The Paradox of the Philippines’ Foreign Influence Legislation
The Story So Far
2020-21 will go down in history as being unprecedented in foreign policy and national security for several reasons. With focus likely to be on the pandemic, several trends and developments in global policy are unlikely to receive the attention or study they would in any other time. One of these is rising levels of global concern around malign foreign influence and interference campaigns.
Adopting myriad shapes and sizes, these campaigns have become tools for states (some more than others) to exert unwelcome political influence abroad. Ranging from covert funding and lobbying to propaganda and coercion, the methods and targets may vary but the phenomenon is here to stay.
The scale and pervasiveness of the threat is best demonstrated by the pace at which states have scrambled to prepare policy responses. A number of states have enacted or are considering legal frameworks specifically intended to counter such activities. A particular policy tool being increasingly considered are foreign agent registration and disclosure laws. These frameworks require agents engaging in certain activities (e.g., lobbying) on behalf of foreign principals to register and make disclosures regarding their activities. The underlying rationale being that transparency and publicization of the activities of foreign agents will expose and deter otherwise hidden channels of influence.
Globally, such debates invariably refer to the U.S. framework that has contained similar requirements since the interwar period – the Foreign Agents Registration Act of 1938 (FARA). States currently considering FARA-like frameworks include the United Kingdom, Canada, and Taiwan, while others including Australia, Russia and Nicaragua have enacted loose variants. While FARA is likely the earliest framework of its type and has been enforced since enactment – albeit inconsistently – other states are only now considering the need to enact analogous frameworks.
The Filipino Angle
In the scramble to evaluate FARA and evolve local variants, there is a desperate need for states to pool experience and share best practices in order to evolve effective policy responses. Within this context, it will come as a surprise to many that likely the only other FARA-like framework in existence prior to the recent wave of legislation is to be found in the Philippines – in the form of the Foreign Agents Act of 1979 (FAA).
The paradox of the FAA? Despite this longevity few within the Philippines or outside it even know the law exists. Public domain references to the FAA are few and far between. More often than not the framework is mentioned in the context of loose allegations of non-compliance in news, commentary (including by the Act’s author) or legal proceedings – with no accompanying analysis. Apart from other isolated references in various documents, there is little else – whether in the news or on government portals – which suggests that the Act is actually enforced in practice. In fact, a 2013 policy paper seems to suggest lack of any facility for registration or enforcement since the Act’s passage in 1979. Unlike FARA, there is seemingly no public database of foreign agent disclosures and public domain literature suggests that many stakeholders are not even aware of its existence.
Much like FARA, the FAA aims to expose the activities of persons (i.e., foreign agents) acting on behalf of foreign principals by subjecting them to registration and disclosure obligations. Under Section 3(3) of the Act, foreign agents include political consultants, public relations counsel, and other agents, servants, or representatives of any foreign entity (including a government, political party, or foreign owned/controlled corporate entity). Accredited diplomats and employees of news organizations are not covered by the FAA as long as they act within the scope of their ‘legitimate functions’. In addition, the Act does not apply to individuals engaged in activities including bona fide legal representation, trade, commerce, and charitable, academic, or religious activities (Section 7).
Covered agents must register with the Ministry of Justice and make various disclosures, including of contracts entered with foreign principals, compensation received, and a detailed statement of activities being performed (Section 4). Statements filed at the time of registration must be supplemented at half-yearly intervals by updates to the registration statement (if any) and disclosures of additional details including relating to financial disbursements made by the agent over the six-month period. All filings by foreign agents under the FAA are intended to be public records (Section 6).
The second key obligation under the FAA pertains to ‘political propaganda’ content. Foreign agents disseminating such material to two or more persons within the Philippines must file copies of the same with the Ministry alongside other details within 48 hours of its dissemination.
Uniquely, the FAA also deems several acts ‘unlawful’ and subjects them to criminal penalties (Sections 11 and 12). These include a foreign agent: (i) transmitting propaganda to or requesting information from a government official without disclosing its status as an agent; (ii) entering into a contract with a foreign principal where payment is conditioned on success of the political activity; (iii) making certain political contributions; and (iv) acting in such capacity where the agent’s spouse is a public officer or employee.
Despite being fairly detailed (although less so than FARA), several indications suggest that the FAA was passed in a rush. For instance, ‘political activities’ is defined in detail, but the term does not find mention anywhere else within the Act. Similarly, the provision related to political propaganda is titled as “Filing and Labeling of Political Propaganda” but the actual text of the provision only seems to contain obligations relating to filing – and not labelling. It was also not clear if regulations under the FAA were ever issued by the Ministry of Justice.
These contradictions and uncertainties aside, much can be learnt from studying the FAA and its enforcement (or lack thereof). Its longevity can offer another global benchmark for discussions around foreign influence legislation.
Even if the Act has been as little enforced as awareness around it suggests, it still gives the Philippines a head-start and puts it in the vast minority of states to have in place a dedicated foreign agent registration framework. As the foreign influence debate picks up steam in the Philippines, the time is right for increased discourse around the FAA as a means to inform and strengthen the domestic response to foreign threats.
In either case, the FAA deserves far more attention and study than it has currently received.
Tarun Krishnakumar (email@example.com) is a consultant researcher with the Foreign Influence Transparency Initiative (FITI), housed at the Center for International Policy, Washington DC. At FITI, his work revolves around the study of foreign influence campaigns and the legal/policy frameworks meant to counter them. His work around the subject has been featured in several leading U.S. and international portals. He is an attorney admitted to practice law in the United States and India.