Draft law grants new extraterritorial powers to pursue overseas actors, online platforms: Shanmugam

• Home Affairs Minister K Shanmugam was speaking during a debate on a proposed Bill tackling foreign interference
• He set out how the draft laws will go beyond existing legislation to clamp down on foreign bad actors
• He also explained why appeals will be seen by an independent tribunal rather than heard in open court

SINGAPORE — Under a proposed law aimed at discovering and preventing foreign interference in Singapore, the Government would be granted extraterritorial legal powers to clamp down on overseas actors and global online platforms that carry out online interference campaigns, something which it cannot do under existing laws.

This would mean that, should the Bill to enact the Foreign Interference (Countermeasures) Act (Fica) be passed, the authorities would be able to proscribe social media websites and applications based overseas that are suspected of interfering with domestic politics, Law and Home Affairs Minister K Shanmugam said in Parliament on Monday (Oct 4).

To illustrate how Fica will go beyond existing laws that deal with foreign interference, he gave the example of a Singaporean company that is discovered to be working for a foreign intelligence agency to put out social media content aimed at creating strife among the ethnic groups here.

Right now, action can be taken under the Internal Security Act, where the case will be reviewed by a tribunal under the Act.

Should the content posted cross the threshold of other laws, a criminal investigation can also be initiated, and information about the company’s activities and staff members can be obtained through the Criminal Procedure Code, Mr Shanmugam said.

With Fica, the Government would be able to go further and issue directives to technology companies to disable access to the content put out by the company in Singapore, or restrict the accounts from broadcasting their content to users here.

Social media platforms can also be required to provide information to support investigations into the suspected online interference campaign, even if the data is outside of Singapore’s jurisdiction.

This is something that the authorities cannot do now under the Criminal Procedure Code.

Fica would also enable the authorities to charge and prosecute the company and its officers for clandestine foreign interference, Mr Shanmugam said.

Addressing concerns raised by Members of Parliament and observers on how investigations under Fica will go to an independent tribunal rather than be seen before the courts, Mr Shanmugam said that this has been done to protect sensitive information that may be relied on to make a decision.

“For example, we may determine foreign interference based on a tip-off of sensitive information shared by a counterpart security agency, and the consequences of a leak would be very serious.” 

Elaborating on this, he added that should such matters be heard in public in court, evidence would need to be presented and it is unlikely that the foreign agents who provided the tip-off would attend court to provide evidence.

And in cases where highly sensitive information regarding national security is concerned, Mr Shanmugam said that it would not make sense to hand over the information to the suspect and the suspect's lawyers, which would be necessary if the appeal were to be heard in an open court.

“The theory has to fit the practice,” he said. “That is why we thought long and hard, and then said that a tribunal headed by a Supreme Court judge who can overrule the minister (is more fitting),” he said.

“The courts still have a role to play… they will ensure procedural compliance, proper exercise of jurisdiction, but they will not review the merits and other aspects of executory decisions taken under the Bill.”

JUDICIAL REVIEW

Mr Shanmugam said that like Fica, many of Singapore’s existing laws that deal with foreign interference, either do not allow for judicial review or impose limits on such review.

For example, an individual or company suspected of being a foreign agent can be detained without trial under the Internal Security Act.

Section 20 of the Criminal Procedure Code can also be used to conduct investigations and obtain information on the individual or company — this is not a new power under Fica, he said.

The case will then be heard by a tribunal under the Internal Security Act, not in the High Court, unless the Internal Security Department decides to make it public.

And this applies whether the acts were done online or in-person, Mr Shanmugam said.

He added that there are limits to judicial review in relation to directions issued over foreign interference under both the Broadcasting Act and the Telecommunications Act.

He also cited the example of Section 39A of the Immigration Act, where there was no judicial review available for any decision made by a government minister or controller, except in relation to procedural compliance.

The Employment of Foreign Manpower Act also included provisions where decisions made were not subject to judicial review, he added.