Separation of powers, rule of law fundamental principles but need to ‘look at what works’: Shanmugam
SINGAPORE — Singapore will not be where it is today if the People’s Action Party (PAP) Government did not uphold the fundamental principles of separation of powers and the rule of law, but it is necessary to “get out of this colonisation of our minds... (and) look at what works”, said Home Affairs Minister K Shanmugam on Monday (Oct 4).
- The Foreign Interference (Countermeasures) Act was passed into law after an almost 11-hour debate
- The debate saw Workers’ Party MPs moot amendments to the law, including a key push for judicial review by the courts
- Home Affairs Minister K Shanmugam said he agreed with the party on the principles but exceptions need to be made in some situations
- Most of the party's proposals were rejected except for one
- 11 parliamentarians voted against the Bill and two Nominated MPs abstained from voting
SINGAPORE — Singapore will not be where it is today if the People’s Action Party (PAP) Government did not uphold the fundamental principles of separation of powers and the rule of law, but it is necessary to “get out of this colonisation of our minds... (and) look at what works”, Home Affairs Minister K Shanmugam said.
Mr Shanmugam was responding on Monday (Oct 4) to the Workers’ Party (WP) as he wrapped up a marathon debate on the Foreign Interference (Countermeasures) Act, or Fica. The debate started around 12.30pm and ended almost 11 hours later.
In that time, Leader of the Opposition Pritam Singh and several fellow WP Members of Parliament (MPs) spoke at length on the opposition party’s key proposal: For judicial oversight of the new law.
Mr Shanmugam said that the PAP Government agrees with WP on the importance of the principles but it differs on where exceptions need to be made.
“Executive powers must be subject to checks and balances. The question is in what form, and that depends on what is appropriate for the situation,” he said.
The Bill to enact the new law was passed on Monday with 75 MPs voting for it and 11 voting against it. All WP MPs, as well as Non-Constituency MP Leong Mun Wai from the Progress Singapore Party, voted against the Bill. NCMP Ms Hazel Poa from the Progress Singapore Party was absent and two Nominated MPs Tan Yia Swam and Shahira Abdullah abstained from voting.
The Government rejected most of WP’s proposed amendments to the Bill, with some exceptions. Notably, it accepted the party's call for members of political parties’ top decision-making bodies to be designated as “politically significant persons”.
This amendment will compel the parties’ Central Executive Committee (CEC) members to declare their foreign affiliations and impose an anonymous donation cap of S$5,000, among other obligations under Fica.
Mr Shanmugam said in his opening speech: “We did consider CEC members as well as branch secretaries to be included. But we left it out because on the side of the People’s Action Party, to comply with this is not going to be difficult, because all except two of the CEC members are (politically significant persons) anyway.”
Since the WP has mooted it, even though it would be more onerous on opposition parties, Mr Shanmugam said that the Government can agree to the suggestion.
The WP MPs had also argued that having the Supreme Court conduct judicial reviews on Fica, instead of a tribunal under the executive branch of government, would ensure the proper separation of powers as well as a system of checks and balances on how executive powers under Fica are exercised.
Mr Singh referred to Mr Shanmugam’s past parliamentary statements as a backbencher MP advocating for more checks and balances in a 1989 debate on a Bill proposing to amend the Singapore Constitution.
Then, Mr Shanmugam had warned about amendments that would deny the courts the power to interfere in decisions regarding detentions to protect Singapore’s national security.
Mr Singh said: “If you asked me, on balance, should a court at least review the decision of the minister, and should judicial review be allowed to be captured in its entirety by a court of law, I think the answer is 'yes'.”
In response, Mr Shanmugam said: “Let's get out of this colonisation of our minds. Let's look at what works, what is fundamental. Checks and balances are important, but what is wrong with the checks and balances we’ve built in here?”
He added that his own views on the need for checks and balances have changed over time, when he joined the Government and saw how laws are meant to operate and where exceptions have to be made.
Earlier in the day, during his speech to open the debate, Mr Shanmugam had noted 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 reviews.
Fica does not substantively enhance the Government’s powers to counter foreign influence threats, Mr Shanmugam said.
“While we give ourselves legal powers, in reality, the kind of threats we face, the kind of adversaries and the resources they have in terms of manpower are far greater than what we have,” he added.
WP MP Jamus Lim from Sengkang Group Representation Constituency (GRC) questioned how the Government could determine that it experienced influence operations from a foreign country in 2018, when Facebook said last week that it did not find any cases of foreign influence operations targeting Singapore since 2017.
Mr Shanmugam said that the social media giant had denied something only to reverse it later on, and that he cannot take what Facebook says at face value.
“Does Mr Lim think that a responsible state authority should outsource the way it handles law and order to Facebook, whose primary concern is how much money it can make?” the law minister asked.
KEY POINTS AND PROPOSALS RAISED BY WP
1. Accountability through judicial oversight
Mr Singh argued that the “exceptional executive power” of the new law necessitates a robust oversight mechanism to ensure accountability and prevent the abuse of power.
As such, WP contended that Fica’s reviewing tribunal, which lies within the executive branch instead of the legislative, had “quasi-judicial powers” and called for the High Court to hear appeals to ensure the proper separation of powers. These proceedings can also be held behind closed doors if needed due to national security implications.
The party also contended that the draft essentially imposes a clause that ousts a judicial review of the legality of the Government’s decision under the law, with WP’s He Ting Ru quoting PAP’s Bukit Batok MP Murali Pillai’s amendment motion earlier this year that the “sunlight of scrutiny” is needed on executive powers.
Clarifying this point, Mr Murali said that when he called for a review of ouster clauses in March, they should be retained for laws that concern national security such as Fica.
Ms He, a Sengkang GRC MP, also argued that a tribunal had a “narrow scope” and would not be able to consider appeals on the substance of the Minister of Home Affairs’ orders under Fica.
In a closing speech on the Bill, Mr Shanmugam said in rejecting WP’s proposal that the party did not consider the possibility of leaks both from open and closed court hearings, or that a reviewing tribunal will be chaired by a High Court judge.
“The tribunal can consider any appeal brought against a (Fica) direction. And there can be a review of the merits of the decision. It’s not confined to procedural compliance or legality. The tribunal — chaired by a Supreme Court Judge — will look at sensitive intelligence and information,” he said.
2. Public consultation and involvement on Bill insufficient
Mr Singh said that during the debate into the Ministry of Home Affairs' budget earlier this year, former Second Home Affairs Minister Josephine Teo had said that the Government needed to consider more measures against foreign interference, and that “the public has a big part in this to shape proposals and to give the eventual safeguards their strongest support”.
However, in the six months that followed, the Government did not hold any public consultation on the Bill and the public did not play a part in shaping it.
WP also argued that there is a relative lack of non-legislative levers to address the threat, such as public education, despite a 2018 select committee hearing on fake news that emphasised its importance.
Mr Gerald Giam, WP MP for Aljunied GRC, said that such frank and open discussions on the tactics deployed in foreign interference operations are needed, otherwise “Fica may be like cutting off the head of the mythical Hydra, as a new head will grow again until Singaporeans are convinced that they have been deceived”.
In response, Mr Shanmugam said that WP had misread Mrs Teo’s statement, that she was referring to the extensive consultations with stakeholders such as students, internet companies, security experts and academics since the 2018 public hearings on fake news.
He added: “This (Bill) is not the end, it’s the beginning. We will face a major attack at some point and we need to bring the entire society together… we need to do a lot more to shape public thinking, so there is a long haul ahead of us and the public has to be involved in that.”
3. Fairness of Fica affected by broad scope, low thresholds of proof
Mr Leon Perera, also an Aljunied GRC MP, argued that Fica overreaches by giving the executive government too much power to act “based on suspicions about likely eventualities rather than evidence, and with no obligation to state reasons publicly”.
The language of the Bill should thus reflect its intent, and not just verbal assurances by the authorities.
Associate Professor Jamus Lim said that most activities could be “innocuous, frivolous or unfiltered rants of a troubled mind”. However, in order to not run afoul of Fica, normal people would need to predict whether the information they communicate will affect security, public good, domestic harmony or international relations.
Assoc Prof Lim said: “With the possibility that Fica would criminalise collaboration in circumstances where… provable intent is hardly concrete, we cast a pall over the internationalism of our nation and the globalised identity of our citizens.”
Referring to WP’s amendments to strike out ambiguous wording in the Bill, Mr Shanmugam said the key is that the authorities must be able to act on reasonable suspicion, which is a “threshold well established in law”.
The person targeted by Fica directives, if aggrieved, can appeal to the tribunal.
4. Fica does not do enough to prevent foreign influence on governing elite, abuses of power
Mr Giam had suggested that senior civil servants, as well as chief executives, board members of statutory boards and government-linked companies such as GIC and Temasek Holdings, be registered as politically significant persons under Fica.
Mr Perera then pointed to a clause in the new law requiring reports on foreigners volunteering in political capacities. He questioned whether grassroots volunteers for the People’s Association are covered, given that they work with grassroots advisers who are MPs or individuals associated with PAP.
Mr Perera also noted that a foreign actor bent on interference will have sway on Singapore's politics if they can bring the Prime Minister or Cabinet ministers under their influence, suggesting that a previous president of the United States could have been subverted by a foreign power.
“Who checks the checkers?” he asked.
Rejecting WP’s suggestions, Mr Shanmugam said in his opening statement that senior civil servants are already subject to a stricter set of obligations than Fica, such as a ban from trading or doing business without explicit permission.
They must also make annual declarations of their investments, ownership and any cause of financial embarrassment.
As for Mr Perera’s suggestion, Mr Shanmugam said in closing the debate that the US Supreme Court did not intervene in the case of the US. Ultimately, it is the people who provide the checks and balances, he said.
“Anytime there is abuse, there is corruption, there is a lack of probity, there is a performance deficit, trust will dissipate. And I believe in Singapore, it will dissipate very quickly,” he added.