Anti-foreign interference Bill already has proportionality requirement, similar to Pofma: MHA

SINGAPORE – The proposed law to counter foreign interference already contains a requirement for orders issued under it to be proportionate, the Ministry of Home Affairs (MHA) said on Sunday (Oct 3).

The ministry was responding to Senior Counsel Harpreet Singh Nehal who said in a Facebook post on Saturday that the language of the Foreign Interference (Countermeasures) Bill (Fica) “sets an extremely low bar for the public interest requirement to be met”.

“The Bill simply requires that the minister form the opinion that it is in the public interest to exercise his powers. As drafted, the Bill does not require that the opinion be reasonably held, or that the specific Fica orders that are issued be proportionate,” Mr Singh added.

The ministry said this was untrue, adding that the Bill incorporates proportionality into its public interest requirement.

“The statutory test of ‘public interest’ stipulates that it should be necessary or expedient in the public interest to use those powers,” MHA said.

The ministry also said the same issue arose two years ago in relation to the law on fake news – the Protection from Online Falsehoods and Manipulation Act (Pofma) – that imposes a similar requirement for its “public interest” test.

Mr Singh had similarly called for the addition of a “proportionality” requirement in Pofma, ahead of the Parliamentary debate on it, MHA said.

“He was corrected by a Senior Counsel, Mr Siraj Omar, who pointed out, in relation to Pofma, that ‘a close reading of the Bill suggests that such a requirement already exists’.”

MHA quoted Mr Omar as having said: “The (Pofma) Bill states… that an act is in the ‘public interest’ if it is ‘necessary or expedient’ in pursuance of various stipulated objectives. This added constraint of necessity or expediency essentially embeds an assessment of proportionality into the analysis.”

The Law Ministry (MinLaw) had also pointed this out to Mr Singh in a public letter published in The Straits Times on May 2, 2019, and MinLaw had also explained why Pofma’s definitions were workable and invited Mr Singh to come up with better definitions for it to consider, MHA said.

“When MinLaw spoke with Mr Singh again, he said that his original commentary on Pofma had acknowledged the need for wide definitions, including of ‘public interest’, to address the risks posed to the national interest.”

MHA said Fica adopts the same requirements of necessity or expedience in its definition of public interest, similar to Pofma.

Fica targets foreign interference in domestic politics conducted through hostile information campaigns and local proxies.

It grants MHA powers to issue directions compelling Internet platforms to block accounts, and to require politically significant people to declare foreign affiliations, among others.

Mr Singh had also expressed his concerns over Fica in an opinion piece for ST last Tuesday. MHA responded to the piece in a letter to ST on Saturday.

The ministry said its letter had given Mr Singh “the benefit of doubt” and assumed he may not have read the Bill carefully.

It added: “If he did read it (as he now asserts), then in the context of the above facts, readers can draw their own conclusions on Mr Singh’s reasons for making inaccurate assertions – which he himself must know were inaccurate.”

Fica will be debated when Parliament sits on Monday. A petition seeking greater scrutiny of the draft law has been submitted on behalf of civil society groups by Progress Singapore Party Non-Constituency MP Leong Mun Wai.

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