Published: 03 October 2021
1. Mr Harpreet Singh has issued a further statement of 2 Oct, on FICA.
2. Mr Singh says that “Fica’s language sets an extremely low bar for the public interest requirement to be met”. He adds that the Bill does not require “that the specific Fica orders that are issued be proportionate”.
3. This is untrue.
a. Proportionality is incorporated into the “public interest” requirement in the Foreign Interference (Countermeasures) (FIC) Bill. The statutory test of “public interest” stipulates that it should be necessary or expedient in the public interest to use those powers.
b. Mr Singh must know this – the same issue arose two years ago, in relation to the Protection from Online Falsehoods and Manipulation Act (POFMA), which imposes a similar requirement, for its “public interest” test as well. In the lead up to the Second Reading of POFM Bill, Mr Singh tried to make the same point – calling for the addition of a “proportionality” requirement in the POFM Bill. 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”. (See https://www.straitstimes.com/opinion/a-more-calibrated-approach) To quote Mr Omar: “The [POFM] 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 same observations apply, to the definition of “public interest” in FICA, which adopts the built in proportionality requirements, of “necessity or expedience”.
c. MinLaw had also pointed this out to Mr Singh, publicly, at the time. (See MinLaw Press Sec’s letter, 2 May 2019:
https://www.straitstimes.com/forum/letters-in-print/govts-powers-narrower-under-proposed-law) The same point was also made by the Law Minister, in Parliament, during the Second Reading of the POFM Bill.
d. At the time, it was also explained to Mr Singh by MinLaw, as to why the definitions in the Bill were the most workable. Mr Singh was told that if he could come up with better definitions, MinLaw would be happy to consider. 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. This exchange was referred to in a commentary that the Law Minister wrote (see: https://www.channelnewsasia.com/commentary/shanmugam-online-falsehoods-bill-pofma-commentary-876266).
4. MHA’s letter to ST (published on 2 Oct 2021) gave Mr Singh the benefit of doubt and assumed that Mr Singh might not have read the Bill carefully. 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.