Shanmugam accepts some of Workers' Party's proposed amendments to foreign interference bill, rejects most

He explained the government's rationale during a nearly 2.5-hour long speech.

Matthias Ang | Jane Zhang | October 04, 2021, 09:36 PM

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The Minister for Law and Home Affairs, K Shanmugam, has accepted some of the Workers' Party's (WP) proposed amendments for the bill aimed at countering foreign interference, while rejecting the majority of their proposals.

During his nearly 2.5-hour speech in Parliament on Oct. 4 at the second reading of the Foreign Interference (Countermeasures) Bill, Shanmugam explained at length the government's rationale for doing so.

The bill was first introduced in Parliament on Sep. 13.

On Sep. 29, the WP released a statement saying: "While The Workers’ Party believes in the legitimate need to counter malign acts of foreign interference, we disagree with the current form of the Bill in achieving the said objective."

It added that these amendments aimed to include "oversight of Executive action by the Judiciary" and a more "precise scoping" of the government's powers to "significantly lower the likelihood of abuse of power".

Shanmugam: WP is in agreement with "most of the bill"

Shanmugam said that the WP Members of Parliament are in agreement with "most of the bill", although Leader of the Opposition Pritam Singh asked for the WP Members' dissent to the reading of the bill in Parliament to be recorded.

He also welcomed the WP setting out their disagreements with the bill.

On the proposed amendments that the government partially agreed to, these were:

1. Expanding the definition of Politically Significant Persons (PSPs)

Gerald Giam's amendment

Here, Shanmugam noted that WP MP Gerald Giam had called for the definition of Politically Significant Persons (PSPs) under Clause 14 to be expanded to include the following:

  • Members of Central Executive Councils (CEC) or equivalent of a registered political party in Singapore,
  • A senior public servant holding the office of deputy secretary or above, or its equivalent, and
  • A board member or chief executive of a statutory board or a government company listed on the Fifth Schedule of the Constitution of the Republic of Singapore.

However, he pointed out that for other political parties, their CEC members may not be considered as PSPs.

Definition can include CEC members

Shanmugam said the government could agree to the amendment, specifically for CEC members, and have it added today as the definition would place upon such individuals the following obligations:

  • Having to declare foreign affiliations,
  • Having to declare migration benefits,
  • Capping anonymous donations at S$5,000,
  • Having to declare donations of S$10,000 or more from permissible donors, and
  • No foreign volunteers.

But not the other categories

However, Shanmugam disagreed with expanding the definition to include senior public servants who held a position of deputy secretary or above.

Here, he noted that such individuals were already subjected to requirements more stringent than FICA, such as making annual declarations, including investment, ownership and financial embarrassment.

In addition, no deputy secretary can remain in service if they accept donations that are within FICA's limits, he said.

Shanmugam also disagreed with expanding the definition to include board members and chief executives of statutory boards or Fifth Scheduled companies (e.g. the CPF Board, MAS, HDB, GIC and Temasek) on the grounds that it was "impractical" and not be feasible to designate them as PSPs.

He added, "Board members, well, they will often have foreign members, you ask them to declare all donations received in foreign countries, migration benefits, all their foreign affiliations, doesn't make sense."

Such a requirement will be too "onerous" for companies with foreign directors, he said, and they will have difficulties getting good people.

"So leave it to the companies to choose people have integrity, and our security agencies need to be alert, not just about them but other directors of major companies in Singapore," he added.

2. Making it obligatory for the government to make public countermeasures and designations of PSPs

Leon Perera's amendment

Shanmugam clarified that while the wording in the bill said that the government "may" make public the designations of PSPs and the countermeasures against them, it was the government's intention to do so anyway.

The minister then added that the government agreed to WP MP Leon Perera's proposed amendment to make such a move obligatory and will therefore do so for designations, countermeasures of PSPs, transparency directives and hostile information campaign (HIC) directives.

The exception, he added, will be for technical assistance requirements, as these will be issued during ongoing investigations which the government does not want to inform hostile actors about.

However, Shanmugam pointed out that Perera only asked for two measures to be made public, and not the others concerning prohibition of donations and foreign memberships.

The minister also said that it was not necessary to make public the names of citizens involved in foreign political and legislative organisations however. "A substantial number of these citizens may not be PSPs," he said.

He added that the bill's reporting requirement only pertained to non-PSPs, ordinary citizens, if they were, for example "a member of the Russian Communist Party" or the "UK Conservative Party."

However, he raised the possibility of revisiting Perera's suggestion sometime in the future.

What did Shanmugam reject?

Gerald Giam: Removing some definitions of "directed towards a political end"

On this point, Shanmugam noted that Giam had proposed removing the following two definitions of the phrase "directed towards a political end" in the bill under Clause 8:

  • Influencing or seeking to influence, public opinion on a matter which, in Singapore, is a matter of public controversy, and
  • Influencing or seeking to influence any aspect or to promote or oppose political views, or public conduct relating to activities that have become the subject of a political debate, in Singapore.

In voicing his disagreement with such a proposal, Shanmugam said that Giam's position meant the government should not stop foreigners from interfering to shape public opinion on matters of public controversy, or influence public views on a political debate, regardless of whether deception is involved.

Shanmugam added that there were various scenarios which could fall under the two definitions Giam proposed to remove such as the promotion of solidarity between members of one race or nationality, with the aim of promoting negative feelings towards other races in Singapore, or the promotion of religious piety, so as to influence views in a political debate.

"If we believe that is being done, for example, at the direction of a foreign intelligence agency, with the ultimate purpose of creating divisions within Singapore, shouldn't we be able to act?" he said. He gave the example of a foreign intelligence agency paying someone to support the policies of the WP or the PAP and gradually deepen divisions in Singapore.

Shanmugam also clarified that certain conditions needed to be fulfilled before FICA's HIC Directions can be activated in this instance:

  • Online activity
  • Material is published in Singapore
  • Done on behalf of a foreign principal
  • Public interest in Singapore is likely to be affected

Jamus Lim: Removing some "or is likely to be" phrases

Shanmugam pushed back against MP Jamus Lim's proposed amendments to leave out the phrase "or is likely to be" in several lines of Clause 17, which pertains to clandestine foreign interference by electronic communications activity.

An example of one such line is: "is or is likely to be prejudicial to the security of Singapore or any part of Singapore". Lim's proposed amendment would instead read: "is prejudicial to the security of Singapore or any part of Singapore".

Shanmugam argued that by removing the "is likely to be" phrase, the mental state for offences would also be narrowed.

This would mean that if a case was brought to court, the prosecution would need to prove that the person knew or had reason to believe that their actions would be prejudicial, and it would not be enough to show that it would likely be prejudicial.

"The person could claim, for example, he didn't realise that his posts will be picked up by others and shared around. He didn't know it would be prejudicial. He had no reason to believe so.

This is so, even if we can prove that he took money from a foreign agency to put up the posts for the purpose of damaging Singapore."

"It's really like taking knives to a gunfight," Shanmugam stated.

He rejected several of Lim's proposed amendments for other Clauses — which called for the removal of some form of the line "or is likely to ____" — for similar reasons.

Jamus Lim: Removing phrase "or is suspected of being or having been undertaken"

In Clause 20, Lim proposed that the phrase "or is suspected of being or having been undertaken" be removed from a line that reads: "the online communications activity is or has been undertaken, or is suspected of being or having been undertaken, by or on behalf of a foreign principal".

Shanmugam objected to this, saying that the government "must be able to act on reasonable suspicion, which is a threshold well-established in law".

In practice, he said, this suspicion of links to a foreign principle would likely arise from a lead — such as intelligence or a tip-off — and would then lead to security agencies probing further, gathering data, trying to corroborate the information, and ascertaining if the lead is reliable.

Under FICA, Shanmugam stated, the government would be able to take some measures, including issuing directions to take down harmful content or a must-carry direction in order to let the public know that a hostile information campaign (HIC) is happening.

If the person receiving the direction felt aggrieved, they could appeal to the tribunal, Shanmugam added.

Jamus Lim: Changing to "has evidence or actionable intelligence indicating"

Clause 21, which would allow the Minister for Home Affairs to authorise anticipatory direction in certain circumstances, includes the line " suspects or has reason to believe that a person is engaging in conduct...".

Lim suggested that the line be amended to remove "suspects or has reason to believe", and instead insert "has evidence or actionable intelligence indicating".

"So, what? We now call this agency to come and prove the actionable intelligence?" Shanmugam asked:

"Or we get documents and produce them? There is a process; you can't just produce documents.

And added on to that, Mr. Lim and his colleagues want this to be in court. How do you even prove these documents? How do you put any foreign intelligence agents on the stand? What is actionable intelligence?"

Shanmugam said that in the real-world, tip-offs come from intelligence agencies and certain activities or associations, and are, in the vast majority of cases, less definitive. He also said that if such leads are made public, the friendly sources will immediately disavow whatever they said and thereafter refuse to have contact with Singaporean authorities.

"We need to be practical, not theoretical, in this, with an understanding of how intelligence operations work," Shanmugam said.

He also highlighted another problem with the proposed amendment: the lack of a clear legal standard for what constitutes "actionable intelligence".

Meanwhile, "suspects or has reason to believe" is a term that is well-defined and that lawyers are familiar with, Shanmugam said.

Ultimately, he added, the tribunal will have the right to consider the information made available by the government, and whether the government's conclusion is justified.

He Ting Ru: Appeals heard by the High Court rather than tribunal

Finally, Shanmugam turned to MP He Ting Ru's proposed amendments, which would allow hearings about appeals against decisions made under FICA to take place as proceedings in the High Court.

Under the current proposed Act, the appeals would be heard not by a court but by an independent reviewing tribunal, which comprises a sitting High Court judge and two people outside of the government.

Shanmugam stated that if appeals went through the court process, they would be public hearings, which would not be feasible.

For example, he said, if a foreign agency gave the government a tip-off about someone, there would be no documents to show in court. In addition, it would be unlikely to be able to convince the foreign intel contact to testify in court.

He gave another example:

"Some countries — I'm not saying we do — but some countries have human assets in other countries. Let's say the information is obtained through such a human asset. You want to reveal that in court?

Depending on the country that human asset is in, he may not live for very long after that. And even if he lives, he won't be free."

Even if the court case was held "in camera" — or, in private — this would not solve the problem, Shanmugam said. This is because the evidence must be filed in court, which means that multiple parties will see the files.

If you had highly-secret information, "does it make sense to hand it over to the very person who is a suspect, or to his lawyers?"

"The theory has to fit the practice," Shanmugam stated. "That is why we thought long and hard, and then said, 'Let's have a tribunal headed by a Supreme Court judge who can overrule the minister."

Top photo via MCI.

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