BEYOND THE BEND: Malign foreign interference

According to a paper published in 2022 by The Royal United Services Institute entitled, Malign Interference in Southeast Asia, the following are potential avenues for malign foreign interference:

• Informational: including attempts to use social media or other platforms to advance pro hostile-state messaging or narratives, as well as hostile states seeking to influence local media communities in order to advance their narratives. It includes, for example, activities of foreign diplomatic missions and their proxies, as well as overseas associations, aimed at manipulating national media outlets and social media platforms through the deliberate propagation of falsehoods.

• Political: influential communities, subversive actors. This includes efforts to become involved in local politics or influential communities, or with local communities of any ethnicity.

• Economic: purchase of or investment in sensitive critical national infrastructure (CNI), defined as infrastructure that is either critical to national GDP or is in a sensitive area such as telecommunications or national defense.

Notably, our government still has no specific and direct way to address malign foreign interference. The Philippines has yet to enact a statute  devoted specifically to regulate foreign interference like the Foreign Interference (Countermeasures) Act (FICA) of Singapore.

The discussion on how to deal with malign interference is heating up though. One legal expert is urging the government to implement an array of legal moves such as “stricter application of our immigration rules and enforcing deportations” and “strictly implementing criminal laws on Chinese workers, fishermen, etc.” Whereas one lawmaker is proposing to regulate or ban foreign-controlled applications such as TikTok.

Of course, there is also the possibility that members of the community are just freely expressing opposition to the government’s foreign policy. They cannot be condemned in this instance given that interposing contrarian views keeps the marketplace of ideas healthy and vibrant.

And more importantly, the very act of conveying grievances against the state enjoys the protection of the constitutional prescriptions of free speech and freedom of assembly.

According to the Supreme Court, free speech “means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any of public consequence.” In fact, it even “encompasses the thought we hate.” 

Notably, the Supreme Court further opined that, “A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent.”

Thus, the duty of the state to avert serious harm to the public would justify government intervention against malign interference, considering that a malicious coordinated effort by certain members of the polity to undermine the government’s foreign policy can gravely compromise national security.

However, given that the Philippines is a constitutional democracy, any state intervention against malign interference must account for the political rights safeguarded by the country’s 1987 Constitution.

Therefore, policing and prosecuting malign interference should not automatically mean giving the state more draconian powers and diminishing the potency of constitutional rights. Suppressing free speech may lead to more anxiety and turmoil in the community and ultimately undermine national security itself.     

Notably, the FICA of Singapore has been criticized for contravening “international legal and human rights principles – including the rights to freedom of expression, association, participation in public affairs, and privacy.” A vital point Filipino lawmakers must earnestly heed because there is presently a real fear that the  FICA’s implementation will curtail activities in Singapore’s civic-political space. 

Thus, a dedicated regulatory measure must institutionalize principles and protocols to guide law enforcement and national security agencies to distinguish between attention-hungry crackpots, genuine dissenting voices, and traitors undermining the government. It should also contain mechanisms on how they can appropriately respond to each case.

The duty of the state to prevent public harm must never be construed as a license for law enforcement and national security agencies to disregard the constitutional prescriptions of free speech and peaceful assembly. Indeed, the fundamental challenge is devising a nuanced approach that will help ensure both the stability of the state and the sanctity of constitutional rights.

(MindaViews is the opinion section of MindaNews. Michael Henry Yusingco, LL.M is a law lecturer, policy analyst and constitutionalist.)