Walking The Fine Line Between National Sovereignty and The Rule of Law with FICA

By Sia Xinyu


https://twitter.com/mhasingapore/status/1437328957867585543/photo/1


What is FICA?


On 4 October, a new law against foreign interference was passed in the Singapore Parliament just three weeks after the legislation was tabled. The Foreign Interference (Countermeasures) Act was introduced to prevent, detect and disrupt foreign intervention in domestic politics through Hostile Information Campaigns (HICs) and the use of local proxies. [1]


FICA was created to address the ever-growing threat of influence operations, which has only been exacerbated by the growth of new mediums of the internet and social media. A particularly infamous example of manipulation of public opinion includes the 2020 US Presidential Elections, where foreign actors had established troll farms to stir up controversial domestic issues and to promote or run down certain candidates. [2]


FICA aims to provide the government with the legislative levers to strengthen detection and response capabilities to such threats. Key segments of the legislation include:


  1. Allowing the Minister for Home Affairs to issue directions to media entities for the purposes of obtaining information on foreign interference operations, preventing HIC activities, and swiftly blocking the propagation of harmful HIC content. [3]

  2. Allowing the Minister to issue a Technical Assistance Direction (to disclose information required for authorities to investigate the source of harmful communications activity) and Account Restriction Direction 3 (to suspend or terminate an account’s ability to communicate with Singapore end-users) on an anticipatory basis. [4]

  3. Introducing the offence of conducting clandestine foreign interference by electronic communications activities, as well as the power to proscribe an online location that is a purveyor of HIC content. [5]

  4. Allowing authorities to direct any authorised newspaper, licensed media outlet, or PSP (“Politically Significant Persons”) to disclose the particulars of any foreign author(s) and/or foreign principal for whom the article or programme is published. [6]


FICA and the rule of law


While FICA’s main aim is to protect Singapore's sovereignty, there has been much criticism about its “ouster clause” in section 104: it states that decisions of the Minister, a Reviewing Tribunal, or an alternate authority are final and cannot be challenged by judicial review, except in regard to compliance of procedures. [7] Adjunct Professor Kevin Tan explains that this may be seen as “unconstitutional” for “(impinging) on the judicial power of the court under Article 93 of the Constitution”. [8]


Instead, FICA substitutes standard judicial process with a tribunal court headed by a Supreme Court judge, which will handle appeals against directions to counter HICs. Minister for Law and Home Affairs K Shanmugam maintained that directing FICA cases to the High Court was “not ideal”, as there could be serious consequences from the high risk of sensitive information leaks. [9]


He also acknowledged while there could be a risk of FICA being abused by a rogue government, [10] the risk of rogue foreign interference is still far greater and much more dangerous and hence outweighs the downsides of the Act.


What’s next?


Professor Simon Chesterman proposed two alternative options to the tribunal court, namely creating a modified court procedure and setting up an independent specialised court. [11] These methods could address security concerns, while also providing an avenue for the judiciary to correct excessive executive powers if needed.


With FICA being officially passed, it is now time to observe if the Government will direct the Act to succeed in what it has set out to achieve and if it will respect judicial oversight and the rule of law as far as possible.





References:

[1] Ministry for Home Affairs (MHA), Summary Factsheet on the Foreign Interference (Countermeasures) Act, para 1

[2] Ibid, para 4

[3] Ibid, para 10

[4] Ibid, para 12

[5] Ibid, para 14

[6] Ibid, para 18.b

[7] Foreign Interference (Countermeasures) Act 2021, s 104(1)(b)

[8] Lim Min Zhang, Justin Ong, ‘Law against foreign interference: Who checks the checkers?’ The Straits Times (Singapore, 9 Oct 2021)

[9] Ibid.

[10] Lim Min Zhang, ‘Risk of foreign interference 'far greater' than risk of Govt abusing its powers: Shanmugam’ The Straits Times (Singapore, 4 Oct 2021)

[11] Ibid.