Law against foreign interference: Who checks the checkers?

Time will tell whether Fica is used as intended.
Time will tell whether Fica is used as intended.ST PHOTO: KUA CHEE SIONG

SINGAPORE - Hours into a lengthy, testy Parliament debate over the merits of a law against foreign interference in Singapore, it was clear that contesting arguments across the aisle were converging on a somewhat esoteric but essential dynamic: one between law and order; court and government; judiciary and executive.

This, said Home Affairs and Law Minister K. Shanmugam that day, was the "crux of the difference" between the ruling People's Action Party Government and the Workers' Party (WP).

Leader of the Opposition Pritam Singh described it as a "fundamental disagreement" between the parties - and relating to the role of the courts in reviewing or even revoking the Government's exercise of powers.

The Foreign Interference (Countermeasures) Act, or Fica, was passed on Monday (Oct 4), three weeks after it was tabled in Parliament. It aims to combat foreign interference in domestic politics, through giving the Government powers to block content, remove apps, and proscribe an online location to demonetise it, among other things.

A clause in the comprehensive, 189-page legislation states that decisions by the minister for home affairs, an alternate authority or a tribunal to hear appeals are final; and cannot be quashed in any court except with regard to compliance with procedures.

In legal terms, this is called an "ouster clause" - a provision included in a law to exclude judicial review of decisions by the executive.

Is Fica the latest legislation to erode the judiciary's powers of oversight, as critics have claimed? To what degree is the ouster clause justified in this instance, when highly confidential matters of national security are involved?

Legal scholars, former MPs and political observers agree that the key question is how the real threat of foreign interference can be tackled without unnecessarily constraining legitimate activities, or relying too much on government benevolence.

They say time will tell whether Fica is used as intended - to protect national sovereignty from foreign threats - or whether it will be used to quash criticism and healthy discourse from foreign academics and commentators, although the Government has said such criticisms will continue to be allowed.

Tribunal or Court?

The key contention is how big a role the courts will have to review the minister's use of various powers granted under the Act.

In her speech during Monday's debate, WP MP He Ting Ru noted that the clause in question - Section 104 - means no decision under Fica can be challenged through the process of judicial review, except on very narrow grounds of purely procedural compliance, with the Act not being properly followed.

What Fica provides for is a reviewing tribunal to handle appeals against directions to counter hostile information campaigns. The tribunal is headed by a Supreme Court judge, and has the power to overrule the minister.

Mr Singh said the most critical issue at hand was the "high level of executive power" introduced by Fica, "which demands that there must be strong oversight mechanisms, namely our courts".

When it was put to him that sensitive information pertaining to national security could be leaked during an appeals process in court, Mr Singh countered that there could be leaks in a reviewing tribunal as well.

"If you ask me, on balance, should a court review the decision of the minister, should judicial review be allowed to be captured in its entirety by a court of law, I think the answer is 'yes'," he reiterated.

Earlier, the WP chief cited how Mr Shanmugam, while a backbencher in 1989, had spoken out against an amendment to the Internal Security Act that sought to abolish appeals in reviews of cases.

Mr Singh said: "Insofar as Fica is concerned and as it is drafted with the limited judicial review clause, what we are taking away is precisely what the minister was warning about in 1989 - illegality, irrationality are not grounds for the judicial review consideration in this Bill, only procedural impropriety."

Typically, in judicial reviews of executive action, lawfulness is understood as the legality of the decision-making process, Associate Professor Eugene Tan from Singapore Management University's law faculty tells The Straits Times.

For example, depending on the allegations, the courts will examine whether the procedural requirements imposed by law have been strictly followed - what is known as "procedural propriety".

The courts could also see whether the authorities had acted "irrationally" or misused their powers, Prof Tan says. This includes taking into account an irrelevant consideration, such as the person being a political rival or no evidence of a person being a national security threat.

In his response to Mr Singh on Monday, Mr Shanmugam said he takes the concept of separation of powers very seriously. "We imbibed this in law school... I believe in it, and I believe we try and uphold it.

"So any time when there is an approach that seeks to cut back on judicial review, or take away the powers of the judiciary, my instinctive reaction is negative.

"I don't like it, I don't want to do it and I instinctively try and see if there is a different way of doing it."

But Mr Shanmugam maintained that going to the High Court for Fica was not ideal in view of the serious risks and consequences of leaks of sensitive information. Such information could be known only to two or three people, with the minister himself not privy unless necessary, he said during the debate.

He later concluded: "If we can find a better model, I'll be the first one to do it. Tell me a better model."

Adjunct Professor Kevin Tan of the National University of Singapore's (NUS) law faculty, who specialises in constitutional and administrative law, agrees that while laws need to be grounded in reality, "contingency and exigencies cannot unilaterally trump the rule of law".

This requires that powers be separated between the various branches and that an independent judiciary is sole adjudicator of what the law requires, he says.

National security is the only area where the courts here have made an exception with respect to judicial oversight, since the decision is primarily a political rather than a legal one, he adds. "Nevertheless, if it is shown that the minister has abused his power or failed to properly consider the relevant facts before ordering a detention, the courts will step in. In this case, it is the courts that decide that they have limited competence in dealing with specific matters.

"Executives around the world will always want to limit judicial review; nothing new here. It is left to be seen how the courts push back.

"In my view, this attempt at circumventing judicial review is unconstitutional since it impinges on the judicial power of the court under Article 93 of the Constitution."

Prof Eugene Tan says it is more of an open question whether Fica's provision for limited judicial review will be held by the courts as unconstitutional.

"Ouster clauses are not always unconstitutional. It is correct that they are potentially in breach of Article 93, but our apex court has also ruled that an appropriate ouster clause would be lawful and given effect to," he notes, adding that a challenge would first need to be mounted on the constitutionality of Section 104 for the courts to rule on it.

Are there alternatives?

Alternatively, a specialised court could be constituted. ST PHOTO: JASON QUAH

On whether there were other options that could have been considered, Professor Simon Chesterman, dean of the NUS law faculty, says a modified court procedure might satisfy security concerns.

"There is already provision for in-camera hearings, meaning proceedings are not open to the public. This is done for vulnerable witnesses, for example. The normal court system also deals with, among other things, violations of the Official Secrets Act," he says.

Alternatively, a specialised court could be constituted. "That's how it's done in the United States, for example, where the Foreign Intelligence Surveillance Court is a special federal court with judges appointed by the Chief Justice," says Prof Chesterman.

This operates like a normal court, but in a manner that is generally closed to the public - precisely because it handles national security information when approving investigative actions for foreign intelligence purposes, he explains.

While Prof Eugene Tan believes that concern over potential leaks of national security information is legitimate, he favours robust "workarounds" instead of a tribunal.

Other than in-camera hearings not open to the public, any court documents for the defence counsel can be carefully redacted, with the courts having full access to unredacted documents.

"What we have under Fica is judicial oversight that is heavily circumscribed," he says, describing Section 104 as "the most elaborate and comprehensive ouster clause in our statute books".

But Mr Ong Keng Yong, executive deputy chairman at the S. Rajaratnam School of International Studies, says a tribunal is necessary, given the covert nature of foreign interference methods.

"The uncovering of these tactics is necessarily a matter of security and intelligence, and our agencies concerned would not want their tricks of the trade exposed," he says.

In the run-up to the Fica debate on Monday, Mr Ong, a lawyer by training and Ambassador-at-Large at the Ministry of Foreign Affairs, had co-authored with Senior Counsel Stanley Lai a rebuttal to an opinion piece by Senior Counsel Harpreet Singh Nehal expressing concerns over the legislation - including its restrictions on judicial review.

"Civil society and academics have different opinions and different threat perceptions but that does not mean the Government's way of dealing with the challenges is sinister and driven by personal ambitions of certain political leaders or civil servants," Mr Ong adds.

Mr Shanmugam, in his speech opening the debate on the Bill on Monday, had described Fica as representing "the best balance that we can find between dealing with the risks and providing checks against abuse".

But some contend that the law tips the equilibrium heavily in favour of the authorities.

Prof Eugene Tan says: "To be clear, the Government is responsible for and the domain experts in countering foreign interference. A call for more judicial oversight does not seek to usurp the executive's role at all.

"The courts are only concerned about the lawfulness of the executive's action, and they have consistently demonstrated that they will duly defer to the executive in matters which are properly the province of the executive."

Former PAP MP Inderjit Singh says it is a case of the Government believing that having the balance "tilted towards them" would enable fast and decisive action against foreign interference.

At the same time, he warns that Singaporeans who actively contribute to a range of global issues - that could one day be linked to domestic policy and legislation in the Republic - may be spooked by Fica, notwithstanding the difficulty of actually proving foreign interference.

"We will be left to the views of a very narrow group of people who may seem to be from the same side," he says.

He adds that independent judicial review could prevent such a scenario - and even go some way towards bolstering the Government's credibility and trust levels.

"Time will tell whether the balance is right."

It boils down to trust

During Monday's debate, Mr Shanmugam had raised a familiar point: Singaporeans' high trust in the Government, compared with other societies. PHOTO: MCI

During Monday's debate, as Mr Shanmugam sparred with lawmakers over the trade-offs between judicial oversight and executive powers, he raised a familiar point: Singaporeans' high trust in the Government, compared with other societies.

"Trust depends on how you exercise your power and your track record. Trust depends on whether people's lives have really improved and whether you work to improve people's lives," he said.

"Trust depends on whether you have the courage of your convictions in the face of some opposition to say 'this is the right way, this is the way I will explain and I will do it for the benefit of people'."

WP MP Leon Perera took a different view. "If we put in place laws that are a little bit more balanced along the lines that we've argued today in Parliament, that might possibly increase the trust levels that we have here?" he said.

Mr Shanmugam disagreed, saying: "You have to ask, is it really going to? Or is it actually going to affect the performance of the Government in such a way that actually, trust will go down?"

That Singaporeans register high trust levels in an honest, responsible Government should not be taken as a natural state of affairs, observers say.

"Even if we accept the PAP Government will not abuse power, we must ensure laws are made in a manner that will not become the tools of abuse by future governments that may not be a PAP government," says Mr Inderjit Singh.

"The balance of power must be something that has to be regularly reviewed and changed. We cannot use past successes to project into the future reality."

Prof Kevin Tan adds: "I may trust this minister but not the next one. Rules cannot be left up to chance - the Constitution is there to protect the people in the event that virtue eludes our leaders."

In fact, Prof Eugene Tan argues, checks and balances by an independent body do not limit government powers. On the contrary, they further them by allaying nagging concerns and fears in the population over whether such powers are misused.

Mr Shanmugam himself warned on Monday that "any time there is abuse, there is corruption, there is lack of probity, there is a performance deficit, trust will dissipate".

As Fica is enacted in the months ahead, the onus is on the Government to live up to these yardsticks.

"Performance" will naturally be measured by how it tackles the threat posed by foreign interference to Singapore's national security and sovereignty.

More concrete steps must also be taken beyond legislation, in other compartments of the toolkit against foreign interference.

As experts and the Government have repeatedly acknowledged, building ground-up resilience through education, literacy and critical thinking is the best defence there is. Singaporeans will be all the better for making their own choices - instead of being told how or how not to.