be familiar to a small class of Singaporeans. But ask Singaporeans generally about checks and balances and a clear majority would agree that they are important for Singapore. Power and responsibility must be divided, to empower each branch of Government, and ensure the exercise of power is not unlimited.
The Government should have sought public feedback on the Bill
Which brings me to the third part of my speech on how the Government should have sought public feedback on the Bill.
Mr Speaker, there has been considerable disquiet in some quarters at the speed at which this Bill has been presented to Parliament. In March this year at the Committee of Supply Debates, Deputy Speaker Christopher De Souza enquired what MHA would do to deter foreign interference in Singapore’s domestic affairs.
The Second Minister for Home Affairs, Mrs Josephine Teo, addressed the query and announced that legislative levers may be needed. I quote, “Given the recent experience of other countries, we need to consider further measures to guard against foreign subversion of politically significant individuals and entities. For example, what levels of transparency in funding, support and leadership are appropriate? For whom?” Unquote
More significantly, Minister then went on to say and I quote, “The public has a big part in this to shape proposals and to give the eventual safeguards their strongest support. It is the only way we can effectively deter bad foreign actors from exploiting our vulnerabilities.” Unquote.
In the six months between Minister Josephine Teo’s statement and the first reading of this Bill, the Government did not hold any public consultation on the Bill, and nor can it be said that the public played a big part in shaping this Bill. This omission contradicts the position on record of the Second Minister for Home Affairs, which was to lean on the public to shape the Bill, which surely must include its safeguards.
In March of this year, in his adjournment motion on judicial review and ouster clauses (like clause 104 of this Bill), the Member for Bukit Batok and Government Parliamentary Committee Chair for Home Affairs and Law Mr Murali Pillai stated that it was important for each generation of political leaders and people to find their own equilibrium of what our people would accept without question. This is a position I accept and welcome. The honourable member then quoted his Party Secretary-General’s speech at the 36th PAP Party Conference held in November last year when PM Lee said that Singaporeans have expressed a desire to have greater checks and balances and that the PAP Government must change and respond to these desires and expectations.
Taking these words of a Minister and a GPC Chair together, it is wholly incongruous for the Government to accept that the public of today desires greater checks and balances but then omits to seek public feedback on a Bill that does away with substantive judicial review.
Mr Speaker, I believe I would not be too far off in speculating that if the public had been surveyed on this Bill, most Singaporeans would have readily supported the use of executive power to curb foreign interference. However, I am also sure that if asked, most Singaporeans would be in favour of our Courts acting as a check to ensure that executive power is exercised lawfully, appropriately and fairly.
Mr Speaker, in the national language.
Tuan Speaker, ada keresahan di beberapa sudut terhadap betapa pantasnya Rang Undang-undang ini telah dibentangkan di Parlimen. Pada bulan Mac tahun ini di Perbahasan Jawatankuasa Perbekalan, Timbalan Speaker Christopher De Souza menyoal MHA tentang langkah yang akan diambil untuk mencegah campurtangan asing dalam urusan dalam negara.
Menteri Kedua Ehwal Dalam Negeri menjawab dengan menegaskan keperluan bagi alat-alat perundangan. Beliau berkata demikian: “Memandangkan pengalaman negara lain baru-baru ini, kami perlu pertimbangkan langkah-langkah lanjut untuk membéla diri kami daripada muslihat asing terhadap individu-individu serta éntiti berkepentingan politik. Contohnya, apakah tahap ketelusan yang patut dari segi pembiayaan, sokongan dan kepimpinan? Dan untuk siapa?”
Lebih penting lagi, beliau juga berkata, “Masyarakat umum memainkan peranan besar dalam membentuk cadangan dan memberi sokongan paling kuat kepada bénténg pertahanan itu nanti. Ini satu-satunya cara untuk kita menghalang pihak asing tidak baik yang mengambil kesempatan daripada kelemahan kami.”
Dalam témpoh enam bulan dari kenyataan Menteri Josephine Teo di perbahasan COS tahun ini, hingga bacaan pertama Rang Undang-undang tersebut bulan lalu, Pemerintah masih belum menganjurkan rundingan awam tentang Rang Undang-undang tersebut, atau menerima maklum balas awam seperti biasanya dilakukan. Ini sangat berbéza dengan kenyataan dibuat Menteri Kedua Ehwal Dalam Negeri di Parlimen, yang berniat mempedulikan pendapat masyarakat umum dalam membentuk Rang Undang-undang ini serta jaminannya.
Pada bulan yang sama, Mac tahun ini, Anggota bagi Bukit Batok Encik Murali Pillai memetik daripada ucapan Setiausaha Agung di Persidangan Parti PAP yang ketiga-puluh enam. Merujuk kepada ucapan Perdana Menteri, beliau mengatakan bahawa warga Singapura telah melafazkan keinginan / untuk memeriksa kembali anggapan asas kami, mencuba pendekatan baru dan mengadakan lebih kawalan kuasa. Ini berikutan kenyataan Anggota yang berhormat tentang pentingnya setiap generasi pemimpin dan rakyat mencari mufakat meréka sendiri berkenaan apa yang boleh diterima rakyat tanpa soal, menurut keadaan bagaimana, dan menuju matlamat yang mana. Ini kedudukan yang saya terima.
Melihat ini sebagai kenyataan seorang Menteri dan anggota PAP, ia boleh dianggap sangat bercanggahan jika Pemerintah mengakui keinginan masyarakat untuk mengadakan lebih kawalan kuasa, tetapi mengélak rundingan awam bagi Rang Undang-undang yang akan sama sekali membatasi kebébasan sivil warga Singapura, jika diluluskan Dewan ini dan disalahgunakan mana-mana Pemerintah yang berkuasa.
The omission of non-legislative measures to deal with foreign interference
Mr Speaker, the fourth part of my speech is on how the Government has been comparatively muted on non-legislative measures to deal with foreign interference. Such measures should include educating the public to resist malignant information efforts and how to be vigilant against such interference that is also commonly vectored through business, clan and cultural conduits where the prospects of plausible deniability are high.
Sir, this Bill is the final instalment in a series of legislative changes that arose out of the work of the Select Committee on Deliberate Online Falsehoods. It was to be expected, from the committee’s report, that legislation would be used to address the problems identified. What is more difficult to grasp is the comparative lack of public knowledge on the non-legislative levers to address foreign interference. The Select Committee report went through these non-legislative measures in a significant way, but the Government’s response has focused first, on POFMA and now on FICA.
The S. Rajaratnam School of International Studies published a Policy Report in April this year on countermeasures against foreign influence. This has been circulated to members by the Parliament library staff. The report said that to combat foreign interference, it is critical to build resilience – or in our total defence parlance, psychological defence – by raising awareness about information manipulation in both the government as well as amongst the public. The paper noted that foreign campaigns to sway public opinion during the 2017 presidential campaign in France were unsuccessful. This was because the French government created awareness about information manipulation, built strong central organisations to counter disinformation and undertook a strategy to push counter-narratives that blunted the effects of disinformation, such as focusing public attention on perpetrators.
Coming back to the Singapore Government’s approach, the examples raised about foreign interference focus largely on long-past attempts such at the Singapore Herald and Eastern Sun and the Hendrickson affair. In a Straits Times article on 25 September there were references to the impounding of SAF Terrex vehicles in Hong Kong and to reports of China’s soft power efforts in Singapore through clan and business associations. This begs the question, how will this Bill in particular, if enacted, address such examples of alleged foreign interference? The Straits Times, our newspaper of record, does not make this clear. What must Singaporeans do to heighten our sensitivity to such interference? And how is the Government ensuring that this message flows to the masses and to new generations of Singaporeans including new citizens given that Singapore’s destiny as an immigrant nation is almost certain.
At best, the messaging is unclear. In her COS speech, Minister Josephine spoke of a curious spike in 2018 and 2019 of online comments critical of Singapore, many from anonymous accounts when there was a bilateral spat with Malaysia. This spike in online chatter sought to give an artificial impression that there were significant and fundamental objections to Singapore’s position. This episode was also covered in the 25 September ST piece.
Mr Speaker, this episode was a highly opportune moment to share the nature of the threat and engage in a conversation with the public on foreign interference. But beyond these scanty details, no further clarity and connection with foreign interference have followed. More fundamentally, how does the Government distinguish between a genuine groundswell of sentiment and a dedicated hostile information campaign? I note that the MHA press release on the first reading of the Foreign Interference (countermeasures) Bill dated 13 September 2021 anonymised this example although it was clear that the MHA press release was referring to the same episode highlighted by Minister Josephine Teo in her parliamentary speech.
Sir, the Government has placed such high priority on combating foreign interference to the extent of introducing a Bill which in some important ways, have no substantive judicial safeguards. But what does it say about the Government when it takes an arguably unclear approach to non-legislative responses? Surely non-legislative responses that promote a more participatory and educated citizenry would inoculate the population in a whole-of-society way against foreign interference.
This is an area the Government needs to look into in a deliberate fashion across all levels of society. It is my argument that the Government needs to work with the public in a far more participative way, so as to strengthen the resolve of the population against foreign interference. The apparent lack of integration of legislative and non-legislative measures to address foreign interference in my view is a critical omission in our public discourse on this subject.
The conclusion of the RSIS paper is prescient. I quote, “The manner of application of these countermeasures must be fair and necessary both in terms of process and perception, without perpetuating the image of an Orwellian state. Singapore must not appear to be taking sides in geopolitical rivalries or using foreign interference as a pretext to clamp down on local political discourse and responsible activism. Ultimately, Singapore’s survival depends on both its foreign policy’s principle of neutrality and reputation of openness to global trade, talent, investments and ideas.” Unquote.
As things stand, particularly on grounds of perception and fairness, this Bill falls far short. This explains why 4 WP MPs have filed amendments to the Bill.
Mr Speaker Sir, let me conclude.
Public feedback should have been sought on this Bill. The Government failed to do so and is not minded to postpone this debate. There is an opportunity to commit it to a Select Committee for public input and to review oversight mechanisms, amongst others. The Government should not close the door to this. What is more perplexing is that we know the Government had been mulling the introduction of this Bill for many months – why was it so difficult to undertake a period of public consultation before it was tabled for first reading?
The Government must also take immediate steps to implement non-legislative measures to tackle foreign interference, such as education and engagement of the public. Hopefully, the Government will introduce such measures with the same alacrity with which it introduced this Bill.
Finally, the most critical issue today is that the high level of executive power introduced by this Bill demands that there be the strongest oversight mechanism we have, namely our Supreme Court.
I call on the members of this House to seriously consider the proposed amendments and to ask yourselves whether you would want these amendments in place if the PAP were not in power. These amendments are in the best interests of Singapore and Singaporeans regardless of who is in charge now or in the future. Say ‘Aye’ to all the 44 amendments proposed by the Workers’ Party.
Thank you, Mr Speaker.