Journalists and press freedom groups in South East Asia have roundly condemned the Foreign Interference (Countermeasures) Bill (FICA) recently introduced in the Singapore Parliament.
Like so many laws adopted by authoritarian governments in the post-Trump era, FICA is yet another ruling superficially aimed at one purpose while, in reality, potentially wreaking havoc in other areas. Without overstatement, it has been described as a ‘legal monstrosity with totalitarian leanings’.
At face value, FICA is directed to challenge and disrupt endeavours designed to interfere with Singapore’s internal politics and civil society. The unstated but obvious target of the Act is the Chinese Communist Party, increasingly notorious for its recent overseas influence activities which are often coercive or underhand and which have been described as becoming ‘more brazen and aggressive’. No reasonable person could object to a responsible government arming itself to protect the public interest by enacting laws to push back against acts of foreign interference - especially covert interference.
So far so uncontentious. Of course, the task for liberal democracies when confronted by the real threat of foreign interference is to develop balanced legislation that addresses the undesirable foreign influence but which, at the same time, does not curtail legitimate political activity.
Criminalising legitimate political activity
The FICA bill as presented, however, goes much further than that. Conveniently for the authoritarian inclined Singapore government, it does double duty. On the one hand, it is directed at the discouragement of political inference from an overseas country (eg: China). On the other, it has the potential to criminalise what ordinarily would be regarded as legitimate political activity. So broad are the impugned activities caught by the bill that they arguably extend to catch all manner of human rights defenders, international NGOs, media, journalists’ organisations and press freedom groups and LGBTIQ groups.
So long as the ‘objectionable’ political activity is undertaken in ‘collaboration with the foreign principal’ - itself a wide and ill-defined category - it may be caught by FICA. Accordingly, a regional press freedom campaign critical of repressive legislation and calling for the repeal of laws such as FICA and its notorious stablemate, the Protection from Online Falsehoods and Manipulation Ac (POFMA), may expose its proponents to prosecution. Such activities could readily be characterised as ‘foreign interference in Singapore’s domestic affairs’.
Singapore Law Watch has warned of the dangers inherent in the law as drafted, noting that ‘even open, non-clandestine "collaboration" between a Singaporean and any ordinary, private foreign citizen to improve any aspect of our laws and public policies constitutes "foreign interference", notwithstanding the absence of any foreign state manipulation or foreign funding.’
Critics point to a wide range of public policy issues that are currently, or which may in future become, the subject of political debate in Singapore which for entirely legitimate reasons involve collaboration with international expert bodies and, especially, NGOs. These issues could include climate change, trade policy and immigration, rights of guest workers, social issues such as women’s and LGBTIQ rights, international taxation and economic policy.
Wide discretion to act upon suspicion
A weighty and dense document of 127 Clauses [249 pages], the FICA bill has all the appearances of a complex, yet painstakingly crafted law. However, appearances are deceptive. The key sections of this bill do not sketch precise and carefully framed protections designed to minimise the state’s intrusion. On the contrary, the operative sections invest an extremely wide discretion in the Minister authorising himself, in some cases, to act upon nothing more than his ‘suspicion’. His mere ‘suspicion’ is conclusive - a state of mind which cannot be called into question by any appeal mechanism.
While it claims to be inspired by the Australian Foreign Influence Transparency Scheme Act 2018, it is almost twice the length with a far wider reach and, arguably, raises real threats to ordinary political activities in a way that the Australian law does not.
Human rights defenders in Singapore have done a great service in the short time since the Bill was tabled in dissecting and analysing this legal minefield. One of the many key practical concerns is the fate of any Singaporean independent media or NGOs under FICA. Will overseas assistance from NGOs render them subject to the FICA? Would Singaporeans who provide financial support to these organisations also be caught by FICA?
Proposals such as this are, unfortunately, all too familiar. The common justification parroted by proponents of such legislation is that they do no more than pick up laws that have been enacted in democratic nations. This law is a case in point since the adoption of the Australian foreign interference legislation has been prominently called in aid to support FICA. A detailed, section by section, comparison of the FICA and the Australian legislation serves only to underscore the serious misgivings of FICA’s critics.
Masking authoritarianism with fake news statutes
The Trumpian remonstrance against ‘fake news’ was just the opening that authoritarians of all stripes welcomed as cover for their dishonourable politics. With shameless haste, fake news statutes were adopted by the Najib government in Malaysia and of course, in Singapore’s still contentious POFMA - Protection from Online Falsehoods and Manipulation Act.
Convenient rationalisations to the effect that the law does no more than mimic respectable international counterparts have a long and disreputable history. When the now-notorious Electronic Information and Transactions (ITE) Law was introduced in Indonesia in 2008, by the government of Susilo Bambang Yudhoyono, it was represented as a simple but necessary technical ‘tweak’ to permit the regulation of the (then) new phenomenon “e-commerce”. It was claimed that in an age of digital communications and free trade, all modern countries needed such a law.
In a ‘pre-echo’ of the current criticism of FICA, Indonesian and regional NGOs and press freedom groups warned that the proposed law, far from merely regulating e-commerce, introduced an extended range of vague and imprecise offences with draconian penalties. All manner of “insults” including blasphemy were caught by the law. And as proved to be the case, any electronic communication can be caught by the law including personal emails and blogs. These groups were proved right and the government’s blandishments, hollow.
Critics of FICA also queried the speed with which the bill was being pushed through Singapore’s Parliament.
Notwithstanding these concerns, the bill was enacted into law by the Singapore Parliament on October 5. The Minister for Home Affairs and Law, K. Shanmugam asserted that the legislation was necessary to address a “serious threat” to national security. In his speech supporting the bill, far from allaying his critics' fears, the Minister seemed to confirm them. His remarks were not directed to FICA offering protection against the propaganda efforts of the CCP, but on that well known international bogeyman of modern authoritarians and the ultra-right - the philanthropist, George Soros. Soros, of course, is the enemy of the modern populist champions of ‘illiberal democracy’, most notably Viktor Orban.
Prominent critic of the FICA legislation, Kirsten Han, has correctly stated that the approach of authoritarian leaders has been to weaponise terms like “foreign interference” to discredit both domestic and international critics and curb civil liberties. Minister Shanmugam’s remarks give us no reason to think otherwise.
The FICA legislation is so potentially broad in its impact that - even if not triggered immediately - despite the ‘serious threat’ claimed by the Minister, it will sit in the background - an ever-present threat to chill criticism of Singapore’s further authoritarian turn.
Jim Nolan is the International Federation of Journalists’ pro-bono legal counsel for the Asia-Pacific and a regular legal observer on key cases in the region.