Proposed foreign interference law has proportionality requirement, says MHA in reply to senior lawyer's comments
SINGAPORE: A proposed law on foreign interference has a proportionality requirement, contrary to comments by a senior lawyer, the Ministry of Home Affairs (MHA) said on Sunday (Oct 3).
Senior Counsel Harpreet Singh Nehal made the comments in a Facebook post on Saturday as a response to an article by diplomat Ong Keng Yong and Senior Counsel Stanley Lai that was, in turn, a rebuttal to an opinion piece Mr Singh had originally penned on the proposed Foreign Interference (Countermeasures) Bill (FICA).
In the Facebook post, Mr Singh said that the Bill's language "sets an extremely low bar for the public interest requirement to be met”. He had also said that the Bill does not require “that the specific Fica orders that are issued be proportionate”.
"This is untrue," said MHA.
The ministry highlighted Mr Singh's call in May 2019 for a proportionality requirement in relation to the Protection from Online Falsehoods and Manipulation Act (POFMA), where he was corrected by Senior Counsel Siraj Omar that “a close reading of the Bill suggests that such a requirement already exists”.
The Ministry of Law (MinLaw) had pointed this out publicly to Mr Singh at the time, said MHA.
"MHA’s letter to Straits Times (in May 2019) gave Mr Singh the benefit of doubt and assumed that Mr Singh may not have read the Bill carefully," said the ministry.
"If he did read it (as he now asserts), then in the context of the above facts, readers can draw their own conclusions on Mr Singh’s reasons for making inaccurate assertions - which he himself must know were inaccurate."
Mr Singh had earlier stated in his opinion piece in the Straits Times, published on Sep 28, that FICA, as it is currently drafted, is "problematic" because of its "extremely broad language, restrictions on judicial review and questionable procedural rules".
In his opinion piece, Mr Singh stated that the Bill's definitions of "foreign interference" and "public interest" are so broad that legitimate online activity undertaken by Singaporeans to influence the country's laws and public policies may be subject to a direction by the minister against them, even in the absence of any manipulation or influence by a foreign government or its agents.
MHA then replied to Mr Singh via a letter to the Straits Times on Saturday, stating that his concerns "arise from a basic misunderstanding of the Bill and its provisions".
In its letter, MHA said that the Bill does not apply to Singaporeans discussing issues, or advocating any matter, and will also not cover the vast array of collaborations between Singaporeans and foreigners, on many matters.
"However, if a Singaporean acts on behalf of a foreign principal, and if such actions are contrary to public interest, then directions can be issued to such a person," said MHA, citing an example of a foreign government paying a Singaporean to conduct an online campaign to create discord and unrest.
"If the above involves covert activity, the persons involved can be prosecuted," said the ministry.
It also added that the offences in the Bill relating to criminal conduct are all required to be prosecuted in the courts, contrary to Mr Singh's statement that the Bill restricts the role of the Singapore courts to review some actions.
MHA RESPONDS TO ACADEMICS
Separately, MHA also responded to an editorial that was published on Friday on Academia.sg, a website that was started in 2019 reflecting concerns by academics about POFMA.
Friday's editorial, titled "FICA’s threat to Singapore academia", was signed off by four academics: Dr Cherian George, a media studies professor at Hong Kong Baptist University; Associate Professor Chong Ja Ian of the National University of Singapore’s Department of Political Science; economist Linda Lim and Associate Professor of Sociology Teo You Yenn of Nanyang Technological University.
"The law’s overreach will undermine internationalisation and deepen self-censorship while weakening universities’ resistance against malign foreign interference. Parliament must direct FICA’s powers away from the legitimate and necessary work of academics," the editorial said.
It added that the Bill "casts a broad shadow over activities that academics consider not only legitimate but also necessary: activities involving cross-border collaboration, wide online dissemination, and strong social impact".
Despite academia not being the main target of FICA, "there is every chance it will suffer collateral damage", the editorial went on to say.
"Universities play a valuable role in research as well as in educating the public about malign forms of foreign interference. Stifling them may inadvertently make Singapore more, not less, vulnerable to foreign manipulation."
The editorial highlighted several activities that could be included as "foreign connections": Presenting research at overseas conferences, writing for international journals and multi-author book projects, publishing in and reviewing for prestigious academic presses, participating in international collaborative research projects, partaking of fellowships, visiting appointments, and training programmes; and participation in international funding opportunities.
Activities that are currently encouraged would then suddenly transform into a "legal minefield".
The editorial also noted that FICA does not set out exceptions that even the Sedition Act specifies.
"If even the colonial-era Sedition Act can give a nod to the vital importance of political criticism in a democracy, it cannot be unreasonable to expect FICA to do likewise."
ALLEGEDLY THREATENED ACTIVITIES WILL NOT BE AFFECTED: MHA
In a response to Academia.sg's editorial, MHA said in a Facebook post on Sunday morning that "allegedly threatened activities" highlighted in the editorial would not be affected by FICA.
MHA also listed examples cited by Academia.sg of Singaporean academics involved in “foreign collaborations and online dissemination”, stating that FICA would not hinder any of them.
"FICA would only apply if the Singaporean academic in each of these instances were acting on behalf of a foreign agency to conduct a hostile information campaign online directed against Singapore’s public interest – e.g., to create discord and unrest among Singaporeans," said the ministry.
"Discussion on any number of controversial issues – in foreign journals, in foreign symposia, in foreign universities – will not be touched by FICA."
MHA noted that the academics had also raised concerns for academia when POFMA was first passed, but there has not been any academic paper stopped by POFMA to date.
"Our academics have remained free to pursue whatever research they wish on any subject, neither have the international rankings of our universities been affected in the wake of POFMA.
We are certain that FICA will similarly allow for the same in the future," said MHA.
MHA'S ASSURANCE "INCOMPLETE AND INCONCLUSIVE"
On Sunday afternoon, Academia.sg responded to MHA's reply, describing the ministry's assurance as "incomplete and inconclusive".
"It is incomplete because it addresses only particular stages of academic research, such as journal publication and presentation at conferences. It neglects the fact that research is a long, multi-stage process," it said, highlighting a survey of academics in Singapore that had reported non-academic pressure to change findings even before publication.
Academia.sg highlighted a gap between MHA's statements of intent and non-intent, and FICA’s actual language on the other, taking issue with the need to broadly define key terms in a manner that covers the legitimate work of academics and other active citizens.
"A plain reading of FICA’s language amounts to a powerful statement of discomfort with debates on controversial issues. It will feed into a culture that already strongly discourages critical, public-facing academic work, encouraging further self-censorship by university administrators," it said.
"We hope these concerns are not swept aside in the haste to legislate against malign foreign interference."
FICA will be debated when Parliament sits on Monday.