Cabinet-appointed FICA tribunal will have power to overrule the minister's decision: Shanmugam

He agreed that executive powers must be subject to checks and balances.

Jane Zhang | October 05, 2021, 10:16 PM

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Near the end of a 10-hour marathon debate on the Foreign Interference (Countermeasures) Bill (FICA) on Monday (Oct. 4), Minister for Home Affairs and Law K. Shanmugam gave his closing speech.

In it, he addressed questions and clarifications raised by a number of Members of Parliament (MPs) on the Bill, and laid out the plans for the tribunal.

He also criticised the way the debate had gone, claiming that the Workers' Party (WP) MPs did not engage substantively with what he had said.

Who checks the checkers?

One of the main concerns raised by the WP MPs in their proposed amendments and speeches was the potential overreach that the Bill could facilitate, and they thus called for more checks and balances to be implemented.

In his speech, WP MP Leon Perera said that FICA overlooks the potential for foreign interference through influencing senior government figures, including the Minister for Home Affairs or even the Prime Minister.

"Who checks the checkers?", he asked, positing that foreigners with malicious intent would surely try to influence people holding more power, such as ministers.

Perera asked whether, under the Bill, the Minister for Home Affairs would be able to take action against fellow ministers or even the Prime Minister, if such a case of foreign interference directed at ministers were indeed to be successful.

In addition, he asked what the recourse would be if the Minister for Home Affairs himself or herself fell under foreign influence.

In his speech, Shanmugam stated: "The ultimate check are the people."

He went on to say, "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."

Open court process not appropriate for sensitive intelligence work

He agreed that executive powers must be subject to checks and balances, but added that the question is what form the checks and balances should take.

In the case of FICA, Shanmugam stated, the open court process would not be appropriate due to heavy reliance on sensitive intelligence, collaboration with foreign counterparts, and many things that cannot be publicly disclosed.

Shanmugam stated that in cases when the courts have been deemed not to be suitable, the government has implemented other bodies or tribunals with statutorily imposed safeguards; in this case, a Supreme Court judge is appointed to chair the tribunal.

Tribunal given powers to overrule minister's decision

WP MP He Ting Ru had proposed an amendment to make it such that appeals would be heard by the High Court, rather than the reviewing tribunal, "in line with the doctrine of the separation of powers".

She stressed that the reviewing tribunal — which is appointed under the advice of the Cabinet — is "clearly not an effective substitute for the Courts" and thus creates a situation that is "effectively a check, by the executive, on an executive decision".

Perera referred to the tribunal as "government-appointed", and called it a "flawed mechanism [...] that does not meet the standard of independent oversight that is seen to be independent, a standard that is embodied in our judiciary".

Shanmugam then chided Perera's reference of the tribunal as "government-appointed", saying, "Let's please not insult our High Court judges. Please."

The tribunal, he said, has been given powers to overrule the minister's decision. In addition, a clause in the Bill protects the members of the tribunal from pressure, and states that the minister is not allowed to reduce the salary or terms of office once the tribunal members are appointed by the President.

Shanmugam stated that the tribunal will be able to consider a matter without telling the appellant the full details of the conduct that the appeal is about, but explained that there are reasons full evidence sometimes cannot be given:

"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."

Set-up of the tribunal

Shanmugam elaborated on how the tribunal will be chosen and set up.

It will be a standing tribunal, with a few discrete and fixed panels set up.

Members will be selected for their areas of expertise, and will need to undergo security vetting due to the fact that they will be receiving highly classified, highly confidential information.

The members must be people with experience and standing, he said, similar to any other tribunals or independent committee.

They will be given the same protection and privileges as a Supreme Court Judge, and they must protect secret information, under the Official Secrets Act.

Shanmugam stated that, while it is not written in law, Supreme Court judges are appointed to panels after consultation with the Chief Justice. He added that he had spoken with the Chief Justice to suggest some names.

Specific rules for the tribunal — with key features drawn from reviewing bodies in other laws — will be worked out in the coming months as subsidiary legislation, and the rules will be public.

How the tribunal will work

Shanmugam also laid out a broad outline of how the tribunal will function:

"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."

In addition, he said, the tribunal will be able to consolidate and hear similar appeals as a single case, or take one case as a reference point that will apply to other similar cases.

The tribunal will also be able to dismiss "frivolous or vexatious" appeals.

Use of powers and transparency

Shanmugam also responded to several MPs' questions about the use of powers under FICA and the degree of transparency that will be given.

Progress Singapore Party member Leong Mun Wai voiced concerns that under the Bill, a person could be arrested with "no need to give [them] a reason" and detained without bail, and that the government would not be need to reveal a source of evidence.

Shanmugam stated that under the Bill, there is no detention without trial. Rather, there is a power to give some directions.

"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. Those will be prosecuted in open court."

He also addressed a concern expressed by WP MP Jamus Lim, on whether a person who was tricked into committing harmful activities would be charged. Shanmugam clarified that in such a situation the elements of an offence would not be made out, and thus, there would be no basis for criminal action.

On the issue of transparency, Shanmugam stated that the government has made the decision not to name foreign state actors suspected to be involved in attempts of foreign interference, due to wider national and foreign policy considerations.

However, he said, they will alert Singaporeans when such communications activity has been detected and if FICA directions are issued to block and contain such foreign interference.

All Directions issued under FICA will be made public (except for Technical Assistance Directions)

All Part 3 activities — which are Directions Against Harmful Foreign Online Communications Activity — will be published on a website accessible to the public, except for Technical Assistance Directions.

This is because "national security concerns may make it impracticable to publish the reasons for actions taken", Shanmugam explained. However, he said that when possible, the government will tell the public the broad grounds for issuance of directions.

PAP MP Xie Yao Quan had asked whether appeals made and ruled under FICA will be published, to which Shanmugam replied that 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," Shanmugam said.

Difference between covert and overt actions

In his speech, Perera also asked whether Shanmugam would agree to applying FICA directives and actions "equally to foreigners who improperly intervene in our domestic politics", regardless of whether they were supporting the PAP or the opposition.

He gave an example of a man living 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".

Shanmugam replied saying that if a foreign commentator writes articles and puts out his name, people are able to assess for themselves how much weight to attach to his ideas.

"It probably will not come within the proportionality test," he said, but added that it depends on a variety of factors, such as the facts, whether there is covert action, the intensity and the nature of the matter, and more.

How the government decides what counts as covert or deceptive is an assessment that "depend[s] on many factors", he explained.

"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."

"There is a line — a fine one — between a campaign to persuade and a campaign to manipulate," Shanmugam stated.

"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 criminalised."

FICA not meant to stop from interactions with foreigners

Several MPs, both from the PAP and the Opposition, had asked about whether FICA would impact foreign interactions with academics, businesses, NGOs, clan associations, and more.

Shanmugam said that the short answer is, no. He explained:

"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."

That is, as long as these interactions 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", he added.

He also clarified that FICA does not cover Singaporeans expressing their own views: "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"

FICA is only part of picture

In his speech, Singh had brought up the lack of non-legislative measures to deal with foreign interference, such as efforts to educate the public to resist malignant information.

Shanmugam said that the government agrees with Singh.

"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."

In addition to legislation such as FICA, he stated that the government has been and will continue to strengthen other defences against the threat of foreign interference, such as detection and response capabilities and Singaporeans' ability to discern legitimate and artificial online discourse.

Shanmugam highlighted some of the public education programmes that the government has introduced, such as the Digital Media and Information Literacy Framework, which educates the public on using information more responsibly and the risks and benefits of technology.

The government can't do this alone, and it needs a whole-of-society effort to engage in this public education, he said.

"So, we will welcome everyone’s assistance in helping to engage and educate the population."

However, he insisted that these efforts "must be complemented with strong laws, which is the focus of FICA".

Top photo via MCI. 

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