Summary of FICA

The Foreign Interference (Countermeasures) Bill, or FICA, is ostensibly aimed at protecting Singapore’s political sovereignty from foreign influence or intervention. The proposed legislation targets not just hostile information campaigns conducted on behalf of foreign actors, but also covers political affiliations, donations, and the management of gifts and arrangements with “politically significant persons”.

Wide-ranging definitions

The extremely broad definitions contained within FICA serve as a catch-all for a wide range of activity, with serious ramifications for multiple stakeholders and sections of society, including academia, business, civil society, and the media.

For instance, the definition of engaging in conduct on behalf of any foreign principal — defined to include anyone who isn’t a Singaporean citizen, as well as any foreign government, legislature, political organisation or business1 — includes any activity that takes place with funding from, in collaboration with, or “under an arrangement” with that foreign principal.2 An “arrangement” encompasses formal arrangements such as written contracts, as well as unwritten agreements.3 Based on this, a local NGO co-hosting an event with a foreign embassy or company could also be deemed to be acting on behalf of the foreign principal, regardless of whether any money has changed hands.

The meaning of conduct being “directed towards a political end in Singapore” includes seeking to bring about changes to the law, or to influence matters of public controversy or political debate.4

This is incredibly broad and can apply to a wide range of activities, including legitimate advocacy work undertaken by civil society organisations and activists, as well as journalistic reporting and analysis or opinion pieces.

Due to its focus on hostile information campaigns, much of FICA also relates to “electronic communications activity”, which is, again, expansively defined to include all sorts of communication, whether via SMS, MMS, social media, or any relevant electronic or internet access service.This even includes sharing a URL or IP address.5

What can the government do? A break-down.

Part 2 of FICA criminalises “clandestine” electronic communications on behalf of a foreign principal, and stipulates heavy penalties. Under Section 17, an individual who publishes material “likely to be directed towards a political end” in Singapore on behalf of a foreign principal can be fined up to S$50,000 and/or imprisoned for up to seven years, if this activity is covert” or involves deception.6 Under Section 18, an individual who, on behalf of a foreign principal, publishes information that will influence someone to do something that’s “likely to be directed towards a political end” in Singapore can be fined up to S$100,000 and/or imprisoned for up to 14 years, if this activity is “covert”.7

According to FICA’s explanatory notes, the term “covert” is defined as “any conduct that is hidden or secret, or lacking transparency”, such as using encrypted communications platforms when interacting with the foreign principal.8

Even preparing or planning for a Section 17 or 18 offence — whether this offence is ultimately committed or not — has been criminalised under Section 19, with penalties that can go as high as S$60,000 and/or nine years’ in prison.9 These offences are both arrestable and non-bailable.

Part 3 of FICA gives the Minister for Home Affairs vast powers to issue directives that can require the removal or disabling of access to online content, the publication of a mandatory message, the handing over of information for investigations into whether foreign interference has occurred, or the banning of an app from being downloadable in Singapore.

On top of this, the Minister can declare an online location a “proscribed online location” as long as it has been given one Part 3 direction (apart from a technical assistance direction or an app removal direction). This would make it illegal for the proprietor to solicit benefit, or for anyone to provide support or enter into advertising deals with that platform.

This would essentially shut down any independent media business or initiative by depriving them of revenue and funding. Compliance with these directions are mandatory; failure to comply will attract heavy fines and/or imprisonment. The offence of non-compliance is arrestable and non-bailable10.

Part 4 of FICA allows the authorities to designate entities or individuals as “politically significant”. They are empowered to do this as long as the entity or individual’s activities are “directed in part towards a political end in Singapore” and the authorities are of the opinion that it is in the public interest to designate them.11 Political parties, Members of Parliament, political office-holders, election candidates and their election agents do not need to be designated as they are automatically considered “politically significant persons” under FICA.12

Parts 5 to 7 of FICA allow the authorities to impose measures or restrictions on politically significant persons or entities. This can include prohibiting donations from “impermissible donors”13, such as foreigners or Singaporeans below the age of 21, capping anonymous donations at S$5,000 a year14, or putting a stop to foreigners from providing voluntary labour or services15. Once designated, politically significant persons or entities are required to disclose foreign affiliations or arrangements16, which the authorities are also empowered to direct the individual or entity to end.17

Section 81 of Part 6 also allows the authorities to issue a “transparency directive” to any “politically significant person”, person authorised to publish a newspaper in Singapore, or person authorised by a licence or class licence to provide a broadcasting service in Singapore.

This directive would require that every instance of a “political matter with a foreign link” (which refers to articles, talks, performances, or programmes, etc. produced by non-Singaporeans) published in Singapore be accompanied by a disclosure that identifies the author by name/pseudonym and nationality, identifies the foreign principal involved, includes a statement that the piece or programme has a foreign link, and a statement that the disclosure was required by FICA.18

The explanatory notes for Part 6 admit that these measures “may restrict the freedom of association”, but justifies them as “protecting Singapore’s security and ensuring informed opinion.”19 Offences under these parts are arrestable.20

Section 108 of Part 9 enables authorities to require from any person (inside or outside Singapore) information or material with regards to a wide range of matters, including involvement with foreign principals, and accounts relating to activities “directed towards a political end in Singapore”.21 This power can be exercised as long as the authority deems it necessary for the determination of a matter under FICA or an exercise of powers under Parts 4, 5, or 6. Non-compliance can lead to a fine that accumulates daily over the period of non-compliance.

Lack of checks and balances

Part 8 of FICA relates to “oversight arrangements”, but there is a serious lack of independent checks and balances.

Like the Protection from Online Falsehoods and Manipulation Act (POFMA), compliance with directives issued under FICA is required up-front, before any appeal can be undertaken.

Appeals also have to first be submitted to the minister who issued the directions.22

However, unlike POFMA, appeals do not ultimately go to the High Court. Instead, they go to a Reviewing Tribunal appointed by the President on the advice of the Cabinet (which means that the president cannot exercise her own discretion).23 The Minister of Home Affairs, with the approval of the President, is empowered to fix the amount of remuneration that members of the tribunal receive.24 The Minister for Home Affairs will also make the rules related to the practice and procedure, including the mode and burden of proof and the admissibility of evidence, followed by the Reviewing Tribunal in considering appeals.25 It is unusual that a party to a legal proceeding can set the rules for how the proceedings take place.

An entity or individual designated by the authorities under Part 4 as “politically significant” can only appeal the decision to the Minister for Home Affairs.26 However, the Minister for Home Affairs is also the one who appointed the authorities empowered to make such designations in the first place.27 Orders and decisions made by the Reviewing Tribunal or the Minister are final and not to be challenged in any court, except on grounds related to “compliance with any procedural requirement” of the relevant law.28 This severely limits avenues for judicial review.

During election periods, the Minister for Home Affairs is allowed to appoint an alternate authority to exercise the powers granted under Part 3 of FICA — i.e. the ability to demand the removal or blocking of access to online content — in their stead.29

Implications and concerns

Although the issue of malign foreign interference is a serious one, FICA confers a huge amount of power to the government, specifically to the Minister for Home Affairs. The proposed legislation does not provide enough checks and balances that would guard against any potential abuse of the bill’s expansive powers.

The bill is currently scheduled for its second reading on 4 October 2021, a mere three weeks after it was first introduced in Parliament on 13 September. This does not give Singaporeans or their elected representatives sufficient time to read, analyse and consult on the proposed legislation.

In fact, there has been a notable lack of any public consultation on the issue of foreign interference and the measures that should be taken against it. This should be rectified: before proposing any legislation — especially one as wide-ranging as FICA — a multi-party Select Committee should be appointed to carry out extensive public consultation. The term “foreign interference” should be clearly defined, and measures enacted should take into consideration best practices in accordance with international human rights standards.

Footnotes

1. Section 4 (Page 24)
2. Section 5 (Page 27)
3. Section 3 (Page 9)
4. Section 8 (Page 29)
5. Section 10 (Page 31)
6. Section 17 (Page 44)
7. Section 18 (Page 46)
8. Explanatory notes (Page 205)
9. Section 19 (Page 47)
10. Section 112 (Page 164)
11. Sections 47 and 48 (Pages 79–80)
12. Section 14 (Page 42)
13. Section 56 (Page 94)
14. Section 57 (Page 94)
15. Section 85 (Page 133)
16. Section 76 to Section 78 (Pages 121–127)
17. Section 84 (Page 133)
18. Section 80 to Section 82 (Pages 129–132)
19. Explanatory notes (Page 228)
20. Section 112 (Page 164)
21. Section 108 (Page 155)
22. Section 92 (Page 144)
23. Section 94 (Page 145)
24. Section 95 (Page 146)
25. Section 99 (Page 149)
26. Section 93 (Page 145)
27. Section 105 (Page 152)
28. Section 104 (Page 151)
29. Section 106 (Page 153)