LEX LOCI 2014 by The UKSLSS

LEX LOCI 2014

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Foreword Once again I thank the editors of Lex Loci for according me the privilege of writing a foreword to the 2014 issue. In my foreword to Lex Loci 2013, I commended the journal for providing a forum for our UK law students to express their views on legal developments in Singapore, and to share them with a wider audience. Their concern is crucial for Singapore’s future development and progress as a modern inclusive society and in its efforts to build a fair and just legal system for all who regard it as home. An inclusive society needs inclusive laws. The social and political problems of a stable and well-governed nations do not undergo drastic change every year so as to require new laws to meet new social needs. Long-held political and social values become established norms. Policies founded on them become sacred cows. The government du jour can only tweak the policies but not their underlying rationales. Laws based on such policies are tweaked to meet current needs. Hence, a number of articles in Lex Loci 2014 examined substantially the same kind of issues in Lex Loci 2013. Foremost are issues of life and death, but with a different focus. There are two articles on changes in the law on the mandatory death penalty for murder, drug offences and other capital offences in Singapore. Judges now decide whether a person convicted of a capital offence deserves the death penalty. This legislative change is not a 180turn of the policy on the death penalty, but a change of direction towards a more humane and realistic approach to the state taking away life by law, but at the same time to achieve certain objectives. For those who are against the death penalty, this is some progress, and for those who are against the mandatory death penalty, this change is real progress. However, another article defends the recent changes in law on abortion defensible, even if available “on demand”. And to balance this, there is an article on the place of mercy in the punishment of convicted criminals. Constitutional rights, especially freedom of speech and equality before the law, and the larger spectrum of human rights are also addressed in this issue. The new licensing regulations on websites reporting on Singapore news announced on 28th May 2013 by the Media Development Authority of Singapore (MDA) are criticized mildly for their “chilling” effect on freedom of online speech because of their vagueness and wide discretionary reach. On the other hand, the law of contempt of court in Singapore receives a well-argued defence as being consistent with the theory of free speech adopted by the Constitution. Drawing the line against commercial pornography is also addressed jurisprudentially by reference to a utilitarian calculus. Online accountability also impacts on free speech and this problem is also addressed. The article on s 377A assumes its constitutional validity, but questions the propriety of the policy of sitting on the fence (i.e., the policy of no proactive enforcement of the law) as a jurisprudential disaster. Other potential constitutional issues are not discussed. Current social issues, in the area of consumer legislation, such as the lemon law, and the problems of online gambling and casino gambling introduced into Singapore as optimistic trade-offs for greater economic benefits are also addressed. The dignity of labour, especially of foreign construction workers, gets a sympathetic hearing in one article which gives a pass mark to Singapore employment laws, but not their enforcement. It is not so much dignity of labour so much as the right and the justice to be paid for work done, regularly and on time. Many Singapore employers need a big stick to deter them from exploiting their workers by delaying and sometimes not paying their workers. There are many other interesting and thought-provoking articles in this issue. Should not love be as corrupt as filthy lucre is an intriguing policy issue in the law of corruption? The articles abound with policy and less hard law. The article on legal aid in Singapore and in the UK is an example of such an approach. What is heartening is that the student writers have taken very balanced approaches in their subjects. I commend the writers and the editorial board for bringing out a sparkling edition of legal writing that speaks well for our law students in the UK and for Singapore’s leadership in the development of the rule of law and justice under law.

Chan Sek Keong Chief Justice of Singapore (11 April 2006 – 5 November 2012) 4

Editorial Foreword Photo Credit: Malcolm Ong

It is my sincerest pleasure to present you with Lex Loci 2014 – the society’s annual Law Review. This year marks the ninth edition of our publication since its inception in 2006. It is our tremendous privilege to have former Chief Justice Chan Sek Keong write a foreword for the journal as patron of the society. We are also very grateful for the generosity of our sponsors, without whom this project would not have been possible. Lex Loci features writing by Singaporean law students from all over the UK. We are proud to feature a diversity of universities and welcome increasing participation. The journal is a reflection of Singaporean students’ intellectual curiosity and continuing interest in developments in our own country’s legal landscape no matter how far away we may be. I am very grateful to the many talented individuals featured in interviews in the journal for being so generous with their time and insight: Mr. Dinesh Dhillon, Mr. Chong Yee Leong, Professor Michael Hor, Assistant Professor Cheah Wui Ling, Mr. Wang Ye, Ms. Elena Tan, Mr. Jeremy Goh, Mr. Peter Low, Mr. Choo Zheng Xi, Mr. Damien Chng, Ms. Stefanie Yuen Thio, Ms. Wendy Tan, Ms. Crystal Ma, Mr. Anand Nalachandran, and Mr. Ramesh Chandr Tiwary, Mr. Chan Leng Sun, and Mr. Milan Radman. I would also like to thank Mr. Malcolm Ong for his gracious assistance with photography. To say that Singapore is evolving rapidly is a trite statement. The emergence of civil society, increased public consciousness and engagement in the political sphere and a growing sense of searching for identity are just some of the issues that our tiny nation-state is grappling with. Consequently, many of our writers have chosen to deal with subject-matters that extend beyond black letter law to governmental policy and social structure.

In the past few years alone, numerous examples have illustrated how we are standing at a definitive moment in our history. From Pink Dot SG and the “wear white” campaign to the National Library Board’s eventual decision to reclassify two children’s books to the adult section, from revisions to the mandatory death penalty to the issuance of the Certificate of Cooperation in the seminal Yong Vui Kong case, it is clear that Singapore faces difficult questions and decisions ahead. As Singapore approaches her 50th birthday, the question of how we are going to build a pluralistic, inclusive and fair society is at the forefront. Most pertinently, what is the law’s role in this dynamic, shapeshifting process? Insofar as the law represents social architecture and infrastructure, it is a powerful representation of beliefs and norms as to what constitutes justice. We can only hope that it will keep pace with evolving social sentiment, and beyond that, that Singaporean society itself chooses the path and mindset towards more fairness, more justice and more equality. So whether you read one page, one article or cover-to-cover, I hope that it will have been time well-spent. From articles covering the law of contempt in Singapore, to jurisprudential musings on commercial pornography, to features on champions in the domestic human rights scene, to considerations of the revisions to the mandatory death penalty, we have sought to push boundaries both in the scope and depth of content covered. Last, but by far not least, my recognition and deep thanks are also due to the editorial committee whom I have had the pleasure and privilege of working with, and whose dedicated contributions over the past year have brought this project to fruition. I hope you will enjoy this journal as much as I have enjoyed the making of it.

Editor-in-Chief, Lex Loci 2014 Stephanie Chew

Editorial Committee

Photo Credit: Malcolm Ong

from left to right: Sean Poh, Li Yi Hong, Esther Lim, Stephanie Chew, Kok Weng Keong, Samantha Kong, Hilary M Rupawalla, Primrose Tay, Benjamin Hong, Nur Hisyam Bin Azman

Editorial Committee Stephanie Chew

University College London editor-in-chief Stephanieâ&#x20AC;&#x2122;s interests include fashion, food and travel. Her academic interests include Criminal Law and Intellectual Property Law. A recent graduate of UCL, she is always game for adventure and thinks London is by far the best city in the world.

Sean Poh

University of Manchester chief sub-editor Having recently graduated from the University of Manchester, Sean is delighted to be back in Singapore. That said, he will be eternally grateful for the past three years spent gallivanting around Europe, attending concerts of his favourite acts and having sleepovers with his law readings. In his free time, Sean believes wine and good friends make life merry.

Benjamin Hong University of Warwick deputy editor

Not one to shy away from an argument, Benjamin relishes every mooting opportunity that Law School affords him. He also has a penchant for hawker fare in Singapore, and fondly remembers the occasional attempts at reproducing particular dishes during his culinary exploits abroad.

Esther Lim

University College London deputy editor A person with varied interests, Esther dabbles in everything from human rights to poetry to science. Consequently, Esther loves books, long conversations, fun facts and Wikipedia surfing. She can easily be found in pursuit of dessert or having intense discussions about fictional characters.

Nur Hisyam Bin Azman University College London deputy editor

Developing an interest in law at a rather later stage in his academic life, Hisyam went on to complete an LLB at the University of Southampton before pursuing his LLM at UCL. He currently volunteers at Camden Citizenâ&#x20AC;&#x2122;s Advice Bureau helping people seeking advice on welfare and economic issues. His interests include martial arts, scuba diving and writing. 7

Photo Credit: Malcolm Ong

Yi Hong Li

University College London deputy editor Fiery and pint-sized, Yi Hong finds it hard to keep still. She holds on strongly to a sense of child-like wonder that keeps life interesting. While she has big dreams for Singapore, she still struggles with keeping her London apartment in order.

Hilary M Rupawalla

University of Manchester deputy editor (contents & layout) With a desire to explore the world outside this tiny red dot, Hilary seized the opportunity of going abroad to university as her chance, moving to Melbourne and finally settling in Manchester to read law. Her most recent travel adventure saw her backpacking through Vietnam for about a month. Despite her travels, Singapore will always have a soft spot in her heart.

Kok Weng Keong

Kingâ&#x20AC;&#x2122;s College London deputy editor (contents & layout) While reading Law in London, Weng Keong enjoys finishing marathons, not so much training for them. He recently completed Paris and is hoping to run London next year. He also enjoys travelling around the Sinosphere and tries to watch a play in every city he visits (hopefully with surtitles).

Primrose Tay

University College London deputy editor (features) When she is not obsessing about fashion or food, Primrose is feeding squirrels at Tavistock Square. She has also completed a pattern-cutting course at the London College of Fashion and loves to sew. She is enjoying her summer travelling around Europe and North America and looks forward to what the next chapter of life will bring.

Samantha Kong

University of Southampton deputy editor (features) When not immersed in her law books, Samantha enjoys gymming, singing and writing. Apart from penning her unconventional musings, she also writes for the UKbased National Student Law Society blog. At the back of her mind, this foodie is always planning her next gastronomic adventure. Photo Credit: Malcolm Ong

Photo Credit: Zachary Tan

President’s Message As I slowly thumb through the pages of Lex Loci, I am filled with nothing but immense pride. It has been nine years since Lex Loci was first pioneered, and looking back on Lex Loci’s journey, I daresay that the journal has scaled greater heights and truly grown in strength with each edition. This year’s Lex Loci is no different; it surpasses already high expectations and features an extremely impressive collection of articles that seek not only to expose readers to the latest legal developments but also mitigate the daunting challenge of entering the legal sector. Lex Loci has always been one of the key highlights of the Society’s work, representing our keen interest in the legal scene at home and showcasing the fresh and compelling voices of our community. It is an avenue for our members to put forth their best academic work and contribute their opinions towards the development of Singapore’s jurisprudence and legal sector. Furthermore, it is an important tool to enable our members to stay relevant and updated.

On behalf of the UKSLSS, I would also like to extend our utmost gratitude to former Chief Justice Chan Sek Keong for his guidance and patronage, as he graciously read through every article published in this year’s Lex Loci. We are exceedingly humbled and inspired by your wisdom and magnanimity. Thank you.

Mirroring our theme for Singapore Legal Forum 2014: The Legal Revolution, this year’s Lex Loci explores the highly contested topics and emerging developments dominating Singapore’s legal scene. It covers a diverse spectrum of issues relating to conduct, regulation and social mores and the quality of work reflects our members’ high level of critical thought and analysis.

Additionally, I would like to express our sincere thanks to our wonderfully generous sponsors, without whom this journal and all the Society’s initiatives would not be possible. Thank you for engaging in the Society’s vision and believing in the Society’s work. It is my hope that together, the UKSLSS will only continue to grow in strength and stature.

Our team of writers have not shied away from the controversial topics; instead, they have fearlessly tackled these hot-button issues with gumption and finesse. They have also ventured beyond the shores of Singapore, deftly adopting comparative perspectives to chart Singapore’s progress alongside both established and emerging legal markets.

Finally, I would like to take this opportunity to thank my colleagues on the Executive Committee for their spirit of camaraderie, for their all-round excellence and for the absolute commitment they have shown to their work. It has been my thorough privilege working alongside you in service to the Society and it has made my term as President tremendously rewarding. As we look to hand over the reins of the Society, I highly encourage our members to get involved and be an active part of this community. Although I cannot promise that it will be an easy path to take, I can assure you that it will definitely be a fulfilling one.

Beyond academic commentary, we have had the pleasure of gleaning insight and wisdom from distinguished members of the legal fraternity. Our featured interviewees have graciously and candidly shared snapshots of life as a practitioner and addressed various questions relating to legal practice. I would like to sincerely thank the practitioners who have so kindly contributed their invaluable insight to Lex Loci: Mr. Dinesh Dillion, Mr. Chong Yee Leong, Professor Michael Hor, Assistant Professor Cheah Wui Ling, Mr. Wang Ye, Ms. Elena Tan, Mr. Jeremy Goh, Mr. Peter Low, Mr. Choo Zheng Xi, Mr. Damien Chng, Ms. Stefanie Yuen Thio, Ms. Wendy Tan, Ms. Crystal Ma, Mr. Anand Nalachandran and Mr. Ramesh Chandr Tiwary.

The continued success of Lex Loci is made possible only by the exceptional work of our Editorial Committee, led by our Editor-in-Chief, Stephanie Chew. Having been on the former Editorial Committee myself, I understand the hard work and late nights that go into creating Lex Loci. To this end, I humbly affirm the Editorial Committee and their team of writers for the immense dedication and overall excellence that they have poured into this year’s journal. Thank you all for contributing your time, your thought and your heart to filling these pages. More importantly, thank you for rising to the challenge and making Lex Loci yours.

As you read Lex Loci, it is my hope that you are thoroughly inspired and challenged by the thoughts and opinions expressed in these pages. I wish you only the very best in your future endeavours and thank you for your support. I am continually humbled and thankful to have been given this opportunity, and it has been my profound privilege serving you as President.

Cheryl Aiden Teo President, UKSLSS

Executive Committee

Photo Credit: Zachary Tan

from left to right: Stephanie Chew, Vice-President (Editorial) Jerrold Yam, Vice-President (Secretary) Cheryl Aiden Teo, President Joshua Heng, Vice-President (Treasurer) Ong Wen Ting, Vice-President (Public Relations) Zachary Tan, Vice-President (Marketing)

LEX LOCI 2014

Essays Death and the Maiden Stephanie Chew

Life and Death: Judges Having a Greater Say Benjamin Hong

Killing the Unborn: Murder or Defensible Benjamin Hong

Labour Should Be Dignified Kok Weng Keong

Neuroimaging in Criminal Trials Esther Lim

The Rainbow After the Storm Samantha Kong

Singapore’s Casino Regulations: The Gamble That Paid Off? Li Yi Hong

Reconsidering the mandatory death penalty in Singapore

An outline of the development of Singapore’s mandatory death penalty regime

Assessing Singapore’s laws on abortion

Examining the laws that govern our construction workers and their employers

Examining the use of neuroscientific evidence in the law

Investigating 377A and the way forward

Assessing the effectiveness of Singapore’s gambling legislation in addressing initial concerns with the casinos opening

Singapore’s Lemon Laws: Sour in the Face of the Right to Reject Sean Poh

Analysing the interaction between lemon law provisions and the consumer’s traditional right to reject

Truly, Justice For All: A Comparative Study Between Singapore and the UK’s Legal Aid Systems Li Yi Hong

The Fight Against Corruption Wu Junneng and Vivian Toh

On Love and Corruption: A Relationship Unexplained Tan Tian Hui

Investigating the fitness of Singapore’s judicial system in ensuring access to justice, by drawing on lessons from the UK’s experience

Singapore has never tolerated corruption, and never should; this article details possible reforms to strengthen its fight against corruption

Case comment on PP v Tey Tsun Hang

Investigating where the line should be drawn in freedom of speech when it comes to commercial pornography

The Problem of Online Accountability Nur Hisyam Bin Azman

107

113

Preventing the Financial Crisis: An Exercise in Futility? Nur Hisyam Bin Azman

118

The role of the law in preventing a future financial crisis

124 Why Singapore’s fused legal profession works and how to strengthen it

Features Women in Law Primrose Tay

129

The Great Job Hunt: Applying to Law Firms Primrose Tay

134

Arbitration in Singapore Samantha Kong

135

The Innocence Project: Pro Bono in Singapore Samantha Kong

138

Defending Human Rights: Somebody’s Got to Speak Up Esther Lim

144

Foreign Law Practices in Singapore: Not All That Foreign Samantha Kong

149

Interviews with highly accomplished female lawyers at different stages of their legal career

Activities and Interests: do they matter in our training contract applications?

Top Arbitrators from Allen & Gledhill share their professional experiences with Lex Loci

Members of Singapore’s Innocence Project share their experiences and views on pro bono in Singapore

Exploring Singapore’s unsung civil society and the history of human rights in our country

A peek into the lives of lawyers from Baker & McKenzie

Photo Credit: Dream In The Dark of Day https://www.flickr.com/photos/dream_in_the_dark_of_day

DEATH AND THE MAIDEN

Singapore is as famous for its trademark SQ girl as it is for its stringent sentencing. This article considers the implications of the recent revisions to the mandatory death penalty, and questions whether the line has shifted at all.

by Stephanie Chew University College London

Death and the Maiden

INTRODUCTION “All visitors to Singapore are required to complete a landing card. You are reminded of the severe penalties for drug offences.” The familiar and pleasing voice of an anonymous SQ girl gently reminding everyone on the plane that Singapore (generally) hangs drug traffickers prompts me to fasten my seat belt and check that my hand baggage is securely stowed. Beyond the shadow of a doubt, I know that I am finally almost home. It’s been a long flight. Singapore has been called many names over her relatively short history since independence, but one of the most memorable is surely: Disneyland with the death penalty. It is not entirely a misnomer – our tree-lined boulevards, balmy weather and row upon row of uniform, clean housing development blocks may vaguely call to mind the Magic Kingdom without an excessive leap of imagination. And yes, as many would allege: We do employ the use of caning in our prisons (although not, as some would believe, for chewing gum), we do occasionally fine people for littering, and we do mete out capital punishment for select offences. But these overt stereotypes hardly strike at the core of the issue: why our country (or at least, Parliament’s) unrelenting belief in the legitimacy of the death penalty as punishment? What purpose do our strict (many might say draconian) laws seek to achieve and how effective have they really been? Singapore’s recent revisions to the hitherto mandatory death penalty for certain classes of drug offences and murder have provoked much interest: To what extent can we be said to have shifted our position on the necessity and proportionality of such punishment? Or perhaps, how far can we be said to have even begun to frame the matter as a question of proportionality? It is beyond the scope of this short article to consider fully the jurisprudential implications of the death penalty. Furthermore, the aim of this article is not to convince the reader of the ultimate superiority of either camp’s argument. Rather, for present purposes, this article will discuss the following. Firstly, the legitimacy of the death penalty. There are two separate (albeit interconnected) issues here: On one hand, the legitimacy of the mandatory death penalty and on the other, the legitimacy of the death penalty itself as punishment. Secondly, we will consider Singapore’s own philosophy towards the death penalty and the validity of its social policy objectives and justifications for the hitherto hardnosed stance towards the death penalty. Finally, we will consider the recent reforms to the law and consider the tensions in their stated purposes and objectives in order to evaluate whether the reforms really do represent a sea-change. THE DEATH PENALTY AS PUNISHMENT We begin by considering the legitimacy of the death penalty itself as punishment. The abolitionist camp views the right to life as absolute and fundamental – for example, this is a clear undercurrent throughout European human rights jurisprudence. Under this worldview, the death penalty is always a disproportionate punishment. The intrinsic value of life, and furthermore, the inalienability of the right to life are seen as fundamental justifications as to why a State does not have good reason to deprive an individual of his life under any circumstances whatsoever.

Furthermore, abolitionist groups argue that the death penalty represents an irreversible wrong if meted out wrongly. One could argue that any form of punishment meted out to an innocent individual is an irreversible injustice; years spent in prison are not refundable. However, the appeal of this argument is undeniable: unfairly depriving a man of his life is surely a greater injustice than unfairly depriving him of some quantifiable years of his life. Justice Scalia once remarked that there has not been “a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred … the innocent’s name would be shouted from the rooftops.”1 Yet it seems that Justice Scalia may well have to eat his words. To name one sobering example, the Columbia Human Rights Law Review in 2008 set out clearly and precisely how an innocent man mistaken for another was sent to his death in Texas in 1989.2 The article is titled “Los Tocayos Carlos: Anatomy of a Wrongful Execution”; Los Tacayos translates as “namesakes”. Indeed, the two men at the eye of the storm were named Carlos DeLuna and Carlos Hernandez, and the narrative clearly establishes that Texas executed one for a murder the other had committed. Furthermore, advancements in DNA profiling have exonerated many death row convicts, demonstrating the inherent fallibility of the criminal justice system. In such cases, even if the irreversible mistake had not been committed, a close shave is perhaps too uncomfortable to stomach. Some might argue that the leaps and bounds science has made has clearly reduced the margins for error, therefore justifying the penalty – yet it seems to me that all it has done is expose loopholes. Furthermore, no scientific method can ever be said to be 100% accurate, what more with the vast potential for mistakes in terms of collecting and processing evidence within a reasonable timeframe. There is also much to be said for the proposition that the death penalty satisfies a rather banal human urge for revenge rather than the need for proportionate and retributive justice. The purpose of legal sanctions – whether in the form of prison sentences, caning or the death penalty is a complex area extending well beyond the scope of this discussion. Nevertheless, we can posit that the main purpose of the criminal law is to punish, and the notion of punishment is intrinsically tied to retribution and just desert. Thus, an offender A should receive a punishment X that is proportionate to the severity of the offence he has committed. One might argue quite simplistically that if the offence committed involves the taking of a life, the offender should similarly be deprived of his own – an eye for an eye and a tooth for a tooth. Indeed, John Stuart Mill suggested very eloquently that executing a murderer did not display a wanton disregard for life but, rather, proof of its value. “We show, on the contrary, most emphatically our regard for it by the adoption of a rule that he who violates that right in another forfeits it for himself,”3 he said. However, this conception ignores the intrinsic and inalienable value of human life; if we view the value of individual human lives as incommensurable, the taking of one hardly serves as retributive justice to the one already lost. Neither does this conception address the issue of the death penalty as punishment 1 Kansas v Marsh (No. 04-1170) 278 Kan. 520, 102 P. 3d 445. 2 Columbia Human Rights Law Review. Volume 43, Issue 3. 3 Great Britain, Parliament, John Stuart Mill’s Speech on Capital Punishment against Amendment to Capital Punishment Within Prisons Bill, Parliamentary Debate (Hansard), 3rd Series [1830-1888], pp. 1047-1055.

Stephanie Chew

for crimes that do not (at least actively) involve the taking of lives, for example drug trafficking in Singapore. Furthermore, from a general perspective, it is hard to ignore the public outcry as to the manner and form of the death penalty when the person in question has committed a particularly heinous crime. While violent rapists and serial killers are in no way to be endorsed, and indeed deserve a punishment fitting the crime, calls for increasing their suffering or manner of death go far beyond retribution to revenge. Punishment connotes moral reprehensibility, but it is not a means to exact the same amount of pain that an offender has exacted on his victim. There is a distinct and important difference between retribution and revenge. While retribution focuses on proportionate punishment that fits the crime, revenge has the potential to extend beyond proportionate punishment given its focus on deriving moral satisfaction from making the offender suffer. Of course, public opinion (thankfully) does not constitute how the death penalty is meted out; but it certainly seems that the penalty is popularly viewed with a particular degree of bloodlust. Of course, the death penalty also ignores the dual (admittedly sometimes contradictory) purpose of punishment– rehabilitation and reintegration. The message behind the death penalty is undoubtedly that an individual is beyond redemption of any kind. On the other hand, countries such as Singapore subscribe to the notion that the right to life is not absolute, and indeed one can be deprived of it as long as it is in accordance with the law, as enshrined in Article 9 of our Constitution. In a sense, this is a circular justification; if the central reason underlying the death penalty is merely that it is in accordance with the law, presumably any offence could warrant the death penalty as long as the law stated as much. Perhaps a better understanding then would be that an individual can be deprived of his or her life as long as it is in accordance with the law, where Parliament has decided that the benefit of depriving that person of his life for that offence outweighs the cons. On this utilitarian conception, the value of human life is not incommensurable or absolute, and indeed, is one of many factors to be balanced and weighed in the cost-benefit analysis. This is not to say that human life is not intrinsically valuable, but simply that its value can be weighed against the value of other human lives. Certainly such an understanding would seem to mesh well with Singapore’s social policy objectives; the government has consistently noted that pragmatism rules the roost on our sunny island. DEATH PENALTY AS DETERRENCE? Indeed, the government has consistently spoken of the death penalty’s “deterrent effect” – arguably the alleged deterrence operates at two levels. Firstly, the threat of the death penalty should one commit a particular offence; and secondly, the actuality of the death penalty having been meted out before. Deterrence as justification for the legitimacy of the death penalty certainly fits within a utilitarian conception of the death penalty. However, even if we were to accept that utility is a just basis for measuring the value of human life, the argument begins to crumble when one considers that objective measurements for the deterrent value of the death penalty are few and far between.

Moreover, it is not clear that the death penalty provides any deterrent value with regards to crimes that are not pre-mediated (for example, murder committed in a fit of rage). Moreover, if we were to maximise the deterrent value of the death penalty, then surely executions should be carried out in as public and horrific a manner as possible. Yet most jurisdictions that mete out the death penalty are concerned that it be conducted as “humanely” as possible. For example, in the US, a lack of drug supply has brought execution by lethal injection – and the potential suffering that it inflicts upon death row inmates – back into the spotlight. Ultimately, it is submitted that this utilitarian conception of the death penalty is a dangerous one. Perhaps the government’s belief (and it has stated as much4) is that hanging one drug kingpin is equivalent to saving the hundreds and thousands of lives that his business would otherwise have destroyed. This conception is arguably flawed for a number of reasons: Firstly, it does not address why an alternative sentence (for example, life in prison) would not yield an equally satisfactory result. Secondly, it is paternalistic in affixing the blame of drug-related deaths solely on the supplier. Certainly, addiction is a social ill, and it is furthermore arguable that it is a disease which to some extent diminishes the addict’s capacity to make independent and coherent choices – it is well-known how physically and mentally painful going cold turkey from heroin is. But to assert that an individual, no matter how morally and legally reprehensible his trafficking activities may be, is solely responsible for such loss of life stretches the chain of causation dangerously thin. Finally, and perhaps most importantly, the notion that depriving one individual of his life is justified insofar as it increases net utility (i.e. more lives saved) is in itself abhorrent. Barnard William’s5 thought experiment of Jim and the five Indians comes in useful here: While wandering through the forest on an expedition, Jim stumbles upon a clearing where five men are lined up against the wall awaiting execution by the tribe leader. The tribe leader after ascertaining that Jim is a foreign visitor, says that to mark the occasion, he will let off four of the men if Jim shoots one. However, if Jim chooses not to shoot one, all five will be shot anyway. A utilitarian might argue that Jim would be right, in fact perhaps even have a duty, to shoot the one, as the net utility of four lives being saved would exceed the loss of one life and would certainly be preferable to all five lives being lost. Yet many would find the argument that the right thing to do would be to shoot the one intrinsically unpalatable; and from this we begin to see most clearly what is meant by the incommensurable value of life. One might persist in arguing that the situation is different when one of the five men is a drug lord and the other four are addicts, but this utilitarian concept ultimately views life as deductible and summative, and on this basis it is hard to see why the death penalty should not then extend to any number of crimes.

4 Even in reviewing the death penalty and announcing changes, Deputy Prime Minister emphasised that “Those who trade in illegal drugs are still attracted by the huge financial gains to be made, and deterring them requires the strictest enforcement coupled with the severest of penalties.” 5 Barnard Williams, “A Critique of Utilitarianism” in Utilitarianism: For and Against (Cambridge University Press, 1973)

Death and the Maiden

MANDATORY DEATH PENALTY Next, we consider the legitimacy of the mandatory death penalty as distinct from value judgments of the death penalty as punishment. The argument that the mandatory death penalty is unconstitutional is tenuous at best. In Ong Ah Chuan,6 the Privy Council considered the constitutionality of the mandatory death penalty, particularly in relation to drugs trafficking. The court upheld the mandatory death penalty as constitutional, with Lord Diplock noting that the argument was precluded by the fact that Article 9(1) of the Constitution recognised that a person may be deprived of his life in accordance with the law. Nonetheless, he constrained the definition of law, noting that the rules of natural justice applied to this concept.

illness that has reduced his remaining lifespan to an estimated six months while B is perfectly healthy at the time of sentencing, to what extent can we say that it is fair or just for A to escape full punishment, particularly for a circumstance that may have no bearing whatsoever on his own feelings of guilt or remorse for his crime? Indeed, sickness and ill-health is often cited as a ground for mercy, but may nevertheless appear to be the exercise of leniency grounded on reasons that in no way diminish the severity of the offence or the culpability of the offender.

Ong Ah Chuan7 has not been followed in subsequent Privy Council cases. Nevertheless, these cases have been distinguished by the Singapore Court of Appeal in Yong Vui Kong8 on the basis that those constitutions contained express prohibitions against inhuman or degrading treatment, which the Singapore constitution does not contain. The objections to the mandatory death penalty can be summarised as follows: Firstly, that the mandatory death penalty is an arbitrary punishment and that it removes sentencing discretion from the rightful jurisdiction of the court. Secondly, that it precludes the court from considering other legitimate factors that may justify the exercise of mercy.

Yet this conception confuses mercy, for indeed, when duly exercised, the reasons mercy generates for leniency precisely do not impact or in any way reduce what the offender actually deserves. The mandatoriness of the death penalty removes all these considerations from sentencing, yet it is arguable that they are internal to the logic of coherent sentencing.

With regard to the first, the issue of where sentencing powers rightfully lie is in itself contentious. Parliament certainly possesses the right to impose, for example, the type and maximum/minimum (or ceiling and floor) duration of sentences, yet it is argued that within that band is where judicial discretion in sentencing should rightly lie. Making a sentence – any sentence, let alone one as severe as the death penalty – mandatory completely removes judicial competence to assess the circumstances at hand and deliver individualised justice. Certainly, in order for a sentence to be just, it must arguably take into account the particularities of the given situation. Mandatoriness arbitrarily imposes the same penalty on potentially unlike situations – apart from the bare facts required to invoke the penalty (as in the case of drugs trafficking, the mere carriage above a certain limit of a certain class of drugs). There is no doubt that Parliament has the capability to distinguish between different classes of offences and to impose different sentences among these categories; hence, the difference in sentence between trafficking, for example, 15.01g of heroin (the death penalty) and 14.99g of heroin (life sentence) may not in itself be seen as arbitrary and unfair. Some might argue that the distinction is arbitrary while others might argue that this is the inevitable cost of precision. Nonetheless, what we are contesting is the fact that the death penalty mandatorily applies to a given category (rather than how the categories themselves are distinguished).

Prior to the amendments coming into force, the Courts had no discretion in sentencing if they found an individual guilty of murder; the death penalty was mandatory across all categories of the offence. The previous version of s302 of the Penal Code thus read: “Whoever commits murder shall be punished with death.” With the coming into force of the amendments, the mandatory penalty is retained only where the Court concludes that the defendant had intended to cause death through the act by which death was caused under s300(a) of the Penal Code. The decision to categorically distinguish between types of murder found in s300 for the purposes of sentencing was motivated by the view of policy-makers that an intentional killing still warranted the mandatory death penalty. With regard to the other forms of murder contained in s300(b)(d), the Court is vested with the discretion to either sentence a defendant to death or life imprisonment with caning.

Secondly, and interrelated to the first, is that mandatory sentencing prevents a judge from considering mitigating factors that might otherwise justify the exercise of mercy. Mercy 6 7 8

might be understood as the existence of reasons for leniency in punishment. It may seem at first blush that mercy’s exercise of benevolence interferes not only with legal certainty but offends the strict principle that an offender should simply get what he deserves. If both A and B committed a heinous crime –the rape and murder of a child – but A is suffering from a debilitating

Ong Ah Chuan v Public Prosecutor [1981] AC 648, PC. Ibid. Yong Vui Kong v. Public Prosecutor [2010] 2 S.L.R.

REVISIONS TO MDP Against this backdrop we consider the amendments made to the mandatory death penalty with regard to the offences of murder and drug trafficking.

The amendments made to the legal regime applying to drug offences are significantly more complex. Previously, the conviction of an individual of certain drug offences (e.g. trafficking or importing a quantum over the prescribed threshold) automatically invoked the mandatory death penalty. With the amendments, s33B of the Misuse of Drugs Act (MDA) vests the Court with discretion to sentence a defendant to life imprisonment (possibly with caning) instead of death. However, in order for the discretion to arise, the following conditions must be fulfilled: Firstly, the accused, must prove that his involvement was restricted to the listed roles in ss33B(2)(a) or 33B(3)(a) of the misuse of Drugs Act to demonstrate that he was a courier and nothing more. Secondly, the Public Prosecutor must either certify that the defendant has substantially assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore, or the defendant must prove that he was

Stephanie Chew

suffering from such abnormality of mind that substantially impaired his mental responsibility for committing the offence.

guidelines, the judiciary also has prior case law to fall back on as a rubric.

The term “courier” is not used in the MDA, but Parliament has adopted this term to describe a person whose role was essentially restricted to transportation of a controlled drug.9 S33B(2) (a) sets out the definition of a courier and appears to mirror the definition of “traffic” in s2, with the exclusion of selling, giving, administering and distributing. In Parliament, Deputy Prime Minister Mr Teo Chee Hean clarified that the provision was intentionally “tightly-defined” such that an accused who participates in acts such as packing, storing or safekeeping drugs would not fall within the definition of a “courier”.10

In relation to the second objection, this criticism is directed at the show of leniency when mitigating circumstances, or reasons for the exercise of mercy, exist. Critics suggest that mercy is a concept that is incompatible with consistent and logical sentencing, however, this misunderstands the fundamental point that mercy can only be exercised when mitigating circumstances precisely generate reasons for this leniency. Furthermore, the weighing and balancing of mitigating and aggravating factors is something that is within the court’s core competence to perform.

IMPLICATIONS OF THE REVISIONS

In addition, while consistency in sentencing is desirable, the consistency that arises from mandatory sentencing is arbitrary as it does not take into account circumstances that might have a bearing on the severity of the punishment. Surely arbitrariness is its own form of injustice. In this vein it is highly desirable that we have moved towards a system that vests more discretion in the judiciary to sentence offenders.

Evidently, the revisions in no way abolish the death penalty in Singapore, however they seek to confer judicial discretion in limited circumstances. Judicial discretion is valuable for a number of reasons. Firstly, it (rightly) vests sentencing powers with the courts. The notion of mandatory sentencing inevitably removes the power of the courts to take into account individual circumstances; provided the offender comes within the particular category (for example carrying more than the threshold of prohibited drugs of a certain class), he is liable to be sentenced to death. Courts are unable to consider any mitigating (or indeed, aggravating) factors that may in some sense diminish his culpability or generate reasons for the exercise of mercy. Setting aside the issue of whether mandatory sentencing is constitutional (for reasons discussed above it does not seem that this argument has found favour with our courts thus far), judicial discretion is nevertheless desirable as it allows the courts to consider relevant circumstances in each case and to deliver individualised justice. Nonetheless, critics such as Marvin E Frankel11 point out that judicial discretion in sentencing brings with it a host of assorted problems. Indeed, the most common fear is there may be a (perceived) lack of consistency in sentencing, that is, the objection that like cases will be treated differently. This critique has a number of strands to it: Firstly, that in exactly similar circumstances, different judges may arrive at different conclusions as to what sentence is just. Secondly, that the exercise of leniency or show of mercy is inconsistent and irrational with the basic principles of sentencing. In relation to the first point, the argument runs that in such emotionally-charged cases concerning the death penalty, judges may tend to allow their own (potentially very different) personal value systems hold sway; the fear of palm tree justice prevailing. Nonetheless, such is to surely discredit our judiciary and to do injustice to their competence as trained legal professionals. Furthermore, a lack of mandatory sentencing does not connote a complete lack of sentencing guidelines, which can help streamline and condense the process and bring greater consistency. Indeed, apart from sentencing 9 Singapore Parliamentary Debates, Official Report (14 November 2012) vol 89. 10 Ibid. (Teo Chee Hean, Deputy Prime Minister) 11 Drawing on his experiences as a federal judge, Frankel argued that unrestrained sentencing discretion on the part of individual judges contributed to arbitrary sentences.

Nevertheless, it is clear that the changes do not evidence a sea change in the belief that the death penalty is ultimately a legitimate punishment in certain cases. Furthermore, the category of cases to which the death penalty remains legitimate punishment may not have been narrowed as much as it initially seems from the vesting of discretion. There is a clear tension in the various policy objectives behind the amendments. On one hand, it is arguable that the revisions in relation to the laws on drug trafficking are meant to reflect the fact that drug mules are not the kingpins responsible for feeding addictions, and are often merely point-to-point couriers forced into the job by various circumstances. In this sense, the amendments can be seen as a relaxation of the death penalty regime and even a recognition of the value of mercy in the sentencing process. The object of the changes to the mandatory death penalty after all, as explained in the ministerial statement is that it “will result in the mandatory death penalty applying to a narrower category of homicides, compared to the situation today”.30 The changes are aimed “to ensure that our sentencing process balances various objectives: justice to the victim, justice to society, justice to the accused and mercy in appropriate cases”.31 Yet, on the other hand, it is clear that the threshold criteria a drug-trafficking defendant has to fulfil before being able to be issued with a certificate of cooperation are fairly strictly construed. Hence, the notion of “substantial assistance” is objectively measured – thus, a drug mule who has genuinely tried to provide the authorities with information but simply knows nothing of use will not be deemed to satisfy this requirement; his incompetent best is not sufficient even if his moral culpability is arguably equivalent to an individual in a similar position who, by mere stroke of luck, happens to have more useful information in his possession. Furthermore, the Attorney-General’s Chambers retain full discretion as to whether to issue the Certificate of Cooperation or not. Member of Parliament for Aljunied, Ms. Sylvia Lim, pointed out that it is “foreseeable that some accused persons may not receive the certificate even if they were willing to provide the CNB with whatever information they had.”12 12

Singapore Parliamentary Debates, Official Report (12 November

Death and the Maiden

This conception of objective substantial assistance lends credence to the view that the changes are not so much a shift in mentality as they are a reflection of the utilitarian dogma underscoring the death penalty regime. Simply; if offenders can be better persuaded to share information with the authorities that allows them to more effectively disrupt drug trafficking, the value of their contributions outweighs the value of sentencing them to death. Conversely, the defendant who knows nothing is therefore still subject to the death penalty. CONCLUSION It is difficult to find legitimate grounds to support the death penalty at all, even less so when it is mandatorily meted out. Singaporeâ&#x20AC;&#x2122;s shift towards judicial discretion in certain categories of sentencing is a heartening move in the right direction, yet as we have examined above, the tension between the various policy objectives behind the amendments evidence that there may ultimately have been little mindset change. Abolition might be a long way in the distance, but every journey of any importance surely begins with baby steps.

2012) (Sylvia Lim, Member of Parliament for Aljunied).

Photo Credit: Emilia Jesenka & Peter Simonik https://www.flickr.com/photos/lpk90901

LIFE AND DEATH: JUDGES HAVING A GREATER SAY

It has been nearly two years since the introduction and subsequent passage of two developments of the law in this area, along with valuable inputs by two experienced criminal law practitioners, Mr. Anand Nalachandran, who is currently a Partner with Braddell Brothers, and Mr. Ramesh Chandr Tiwary.

by Benjamin Hong University of Warwick 20

Life and Death: Judges Having a Greater Say

A RECAP OF THE CHANGES TO THE MANDATORY DEATH PENALTY REGIME IN SINGAPORE The Misuse of Drugs (Amendment) Act and Penal Code (Amendment) Act first entered into force on 1 January 2013, implementing changes to the provisions governing capital punishment as they apply to the respective offences of drug trafficking and murder; these were supplemented by amendments to the Criminal Procedure Code during the same period. MISUSE OF DRUGS (AMENDMENT) ACT Drug traffickers constitute the majority of convicts on death row.1 While it is inevitable that criticism has been levelled against Singapore’s policy to impose capital punishment for a non-violent crime such as the import of controlled drugs, it is imperative that we do not lose sight of the context and backdrop against which the law operates. The affiliation between drugs and criminal misconduct is deep-seated – a majority of the prisoners in Singapore are drug offenders, with up to 80% being involved in antecedent drug-related crime.2 Indeed, Deputy Prime Minister, Coordinating Minister for National Security and Minister for Home Affairs, Mr Teo Chee Hean, recently affirmed Singapore’s continual adoption of a “zero-tolerance” approach against drug offences.3 Nonetheless, in light of evolving societal norms and expectations, yet recognising the need for retaining rigorous punishments for drug trafficking, a new clause has been added to provide the court with the discretion to impose a sentence of life imprisonment and caning rather than the death penalty, with the premise that two narrowly-defined conditions are fulfilled. First, the burden of proof falls on the trafficker to convince the court, on a balance of probabilities, that his role was strictly limited to that of a mere “courier”4 did not involve other endeavours beyond importing the material drugs.5 Second, either the Public Prosecutor must be persuaded that the accused had provided substantive assistance to the Central Narcotics Bureau (“CNB”), or the latter was suffering from a mental disability at the material time which “substantially impaired” his ability to comprehend the nature of his conduct.6 Under the previous regime, the mandatory death penalty applies to anyone convicted of trafficking the quantity of controlled drugs provided under the Second Schedule of the Misuse of Drugs Act. Anand agrees with the changes, noting that “the recent legislative amendments have carved out circumstances where less culpable and/or more co-operative offenders convicted of drug trafficking may be spared capital punishment.” This results in a more proportionate sentence in relation to the misconduct and serves to abate some of the criticisms alluded to earlier. 1 Ministry of Home Affairs, ‘Enhancing Our Drug Control Framework And Review of The Death Penalty – Ministerial Statement by Mr Teo Chee Hean, Deputy Prime Minister, Coordinating Minister for National Security and Minister for Home Affairs’ (9 July 2012) <http://www.mha.gov.sg/news_details. aspx?nid=MjUzMg%3d%3d-N4I1YQwYBNE%3d> accessed 7 July 2014. 2 Ministry of Law, ‘Response by Minister for Law, Mr K Shanmugam, during the Second Reading of the Misuse of Drugs (Amendment) Bill’ (14 November 2012) <https://www.mlaw.gov.sg/content/minlaw/en/news/parliamentary-speeches-and-responses/response-by-minister-for-law--mr-k-shanmugam--during-the-second-.html> accessed 7 July 2014. 3 Ministry of Home Affairs (n 1). 4 Ibid. 5 Misuse of Drugs (Amendment) Act, s 14. 6 Ibid.

However, perhaps even more can be done, as Ramesh highlighted that “the death penalty is too harsh a sentence for any crime, let alone drug trafficking, because it is the ultimate sentence and cannot be reversed once carried out.” He added that “many of the drug traffickers who are arrested are at the lower end of the chain. Those higher up escape the death sentence by hiring people desperate for money to do their biddings for them. As long as there are people who are desperate for money the offence will continue to occur.” Thus, retaining the death penalty may not necessarily alleviate the drug situation in Singapore and address the root of the issue. PENAL CODE (AMENDMENT) ACT The less controversial context in which the mandatory death sentence operates is that of homicide cases amounting to murder. Changes have been forthcoming, and indeed, are perhaps even overdue. In 2011, the year before revisions were formally introduced in Parliament, 16 instances of homicides were recorded – a seemingly low rate of about 0.3 per 100,000 population.7 Thus, Minister for Foreign Affairs and Law, Mr K Shanmugam, believed that the time was ripe for reforms in light of a more peaceful and mature nation. It was also envisaged that the proposed changes will strike a balance in the following objectives, namely “justice to the victim, justice to society, justice to the accused, and mercy in appropriate cases”. 8 Under s 300 of the Penal Code, the offence of murder can be established in the presence of the following mental states: (a) an intention to kill; (b) an intention to inflict injury with the knowledge that it is likely to be fatal; (c) an intention to inflict an injury which is typically fatal; or (d) the knowledge that a conduct is so imminently dangerous that it is virtually certain to result in the demise of the victim. Previously, the mandatory death penalty applied when any of the aforementioned conditions were met. However, provisions have since been amended to retain the mandatory nature of the sentence only in cases of murders where the perpetrator is motivated by an intention to kill. Ramesh is of the view that state-sanctioned homicides in the form of death sentences are questionable as a response and punishment for murder, since “(a) new facts may emerge; (b) the law may change; and (c) there is no direct and clear evidence that the death sentence as opposed to life imprisonment is a greater deterrence to murder as murder is often (at least in our local context) committed at the spur of the moment and seldom cold-blooded and well thought out”. There are certainly merits to his arguments, although critics may contend that surely there is a case for invoking the death penalty in the most severe cases falling within the ambit of s 300(a) of the Penal Code, where the murder is premeditated and of a deliberate nature. CONCLUSION Anand observed that “the amendments empowered the sentencing tribunal to consider the circumstances of the offence and the offender to determine the most appropriate option – and depart from capital punishment where appropriate. Since the introduction and retrospective application of these provi7 Ministry of Law, ‘Changes To The Application Of The Mandatory Death Penalty To Homicide Offences - Ministerial Statement by the Minister for Foreign Affairs and Law, Mr K Shanmugam’ (9 July 2012) <https://www. mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclick4dc3.pdf> accessed 7 July 2014. 8 Ibid.

Benjamin Hong

sions, several convicted persons initially facing execution have been re-sentenced to life imprisonment.” Indeed, some of the notable cases include Public Prosecutor v Kho Jabing9 and Public Prosecutor v Wang Wenfeng.10 Ramesh suggested that the implementation of transitional provisions allowing authorities to apply the amendments retrospectively is just and reasonable as it would otherwise be “patently unfair to send one accused person to death while allowing another to serve life imprisonment even where the earlier offender might be less culpable”. With the revisions to the mandatory death penalty regime, the judiciary is undoubtedly given a greater discretion to met out the appropriate sentence. While the role of capital punishment may have been diminished, it has however not been subordinated and certainly remains an integral mechanism within Singapore’s criminal legal system.

9 10

[2014] 1 SLR 973. [2014] 2 SLR 636.

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KILLING THE UNBORN:

MURDER OR DEFENSIBLE? This article argues that Singapore’s fairly liberal approach that almost permits “abortion on demand” is defensible, with the caveat that the women procuring the

by Benjamin Hong University of Warwick

Killing the Unborn: Murder or Defensible

‘I cannot understand anti-abortion arguments that centre on the sanctity of life. As a species, we’ve fairly comprehensively demonstrated that we don’t believe in the sanctity of life. The shrugging acceptance of war, famine, epidemic, pain and lifelong, grinding poverty show us that, whatever we tell ourselves, we’ve made only the most feeble of efforts to really treat human life as sacred’. – British feminist Caitlin Moran, How to Be a Woman While Moran has taken a rather cynical and contracted approach in defence of abortion, the debate on this topic is indeed one that often polarises into a stand-off between the proponents of a foetus’s right to life and those who advocate for women’s right to choose (an abortion). It seems impossible that a consensus on the moral legitimacy of abortion will ever be reached, yet the law has been accorded the task of regulating it in a manner which demands rigour and precision. The current provisions governing abortion are encapsulated within the Termination of Pregnancy Act (Chapter 324), and this article proceeds by comparing the regime in Singapore with the Abortion Act 1967 of the United Kingdom, in an attempt to illustrate that even the substantively more paternalistic legislation under the English jurisdiction leans towards a ‘right to abortion’. In further examining the theoretical justifications of the legal systems through the antithetical pro-life and pro-choice perspectives, it will be argued that Singapore’s approach of liberalising the law in the direction of permitting ‘abortion on demand’ is defensible, with the caveat that the women procuring the medical procedure are competent and of sufficient mental capacity. THE LAW AS IT CURRENTLY STANDS The Termination of Pregnancy Act (Chapter 324) permits an abortion on demand if the pregnancy has not exceeded its twenty-fourth week; any procedures undertaken after the aforementioned timeframe are only lawful if their absence would be grievously injurious or life-threatening to the mother.1 This represents a major stride in the direction of liberalising abortion laws, given that until 1974, there was an additional prerequisite of obtaining an approval from the now defunct Termination of Pregnancy Authorisation Board.2 Nevertheless, the liberalisation process has been tempered by the introduction of mandatory pre-abortion counselling3 under the Termination of Pregnancy Regulations, although its practicality is questionable – only 4 per cent of the women decided against abortion after the counselling sessions.4 This stands in contrast to the Abortion Act 1967 of the United Kingdom, which at first glance, appears to be more stringent in providing for a lawful termination of pregnancy. Under the provisions of the Act, the procedure must be sanctioned by two 1 Termination of Pregnancy Act, s 4(1)(a). 2 Singh et al., ‘Abortion Trends in Singapore: A 25-Year Review’ (1996) 9(1) Journal of Pediatric and Adolescent Gynecology 27-30, 28. 3 Termination of Pregnancy Regulations, s 5. 4 Andrea Ong, ‘Number of abortions in Singapore fell in last six years’ The Straits Times (Singapore, 12 November 2013) <http://www.straitstimes.com/breaking-news/singapore/story/number-abortions-singapore-felllast-six-years-20131112> accessed 1 January 2014.

medical practitioners acting in good faith.5 This seemingly confers upon doctors the role of ‘gatekeepers’, where their unassailable discretion is central to the legality of an abortion. In light of this, the 1967 Act enumerates various statutory grounds for abortion, at least one of which must be satisfied – of particular contention is the ground ‘that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk,6 greater than if the pregnancy were terminated, of injury to the physical or mental health7 of the pregnant woman or any existing children of her family’.8 On this note, the Abortion Act 1967 is arguably tenuous and inadequate in providing clarity to the law – the inherent risks associated with a one-off abortion are likely to be less than those involved in a full-term pregnancy.9 Moreover, equally apparent should be the fact that it would be more harmful to the mental well-being of a woman if she were made to carry a foetus which she no longer has an interest in than it would be if she were allowed to terminate the unwanted pregnancy.10 Thus, any abortions procured before the twenty-fourth week of pregnancy may prima facie be made out despite the absence of an express and formal acknowledgement of a woman’s right to abortion. Lord Denning recognises this in Royal College of Nursing of the United Kingdom v Department of Health and Social Security,11 noting that the Abortion Act 1967 ‘has been interpreted by some medical practitioners so loosely that abortion has become obtainable virtually on demand’. These illustrate the basis of a comparison with the Abortion Act 1967 – that in practice, even a substantively stricter legislation than the Termination of Pregnancy Act appears to display a leaning towards women’s right to abortion. However, this approach is only defensible if it can convincingly address and dispute the opposing arguments arising from the pro-life camp. THE SANCTITY OF LIFE The ‘sanctity of life’ broadly refers to the lofty notion that life in itself is sacred and has an immeasurable intrinsic worth which should not be compromised. In the context of this article, it justifies a foetus’s right to life and militates against the procurement of abortion. That being said, the ability of an unborn child to assert the claim of embodying a ‘person’ is fundamental to any argument raised along this principle. Thus, at the heart of the matter lies the question of when does life truly begin? From a common law perspective, it is clear that a foetus in utero does not enjoy any separate legal personality. This is emphasised in Evans v Amicus Healthcare Ltd,12 where it was held that courts have consistently denied the existence of any ‘independent rights or interests’ of an unborn child. This is a view shared by those who contend that a foetus only translates into a person at birth, for it is at this moment when the child becomes a separate entity from the mother and possesses an independent existence. Christopher Kaczor, on the other hand, maintains that ‘the human embryo is a whole, complete organism, a living individual 5 Abortion Act 1967, s 1(1). 6 Emphasis added. 7 Ibid. 8 Abortion Act 1967, s 1(1)(a). 9 J K Mason and G T Laurie, Mason & McCall Smith’s Law & Medical Ethics (9th edn, OUP 2013) 336. 10 Ibid 336. 11 [1981] AC 800. 12 [2004] EWCA Civ 727.

Benjamin Hong

human being whose cells work together in a coordinated effort of self-development towards maturity’.13 In line with this illustration, the foetus will be accorded with the status of a person from the moment of conception, as a premise of this article – otherwise, any contention against the pro-choice approach within the abortion debate loses its significance given that terminating a ‘non-living’ foetus prior to birth can hardly be seen as morally repugnant. An alternative perspective is that even if a foetus at conception is not accepted as a separate entity from the mother, it has moral claims based on its potential to become one. We ought then to respect foetuses, for abortion would deny and deprive them of the future lives they may possibly lead. Christopher Nobs adapted a version of this, proposing ‘that the greater the likelihood the foetus will become a person the greater value it has’.14 This would in turn suggest that the later an abortion is procured, the more morally culpable a woman would be. It is however, ironic that the moral undertones running through pro-life arguments meant to safeguard a foetus’s right to life are similarly used by current legal provisions to justify a woman’s right to abortion, albeit in limited circumstances – procurement of abortion under the Termination of Pregnancy Act is lawful for a pregnancy of more than 24 weeks in the event that it is ‘immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman’.15 This reveals potential shortcomings in a notion that may compromise legal certainty where both the foetus and the mother have a prevailing claim to a right to life. THE AUTONOMOUS DECISION Modernisation and a growing emphasis on freedom of choice have placed patient autonomy at the forefront of medical ethics, a concept exemplified in this context by a woman’s ability to make an independent decision on the undertaking of abortion. However, it is vital to clarify the dichotomy between autonomy in relation to an unfettered right to rational self-determination (‘free will’) and with reference to the ability to act freely without the intervention of third parties (‘freedom to act’).16 The former can be traced to the Kantian ideology of autonomy, which relates to the rationality of an individual’s decision-making process, while the latter concerns itself more closely with the Millian concept of liberty, which focuses on the entitlement of a person to make a particular decision.17 Indeed, hypothetically speaking, the typical pregnant woman can possess a high degree of autonomy yet be restricted by the law in her liberty to undertake an abortion, while the converse may also be true in the case of an incompetent mother who possesses a high degree of liberty due to the generally lax laws governing abortion.

form of autonomy as well, its lack of capacity to consent to or repudiate the termination of its life should render the mother as the sole decision-maker with regard to an abortion. As can be seen, autonomy, as a fundamental yet deceptively familiar tenet, underpins the need to respect the bodily integrity of a competent individual within the realm of medical ethics. It is acknowledged in Airedale NHS Trust v Bland18 that ‘a medical practitioner must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not given … whether those instructions are rational or irrational’. Rather controversially, this includes the ability to refuse any medical treatments which may in turn, accelerate and ultimately lead to the death of a patient. In R v Blaue,19 a Jehovah’s Witness suffering from multiple stab wounds declined a blood transfusion on the basis of her religious beliefs – nonetheless, it was held by the Court of Appeal that this does not amount to a novus actus interveniens sufficient to break the chain of causation between the initial crime and her eventual demise. In light of this, given that the law permits adults of sufficient mental capacity to refuse life-saving treatments, why should this respect for autonomy be any different in the context of abortion? The answer is simply that the latter medical procedure affects a third party – the foetus. Judith Jarvis Thomson’s analogy of a dying violinist20 attempts to substantiate the argument that any interests a foetus may have that deserve protection are subordinated by the mother’s right to autonomy. In her fictional scenario, the reader is asked to imagine waking up one morning only to find himself kidnapped by the Society of Music Lovers and attached to a famous, albeit unconscious violinist via a system of tubes. The violinist requires nine months’ use of the reader’s kidneys and removal of these tubes before the period is due will result in the violinist’s death. Thomson then put forward the rhetorical question of whether we would accede to this situation (expecting the response to be an intuitive ‘no’), before arguing that a person having a right to life does not entitle it to demand the use of another’s body. Nevertheless, critics have attempted to distinguish Thomson’s analogy from the abortion debate. For instance, it can be argued that while a stranger is not legally obliged to keep the violinist alive, parents do owe a duty to care for their children.21 However, since the law does not compel parents to donate their organs where it is necessary to save their children’s lives, the mother should similarly not be prejudiced against terminating her unwanted pregnancy. THE WAY FORWARD

This article, while arguing that Singapore’s approach of liberalising the law in the direction of permitting abortion on demand is defensible, has the added caveat that the medical procedure be made available on demand only for women of sufficient competence and mental capacity at the material point in time. While it may be argued that the unborn child, by virtue of being a person from the point of conception, would have to be accorded some

Singapore has come a long way in regulating abortion procedures – from the more paternalistic regime of the past to the provisions under the Termination of Pregnancy Act as they currently stand, which effectively permits an abortion on demand if a pregnancy has not exceeded its twenty-fourth week. Nonetheless, moral pluralism within the jurisprudence on abortion has resulted in polarising sentiments towards a legal system that has adopted this approach. In particular, consensus between the pro-choice and pro-life camps on its moral legitimacy will never

13 Jonathan Herring, Medical Law and Ethics (4th edn, OUP 2012) 317. 14 Ibid 319. 15 Termination of Pregnancy Act, s 4(1)(a). 16 John Coggon and Jose Miola, ‘Autonomy, liberty, and medical decision-making’ (2011) 70(3) CLJ 523-547, 525. 17 Ibid 526.

18 [1993] AC 789. 19 [1975] 1 WLR 1411. 20 Mark Rowlands, ‘Arguments from intuition in Judith Jarvis Thomson’s “A defence of abortion” and Roland Dworkin’s “Life’s Dominion”’ (2011) 17 UCL Jurisprudence Review 1-18, 7. 21 Herring, Medical Law and Ethics (n 13) 330.

Killing the Unborn: Murder or Defensible

be reached, although as we have seen earlier, the Abortion Act 1967 under the English jurisdiction is perhaps the closest there is to a compromise, albeit a delicate one. However, it appears clear that in today’s context, the traditional notion of the sanctity of life (arguing for the foetus’s right) no longer takes precedence, necessitating greater significance to be accorded to the autonomy of the pregnant woman. This is by no means an attempt to undermine the value of life, but against the backdrop of the abortion debate, the uncertainty surrounding the status of a foetus as well as its lack of capacity to stake its claim have inevitably swung the needle in favour of the mother’s right to procure an abortion. Singapore’s approach of liberalising the law in the direction of permitting abortion on demand is thus defensible, and there are merits to be found in permitting an abortion on demand before the twenty-fourth week of pregnancy, provided that the woman is competent and of sufficient mental capacity. Admittedly, to abolish the twenty-four week timeline might be going a step too far, as the foetus would have become ‘capable of existing independently of the mother (with appropriate medical support)’ and developed sentience by then,22 thus having a greater moral claim to life. Nonetheless, in the midst of the abortion debate, we should not lose sight of the fundamental issue that has plagued society – the frivolous attitudes and mindset of certain groups of people towards conception and life; and treating abortion as an easy way out of unwanted pregnancies. A return to the more stringent legal model will not solve this problem, but instead potentially result in dangerous ‘underground’ procedures being carried out or generate even more suffering after the child is born and abandoned by the parents. Indeed, rather than judging the value of the choice to terminate a pregnancy, we should perhaps work towards increasing the accessibility of birth control mechanisms and educating the wider public on effective family planning. Any attempts to reform the current provisions governing abortion should be approached with caution.

Ibid 321-322.

Photo Credit: Wong Jun Hao https://www.flickr.com/photos/wongjunhao/3800773868

LABOUR SHOULD BE DIGNIFIED

Menial work in the construction industry has traditionally been looked upon with disdain by the average Singaporean. This is no excuse for construction workers to have any less protection from the law, especially when it concerns their employment rights. This paper examines the laws that govern our construction workers and their employers.

by Kok Weng Keong Kingâ&#x20AC;&#x2122;s College London

Labour Should be Dignified

“Who built the seven gates of Thebes? The books are filled with the names of kings. Was it kings who hauled the craggy blocks of stone? And Babylon, so many times destroyed. Who built the city up each time? In which of Lima’s houses, The city glittering with gold, live those who built it? In the evening when the Chinese wall was finished Where did the masons go? Imperial Rome Is full of arcs of triumph. Who reared them up?” -Bertolt Brecht, A Worker Reads History Like any other big city, London is no stranger to constant construction and infrastructural upgrades. However, what strikes this Singaporean student as an oddity is the profile of a worker in London’s construction industry. White, unionised, and often quite burly, one cannot but draw comparisons with Singapore’s own construction worker. This essay thus attempts to identify the legal problems faced by the labourers in Singapore’s construction industry. It will identify where the law, though sufficient, needs to be more rigorously enforced, and suggests other areas of the law that need greater clarification. PROFILE OF THE CONSTRUCTION WORKER There are more than three hundred thousand Work Permit holders in Singapore’s construction industry from countries such as Bangladesh, China, and India. A Work Permit occupies the lower ranks in Singapore’s classification of work visas, below that of the S-Pass, which requires employees to be paid a minimum of S$2200 a month.1 Construction workers in Singapore do not earn as much.2 The issuing of a permit is contingent upon an employer’s application on behalf of the worker. This results in a situation whereby the worker is bound to his employer and job for his length of employment in Singapore. GENERAL STANDARDS OF EMPLOYMENT A job in the construction industry has generally been associated with physical danger,3 with good reason. In 2013, there were a reported 115 fatalities under the Work Injury Compensation Act (“WICA”) Scheme.4 A well-designed safety framework, combined with robust healthcare regime would thus be fundamental to the health and wellbeing of all workers. Statutory provisions aiming to achieve both purposes have been provided for in secondary legislation to the Workplace Safety and Health Act5 and the Employment of Foreign Manpower Act.6 The Fourth Schedule7 makes a general provision for employers to 1 Ministry of Manpower, Press Release: Enhancements to Foreign Manpower Policy for Quality Growth and Higher Wages (2013). 2 An article from January 2013 asserts that a general wage paid to a Bangladeshi worker is S$700 per month. Salary guidelines for cleaners in Singapore suggest a minimum of S$1000 per month. Amelia Tan And Maryam Mokhtar, Low pay may deter foreign workers, The Straits Times, 3 January 2013, National Trade Union Congress, “Salary Guidelines” The Straits Times (Singapore, 19 October 2012). 3 George Ofori, Managing Construction Industry Development: Lessons from Singapore’s Experience (Singapore University Press 1994) 271. 4 Ministry of Manpower, ‘Reports and Statistics’ <http://www.mom. gov.sg/workplace-safety-health/resources/Pages/reports-statistics.aspx>. 5 Specifically, subsidiary legislation in the Workplace Safety and Health (Construction) Regulations 2007. 6 Specifically, subsidiary legislation in the Fourth Schedule of the Employment of Foreign Manpower (Work Passes) Regulations 2012. 7 Fourth Schedule of the Employment of Foreign Manpower (Work Passes) Regulations 2012.

“ensure the safety and health” of the worker, and to provide “safe working conditions”. It requires employers to purchase medical insurance with coverage of at least S$15,000 for in-patient and day surgery. However, the most robust safety framework cannot be fool proof. Accidents happen at the workplace for a myriad of different reasons, even with the most due diligence afforded. It would thus be justified for workers to be properly compensated when slips and accidents occur. Legislation has made special provision for this via WICA. A worker can make a claim for compensation under WICA if he or she is involved in a workplace accident, or suffers a disease due to work. WICA is a “no-fault” scheme; it does not require employees to establish employer negligence. Conversely, employer’s compensation liabilities are capped.8 The alternative route for obtaining compensation is for the injured worker to sue his employer in a civil action. It has long been established in the common law that employers have an obligation to ensure their employee’s safety while carrying out employment.9 Should employers not take reasonable care to ensure their employee’s safety, he might be judged to be negligent.10 This line of case law has been approved by the Singapore courts in the Singapore Court of Appeal case of Chandran a/l Subbiah v Dockers Marine Pte Ltd11 whereby the court held that employers had to take reasonable care for their employees under all circumstances,12 even when they were working at third party sites.13 From a policy perspective, this would be undesirable because litigation could be expensive and time-consuming. The Ministry of Manpower (“MOM”) assures that majority of WICA claims are settled within 3-6 months.14 Hence for the shallow-pocketed migrant worker, an MOM-administered compensation scheme with efficient support from MOM officials to guide workers through the compensation process would certainly be preferable to expensive lawyers and long-drawn court action. Should the worker choose to pursue a WICA-based compensation, he would not be allowed to sue his employer for tortious liability.15 FAIR PAYMENT Like any other workers, workers in the construction industry should receive wages on time in exchange for honest labour. The law affirms this; the Fourth Schedule16 requires employers to pay employees on time, and based on previously agreed upon fixed monthly wages.17 It recognises the duty of the employer to

8 Ministry of Manpower, Work Injury Compensation: A Guide for Employers (2013) 3. 9 Wilsons & Clyde Coal Company, Limited v English [1938] AC 57 at [84]. 10 Barber v Somerset County Council [2004] 1 WLR 1089 at 1109. 11 [2009] SGCA 58. 12 Ibid at [15]. 13 Ibid at [19]. 14 Ibid, at 4. 15 s33(2) WICA. 16 Employment of Foreign Manpower (Work Passes) Regulations 2012. 17 Clause 6: The employer shall pay not less than the fixed monthly salary due to the foreign employee not later than 7 days after the last day of the salary period. Any salary period agreed between the employer and foreign employee shall not exceed one month.

Kok Weng Keong

provide accommodation and food under the general umbrella of “maintenance and upkeep”18 for the foreign worker. This clause is significant in the face of the high, unaffordable cost of rent in Singapore for the low-wage migrant worker.19 To shift responsibility for accommodation from employee to employer would greatly alleviate a worker’s financial burden. The MOM also makes non-statutory requirements of employers to render proper orientation to workers upon arrival and to provide for the worker’s social and recreational needs.20 Although there are no legal implications for failing to fulfil these requirements, it does suggest a direction from the Ministry to cater to workers’ needs in a more holistic fashion. The lack of express legislation undoubtedly reduces the onus on employers to act. Yet, it would demonstrate the employer’s good faith should he go beyond the legislative scope in ensuring his worker’s welfare. This will ultimately lead to a happier and potentially more cooperative labour force. GAPS BETWEEN LAW AND PRACTICE When a serious workplace incident or occupation disease occurs,21 employers are obligated to report the incident to MOM within 10 days.22 This can be done via the e-Services on the MOM website, a procedure not unreasonably cumbersome. The penalties for failure to report are high.23 Yet, there have been instances of errant employers not reporting workplace accidents until ten months later.24 This essay has insufficient information about how rigorously MOM enforces this regulation, or how widespread this practice is. However, one must note that t he law is undisputedly clear about the employer’s legal obligations. Correspondingly, there have been no public records publishing errant employers, and list of prosecutions, unlike criminal cases. This paper thus advocates that the MOM regularly publishes a list of errant employers who have been prosecuted under the regulation in order to establish transparency. The message communicated by the law cannot be contradicted by a perceived absence in enforcement- it will in effect nullify legislation. Cynicism about the rule of law will breed amongst workers, while employers will become indifferent to legislation. Furthermore, this will prove detrimental to future MOM policy efforts when employers blatantly disregard today’s laws. 18 Clause 1: The employer shall be responsible for and bear the costs of the upkeep and maintenance of the foreign employee in Singapore. This includes the provision of adequate food as well as medical treatment. 19 Workers who found private accommodation had to pay an average of S$211 to rent a bed space in a Little India shop-house. Balambigai Blakrishnan, Chrstine Pelly, Debbie Fordyce, Pat Meyer, Migrant Worker Housing: A Survey of Men in TWC2’s Cuff Road Project (TWC2, September 2013) 35. 20 Ministry of Manpower, ‘Instructions to Employers’ <http://www. mom.gov.sg/foreign-manpower/passes-visas/work-permit-fw/before-you-apply/Pages/overview.aspx>. 21 s6(1)a Workplace Safety and Health (Incident Reporting) Regulations defines this as a case where the employee is granted more than 3 days of sick leave (consecutive or otherwise) by a registered medical practitioner on account of that accident. 22 s6 and s7 Workplace Safety and Health (Incident Reporting) Regulations. 23 s10 Workplace Safety and Health (Incident Reporting) Regulations: A fine of $5000 for a first time offence and a fine of $10 000 and/or jail term of up to 6 months for subsequent offences. 24 Keith W, ‘Nazim’s Employer Did Not Report to Ministry For Ten Months’ (“Transient Workers Count 2” 15 February 2014) <http://twc2. org.sg/2014/02/15/nazims-employer-didnt-report-accident-to-ministry-for-ten-months/>.

Prompt reporting of workplace injury is beneficial on two levels. Firstly, it ensures that MOM has updated, relevant information on the nature of workplace injuries. This will allow better formulation of updated safety regulations and guidelines, thereby also preventing similar future injuries. Secondly, it ensures workers receive prompt compensation via WICA. Prompt compensation affirms the rule of law in our country. It is only just that workers are fairly compensated for injuries. A more transparent approach on the part of MOM with regards to prosecutions is imperative. CLAIMS UNDER THE WORK INJURY COMPENSATION ACT Compensation claims from work injuries can unduly burden the Courts by their volume. WICA is hence positive legislation because it streamlines the compensation process while ensuring choice for the worker when deciding whether to make a claim via civil action or WICA. The WICA claims process also does not require a lawyer. This ensures that workers receive full compensation, instead of a situation whereby a portion of the compensation is being spent on legal fees. Yet the WICA process can be unduly intimidating for a foreign worker whose first language is not English. The claims process is meant to be an independent one. An injured worker should be able to file a claim on his own without further help. This is to guard against the probability of employer abuse of the system. A worker with an uncooperative employer can always lodge his own claim with the MOM and start the claims procedure himself. Hence this essay suggests that the MOM take steps to make the claims process less intimidating. It could start, for example, by increasing the number of MOM Officials who speak workers’ native languages- Bengali, Hindi, Tamil, and Mandarin. Increased action should also be taken to ensure the awareness of the independent nature of the WICA claims procedure. Workers should know that they themselves could approach MOM to start a claim without any third-party help. WICA leaflets should be translated into native languages and distributed at workers’ dormitories. The only mandatory orientation upon arrival in Singapore is the Construction Safety Orientation Course, which is primarily concerned with safety standards at the workplace. Additional emphasis about workers’ rights and recourse should also be incorporated into the orientation session. This essay notes the exemplary efforts made by NGOs in supporting workers through the WICA claims process, and educating them on their options with regards to whether to make claims via civil action or WICA. The Migrant Workers Centre provides pro bono legal advice to injured workers while Transient Workers Count Too (“TWC2”) runs a regular meal program. The Human Organisation for Migration Economics (“HOME”) sets up Help Desks to give assistance to workers when reporting workplace violations to MOM. However, we must note that ultimately NGO action should be a last resort for the least informed of the workers. In order for an efficient claims process to work, workers should already know of their rights beforehand. By relying on NGOs to give advice to workers who step forward, we might end up letting substantial numbers of workers slip through the cracks.

Labour Should be Dignified

A report done by TWC2 on workers in their meal program reported an overwhelming 94.5% of workers who engaged lawyers for their claims.25 This is despite the fact that workers are claiming under WICA instead of civil action. This is unnecessary. WICA was implemented so as to provide an alternative route to claims without going to the courts. A high reliance on lawyers even when workers claim under WICA suggests that workers lack education about their rights. It leads to unnecessary legal costs and unnecessary work. ISSUES WITH SALARY PAYMENTS On matters of salary payments, Clauses 6 and 7 of the Fourth Schedule govern employers.26 The requirements are quite simple, primarily calling on employers to pay the “fixed monthly salary”27 monthly, no later than 7 days. However, the implementation of this clause can give rise to problems in practice. Some common practices with regards to payment of salary include the lack of pay-slips, or in the cases where pay-slips were issuedthe lack of proper itemized pay-slips. Payment is also not done electronically.

importing foreign manpower from the European Union and other countries to work in construction industries, one could argue that the ratio of foreign to local construction workers in Singapore is far more heavily skewed towards the former than in the UK. The Singaporean population’s dislike for construction work is well established.29 In the UK, and many other countries, construction work is a “medium-skilled” job.30 Hence the Singaporean’s preference of not performing construction work should not translate into a dislike for the labour that performs that work. It is noteworthy that Singaporean property-related businesses are the biggest beneficiaries of low-wage labour.31 Martin Luther King Jr. once wrote a book titled “All Labour is Dignified”. Indeed Singaporean laws should recognise how valuable foreign labour is to the Singaporean economy, and should promote stricter enforcement of their rights.

This form of payment inevitably leads to abuse. The lack of itemised pay-slips can allow employers to improperly account for the total amount of work the worker has done (for example, conveniently excluding overtime pay) leading to underpayment of the worker. In cases whereby pay-slips were not issued at all, there would effectively be no accountability mechanism to ensure workers were indeed paid. Workers, by virtue of their Work Permit, are bound to a particular job. A termination of employment by their current employer will lead to repatriation to their home country. Hence in situations of non-payment of salary, workers might choose to remain silent in hope of future payment instead of raising a dispute fearing repatriation. Payment of salaries should hence be done electronically. Section 5 of the Fifth Schedule,28 which regulates the “S Pass” category of work visas, requires employers to pay workers via the General Interbank Recurring Order (GIRO) system. There is no reason why this provision should not also apply to workers in the “Work Permit” category of work visas. Electronic payment will ensure transparency and greater employer accountability. All work is dignified, and Work Permit holders should not suffer the consequences of lax payment methods merely because they are less skilled and earn less. CONCLUSIONS Legislation governing the employment of foreign manpower to supply labour to Singapore’s construction industry is satisfactory and sufficient. However, what is lacking is the strict enforcement of this legislation. Singaporean attitudes towards construction work have been a perennial problem for the construction industry, leading to the importation of foreign manpower to fill in this gap. Though this practice is certainly not unique to Singapore, and the United Kingdom itself is also 25 Debbie Fordyce, ‘Widespread but unnecessary reliance on lawyers’ (“Transient Workers Count 2” 14 July 2013) <http://twc2.org.sg/2013/07/14/ widespread-but-unnecessary-reliance-on-lawyers>. 26 Employment of Foreign Manpower (Work Passes) Regulations 2012. 27 Fixed monthly salary refers to the basic monthly salary and fixed monthly allowances. They do not include overtime pay, bonuses, amongst other miscellaneous payments. 28 Employment of Foreign Manpower (Work Passes) Regulations 2012

29 Linda Lim, “What’s Wrong With Singaporeans?” Hard Choices: Challenging the Singapore Consensus (NUS Press, 2014) 80. 30 Ibid at 81. 31 Ibid.

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NEUROIMAGING IN CRIMINAL TRIALS “experiential knowledge” of crimes, has been hotly debated. This article considers the vast implications of the technology.

by Esther Lim University College London

Esther Lim

INTRODUCTION

SCIENTIFIC VALIDITY

In 2008, an Indian lady, Aditi Sharma, was convicted of the murder of her former fiancé, making India the first country in the world to convict a criminal defendant of murder based on a brain scan which indicated “experiential knowledge” of the murder. The brain scan managed to convince the court that Aditi had a specific knowledge of murdering her fiancé, as opposed to merely having heard the details of his murder. The use of neuroscientific evidence, especially in a murder trial, was hotly debated, and sparked off huge debate throughout scientific and legal communities.

At present, there is no general consensus on the reliability of brain scans in detecting lies. As a commercialised technique, it has received much support from the private sector, with companies marketing the technique claiming that it is at least “90% accurate”.5 Yet, amongst researchers, the use of such technology in India was met with widespread skepticism, being called “shaky at best”6 and criticised due to lack of peer-review and independent replications.

Unsurprisingly, this debate has arrived in Singapore. In the Bioethics Advisory Committee’s 2013 public consultation paper on Neuroethics,1 the first of the six identified areas of concern was neuroimaging. While the applications of neuroimages, be it in research, medicine or courtrooms, are wide-ranging, the consultation paper drew attention specifically to the possibility of using brain scans as lie detectors in courts. It is thus worthwhile contemplating the possible implications of the use of neuroimages in criminal trials. There are two main methods of measuring brain activity which have been used to detect untruthfulness.2 The first, Functional Magnetic Resonance Imaging (fMRI), measures brain activity by creating magnetic images of blood oxygen in the brain. Active areas of the brain use more blood and consequently, show up brighter when imaged.3 Computer software creates a colour-coded three dimensional map of brain activity. The location of brain activity thus allows a researcher to infer how familiar a stimulus is to a subject by associating it with specific cognitive functions. The second method measures the brain’s electrical activity using electronencephalographic (EEG) sensors placed on the head.4 Researchers compare brain activity for stimuli, which are familiar or unfamiliar to the subject, to calibrate baselines which new stimuli are then compared to. The new stimuli can then be categorised as either familiar or unfamiliar. With both these methods, brain activity can either be measured when the subject is asked to actively respond to a series of questions, or when his or her passive perception to images or statements is processed. The goal is ultimately to demonstrate the accused has experiential knowledge that only the perpetrator of the crime would have. This paper deals with three main concerns with the use of neuroimages in lie-detection: first, the scientific validity of such evidence and, consequently, their admissibility in court, second, the implication of such techniques on the right against self-incrimination, and third, the effect on the right to privacy.

1 Bioethics Advisory Committee, Singapore, Ethical, Social and Legal Issues in Neuroscience Rearch: A Consultation Paper. 2 Brian Farrell, “Can’t Get You Out Of My Head: The Human Rights Implications of Using Brain scans as Criminal Evidence” [2009] 4 Interdisciplinary Journal of Human Rights Law 89. 3 Matthew Holloway, “One Imagine, One Thousand Incriminating Words: Images of Brain Activity and the Privilege against Self-Incrimination”, [2008] 27 Temp. J. Sci. Tech. & Envtl L. 141. 4 Mark Pettit, Jr., “FMRI and BF meet FRE: Brain Imaging and the Federal Rules of Evidence,” [2007] 33 Am. J. L. & Med. 319.

Singapore’s Evidence Act 1997 provides the framework of rules for the types of evidence that can be admitted during court proceedings. Section 47 of the Act concerns the expert opinions of third persons “upon a point of scientific, technical or specialised knowledge.” However, s.47 does not stipulate a test for whether a field of expertise, neuroimaging lie detectors in this case, is one worthy of recognition by the law of evidence. Authoritative interpretations in Singapore on how scientific evidence is evaluated in courts are relatively rare. However, the Report of the Law Reform Committee on Opinion Evidence7 has taken two cases as instructive in this matter. Firstly, in the case of Nadasan Chandra Secharan v Public Prosecutor,8 involving the DNA analysis of a tooth fragment, Yong Pung How CJ said, “We do not doubt the immense value of DNA evidence and its use in criminal trials. However, every failure of the procedure stated in the validation paper would, in our view, affect the weight to be attributed to the expert evidence unless there were other independent sources to verify and confirm that such departures did not affect the reliability of the findings.” In PP v Tay Wee Guan,9 Rajendran J said, “DNA evidence is indeed a very useful tool in the prosecution’s armory. It is, however, a relatively new and esoteric science and every effort should be taken to have a clear understanding of its implications and limitations before reliance is placed on it.” The Law Reform Committee has interpreted these two cases to indicate that Singapore’s approach to evidence from novel fields of science would be similar to the stance adopted in English courts, as established by Kennedy LJ in R v Dallagher,10 where there is a low barrier of admissibility for such evidence, but the court evaluates the weight attached to evidence arising from “novel science.” This is unlike the case in the United States and New Zealand, where the Daubert and Calder rules (elaborated on below) respectively set a high barrier to admissibility of evidence. Rather, it is likely that either the Daubert or Calder rules will be used when deciding how much weight to attach to the evidence. The Daubert rules come from the United States, where discourse on which emerging fields of knowledge can be applied in courts is most extensive. The test was developed in Daubert v Merrell Dow Pharmaceuticals, Inc11 and requires that the evidence be grounded in the scientific method and relevant to the inquiry before the courts. The courts, while not wishing to “set out a definitive checklist or test”, also suggested further criteria, such 5 See http://www.noliemri.com/products/overview.htm. 6 Giridharadas, Anand. “India’s Novel Use of Brain Scans in Courts is Debated,” New York Times 14 Sept 2008. 7 Vinodh Coomaraswamy, S.C., Report of the Law Reform Committee On Opinion Evidence, Singapore Academy of Law, October 2011. 8 [1997] 1 SLR 723. 9 [1997] SGHC 133. 10 [2002] EWCA 1903. 11 Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Neuroimaging in Criminal Trials

as whether the theory could be or has been tested or peerreviewed, the potential rate of error of the technique and the existence of standards controlling the technique’s operation. Also of use is the Frye test, which was developed by the DC Court of Appeal in 1923 regarding the polygraph test.12 The Frye test asks whether the novel scientific evidence has reached the point where it is generally accepted by scientists in the field. While Daubert held that the Frye rule was overtly austere as rules of evidence had a “liberal thrust” and was thus too inflexible to govern the admission of scientific evidence, it was suggested in Daubert that the Frye test be used as an evaluative aid in conjunction with the Daubert rule. New Zealand’s Calder test comes from the case of R v Calder,13 which involves the admissibility of the results of a scientific technique that analysed hair for traces of a chemical. Tipping J held that the prerequisites for admissibility were that evidence must be shown to be both relevant and helpful. In order to be relevant, it is the test of ordinary logical relevance, and to be helpful, the evidence must be sufficiently reliable. Though a definitive test has not been laid down for Daubert, Calder is still said to be more flexible, as judges can take into account any factors derived from case law to test reliability, which do not have to be limited to those concerning scientific grounding.14 It is not yet known if Singaporean courts will follow the inference drawn by the Law Commission and apply the tests after the evidence has been admitted, like in England, or follow the US and New Zealand example. However, even if these tests are applied after the admissibility stage in Singaporean courts, the furore over the Aditi Sharma case suggests that courts, when deciding the amount of weight to give neuroimaging evidence, would be hard-pressed to find that brain scan lie-detecting technology meets the Daubert reliability standard or passes the helpfulness prong of the Calder test. Tellingly, apart from India, there has been no jurisdiction to date admitting fMRI evidence as a means of lie detecting. As such, United States courts have on two separate occasions rejected appeals from convicted defendants to adduce evidence from brain scans as proof of their evidence, holding that the testimony would not be factually exonerating. At this point of time, one would indeed hope that courts view such lie detection methods with some amount of scepticism.

sole source of neuroimaging evidence. That said, most judges in Singapore lack scientific expertise, and the impact of neuroimaging on their subconscious judgment, even if less than that of a lay-man, may not be negligible. We must be careful not to let the developing science of brain image technology encroach upon and cloud judge’s sensible exercise of discretion. Yet this danger is palpable if we allow such technologies to define and determine what constitutes facts in any given case. Of course, the strength of this argument will necessarily be weakened as advances in neurological research enhance the reliability of brain scans as lie detectors. It is possible that one day, brain scans become used as ubiquitously in courts as genetic testing is today. Yet, even with the progress of neurotechnology, it is important to be wary regarding the weight attached to such evidence in court. Firstly, it is important to acknowledge the inherent margin of error in any form of scientific testing. While DNA testing is now seen as according a high level of accuracy in comparing biological samples, doubt has been cast upon the use of DNA evidence in court,16 despite DNA evidence being almost universally admissible. The use of brain scans to detect lies from one’s memories, which are a result of subjective interpretation and not fully understood by psychologists today, warrants even more caution. This is especially since brain scans are more similar to traditional lie detecting (which is universally inadmissible), which uses measures of physiological statistics such as pulse rate and blood pressure as an indication of lying, as opposed to DNA testing, which provides more direct evidence. Secondly, even if neurological lie-detection reaches a satisfactory level of reliability and repute, there is a danger of scientists taking over the judges’ role as primary finders of fact, significantly encroaching on the role of the judiciary. Widespread use of lie detectors in criminal courts could thus profoundly impact the legal system and courts must be mindful of defining and protecting the judicial turf. GUARANTEE AGAINST SELF-INCRIMINATION

The scientific validity of neurological lie detectors has more farreaching implications in the field of human rights. All major international human rights instruments contain the guarantee to a fair trial.15 Article 9(1) of Singapore’s Constitution states that “No person shall be deprived of his life or personal liberty save in accordance with the law” – this necessarily implies the right to a fair trial. Admitting inadequately reliable scientific evidence would arguably violate this right. This is especially so given the possible effect of neuroscientific evidence on judges. The President’s Council on Bioethics suggested that “jurors can be dazzled by the display,” as neuroimages tend to have a more profound effect on jury determinations than verbal testimony. Of course, Singapore does not employ a jury system, and judges, with their legal training, are arguably not easily swayed by the

Even if neurological lie detectors are found to be accurate enough to meet court standards, they may still violate the fair trial guarantee of the guarantee against self-incrimination. Tied to the concept of the right against self-incrimination is the right to silence, which is the right of the defendant to refuse to provide an answer when questioned, either prior to or during legal proceedings in a court of law. The right to silence and against self-incrimination protects the innocent from conviction and the accused from improper conduct by law enforcement officials, effectively safe-guarding the fundamental aims of criminal justice.17 This right is entrenched in the International Covenant on Civil and Political Rights (ICCPR) and the American Convention of Human Rights (ACHR). Though the European Convention of Human Rights (ECHR) does not explicitly list right to silence as a fundamental right, the European Court of Human Rights (ECtHR) has held that the right to silence is a constitutional right.18

12 Frye v United States, 293 F. 1013 (D.C. Cir 1923). 13 Unreported, 12 April 1995, High Court, Christchurch Registry T 154/94. 14 Karen Belt, “Novel Scientific Evidence and Judicial Gatekeeping: R v Calder and Daubert v Merrell Dow Pharmaceuticals Compared” [1998] Victoria University of Wellington Law Review 14. 15 ICCPR art. 14(1), ECHR art. 6(1), ACHR art. 8(1).

16 Linda Geddes, “How DNA evidence creates victims of chance” [2010] 2774 New Scientist 8. 17 Michael Hor, “The Confessions Regime in Singapore” [1991] 3 MLJ Ivii. 18 John Murray v UK [1996] Eur. Ct. H.R. 45.

Esther Lim

The Human Rights Committee, in General Comment 13,19 states that the accused may not be compelled to testify against himself or herself, and any form of compulsion is “wholly unacceptable”. In a more active brain scan method, where a defendant gives responses to questions aloud, it is clear that a testimony has been made, and that a defendant cannot be compelled to comply against his or her will. However, it can be argued that brain scans which track subconscious or passive perceptions do not constitute testimony, but are rather simply a sample of the defendant’s physical being, much like a fingerprint, blood sample or DNA tests, which are regularly required in criminal trials. A possible approach courts could use in tackling this distinction is raised in Jalloh v Germany20. Here, the ECtHR held that compulsory powers may be used for “real” evidence, which are defined as evidence with “an existence independent of the will of the suspect.” Here, breath, blood, urine and body tissue apply and can be used in criminal proceedings. It is unlikely that a person’s subconscious thoughts and memories will be seen as having an independent existence from the individual, and is thus unlikely to pass the test of “real” evidence. That said, Singapore is not a signatory to the ICCPR, and has adopted a rather loose interpretation of the guarantee against self-incrimination. Thus, one cannot assume an international analysis of the implication of lie-detecting technology on the guarantee against self-incrimination will necessarily translate directly onto Singaporean law. In 1977, Singapore’s Criminal Procedure Code was amended such that though a defendant did have the right to remain silent, according to Section 291(3), the courts could draw inferences “as appear proper” from an accused’s refusal to give sworn testimony or answer questions after being sworn or affirmed. In PP v Mazlan bin Maidun,21 the Court of Criminal Appeal decided the privilege against self incrimination “has never been regarded as subsumed under the principles of natural justice” and that the contrary view would require an unjustifiable degree of “adventurous extrapolation.” English law has a similar provision to s291(3) in the Criminal Justice and Public Order Act 1994 (CJPOA), which has been affirmed by the ECtHR in John Murray v UK22, where it was unanimously held that the right to silence is not absolute and that a system that allowed inferences to be drawn from silence was permissible under Article 6. However, there has been much development in how the Court of Appeal regards the criminal process since Mazlan. In Nguyen Tuong Van v Public Prosecutor,23 the Court of Appeal interpreted Art 9(1) of the Constitution to determine that “the phrase “in accordance with law’ … connotes more than just Parliamentsanctioned legislation … [and] incorporates fundamental rules of natural justice.” This could indicate a step away from the more restrictive and literal approach in Mazlan, where it was determined that the right to remain silence was merely an evidential rule without constitutional status. However, at present, the highest court in Singapore continues to hold that the guarantee against self-incrimination is not absolute, and given that English legislation and case law, which is persuasive in Singapore, has taken a similar stance, Singapore is likely to adopt a similarly flexible approach towards the guarantee 19 20 21 22 23

General Comment 13 (13 Apr. 1984). App no 54810/00 (ECtHR, 11 July 2006) [1993] 1 CLAS News 135. App no 47940/99 (ECtHR, 27 June 1994) [2005] 1 SLR(R) 10.

against self-incrimination and instead place more emphasis on the reliability and accuracy of such lie detection techniques. Should brain scan lie detection techniques become reliable enough to be given weight in courts, they may not be made compulsory, but courts may reserve the right to draw adverse inferences from a defendant’s unwillingness to take the scan. Though adverse inferences are only to be drawn in “appropriate circumstances”,24 inferences can be drawn of guilt itself,25 and defendants may feel they have little choice but to agree to a brain scan. That said, it must be noted that brain scans could potentially protect the innocent, as they would potentially decrease the incidence of false confessions and erroneous convictions.26 RIGHT TO PRIVACY The ECtHR in Jalloh v Germany also considered the intrusiveness of brain scans. It is difficult to argue against the invasiveness of such a method – as put by Stanford University’s Hank Greely, the use of brain scans as lie detection tools would invade “a last inviolate area of self ”.27 Article 12 of the Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary interference with his privacy”. The ECHR establishes a quasi-constitutional basis for privacy protection, requiring any interference with the right to “respect for private and family life” to be in accordance with the law, and necessary in a democratic society in the interests of “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”28 The exposure of one’s thoughts and memories is quite likely to fall within the ambit of a violation of one’s privacy and private life. That said, privacy law in Singapore is not well-developed. Singapore’s Constitution has no express provision regarding the right to privacy, and there is at best an inferred right of privacy that can be read into Singapore’s due process provisions, especially Art 9(1), as part of the fundamental rules of natural justice.29 It is possible that a more activist court could take an approach similar to India, where there is also no express right to privacy, but courts have taken a liberal approach to the Indian constitution, inferring a right to privacy from the right to personal liberty in Art 21 of the Indian constitution, which is similar to Art 9(1) of Singapore’s Constitution.30 In terms of statute law, the Personal Data Protection Act 2012 was the first piece of legislation in Singapore that dealt comprehensively with privacy or data protection. Unlike the human rights-led approach towards privacy in Europe, Singapore places more focus on data protection due to the economic imperative to global standards in order to integrate with global networks31 – 24 Took Leng How v PP [2006] 2 SLR 70; [2006] SGCA 3. 25 Chai Chien Wei Kelvin v PP [1999] 1 SLR 25. 26 Erin B Pulice, “The Right to Silence At Risk: Neruoscience-Based Lie Detection in the United Kingdom, India and the United States” [2010] 42 Geo. Wash. Int’l L. Rev. 865. 27 Hank Greely, “The Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives,” in Judy Illes (ed.) Neuroethics: Definining the Issues in Theory Practice and Policy 245 [2005]. 28 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222, Eur T.S. 5, art 8 [European Convention of Human Rights]. 29 Samuel Wee Chong San, “Privacy Law: A Case for the protection of Informational Privacy in Singapore” [2013] 31 Singapore Law Review 143. 30 Ibid. 31 Simon Chesterman, “After Privacy: The Rise of Facebook, The Fall of Wikleaks and Singapore’s Personal Data Protection Act 2012.” [2012] SJLS 391.

Neuroimaging in Criminal Trials

the difference being that while a right of privacy is generally a limit on government powers to prevent interference with reasonable respect for private life, data protection requires an expansion of government powers to monitor the collection, use or dissemination of personal data.32 Thus, in criminal issues, it is unlikely that Singaporean courts will take a rightsbased approach on the matter of brain scans invading the privacy of suspects. Singaporean courts will probably advance the pragmatic argument that criminal trials are not “arbitrary interference”, and that the use of brain scans in trials falls within the ambit of “the prevention of disorder or crime” as lain down by the ECHR. While criminal trials typically do involve some invasion of individual privacy, such as through the powers of search and seizure granted to law enforcement agencies, it is inadequate to see brain scans as simply another extension of the criminal justice system’s right to search a suspect’s premises or person or acquire bodily samples. The nascent field of cognitive liberty has many different human rights implications and must be considered in greater detail by bioethicists and lawyers. CONCLUSION There is an obvious appeal to the possibility of a technology that can confirm culpability by accessing an accused’s memories. Yet courts must be careful when approaching such technologies. The brain and the mind are still not fully understood by scientists and it is unlikely at this point that neurotechnology can be relied upon when life and liberty are at stake. As neuroscience surges ahead, it is important that courts fully consider both the scientific validity of these techniques and their implications on human rights. However, it is unlikely that traditional views on human rights and privacy will suffice – courts must consider the infinitely deeper consequences as the law now seeks to infiltrate the mental realm.

32 Daniel E. Newman, “European Union and United States Personal Information Privacy and Human Rights Philosophy – Is There a Match?” [2008] Temp. Int’l Comp. L.J. 307.

Photo Credit: Pink Dot SG A record-breaking 26,000 Singaporeans gathered at Hong Lim Park this year celebrating the freedom to love.

THE RAINBOW AFTER THE STORM

Debates have been held and Bills have been passed. The world is moving towards the acceptance of same-sex marriage. Should Singapore follow in its footsteps,

by Samantha Kong University of Southampton

The Rainbow After the Storm

INTRODUCTION The past decade has marked an incredible change in attitudes towards homosexuals all across the globe. Earlier this year, the Illinois Senate approved a bill for same-sex marriage on Valentine’s Day itself, a romantic gesture for many homosexual couples who chose the special day to commemorate their case for the right to marry. Elsewhere, the United Kingdom has passed the (Same Sex Couples) Act 2014 legalising same-sex marriage, which came into effect on 13 March. On the flipside, many countries are still far from legalising same-sex marriage. Some Commonwealth states even continue to criminalise consensual homosexual sexual activity. Singapore is one such country— consensual homosexual male sexual activity is criminalised under Section 377A of the Penal Code. Numerous organisations around the world have tried to alter such seemingly discriminatory legislation, such as the Human Dignity Trust,1 which provides homosexuals with funds for litigation in hopes to legalise consensual homosexual sexual activities in Commonwealth jurisdictions. The following will be a series of arguments for and against criminalising homosexual sexual activities in Singapore. This article will place greater emphasis on homosexual sexual activities as a direct consequence of Section 377A in Singapore, and laws to legalise same-sex marriages, as a likely follow-up in time, should Section 377A be repealed. Subsequently, a comparison will be made between Singapore’s circumstances and other countries that have legalised homosexual consensual activity to evaluate those arguments. HISTORY OF 377A IN SINGAPORE The concept of Section 377 originated from the British antibuggery laws in 1534.2 In 1985, renowned author Oscar Wilde was convicted under UK’s Criminal Law Amendment Act for indecent behaviour with other men. That very Amendment Act was subsequently incorporated in the laws of countries in the Straits Settlements- the British Colonies in Southeast Asia, consisting of Singapore, Malaysia and Penang. Even though the UK has since progressed to remove all laws that criminalise homosexual sexual activity, many of their former colonies, including Singapore, retain the law. Section 377A in Singapore’s Penal Code criminalises sex between mutually consenting adult men. Section 377A reads: “Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.” Peculiarly, 377A only prosecutes gay men while lesbianism seems to be overlooked by the statute completely. This unusual phenomenon is possibly reflective of the patriarchal notions 1 UK-based organisation that seeks to alter laws in the Commonwealth that criminalise homosexual sexual acts. Read more at http://humandignitytrust.org. 2 D. E. Sanders, ‘377 and the Unnatural Afterlife of British Colonialism in Asia’ [2009] AJCL 1.

of human sexuality expressed by former British colonists, who did not consider lesbian sex “proper sex”.3 The notion harboured then was that of sex being a largely “penis-driven” activity.4 Accordingly, the statute does not account for sexual acts between women, such as cunnilingus and fingering, which do not involve a penis. Discreetly, this demonstrates that while general sexual preferences have developed considerably, the law on sexual acts amongst homosexuals in Singapore still remains unchanged and is based on archaic notions. RELEVANCE OF 377A AGAINST THE BACKDROP OF CHANGING ATTITUDES TOWARDS HOMOSEXUALITY Compared to the predominantly Western countries that have legalised same-sex marriage, Singapore has a larger Asian majority. In defence of retaining 377A, the government often espouses the so-called more conservative “Asian values” and “Asian traditions” as justifications. It has been suggested that because of these values, ideas such as homosexuality are a taboo topic in Singapore. Time and again Singapore’s politicians have used the “conservative” card to justify the state’s reluctance towards legalising homosexual behavior. At the World Human Rights Conference in Vienna, former Foreign Minister Wong Kan Seng claimed, “Homosexual rights is a Western issue, and are not relevant at this conference.” 5 More recently, Mr Goh Chok Tong, during his National Day Rally speech, also stressed that he did not “encourage a gay lifestyle, as Singapore is still a traditional, conservative Asian society.”6 In 2007, Prime Minister Lee Hsien Loong reiterated the same themes when the repeal of 377A was ruled against. However, is Asian culture that conservative and traditional? Deconstructing the Singaporean myth of Asian sexuality exposes several illogical points:7 It is a gross generalisation to assume that Asians are virtuous and sexually conservative as opposed to Westerners (and indeed, circular reasoning to presume that homosexuality lacks virtue). The notion of conservative Asian values is a concept that is in denial of the past and the present. Western history has its fair share of conservativeness, evidenced by Victorian England and the Judaeo-Christian tradition. In contrast, the growing sex industry in Southeast Asia and, for example, the creative sexual preferences of the Japanese fail to lend support to the notion that Asians remain sexually conservative. Still, perhaps isolated examples are not sufficient to disprove the general trend and both sides do field strong arguments. Perhaps the question to consider is not at all about the conservativeness of Asian culture. Hri Kumar makes an interesting point about the existence of 377A in our laws.8 The gist of his argument was that s377A exists because it was 3 Gabrielle Chong , ‘Of Penal Code 377, Lesbian Sex and Patriarchy’ (Tilted World: A Malaysian LGBT Community Project 2009) <http:// tiltedworld.org/2009/04/20/of-penal-code-377-lesbian-sex-and-patriarchy/> accessed 31 Jan 2014. 4 ibid (n 3). 5 Wong Kan Seng, 1993. 6 Goh Chok Tong, 2003. 7 L. Leong, ‘Asian Sexuality or Singapore Exceptionalism?’ [2012] LLR 11. 8 Hri Kumar, Parliamentary Reports 22 October 2007.

Samantha Kong

transposed into our law wholesale from the days of British colonialism, hence removing it may seem cumbersome. Thus, the key question should not be whether we should repeal 377A but rather, assuming the section did not exist, would we have actively criminalised homosexual activity? In order to evaluate if Singapore should move towards decriminalising homosexual activity, we will now examine some of the arguments against repealing 377A and evaluate whether change is indeed necessary. In order to consider the relevance of the 377A in the current legal system, we have to look to its basis and its constitutionality. ARTICLE 12 AND THE CONSTITUTIONALITY OF 377A Despite not subscribing to a general convention of human rights, Article 12(1) of the Singapore Constitution, which reads: Equal protection 12.—(1) All persons are equal before the law and entitled to the equal protection of the law.

that Singapore’s legal system is based heavily on that of the UK, stemming from the Court’s reasoning in Lim, the logical corollary would be for Singapore to change its laws and progress with the times—time should not be a major determining factor as to whether a law is just. DISCRIMINATION BETWEEN MALE AND FEMALE HOMOSEXUALS Tan Eng Hong v AG10 was the landmark case that challenged the constitutionality of 377A. The main thrust of the defendant’s argument in this case was that it was discriminatory that oral and anal sex was criminal only for consulting adult men, and not heterosexual and lesbian couples. Hence, due to the differing treatments between the two groups, 377A violated Article 12 of the Singapore Convention and was unconstitutional. The Courts followed the two-stage test laid down in Yong Vui Kong v Public Prosecutor and another matter11 where it was held that “a differentiating measure prescribed by legislation will only be consistent with Art 12(1) only if: (a) the classification was founded on an intelligible differentia; and

might be the basis of conferring a right to homosexuals if “sexual preference” is included under one of the protected “classifications”. Several cases have been raised about the relationship between Article 12 and 377A. The point of contention is whether 377A infringes Article 12, as it discriminates against homosexuals. DISCRIMINATION BETWEEN HOMOSEXUALS AND HETEROSEXUALS In the case of Lim Meng Suang,9 where the Courts considered the issue of whether s377A is consistent with Article 12 of the Singapore Constitution, an important point was raised regarding whether 377A still continues to serve a legitimate purpose. The Courts had mentioned that they will not be quick to “dismiss practices that have developed within the framework of a common law legal system, and that a law that has withstood the test of time, cannot be devoid of any basis. ” The Courts thus held that any change in law should be the decision of Parliament. In Lim, the plaintiffs argued that there has been a worldwide movement to decriminalise homosexual activity in other jurisdictions. Their submissions were rejected by the Courts, who reasoned that for every example of decriminalisation, there will be a counter-example where there are shifts in the opposite direction, such as former British colonies like Botswana, Malaysia, Sri Lanka, who have even criminalised female homosexual activity. Thus, Singapore should take into account its own unique context instead of blindly following in the footsteps of other jurisdictions. Even so, much has changed since. In the light of rapidly increasing acceptance of homosexual behavior in our society, most notably the passing of the Same Sex Marriage Bill in the UK, perhaps it is time to repeal 377A. The Courts had previously mentioned that 377A serves a legitimate purpose because it is a law that has withstood the test of time since British colonialism. Now, not only have the British gotten rid of 377A, it has gone a step further and legalised same-sex marriages. Given 9

[2013] SGHC 73.

(b) the differentia bore a rational relation to the object sought to be achieved by the law in question. The Courts held that Tan’s rights were engaged under Article 12(1) and that 377A had satisfied the first limb of the test because it was founded on an intelligible differentia (it applies to sexually-active male homosexuals). However, the second limb of the test failed, as the Courts conceded that was no distinctive social objective that could be achieved by only criminalising male but not female homosexual intercourse. The Courts came to the conclusion that 377A arguably violates the Article 12(1) rights of Mr Tan, who was a member of the allegedly “discriminated” group. The Courts conceded that there was a real and credible threat of prosecution under 377A, although individuals do not have the right to be prosecuted under an unconstitutional law.12 They also mentioned “individuals who act in ways that may render them liable under unconstitutional laws ought not to be placed in the enviable position of waiting for an unconstitutional sword of Damocles to fall upon their fundamental rights”. Having said that, the Courts still skirted around the issues, ruling that there is no actual need to decide whether Article 377A is consistent with Article 12, as deciding that 377A is arguably so will suffice for the progression of Tan’s case. Eventually, the Courts still struck down his claim, on the basis that the law was based on morality and social values. The dicta in this case was further expanded on in a more recent case, Lim Meng Suang and Another. In this case, the Courts elaborated on the phrase “equal treatment” in Article 12 of the constitution, defining it as “all persons in like situations are to be treated alike”, instead of the commonly interpreted “all humans should be given equal treatment”.13 However, the newly clarified situation-dependent definition still fails to lend support to why there is discriminatory treatment under 377A 10 11 12 13

[2012] SGCA 45. [2010] 3 SLR 489. See Ramalingam Ravinthran [2012] SGCA 2. Ibid (n 9), [44], citing Taw Cheng Kong.

The Rainbow After the Storm

between homosexual men and women. There seems to be no over-arching reason to criminalise male homosexuals only, instead of their female counterparts. One reason submitted by Mr. Abdullah SC, was that “female homosexual conduct is either less prevalent or is seen as being less repugnant than male homosexual conduct”. However, it seems that even if 377A were expanded to criminalise lesbians within its scope, the unequal treatment of heterosexual and homosexual sexual activity might still run afoul of the “equal treatment” requirement in Article 12. Perhaps this is an issue that requires further clarification and a straightforward answer from the Courts.

Law’s role in society is multifaceted and complex; A.V. Dicey popularised the term the “Rule of Law”, which refers to the influence and authority of law in modern society on citizens and government officials alike. The three main tenets17 of the Rule of Law are: Firstly, a man can only be punished if it was proved in court that he had breached a law. Secondly, no man is above the law. Thirdly, the Constitution is the result of previous judicial decisions determining the rights of private persons. This begets the question of why citizens have the obligation to be bound by the law. Where does the law derive its legitimacy? In that vein, is a law still legitimate when it is not proactively enforced?

More importantly, the Courts also revisited the two-limbed constitutional test. Instead of sitting on the fence, this time the Courts ruled that Article 377A is consistent with Article 12, satisfying the “reasonable classification” test.14 The first limb of the test is satisfied as there is an “intelligible differentia”. It is quite clear that the first limb is satisfied, as it only applies to a clearcut section of society—homosexual men. In the second limb of the test, the Courts examined the object of 377A and whether it was justifiable to impose 377A on the affected target group. The justification given to support the retention of 377A was that Singapore is still a conservative society that does not condone homosexual behaviour. According to MP Muhammad Faishal Ibrahim, “The message that (he) heard loud and clear is that the majority of Singaporeans is not ready for open homosexual acts to be part of our way of life yet.”15 Judging from the heavy reliance on parliamentary views on the general public opinion regarding homosexuality, perhaps the Courts are waiting for Parliament to take the first step in repealing 377A when they deem that public sentiment is ready.

The source of legitimacy for the law is debated by two camps: Natural law theorists and legal positivists. Natural law theorists such as Aquinas argue that the law is only legitimate if it is in line with divine law and promote universal happiness during its formation. At the other end of the spectrum, John Austin contends that the legitimate law is merely composed of commands from a sovereign power, backed by sanctions and credible threats. He maintains that law can only be understood as norms that are backed by the sanctions of a political sovereign. Hence, the normativity of law is derived from an intrinsic connection between law and the threat of sanctions. A reductionist thesis about law’s character, it maintains that the normativity of the law consists in the subject’s ability to predict the changes of incurring punishment.18

It appears that the Courts are wary of overstepping the boundaries of judicial authority in addressing matters of social and political importance, such as homosexuality, particularly if it involves repealing existing law. However, the case does show some kind of judicial activism, particularly in the development of a two-stage test in Tan. SINGAPORE’S UNIQUE STANCE Singapore has its own very unique context. Effectively multiracial and secular, Singapore’s culture is predominantly conservative, with great emphasis from the government on the acceptance of diversity, which prima facie seems problematic and inconsistent with its treatment towards homosexual men. SITTING ON THE FENCE: A JURISPRUDENTIAL DISASTER? Partly due to the multi-racial composition of our country, Singapore has a generally more accepting and compromising (some would say apathetic) culture on issues of controversy. This is evident in the administration of Section 377A. In light of unsuccessful efforts to repeal 377A, the government has settled for an interesting equilibrium. Prime Minister Lee Hsien Loong announced that the government “would not proactively enforce Section 377A,” as long as homosexual sexual activities are consensual and exclude minors.16 Yet such a position undeniably casts doubt on the authority and functionality of the law. 14 Ibid (n 9), [45]. 15 Singapore Parliamentary Debates, Official Report (22 October 2007) vol 83 at cols 2469–2472 16 Lee Hsien Loong, 2007.

In contrast, twentieth century legal positivists, such as H.L.A Hart and Joseph Raz deem that the coercive aspect of law plays a less prominent role than Austin had assumed. In practice, it seems difficult to distance law’s functions from its coercive aspects. Contemporary use of “game theory” in legal arrangements, such as the Prisoner’s Dilemma, support the proposition that the core of law lies with sanctions and that authority of the law is derived from these coercive measures. In light of Singapore’s neutral stance on 377A, the question is whether 377A is legitimate law in the absence of actively enforced sanctions. Perhaps a more promising answer can be found in Raz’s argument, whereby he proposes that instead of sanctions, the essential core of the law is centred around providing its subjects with the right reasons that apply to them in their circumstances. Authority is exercised through commands that place people under a special obligation to obey.19 Sometimes, authorities may demand compliance more than obedience as they make more practical sense. Some laws are not enacted because of moral reasons, but rather, because it is better for them to be complied with. Traffic laws, for example, are not there for a moral reason, but merely to provide rules in facilitating traffic. Citizens follow traffic rules not because they are morally right, but because they see them as a better alternative to unfettered discretion to make possibly dangerous decisions. Hence, sanctions for speeding are not always strictly enforced on the first instance. Raz suggests that the subject complies when he accepts the directives of the alleged authority as binding on him, hence establishing a legitimate authority. It follows as a corollary that legitimate authority generates a duty to be obeyed. Hence, it can be seen 17 AV Dicey, Introduction to the Study of the Law of the Constitution, (Macmillan, 1st ed 1885, 10th ed 1959, pp. 45-54) in Textbook, p. 90. 18 J. W. Carroll, ‘Law of Nature ‘ (Stanford Encyclopedia of Philosophy 2010) <http://plato.stanford.edu/entries/laws-of-nature/> accessed 13 March 2014. 19 Craig, Jason Thomas, “Raz and His Critics: A Defense of Razian Authority” (2009). Philosophy Theses. Paper 49.

Samantha Kong

that from Raz’s point of view, legitimacy is not solely derived from sanctions. In the same vein, according to Raz’s argument, 377A can be legitimate even though its sanctions are not strictly enforced. However, there is a fine distinction between lenient enforcement and not actively enforcing the law. Revisiting Dicey’s concept of the “Rule of Law”, an inactively enforced 377A allows “offenders” to be insusceptible to its sanctions, implying that there perhaps are people who are above the law. This undermines the construct of the legal system. Thus, even though the law can be jurisprudentially justified as legitimate, it may not be the best practical option, because of the mockery it makes of the authority of our legal system. Jurisprudential issues aside, Singapore’s ambivalent stance on 377A is indeed unique. Such compromise can rarely be seen in other countries, such as America, whereby the middle ground for sharply divisive issues is often elusive.20 Even though it has been proven that there is a presence of a moderate majority in most highly contentious issues, there seems to be an issue of reaching a political compromise due to the polarising nature of politicians involved in US political discourse.21 In such situations, it seems as though the Singapore government is taking a cautious approach, biding its time in assessing whether the “conservative” Singapore community is ready to accept the homosexual lifestyle. Although the neutral stance of the government might be frustrating to proponents of Section 377A, it is probably wise to wait till a significant consensus on “homosexuality” is reached around the world. In his 2007 speech, PM Lee hinted that repealing 377A was not the end point but might eventually lead on to never-ending fierce political debates. Understanding the general Singapore psyche of political apathy,22 Kok’s research proves that the majority of Singaporeans, including homosexuals, are also generally unwilling to rock the boat and create a volatile political situation. He warned that fierce debates and discussions on 377A might polarise the views of these people, and shrink the middle ground, which may backfire and result in less acceptance within society. WHEN IS EQUALITY TRULY ACHIEVED? The debate surrounding 377A is mostly balanced upon cries for equality on one hand, and moral claims on the other. The idea of granting homosexuals the same ‘status’ as heterosexuals is based on the concept of equality and its intrinsic importance – yet what is equality and how can it truly be achieved? The UK is a fine example in documenting the changes in attitudes and law towards homosexuality. At the beginning, strict laws were imposed against buggery and homosexual behavior, much like the current laws in Singapore. After all, Singapore, as a former British colony, has adapted some of its laws from the UK. However, due to social and political pressures—albeit largely stemming from the ECHR—the UK has made substantial progress in advancing legal equality for homosexuals. Due to the similar basis of their laws, I believe 20 J. Chen , ‘Singapore’s Culture War Over Section 377A: Through the Lens of Public Choice and Multi-Lingual Research’ [2013] LSI 106. 21 M. P. Fiorina, Culture War?: The Myth of a Polarized America (3rd, Pearson Education, New York 2005). 22 K. T. Kok, “Stand up for Singapore? Gay men and the cultural politics of national belonging in the Lion City”, 2011.

that examining the situation in the UK will serve as a good extrapolation of Singapore’s circumstances should Singapore take the first step in repealing 377A. In this section I will be focusing on the development of homosexual rights in the UK, to examine whether equality is really achieved through legalising same-sex marriage. Homosexual rights in the UK have come a long way since the military ban on homosexuals (Smith and Grady v UK23) and the refusal to recognise homosexual couples as spouses (Ghaidan24). However, their cause was largely supported by the European Court of Human Rights in Smith v UK,25 as the Courts ruled that the dismissal of military staff based on their sexuality was a violation of Article 8 and also discriminatory under Article 14. Since the turn of the century, support for homosexual rights has grown immensely, especially with the enactment of the Equality Act 2010, which under Part 2, Chapter 1, Section 12 listed “sexual orientation” as one of the protected characteristics. It was only a matter of time before the idea of same-sex marriages surfaced. The first step towards this was when the Civil Partnerships Bill 2004 received royal assent. Many believed that the Civil Partnerships Bill would confer the equality to homosexuals in relationships. As Baroness Hale mentions, the Act intends that “the legal consequences both during and at the end of the relationship will be virtually identical to those of marriage” and that the Law Society’s recommendation of a partnership will also “(have) the same consequences as marriage”. The aim of the Partnership Act is legal, yet political. Homosexuals feel valued as equals because there is legal recognition of their relationships, but it is arguable that the status granted to homosexuals is not identical to that of heterosexuals under the Matrimonial Causes Act 1973 (by virtue of the very fact that civil partnership is not marriage). However, despite the intent of the Bill to equal homosexual and heterosexual relationships, there were still some glaring differences in the Civil Partnership Act in its conception. One of these differences is how the Civil Partnerships Act avoids the issue of homosexual sex. Clause 43 of the Civil Partnership Act mentions the elements needed to dissolve a civil partnership, which is equivalent to Section 1(2) of the Matrimonial Causes Act, except for adultery. Normally, marriages would be voided if there were a lack of consummation, in a form of penetration and erection.26 It seems odd then that the Civil Partnerships Act does not include such a defining feature of a heterosexual marriage. Although this is a mere definitional exclusion, and the fact that a civil partnership is not voided for the lack of consummation indicates that the Bill in a sense encompasses a broader scope, the omission is puzzling. Crompton points out that the whole Bill seems to replicate the effects of marriage, but the fact that civil partnerships and marriages are after all, different legal statuses, suggests a continued discriminatory status quo. On the other hand, others argue that the content of the rights are effectively the same, and the definitional difference in fact represents an acknowledgement that heterosexual and homosexuals relationships are simply of equal status but uniquely different. Nevertheless, some of these concerns were alleviated with the passing of the Marriage (Same Sex Couples) Act 2013. 23 24 25 26

(1999) 29 EHRR 493 [2004] UKHL 30 (1999) 29 EHRR 493. Matrimonial Causes Act 1973, Section 12.

The Rainbow After the Storm

Regardless, there is a long road ahead before equality is truly achieved. Black letter legal equality is one thing, but genuine equality also entails a change in mindset, which may well be the hardest part of the battle. Despite the lack of easy answers and the fundamental challenges in dealing with deeply rooted belief systems, the fight for legal equality is a commendable first step towards achieving true equality. CONCLUSION The road to equal rights for homosexuals is littered with obstacles and prejudice. Some jurisdictions have made substantial progress, whereas others have remained stagnant. In the context of Singapore, 377A has been slow to progress, and the government has merely advanced lacking reasons as to why the status quo should remain. Presently, at the peak of legal recognition of homosexual rights from many other countries, perhaps Singapore too, will soon reconsider its stance regarding 377A. As Abraham Lincoln once said, â&#x20AC;&#x153;I am a slow walker, but I never walk back.â&#x20AC;? Although Singapore may not have repealed 377A, it has made encouraging progress. It will only be a matter of time before Section 377A is repealed, at a more appropriate time when society is ready to accept the change.

Photo Credit: Rob Watkins https://www.flickr.com/photos/robnwatkins

SINGAPOREâ&#x20AC;&#x2122;S CASINO REGULATIONS: THE GAMBLE THAT PAID OFF?

This essay explores how successful the government has been in allaying the initial argument that our social compact has survived the transition without any fundamental shifts and is resilient enough to weather future challenges, such as more remote forms of gambling.

by Li Yi Hong University College London 44

Singapore’s Casino Regulations: The Gamble That Paid Off?

Singapore’s foray into the casino business, if assessed solely based on hard economic figures, has perhaps delivered above and beyond what its political leaders have promised. Earnings from Singapore’s two Integrated Resorts (IRs), both launched in 2010, have outstripped Las Vegas within 2 years of opening and won themselves the title of world’s most profitable casinos.1

affecting their finances or lifestyle are higher simply by design. To legalise and construct casinos in Singapore would require Singapore society to undergo a paradigm shift or rather a ‘significant modification of the core belief system’,5 since it would mean a bold step away from the general perception that gambling was something to be resisted, not sanctioned.

At this juncture, the million-dollar question is whether Singapore’s economic boom to the tune of 14.5% growth in 2010 and tourist boost bringing a 49% increase in tourist expenditure following the launch of the casinos have changed the debate on the pros and cons of legalising casinos in Singapore. It has been clear from the start that the tension between the pursuit of corporate revenue and the need to curb excessive participation in the interests of individuals and society as a whole would be the key challenge that any legislation or regulation in this area would have to contend with.

However, surveys indicate that Singaporeans still generally perceive that gambling is a vice, despite having grudgingly accepted the institution of gambling as such a massive commercial venture in the country. Back in 2006, just a year after the Prime Minister announced the government’s decision to proceed with the casino proposals, 93% of respondents agreed to the statement that “If we do nothing now, gambling will increase the social problems in Singapore”;6 this exceedingly high percentage persisted in the survey carried out the next year. The fear and anxiety that the introduction of casinos would negatively affect society and endanger our social values with its associated social ills was palpable in the run up to the casinos’ launch and evens its initial years. Fast forward to 2014, a newly released Institute of Policy Studies (IPS) survey conducted over the previous year, tells us that 69.2% of Singaporeans interviewed believed that gambling was always/almost always wrong.7 In contrast to the doomsday predictions espoused by critics, Singaporean perceptions and attitudes towards gambling have not altered noticeably since the introduction of the casinos. The rest of the essay will explore how successful the Singapore government has been in protecting society’s social values and preventing gambling from being viewed as commonplace, and ask how far the government is prepared to go in order to do so.

This essay will take a look 4 years on from the opening of the casinos to address whether the legislative and regulatory framework adopted by the Singapore authorities has been adequate in addressing the social and moral concerns that casinos bring. In the latter part of the essay, I will also address the recent debate on imposing further legislation on an equally large-scale but more remote form of gambling, namely online gambling. CASINOS AS REPRESENTING A PARADIGM SHIFT IN SOCIAL VALUES It may not be immediately obvious why such a strong and large resistance followed the proposal of introducing casinos in Singapore, considering that other forms of gambling were already allowed in Singapore, albeit tightly controlled by the state. The Singapore Totalisator Board, set up by the state in 1988, controls racing and 4-D operations, while its subsidiary, Singapore Pools, runs the lottery. It is arguable that such forms of betting have been tolerated by the state because they are ‘largely individual, private and bounded acts of gambling’.2 Yet, the ill effects of problem gambling had long been acknowledged, as noted by the advisory on the Singapore Pools website stating that gambling should be ‘just a little flutter’ and not ‘adversely affect your finances or lifestyle’.3 The social and personal costs of problem gambling are evidenced in the higher incidences of bankruptcy, suicide, alcoholism, divorce and crimes amongst addicts.4 Hence, in this largely conservative society, gambling was still generally frowned upon as a vice that should be discouraged.

ECONOMIC INTERESTS AS PRIORITY?

In contrast to the existing forms of gambling, casinos promote gambling on a much larger scale. The interior décor and availability of alcohol in casinos are designed to heighten the sense of excitement amongst patrons, and essentially create a space that helps the gambler forget the outside world. Risks of casino patrons falling into gambling addictions and adversely

The eventual decision to set up not just one, but two casinos in Singapore led opponents to decry the outcome as the triumph of economic concerns over social and welfare ones. Yet, it might be valuable to ask whether economic considerations should even be weighed on the same scale as moral concerns. Arguably, the cost-benefit analysis adopted by the Singapore government may not accord sufficient respect to moral considerations by placing both factors on the same footing. In fact, Prime Minister Lee Hsien Loong himself had chosen to take a much more cautious view about the ill social effects of gambling back in 2002 when he rejected a proposal for a ‘world-class gaming facility’ as chair of the Economic Review Committee (ERC). He had written in response to this proposal, “A casino could also lead to undesirable activities like money laundering, illegal money lending and organised crime. Although one can try to mitigate these effects, the long term impact on social mores and attitudes is more insidious and harder to prevent.”8 It is pertinent to ask what changed to make the government so certain just three years later that having casinos will not shift society’s basic attitude against gambling and that “this attitude is a kind of immune system in our society which will inoculate us against succumbing to excessive gambling”.9

1 Cohen, M. (2011, June 28), Singapore Casinos Defy Odds, Online Asia Times. Retrieved February 16, 2014 from http://www.atimes.com/atimes/ Southeast_Asia/MF28Ae01.html. 2 Wee, L. (2012) Neoliberalism and the regulation of consumers: legalizing casinos in Singapore, Critical Discourse Studies, 9:1, 15-27. 3 Singapore Pools, Play Responsibly. Retrieved May 29, 2014 from http://www.singaporepools.com.sg/en/corp/pa/pa/Pages/awareness_play_responsibly.aspx. 4 Pizam A. and Pokela J. (1985) The perceived impacts of casino gambling on a community. Annals of Tourism Research, 12(2): 147-165.

5 Ting, WM (2008), Multiple streams of change: Explaining the removal of Singapore’s casino ban using John Kingdon’s agenda-setting framework. Asian Journal of Public Affairs 2(1): 39-53. 6 Ministry of Social and Family Development, ‘Perceptions and Attitudes towards Gambling Issues in Singapore’, 2007. 7 IPS Survey, 2014, Survey on Race, Religion and Language. 8 Statement by Prime Minister Lee Hsien Loong on Integrated Resort on Monday, 18 April 2005 at Parliament House, Para 7. 9 Parliamentary Debate on IR Decision, Excerpts from PM’s RoundUp Speech, 22 April 2005, Para 16.

Li Yi Hong

In looking at the reasons provided by the Singapore government, one has the sense that it was the growing and overwhelming economic incentive that prompted this change in stance. It had acknowledged publicly that the rationale behind the opening casinos in Singapore was largely, or even purely, economic. In a major speech defending the government’s decision to introduce casinos, Prime Minister Lee sought to frame the decision as a response to a clear market trend and hence, consistent with the state’s long-standing policy of pragmatism. He argued: ‘‘If gambling is one of the things [tourists] want to do, then maybe we should allow them to do that, find some way to do that, and as a result of that over 10 years double the [tourist] traffic volume. I think we should think about it.”10 He goes on to address the competition that Singapore faces against other cities to attract tourists, and how the introduction of casinos is an opportunity for it to get ahead of the competition and truly become a global city. To be fair, the government has also taken pains to illustrate the means by which it intends to curb the ill effects of gambling, or at least excessive gambling. For one, he has made clear that the government is “not considering a casino, but an IR – an integrated resort”.11 The intentional use of the term “integrated resort” has been important to underlie the point that any project would include more family-friendly amenities such as theme parks, convention spaces and museums, with gaming facilities being integrated into a whole slew of activities such that it constitutes just “one small but essential part”.12 Rather than emphasise the casinos as a zone whereby patrons may be given free reign to participate in so-called “vices”, the Prime Minister presents them as just one among many other amenities that the resort will offer. This statement is probably a direct response to fears that the casinos would transform this squeaky clean city into the likes of Vegas’ reputation as a “sin-city” where all vices are permissible and activities fall outside the law.13 He goes even further to downplay the significance of the casinos by portraying the IRs to “be as decent and wholesome as a SAFRA resort or an NTUC Club”,14 with the presence of “a small jackpot room” that generates the income to upkeep the facility. This carefully constructed policy-speak sought to project the impression that this development effort is all-inclusive and will also serve the locals. The Prime Minister was keen to emphasise that the integrated resorts are ultimately motivated by the need to respond to the tourist market and not the local market. He even goes so far as to state that Parliament “seriously considered banning Singaporeans altogether from gambling in the IRs, but decided against it”.15 He hence suggests that measures adopted to limit local consumption of gambling are concessions against a more draconian position that could be adopted with a sweeping ban on concessions for locals. Subsequent legislation and regulation must thus be viewed as an effort to calibrate the balance between maximising the economic returns from casino operations and curbing the local consumption of gambling in the interests of 10 Smale, W. (2004, August 23) Singapore signs up to global casino club, BBC News Online Business Reporter. Retrieved March 20, 2014 from http://news.bbc.co.uk/2/hi/business. 11 Statement by Prime Minister Lee Hsien Loong on Integrated Resort on Monday, 18 April 2005 at Parliament House, Para 20-24. 12 Wee, L. (2012) Neoliberalism and the regulation of consumers: legalizing casinos in Singapore, Critical Discourse Studies, 9:1, 15-27, Para 10. 13 Ibid. 14 Ibid. Para 11. 15 Ibid.

protecting Singaporeans from the ill-effects of addiction and casino-related crime. I will attempt to assess the effectiveness of major tweaks in the casino regulation over the last 4 years as part of the government’s efforts to strike the right balance. The body of this essay will seek to understand how effective these measures have been in keeping the predicted social ill effects of casinos at bay. Some areas of interest that relate to this central question include: whether there were any consequences that caught the Singapore government off-guard; whether the paternalistic mode of governance adopted continues to serve Singapore well; and lastly, whether the government has been willing to make the “necessary” economic sacrifices, whether big or small, to keep its promises. EFFECTIVENESS OF SOCIAL SAFEGUARDS The government may have been initially thrown off by the immense local interest and patronage of the casinos over their initial months of opening. The public responded with outcry to the news that Singaporeans had made more than 1 million visits to the casinos within the first 7 months of their operation, and in fact, made up almost half the total number of visits.16 This data seemed to have proved otherwise that tourists, and not locals were the target audience of the IRs. Such data threw into question whether the initial disincentives for locals to visit the IRs were adequate to curb local visitor numbers, though it is questionable whether this interest necessarily translates to a downward spiral to creating gambling addicts and their social ill effects. Regardless, a cross-ministry committee was quickly convened to review the measures in place.17 The review analyzed the effectiveness of the casino entrance levy of S$100 for a day’s visit or S$2,000 for a year’s membership introduced for Singapore citizens and Permanent Residents (PRs) upon the launch of the casinos. Tourists are required to provide proof of their foreign nationality to enter the casinos without this entrance levy and casino operators face tough penalties such as the S$65,000 Resorts World Sentosa was fined in August 2012 for allowing Singaporean citizens and PRs to enter without paying entry levies,18 hence signaling the government’s commitment to enforce this levy strictly. Yet, over the first few months of opening, the entrance fee did not appear to be as strong a deterrent as intended. The review convened interestingly made no recommendations on adjusting the entrance levy fee. Instead, the review focused on present practices by the IRs that were seen as promoting the accessibility or attractiveness of the casinos to locals. Initially, the blanket rule stated that casinos were also barred from advertising directly to locals and could face tough fines if found in breach. However, this ban had not prevented the resorts from chartering buses to pick up patrons from HDB heartlands. The review committee ordered the termination of these bus services,19 expressing concern that they provided too easy access to gambling facilities. In addition, the promotion of a rewards program tie-up with the casinos in heartland shopping malls was assessed as a breach of the ban on advertising to locals. The authorities also thought it prudent 16 The Straits Times (2010), The dragon’s gambling den, July 8. 17 Henderson, J.C. (2012), Developing and regulating casinos: The case of Singapore, Tourism and Hospitality Research, 12(3) 139-146, P143. 18 Casino Regulatory Authority, Singapore. Annual Report 2012/13. 19 MCYS (2010) Shuttle bus services by integrated resorts, Ministry of Community Development Youth and Sports Press Room, 15 September.

Singapore’s Casino Regulations: The Gamble That Paid Off?

to put a stop to media releases about casino winnings due to concerns that these perpetuated the perception that easy money could be made through gambling. It is arguable that these tweaks have met with positive results, as shown from the falling visits from locals and decreasing revenue from entrance levies. Daily average visits from citizens and PRs have dropped from 20,000 in 2010 when the casinos first opened to about 17,000 three years after, according to a 2012 report by the Casino Regulatory Authority (CRA). Also, revenue from the entrance levy has fallen significantly to S$174 million in 2012, in comparison to S$195 million in 2011 and S$216 million in 2010.20 The authorities have been eager to pin much of the blame on the novelty factor of the newly opened resorts as grossly inflating the initial number of local visitors to the casinos. The data that I find the most pertinent, however, focuses on the number of locals who have taken up gambling as a regular activity or put themselves at risk of falling into a gambling addiction. The authorities can draw satisfaction from the fact that only 7.7% of Singapore’s adult population has visited the casinos more than once in the last 3 years,21 hence contradicting fears that gambling will become a regular pastime for many Singaporeans with the opening of the casinos, including those who cannot afford it. The recently released poll by the Economist that ranked Singapore as second in the world for gambling losses per adult resident may have renewed fears that gambling fever has gripped our population and sent many to their ruin.22 However, H2 Gambling Capital, a British consultancy, points to the highly legalised and tightly regulated gambling scene in Singapore that accounts for a much more realistic representation of gambling rates here, compared to other Asian countries where rates are predicted to be much higher though unverifiable.23 It has also been suggested that the large investments pumped into the swanky IRs mean that it would only make business sense for the casinos to ensure that the odds are in their favor, which can be seen as a further deterrent for Singaporeans to frequent the casinos. Hence, the low percentage of the population that engages in gambling on a regular basis is still the more revealing statistic. Measures have been adopted in controlling this number, especially targeted at people most at risk of falling into a gambling addiction and can ill afford such a financial strain. The exclusion policies adopted by Singapore to curb problem gambling are considered unique to this city-state and more extensive in scope than other countries with similar concerns to limit local patronage of the casinos. One instance is selfexclusion bans, which allows individuals to limit their visits or completely exclude themselves from the casinos and which Macau has also adopted. Giving an individual the ability to exclude himself from the casinos is generally accepted as a key safeguard to help individuals who want help controlling their

20 Wong, CH. (2013, September 26), Singapore Casinos Lose Luster Among Locals, The Wall Street Journal Online. Retrieved on February 17, 2014 from http://blogs.wsj.com/searealtime/2013/09/26/singapore-casinos-lose-luster-among-locals/. 21 Ibid. 22 The Economist (2014, February 3), The House Wins, Retrieved on May 29, 2014 from http://www.economist.com/blogs/graphicdetail/2014/02/ daily-chart-0. 23 Neo, C.C. (2014, February 6), Singaporeans remain second-biggest gamblers in the world, Today Online, Retrieved on May 29, 2014 from http://m. todayonline.com/singapore/sporeans-remain-second-biggest-gamblers-world.

gambling habits.24 A complicated and drawn-out process of subjecting one’s finances to checks and running psychiatric tests on the applicant who wishes to lift his self-exclusion order further strengthens its effectiveness. However, Singapore has taken a further step by giving the individual’s family or the government the power to exclude him from all gaming institutions. Family members, including spouses, children, parents or siblings, may apply to the National Council for Problem Gambling (NCPG) to exclude a person “whose gambling behavior has caused serious harm to his/her family”,25 whereby the individual will have to be assessed by a counselor before any ban is imposed. In addition, government ban initially included 28,000 undischarged bankrupts and people on government assistance schemes. However, following a 2012 government review on the effectiveness of casino exclusions, the ban was extended to a further 15,000 people receiving unemployment benefits and tenants of governmentsubsidised housing who are behind on rent by more than 6 months.26 These changes were made amid concerns that the proportion of low-income gamblers betting a monthly average of more than S$1,000 had more than doubled since 2008, to 2% in 2011.27 Criticisms of Singapore’s exclusion policies have largely emanated from outside Singapore, with some decrying the power of families and the government to impose casino bans on individuals as paternalistic and an infringement of personal liberty.28 Such exclusion policies appear to disregard the individual’s freedom to gamble whether or not he or she so chooses to do so. A case may perhaps be made for allowing the government to ban those on state welfare assistance since state funds should not be permitted to be spent on gambling activities. The Singapore government argues that the exclusion policy respects the concern that addicts’ families are often made to bear the financial costs of their addition, and hence their views should be taken into account and given weight with regard to whether an addict should have access to gaming facilities. Such arguments should be viewed in terms of the bargain that the government has struck with members of the public, in the face of staunch opposition to the introduction of casinos and the continued perception of gambling as a vice. If the casinos were created to attract the patronage of tourists, the expectation stands that casinos should not profit from the purses of the locals and that the government should exert all effort to keep locals out of the casinos, especially those most vulnerable of falling into an addiction. In fact, concerns that dominate the headlines of local papers rarely pose the question of whether such paternalistic policies are harmful but rather ask whether they are restrictive enough to keep the risk of falling into gambling addiction at bay. Perhaps asking whether these exclusion policies are too paternalistic is a superfluous question, since almost three quarters of reported of the 175,680 banned from casinos in 2013 are under self-exclusion orders.29 This 24 Laudwig, N. (2012), Gaming Regulatory Systems: How Emerging Jurisdictions Can Use the Three Major Players as a Guide in Creating a Tailored System for Themselves, UNLV Gaming Law Journal, 3:227, P296. 25 Casino Control Act 2006, Part X. 26 Grant, J (2012, June 8), Financial Times, Singapore to widen casino ban, Retrieved on February 18, 2014 from http://www.ft.com/cms/ s/0/5e12ef7c-b161-11e1-9800-00144feabdc0.html#axzz2wsvdmqgc. 27 Ibid. 28 Cf .Laudwig, 2012 (n21). 29 Tai, J (2013, October 19), AsiaOne, 175,680 excluded from casinos, Retrieved on May 29, 2014 from http://news.asiaone.com/news/singapore/175680-excluded-casinos.

Li Yi Hong

all-time high number of exclusion orders possibly indicates a growing awareness of the dangers of problem gambling, and also strong convictions expressed by gamblers themselves who are seeking help to stay away from temptation. Other measures adopted include a ban on casinos and junket organizers offering credit to Singapore citizens and PRs, unless they have qualified as premium players who have casino accounts of more than S$100,000, thereby minimising patrons’ risk of falling into gambling debts. Further outreach efforts and campaigns have also been conducted by the NCPG to raise awareness of problem gambling and ways to prevent or tackle addiction. Despite these efforts, the number of problem gambling cases has been on the rise in the last few years. In 2010, National Addictions Management Service (NAMS) clinic reported that problem gamblers formed 17% of its patients, up from 10% in 2008.30 However, Associate Professor Wong Kim Eng, the clinical director of NAMS, argues that the increase in problem gambling cases cannot be solely attributed to the increased accessibility to gambling that casinos offer, but also to the increased awareness of problem gambling as a mental health issue that one can seek treatment for.31 Efforts to discourage local gamblers mean that casino operators in Singapore have to fight to attract overseas high-rollers, which has been made tougher in recent years with new entrants, such as Japan, to the casino business in the region. In fact, Singapore’s casinos are already beginning to experience a slow down. In the third quarter of 2013, both casinos saw gaming revenues fall the most in about 18 months, and George Choi, a Citi analyst, predicts that gaming revenues have already reached a plateau. The Financial Times speculate that one reason for the fall is the widening of the ban on low-income citizens (as raised earlier).32 However, there is no indication that the government would look to loosen restrictions on local admissions to the casinos in any attempt to boost revenues. The approach has instead focused on growing tourist numbers with the numerous attractions found within the integrated resorts. It is suggested that Singapore has been insulated from the slower growth of the Chinese economy by targeting Indian and Indonesian gamblers33 attending conventions at the Marina Bay Sands Convention Centre (MBS) or bringing their families to Asia’s only Universal Studios in Resorts World Sentosa (RWS). In fact, Singapore has continued to impress with new developments in its IRs that have opened in phases over the last few years. The latest includes a new set of Sentosa suites with windows looking onto more than 50,000 sea creatures swimming through the world’s largest aquarium. It is questionable whether these attractions will find continued success and be able to grow Singapore’s portion of the tourist pie in the region. However, this does not beget the suggestion that the government would become less exacting on its gambling restrictions on locals. 30 Kok, Melissa. (2010, July 15), More problem gamblers seek help, Health Xchange.com.sg, an initiative by SingHealth. Retrieved on February 17, 2014 from https://www.healthxchange.com.sg/News/Pages/More-problemgamblers-seeking-help.aspx. 31 Ibid. 32 Grant, J. (2013, January 7), Financial Times, Singapore casinos slow after opening, Retrieved February 18, 2014 from http://www.ft.com/ cms/s/0/75ac3912-50f9-11e2-9623-00144feab49a.html?siteedition=uk#axzz2wsvdmqgc. 33 Grant, J. (2013, December 17), Financial Times, Asia’s casinos face a tough fight to attract overseas high-rollers, Retrieved February 18, 2014 from http://www.ft.com/cms/s/0/356f7ac0-66de-11e3-a5f9-00144feabdc0.html#axzz2wsvdmqgc.

Singapore also recognises the value of its reputation as a low crime, corruption-free city-state and has sought to ensure that it persists in bolstering the city as a tourist destination as well as a safe home for its citizens. The government has taken steps to hold casino operators and affiliated associations to account and ensure strict adhere to existing regulations. In 2006, the Casino Control Act set up the Casino Regulatory Authority of Singapore (CRA) to fulfill the twin aims of “keeping crime out of casinos and ensuring the integrity of gaming, whilst providing a conducive environment for the casino business to succeed in Singapore”.34 Large powers have been given to this body, with the CRA receiving the authority to pass casino and gaming regulations concerning casino operators, employees, vendors and patrons that have the force of law. The government authorities have been quick to reassure the public that the opening of the casinos has not led to a spike in the crime rate. It is reported that casino-related crime only comprised less than 1% of overall crime in Singapore in 2010 and 2011.35 The fears that Singapore would be plagued with crimes associated with casinos such as money laundering, drug trafficking and prostitution have been successfully evaded with the help of strong enforcement agencies. Singapore’s reputation as a safe city with low crime and zero tolerance for corruption has largely been kept intact despite the opening of the casinos. TURNING TO MORE REMOTE FORMS OF GAMBLING The Singapore government has also recently turned its focus to online gambling and its relevant legislation, or lack of it. The government has recognised that any serious commitment to dealing with problem gambling and its associated social ills must necessarily include attempts to regulate online and other remote forms of gambling, which have become increasingly prevalent over the years. The accessibility of remote gambling sites, which are not subject to any age limits or levy fees that the casinos impose on local patrons, cause young people particularly to be at risk. A 2012 online survey suggest that approximately a third of Internet users in Singapore gamed remotely at least once in the past year.36 Some estimates put the size of Singapore’s online gambling market to be around US$300 million and likely to grow by 6-7% in the next few years, hence a large and lucrative market that Singapore needs to extend its jurisdiction to in order to regulate. The principal statutes currently regulating online gambling are the Betting Act and Common Gaming Houses Act, which concern the prohibition of physical gaming houses and were drafted before the internet age. Hence, in November 2013, authorities announced new laws which include blocking gambling websites and advertisements for these sites. Only a limited form of online gambling will be permitted through a state-regulated and authorised site. Mr. Christian Kalb, who runs the Paris-based gaming consulting firm CK Consulting, weighed in with “practical” suggestions such as a ban on the top 50 online gambling operators rather than a total ban; and while 34 Casino Regulatory Authority of Singapore, Annual Report 2009/2010. 35 AsiaOne (2012, August 17), No increase in crime since opening of casinos. Retrieved on February 18, 2014 from http://news.asiaone.com/News/ Latest+News/Singapore/Story/A1Story20120817-366059.html. 36 Saad, Imelda (2013, November 28), Singapore to restrict remote gambling activities, Channel News Asia Online. Retrieved on February 18, 2014 from http://www.channelnewsasia.com/news/singapore/singapore-to-restrict/902454.html.

Singaporeâ&#x20AC;&#x2122;s Casino Regulations: The Gamble That Paid Off?

he acknowledged that these rules could still be circumvented with virtual private networks, Mr. Kalb suggests that tougher punishments would deter would-be offenders. While the new laws are expected to be rolled out by 2014, experts, such as Associate Professor Hannah Lim from Nanyang Business Schoolâ&#x20AC;&#x2122;s Business Law Division, has weighed in on the issue and suggested that these laws are more comprehensive than any other jurisdiction has attempted. These first steps are important for the government to clearly spell out its stance on online gambling and make a serious commitment to curbing participation in what many still view as a social vice, regardless of what the technical difficulties may be. CONCLUSION The Singapore government has made a very studied attempt to curb the growth of problem gambling and its associated ill effects since 2004 when proposals for casino development were first put forth. The highly restrictive regulations on local patronage of the casinos, continuous reviews of their effectiveness and the crack-down on online gambling are key proof that the Singapore government should not be faulted for prioritising social and welfare concerns of its citizens.

Li Yi Hong

Photo Credit: Volkswagen 1959.

SINGAPORE’S LEMON LAWS:

SOUR IN THE FACE OF THE RIGHT TO REJECT

The introduction of lemon law provisions into domestic legislation has indeed been a said, the value of such changes can only be truly appreciated vis-à-vis the consumer’s traditional right to reject.

by Sean Poh University of Manchester

Singapore’s Lemon Laws: Sour in the Face of the Right to Reject

INTRODUCTION It has been almost two years since Singapore’s very own ‘lemon laws’ came into effect in September 2012. As Minster of State for Trade and Industry Teo Ser Luck once opined, there is no doubt that consumers and retailers now have more options of recourse for defective goods and that the new provisions will improve the consumer-retailer relationship and overall retail experience in Singapore as businesses improve their sales and service processes, while consumers are more aware of options for fair recourse.1 Notwithstanding the benefits brought about by the amendments to the Consumer Protection (Fair Trading) Act (CPFTA), the Hire Purchase Act (HPA) and the Road Traffic Act (RTA) thus far, it is imperative to remind ourselves that these remedies merely serve as additional consumer rights2 on top of the consumer’s traditional common law right to reject, largely preserved by Section 35 and 35A of the Sale of Goods Act (SOGA). Against such a backdrop, a meaningful assessment of the current regime of the sale of the goods in Singapore can only be achieved through a collective analysis of both the traditional and additional rights of the consumer today. On this note, the United Kingdom (UK) experience will be more than relevant in informing us on the subject matter. After all, the additional rights found under Part III of the CPFTA are largely a duplicate of those found in Part 5A of the UK’s Sale of Goods Act 1979 (UKSOGA). Likewise, the consumer’s right to reject resulting from a breach of statutory implied conditions3 are reiterated in Section 15A of the SOGA and the UKSOGA. Though ‘more robust’4 since the introduction of the ‘lemon laws’, the current scheme of consumer protection, as we will see, would not only benefit from possible reforms being made to the right to reject per se but also from an integration of the additional remedies with the traditional right to reject. A SHORT-TERM RIGHT TO REJECT: PRESERVING THE STATUS QUO

entitles a buyer to a full repayment of his money. A short-term right would not only set out parties’ duties more clearly but would also provide what Reynolds describes as the ‘element of securing early finality within the policy of Section 35’.7 There is indeed a whole list of arguments8 for and against an extended right to reject but insofar as our current purposes are concerned, I shall proceed on the basis that the pre-existing short-term right to reject ought to be preserved. THE TRADITIONAL REMEDY: UNDERSTANDING THE RIGHT TO REJECT The right to reject stems from the long-standing notion that consumers have the right to not accept goods which do not conform with contractual conditions. Although the SOGA states that the statutory implied terms9 are considered to be conditions, Section 15A10 reminds us that the right to reject concerned here is that which arises from breaches of terms relating to the physical aspects of goods, such as that of a good’s description,11 quality and fitness12 or sample.13 Apart from waiving such a breach or electing to treat it as a breach of warranty,14 the buyer is also deemed to have lost his right to reject the goods when he intimates to the seller that he has accepted them15 or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller.16 However, the most problematic form of acceptance and the main focus of our current discussion relates to Section 35(4) of the SOGA where ‘the buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them’. The obvious question here would then be: what constitutes ‘reasonable time’? Unfortunately, the SOGA offers minimal guidance as to what it entails apart from it being a question of fact17 and that it should include a reasonable opportunity for the buyer to examine the goods.18 For such reasons, one would have to rely heavily on case law in hopes of estimating the lapse in time before one’s right to reject is negated. OF BICYCLES & SUBMARINES: PROBLEMS PLAGUING THE RIGHT TO REJECT

Before we examine how the consumer’s common law right to reject operates, it is apposite to note that a short-term right to reject has always been presumed to be preferable to a long-term right to reject. Proponents for an extended right to reject have often cited its importance in covering instances of latent defects. However, as the UK Law Commission highlighted in 1987,5 introducing such a change would lead to ‘new complications regarding the use and benefit which the buyer may have had from the goods’.6 This would erode the far simpler approach of regarding the issue as a total failure of consideration which

According to Section 35(5), reasonable time includes a reasonable opportunity to examine the goods. Logically speaking, this opportunity to examine should also include any time spent deciding whether to reject. As such, once goods are found to be unsatisfactory, the buyer is also given the benefit of time to agree to, or come into an arrangement with the seller, to repair the defective good under Section 35(6)(a). Although

1 ‘Singapore’s Lemon Law Takes Effect On 1 September 2012: Amendments to Consumer Protection (Fair Trading) Act, Hire Purchase Act and Road Traffic Act, commonly referred to as “Lemon Law” will provide more options of recourse for both consumers and retailers’, Ministry of Trade and Industry Press Release, 31 August 2012 <http://www.mti.gov.sg/NewsRoom/Documents/ Lemon%20Law%20Press%20Release.pdf> accessed 19 April 2014. 2 The new remedies are covered under Part III of the Consumer Protection (Fair Trading) Act: Additional Consumer Rights in Respect of Non-Conforming Goods. 3 Found in Sections 13-15 of both the SOGA and the UKSOGA. 4 Minister of Trade and Industry Mr. Teo Ser Luck, ‘Second Reading Speech for Consumer Protection (Fair Trading) (Amendment) Bill’ (9 March 2012). 5 Law Commission, Sale and Supply of Goods (Law Com No 160, 1987) para 5.7. 6 John N. Adams and Hector MacQueen (eds), Atiyah’s Sale of Goods (12th end, Longman 2010) 506.

7 FMB Reynolds, ‘Loss of the Right to Reject’ [1988] Law Quarterly Review 16. 8 Law Commission, Sale and Supply of Goods (Law Com No 160, 1987) paras 5.6-5.11. 9 Found in Sections 12-15. 10 Section 15A(1)(a) of the Sale of Goods Act provides: “Where in the case of a contract of sale — the buyer would, apart from this subsection, have the right to reject goods by reason of a breach on the part of the seller of a term implied by section 13, 14 or 15…” 11 Section 13. 12 Section 14. 13 Section 15. 14 Section 11(2). 15 Section 35(1)(a). 16 Section 35(1)(b). 17 Section 59. 18 Section 35(5).

Sean Poh

such considerations are somewhat helpful, they only serve as general guidelines and are useful only to the limited extent in which they apply to the individual case at hand. As Willett, Morgan-Taylor and Naidoo elucidate, the length of time before acceptance kicks in ‘will vary depending upon the type of goods, the type of defect and all the circumstances of the case’.19 After all, ‘what is a reasonable time in relation to a bicycle would hardly suffice for a nuclear submarine’.20 In the cases that follow, it will be evident that much of the law’s objectivity in setting down what a reasonable period of time entails eventually gets lost in the myriad of subjective circumstances.

goods after a long period of use. In Fiat Auto Financial Services v Connelly,29 a buyer’s right to reject a car was held to have prevailed even after nine months and more than 40,000 miles of use. In this context, Naidoo explains that a clearly defined right to reject would not only provide sellers with ‘an incentive to ensure effective and speedy repairs or risk losing the bargain altogether‘ but also creates further incentive ‘to ensure that at the time of the sale, the goods are in conformity with the contract’.30

In the nineteenth century, when commerce was a much simpler affair, courts in cases like Perkins v Bell21 were of the opinion that inspection of goods should be done immediately at the time and place of delivery. However, as societies and technology advanced, the variety of goods available to the average consumer has accordingly burgeoned. This has not only led to differential findings of reasonable time amongst different classes of goods, but also within a single class of goods. In Bernstein v Pamson Motors, it was held that a buyer could not reject his defective car after having driven it for three weeks and for 140 miles. On the other hand, the UK Court of Appeal found that a buyer was entitled to reject a yacht more than six months after it was delivered in Clegg v Andersson.22 Notwithstanding the court’s finding that time only started running after the 6-month negotiation period, it was also held that the ‘three weeks it took the buyer to inform the seller that he was rejecting the boat were not more than a reasonable time’.23

In light of the above, it is no wonder that the UK Law Commission has proposed a 30-day presumptive period for rejection.31 A definitive short-term right to reject would not only help to clarify the law but also allow courts to avoid the difficulties in determining the meaning of ‘reasonable time’. Unsurprisingly, such a proposal has found great support amongst consumers and retailers alike. The Confederation of British Industry was of the opinion that ‘it would be helpful for the right to last for a defined period to provide certainty about the exercise of the right for consumers as well as business’.32 Additionally, a market research33 in 2009 has revealed that a 30-day period is in line with consumer expectations.

Although Sir Andrew Morriet VC has pointed out that the decision in Bernstein probably ‘does not represent the law now’,24 the uncertainty in the application of relevant principles still plagues cases such as Jones v Gallagher25 where a different class of goods was in issue. Here, a buyer complained of the colour of kitchen equipment not conforming to contractual descriptions, but was denied rejection after five months of correspondence with the seller. The courts followed the principle in Clegg that any time spent by the buyer seeking information from the seller should not count towards the calculation of ‘reasonable time’ but held that since the defects concerned ‘were apparent and easily ascertained’, there was no ‘need [for] discussion or an expert to identify what was wrong’.26 Due to the fact-specific nature of things, it is no wonder that the UK Law Commission has observed that ‘the length of the reasonable period is not easy to predict’.27 Consumer advisers such as Consumer Direct have also highlighted ‘that it is difficult to advise consumers how long they have to exercise the right due to uncertainties in the law’.28 Moreover, the inconsistencies in the present law not only affect consumer confidence in looking to reject goods but may also seem inequitable for sellers who are made to accept rejected 19 Chris Willett, Martin Morgan-Taylor and Andre Naidoo, ‘The Sale and Supply of Goods to Consumers Regulations’ [2004] JBL 109. 20 Bernstein v Pamsons Motors (Golders Green) Ltd [1987] RTR. 384 (CA) 397. 21 Perkins v Bell [1893] 1 QB 193. 22 Clegg v Olle Andersson t/a Nordic Marine [2003] EWCA Civ 320. 23 Ibid [76]. 24 Ibid [63]. 25 Jones v Gallagher (t/a Gallery Kitchens & Bathrooms) [2004] EWCA Civ 10. 26 Ibid [35]. 27 Law Commission, Consumer Remedies for Faulty Goods (Law Com No 317, 2009) para 2.20. 28 Ibid para 3.39.

A 30-DAY PRESUMPTIVE PERIOD: EXPLORING A WORTHWHILE CHANGE

That being said, hoping for absolute certainty in the diverse domain of commerce is not only idealistic but also unattainable. Indeed, the Law Commission has recognised that a single fixed period for rejection would not be appropriate for all the wide variety of goods and circumstances34. In order for the proposed change to work in practice, some amount of flexibility is required to accommodate certain special types of goods. This is why the 30-day period is only presumptive in nature and can be rebutted - but only in the most objective of circumstances. For example, a period of almost a month would logically not be compatible with perishable goods such as fresh food. On the other hand, seasonal goods, such Macleod’s example of skis bought at an end of ski-season sale,35 would require an extension of the right to reject. Lastly, the proposed change should not prevent an express agreement from being reached between buyer and seller as to the length of one’s right to rejection, bearing in mind that this ought to apply only to an extension, not a reduction, of the 30-day period. Some have argued36 that such exceptions would downplay efforts to bring certainty to the law but I beg to differ. Although there is some merit in such an argument, the Office of Fair Trading reminds us that if both consumers and traders knew there was a specific period in which this right could be exercised, consumers will be given added confidence in their dealings with traders and vice versa.37 29 Fiat Auto Financial Services v Connelly [2007] SLT (Sh Ct) 111; see also Bowes v Richardson & Son Ltd, Rugby County Court (28 January 2004). 30 Andre Naidoo, ‘Consumer Remedies Following the Sale of Faulty Goods’ [2011] JBL 808. 31 Law Commission, Consumer Remedies for Faulty Goods (Law Com No 317, 2009) para 3.69. 32 Law Commission, Consumer Remedies for Faulty Goods (Law Com No 317, 2009) para 3.60. 33 Law Commission, Consumer Remedies for Faulty Goods: A Summary of Responses to Consultation (13 May 2009) Part 9: FDS Market Research. 34 Law Commission, Sale and Supply of Goods (Law Com No 160, 1987) para 5.16. 35 JK Macleod, Consumer Sales Law (2nd edn, Cavendish Publish Ltd 2007) para 29.07A. 36 See Law Commission, Consumer Remedies for Faulty Goods (Law Com No 317, 2009) para 3.67. 37 Consumer Remedies for Faulty Goods, A Consultation Response by the Office of Fair Trading (February 2009) para 2.4.

Singapore’s Lemon Laws: Sour in the Face of the Right to Reject

THE FOUR RS: UNDERSTANDING THE ‘LEMON LAWS’ Having highlighted the shortcomings of the current right to reject, we now shift our focus to the additional remedies provided by the ‘lemon laws’. Under the amendments to the CPFTA, the HPA and the RTA, consumers are now able to rely on what the Ministry of Trade and Industry calls a ‘twostage recourse framework’.38 According to Section 12B(3) of the CPFTA, any defect found within a 6-month period starting from the time of delivery will be assumed to be defective at time of delivery. Against this backdrop, the consumer has two tiers of remedies to fall back on. The first of which is covered under Section 12C, where the buyer is entitled to require the seller to repair or replace the defective good in question. However, if the seller fails to do so within a reasonable time or with causing significant inconvenience to the buyer,39 or if doing so would be impossible or disproportionate any other remedies,40 the second tier remedies of rescission or a price reduction covered in Section 12D would apply. NAVIGATING THE ADDITIONAL REMEDIES: PRACTICAL DIFFICULTIES AND THE NEED FOR INTEGRATION Though prima facie beneficial to consumers at first glance, the value of these additional rights are unfortunately downplayed by the practical difficulties which beset them. The first of these relates to its relative complexity when compared to the simple right to reject. Commenting on the Sale and Supply of Goods to Consumer Regulations 2002, which brought about similar changes to the UKSOGA, Ervine argued that the four new remedies have complicated the original simplicity of the pre2002 UK system, and that consumers may in fact prefer the simpler regime to the new amendments.41 This is particular true in cases where consumers, as a result of a loss of confidence in the seller or the brand of product, prefer a full refund for the defective good in question as opposed to seeking a repair or replacement. Under such circumstances, it would be necessary for a consumer relying on the additional remedies to get past the first tier of remedies before having the option to rescind the contract for a refund. For this reason, exercising one’s traditional right to reject for a full refund might instead be a preferable option.

of the goods since delivery.43 Unfortunately, the way to go about calculating such use has been completely left out of the SOGA and the UKSOGA. In fact, it seems counter-intuitive if one recalls the previously mentioned argument put forth against a long-term right to reject - the difficulty in finding an acrossthe-board basis for quantifying a buyer’s use of consumer goods prior to rejection. For these reasons and with the aim of simplifying the law, I am in support of the UK Law Commission’s recommendation44 that the right to reject and additional remedies would be better integrated into a single instrument, by use of the concept of rejection. Having rejected the defective goods in question, a consumer would then go on to choose one of three possible remedies: refund, repair or replacement. As the concept of ‘reasonable time’ is currently present within the operation of the additional remedies, it makes perfect sense for the presumptive right to reject to be suspended when the buyer has agreed to a repair or replacement, or is involved in negotiations with the seller. If such avenues of recourse should fail, the buyer should then still be entitled to fall back on his residual right to reject without the complications associated with rescission, or to accept the goods with a reduction in price. Against this backdrop, it is this writer’s opinion that such a regime would not only preserve the cardinal right to reject alongside the additional remedies of the CPFTA, but more importantly, also serve to add much needed clarity and certainty to the law. CONCLUSION Though lauded as a step in the right direction for improving retail practice and enhancing consumer protection, the practical benefits to be gleaned from the lemon laws can never be fully realised unless changes are effected to refine the pre-existing right to reject and the need for an integration of consumer remedies is addressed. With such positive reforms currently being explored in the UK, consumers and retailers alike can only look to the future with bated breath.

Secondly, the operation of the additional remedies seems to be, in principle, incompatible with the pre-existing right to reject. As Bridge highlighted, ‘these are dealt with after the common law remedies, which in fact survive and co-exist with them, raising complications’.42 An example of such a complication involves the short-term right to reject and the second tier choice of rescission. Although both options bring the contract to an end, rejection in the traditional sense begets a full refund while rescission may require the buyer to give credit for use he has had 38 ‘Singapore’s Lemon Law Takes Effect On 1 September 2012: Amendments to Consumer Protection (Fair Trading) Act, Hire Purchase Act and Road Traffic Act, commonly referred to as “Lemon Law” will provide more options of recourse for both consumers and retailers’, Ministry of Trade and Industry Press Release, 31 August 2012 <http://www.mti.gov.sg/NewsRoom/Documents/ Lemon%20Law%20Press%20Release.pdf> accessed 19 April 2014. 39 Section 12D(2)(b). 40 Section 12C(3). 41 W C H Ervine, ‘The Sale and Supply of Goods to Conumers Regulations 2002’ (2003) Sctos Law Times, 8, p67-71. 42 M Bridge (ed), Benjamin’s Sale of Goods (8th edn, Sweet & Maxwell 2010) para 12-001.

43 Section 12D(3). 44 Law Commission, Consumer Remedies for Faulty Goods (Law Com No 317, 2009) para 3.118.

Sean Poh

Photo Credit: Chris Beckett https://www.flickr.com/photos/chrisjohnbeckett

TRULY, JUSTICE FOR ALL:

A COMPARATIVE STUDY BETWEEN SINGAPORE AND THE UK’S LEGAL AID SYSTEMS The essay draws from the recent heated debate on the UK’s legal aid reforms to uncover any pitfalls of Singapore’s system. While stark differences exist between the philosophies of each state towards legal assistance, the development of the UK’s legal aid program poses useful questions we need to ask about our own system in moving forward.

by Li Yi Hong University College London 55

Li Yi Hong

Steps taken by the Singapore judiciary to maintain and further promote access to justice for the poor have been fairly comprehensive, and have even been lauded as proactive. This essay hopes to serve as an investigation, albeit a brief one, into the fitness of the Singapore legal aid system in ensuring access to legal remedies and showing genuine respect to an individual’s right to legal representation. An interest of this writer is to draw on the heated debate on recent legal aid reforms in the United Kingdom (UK), one of the roots of our legal system, to help uncover any crucial loopholes that the Singapore judicial system currently fails to provide for and identify any missteps by the UK judiciary that Singapore needs to be wary of. Lastly, recommendations to increase both the effectiveness and accountability of Singapore’s legal aid system going forward will be outlined. SOCIO-ECONOMIC PROGRESS IN SINGAPORE Singapore’s progress from colonial backwater to first-world nation in less than four decades, may have been hailed an economic miracle by the rest of the world. Yet, this economic miracle has not escaped the worldwide trend of a widening income gap.1 Despite a 7.5% jump in household income levels, Singapore’s Department of Statistics reported a rise in Gini co-efficient by 0.005 to 0.478,2 placing it amongst the ranks of Asian countries with the highest income inequality. Regardless, it should still be acknowledged that the level of poverty has greatly decreased in Singapore since independence.3 In relation to the rest of our region in South East Asia, the incidence of grave poverty and depravation is much more manageable in Singapore. POVERTY AND ITS IMPACT ON ACCESS TO JUSTICE Generally, poverty has an adverse impact on access to justice, since engaging in the legal processes of litigation or any other form of judicial process requires financial investment. Singapore’s relatively low poverty level may suggest that an overwhelming majority of the population above this threshold income level is able to afford access to the judicial system. However, critics of traditional methods of determining poverty suggest that simply measuring the number of people below an income threshold has little value in evaluating the impact of poverty on access to justice. Amartya Sen points out that the fatal flaw of these methods is their failure to examine the “capability [of persons] to function derivable from these incomes”.4 He suggests that a more accurate impact assessment should focus on those who have inadequate income to pursue the legal remedies as required by their given situation. While this is undoubtedly a more tedious calculation to make, the concern rightly lies in ensuring that the relative capacity of the person to obtain access to the justice system vis-à-vis the opposing litigant is as equal as possible, so as not to disadvantage either party in their pursuit of justice.

beyond setting income thresholds as the sole criteria for legal aid and explore other factors that better appreciate the capability of applicants’ to access remedies in the judiciary system in reality. In the most immediate section, I will consider the case for strengthening the constitutional guarantees for access to legal aid in Singapore. I will then explore how efficiently Singapore and the UK structure their legal aid systems, and consider lessons that Singapore may draw from current debates on the UK’s legal aid reforms to better achieve its goal of increasing access to justice. CONSTITUTIONAL BASIS OF THE LEGAL AID SCHEMES The status of legal aid as a right of the citizen and the corresponding duty of the state is well-established in the UK. In The Rule of Law, Lord Bingham quotes EJ Cohn’s comments in 1943 in support of the legal aid system: ‘Legal aid is a service which the modern State owes to its citizens as a matter of principle… Just as the modern State tried to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression etc., so it should protect them when legal difficulties arise. Indeed the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law.’5 In fact, the jurisprudential basis of the UK’s commitment that every citizen should have access to justice extends even further back to the Magna Carta of 1215, of which Clause 40 states that ‘to no-one will we sell, to no-one deny or delay right or justice’.6

For Singapore’s judiciary to make a serious commitment to improving access to justice, its legal aid scheme needs to look

The UK government also finds itself bound by the Human Rights Act 1998, which codifies the European Convention on Human Rights, and hence includes the Article 6 guarantee of the right to a fair trial for every EU citizen. Article 6 includes the provision that anyone charged with a criminal offence or faced with a civil litigation charge should be given free legal assistance to be able to represent their case in court on equal ground with their opponent. The corresponding obligation imposed on the UK is that the government needs to offer legal aid if citizens do not have sufficient means to pay for it themselves. Successful challenges against the UK in the ECHR7 have found the government’s refusal of legal aid to be in breach of Article 6, such as the denial of civil legal aid in Steel and Morris v the United Kingdom8 concerning libel proceedings brought by McDonalds against two individuals. The ECHR has also found breaches in relation to the refusal to grant criminal legal aid, such as in Ezeh and Connors v the United Kingdom9 where prisoners were denied access to legal aid for disciplinary hearings that could increase their jail term. Beyond the UK’s strong legal tradition of promoting access to justice, the ECHR also holds the UK to account and ensures that it fulfills its positive obligations to uphold every citizen’s right to a fair trial.

1 Isabel Ortiz and Matthew Cummins, ‘Global Inequality: Beyond the Bottom Billion – A Rapid Review of Income Distribution in 141 Countries’ (April 2011) UNICEF Social and Economic Policy Working Paper. 2 Department of Statistics Singapore, ‘Key Household Income Trends 2012’ (2012). 3 William Lee, ‘The Poor in Singapore: Issues and Options’ (2001) 31(1) Journal of Contemporary Asia, 57. 4 Amartya Sen, Inequality Reexamined (Clarendon Press, 1992), 111.

5 6 7 8 9

Tom Bingham, Rule of Law (Penguin, 2011) 87. Magna Carta 1215, s40. European Court of Human Rights. [2005] 41 EHRR 22. [2003] All ER 164.

Truly, Justice For All: A Comparative Study Between Singapore and the UK’s Legal Aid Systems

On the other hand, the Singapore judiciary and legislature have traditionally shown less concern about the constitutional status of the right of access to justice. This is in no means an accusation that the Singapore judiciary has not been equally or even more successful than the UK in ensuring equal access to justice. Former Chief Justice Yong Pung How agreed on the importance of legal aid in ‘[guarding] against the obstruction of justice, or more accurately, the access to justice. We must strive to ensure that the public, and especially those who are indigent, can seek the redress available through the judicial process’.10 Rather, I simply put forth the observation that the Singapore judiciary has always been more concerned with the socioeconomic objectives that this right helps achieve, rather than the right in itself.11 The stark difference in the constitutional basis of Singapore’s legal aid system, or lack of one, probably accounts for the lack of wide-spread dissatisfaction as in the UK despite being much less generous. While the following sections will be addressing how effective Singapore’s legal aid scheme is in operation, it is also pertinent to ask if the Singaporean public still stands by the government’s general approach to welfare which seeks only to help those in most dire need. The Singapore government has constantly emphasized the importance of self-reliance in line with its rejection of giving ‘handouts’ to its citizens. However, the growing struggles faced by Singapore’s large middle-income group to afford legal remedies have been compounded by the fact that there is presently no constitutional basis by which a needy applicant can assert his or her right legal aid. The Legal Aid and Advice Act 1996 (the LAAA) currently provides a comprehensive run-down of the procedures an applicant can expect when applying for legal aid. Yet, no statute provides any formal or constitutional protection for a citizen’s right to legal aid or representation, with the exception of the right to legal counsel when arrested by the police.12 These considerations do not necessarily have to be addressed with a complete turnabout in Singapore’s approach to adopt the UK’s legal tradition wholesale. As I will attempt to show in the latter half of the essay, the UK’s strong, rights-based jurisprudence does not necessarily guarantee a conscientious practice of access to justice, nor is it untouched by the concerns of cost-efficacy and resource limitations. However, it would be prudent for the Singapore government to consider suggestions that the Singapore Constitution enshrine the citizens’ minimum right to a fair trial in order to match judicial rhetoric on the matter. SCOPE OF LEGAL AID FUNDING Heated debate and controversy have followed suggestions to narrow the scope of law that legal aid covers in the UK, as authorities cite budget constraints as necessitating a less generous scheme. The UK government and various think tanks have come to vastly contrasting conclusions with regard to the effect of these cuts; with the government arguing that citizens will still be ensured access to justice and most independent policy groups arguing otherwise. The relevance of this debate to Singapore’s legal aid system may not be immediately apparent since the Singapore government’s persistent emphasis on means testing means that whether a case falls within the scope of 10 Subordinate Courts 12th Workplan 2003/2004, Anchoring Justice, Subordinate Courts Annual Report 1, 7 (2003). 11 Eugene Tan, “’We’ and ‘I’: Communitarian Legalism in Singapore” (2002) 4(1) The Australian Journal of Asian Law 1. 12 Singapore Constitution 1965, Article 9.

legal aid funding has not been such an important condition. However, the debate in the UK still provides valuable pointers on how to make our legal aid system more comprehensive and accountable to the public. A point to note before proceeding is that I am most concerned with the scope of legal aid and free legal representation in court, as distinct from the provision of legal advice. The latter has not been as contentious in either country due to the relatively lower overhead costs involved and its reliance on private volunteers. The modern UK legal aid scheme can be traced back to the 1949 Legal Advice and Assistance Act, though now a much more generous and expanded version. Initially, the scope of the act was confined to the High Court, county courts, Assizes and quarter sessions, where the bulk of serious legal disputes were decided.13 Afterward, criminal legal aid was extended to cases in magistrates’ courts and continued to expand so as to cover the wider range of legal problems that ordinary people experience. A large part of the criticism leveled at the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the UK government’s ‘Transforming Legal Aid’ proposals concern the narrowing of the scope of law that legal aid will cover and the alleged exclusion of vulnerable people whose cases have now been deemed as less important by the government. Should the reform proposals be accepted, many cases pertaining to welfare benefits, education, housing, family and immigration will fall outside the scope of legal aid. For example, debt matters will be excluded unless the client’s home is in immediate risk, while employment law cases will only be considered if in contravention of the Equality Act 2010 or if human trafficking is concerned. While provisions will still be made for people facing the most immediate risk, critics are concerned that applicants will find it difficult to prove the seriousness of their case when they are in potential, though not immediate, danger. Charities, such as the Poppy Project, are concerned that victims of trafficking would not be able to access a lawyer to even prove that they were victims of trafficking, unless they can afford it. However, some criticisms from within the legal profession arguing that rapists and pedophiles will be let loose on the streets due to these cuts do come across as alarmist and unfounded. Furthermore, a stubborn stance against any cuts whatsoever is an unrealistic and unsustainable position to take, in the climate of austerity and government budget cuts across the board. Perhaps the most pertinent and useful question to ask is whether one agrees with the criteria that the UK government has used to identify areas of law that should be excluded from legal aid. The four criteria adopted are as follows: The objective importance of the issue, the litigant’s ability to present his or her own case, the availability of alternative sources of funding and the availability of other routes to resolution. It is foreseeable that even reasonable people will come to different conclusions when applying these criteria, which involve difficult value judgments, what more the rest of the public. In Singapore, the scope of the legal aid scheme appears much wider than the UK at first glance. Regarding criminal cases, 13 Lady Hale, ‘Young Legal Aid Lawyers: Social Mobility’ (London South Bank University, 30 October 2013) <http://www.supremecourt.uk/docs/ speech-131030.pdf> accessed 2 March 2014, 5.

Li Yi Hong

the state will automatically assign a lawyer to anyone convicted with an offence that carries the death penalty should he or she be unable to afford it. The Criminal Legal Assistance Scheme (CLAS) also lists out offences under the statutes it covers, including the wide range of offences under the Penal Code. For civil cases, the LAAA 1996 that the Legal Aid Bureau (LAB) is governed by only has a short list of exclusions, namely defamation cases, proceedings before Small Claims Tribunal and the Tribunal for the Maintenance of Parents, and proceedings in the Family Court for maintenance and personal protection orders when the other party is not legally represented.14 Yet, there is a key discretion clause in section 8(4) that gives the Director of Legal Aid an option to ‘refuse legal aid if it appears to him unreasonable that the applicant should receive it in the particular circumstances of the case’.15 It is unclear how often this discretion is relied upon to refuse legal aid and whether a board, consisting the Director himself and at least two other solicitors, that gives the final approval for legal aid is sufficient to prevent an arbitrary use of this discretion. Rather than be accused of arbitrarily excluding clients through the use of such a wide discretion, it is necessary for the Singapore government to provide safeguards and some level of certainty for applicants with regard to the scope of legal aid available to them. The UK government’s difficulty in drawing the scope of legal aid should not be used as a reason for Singapore to avoid increasing accountability for our legal aid system. Instead, the Singapore government should work towards forging a consensus amongst the legal profession on clear criteria by which to delineate the scope of legal aid. The creation of an Independent Criminal Legal Assistance Steering Committee at the end of 201316 to look into, amongst other issues, the type of offences covered by criminal legal aid is definitely a step in the right direction. The four criteria put forward by the UK government to delineate the scope of legal aid may serve as a good starting point. Perhaps the Singapore government, compared to the UK, also has an easier task ahead. Defining the scope of legal aid in Singapore will likely be seen as a move towards improving accountability of the scheme, rather than viewed as narrowing its scope and taking aid away from people who need it. ELIGIBILITY FOR LEGAL AID A further consideration that is being debated in the UK is the tightening of the eligibility criteria for legal aid. More specifically, the 2013 legal aid reforms seek to abolish the provision that those on passporting benefits (namely income support, job seekers allowance, employment and support allowance, state pension credit) become automatically eligible for the legal aid. In addition, anyone who has been illegally residing in the UK for more than a year would no longer be eligible for legal assistance in civil cases. Lady Hale argues that these reforms will continue the steady erosion of the percentage of the population that is eligible for legal aid. When the 1949 Act was passed, around 80% of the population were eligible for legal aid. By 2008, this percentage has come down to around 30%.17 The UK public and those in the legal profession clearly view this decreasing trend to be inherently wrong, but these sentiments are not necessarily shared in Singapore. 14 Legal Aid and Advice Act (Chapter 160) 1996, First Schedule, Part II. 15 Ibid. Part II, s8(3). 16 Amanda Lee, ‘Government to Enhance Criminal Legal Aid’ TODAY (Singapore, 6 Dec 2013). 17 Cf. Lady Hale (n12).

In Singapore, the percentage of the population with access to free legal aid is even lower. Only 12-17% of two-income households in Singapore qualified for legal aid based on the 2010 census.18 Every applicant to the CLAS and LAB is subject to a means test, which the UK legal aid reforms now similarly seek to introduce across the board. Under the means test, persons with a disposable income of not more than S$10,000 per annum and a disposable capital of less than S$10,000 may be granted legal aid. However, research by the Singapore Law Watch (SLW) indicates that Singapore’s middle class would find current costs of legal fees burdensome and even unaffordable without any access to legal help. Each trial day in a District Court costs S$12,000 to S$16,000, in contrast to the median family income in 2010 that was S$48,000. SLW argues that a day in day in High Court can ‘nearly wipe out an entire year’s household income’.19 The Singapore government’s fierce rejection of introducing a welfare system due to the fear of nurturing a ‘crutch’ mentality20 may account for its lack of concern with the low proportion of the population that has access to legal aid. While UK citizens may view access to legal aid as their right as citizens, the Singapore government sees legal aid as a provision only for those who cannot afford it. However, the Singapore government’s opposition to welfare benefits is no justification for being deaf to the difficulties that its citizens face in affording legal representation. A continual process of recalibrating the means test must be in place to best respond to any reduction in the capabilities of citizens to access justice (as discussed in Section B). LEGALISING THE CONTINGENCY FEE SYSTEM In fact, the Singapore government has proven itself to be responsive to the needs of the population, with the introduction of the Legal Profession (Amendment) Bill. The bill is to be tabled in the later part of 2014 will look at the affordability of lawyers’ fees, or more specifically, it will consider legalising the contingency fee system in Singapore. In such a system, a lawyer’s fees are calibrated based on whether he wins the case. No upfront fees need to be paid and the client need not pay anything if he loses the case. The intention of the scheme is to widen access to justice to those without the means to afford costly lawyer fees and remove the disincentive for a client to bring a case to court because he or she fears losing the case and being saddled with hefty legal costs. Some lessons can be learnt from the UK’s experience with legalising the contingency fee system in 1967, and its present efforts to reform the system with the LASPO. Current rule changes are concerned with the often substantial success fee that defendants are required to pay on top of their claimant’s legal fees, should they lose the case. Based on the new rules, the claimant, instead of the defendant, will be required to pay the success fee if he or she win the case, although this can be no more than 25% of the damages awarded.21 These changes are intended to curb the ‘have-a-go’ culture that encourages spurious legal claims. This is evident from the reported 25% 18 Seow Tzi Yang and Debra Lam, ‘Time to Pop the Champers! Why Champerty Makes Sense’ (2014) 1 Singapore Law Watch Commentary. 19 Andy Ho, ‘Let Court Trial Outcome Determine Lawyers’ Fees’ The Straits Times (Singapore, 3 February 2014). 20 M. Ramesh, ‘Social Security in Singapore: Redrawing the Public-Private Boundary’ (1992) 32 (12) Asian Survey 1093, 1103. 21 Emma Simon, ‘End of ‘no win, no fee’ lawsuits’ The Telegraph (London , 29 March 2013).

Truly, Justice For All: A Comparative Study Between Singapore and the UK’s Legal Aid Systems

increase in number of claims for whiplash following a car accident in the past 4 years, despite a falling number of car accidents.22 In a 2010 review of the operation of health and safety laws titled ‘Common Sense, Common Safety’, Lord Young reported that the NHS paid out nearly £297 million in claims within the 2009-10 period, whereby two thirds of this went to the claimants’ lawyers.23 He then argues that the public would be better served if this money went instead into improving health care. The major argument for legalising the contingency system in Singapore is that such a system enables meritorious claims to be brought to court when clients would otherwise not have the resources to do so. In fact, it would motivate lawyers to produce more diligent work since they be taking on the risk of earning nothing should they lose the case. The SLW suggests the economic reasons for introducing this system outweigh concerns of encouraging frivolous claims.24 It would be premature to simply dismiss the contingency fee system as a means of increasing access to justice, based on the UK’s experience. Rather Singapore needs to seriously consider and put in place rules that minimize the risk of abuse, and may choose to take pointers from the UK with regard to how they attempting to recalibrate their system. SOURCES OF FUNDING Arguably, what lies at the heart of the issue is that funds available for legal aid are limited and hence decisions need to be made about how this money should be allocated (which have been discussed in the earlier half of the essay). Yet, it is still valuable to examine how effectively the two governments have been at raising the capital required to fulfill the ambitions of their differing legal aid systems. The UK reportedly spends £2 billion on legal aid funding at the moment, with around £1 billion spent on criminal legal aid alone.25 A projected 23% reduction in legal aid budget has been argued to be necessary by the Ministry of Justice. Proposals to cut spending include a 10% cut on the pay of criminal barristers.26 A more controversial proposal involves introducing a best-value tendering system, where companies will tender for legal-aid contracts that will be awarded not based on merit, but on the cheapest bidder. These proposals prompted the historic half-day walk-out by barristers across the country in January 2014, protesting that their very livelihood was being threatened by these cuts. As one judge notes astutely ‘justice may be priceless. But it is not costless’.27 At the moment, the money that the UK government has been able to fork out undoubtedly fall short of the ambitions of its legal aid system. The present situation leaves but two options for the government – to raise the resources necessary to support its current approach to legal aid or to significantly curb the ambitions of the system.

budget. For criminal legal aid, the Singapore government has largely relied on private funding. The government perceives a conflict of interest with regard to providing legal aid to applicants who are being criminally prosecuted by the state, and hence gives funding only indirectly with an annual contribution to the Pro Bono Office of the Law Society. On the other hand, the LAB was allocated $9.5 million in 2012 to provide civil legal aid, which reportedly served over 9,000 persons.28 Perhaps, the partly private funding of legal aid by non-governmental sources such as the Law Society has enabled an alternative source of funding to grow and exist independently in the event of government budget cuts. It must, however, be acknowledged that Singapore’s legal aid budget is much less generous than the UK’s, which probably stems from a completely different understanding of the government’s duty to ensuring the access of justice in society. CONCLUSION As argued in this essay, the different philosophy that the Singapore government has adopted towards access of justice (in contrast to the UK) may be defended if it remains responsive to the changing capability of citizens to access justice and looks to strengthen the constitutional basis by which citizens may assert their right to legal aid. Other lessons from the UK’s experience appear to be negative ones, such as the warning not to cause over-reliance on government funding or to expand the scope of legal aid without clear criteria on how to prioritize issues. However, Singapore’s sensitivity to socio-economic considerations of the state in relation to its legal aid budget is likely to prevent too gross an expansion of the legal system that its budget cannot cope with. Ultimately, it is hoped that the Singapore government’s budget will continue to enable it to do more in ensuring access to justice, rather than force cutbacks such as those in the UK.

The present conversation in Singapore has been vastly different, with the government considering an expansion the legal aid 22 Ibid. 23 Lord Young, ‘Common Sense, Common Safety’ (October 2010). 24 Cf. Seow (n17). 25 Ministry of Justice Press Release, ‘Making legal aid fairer for taxpayers – consultation launched’ (London, 9 April 2013). 26 Ministry of Justice Consultation Paper CP12/10, ‘Proposals for the Reform of Legal Aid in England and Wales’ (November 2010). 27 Sir Ivor Richardson, ‘Courts and Access to Justice’ (2000) 31 Victoria University of Wellington Law Review 163, 171.

28 Singapore Budget 2012: Expenditure Overview, Government Administration <http://www.mof.gov.sg/budget_2012/expenditure_overview/ minlaw.html> accessed on 14 April 2014.

Photo Credit: Ken Teegardin https://www.flickr.com/photos/teegardin/6093810333

THE FIGHT AGAINST CORRUPTION in Singapore, proposing that a defendant should be found to have acted “corruptly” as

By Wu Junneng and Vivian Toh University of Bristol

The Fight Against Corruption

INTRODUCTION Graycar and Sidebottom argued that corruption and bribery not only inhibit economic development but also undermine the Rule of Law, entrench bad governance and distort the principle of fair competition.1 Corruption in its ordinary meaning is to act dishonestly and with a lack of integrity.2 The laws that protect our citizens from corrupt practices are found in the Prevention of Corruption Act 1993 (PCA). One would need to have acted with ‘corrupt intent’ to be found guilty under the PCA.3 While this may seek to ensure that only those who have acted ‘corruptly’ are punished, the need to prove that a defendant has acted with corrupt intent may narrow the ambit of the offence and therefore provide defendants with a defence that is too readily available. This is undesirable in a society which seeks to curb corruption. This article begins with an examination of the PCA and how the provisions operate. It will be argued that a corrupt intent exists even where the gratification is obtained in the context of an intimate relationship. The provisions of the Bribery Act 2010 (BA) of the UK will then be examined. By providing justifications for the removal of the need to prove corrupt intent, this article argues that anti-corruption laws would be more effective if the PCA adopts reform measures introduced in the BA, albeit subject to modifications. It is submitted that a defendant should be found to have acted ‘corruptly’ as long as the gratification received is the primary reason for the corrupt behaviour. PREVENTION OF CORRUPTION ACT 1993 It is often difficult for a man to claim that he does something for absolutely nothing. In Singapore, if a person accepts a reward or an inducement to perform an act he was already obliged to, he may be found to be corrupt.

HOW DOES THE PCA OPERATE? Gratification must be corruptly received or offered in order to qualify under the PCA. Over the years, the Courts have sought to clarify the meaning of ‘corruptly’ with much difficulty. The Chief Justice then, Yong Pung How CJ formulated the two-part test for corruption in the case of PP v Khoo Yong Hak.5 The Chief Justice stated that the gratification given must be accompanied by a corrupt intent and there must be a corrupt element in the transaction itself. Subsequently, the Chief Justice in Chan Wing Seng v PP6 restated the test he had previously laid down in Khoo: ‘Thus, there must first be a corrupt element in the transaction according to the ordinary and objective standard, followed by the accused’s guilty knowledge that what he was doing was, by that standard, corrupt. Both limbs must be fulfilled beyond a reasonable doubt. And the question of ‘corrupt’ would be determined on the facts of the individual case.’7 This approach was firmly applied in Low Tiong Choon v PP8 where the Chief Justice stated that corruption exists where there is both a corrupt element in the transaction and accompanying guilty knowledge. He provided the following guidelines9: •

To decide whether there is a corrupt element:

The main provisions that criminalise corruption are Sections 5 and 6 of the PCA.

The intention of the accused in giving or receiving the gratification is to be established;

Section 5 provides that where any person‚ corruptly solicits‚ receives‚ or gives any gratification as an inducement to do or forbear from doing anything in respect of any matter or transaction‚ he is guilty of an offence. On conviction‚ such a person shall be liable to a fine not exceeding S$100‚000 or to imprisonment for a term not exceeding 5 years or to both.

ii.

This intention and the facts of the case are then considered in an objective enquiry into whether there was a corrupt element.

On the other hand, Section 6 of the PCA provides‚ inter alia‚ that where the gratification is given to or accepted by an agent as an inducement to do or forbear from doing any act in relation to his principal’s affairs or business‚ or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business‚ both the agent and the giver shall be guilty of an offence and on conviction, the penalty is identical to that under Section 5. 1 Adam Graycar and Aiden Sidebottom, ‘Corruption and control: a corruption reduction approach’ [2012] Journal of Financial Crime, 19(4), 384399. 2 It has to be noted that the ordinary and literal meaning does not equate to the legal meaning. 3 The offence of corruption found in section 5 and 6 of the PCA requires the defendant to have acted “corruptly”. This is later clarified by Yong Pung How CJ in a few cases to mean that the defendant must have acted with a corrupt intent.

Furthermore, Section 8 of the PCA states that any gratification that has been paid or received by a public officer shall be deemed to have been paid or received corruptly as an inducement or reward, unless the contrary is proved. This presumption may be rebutted by the accused showing a legitimate reason for receiving the alleged gratification, and the burden lies on the accused to rebut the presumption on a balance of probabilities.4

•

To decide whether guilty knowledge (corrupt intent) exists the question asked is whether the accused knew that what he did was corrupt by the ordinary and subjective standard.

However, given the recent prosecutions of several high-ranking public servants, it appears that the need to prove that the accused have a corrupt intent may be a potential source of miscarriage of justice. The accused will not be found to be corrupt so long as he can provide a legitimate reason to negate the corrupt intent requirement even though the obtaining of gratification is grossly tainted with corrupt elements.

4 Wee Toon Boon v PP [1976] 2 MLJ 191. 5 [1995] 2 SLR 283. 6 [1997] 2 SLR 426. 7 Christopher Ong, Daren Tang, Thomas Koshy and Wendell Wong, ‘The meaning of corruptly’ [1999] 11 SAcLJ 147, 161. 8 [1998] 1 SLR 300. 9 Ong, Tang, Koshy and Wong, ‘The meaning of corruptly’ (n 7) 169.

Wu Junneng and Vivian Toh

The case of PP v Ng Boon Gay10 clearly exemplifies the aforementioned point. Ng Boon Gay (“Ng”) was the former chief of the Central Narcotics Bureau (CNB). He was charged with four counts of corruption under the PCA for obtaining sexual gratification in the form of oral sex from Ms Cecilia Sue (“Sue”) (then a sales manager for Hitachi Data Systems). Ng was alleged to have obtained the oral sex in return for helping Sue obtain contracts with CNB. He was eventually acquitted of all corruption charges notwithstanding the fact that Sue’s evidence was impeached, but also because of the existence of a consensual and intimate relationship between both parties, which negated any corrupt intent Ng was alleged to have.11 In summing up the Court’s judgement, the learned judge held that:12 ‘Having due regard to the circumstances which gave rise to the conflict of interest and having regard to my finding that the sexual acts here were carried out in the context of an intimate relationship, the accused’s acting in conflict would not equate to satisfying any of the elements of the offence of corruption presently. Accordingly I found that the accused had lacked guilty knowledge in respect of the instances of fellatio listed in the charges.’

More recently, former NUS Law Professor Tey Tsun Hang13 (“Tey”) was charged with six counts of corruptly obtaining gratification from his former student, Darinne Ko (“Ko”) as an inducement for him to show favour in his assessment of Ko’s grades. He attempted to prove that he was in an intimate relationship with Ko to negate the corrupt element and intent of the offence. The Judge held that he was satisfied with the Prosecution’s submissions that Tey had corrupt intent, knowing what he was doing was wrong but persisting in taking advantage of his former student. Tey’s defence that the relationship he shared with Ko was a romantic one and that they were in love did not find favour with the Judge. Further, the Judge found that Tey had great influence over his former student as the status of their relationship was a disproportionate one.14 In a High Court decision by Woo Bih Li J, this decision was overturned on the basis that the trial judge had “wrongly equated conduct which is morally reprehensible with conduct that is legally wrong”. This case, following the precedent set in Ng, deepened the lacuna where a defendant could be acquitted of a corruption charge on the basis that gratification was given freely out of affection and not with the final objective of achieving corrupt gain. The question that follows Ng and Tey’s acquittals is: Does the current anti-corruption law allow defendants an easy way out of corruption charges? Under the PCA, Ng and Tey would be able to dismiss whatever influence the gratification had on the decision-making process by proving that they did not have a corrupt intent by virtue of the existence of an intimate relationship. Even presuming that the sexual gratification was carried out in the context of an intimate relationship (and 10 [2013] SGDC 132. 11 Ibid [117]. 12 Ibid [132]. 13 PP v Tey Tsun Hang [2013] SGDC 165 [2014] SGHC 39. 14 Hamidul Haq, “Recent Corruption Cases in Singapore”, (Corporate Livewire, 1st August 2013), <http://www.corporatelivewire.com/top-story.html?id=recent-corruption-cases-in-singapore> accessed 20 January 2014.

that this is something that is easily and objectively proved), it is still highly arguable that the sexual contact played a highly persuasive role in influencing Ng and Tey. As Berry15 argues, sex affects the way a person thinks and the prospect of sexual gratification can be a compelling motive for one to act corruptly. Simply, behaviourists believe that sex is a strong reinforcer for behaviour and it has a strong influence over the decisions one makes. Maslow further notes that sex is a basic physiological need which acts as a main drive in humans.16 It can be argued that one may provide corrupt favours in reciprocity for sexual gratification even in the presence of an intimate relationship. If this is right, the law should not allow corrupt intent to be negated merely because one is in an intimate relationship. In Ng’s case, his motive for awarding the contract to Sue could have been for various reasons and not because she submitted the best tender. Arguably, Ng could have awarded the contract in order to obtain further sexual gratification or to avoid being exposed for conducting an extra-marital affair. As a government official entrusted with powers which he is expected to exercise impartially, he should not have allowed these irrelevant considerations to affect the decisions he makes. Allowing these “unjust” motives to affect him, he is abusing the powers vested in him. Accordingly, the law should punish him for abusing his powers which is a result of the sexual gratification regardless of what context it was received in. THE BRIBERY ACT 2010 (UK) It is noteworthy that in introducing new legislation to possibly abate the lacuna in the PCA, one ought to refer to its origins in the English Common Law. It is largely due to the fact that Singapore’s current corruption laws have been derived from principles of English law that we have chosen to undertake the study and comparison of the BA with the PCA instead of drawing on legislation from other jurisdictions. Furthermore, the BA is arguably stricter in that the need to prove corrupt intent is not an element of the offence. Section 1 of the BA sets out the offence of bribery: a person is guilty of bribery if they offer, promise or give a ‘financial or other advantage’ to another person as an inducement or reward for performing a ‘relevant function or activity’, ‘improperly’. Section 2 deals with the offence of being bribed: a person is guilty of the offence of being bribed if they request, agree to receive, or accept a ‘financial or other advantage’ as an inducement or reward for the ‘improper performance’ of ‘a relevant function or activity’. This is the so called ‘passive’ offence.17 In stark contrast with the PCA, the BA therefore captures behaviour which induces improper performance where there is no element of corruption or fraud on the part of the person providing the financial or other forms of incentive. This is the case for the majority of section 2, which makes it apparent that the culpability of a bribe is induced the moment the defendant 15 William Berry, “The Second Noble Truth – Sex Affects Your Thinking, And You Don’t Seem To Care”, (Psychology Today, 3rd November 2013), <http://www.psychologytoday.com/blog/the-second-noble-truth/201311/sexaffects-your-thinking-and-you-dont-seem-care>, accessed 20 February 2014. 16 Ibid. 17 Aisha Anwar, ‘Legislative Comment The Bribery Act 2010’ [2010] SLT 23, 125-128.

The Fight Against Corruption

receives gratification or condones behaviour that results in his subsequent improper performance. Section 2(2) case 3 and section 2(7) cases 4 to 6 points out clearly that there is still a need for the defendant to possess the requisite corrupt intent as these cases indicate that corrupt behaviour is established when improper performance is obtained in return for gratification. However, section 2(7) states: it does not matter whether the defendant knew if his actions were considered corrupt. Therefore, there is no longer a need to prove that the defendant possess the requisite corrupt intent. It must be recognised that it is the need to prove corrupt intent and not the corrupt intent which constitutes the mens rea that has been removed by the BA. Formerly, the obtaining of an unjust benefit in exchange for improper performance had to be proven to be performed with corrupt intent. Following the reforms, the corrupt behaviour can be established without the need to simultaneously adduce evidence of the subjective thought process of the defendant (i.e. whether he possessed a corrupt intent). Therefore, the anomalous cases in the BA which suggest that there is still a need to prove corrupt intent are accurate in that the mens rea for the offence has not been removed; it is simply the arduous task of having to prove that a corrupt intent exists that has been removed. While naysayers of this measure might critique it as unduly harsh, it arguably offers considerable certainty and may be seen as an effective anti-corruption measure. JUSTIFICATIONS FOR THE REMOVAL OF THE NEED TO PROVE CORRUPT INTENT The arguments in favour of removing the need to prove corrupt intent are numerous. Firstly, there is no easy, objective and precise definition for ‘corrupt intention’ (which creates a lack of clarity in the law).18 Secondly, this would help avoid creating a grey area19 where a defendant can avoid liability on the ground that they did not know what they were doing is corrupt. Furthermore, there is also an inherent need to protect the public’s interest.20 The PCA resembles former anti-corruption laws21 of the UK in many aspects. Perhaps the most obvious similarity is in their need to prove that the defendant acted with a corrupt intent. It was argued in the Law Commission’s report on the Bribery Bill that despite having to prove the defendant acted “corruptly”, the law does not provide a clear definition of what is “corruptly”. The confusion over what is “corruptly” was apparent in the cases of Copper v Slade22, Lindley23 and Calland24 where the former case held that ‘corruptly’ did not require any dishonesty while the latter cases suggested that dishonesty must be proved. Nonetheless, Smith25 and most recent appellate authorities have favoured the majority decision of the House of Lords in Cooper 18 Law Commission, Reforming Bribery, (Law Comm. No. 313) Para 2.33, The meaning of “corruptly”. 19 Law Commission, “Reforming Bribery”, (Law Comm. Consultation Paper No. 185) Para 6.28 - 6.31, Must R know or believe that the act is an “improper” act? 20 Jonathan Herring, Criminal Law: Text, Cases and Materials (Fifth Edition, OUP 2012) 239. 21 1889 and 1906 Prevention of Corruption Acts. 22 (1858) 6 HL Cas 746; 10 ER 1488. 23 [1957] Criminal Law Review 321. 24 [1967] Criminal Law Review 236. 25 [1960] 2QB 423.

requiring proof of intent to corrupt without needing dishonesty. The lack of clarity surrounding this critical element weakens the effective application of the law of bribery. In the BA’s Consultation Paper, the Law Commission felt that the need to prove a corrupt intent may create a grey area26 where a defendant can avoid liability or use it as a defence to argue that they did not know what they were doing is corrupt.27 The Law Commission found that there is always the possibility that a person will be induced to do an act without realising that it constitutes a breach of a legal or equitable duty that involves betrayal of a relation of trust or breach of a duty to act impartially or in the best interests of another. In such cases, it was thought that the defendant ought not to be convicted of bribery. However, were the defendant to be exonerated, this would be an exception to the general rule that a person cannot plead mistake of law in order to avoid criminal liability.28 Therefore, the Law Commission (No. 313) argued that the defendant is in the best position to understand the duties that he or she is under and is expected by the law to avoid breaching. Where such a duty is breached, the defendant would be found liable for bribery. Sullivan further argued that the corrupt intent element of the offence allows defendants a line of defence that can be raised very easily and could heavily undermine the effectiveness of bribery laws. 29 Referring to Lord Bach’s debate on the Bribery Bill: ‘It would be much easier for the recipient to claim ignorance of the fact that his or her conduct constituted a breach of an expectation than it would be for the prosecution to prove that the recipient was aware that it did’.30 Therefore, the removal of the need to prove corrupt intent will in a sense reverse the burden of proof – defendants will have to prove that they knew very clearly that what they were doing was not corrupt in order to avoid criminal liability. This will have a two-pronged effect of boosting the overall effectiveness of bribery laws, as well as ensuring a conscious effort from the defendant to avoid corruption. Anti-corruption laws are made to protect the general public’s interest be it for fair competition or to uphold the rule of law. The removal of the corrupt intent requirement will bring anticorruption laws closer to strict liability offences. The argument is that by making the offence one of strict liability, potential offenders will be encouraged to take reasonable steps to ensure that they are not acting corruptly. Moreover, strict liability offences are easier for the prosecution to prove because there is no need to prove the defendant’s state of mind.31 The question of justice would be invoked with the proposal that corruption offences are to be of strict liability. Since the 26 Law Commission, “Reforming Bribery”, (Law Comm. Consultation Paper No. 185) Para 6.29. 27 Bob Sullivan, “Reformulating bribery: a legal critique of the Bribery Act 2010: Modern Bribery Law Comparative Perspectives” (Jeremy Horder and Peter Alldridge ed, OUP 2013) 22. 28 Law Commission, “Reforming Bribery”, (Law Comm. Consultation Paper No. 185) Para 6.28. 29 Bob Sullivan, “Reformulating bribery: a legal critique of the Bribery Act 2010: Modern Bribery Law Comparative Perspectives” (Jeremy Horder and Peter Alldridge ed, OUP 2013) 25. 30 HL Deb, 2 February 2010, Vol. 717, col. 122. 31 Jonathan Herring, Criminal Law: Text, Cases and Materials (Fifth Edition, OUP 2012) Page 239.

Wu Junneng and Vivian Toh

severity of a corruption crime is no less than other criminal offences which require mens rea in terms of its consequences, the argument that the removal of the need to prove a corrupt intent would likewise ensure justice. However, it could be argued that it would be unjust to find a defendant liable where he truly lacked the necessary culpable mental state as defined in statute. Nonetheless, as the law currently stands, it is not that the defendant lacks the requisite intent; it is merely that the lacuna allows corrupt intent to be negated by an external factor - such as love as raised in Ng and Tey. This external factor does not mean that the corrupt intent is non-existent, but that the Prosecution cannot rely on it to prove that the defendant is corrupt as it requires the subjective recognition on the part of the defendant that his actions were corrupt. As a result, the Prosecution may fail even though the defendant possessed the requisite corrupt intent. The acquittal of Ng for example, illustrates the exploitation of the lacuna in the PCA. By moving the offence of corruption closer to strict liability offences, justice would be served in the form of successfully prosecuting defendants who possess corrupt intent but attempt to exploit the lacuna in the PCA. In Ng’s case, this would allow a successful prosecution where his behaviour would previously not be deemed corrupt. Despite his apparent corrupt intent, he was not found to be corrupt by exploiting the lacuna in the PCA. Following section 2(7) of the BA, should amendments be made to the PCA, it will no longer matter whether or not Ng knew that his actions were corrupt. Justice can then be achieved with the removal of the lacuna that has condoned corrupt behaviour. That lacuna, if not tackled, would be the true injustice marring the fight against corruption in Singapore. Nonetheless, the lack of a need to prove corrupt intent in the BA is a peculiarity because the mens rea is not as apparent as that in the PCA. Although there is a positive duty to act in order to prevent corruption, a defendant would possess the requisite mens rea for corruption should she fail to consciously act in an incorrupt manner. It is not that a specific mens rea is absent in sections 1 and 2 of the BA, but the intention to obtain a ‘financial or other advantage’ is in itself a corrupt deed. The pressing concern with the BA is that it narrows the range of defences a defendant can rely on. That being said, the BA widens the scope of the offence such that it encompasses a wide breadth of corrupt practices and performances meant to secure corrupt gain with the presentation of a ‘financial’ incentive or ‘other advantage’. There is the need to reconcile the BA with the due process model of justice.32 SUITABLE REFORMS The requirement of having to prove corrupt intent in the PCA is one that is derived from the previous legislation of the PCA 1906 and the PCA 1916 of the United Kingdom. The PCA 1993 is a derivative from its precursors from the UK, and some of its provisions are entirely similar to those set out in its predecessors. An instance would be section 2 of the PCA 1916, and section 8 of the PCA 1993. The introduction and implementation of the BA and the removal of the need to prove corrupt intent is reflective of much deliberation of the UK’s legislature and it is indicative of 32 The due process model of justice presumes the innocence of the accused until his or her satisfactory trial can ascertain guilt.

a conclusion that legislation should progress in this manner. Analytically, it simply provides an imperative for Singapore to include progress in the PCA 1993, which is still based on dated legislation that is not necessarily representative of contemporary Singapore and its current fight against corruption. Therefore, it is submitted that a holistic and rational approach be adopted in order to incorporate amendments made to the BA. Having had the privilege of witnessing the operation of the BA, one tangibly identifies the problems that have arisen in the implementation of the BA. It is therefore suitable to only introduce elements of the legislation that on close comparison in the earlier section, would provide for a more ‘fair, just and reasonable’ approach in Singapore. The BA provides fresh insight into anti-corruption laws. Especially in the public sector (where the corrupt intent requirement could be negated so easily for example by arguing that one was in an intimate relationship), introducing aspects of the BA into the PCA will effectively combat this lacuna. This article submits that it should be immaterial whether or not the recipient knew or believed that his or her act constituted a breach of a legal or equitable duty.33 It is sufficient so long as the gratification has influenced his or her actions. However, the criminalisation of any form of gratification is unduly harsh on genuine expressions of affection and the prosecution of such displays of humanity would subject a proposed improvement to criticisms of absurdity. An improvement would be to require that the defendant’s improper act was ‘substantially’ or ‘significantly’ influenced by the gratification. However, this test would make the offence too broad. Therefore, the better proposal would be that the gratification has to be the primary reason influencing his actions before he will be held liable.34 As aforementioned, it must be pointed out that the BA is not the complete panacea to issues regarding the PCA. Although the BA provides some of the most far-reaching legislation intended to achieve its motive of eliminating corruption, it has been criticised as having ‘all bark but no bite’.35 In the criticism raised by David Aaronberg QC, it is argued that the BA is an immense improvement from previous legislation but raises the logical concern that the scope of offence is unnecessarily widened. One seeks to question the aims of the Act, which though commendable, come across as lofty and overly idealistic. In an impact assessment carried out by the Ministry of Justice, it was predicted that any additional increase of prosecutions brought against individuals and organisations would be minimal under the new Act. Coupled with the taxing amount of resources, both financial and in the amount of manpower required to investigate a case of corruption completely, diminishes much of the hope and efficacy in the stricter crime control modelled legislation that is the BA. In providing a cohesive picture for the change we are seeking to bring about in the PCA, it is to be argued that the lack of corrupt intent of the BA is a positive model to follow although the degree of its inclusion needs to be subject to a degree of thought. This ensures that any new legislation would not be unduly harsh or 33 Law Commission, “Bribery Bill”, (Law Comm. No. 313) 85 Para 6.30. 34 Law Commission, “Bribery Bill”, (Law Comm. No. 313) 83 Para 6.17. 35 David Aaronberg and Nichola Higgins, “The Bribery Act 2010: all bark and no bite?” [2010], Arch. Rev., 5, 6-9.

The Fight Against Corruption

too flexible. Lastly, it is proposed that care has to be taken in the intricate construction of any new legislation in order to avoid the problems that have arisen in the implementation of the BA. CONCLUSION Corruption is inherently detrimental to society and it is normally the Civil Service that is of the greatest concern. Quoting Sir Ivor Jennings: â&#x20AC;&#x153;... the most elementary qualification demanded of a Minister is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it.â&#x20AC;? In the cases we have discussed above, we have assessed the suitability of the PCA in combating corruption in Singapore. In the case of PP v Ng Boon Gay, the establishment of an intimate relationship between the accused and the prosecution witness negated all form of corrupt intent which allowed for a swift acquittal. However, one must question whether the PCA is still relevant today to tackle corruption effectively. In light of the BA, the absence of having to prove a corrupt intent could be adopted to widen the scope of the offence and capture those who have acted under the influence of the gratification obtained. However, this set of proposals has to be modified to exclude unsound principles that might produce irrational results. The gratification obtained must have been the primary reason for acting corruptly. Perhaps, by having stricter laws, public officials and individuals will think twice about receiving rewards and gifts. This will better reflect the changing circumstances of society and further aid us in ensuring a state of clean governance.

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ON LOVE AND CORRUPTION: A RELATIONSHIP UNEXPLAINED

This article considers the implications of the judgment in PP v Tey Tsun Hang, arguing that this case is not the last word on corrupt intent, as it leaves several issues open for interpretation.

by Tan Tian Hui University of Bristol

Tan Tian Hui

CASE COMMENT: PP V TEY TSUN HANG The recent decision of the High Court in PP v Tey Tsun Hang ([2014] SGHC 39), or better known to the public as the sexfor-grades scandal, adds to the recent slew of corruption cases involving sexual favours as the relevant act of gratification. Reversing the District Court’s judgment ([2013] SGDC 165), the High Court held that the mens rea elements of the offence pursuant to s 6(a) of the Prevention of Corruption Act 1993 (“PCA”) had not been proven, and acquitted the appellant of his charges. The judgment raises particularly interesting questions relating to evidence provided where the offence of corruption is committed in the context of an intimate relationship, such that the acts of gratification concerned are sexual favours. This article will consider the implications of the judgment in PP v Tey Tsun Hang, arguing that this case is not the last word on corrupt intent, as it leaves several issues open for interpretation in future cases. THE LAW This case considers the application of s 6(a), in conjunction with s 8 of the PCA, which sets out the following offence: s 6(a): any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business. Where the agent is employed by a public body, s 8 reverses the burden of proof. The claimant is therefore presumed to be corrupt, and the burden of proof is imposed on him to prove otherwise. This imposes a higher standard of proof for public officers as the defence, instead of the prosecution, bears the burden of proof. s 8 states: s 8: Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification1 has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved. APPLICATION IN PP V TEY TSUN HANG In this case, the appellant, Tey Tsun Hang (“Tey”), a former law professor at the National University of Singapore, faced six charges of corruption pursuant to s 6(a) of the PCA. He had allegedly received gifts and sexual gratification from his former student, Ms. Darinne Ko (“Ko”), as an inducement to show favour to her in her academic assessment. As the University 1 As defined in s 2 PCA, gratification extends to “any other service, favour or advantage of any description whatsoever”.

is considered a public body under s 8 PCA, the burden of proof fell on Tey, as a public officer, to rebut the presumption of corruption. The District Court found that Tey was guilty of corruption, and that the acts of gratification were not received in the context of a mutually loving relationship. Instead, there was an obvious imbalance of power which contributed to the finding that Tey had abused his position and power, and had acted with a corrupt intent. Reversing this decision, the High Court held that it had not been proven that the acts of gratification were received as an inducement, and were tainted by an objective corrupt element. Summarising the law, Justice Woo cited the decision in Kwang Boon Keong Peter v PP [1998] 2 SLR(R) 211, which set out the elements of the offence under s 6(a) PCA. There are four requirements to be satisfied (Peter Kwang, at [32]): (a)

acceptance of gratification;

(b) as an inducement or reward (for any act, favour or disfavour to any person in relation to the recipient’s principal’s affairs or business); (c) there was an objective corrupt element in the transaction; and (d) the recipient accepted the gratification with guilty knowledge. The first requirement constitutes the actus reus, and the latter three constitute the mens rea. The Court was concerned with the second and third elements, which it considered as a single question: whether the recipient received the gratification believing that it was given to him as a quid pro quo for conferring a dishonest gain or advantage on the giver in relation to his principal’s affairs (at [17]). It based its findings on two grounds. First, contemporaneous evidence provided by Ko reflected an intimate relationship between the two. Thus, the acts of gratification arose from Ko’s love for Tey, and not because she sought to be conferred an advantage (at [298]). Second, the court distinguished between Tey’s exploitative behaviour and a corrupt intent (at [320]). Tey had exploited Ko’s feelings, by manipulating her to think that he loved her as well, to satisfy his greed and lust. However, this did not amount to possessing a corrupt intent. The High Court therefore reversed the District Court’s decision to convict Tey. In concluding, Justice Woo stated that the trial judge had wrongly equated morally reprehensible conduct with conduct that is legally wrong ([320]). In light of recent decisions relating to public officers accepting sexual favours as gratification, this case provides an opportunity to examine the application of corruption laws in the context of an intimate relationship. In PP v Ng Boon Gay [2013] SGDC 132, the former director of the Central Narcotics Bureau, successfully rebutted the presumption of corruption in the context of an intimate relationship with Ms Sue, the giver of the acts of gratification. In PP v Peter Benedict Lim Sin Pang [2013] SGDC 192, the former commissioner of the Singapore Civil Defence Force was found to be guilty of corruption, although the decision was primarily based on the fact that he held a conflict of interest position that imputed a corrupt element to the act. Thus, other than the present case, only the decision in PP v Ng Boon Gay provides guidance relating to this area of the law. 68

On Love and Corruption: A Relationship Unexplained

There is therefore a lack of definitive guidance regarding the minimum threshold for proving elements of the offence under s 6(a) PCA. The judgment in the present case leaves several questions open-ended, and has left the law in this area in a state of uncertainty. LOVE AND CORRUPTION: A MUTUALLY EXCLUSIVE RELATIONSHIP? First of all, in determining whether there is an objective corrupt element in the transaction, the High Court decision contemplates that the existence of an intimate relationship between the giver and recipient is a factor to be considered in the assessment of the overall evidence. It is therefore possible for an act of gratification to be made and/or received with a corrupt intention, even if done in the course of an intimate relationship (at [294]). In coming to this conclusion, Justice Woo expressed disagreement with the District Court’s judgment in PP v Ng Boon Gay, that the existence of an intimate relationship between the recipient and giver of the acts of gratification negated the presence of any corrupt element in the case (at [117]). However, there was no affirmative guidance as to the weight that should be accorded to the intimate relationship as between giver and recipient. The High Court rejected the approach in PP v Ng Boon Gay, which essentially provides that the existence of an intimate relationship is a defence to allegations of corruption. Although it held that an intimate relationship would be considered as a factor amidst the overall evidence, the court did not provide definitive guidance concerning the significance of an intimate relationship. In fact, the Court had come to its own decision primarily on the basis of the intimate relationship between Tey and Ko. In the context of such cases, it is submitted that it is difficult to draw the line between the effect of an intimate relationship negating the evidence of corruption and according significant weight to such evidence. The District Court’s statement in PP v Ng Boon Gay would be preferable, as it causes less confusion for it avoids the difficulties involved in considering the weight to be accorded to the evidence of an intimate relationship. It is difficult to imagine how such cases may otherwise be decided in light of the fact that the intimate relationship provides the primary basis on which the act of corruption is founded. Instead, once an intimate relationship is found, the prosecution will then have to discharge the burden of proof on the basis of positive evidence of corruption, which would include clear correspondence or oral exchanges between the parties demonstrating a mutual intention that the giver intends to gain a reward for providing the relevant act of gratification, which is correlative to the recipient’s intention to benefit from it. IS UNREQUITED LOVE ‘LOVE’? Second, the implications of this judgment are that a unilateral relationship between the giver and recipient is sufficient to negate evidence of corrupt intent, either on the part of the giver or recipient. This judgment considers the scenario where the giver of the acts of gratification, in this case Ko, provides evidence of a one-sided relationship. The High Court placed particular emphasis on evidence of Ko’s love for Tey in acquitting him. The Court reviewed evidence of 69

cards, notes and emails that Ko wrote to express her love (at [270] – [298]). This constituted affectionate personal messages and poetry that contained evidence of a romantic relationship. However, there was no equivalent evidence provided on Tey’s part. The High Court agreed with the trial judge’s finding that the relationship was one-sided (at [250]). For example, Tey was terse in his emails, sometimes to the point of being curt (at [246]). Assessing the evidence on the whole, the High Court found that the cards and the note constituted evidence of Ko’s feelings and her intention at the time of the acts of gratification, and concluded that she did not have any intention to seek favour from the appellant (at [313]). Less weight was given to Tey’s intention; in assessing his intention, the court adopted the view that although he did not love Ko, he had been exploitative in manipulating her to think that he did, in order to solicit gifts from her. This did not amount to a corrupt intent (at [320]). This decision therefore raises two interesting questions with regard to a one-sided relationship in the context of an alleged act of corruption. First, it would appear that a unilateral relationship is sufficient to prove that the acts of gratification were given out of love. This seems to be extremely generous to potential defendants in future – for it would then be possible for them to receive such acts of gratification in an exploitative manner, without any liability. Second, the court held that exploitation differs from corruption. Exploitation, despite being a moral wrong, did not amount to a legal wrong (at [320]). However, it would be difficult for the court to distinguish between exploitation and corruption. According to the Oxford English Dictionary, exploitation is defined as ‘making full use of and deriving benefit from [a resource]’. There is a fine line between exploitation, where a public official uses his position to derive a benefit, and corruption, which amounts to dishonest conduct by those in power. In this case, the Court arrived at its conclusion as it found that Tey was exploiting Ko’s feelings for him to obtain benefits for himself. Furthermore, there was no suggestion that Tey wanted Ko to believe that the acts of gratification were being given in exchange for his favour in her academic pursuits. Thus, the court found that Tey was exploiting the situation to his own benefit. However, this case does not consider a scenario where the recipient exploits the giver to invoke a legitimate expectation that benefits may be conferred upon the giver, without actually intending to do so. Would such a case constitute corruption, since the recipient is essentially using his position of power to obtain benefits, even though there is no benefit that is eventually conferred? Furthermore, if the first premise mentioned above (that a unilateral relationship is sufficient as evidence of a loving relationship) is accepted, would the recipient be absolved of liability simply because the giver allegedly gave the acts of gratification out of love? It appears that in the context of corruption of public servants, the current position runs the risk of being too generous to defendants, should it maintain the distinction between exploitation and corruption. It remains to be seen whether exploitation and corruption can be distinguished on evidence provided by the prosecution and defendant. DOES LOVE BREED CORRUPTION? In conclusion, this case has provided an interesting examination of the following issues: first, the significance of evidence of an intimate relationship in the context of sexual favours being

Tan Tian Hui

offered as gratification; second, whether a unilateral relationship is sufficient to demonstrate evidence of a loving relationship; finally, whether the distinction between exploitation and corruption is a meaningful one. As the law currently stands, love and corruption do not mix well â&#x20AC;&#x201C; regardless of whether the burden of proof falls on the defendant or prosecution, it is often difficult to determine the extent to which love defines the relationship between the giver and recipient. It is hoped that an incremental development in the law will eventually resolve the doubts and uncertainty that currently surround this area.

Photo Credit: Bill Selak https://www.flickr.com/photos/billselak

REFORM TO EVIDENCE ACT

This article focuses on the substantive changes made to the law of evidence, a notoriously focus on changes to the law of expert opinion evidence and hearsay evidence, as well as the new provisions which grant the judiciary discretion to exclude evidence.

by Samuel Pang University of Bristol

Samuel Pang

INTRODUCTION The law of evidence is a subject which has received great notoriety for its complex morass of technical rules. In recent years, there have been notable attempts in various common law jurisdictions to reform the law of evidence without compromising fundamental trial safeguards. On 14 February 2012, the Singapore parliament passed the Evidence Amendment Bill,1 marking the latest chapter in Singapore’s attempts to modernise its evidential laws. The reforms owed much to the work undertaken by the Singapore Law Reform Committee (LRC). The amendments made major changes in five areas of evidence law.2 This article will focus on the substantive changes made to the law of expert opinion evidence and hearsay evidence, as well as the new provisions which grant the judiciary discretion to exclude evidence.3 It will also consider the problems in achieving consistency with the overarching statutory scheme of the Evidence Act (EA).4 THE STATUTORY SCHEME OF THE EA At the outset, it is apposite to point out a key peculiarity of common law jurisdictions, like Singapore, which derive their evidence codes from the Indian EA 1872,5 namely the stark difference in the notions of relevance between the EA and the common law. Under the common law, relevance is defined as something being “logically probative or disprobative of some matter which requires proof ” (“logical relevance”).6 In relation to admissibility, the default position is that all logically relevant evidence is freely admissible subject to the application of exclusionary evidential rules designed to ensure trial fairness.7

As a result, the statutory scheme of the EA established the law of evidence in Singapore as a system comprised of inclusionary rules. Therefore, evidence cannot be admitted unless it comes within an express inclusionary rule under the EA.10 This distinction is further reinforced by Section 2(2) of the EA, which repeals evidential rules inconsistent with the EA or other written laws.11 Using this argument, courts in Singapore should not incorporate common law developments into Singaporean’s evidence law unless their adoption is consistent with the “essentially static EA”.12 Despite this, however, the Singapore courts were historically predisposed to gloss over Section 2(2) of the EA in favour of introducing both common law concepts and developments into Singaporean evidence law. For example, judicial discretion to exclude evidence on the basis of “unfairness” was recognised in the case of Cheng Swee Tiang. 13 This result was achieved without discussing how such a concept might fit within the statutory scheme of the EA. Other examples lie in the area of hearsay evidence, where courts have been known to either entirely import common law concepts of hearsay14 or to regard Section 6215 of the EA as being reflective of the hearsay rule. Furthermore, the methods which have been employed in Singapore to incorporate “res gestae”, a major common law exception to the hearsay rule, have arguably been problematic. One of the major manifestations of the “res gestae” (Latin for “things done”) rule under the common law is the proposition that an out of court statement constitutes a legitimate exception to the hearsay rule when a statement is made by a person who is so emotionally empowered by the event that the possibility of fabrication is negligible.16

By contrast, “the EA was drafted on the view that there should be no distinction between the concepts of relevance and admissibility. The Act therefore attempts to define relevance as an ever-present connection between two facts rather than identifying it as a process leading to a conclusion.”8 By employing this drafting peculiarity, the EA aims to categorically define the situations where evidence is considered relevant (“legal relevance”).9

Although the “res gestae” rule is well established in jurisdictions which do not utilise the Indian EA, this rule has not been explicitly acknowledged in the EA under the provisions of specific relevancy,17 even in an inclusionary form. The response of the Singaporean courts has been to interpret the provisions of general relevance as justifying the adoption of the res gestae rule.18 This raises the controversial issue of whether the EA’s provisions on general relevance can be used to read in common law evidential rules and thus circumvent the limits imposed by the provisions on specific relevance. Unfortunately, this conundrum is unlikely to be resolved in Singapore in the near

1 Evidence (Amendment) Act 2012, No. 4 of 2012. 2 Specifically, the areas amended are hearsay evidence, expert opinion evidence, legal advice privilege, computer output evidence and sexual character evidence. 3 Only in situations involving hearsay evidence and expert opinion evidence. 4 Singapore Evidence Act, Chapter 97. For avoidance of doubt, all references to the Evidence Act in this essay refers to the Singaporean statute unless stated otherwise. 5 Act no 1 of 1872. 6 Per Lord Simon in DPP v Kilbourne [1972] AC 729. Note also Lord Steyn’s comments in Randall [2004] where he comments that “relevance is a matter of degree to be determined by common sense and experience”. 7 Report of the Law Reform Committee on Opinion Evidence, Paragraph 33. 8 LRC Report on Opinion Evidence, paragraph 17. 9 See the cumulative effect of Section 3(2) on the definition of relevance and Section 5 which prohibits the admissibility of evidence not declared as relevant under the Act or evidence not admissible under some other written law.

10 LRC Report on Expert Evidence, Paragraph 30. 11 Section 2(2) of the EA reads: “All rules of evidence not contained in any written law, so far as such rules are inconsistent with any of the provisions of this Act, are repealed”. 12 Chen Siyuan, “ The Judicial Discretion to Exclude Relevant Evidence: Perspectives from an Indian Evidence Act Jurisdiction” [2012] International Journal of Evidence and Proof 16, 400. 13 Cheng Swee Tiang v PP [1964] MLJ 291, at 292. 14 Subramaniam v PP [1956] MLJ 220, per Mr L M D De Silva, at 222. 15 Which mandates that oral evidence must be direct. 16 See, for example, R v Andrews [1987] AC 281. While the “excited utterance” is a major aspect of the res gestae rule, it is not the only manifestation. See, for example, Sections 118(1)(4a)-(4c) of the United Kingdom Criminal Justice Act 2003 for other preserved common law recognitions of the res gestae rule. 17 Namely, Sections 12-57 of the EA. 18 Sections 6-9 of the EA. See Mohd b. Allapitchay v PP [1958] MLJ 197 (CCA). Such an approach has however produced judicial decisions which have attracted criticism. Jeffery Pinsler, for example, has questioned whether the decision in Chi Tin Hui v PP [1994]1 SLR 778 was correct. He suggests that the court should not have conflated the criteria employed by Section 6 of the EA and under the common law.

Reform to Evidence Act

future, as evidenced by its lack of discussion in Parliament when debating evidential reforms.19 To resolve such inconsistencies, there have been attempts to categorise the EA as a “facilitative statute” without constraints on the importation of common law concepts.20 While this approach may be tempting, it brings its own difficulties. Quite apart from the fact that these decisions misunderstand the statutory scheme of the EA, the haphazard importation of common law concepts without careful analysis of their consistency with the EA provides fertile ground for confusion. This is because the objectives of a codifying statute and a “facilitating statute” may sometimes be divergent.21 Due to this unsatisfactory state of affairs, the Court of Appeal has, in two recent decisions, taken a firmer line on this issue. Thus, in Tan Guat Neo Phyllis, Chan Sek Keong declared that the EA did not confer an “unrestricted license to import modern evidential concepts”.22 Similarly, Rajah JA in Lee Chez Kee called for conceptual clarity and congruence with the EA in respect of future development in the hearsay rule.23 While much can be said against persisting with an archaic statute, any possible abolition or fundamental reform of the EA would be a herculean task. Such reform would only be possible when there is clear understanding and consensus on the values to be incorporated into the new code, with adequate consideration given to Singapore’s legal and cultural context.24 The desirability and feasibility of such an enterprise is beyond the scope of this article. It suffices for now to state that, considering recent and authoritative judicial pronouncements, congruence with the EA’s structure should be a key criterion in assessing the new amendments. HEARSAY EVIDENCE A: CHANGES TO HEARSAY RULES IN SINGAPORE 1.

General Liberalisation

Before the 2012 amendments, the area of hearsay evidence was widely acknowledged as being in need of comprehensive reform. In addition to the problems which arose from indiscriminately importing common law hearsay concepts, the interaction of the hearsay rule between the EA and the Criminal Procedure Code (CPC)25 was highly complex and incoherent.26 The reason 19 Chen Siyuan, “The 2012 Amendments to Singapore’s Evidence Act: More Questions than Answers as Regards Expert Opinion Evidence?”(2013) Statute Law Review. The author also notes that the LRC, in its report on expert evidence, failed to discuss this issue when it considered the unique statutory scheme of the EA. 20 Lee Kwang Peng v PP [1997] 3 SLR 278. 21 Jeffery Pinsler, “Approaches to the Evidence Act: The Judicial Development of a Code” 14 SAcLJ, Paragraph 35. 22 Law Society of Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239, at [117]. 23 Lee Chez Kee v Public Prosecutor [2008] 3 SLR 447, at [75]. 24 Chin Tet Tung, “Remaking the Evidence Code- Search for Values”, (2009) SAcLJ. 25 The CPC is a key procedural statute that applies in cases of criminal proceedings. 26 See in particular the comments of Rajah JA in Lee Chez Kee v PP at [77]. See also the Ministry of Law’s Consultation paper in relation to amendments to the Evidence Act, at Paragraph 21. Accessed from http://www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclickbd8a.pdf.

for the lack of “symbiosis” within the two statutes was the fact that legislators failed to pay adequate attention to the structure of the EA. For example, when the CPC was amended in 1976, the provisions on admitting hearsay were more indicative of an exclusionary scheme27 as opposed to the inclusionary scheme adopted under the EA.28 In addition, the rules for hearsay within the CPC were relaxed in a piecemeal fashion without parallel changes being made to the EA. This created a highly anomalous situation where more liberal rules pertaining to the admissibility of hearsay evidence were applied in criminal proceedings in comparison to civil proceedings.29 This has been heavily criticised; stricter rules are usually applied in criminal proceedings where the accused faces both moral condemnation and harsher penalties, such as incarceration, upon conviction. For example, prior to the amendments, hearsay evidence pertaining to written records was more readily admissible under the CPC in criminal proceedings than under the EA which applies to all legal proceedings. As a result of these criticisms, the provisions for liberalising the hearsay rule that were enacted under the CPC have now been repealed and shifted to the EA, such that the same rules now apply in both criminal and civil proceedings.30 Another impetus for reform was the recognition that stringent application of hearsay rules was outmoded in Singapore’s modern context. Many rules of evidence, such as hearsay, were formulated out of concerns that jurors would place inappropriate weight on prejudicial evidence. Rigid enforcement of such rules is arguably unnecessary in Singapore. Jury trials have been fully replaced with bench trials, both in civil and criminal proceedings, such that legally trained judges are now the ultimate arbiters in questions of both law and fact.31 Since confidence is already placed in judges on matters of admissibility, it is arguably fallacious not to trust their expertise in evaluating and weighing probative merits of evidence. Any concerns about a flood of unreliable evidence can be also be addressed by the fact that it is in the interests of litigants to proffer direct evidence whenever possible since it will be regarded by judges as being more reliable.32 The call for liberalisation was finally heeded in the 2012 amendments, when the legislature adopted wider exceptions to the application of hearsay.

27 Footnote n18, Paragraph 34. 28 Under the exclusionary scheme hearsay evidence is generally inadmissible under the common law, subject to specified exceptions. On the other hand, the inclusionary scheme under the EA prescribes specific circumstances where hearsay evidence can be admitted as evidence. 29 LRC Report on Hearsay Evidence, 2007, at paragraph 17. 30 Note, however, that while all liberalizing rules were repealed in the CPC, not all of them was transferred to the EA. For example, the former Section 270(1) CPC, in relation to admitting hearsay evidence of accused’s statements, was not retained in the EA. 31 Chan Sek Keong, “The Criminal Process- The Singapore Model”, 10th Singapore Law Review Lecture, (1996) 17 Sing LR 433 at 451 32 Chin Tet Yung, “Hearsay - a Doctrine in Retreat? A Re-appraisal of the Hearsay rule in Singapore” (1990) 32 Malaya Law Review 239.

Samuel Pang

Legislative Amendments Regarding Hearsay a) Overriding Criterion of Witness Unavailability

It used to be the case that the exceptions to hearsay in S32 of the EA could only be invoked in situations where a witness could not attend court because he was dead, missing or could not be procured without unreasonable expense.33 This overriding criterion has now been repealed. The change might have been influenced by the observations of the LRC that proof of witness unavailability was not strictly enforced in practice when attempting to adduce hearsay evidence under the old S32 EA.34 It is therefore surprising that the Court of Appeal’s ruling in Teo Wai Cheong35 chose to adopt a stricter test for the purposes of establishing witness unavailability. In that case, the court rather lukewarmly regarded the plaintiff bank as having satisfied its obligations of due diligence in locating a missing witness. This was despite the fact that the bank had taken extensive steps to locate the witness, including sending representatives to search for the witness in her last known location in Dubai, repeated visits to her parents in Singapore and placing advertisements in both Singapore and Dubai. More pertinently, although the court declared that the bank had satisfied the required test for due diligence in locating the missing witness, it called for more detailed particularisation of future search efforts and emphasised the need to update opponents on measures taken to locate missing witnesses.36 While it is laudable that the Court of Appeal is alert to the possibility of indiscriminate attempts at admitting hearsay evidence, the judgement arguably runs counter to the general agenda of reform in ensuring that hearsay evidence may be admitted more liberally. b) Oral Statements and Business Statements Another change that has been introduced is to allow the admission of a hearsay statement when a recipient of an oral statement contemporaneously puts the contents of the statement into writing at the request of the original maker. The statement is then treated as emanating from the original maker.37 In addition, the “business statement” exception under Section 32(b) EA has been broadened. The previous rule was criticised as being overly restrictive by disallowing the admission of records derived from information supplied by a transactor. It was limited to first-hand reports made by a transactor himself. In relation to experts, it restricted the recognition of statements of opinions and only allowed admission of factual statements made in the course of business. c)

Composite Business Reports and Admission by Mutual Agreement

Finally, the position in relation to composite business reports was unclear.38 As a result, the EA has now been amended to 33 Ministry of Law’s Draft consultation Paper on Evidence Act amendments, at paragraph 29. 34 LRC Report on Hearsay, paragraph 17. 35 Teo Wai Cheong v Crédit Industriel et Commercial and another appeal [2013] SGCA 33. 36 Teo Wai Cheong, [20] and [30] –[32]. 37 Section 32(b) EA. The requirement of contemporaneity is “reasonably soon afterwards”. 38 LRC on Hearsay, Paragraph 15 and Draft Consultation Paper to the EA amendments, paragraph 29.

introduce new exceptions for admitting business records, such as “compilations generally relied on by the public or persons in particular organisations”.39 To further facilitate admissibility, hearsay evidence may now be admitted upon agreement by litigating parties.40 d) Other Legislative Amendments Regarding Hearsay Besides these changes, other new exceptions to the hearsay rule have been added to the EA. These include hearsay evidence in relation to utterances,41 the allowance for witnesses to give opinions as a way of conveying their perception of facts42 and provisions for admitting evidence in relation to undermining the credibility of absent witnesses.43 To supplement these changes, courts have now been conferred with an express discretion to exclude any hearsay evidence deemed legally relevant.44 B: ABOLISHING HEARSAY? Although the amendments did not totally remove the hearsay rule, there was vocal support in favour of its abolition.45 On its part, the LRC itself considered that there was considerable merit in abolishing the hearsay rule while simultaneously introducing safeguards to ensure procedural fairness to litigants. The LRC made this recommendation after comparing contrasting approaches in various jurisdictions, especially from South Africa.46 In South Africa, legislative amendments have effectively abolished strict legal restrictions to the hearsay rule. The South African system confers complete inclusionary and exclusionary discretion to judges when there is no agreement among opposing parties in relation to adducing hearsay evidence47 The LRC was of the view that the South African approach should be adopted in Singapore as it was already reflective of current trial practice. It also commented that abolition, with adequate safeguards to ensure procedural fairness, would produce an “even-keeled trial process and increase the attractiveness of Singapore as a forum for adjudicating international civil disputes”.48 Ultimately, the LRC’s proposal was not adopted as the Law Ministry decided that the hearsay rule derives its force from valid commonsensical notions. The approach of abolition also presented practical problems, as acknowledged by the LRC itself.49 In particular, the open-ended nature of the factors involved in considering admissibility of hearsay evidence led 39 See the new S32(b)(iii) of the EA. Such compilations include market tabulations, quotations etc. 40 Section 32(k) EA. 41 Section 32A EA. This appears to incorporate the “excited utterance” aspect of the res gestae rule in an inclusionary form. 42 Section32B EA. 43 Section 32C EA. 44 Section 32(3) EA. 45 See in particular, the comments of Mr Hri Kumar and Mr Desmond Lee in second reading of the Evidence Amendment Bill, 14 February 2012, Singapore Parliamentary Debates Official Report, Hansard Volume 88. See also the Feedback from public consultation on the Evidence Act, Paragraph 11, accessed from http://www.mlaw.gov.sg/content/dam/minlaw/corp/assets/documents/linkclickf5bd.pdf. 46 LRC Report on Hearsay, Paragraphs 98 and 99. 47 Law of Evidence Amendment Act 1988 (Act 45 of 1988) Section 3(1)(c). 48 LRC Report on Hearsay, Paragraphs 100 and 101. 49 See the comments of the Law Minister, Mr K Shanmugam, in the second reading of the Evidence Bill.

Reform to Evidence Act

to great vacillations in judicial attitudes when exercising the discretion.50 It is further submitted that the Law Ministry’s decision is correct since a wide judicial discretion, as practiced in South Africa, would have been highly incongruent with the EA’s statutory scheme, given that the EA sets out clear and limited situations in relation to admitting evidence. Abolition would have therefore have categorically ignored judicial exhortations to preserve fidelity with the EA’s structure. EXPERT EVIDENCE A: SUBSTANTIVE CHANGES As with hearsay evidence, there was recognition that the restrictive rules on admitting expert opinion evidence were anachronistic in Singapore’s legal context.51 The recent amendments noticeably attempt to liberalise admission of expert evidence. The changes are now encapsulated within the amended Section 47 EA.52 The resultant liberalisation of admissibility criteria is tempered by expressly conferring judges the discretion to exclude admissible expert evidence.53 The new Section 47(1) opts for a more generalised description on subject areas which the courts might receive as expert opinion. The only limiting criterion is that the court must be likely to “derive assistance” from admitting such evidence. Such an approach contrasts starkly with the repealed provision that specified narrow and discrete categories of admissible expert evidence.54 While the LRC acknowledged that the phrase “science or art” had been interpreted widely in an equivalent Indian provision,55 it recommended changes to the phrasing of Section 47(1) EA in order to pre-empt attempts at closing the categories of admissible expert evidence. A narrow interpretation of the old Section 47(1) EA could have “deprived courts of benefits in scientific developments”.56 The LRC also advised against following the approach in India, where admissibility of expert evidence had been broadened by adding further specific subject categories. The problem with such piecemeal reform is the difficulty of foreseeing and legislating for technical fields which might become useful in future. The preference is therefore for judges to be granted latitude in deciding whether expert evidence should be excluded or admitted with discounted weight.57 Section 47(2) EA deals with the question of who might be considered “experts”. Under the old provisions, a literal reading of the “special skill”58 requirement might have suggested the need for professional qualifications or training. In practice, however, the Singaporean courts were similar to their English counterparts in interpreting the required expertise of “experts” flexibly. For example, Yong CJ in Leong Wing Keong held that 50 LRC Report on Hearsay, Paragraph 49. 51 Consultation Paper on Amendments to the Evidence Act, at paragraph 9. 52 Report on the Law Reform Committee on Opinion Evidence, October 2011. 53 Section 47(4) EA. 54 The old Section 47(1) only allowed admission of expert evidence relating to foreign law, science or art and fingerprinting or handwriting impressions. 55 LRC Report on Opinion Evidence, paragraph 160, quoting Sarkar, Law of Evidence(16th Ed, 2007). 56 LRC Report on Opinion Evidence, at paragraph 160, quoting R v Clarke [1995] 2 Cr App R 245. 57 LRC Report on Opinion Evidence, at paragraphs 161-166. 58 Under the old Section 47(1) EA.

requirements of expertise were flexible enough to include technical competence obtained not just professionally but also through experience. Any deficiencies in qualifications were related to weight and not admissibility. 59 The English courts have even recognised the competence of “ad-hoc” experts60 in giving expert evidence.61 While there is no Singapore decision on the admissibility of ad-hoc expert evidence, judicial precedent and the wider wording of Section 47(2) would suggest that there will be little problem in doing so. Section 47(3) EA62 expressly references the doctrine of common knowledge at common law. The leading authority for this rule is Turner, where Lawton LJ held that expert psychiatric evidence was inadmissible on the basis that a normal person’s response to provocation is a matter within the experience of a jury. An exception would only be allowed if the defendant suffered from mental illness, but he did not.63 The rule continues to be applied stringently, although the courts have made concessions in cases of mental retardation. However, this exception is enforced in a highly arbitrary and rigid fashion that might rightly be regarded as excessive.64 The Australian High court in Murphy65 was highly critical of the Turner principle, commenting that it was based on the fallacious assumption that there were clear distinctions between normality and abnormality. In Singapore, the LRC also observed great discrepancies when applying the common knowledge rule. While the rule was strictly applied in issues of mental suggestibility,66 it seems to have been relaxed in cases of accident scene reconstruction,67 even when this was strictly precluded under the common knowledge rule.68 The LRC proposed further reasons for removing the common knowledge rule, including the fact that experts might assist with clarifying misconceived notions of human behaviour possessed by ordinary people and that judges are more accountable as they have to give written decisions while juries do not.69 Accordingly, the recommendation to abolish the rule was adopted in the amendments.70

59 Leong Wing Keong v PP [1994]2 SLR 54, endorsing the comments made in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320. 60 Ad-hoc experts are defined as experts who have not received their expertise through formal training or practical experience. Instead, their expertise is obtained through intensive participation in a particular case. 61 R v Clare and Peach [1995] 2 Ar App R 333. 62 The Section reads: “ The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge”. 63 R v Turner (1974) Cr App Rep 80, at 83. 64 R v Masih [1986] Crim LR 395. The accused in this case possessed an IQ of 72, which was close to but did not meet the cut off point for mental retardation at 69. Hence expert psychiatric evidence was inadmissible. 65 Murphy v R (1989) 167 CLR 94. 66 Chou Kooi Pang & Anor v PP [1998] 3 SLR 593. 67 Khoo Bee Keong v Ang Chun Hong [2005] SGHC 128, per Andrew Phang JC. 68 Clark v Ryan (1960) 103 CLR 486. See the comments of Menzies J at 504 and Windeyer J at 510 respectively, that the projected trajectory of the vehicle involved in an accident is common knowledge to people with practical driving experience and familiarity with basic laws of physics . 69 LRC on Opinion Evidence, Paragraph 100. 70 Section 47(3) now reads: “The opinion of an expert shall not be irrelevant merely because the opinion or part thereof relates to a matter of common knowledge”.

Samuel Pang

B: EVALUATION OF REFORMS While the new reforms have received broad public support,71 they have not been entirely bereft of criticisms. For example, the amendments have been attacked for their dissonance from the EA’s statutory scheme. The wide formulation in Section 47(1) is wildly different from the more narrowly worded criteria for relevance under the EA for other types of evidence.72 It therefore appears to conceptualise relevance in a logical rather than a legal sense, given that it allows judges great latitude in deciding issues of admissibility based on a “case-to-case basis”. In addition, the broadened admission of expert evidence will place a greater spotlight on problems involving expert partiality. Sir Jessel MR, a distinguished 19th Century judge, declared his great distrust of expert evidence for two reasons. Firstly, experts could not be indicted for perjury, even when giving dishonest testimony, because they were merely expressing opinions, not facts. Secondly, most experts inevitably gave partial testimony since they regarded themselves as paid agents of their instructing parties.73 The problem is now so widespread in many jurisdictions that the terms “experts witness” and “hired gun” have become synonymous.74 Such problems have been judicially acknowledged in Singapore as well. In Vita Health Laboratories,75 Rajah JC (as he then was) recognised the problem and emphasised that expert witnesses should voice their independent professional opinions so as to avoid a loss of credibility. While it is unclear how pervasive the problem is in Singapore,76 it is noteworthy that the authorities have seen a need to expressly reaffirm the necessity of expert impartiality.77 The courts have done likewise. In Pacific Recreation,78 the court advised expert witnesses to be forthcoming about potential conflicts of interest and declared that it would be unhesitant to draw adverse inferences against experts who clearly offer partisan testimony beyond the realms of credibility. There have also been calls to impose punitive sanctions on errant expert witnesses, such as referrals to professional disciplinary bodies and the establishment of procedural hurdles for blacklisted experts. The Law Minister, however, preferred to allow the courts to determine appropriate sanctions.79 It remains to be seen how the problem of biased experts develops under a more liberalised admissibility regime for expert evidence. An arguably more vexing problem involves resolving conflicts in expert testimony. The overriding theme of the recent amendments appears to be that evidential rules of admissibility 71 Feedback from consultation to the Evidence Act, Paragraph 3. 72 Chen Siyuan, “The 2012 Amendments to Singapore’s Evidence Act: More Questions than Answers as Regards Expert Opinion Evidence?”(2013) Statute Law Review. 73 Lord Abinger v Ashton (1873) 17 LR Eq 358 at 374, as quoted in “Modern Advocacy- Perspectives from Singapore” (Year 2008, Academy Publishing), Chapter on Expert Witnesses by Lok VI Ming SC. 74 Parliamentary Debate at the Second Reading of the Evidence Bill, per Mr Desmond Lee. 75 Vita Health Laboratories Pte Ltd and Others v Pang Seng Meng [2004] 4 SLR 162, at Paragraphs [79]- [83]. 76 The LRC on Opinion Evidence however, felt that the problem was not serious enough to limit admissibility of expert evidence due to comparatively lower volumes of trials in Singapore, Paragraph 100. 77 See Order 40A r2 Rules of Court, in particular rule 2(2). 78 Pacific Recreation Pte Ltd v S Y Technology Inc [2008] 2 SLR 491, at [71]- [73]. 79 See the comments of Mr Desmond Lee and Mr Shanmugam at the second reading of the Evidence Bill.

should be relaxed because judges are well qualified to give appropriate weight to potentially prejudicial evidence, as compared to lay juries. This writer largely agrees with that thesis. However, while judges are certainly well-qualified to give appropriate weight to other types of evidence, such as hearsay or similar fact evidence, expert evidence is an arguably different proposition. It might be questioned whether judges should be playing the role of “super-experts” in adjudicating conflicts between expert witnesses. An analogous situation would be to ask medical practitioners to resolve disagreements between legal experts. Such a scenario is unfathomable, yet this is what happens in litigation.80 It has also been argued that the difficulties encountered by tribunals of fact81 in adjudicating the technical merits of expert evidence have led to such tribunals relying on extrapolations of expertise such as credentials, reputation and demeanour. This has sometimes led to “epistemically arbitrary judgements.”82 Such observations are not intended as criticism per se but as acknowledgements of the unenviable task which judges are expected to perform. In fact, this is precisely why expert witnesses are required in the first place. Until more qualified people can be procured to resolve disagreements in expert evidence, however, there is little impetus to change anything when society has entrusted the task to judges.83 To resolve this thorny problem, Professor Hor has proposed avenues for possible reform. For example, he suggests more extensive use of independent court-appointed experts84 and expert tribunals. In such tribunals, the adjudicator is an expert in the relevant technical field as opposed to a legally trained judge. However, these solutions are not without practical problems. For example, “neutral” experts may be non-partisan but may not be free from professional bias. Selecting an appropriate expert is critical because experts who employ erroneous methodologies and possess excessively strong professional views will not be able to objectively assess technical merits of competing expert testimony. For a salient example, one only needs to examine a series of cases in the UK involving Sudden Infant Death Syndrome (SIDS), where the fatally flawed methodologies of Sir Roy Meadow and their misleading presentation in court caused severe miscarriages of justice.85 In addition, establishing expert tribunals require heavy administrative commitments in appointing “super-experts” and training them on matters of law.86 These options will only result in inevitable increases to litigation costs. The third option proposed by Professor Hor is to make judges more conversant with technical subject matters. This can be done through greater education or by organising the court system such that judges repeatedly deal with the same kinds of expert evidence. Again, leaving aside the practical difficulties of implementing this suggestion, it is unfeasible to expect judges to become experts themselves. This is because great amounts of time must be invested by judges to obtain a 80 Michael Hor, “When Experts Disagree” Singapore Journal of Legal Studies [2000] 241. 81 Depending on the jurisdiction or type of proceedings, this could be either a judge or a jury. 82 Scott Brewer, ““Scientific Expert Testimony and Intellectual Due Process” (1998) 107 Yale LJ 1535. 83 Michael Hor, “When Experts Disagree” Singapore Journal of Legal Studies [2000] 241. 84 Currently, court-appointed neutral experts may be utilised at the option of the court or any litigating party. See Order 40 r1 Rules of Court (Revised Edition 2006). Indeed, Professor Hor argues that their use should even be made compulsory. 85 R. v Clark [2003] EWCA Crim 1020 and R v Cannings [2004] EWCA Crim 01. 86 Michael Hor, “When Experts Disagree” Singapore Journal of Legal Studies [2000] 241.

Reform to Evidence Act

level of knowledge which adequately equips them to adjudicate disputes between experts on technical merits. Furthermore, technical fields develop rapidly in the digital age and any knowledge acquired can quickly became outdated. There have been judicial pronouncements on how judges can cope within the current system. For example, Rajah JA opined in Eu Lim Hoklai87 that, when expert evidence fails to provide satisfactory answers, the court must rely on other tools such as the “assessment of objective facts within their circumstantial matrix and context”. For example, in reaching its decision in Eu Lim Hoklai, the Court of Appeal resolved the issue of competing expert evidence by considering the fact that crime scene reconstruction was an infantile and conjectural science. In addition, the court noted the objective fact that blood was not found on the victim’s skirt and decided that the prosecution failed to provide a probable explanation in line with its case theory that the defendant staged the murder scene. Finally, the Court noted the trial judge’s hesitance at providing a conclusive finding of fact and therefore held that the issue, in light of its many uncertainties, fell to be decided on an application of the legal principles involved in allocating the burden of proof.88 The LRC has commented that any judicial errors in assessing expert evidence can be remedied on appeal because judges are required to give written decisions.89 Nevertheless, the success of seeking recourse from appellate mechanisms should not be overstated. An appellate court would be slow to reverse findings of fact in relation to expert evidence unless there are “obvious errors of fact or deficiencies in the lower court’s reasoning process.”90 Thus, for example, appellate intervention is justified when strong extrinsic evidence exists to contradict the trial judge’s conclusion. In Sakthivel91, for instance, the trial judge’s finding of fact on the expert evidence was reversed because there were glaring inconsistencies between the complainant’s court testimony and her initial statement. The totality of the evidence also led the court to conclude that the complainant’s version of events was implausible. 92 Such circumstances will only arise in exceptional situations. Unfortunately, as the above discussion demonstrates, few easy solutions are available to resolve difficulties of assessing expert testimony. On the other hand, there are encouraging signs of continued attempts to address these problems, such as the adoption of the Concurrent Expert Procedure which is currently being tested within Singapore’s court system.93 This procedure involves competing expert witnesses testifying at the same time. The same questions are put to competing experts, who will then debate directly on their respective positions before the judge. The Concurrent Procedure was adopted in the UK after the Jackson Report found that the costs of appointing experts had become disproportionately expensive.94 Thus far, preliminary 87 Eu Lim Hoklai v Public Prosecutor [2011] SGCA 16, at [44]. 88 Eu Lim Hoklai, at [49]-[50], [57] and [64]-[65]. 89 LRC on Opinion Evidence, Paragraph 100. 90 Sakthivel Punithavathi v Public Prosecutor [2007] 2 SLR 983, at paragraph [74]. 91 Ibid. 92 Sakthivel Punithavathi, at paragraphs [86] and [95]. 93 Registrar’s Circular No. 6 OF 2013, Pilot Programme For The Utilisation Of The Concurrent Expert Evidence Procedure in Civil Trials and Assessment of Damages Hearings. 94 Lord Justice Jackson, “Review of Civil Litigation Costs-Final Report”, 2010, accessed from http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/jackson-final-report-140110.pdf.

research has found that the Concurrent Procedure generated time efficiencies and enhanced the quality of judicial decision making.95 The adoption of the Concurrent Procedure in Singapore is therefore an encouraging development. It has the potential to provide a solution which simultaneously reduces litigation costs and assists judges in discerning the nub of conflicts between opposing experts. EXCLUSIONARY JUDICIAL DISCRETION IN SINGAPORE-A CRITIQUE As previously noted in this article, the amendments aim to temper liberalised admissibility rules with judicial discretion to exclude hearsay and expert evidence. There has been some opposition to this measure. The main criticisms are discussed below. Firstly, it has been argued that the normative justifications and principles underlying the exclusionary discretion are unsatisfactory. The concept is well-recognised in Singapore but most judicial decisions on this point pre-date the call for fidelity to the EA’s statutory scheme.96 Nevertheless, the Court of Appeal in Muhammad bin Kadar97 has since endorsed the existence of an exclusionary judicial discretion in Singapore based on the criteria formulated by the House of Lords in Sang (i.e: the balancing exercise between probative value and prejudicial effect).98 The discretion is predicated on the court’s inherent power to “prevent injustice at trial”, although this justification does not extend to the objective of disciplining errant policing agencies.99 The ruling in Bin Kadar has been faulted on the basis that it gives a misleading impression on the scope of exclusionary judicial discretion. While the term of “trial fairness” could conceivably encompass wider considerations such as rights protection and the need to uphold moral legitimacy of justice systems, judicial precedents have clearly limited the application of exclusionary discretion to ensure reliability of evidence. This concern for reliability should therefore form a more explicit basis for exclusionary judicial discretion.100 The same criticism can be made for the wording of the new discretion provisions in relation to safeguarding the “interests of justice”.101 In addition, the new statutory provisions on discretion are conceptually problematic since they either suggest that evidence declared relevant under the EA is not admissible or that legal relevance is somehow lost as a result of judges exercising their exclusionary discretion. Such a notion is untenable in light of the EA’s framework, since any evidence that satisfies the notion of relevancy under Section 5 EA should meet the criteria for admissibility under the EA.102

95 Professor Dame Hazel Genn, “Manchester Concurrent Evidence Pilot- Interim Report”, UCL Judicial Institute, January 2012 96 In Tan Guat Neo Phyllis, the Court of Appeal declared that the use of the exclusionary discretion, as it had been applied in some earlier cases, was inconsistent with the EA. At Paragraph [126]. 97 Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32. 98 R v Sang [1980] AC 402. 99 Muhammad bin Kadar at paragraphs [52] and [68]. 100 Chen Siyuan, “ The Judicial Discretion to Exclude Relevant Evidence: Perspectives from an Indian Evidence Act Jurisdiction” [2012] International Journal of Evidence and Proof, at page 412. 101 Section 32(3) and Section 47(4) EA. 102 Jeffery Pinsler, “Admissibility and the Discretion to Exclude Evidence -In Search of a Systematic Approach”, (2013) 25 SAcLJ 215.

Samuel Pang

Secondly, the criteria propounded for exercising the exclusionary discretion pose significant practical difficulties. Commentators have argued that the Sang formulation of balancing probative value and prejudicial effect is inherently problematic because these two competing considerations cannot be delineated independently of each other. To determine the prejudicial effect of evidence, references must be necessarily made to its inherent probative value in the first place. The two competing criteria are ultimately subsumed within each other and the resultant balancing test is an unsatisfactory “exercise in abstraction” which fails to provide clear guidelines for the exercise of judicial discretion.103 It has therefore been suggested that criteria should be derived from the need to ensure that only reliable evidence is admissible in legal proceedings. This approach has the dual advantage of achieving congruence with the principles underlying Singapore’s evidentiary statutes as well as the ability to provide a test grounded in logic and common sense.104 Professor Pinsler has further suggested that more explicit criteria should be enumerated in statute, such as the need to exclude evidence which is potentially misleading or would result in undue waste of judicial time.105 While such criteria are open-ended and leave considerable room for interpretation, they are preferable over the nebulous criteria employed in Sang and the new statutory provisions.

through the amendments but the same legislative changes have also created new problems. The most notable example of this is the unprincipled introduction of exclusionary judicial discretion into the EA. The final result of the 2012 amendments also represents a missed opportunity by the legislature to resolve key controversies in Singapore’s evidence law, such as the relationship between the provisions of general and specific relevance in the EA. The trajectory of future development in Singapore’s evidence law remains open to speculation, but it is hoped that the lingering practical and conceptual problems outlined in this article are resolved sooner rather than later.

Finally, the amendments have been criticised for confining exclusionary discretion to hearsay and expert evidence instead of incorporating a broad statutory power to exclude all kinds of evidence.106 Such an approach was in fact suggested by the LRC.107 It appears that the Law Minister preferred to observe the development of the new discretionary provisions in relation to hearsay and opinion evidence before extending their scope of exclusionary discretion to all categories of evidence.108 However, as it stands, the way in which exclusionary judicial discretion has been conferred supports the inference that the reforms focuses excessively on resolving problems in discrete areas of evidence law without due regard to maintaining overall coherence with the EA. CONCLUSION In conclusion, the statutory amendments to the Evidence Act are a welcome change in modernising Singapore’s evidence laws. Apart for some intractable problems relating to expert evidence, which cannot be easily handled by legislative intervention or otherwise, the amendments resolve many practical problems posed under the previous law. Despite this, however, the amendments have been incorporated in a piecemeal fashion that does not appear to have paid adequate attention for the need to develop Singapore’s evidence law in consonance with the EA. There have been great strides made in tackling this issue in the area of hearsay evidence 103 Chen Siyuan, “Reliability and Relevance As The Touchstones for Admisibility of Evidence in Criminal Proceedings”, (2012) 24 SAcLJ 533 Paragraphs 10 and 11. 104 Footnote n97, Paragraphs 19, 20 and 24. 105 Footnote n96 at paragraph 33. In particular, Professor Pinsler cited Rule 43 of the US Federal Rules of Evidence as well as Section 135 of the Australian Evidence Act 1995. 106 Second reading of the Evidence Amendment Bill, per Mr Desmond Lee. 107 LRC on Opinion Evidence, Paragraph 11. 108 Per Mr Shanmugam at the Second reading of the Evidence Amendment Bill.

Photo Credit: Antony Stanley https://www.flickr.com/photos/antonystanley/

THE LIMITS OF FREEDOM OF SPEECH: COMMERCIAL PORNOGRAPHY

This article considers the limits of the right to freedom of speech, arguing that the line

by Primrose Tay University College London

Primrose Tay

Courts have generally treated commercial speech as less worthy of protection than other forms of expression such as political and artistic speech.1 However, defining commercial speech is a difficult task and one which courts have not done consistently.2 Perhaps this is why the European Court of Human Rights (ECtHR) has chosen to take an expansive approach to commercial speech that is capable of covering consumer protection programmes because of its ‘commercial context’.3 This essay takes a narrower definition of commercial speech as speech made by a company for a profit motive. A company is an “organisation of persons and material resources” which are “licensed by a state for the purpose of conducting some form of business activity”.4 Commercial pornography is defined as “the explicit subordination of women through pictures or words5 that has become a commercial commodity for popular consumption for the purposes of sexual pleasure”. This essay is based on the assumption that freedom of speech must be justified and cannot be blindly accepted in all situations. It then looks to answer the question of whether companies should have a right to produce pornography on grounds of freedom of speech. The justifications for free speech can be divided into three broad categories. First, that it is required for individual self-fulfilment. Second, that receivers have a general interest or use for the speech. Finally, that free speech is necessary in a democracy. This essay will argue that companies should not have a general right to produce pornography for three reasons. First, they lack the interests that human rights seek to protect. Second, the receiver’s interests in commercial pornography are insufficient to ground a general right for companies to produce it. Finally, it is not necessary for, and might even hinder development of, a democracy. This means that states should evaluate the situation on a case-by-case basis and this might result in restrictions on certain kinds of pornography but not others. INTEREST OF THE SPEAKER A compelling reason for the protection of freedom of speech is that it is a fundamental human right.6 It derives from the intrinsic worth of human dignity7 and is “one of the basic conditions for… the development of every man”.8 Thus, Guest argues that disrespecting someone by insulting them is not as serious as disrespecting them by preventing them from expressing themselves.9 This is reflected by the fact that even when speech causes harm it may still be protected because 1 Markt Intern Verlag and Beerman v Germany (1990) 12 e.h.r.r. 161, R (on the application of British American Tobacco and others) v Secretary of State for Health [2004] EWHC 2493. 2 Nat Stern, ‘In Defense of the Imprecise Definition of Commercial Speech’ (2012) 58 Maryland Law Review. 3 SRG v Switzerland (2001) Admissibility Decision Application no. 43524/9812/04/2001 43524/98. 4 Marcus Emberland, The Human Rights of Companies: Exploring the structure of ECHR protection (OUP, 2006), p.11. 5 Adapted from the definition used in the Model Anti-pornography Civil Rights Ordinance by Andrea Dworkin and Catherine MacKinnon republished in their book Pornography and Civil Rights: A New Day for Women’s Equality (Minneapolis: Organizing Against Pornography, 1988). 6 Ronald Dworkin. Foreword to Extreme Speech and Democracy ed. Hare, I. & Weinstein, J. OUP (2009). 7 Frederick Schauer, Free Speech: A Philosophical Inquiry (Cambridge University Press, 1982) Chapter 4. 8 Handyside v UK (1979) 1 EHRR 737 § 49(2). 9 Stephen Guest, ‘Respect for Bad Thoughts’ (2008) 1 UCL Human Rights Review 118, 5.

the capacity for rational thought is so fundamental to what it means to be human.10 These arguments for freedom of speech are rooted in the interest and respect of the speaker as a human person. The difficulty is whether they can be said to apply to commercial speech or whether the idea of companies having human rights is a “conceptual oxymoron”.11 It is possible to argue that corporate speech represents the convictions or opinions of its shareholders or workers and this provides the free speech right for the company. A difficulty with this is that in most cases such a connection is lacking in commercial speech.12 Corporate speech is seldom a sincere representation of anyone’s point of view but rather a mouthing of positions that its speaker may or may not genuinely believe.13 Its purpose is to influence behaviour or attitudes in an economically favourable way. Dworkin argues that the reason why people should be free to create and circulate pornography is not to give them an “equal voice in the political process”. Rather, it is because it would violate the citizen’s moral or political rights if they were prevented from doing so.14 However, it is hard to argue that corporate speakers have the sort of interests in self-development, self-fulfilment and autonomy that ground free speech rights. This was an argument advanced by Baroness Hale in her dissenting opinion in Jameel and Others v Wall Street Journal (No. 3) in the context of the tort of defamation. She argued that companies are unable to have their feelings hurt or social relations damaged and therefore the extension of the right to sue in defamation to companies was out of tune with the democratic commitment to free speech.15 While sex tapes made by people personally, even if they are sold, can be crucial to a person’s autonomy and self-realisation, it is difficult to argue that companies who distribute pornography for purely commercial purposes have any of the interests that human rights seek to protect.16 INTEREST OF THE LISTENERS A further argument for protection of commercial speech is that listeners have an interest in receiving such speech. In the US case of Virginia State Board of Pharmacy v Virginia Citizens Consumer Council,17 it was held that commercial advertising is covered by freedom of speech mainly because consumers have an interest in encouraging the free flow of commercial information to enable them to make informed choices. However, the interests of listeners is an insufficient reason for extending freedom of speech protection to commercial speech as a whole, and pornography in particular, for three reasons. First, as Barendt argues, just because consumers have a desire for certain information does not mean that free speech is infringed if companies are not allowed to provide it. It needs to be established that they have a right to the information.18 Consumer interest often is balanced against the harm that the possession of such products would do. In addition, to argue that 10 Thomas Scanlon,‘A Theory of Freedom of Expression,’ (1972) 1 Philosophy and Public Affairs 204,. 11 M. Emberland, n.5 above, p 27. 12 K. Machina, ‘Freedom of Expression in Commerce’ (1984) 3 Law and Philosophy, p.386. 13 K. Machina, n.13 above, p.386, Eric Barendt, Freedom of Speech (OUP, 2007) p.14-20. 14 R. Dworkin, ‘Is there a right to pornography’ (1981) Oxford Journal of Legal Studies 177. 15 [2006] UKHL 44, para. 153-158. 16 E. Barendt, n.14 above, p.400. 17 425 U.S. 748 (1976). 18 E. Barendt, n.14 above,p.403.

The Limits to Freedom of Speech: Commercial Pornography

each person has a basic right to a rich form of autonomy and that this underlies freedom of expression is impractical and would place an onerous duty upon governments to ensure access.19 Scanlon argues that while people need access to resources in order to weigh up competing arguments and regard themselves as autonomous, this does not require access to all information required for a fully informed decision or mean that governments cannot control their citizen’s beliefs by restricting information.20 If commercial pornography is not protected, then governments can prohibit it if the harms outweigh the benefits. This may be restricting a source of such material but it does not mean that such material cannot be provided by individuals. In addition, it is hard to see pornography as the sort of information that is required to be able to make informed decisions or regard oneself as autonomous. Second, if consumers have a right to pornography, it is not clear what corresponding duty this would require.21 If we take Nozick’s view of rights as a form of side constraints that limit the actions available to an agent, then all that would be required of states would be to refrain from interfering with the free distribution of pornography.22 However this argument is unconvincing because to give someone a right, means that there is some aspect of their well-being that is important enough to justify holding other persons to be under a duty to respect that right.23 If this right is sufficiently valuable, then while it may be associated with a particular duty, it also generates waves of other duties to make the right one that is actually valuable.24 Thus when we think about a right to vote or participate in political life it includes positive duties on the government to provide certain standards of education to allow citizens to participate. Giving people a right to pornography or commercial speech would require some way of ensuring access but it is questionable if a government ought to support the dissemination of such speech when it purports to treat a sector of the population in a degrading way. Finally, even if it is conceded that the interests of listeners plays a part in grounding the right to commercial speech, it must be demonstrated that there is a sufficient interest in the speech. Unlike the opinions and views of individuals that should be protected even if abhorrent because of their human rights, commercial speech, which is grounded only in the interests of listeners, can be stifled if there is no such interest. It is true that there is a large interest in pornography, but this cannot be said to be true for all pornography. A majority of people would agree that extremely violent pornography or pornography featuring animals or children is abhorrent. Thus this argument is at best a consequentialist one based on whether society as a whole would experience an increase or decrease in well-being from that sort of pornography being available. It is insufficient to ground a general right.

INSTRUMENTAL FOR A DEMOCRACY Since it has been shown that speaker interests have no application to commercial speech and receiver interests are doubtful for pornography, the final argument is that it is instrumental for the effective functioning of a democracy. Meiklejohn argues that the basis of the privileged status of expression is because it is necessary if the citizens of a democratic state are to be selfgoverning.25 In a similar vein, the court in Handyside v UK made clear that democracy is the primary reason for freedom of speech protection in the Convention.26 There are three main arguments made in support of this point. First, it helps people to arrive at the truth. Second, it encourages the engagement in social and political discourse. Finally, allowing free expression for all encourages equality. This section will apply these arguments to the case of commercial pornography and show that they are unconvincing. Truth. Mill argued that freedom of speech is important because it aids the pursuit of truth and if people exchange ideas freely, the truth will prevail.27 It is difficult to argue this when it comes to commercial speech for two reasons. First, the purpose of commercial speech in general, and pornography in particular, is not the pursuit of truth. Mill’s argument that truth is aided by free speech is based on the assumption that participants will be committed to the pursuit of truth.28 Pornography does not present information that could lead to the truth, instead it sells a version of sexuality that is artificial. Eric Hoffman argues that the sexual imagery of pornography objectifies and degrades women by portraying them as objects eager for sexual submission, even violence and torture. It portrays male domination as pleasurable to both men and women.29 Yet this is arguably not the reality of people’s experiences of sexuality. Second, it has been acknowledged that money is often required to effectively exercise freedom of speech.30 Thus Habermas notes that corporate influence is one of the most serious problems standing in the way of the development of a participatory democracy.31 This is because the inequality of funds between companies and the majority of individuals allows companies to drown out individual dissent by flooding the market with their speech. This often makes other speech less audible. It also silences through the use of confidentiality agreements and threats of defamation suits.32 These distributive injustices with regards to the means of expression are violations of freedom of expression according to Scanlon.33 Encouraging of political participation. Defenders of free speech protection generally also argue that freedom of speech engages Alexander Meiklejohn, Political Freedom, 2nd edn (OUP, 1965), p.79. 26 (1979) 1 EHRR 737 § 49(2). 27 John Stuart Mill, ‘On Liberty’ in M. Warnock ed., Utilitarianism (London: Collins, 1962), p. 180. 28 Hayworth A. Free Speech (Routledge, NY, 1998) cited in Mary L. Stoll, ‘Corporate Rights to Free Speech?’ (2005) 58 Journal of Business Ethics 265. 29 Eric Hoffman, Feminism Pornography and the Law, (1985) 133 University of Pennsylvania Law Review 511. 30 M. L. Stoll, n.31 above, p.266. 31 J. Habermas, J. The Structural Transformation of the Public Sphere: An Inquiry into a category of Bourgeois Society, T. Burger (tr) (MIT Press, Cambridge, MA, 1989). 32 M. L. Stoll, n.31 above, p.266. 33 T. Scanlon, n.11 above, p.223. 25

19 K. Machina, n.13 above, p. 390. 20 T. Scanlon, n.11 above, p.215. 21 Joel Feinberg, Social Philosophy, (Englewood Cliffs: Prentice-Hall, 1973), p. 62. 22 Robert Nozick, Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974) p. 28-29. 23 Joseph Raz, The Morality of Freedom (Oxford: Clarendon 1986) p. 166. 24 Jeremy Waldron ‘Rights in Conflict’ (1989) 99 Ethics 510.

Primrose Tay

the rationality of receivers and aids them in participating more actively in society. Firstly, it can be argued that in order for speech to be protected on this ground, it has to affect people rationally, something that critics claim commercial speech and pornography do not do. Barendt argues that commercial speech attempts to induce viewers and listeners to purchase through impulse consumption.34 It does not equip them to think about moral, social or political issues. This is particularly true for lifestyle advertising. Pornography has been argued to do likewise. Catherine MacKinnon claims it alters beliefs and preferences of viewers not by persuading them of its ideas through reason, but by making them “sexually habituated to its kick”.35 Danny Scoccia36 has also argued that it non-rationally affects viewers through a process called operant conditioning. This means that every time an individual experiences an orgasm while viewing pornography this functions as a reward and causes them to repeat the behaviour. Thus, he argues that liberals can support a ban on pornography because the speech should only be protected to the extent that it rationally affects the receiver. While this may not be true with regards to individual speech because an individual’s speech is protected even if irrational for the reasons listed in the earlier section on the interest of speakers, with commercial speech, it is persuasive. This argument may take too narrow a view of rationality. David McGowan37 argues that even if commercial speech works subliminally on many people, it may work rationally on others. It is arguable that feminists have responded rationally to pornography by arguing against it, showing that pornography can elicit rational responses in some. Even if pornography affects some in a non-rational way, their decision to be affected by it non-rationally might be a rational decision. Their inability to engage rationally with pornography may be negated by the fact that they could choose whether or not to consume it in the first place. This is a contentious point because liberals disagree on whether individuals have duties of non-interference with our future selves and whether states owe people a duty to protect, as far as possible, their ability to make choices later on.38 However there is at the moment no conclusive evidence that pornography actually limits a person’s ability to make rational choices about their consumption, even if it may not affect them in a rational way. A stronger argument is that just because it may increase rationality does not mean that that rationality will foster political and social engagement. Commercial speech is related to profit and does not enlighten or inspire the public to engage in political or social discourse.39 It is not necessary for maintenance of a democracy because unlike political speech, which provides a check on government power, its function is commercial in

34 E. Barendt, n.14 above, p.399. 35 Catherine MacKinnon, “Pornography, Civil Rights and Speech” in Catherine Itzin, ed., Pornography: Women, Violence and Civil Liberties (Oxford OUP, 1992), p.459. 36 Danny Scoccia, ‘Can Liberals Support a Ban on Violent Pornography?’(1996) 106 Ethics 776-799. 37 David F. McGowan, ‘A Critical Analysis of Commercial Speech’ (1990) 78 California Law Review 411. 38 Caroline West, ‘The Free of Speech Argument Against Pornography’ (2003) Canadian Journal of Philosophy 20. 39 E. Barendt, n.14 above, p.20-23.

nature.40 In addition, the fact that it may increase rationality is uncertain and unproven. Thus it would be a stretch to argue that pornography encourages social and political engagement. Even Dworkin has conceded that this is an untenable justification for the protection of pornography.41 Equality. Liberal democracies are based upon the idea that each citizen should be free and equal. However liberals often disagree about how to maintain a commitment to both. While at first liberalism was associated with total non-interference, it has subsequently been recognised that in order to ensure that citizens are able to participate in a democracy, certain resources, such as education, have to be provided. Freedom of speech often clashes with the idea of equality. Dworkin argues that treating individuals with equal concern and respect requires the state to protect their right to moral independence and this demands a protection of their rights to freedom of speech. When free speech and the right to be treated equally clash, liberals often choose non-interference. Yet an omission can easily be characterised as the positive act of not doing something, and therein reinforcing the status quo. The non-interference view assumes that individuals are already equal but this is not true.42 It fails to take into account the fact that discrimination against marginalised groups is both systemic and institutionalised.43 The indiscriminate protection of free speech actually works against equality for a number of reasons. First, it is inconsistent with a liberal democracy that privileges equality and respect to protect speech that degrades citizens or treats them as unequal on the basis of characteristics that they cannot help.44 MacKinnon explains that pornography portrays women in a manner that undermines their equal status as citizens through the graphic subordination of them in a context that makes those conditions appear sexual and desirable.45 Pornography, even if it does not cause harm or offence, is inconsistent with equality and the rights of women because it portrays women as submissive sexual objects who are allowed to be violently mistreated. It is an integral part of an ideological system that advocates and legitimises male domination of women and therefore cannot be supported in a democracy.46 Second, for effective participation in a democracy, no group should be silenced. Waldron argues that to qualify as a genuine exercise of free speech, such speech must be related to the person it opposes in a way that allows space for their responses and ideas.47 It cannot call for suppression of another person in a way that would stifle their speech. Abigail Bright distinguishes between hate speech that a victim can give a moral reply to and hate speech that unfairly takes into account morally irrelevant criteria that a victim cannot reply to in an effective way.48 She 40 Christopher Harding, Uta Kohn & Naomi Salmon, Human Rights in the Market Place (Ashgate, 2008) p.207. 41 R. Dworkin, ‘Is there a right to pornography’, n.16 above, p.177. 42 Abigail Levin ‘Pornography, hate speech, and their challenge to Dworkin’s egalitarian liberalism’, 23 Public Affairs Quarterly 3. 43 Abigail Bright, ‘Hate speech and equality’ (2005) 12 UCL Juris. Rev. 112. 44 Rae Langton, ‘Whose Right?’, (1990), 19 Philosophy and Public Affairs 313, 346. 45 Catherine MacKinnon, Feminism Unmodified (Harvard UP, 1987), p.176. 46 E. Hoffman, n.33 above, p. 515. 47 J. Waldron, n.27 above, p.518. 48 n.46 above, p.18.

The Limits to Freedom of Speech: Commercial Pornography

argues that the latter should not be protected because it cannot be responded to with reason. It damages a group’s ability to participate in politics as equals and is oppressive.49 The construction of a group as inferior for reasons that they cannot change potentially undermines their authority to speak and their confidence to do so.50 Likewise, pornography needs to be understood in light of the history of gender inequality where women’s perspectives have been systematically neglected and undervalued.51 The portrayal of women as unequal undermines the liberal commitment to ensuring that all humans are treated with equal respect. A difficulty that a critic might raise is that these arguments could apply to non-pornographic material that portrays women in a demeaning way and may require the censorship of a vast amount of material. There are two ways to counter this argument. First, that this is not a difficulty. Commercial speech that unjustifiably portrays certain segments of the population as less than equal based on conditions that they cannot help should not be protected across the board. In the EU (European Union) it is already unlawful to publish job advertisements that indicate an intention to discriminate because such statements have a humiliating and demoralising impact on persons of that origin.52 Second, that pornography is different because it utilises the section of the population that it singles out as less than equal in order to put forward its message. Women, who are often economically vulnerable, are made to ‘speak’ the hate speech against their gender.53 While individuals should have the freedom to act in a way that is demeaning or degrading, it is harder to defend a corporation’s right to create a job where the purpose is degradation of its employees for sexual pleasure of its customers. Pornography is so widespread and socially accepted that it is useful to use a parallel example. Imagine if an industry existed that paid the economically desperate from an ethnic group, which has faced a severe history of discrimination, to be treated in a violent and degrading manner by their historical oppressors for the pleasure of consumers. It is unlikely that support for such speech could be found by arguing that the speaker’s rights to equality required it. The EU and the European Court of Human Rights have both taken a tough stance against Holocaust denial because of the historical circumstances. They believe that the history of discrimination makes the speech unacceptable. While violence against women did not occur in the same intensity over such a short period of time, it is an ongoing problem in society and the incidences of sexual violence against women remain unacceptably high.54 In light of this, the removal of free speech protection from speech that sells this violence for sexual pleasure is recommended.

49 A. Bright, n.46 above, p.114, 116. 50 A. Levin, n.45 above, p.33. 51 E. Hoffman, n.33 above, p.512. 52 Centrum voor gelijkheid van kansen v Firma Feryn NV (Case C-54/07) [2008] All ER (EC) 1127. 53 Pornography was described as hate speech by Catherine MacKinnon, Only Words (London: Harper Collins, 1994). 54 Ministry of Justice in ‘An Overview of Sexual Offending in England and Wales’ released 10 January 2013.

CONCLUSION This essay concludes that liberals can no longer maintain that commercial pornographer’s rights are so great as to be unsuited to a utilitarian calculation. The reasons which justify free speech simply do not apply to commercial pornography. It should be remembered that just because freedom of speech rights are not extended to commercial pornography it does not mean that all commercial pornography should necessarily be prohibited. According to Waldron, rights are accorded to highly valued interests that are considered inappropriate for utilitarian calculation.55 It is based on a worry that important individual interests will be traded off against less important ones which only have the weight that they do because of the large numbers of people involved.56 Since there is no right to commercial production of pornography, a utilitarian calculation should be employed. This means that the benefits should be weighed against the harm that may be caused to the wider society. While offence is generally considered insufficient harm to restrict freedom of speech, once it has been shown that commercial pornography should not be protected as a right, there is no reason why offence should not be taken into account in the utilitarian calculation if it lowers well-being. While Dworkin has argued that once rights are taken out of the equation it seems “silly” to argue that an individual or community would be benefited by exposure to more, rather than less, pornography,57 it is likely that the utilitarian calculation would support the limitation of certain extreme types of pornography while allowing others. Rights are important to individuals and companies, but the reasons for giving them rights need to be established. Claims to rights have been rampant in recent years. However, it is good practice to establish reasons for rights before granting them indiscriminately. This essay has attempted to do just that, and concludes that commercial pornography cannot be protected under the right to freedom of speech.

55 56 57

n.27 above, p. 597. J. Waldron, n.27 above, p. 509. R. Dworkin, ‘Is there a right to pornography?’, n.16 above, p.193.

Photo Credit: pixagraphic https://www.flickr.com/photos/pixagraphic/4000447186

TO SPEAK OR NOT TO SPEAK:

BALANCING FREEDOM OF EXPRESSION & THE ADMINISTRATION OF JUSTICE Civilised societies have always attached paramount importance to the freedom of expression. This article focuses on the relationship between free expression and the administration of justice, governed mainly by the law of contempt.

by Sean Poh University of Manchester

To Speak or Not to Speak: Balancing Freedom of Expression & the Administration of Justice

INTRODUCTION As Evelyn Hall famously opined in 1906, ‘I disapprove of what you say, but I will defend to the death your right to say it’.1 The notion of free speech has been and will continue to remain a perennial hallmark of the contemporary society. Unfortunately, realising this virtuous ideal of free speech is anything but straightforward. The scope of free speech issues is extensive and its substantive content equally convoluted. Free speech rights are often incompatible with other public interests which necessitate the law’s intervention in balancing such interests. For example, the law of defamation mitigates the strife between the right to free speech and the right to reputation. Another example concerns the function of a free press in a democratic society, which must only be exercised in accordance with the ethics of responsible journalism. As such, any efforts aimed at examining the entire range of matters confronting free speech discourse in an article would prove futile and merely serve to open a can of worms. It is for this reason that I intend only to focus on the relationship between free expression and the administration of justice, governed mainly by the law of contempt. Before we explore how the substantive law of contempt seeks to balance these competing interests, it is first meaningful to acknowledge the value and role of free speech through a cursory account of the three main justifications for a free speech principle as put forth by various free speech proponents. After which, due regard must be given to the inherent tension which exists between the right to free speech and the need to preserve the integrity of the justice system as a whole. Only against this backdrop can a worthwhile analysis of Singapore’s contempt regime be achieved. On this note, a comparative examination of contempt proceedings in the United Kingdom will be useful in shedding light on why the local approach diverges from that of the Westminster government in this regard. Through this discussion, I endeavour to show that the unique characteristics of Singapore’s local conditions and constitutional position necessitate that attacks on the integrity and impartiality of the courts be dealt with more firmly. THE FREE SPEECH PRINCIPLE: VALUE AND ROLE OF FREE SPEECH The notion that free speech should be given special protection under the law and regulation because it possesses some special quality of value is what is known as the free speech principle. At this juncture, it is important to note that the free speech principle does not entail absolute protection for the exercise of freedom of expression and free speech proponents do concede that its exercise may be restricted under circumstances, thus giving rise to the qualified nature of its protection. For the great English philosopher J.S Mill, the limitation placed on free speech stems from his ‘harm principle’ that ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’.2 Others like J. Feinburg feel that the harm 1 2

Stephen G. Tallentyre, The Friends of Voltaire (1906). John Stuart Mill, On Liberty (1859).

principle is too high a threshold and instead prefers what is known as the ‘offence principle’.3 However, as we will see, the restriction of free speech often operates on a broader concept of harm that relates to harm done to society as a whole, rather than that at the inter-personal level. Proponents of the free speech principle have sought to put forth three main justifications for such a principle. The first of this would be the argument from truth, initially introduced by John Milton’s piece against licensing and censorship4 but later refined by Mills. A set of three related ideas put forth by C.L. Ten,5 former Head of Philosophy, NUS, helps to elucidate the distinct characteristics of Mill’s proposal. Ten argues that freedom of expression is necessary for the avoidance of mistake, the necessity of error in preventing men’s beliefs from being held in rigid and dogmatic ways and lastly, that we as fallible beings, are not entitled to believe something in the absence of free discussion. Secondly, the argument from self-fulfilment and autonomy provides a deontological perspective that free speech is an integral aspect of each individual’s right to development and self-fulfilment. This strand of argument also concerns the notion that securing such a freedom is crucial to one’s autonomy. As T. Scalon expounds, a truly autonomous person is one who is able to make informed choices, and the suppression of speech is wrong because it curtails access to ideas and information needed to make such choices.6 However, the central importance of political speech in any society clearly suggests the pre-eminence of the final justification for a free speech principle: the argument from democracy. Here, free speech is seen as a means of protecting the right of all citizens to understand political issues so as to be able to participate effectively in democracy through the formation of public opinion on political questions. More broadly, free expression provides the sovereign electorate with the information it needs to exercise its sovereign power, and such freedom is also necessary to hold governmental officials, as public servants, properly accountable to the population at large. The risk of harm posed by an error in governmental policy and the serious consequences that follow further justifies support for this argument. It is no wonder that E. Barendt asserts that the argument from democracy has been the most influential theory in the development of contemporary free speech law.7 Notwithstanding the aforementioned justifications being useful in their own ways, they are respectively limited by their own shortcomings. Fortunately for us, the purpose of this article does not require the examination of such nuances. The focus of this piece will operate on the presumption that free speech has inherent worth and deserves special protection.

3 Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law, Oxford University Press (1984). 4 John Milton, Areopagitica; A speech of Mr. John Milton for the Liberty of Unlicenc’d Printing, to the Parlament of England (1644). 5 C.L. Ten, Mill on Liberty, Clarendon Press (1980). 6 Thomas Scalon, ‘A Theory of Freedom of Expression’, Philosophy and Public Affairs, Vol. 1, No. 2. (Winter, 1972) 204-226. 7 Eric Barendt, Freedom of Speech, Oxford University Press (2005) 20.

Sean Poh

ACKNOWLEDGING THE INHERENT TENSION: RATIONALE FOR CONTEMPT LAWS Unfortunately, free expression may not always be compatible with the public interest in ensuring fairness of legal procedure. Sensationalist publications and the value of immediacy in news reporting can sometimes damage the chance of an accused receiving a fair trial or influence the course of prospective litigation. This is particularly relevant to jurisdictions such as the United Kingdom where the institution of the jury system still exists. In Singapore, where judges decide both questions of law and fact, the issue stems from the inherent tension between the public confidence in the institution in which judicial power is vested pursuant to Article 93 and the right to freedom of speech constitutionally protected by Article 14 of the Constitution. As the judiciary acts as a check and balance on the Cabinet and the Parliament, its integrity and independence is of utmost importance in ensuring the legitimacy of the Westminster model of governance. The corollary to this would be the imperative need to prevent contemptuous content from lowering public confidence in the justice system. As Sinnathuray J recognised in AG v Wain, the ‘right [to freedom of speech and expression] must be balanced against the needs of the administration of justice, one of which is to protect the integrity of the courts’.8 SCANDALISING THE COURT IN SINGAPORE: CONSTITUTIONALITY & THE SUBSTANTIVE OFFENCE Article 14(1)(a) of the Constitution guarantees every citizen’s right to freedom of speech and expression. However, the right does not stand unfettered and is qualified by Article 14(2)(a) which accordingly provides, inter alia, that Parliament may by law impose on the rights conferred by clause (1)(a) restrictions designed to provide against contempt of court. Although deemed to be an archaic form of contempt in the United Kingdom, the offence of scandalising the court remains the only form of contempt in the Republic, which according to the High Court in Attorney-General v. Chee Soon Juan,9 falls within the category of exceptions from the right to free speech expressly stipulated in Article 14(2)(a). Consequently, Article 14 clearly confers on Parliament the power to restrict a person’s right of free speech to punish acts of contempt. Prior to the case of Attorney General v Shadrake Alan,10 the test for the offence was whether the words complained of have the ‘inherent tendency’ to interfere with the administration of justice as iterated in the case of AG v Wain.11 However, this traditional formula of liability was problematic as it had the propensity to ‘preclude any consideration of extrinsic factors’ and ‘appeared at times to encompass, in theory at least, publications which have no potential effect on public confidence in the administration of justice’ as opined by Quentin Loh J.12 8 Attorney-General v Wain Barry J and others [1991] 1 SLR(R) 85; [1991] SGHC 8 at [56]. 9 Attorney-General v. Chee Soon Juan [2006]. 10 Attorney-General v Shadrake Alan [2011] 2 SLR 445. 11 Attorney-General v Wain Barry J and others [1991] 1 SLR(R) 85; [1991] SGHC 8 at [54]. 12 Attorney-General v Shadrake Alan [2011] 2 SLR 445 at [50] per Quentin Loh J.

For these reasons, the Court of Appeal affirmed the High Court’s decision in Shadrake on the prevailing approach of Singapore courts: a publication must pose a ‘real risk’ of undermining public confidence in the administration of justice before it is held to be contemptuous.13 The decision was also useful in reiterating the critical role of the judiciary as the constitutional guardian of our fundamental liberties. In defining the offence, it was the duty of the courts to do so ‘consistently with the words, structure and spirit of Art 14, which clearly demand some kind of balance to be struck between the freedom of speech, which is the rule, and the offence of contempt, an exception to the rule’.14 That being said, it is important to note that mechanisms like contempt should not be used to stifle fair and reasonable criticism of the judiciary and judicial decisions. As former Chief Justice Chan has expressed extra-judicially, ‘the respect and support of the public is crucial for the independence of the Judiciary as an institution. In a democratic society, the respect and support of the public is, in fact, one of the best safeguards for the independence of the Judiciary as an institution’.15 Recognised as being central to the notion of judicial independence, there exists a legal burden for the prosecution to prove beyond reasonable doubt that the impugned statement did not constitute fair criticism. A COMPARATIVE DIMENSION: CONTEMPT PROCEEDINGS IN THE UK The English case of R v Almon16 has long been cited as the key authority for the offence of scandalising the court. The offence was created in the eighteenth century for the sole purposes of punishing radical anti-establishment critics such as John Wilkes. It was defined to be ‘any act done or writing published calculated to bring a court or judge into contempt or to lower his authority’.17 However, unlike Singapore, scandalising the court is deemed to be an anachronistic form of contempt in the United Kingdom and Lord Diplock has described it as ‘virtually obsolescent in the United Kingdom’.18 The offence has not been used in the United Kingdom for almost sixty years. There is judicial consensus regarding the pre-eminence of free expression rights and a general view that such a charge is excessively oppressive. The modern attitude of English courts was illustrated by Lord Denning in the case of R. v Metropolitan Police Commissioners Ex p. Blackburn (No. 2): ‘It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment on matters of public interests. Those who comment can deal faithfully with all that is done in a Court of Justice. They can say we are mistaken, and our decisions erroneous, whether they are subject to appeal or not’.19 13 Attorney-General v Shadrake Alan [2011] 2 SLR 445 at [50]; affirmed by CA in Shadrake Alan v Attorney-General [2011] 3 SLR 778; [2011] SGCA 26 at [57]. 14 Attorney-General v Shadrake Alan [2011] 2 SLR 445 at [57]. 15 Chan Sek Keong, ‘Securing and Maintaining the Independence of the Court in Judicial Proceedings’ (2010) 22 SAcLJ 238. 16 R v Almon (1765) Wilm. 243. 17 Badry v DPP of Mauritius [1983] 2 A.C. 297 quoting R v Gray [1900] 2 Q.B. 36 at 40. 18 Secretary of State for Defence v Guardian Newspapers Ltd [1985] A.C. 339. 19 R. v Metropolitan Police Commissioners Ex p. Blackburn (No. 2) [1968] 2 Q.B. 150.

To Speak or Not to Speak: Balancing Freedom of Expression & the Administration of Justice

It is now almost inconceivable in the United Kingdom for a finding of contempt to flow from a criticism of the courts, however distasteful the criticism may be. No prosecution arose from a 1987 publication by the Daily Mirror which included inverted photos of the Law Lords under the headline ‘YOU FOOLS!’. A charge against hysterical claims in pamphlets about corrupt judges was dropped by the Attorney General and affirmed by Simon Brown L.J. on the grounds that such insults are much better ignored. UNIQUELY SINGAPOREAN: JUSTIFYING THE LOCAL APPROACH Having explored the offence in both jurisdictions, the question as to why the offence ceases to exist in its birthplace of the United Kingdom yet remains very well alive in Singapore remains. In this regard, I purport to put forth two plausible explanations. Although the local conditions facing Singapore have been described by the Court of Appeal in Shadrake to be neutral factors at best,20 it is my opinion that they are still useful in explaining why the offence of scandalising the court has been hitherto preserved by our judiciary. In the case of AG v Hertzberg, Tay J explained that the small geographical size and the fact that judges in Singapore were triers of both fact and of law ‘necessitate that we deal more firmly with attacks on the integrity and impartiality of our courts’.21 The ‘local conditions’ argument was a brainchild of the Privy Council in a 1999 case concerning the validity of the offence in Mauritius. Using England as a basis for comparison, the Lordships was of the opinion that ‘it is permissible to take into account that on a small island such as Mauritius, the administration of justice is more vulnerable than in the United Kingdom. The need for the offence of scandalising the court on a small island is greater’.22 That being said, we must not lose sight of the fact that the Court of Appeal has chosen to shift away from the parochial stance of using local conditions to conclusively overwhelm the right to freedom of speech. With the advent of the technological age, information can still be widely and quickly disseminated regardless of how large a jurisdiction may be. Furthermore, whether judges are triers of fact or law, public confidence in the justice system is equally paramount. This brings us to the second and perhaps more convincing explanation: Singapore’s unique constitutional position. The Singapore courts have, as part of their decision-making process, comprehensively examined judicial approaches in foreign jurisdictions by assessing the weight of the merits of the arguments raised, or the distinguishing features which make foreign cases inapplicable in Singapore. For example, in one of the most liberal of democracies, we see the First Amendment of the United States Constitution granting freedom of speech the trump where courts have chosen to adopt a more stringent ‘clear and present danger’ test in establishing liability. In this regard, the Court of Appeal in Shadrake has cautioned that because the ‘concept of freedom of speech is inextricably linked to the unique culture as well as constitutional position in the US…the US First Amendment is clearly quite different from 20 Shadrake Alan v Attorney-General [2011] 3 SLR 778; [2011] SGCA 26 at [31]. 21 Attorney-General v Hertzberg Daniel and others [2009] 1 SLR(R) 1103; [2008] SGHC 218 at [33]. 22 Gilbert Ahnee and Others Appellants v Director of Public Prosecutions Respondent Privy [1999] 2 W.L.R. 1305 [1999] 2 A.C. 305-306.

the corresponding articles in the respective constitutions of Commonwealth jurisdictions (of which Art 14 of the Singapore Constitution is a representative illustration)’.23 Although the right to free speech can be seen to be of utmost importance in liberal democracies such as the United States, the American experience simply cannot be replicated in Singapore for the simple fact that such an unfettered emphasis on free speech is simply not present in Singapore’s constitutional history. That being said, this does not mean that freedom of speech has no place in a Commonwealth state such as Singapore. Instead, it is suggested that ‘far more attention is accorded to the issue of balance between the right to freedom of speech on the one hand and its abuse on the other (inter alia, by conduct amounting to contempt of court)’.24 The nuances of such a balancing exercise is of course, also specific to a state’s constitutional position. Being a signatory to the European Convention of Human Rights (ECHR), the United Kingdom has since opted to give further effect to the rights and freedoms guaranteed under the ECHR through the passing of the Human Rights Act in 1998. Similar to Article 14(1)(a) of the Singapore Constitution, Article 10(1) ECHR sets out that ‘everyone has the right to freedom of expression’. However, in a case concerning the defence of qualified privilege in a defamation action, the Court of Appeal made cogent and relevant points regarding the second qualifying paragraphs to the right to free expression found in the ECHR and the Singapore Constitution respectively. The Court was of the opinion that ‘para 2 of Art 10 [of the ECHR] is in no way similar to cl (2) of Art 14: para 2 provides that the exercise of the freedom under para 1 is subject to “restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”. Clearly, the terms allowing restrictions to be imposed under Art 10(2) are not as wide as those under Art 14(2)’.25 Evidently, Art 14(2) only requires a restriction on free speech to be ‘necessary or expedient’. For this reason, the Singapore Constitution explicitly permits legislative limitations on the right to freedom of speech and expression, in particular to provide against contempt of court. As Assistant Professor Jack Lee opines, ‘this suggests that the right is not intended to be paramount over other interests,26 thus explaining Singapore’s constitutional position in relation to preserving the said offence. CONCLUSION & THE WAY FORWARD In light of the above discussion, it is clear that the right to freedom of expression, although a fundamental liberty in a democracy, is a complex institution which engenders specific constitutional considerations insofar as its restrictions are concerned. Some might argue that in a developed legal system, the judiciary is in a position to defend itself. However, it is my opinion that the highest degree of trust in our courts is necessary for the rule of law to be effected and this transcends the mere compliance of orders through sanctions; the justice system must be viewed 23 Shadrake Alan v Attorney-General [2011] 3 SLR 778; [2011] SGCA 26 at [41]. 24 Ibid. 25 Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791; [1992] SGCA 27 at [56]. 26 Jack Tsen-Ta Lee, ‘Freedom of Speech and Contempt by Scandalizing the Court in Singapore’ (2009) International Association of Law Schools (IALS), Conference on Constitutional Law, Research Collection School Of Law.

Sean Poh

with a sense of respect. Against this backdrop, it is cardinal that free expression is regulated to a proportionate extent in order to preserve the legitimacy of the justice system in Singapore. Some may argue that too much weight has been accorded to protecting the integrity of the courts but the aforementioned case of Shadrake clearly suggests otherwise. The move away from the â&#x20AC;&#x2DC;inherent tendencyâ&#x20AC;&#x2122; test signifies a greater emphasis being placed on the constitutional state of the right to free speech. Gone are the days where public confidence in the judiciary acted as though it were a trump as seen in cases like AG v Chee Soon Juan. To conclude, I am of the view that the current law surrounding the offence of scandalising the courts is consistent with the theory of free speech that the Singapore Constitution adopts and is adequately poised to balance the antithetical interests in free speech and securing public confidence in the judiciary.

Photo Credit: Steve Rhode https://www.flickr.com/photos/steverhode/3183290111

THE PROBLEM OF ONLINE ACCOUNTABILITY This article addresses the question of whether legal techniques are the most effective way to regulate online behaviour or whether other methods need to be considered.

by Nur Hisyam Bin Azman University College London

Nur Hisyam Bin Azman

When one thinks of the internet, the picture that comes to mind is one of limitless boundaries and possibilities. In addition, there is the sense of freedom attributed to how our actions online are disassociated from the real world. This freedom may stem from the simple fact that instead of interacting directly with another human being, the person is shielded by the dispassionate electronic device that he is using. It could also come from the actual anonymity which the internet provides. A person can truly express their thoughts and opinions behind an anonymous username without any fear of reprisal. As Oscar Wilde once wrote in in his essay “The Critic as Artist”, “Man is least himself when he talks in his own person. Give him a mask, and he will tell you the truth.” Such freedom is not inherently evil but it does lead to conflicts with laws that exist in the real world. THE SCOPE OF DISCUSSION This article will examine the difficulties of ensuring accountability in the online world within Singapore’s context. Specifically, it will look at the issues pertaining to personal posts, aggressive conduct and political activism on the internet. The main focus here will be on the effectiveness of the existing system of legal accountability1 that seeks to govern online conduct. This critique of legal accountability will commence on the underlying assumption that regulation is preferred over complete autonomy of internet users due to the dangers that will be alluded to in the areas below. It will therefore unencumber itself from a prolonged examination of whether the internet should be regulated in the first place. THE PERSONAL POSTS It may seem, prima facie, when looking at the problem areas to be discussed, that the issue of posting prejudicial personal opinions on blogs and social media sites might seem harmless. Nevertheless, it raises very fundamental concerns that need to be addressed and will thus form a major portion of this discussion. The first question to be determined is to what extent, if any, should personal opinions be subject to legal regulation. In answering this, it would be prudent to begin by dealing briefly with the relationship between personal opinions and their expression. Also, when referring to “personal opinions”, this article is not concerned with the frivolous or mundane but rather to those that may be of serious concern to the public interest. This could range from opinions that could create tensions in society to those that tarnish the reputation of public establishments. Anybody with even a limited understanding of this area of law would realise that it does not seek to regulate the opinions themselves but rather the form of expression of such opinions. For instance, it is not illegal to believe that the judicial system lacks independence, but writing a book expressing such an accusation will likely attract criminal liability.2 Furthermore, 1 When speaking of legal accountability, this article is primarily concerned with the use of legal remedies to hold people accountable for their actions. 2 “UK author Shadrake jailed for six weeks in Singapore” (BBC News, 16 Nov 2010) <http://www.bbc.co.uk/news/world-asia-pacific-11763031> accessed 15 February 2014

it would be practically impossible for the law to regulate unexpressed opinions even if it tried. Outsiders might decry the fact that Singapore has a relatively restricted form of the freedom of expression.3 Even so it must be recognised that in most democracies, this freedom is not unfettered. America may have possibly stretched this right to its limits but it should be remembered that both Canada4 and the UK5 banned the Westboro Baptist Church from entry in 2008 and 2009 respectively due to their hate-mongering activities. While this author concedes that areas such as those relating to politics may benefit from an increased public discourse beyond designated corners,6 there are also very good reasons why the freedom of expression in Singapore is so strictly qualified. In a similar vein, some academics have pointed out that the freedom of speech and expression is by its very nature capable of causing harm.7 JUSTIFICATIONS AND POTENTIAL RAMIFICATIONS The key legal provision at the heart of these restrictions is the Sedition Act.8 For the purposes of this discussion, this article will concentrate on section 3(1)(e). The paragraph seeks to prevent the promotion of ‘feelings of ill-will and hostility between different races or classes of the population of Singapore’ and has been most recently and frequently used. Those familiar with Singapore’s history would recall the numerous riots that have occurred due to public unrest with the most famous being the Maria Hertogh riot of 1950. Although the Little India riot last year occurred after over 40 years of relative peace in Singapore,9 it is a reminder that such peace should not be taken for granted. This explains why the authorities take matters very seriously when bloggers post prejudicial remarks on their personal blogs10 or on social networking sites such as Facebook and Twitter.11 First time offenders may find themselves treated to a fine of up to $5000 and/or a prison term of up to 3 years for such offences.12 Already we will see that the potential consequences in this area are not restricted to the legal ones mentioned above. For instance, in 2012, an NUS scholar posted inflammatory comments online, leading to public outrage.13 He had his 3 “Singapore: Escalating Restrictions on Internet Expression” (Human Rights Watch, 21 Jan 2014) <http://www.hrw.org/news/2014/01/21/singapore-escalating-restrictions-internet-expression> accessed 15 February 2014 4 “Church members enter Canada, aiming to picket bus victim’s funeral” (CBC News, 8 Aug 2008) <www.cbc.ca/news/canada/manitoba/churchmembers-enter-canada-aiming-to-picket-bus-victim-s-funeral-1.703285> accessed 15 February 2014 5 “Anti-gay preachers banned from UK” (BBC News, 19 Feb 2009) <http://news.bbc.co.uk/1/hi/7898972.stm> accessed 15 February 2014 6 Li-ann Thio, “Singapore: regulating political speech and the commitment “to build a democratic society”” (2003) 1(3) I.J.C.L 516-524 7 Steve Foster, “Are we becoming afraid of free speech?” (2013) 18(1) Cov. L.J 92-99 8 (Cap 290, 2013 Rev Ed) 9 The last major racial riot occurred in 1969. 10 “Blogger arrested for posting racists online content” (Asiaone news, 21 May 2008) <http://news.asiaone.com/News/AsiaOne%2BNews/Singapore/ Story/A1Story20080521-66273.html> accessed 15 February 2014 11 “2 arrested for making racist remarks online” (Asiaone News, 1 July 2012) <http://news.asiaone.com/News/AsiaOne+News/Crime/Story/A1Story20120701-356542.html> accessed 15 February 2014 12 S4(1) Sedition Act (Cap 290, 2013 Rev Ed) 13 Daryll Nanayakara and Tong Jia Han, “NUS fines scholar for ‘dogs’ comment” (Asiaone News, 27 May 2012) <http://news.asiaone.com/News/Latest+News/Singapore/Story/A1Story20120327-335873.html> accessed 15 February 2014

The Problem of Online Accountability

scholarship benefits terminated and was required to serve 3 months of community service before being allowed to graduate. Such objectionable online behaviour might also result in public harassment and death threats, such as those levied at the two girls from Gainesville, Florida after posting a racist rant on YouTube.1 Admittedly, such harassment might be extreme in the Singaporean context but it does demonstrate the breadth of potential undesirable consequences. Furthermore, there are also non-immediate consequences to be considered. Even if an offensive online post is not in breach of the law, it might still come to the attention of employers, either current or future ones, due to how ”persistent” online information is.2 Such a person could significantly affect their potential future career prospects through something as trivial as a personal blog post.3 This clearly demonstrates that even without the shadow of legal repercussions, there are potential social and political consequences for such conduct that might be comparable in gravity. REASONS BEHIND THE BEHAVIOUR Before this paper moves on to discuss the other ways in which undesirable online conduct might manifest itself, it would be wise to take a step back and attempt to explore the reasons behind such behaviour. This would not only provide a better understanding of why individuals continue to act in such a way despite the harsh consequences outlined above but also expedite the analysis of the proceeding problem areas. Ignorance of the law or the consequences of their actions might not be a valid defence in court but it may be a valid factor contributing to such behaviour. If this is truly the case, then perhaps a more effective awareness campaign on acceptable online conduct and the potential legal ramifications could create a more courteous and respectful online environment. Unfortunately, it is suggested that legal ignorance is far from being the most significant contributing factor. One fears that the incidents documented above provides merely an inkling of a much larger issue that needs to be addressed. Singapore’s society may not be plagued by hate-mongering and openly prejudicial behaviour; however, it cannot be denied that there are undercurrents of distrust and prejudice present within it. Anybody who disagrees with this need only look at how quickly and willing netizens had been to lambast foreign workers and a whole class of people on social networking sites after the Little India riots. The majority of such posts were created on the basis of an initial media report even before a full investigation could be conducted by the authorities to determine the actual details of what transpired.

1 Michael Zennie, “There’s black people, then there’s n*****s’: Teenage girls forced to drop out of school after posting racist rant online” (The Daily Mail, 22 February 2012) <http://www.dailymail.co.uk/news/article-2104650/ Teenage-girls-forced-drop-school-posting-racist-rant-online.html> accessed 15 February 2014 2 For a discussion about the persistent nature of information on the internet, see; Danah Boyd, “Social Network Sites as Networked Publics: Affordances, Dynamics, and Implications” in Zizi Papacharissi (ed.), Networked Self: Identity, Community, and Culture on Social Network Sites (Oxford 2010) 3 For example, see the case of Justine Sacco who lost her job after tweeting a racist message about Aids in Africa; “PR officer loses job over racist twitter comment” (BBC News, 22 Dec 2013) <http://www.bbc.co.uk/news/ world-us-canada-25484537> accessed 12 March 2014

This paper suggests that the reason behind at least some of the prejudicial online conduct in Singapore is due to the authors already behaving in a similar fashion offline. This may be a product of a skewed upbringing that trivialises, or establishes misconceptions about the other races, religions or cultures in the society. Any such ingrained prejudicial views and their consequent acceptance within social circles might cause them to spill over into online activities. Some online remarks may not even be based off deep-seated prejudicial views but merely an extension of the tasteless humour that some may find acceptable in society. For instance, it is hard to believe that the member of the Young People’s Action Party (PAP) meant it more than a joke when he posted a picture of a bus filled with students wearing traditional Malay headwear with a caption referring to ‘terrorist trainees’.4 Understandably, it might not even occur to some that the same offensive remark that garnered laughter amongst friends in a public coffee shop would attract strict legal penalties if repeated on the Facebook pages of those same friends from the privacy of their own homes.5 Another potential factor leading to such online behaviour might perhaps lie within the interconnectedness of the internet itself. The vastness of the internet reaches across multiple jurisdictions, each with its own version of acceptable and non-acceptable behaviour. One can easily get lost within it and forget the legal boundaries that they are confined to. Indeed, there are countless hate videos and websites floating around the internet posted from jurisdictions with a more unqualified approach to free speech. The boundaries which users would have to distinguish between may be as indistinct as expressing agreement with an extremely prejudicial viewpoint on somebody’s YouTube channel and repeating that exact sentiment on their own personal blog. Yet, because the creator of the YouTube channel lives within a jurisdiction that encourages free speech and the blog author lives within the confines of the Sedition Act, the blogger might find himself facing a hefty fine or even a prison term. ARGUMENTS, THREATS AND CYBER-BULLYING Online activity can also take on a more aggressive nature. Arguments over the internet often spiral out of control and take the form of insults and threats. Unsurprisingly, such behaviour is most common where users are able to remain anonymous in their interactions. The realm of online gaming is a hotbed for such occurrences. Frustrated players vent their frustration through whatever communication tool that the gaming system provides and insults often quickly escalate into threats of violence towards each other. More often than not, such aggressive conduct might merely be the product of unsupervised children lashing out safely behind their screen names, and no actual physical harm or violence ever occurs. However, many of these threats would easily draw the attention of the police if they were made in person. It would seem to be an inconsistent application of the law therefore to allow such behaviour to continue online when they are not tolerated offline.

4 “PAP Youth member quits over ‘racist’ online posting” (Asiaone News, 18 Nov 2011) <http://news.asiaone.com/News/AsiaOne+News/Singapore/Story/A1Story20111118-311261.html> accessed 15 February 2014 5 Jacob Rowbottom, “To rant, vent and converse: protecting low level digital speech” [2012] 71(2) C.L.J. 355-383

Nur Hisyam Bin Azman

When other forms of aggressive conduct, beyond the juvenile arguments in gaming forums, are taken into account, the severity of their impact on their intended victims becomes clear. This is amplified by the fact that children are engaging in online activities and thus becoming exposed to such conduct at a younger age. In 2007, a 13 year old girl hanged herself after being cyberbullied by an adult neighbour masquerading as a 16 year old boy1 and just last year two girls were charged for causing a 14 year old girl to commit suicide through their acts of cyberbullying.2 Admittedly in the latter case, the cyberbullying might be an extension of a systemic bullying problem in schools but the former example brings to light the need to protect vulnerable internet users. Even so, keeping children offline might not be a desirable option due to how significant the internet has become in modern life. Clearly the law needs to hold internet predators accountable but it would be a worrying step into Orwellian territory if it is used to police any and all forms of aggressive communications online. THE POLITICAL WEAPON The discussion will finally turn to the regulation of the internet in the political arena. This is an admittedly complex area of discussion that is intertwined with the subject areas of governance and politics. It would be impossible to critique current approaches to problem-solving in this area without a reference to a system of governance or political structure that is deemed to be ‘correct’ or ‘ideal’. Due to a lack of a universal standard, it goes without saying that the benchmark to be used is based merely on the writer’s personal preferences. Therefore the criticisms and solutions suggested in this section might not make sense to some and may potentially form the most contentious portion of the whole article. The problem to be dealt with relates to the use of the internet to discuss and criticise policy issues or governmental conduct. In this regard, online accountability is merely an incident of a general sense of accountability as the internet is simply a convenient avenue for such discourse. Therefore the general principles that will be discussed apply equally to similar activities conducted through other media. Even so, because the internet is the most common arena for such matters, it is still highly relevant to the current analysis of online accountability. While such online discussions should be fostered so as to encourage participation in the interests of the country, care needs to be taken to balance the restrictions placed upon such activities. Obviously participants would need to adhere to certain basic decorum in public forums and blatant breaches of this would need to be addressed. Nevertheless, active reliance on legal action to regulate such dialogues could promote negative presumptions about the freedom to discuss such issues.3 As always, education and awareness would be better tools to allow such discourse to flourish while keeping them civil and respectful. 1 Catherine Elsworth, “Girl, 13, commits suicide after online bullying” (The Telegraph, 20 Nov 2007) <http://www.telegraph.co.uk/news/worldnews/1569949/Girl-13-commits-suicide-after-online-bullying.html> accessed 15 February 2014 2 Lizette Alvarez, “Felony Counts for 2 in Suicide of Bullied 12-Year-Old” (The New York Times, 15 Oct 2013) <http://www.nytimes. com/2013/10/16/us/felony-charges-for-2-girls-in-suicide-of-bullied-12-yearold-rebecca-sedwick.html?_r=0> accessed 15 February 2014 3 Tsun Hang Tey, “Singapore’s jurisprudence of political defamation and its triple-whammy impact on political speech” (2008) Aut P.L. 452-462

The threat of legal action such as that of defamation4 might actually do more harm than good. Far from convincing the offending person and their supporters that the views they hold are misguided or mistaken, it might only strengthen any existing resentment towards the authorities. Such individuals may be obliged to issue a public apology and retract any statements that they may have made online on top of any other legal penalties, but any erroneous beliefs and opinions will only be entrenched. Fear of reprisals might merely ensure that such forums take on a more anonymous character. Instead, a less litigious and more open approach to participants who are skirting the boundaries of acceptable behaviour might go further in garnering desirable conduct. Alternative dispute resolution methods such as mediation and arbitration are perhaps the best options for such matters. The presence of a mediator or arbitrator would help recalibrate the power imbalance between the lay person and the public figure in a discussion. Harsh legal remedies should still be in place to prevent a floodgate of unfounded allegations that take advantage of such a system but care should be taken lest they stifle honest dissent. Whilst the process may seem costlier and more time consuming, it does emphasise the fact that the holder of public office is answerable to the people as per the norms of a democratic society. Some might argue that going to trial is in fact a costlier affair and might be even more time consuming but there are potential arguments against this. The first is that the costs of litigation would be borne by the loser. Thus, as long as the party who alleges defamation chooses their battles wisely, costs could be minimised on their part. On the other hand, in circumstances where Alternate Dispute Resolution (ADR) methods break down, this adds an additional step in the entire process leading to increased costs and time consumption. It is important to note that these arguments are based on failed ADRs and it is accepted that successful ADRs would save time and costs in individual disputes. A final note on this point is that the fear of litigation would mean that overall costs of a litigious approach could be lower as it prevents similar behaviour from reoccurring in future. A discussion of online conduct within this area would be incomplete without some mention of the hacking activities that were conducted against the Singapore’s government websites earlier this year.5 Such methods of governmental protests fall within a moral grey area of discussion and can only be briefly dealt with in the remaining portion of this article. In a strictly legal perspective, such conduct is illegal and therefore unacceptable. However, if the enacted laws are themselves prejudicial and oppressive and the legal means of protesting it are deemed inadequate, then the moral and social acceptability of such actions become more apparent. While this article expresses no opinion on the acceptability of the recent hacking attacks, the fact that they occurred does highlight the existence of a problem. Placing the full extent of the blame to such hackers and relying on the force of legal action will not address those underlying issues.

4 See Penal Code (Cap 224, 2008 Rev Ed) Chapter XXI 5 “‘Anonymous’ hacks Singapore Prime Minister’s website” (BBC News, 8 Nov 2013) <http://www.bbc.co.uk/news/technology-24862839> accessed 15 February 2014

The Problem of Online Accountability

It might not be a stretch to conclude that such extreme behaviour only occurs when individuals feel powerless to change the policies implemented by the authorities. In a democracy, citizens participate indirectly in the decisions and policies of the state through the Parliamentary Members they elect. If they feel that their concerns are being ignored, they would find other avenues to be heard thus potentially escalating into such hacking incidents. Governments could ensure that implemented policies and regulations are supported by clear explanations as to their fundamental objectives and rationale. Special care would also need to be taken so that any mistaken perceptions are not left festering. For example, the hackers mentioned above were motivated by the perception that the new media regulation law is merely a method employed by the government to control information being dispersed to the general public. Only by addressing such concerns in a public forum could they gain the trust and understanding of the population. This would probably be more effective in preventing such online activities in future than threatening to uncover their identities and bring them to justice. After all, hackers have never allowed their illicit activities to be hamstrung by legal threats. A CONCLUDING ANALYSIS As has been seen, the greater public exposure that the internet provides our actions online also results in a greater exposure to liabilities. It is paramount that people are reminded that the internet is a truly public place and that any information released within it becomes impossible to erase or control.1 But should the ease in which words are entered into in the online world temper the harshness of potential legal action? Rowbottom points out that statements made online are sometimes done with little thought and it would seem rather severe that words typed within seconds could result in a criminal record or costly litigation.2 However, Leiter reasons that online conduct can affect people in a way in which normal conversations cannot.3 Although there is some credit to the latter argument, care should be taken so that the legal consequences are not disproportionate.4 Nevertheless, it is emphasised that the question that this article seeks to determine is less about the toughness of legal repercussions but rather its suitability at regulating online conduct. As with any area of law, an exclusive reliance on legal action to regulate online conduct may serve a preventative function to some extent but fails to solve any underlying problems that might exist. With such limitations inherent in a strictly legal and litigious approach, a more holistic one implemented by social policies might be better suited for the task. For instance, if younger users are better supervised or thoroughly educated on the dangers lurking online, the 1 Daniel Solove, ‘Speech, Privacy and Reputation on the Internet’ in The Offensive Internet (Cambridge, Mass., 2010), p.16. See also Cass Sunstein, On Rumours (London 2009), 62 2 Jacob Rowbottom, “To rant, vent and converse: protecting low level digital speech” [2012] 71(2) C.L.J. 355-383 3 B. Leiter, “Cleaning Cyber-Cesspools: Google and Free Speech” in S. Levemore and M.Nussbaum (eds.), The Offensive Internet (Cambridge, Mass., 2010) 4 For example see Owen Bowcottm Haroon Siddiqye and Andrew Sparrow, “Facebook cases trigger critissm of ‘disproportionate’ riot sentences” (The Guardian, 17 Aug 2011) <http://www.theguardian.com/uk/2011/aug/17/ facebook-cases-criticism-riot-sentences> accessed 15 February 2014 and “Sentencing the rioters: an alarming benchmark” (The Guardian, 18 Oct 2011) <http://www.theguardian.com/commentisfree/2011/oct/18/editorial-sentencing-rioters-alarming-benchmark> accessed 15 February 2014

incidents of bullying and aggressiveness mentioned above could be greatly reduced. Similarly, finding ways to cultivate a culture of greater maturity and understanding within society could lead to a more refined online presence devoid of tasteless remarks which pay no heed to the dissension it might cause. This is not to say that legal intervention should be disposed of in its totality. The law still plays a vital role in this area to prevent blatant abuses by those with deviant anarchist tendencies. The point being made is that by addressing the underlying problems with extra-legal solutions, one could remove the need to resort to such legal measures in the first place.

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REGULATING THE INTERNET Media Development Authority (MDA), this article considers their impact on freedom societal norms, customs and values, MDA’s intent of bringing parity to regulatory the substantive impact of this framework has led to concerns of a “chilling effect” in freedom of speech in the online domain.

by Hilary M Rupawalla University of Manchester

Hilary M Rupawalla

On 28th May 2013, the Media Development Authority of Singapore (MDA) announced that from the 1st of June 2013, websites reporting on Singapore news and have a significant reach would have to be licensed under a new regulatory framework.1 Instead of being regulated under a class as before, online news sites must apply for an individual licence if they report regularly on matters relating to Singapore and are accessed by a significant number of Singapore readers.2 Specifically, if they report an average of at least one article per week on Singapore’s news and current affairs, and are visited by at least 50,000 unique IP addresses from Singapore each month over a period of 2-5months. In addition, applicants for new individual licences must also put up a performance bond of SG$50,000 and must remove any content that is found to be in breach of MDA’s standards within 24 hours. Providers may lose their bond if they violate the terms of their licence.3 In recognition to the changing media landscape, moving from an automatic class license scheme to an individual license is an effort on the part of the Singapore government to ensure parity in regulating news providers across different forms of media. While this main reason of ensuring parity is justified, this in itself does not necessarily provide a reasonable explanation for the apparent vagueness and uncertainty in the implementation process of the new regulatory framework. FREEDOM OF SPEECH In Singapore, the right to free speech is enshrined in Article 14(a) of the Singapore Constitution. According to Art. 14(1) (a), all citizens of Singapore have the right to freedom of expression.4 However, this is not an absolute right. Art 12(2) and (3) specifically set out the restrictions that Parliament may impose on an individual’s right to free speech – specifically, if it poses a threat to wider public interests such as security, public order or morality, or to provide against contempt of court, defamation or incitement to any offence.5 Western liberal democracies such the United Kingdom have in their human rights jurisprudence the maxim that restriction on a libertarian right like freedom of speech should be construed narrowly, as it is of fundamental importance to the functioning of a democratic society.6 This wide interpretation of free speech is evident in the freedom of the British press to report events, express opinions, investigate political issues, and hold major political parties to account and to act as a watchdog for the state.7 In the United Kingdom, press freedom is regarded as one of the major pillars of a democratic society. Indeed, in any democratic society, the right to free speech and press freedom, be it over traditional or new media, should arguably be given a wide interpretation. As a Fourth Estate, the press is the ‘voice of the people’ and relays democratic views of citizens regarding pertinent political and social issues, which serves as a check and balance in a constitutional system. 1 M Chua , ‘How Should Singapore Government Regulate Online News Sites ‘ [2013] LKYSPP. 2 Media Development Authority, ‘Fact Sheet – Online newssites to be placed on a more consistent licensing framework as traditional news platforms,’ http://www.mda.gov.sg/NewsAndEvents/PressRelease/2013/Pages/28052013.aspx, 2013 (accessed 1 Feb 2013). 3 Ibid. 4 J, Gomez, ‘Freedom of Expression and The Media in Singapore’, Dec 2005 5 Ibid. 6 Ibid. 7 Catherine Mayer, “Is Press freedom the U.K. Hacking Scandal’s Next Victim?”, http://world.time.com/2012/11/29/leveson-report-is-press-freedomthe-u-k-hacking-scandals-next-victim/, November 29, 2012.

It should come as no surprise that this is not quite the case in Singapore. While some might call it unfortunate that Singapore does not share this similar attitude towards such a liberal take on the right to free speech and press freedom, others might cite the difference in functioning of democracies and constitutions as a major reason. The Singapore government adopts a different stance with regard to press freedom and the right to freedom of expression. Rejecting a laissez-faire approach to free speech8 as in United Kingdom, it has instead adopted a pragmatic ideology towards the right to free speech – an individual’s right to free speech and press freedom should only be tolerated insofar as it does not threaten the important democratic ideals of security, public order, and morality. It supports the political ideology endorsed by the government since gaining independence four decades ago, one that focuses on constructing a political and legal framework that is conducive to nation building, economic progress and the social and political stability in Singapore.9 The primary role of the press in Singapore is therefore to serve an active, participatory and “responsible” role of contributing to the ideal of strong nation-building model in Singapore,10 which is a slightly different spin from being construed as the “voice of the people”. GROWING IMPORTANCE OF THE INTERNET AND ITS SIGNIFICANT IMPACT ON NEWS CONSUMPTION The advent of the Internet has revolutionised the way in which news is transmitted and received. Backed by technological advances, the Internet has allowed for seismic shifts in social and political life. With the Internet, the press is no longer constrained to simply print media and television broadcasting; it has allowed them to expand their scope of news reporting online. With social networking sites like Facebook and Twitter becoming increasingly popular, traditional news industry players have had to keep up with that change as well. The climate of news reporting, dissemination and receiving of information changed from that of operating on traditional media platforms to competing on the Internet.11 The Internet, therefore, transformed the way in which news content is distributed and consumed. Globally, almost two billion people use the Internet and this number is only set to increase. In Singapore, according to a survey by Neilson in 2011, internet penetration amongst Singapore’s youths (15 to 19 years) is almost complete at a record 97%, coming down to 33% for Singaporeans aged 50 and above – the latter is still higher than levels in United Kingdom, United States and Japan (9 – 15%). Singaporeans also have the highest frequency of Internet use across Southeast Asia, with 85% of youths having a mobile phone capable of Internet access, out of which 80% of them access the Internet on a daily basis.12 Evidently, Singapore is one of the most wired countries in the world.13 In a Reuters Digital Report 2013, a staggering majority 8 Kevin Y.L.Tan, Fifty Years of the Universal Declaration of Human Rights: A Singapore Perspective, 20 Sing. L. Rev. 239, 240 (1999). 9 H. T., Tsun, ‘Confining the Freedom of the Press in Singapore: A “Pragmatic” Press for “Nation-Building”?’, Nov, 2008. 10 Ibid. 11 Ibid. (n1) 12 Nielsen, “Southeast Asia Digital Consumer Habits”, http://www. nielsen.com/us/en/reports/2011/south-east-report.html (accessed 31 July 2013). 13 Economist, ‘Regulating Singapore’s Internet: Two Steps Back,’ http://www.economist.com/blogs/banyan/2013/06/regulating-singapores-internet, 2013, (accessed 8 Jan 2014).

Regulating the Internet

of the under-35 age group preferred online and interactive news.14 Similarly, it was found that the young (21 – 39 years), better educated and better off placed greater importance on the Internet as a source of political news, and are more likely to trust that source as well. It is not solely the case that the Internet has brought about a change in the way in which news providers distribute their information. Increasingly, it is also seen as an arena for social and political discourse. The Internet exists as a dimension of space easily accessible to, as we can now see from the statistics above, majority of Singapore citizens. With the Internet sprung technological inventions like blogs, podcasts and various social networking sites like Facebook, Twitter and so on. One is free to log online, set up a blog and simply start an entry voicing their opinions on pertinent social and political issues, or share their thoughts regarding to the recent Little India Riots, for example, on their Facebook and Twitter – there are no regulated restrictions. The Internet and all that it contains have thus shifted the balance of news production – no longer a passive consumer of news and information, with the Internet, Singapore citizens like you and me are increasingly becoming active producers of news.15 An important aspect of the law lies in its ability to reflect changing societal norms, customs and values. Given the evolving landscape of news consumption from traditional print media to online news sites, it is important that the relevant laws and regulations reflect such developments. REASONS FOR INTRODUCTION OF NEW REGULATORY FRAMEWORK One major reason for individually licensing online news sites is the problem of a disparity in regulating online and traditional news players. While traditional news providers were individually licensed under the Broadcasting Act (TV) and Newspaper and Printing Presses Act (newspapers) respectively,16 Internet news reporting sites were being automatically licensed under a class under the Class Licence Scheme. 17 Currently, the Ministry of Information, Communications and the Arts (MICA) are responsible for formulating and administering content regulatory policy through the MDA. Since 1994, MDA has regulated Internet sites via the Broadcasting Act (1994, 2003). It automatically licensed Internet news sites as a class under the Class Licence Scheme, and required them to comply with the Internet Code of Practice.18 As a result of this inconsistency, news providers were subject to different sets of regulations depending if their information was disseminated in print or online. Also, online news sites faced less responsibility when reporting news because it did not require them to put up a performance bond, as it does with traditional news providers.19 14 Reuters Institute, “RISJ Digital Report”, http://reutersinstitute. politics.ox.ac.uk/publications/risj-digital-report.html (assessed 31 July 2013). 15 K, Han, ‘Singapore: Internet freedom under threat’, http://www. aljazeera.com/indepth/opinion/2013/06/20136293718623124.html, 2013 (accessed 13 Feb 2014). 16 Singapore Government, ‘Online Licensing Framework,’ http:// www.gov.sg/government/web/content/govsg/classic/factually/factually_20131216_wasthebreakfastnetworkbannedbymda, 2013, (accessed 1 Feb 2014). 17 Ibid. (n4). 18 Ibid. 19 Ibid. (n1).

Second, the Internet is a holder of significant sources and information, and as stated above, has empowered ordinary citizens to start up community citizen blogs that might seek to either critically analysis current political and social issues, or simply report the facts as they see it as such. The State mentality is such that without regulation, Singaporeans would be threatened with exposure to biased reporting of information and “news”. This is based on the paternalistic presumption that citizens are unable to filter such information and make a value judgement regarding biased/unbiased on their own. According to the State then, such spread of misinformation might warrant unnecessary consequences such as undermining racial harmony and threatening public order.20 For example, in 2005, three ethic Chinese bloggers were convicted under the archaic laws of the Sedition Act for writing racist remarks that were considered offensive against the minority Malay community. Under Singapore’s Sedition Act, it is seditious to “promote feelings of ill-will and hostility between different races or classes of the population,” thus signifying a significant restraint on freedom of speech.21 Under the old framework, MDA does not have any legal power against online news providers to remove any information that might threaten public interest from their websites,22 but being licenced under this new framework effectively places online news sites under the watchful and critical eye of MDA and gives them the right to issue notices to take down content. The State is insisting that this framework is not so much about censorship of content via the Internet and restricting an individual’s right to freedom of speech as much as it is bringing about consistency in regulating traditional and online new sites, so as to ensure responsible journalism all across the board and non-biased reporting of news on TV, radio, print and finally, the Internet. While it is one thing for a set of regulations to have a stated purpose, other implications (however intended/ unintended) may arise. In this case, it seems as though the implications of this new regulatory framework have made more of an impact rather than the actual stated purpose; one that seems to have to be constantly reiterated by the Government, and one that citizens have to be constantly reminded of. CONCERNS RELATING TO FREEDOM OF SPEECH The Singapore government has had to put in place similar regulations and guidelines pertaining to both print and online news providers. Why is it, then, that there are fears that such regulations are an attempt to ‘cover what is essentially an exercise of unchecked power’, and regarded it as ‘the spectre of government surveillance and censorship’?23 Could it be, perhaps, due to the ad-hoc introduction of these regulations without prior consultation, or the lack of transparency regarding the government’s justifications, or the fact that the new framework defined “news programme” so widely that it gives MDA much discretion as to which sites would be required to be individually licensed, leading to a lack of clarity as to how these rules under the framework would apply? As much as the reason for introducing this regulatory framework is seemingly 20 Ibid. 21 J. L-C.,Neo, “Seditious in Singapore! Free Speech and The Offence of Promoting Ill-Will and Hostility between Different Racial Groups,” Singapore Journal of Legal Studies [2011]. 22 Ibid. (n1). 23 J, Yip, ‘Internet Regulation – A myth in Singapore?’, http://www. singaporelawreview.org/2013/11/internet-regulation-a-myth-in-singapore/ (accessed 14 March 2014).

Hilary M Rupawalla

justified, it is the climate of vagueness and uncertainty in the implementation process that seems to breed fear and a haunted realisation that this could bring about a “chilling effect” on freedom of speech in Singapore. First, the words and phrases used are very vague but yet broad enough to allow MDA to exercise their discretionary powers.24 One major example is the definition of news programmes.25 The MDA defines a “news programme” as “any programme (whether or not the programme is presenter-based and whether or not the programme is provided by a third party) containing any news, intelligence, report of occurrence, or any matter or public interest, about any social, economic, political, cultural, artistic, sporting, scientific or any other aspect of Singapore in any language (whether paid or free and whether at regular interval or otherwise) but does not include programmes produced by or on behalf of the Government.”26 By wielding such broad discretion, it leaves the public and specifically active citizen bloggers unable to discern when or how MDA might make their decision. For example, though alternative news sites like The Online Citizen (TOC) and TR Emeritus provide regular local news and reach a wide audience, they apparently fell outside the ambit of these new rules, and were both exempted from the new licensing framework.27 Strangely, no reasons were given for this exemption. Instead, MDA identified 10 sites, namely asiaone. com, businesstimes.com.sg, channelnewsasia.com, omy.sg, sg.news.yahoo.com, stomp.com.sg, straitstimes.com, tnp.sg, todayonline.com and zaobao.com,28 which met their criteria. There is, therefore, much uncertainty regarding the licensing of blogs, Internet commentators and alternative news websites. To clarify this issue, MDA published a post on their Facebook page stating that they would not need to be individually licensed.29 However, this clarification is unsatisfactory as it is not legally binding on the government. Perhaps if MDA had clarified this in the form introducing it in their regulatory framework, it would provide some substantial legal authority, and ease the public perception of a restriction on an individual’s right to free speech. Clarifications aside, it seems that the publics’ concern is the lack of a general legal principle behind what conforms to the framework and what does not. Seemingly, this “discretion” that MDA possesses might be rather arbitrary. The performance bond of SGD$50,000 is a cause for concern as well. It poses an indirect threat to free speech online by imposing a higher barrier to entry for online news sites. While traditional news providers might be able to fork out this huge sum as a result of their high commercial value, it definitely poses as a difficulty to news sites that operate on a smaller scale. The beauty of online news reporting lies in its low start up cost and easy accessibility; as mentioned previously, citizens are increasingly turning to the seemingly unregulated platform that is the Internet to share their alternative opinions regarding social and political issues. Such a hefty performance bond may deter the establishment of new online news sites, hinder the growth of these alternative news websites (with a smaller audience base, 24 A, Loh, ‘New MDA licensing rules: Finding a way forward’, http:// sg.news.yahoo.com/blogs/singaporescene/mda-licensing-rules-finding-wayforward-062335198.html (accessed 14 March 2014). 25 Ibid. (n1). 26 Ibid. (n5). 27 The Online Citizen, “TOC’s statement on MDA licensing of online news sites”, http://www.theonlinecitizen.com/2013/05/tocs-statement-on-mdalicensing-of-online-news-site/ (accessed 12 March 2014). 28 Ibid. (n16). 29 Ibid. (n1).

they would not meet the criteria of being individually licensed),30 or inevitably result in the discontinuation of existing ones, depriving the public of an information outlet and a platform to express themselves.31 MDA sought to address this problem by stating that it is willing to consider the individual circumstances of licenses and adjust the performance bond accordingly. Once again, the lack of clarity and wide discretion given to the MDA to exercise their powers hardly provides any reassurance to the public. The closure of the Breakfast Network is one example that many have cited as the government restricting freedom of expression through the new regulatory framework. First set up in February 2013 by Singapore journalist Bertha Henson as a media criticism blog, it slowly grew over time into a news and view site, featuring reporting of ordinary Singaporean “citizen volunteers.” With an increase in web traffic, the site fell within the requirements for registration under the new MDA regulations. Henson chose to cease website operations after failing to submit the documents for an individual license.32 She cited vague provisions in the registration forms and technical requirements such as the disclosure of personal names of editors and staff and its funding source as reasons for shutting down the site completely. Under the Broadcasting Act, a corporate entity providing political commentary must register with MDA to ensure that it does not receive foreign funding. Accordingly, MDA claims that the “registration requirement is simply to ensure that the Breakfast Network will not receive foreign funding”33 – if an online news site received foreign funding, there is a greater possibility of undesired foreign influence in the reporting of news.34 This issue of foreign funding is also prevalent in regulating traditional news players as well. In 1974, the Newspaper and Printing Presses Act went through significant amendments. One key aspect of this enactment was that it sought to prevent local newspapers from receiving foreign funding. The rational behind this being that local newspaper corporations would more vulnerable and at a higher risk of manipulating their stories, thus subverting peace and stability in Singapore through inaccurate and biased reporting.35 Seeking to prevent foreign funding for online news sites brings the both regulatory frameworks on par with each other, and achieves the aim and purpose of safeguarding the public from risks that might subvert social peace and harmony of Singapore. Nevertheless, Braema Mathi, the president of Singaporean human rights organisation Maruah, is worried that these registration requirements will indirectly chill and reduce the space for freedom of expression in Singapore.36 She states, “As a regulator tasked with developing the media landscape in Singapore, MDA should consider the substantive impact of its 30 Ibid. 31 Ibid. (n15). 32 M, Palatino, ‘Facing New Licensing Rules, Leading Political News Site Closes in Singapore’, http://advocacy.globalvoicesonline.org/2013/12/23/ facing-new-licensing-rules-leading-political-website-closes-in-singapore/ (accessed 14 March 2014). 33 M, Palatino, ‘Singapore Website Goes Offline Due to Licensing Woes’, http://thediplomat.com/2013/12/singapore-website-goes-offline-due-tolicensing-woes/ (accessed 14 March 2014). 34 D, Reimold, ‘Singaporean government bureaucracy effectively closes news site’, http://www.poynter.org/latest-news/top-stories/234307/singaporean-government-bureaucracy-effectively-closes-news-site/, 2013, (accessed 25 Feb 2014). 35 Ibid. (n9). 36 Ibid. (n32).

Regulating the Internet

decisions, not just its own substantive intent.”37 Human Rights Watch also stated that this new licensing policy “casts a chill over the city’s robust and free-wheeling online communities,” and serve to limit Singaporeans’ access to independent media.38 MDA insists, in response, that the implementation of the policy seeks to simply prevent foreign interests from manipulating the media, and that censorship is not the intent.39 While it is safe to say that these regulations are targeted at online news providers with a sizeable audience, it would not have a large impact on them. Rather, it would pose as a problem for amateur sites, as they have to worry about growing and incurring additional costs if they reach a sizeable market. In relation to online discourse, while some say it is an attempt on part of the government to increase censorship and restrict alternative views, others call it an effort to make online discourse more civil. WHAT DOES THE FUTURE HOLD? Freedom of expression in Singapore has never been held to be an absolute right; rather, it is one that is mostly outweighed by the democratic ideals of security, public order and morality. As traditional news providers have always been subject to strict regulations in Singapore, many turn to the domain of the Internet to exercise their right to free speech. MDA justified the introduction of these rules as giving parity to frameworks governing traditional and online news sites, and rightly so – in a “conservative” manner by applying traditional media regulations to new media regulations. However, the vagueness, uncertainty and wide discretion given to authorities in the implementation process of these new regulations seems arbitrary and worryingly, potentially begets abuse by the MDA, their intent being masked by aforementioned impact of the regulations.

37 38 39

Ibid. (n34). Ibid. (n1). Ibid. (n32).

Hilary M Rupawalla

across the world, we help clients overcome legal challenges and meet their business goals every day. Make Your Move We recruit only the highest calibre candidates, both in terms of academics and interpersonal skills. We value diversity, originality and creative thinking, and put a strong emphasis on client service, entrepreneurship, leadership and teamwork. In Singapore, we offer a two-week summer vacation scheme; students who complete the vacation scheme are eligible to apply for an English law training contract in Singapore. In London, we offer two summer vacation schemes, each lasting two weeks, as well as a limited number of training contracts with an annual intake of approximately 20 trainees. For more information or to apply for one of our vacation schemes please visit www.lw.com ÂŠ Copyright 2014 Latham & Watkins. All Rights Reserved.

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THE CHEMICAL WEAPONS CONUNDRUM a worldwide reaction that the regime’s use of conventional weapons did not. Is there something especially morally objectionable about using chemical weapons, or is this just an example of the West’s moral inconsistency?

by Sean Poh University of Manchester

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The Chemical Weapons Conundrum

INTRODUCTION ‘They couldn’t smell it, see it coming and ‘wham,’ next thing you know they’re in convulsions, frothing at the mouth and they’re dead’.1 Such were the words of Charles Blair, a senior fellow at the Federation of American Scientists, as he offered a morbid illustration of the horrific effects nerve agents had on Syrian civilians last August. Though prima facie morally repugnant to the most of us, the arguments against the use of chemical weapons cripples vis-à-vis the equally fatal consequences of conventional weapons. After all, Blair qualifies his aforementioned description to be ‘terrible - but no more terrible than all the other wars’.2 For such reasons, some have described the US’ push – backed by France and the UK – for military intervention against Bashar alAssad’s regime as ‘breathtaking hypocrisy’3 and representative of the West’s moral inconsistency for failing to stop a civil war which has claimed more that 140,000 lives4 since March 2011. That being said, I believe the indiscriminate nature of chemical weapons and the unnecessary suffering they cause more than justifies the greater moral concern over the use of such weapons. Notwithstanding allegations of the West’s dubious moral credibility and illegitimate motives for wanting to intervene in Syria, there exists above all a moral imperative to prevent the further proliferation of chemical weapons. Before exploring the principles of the law of armed conflict and the moral arguments made against chemical weapons, it would first be useful to set out the prevailing legal position on the issue. A cursory account of the history of chemical weapons use will also enhance our understanding of the long-standing taboo against chemical weapons. Only against such a backdrop can we fully appreciate any arguments put forth. OF HISTORY & HORROR: UNDERSTANDING THE LEGAL LANDSCAPE In 1915, the world witnessed blood ‘gargling from the frothcorrupted lungs’5 of French soldiers in the first large-scale chlorine gas attack by the Nazis. As the 1899 Hague Declaration6 had been ignored in WWI, the 1925 Geneva Gas Protocol sought to restate the prohibition of asphyxiating gases, chemical and bacteriological weapons as methods of warfare. Allowing history to be our guide, it is obvious that the 1925 Protocol too had failed. WWII saw the unrestrained deployment of chemical weapons such as the Imperial Japanese Army’s use of blister agents against Chinese troops and more infamously, the German’s use of Zyklon B as part of its genocide programme during the Holocaust. Needless to say, much of the 20th century 1 Tom Blackwell, ‘The Immoral, Silent killer: Why Chemical Warfare Instills in People a Fear that Conventional Attacks Do Not’ National Post (Canada, 30 August 2013) <http://news.nationalpost.com/2013/08/30/why-chemical-warfare-instills-in-people-a-fear-that-conventional-weapons-do-not/> accessed 14 March 2014. 2 Ibid. 3 Editorial, ‘Breathtaking U.S. Hypocrisy on Chemical Weapons’ (Washington’s Blog, 4 September 2013) <http://www.washingtonsblog. com/2013/09/breathtaking-u-s-hypocrisy-on-chemical-weapons.html> accessed 14 March 2014. 4 Noah Rayman, ‘Report: More Than 146,000 People Killed in Syrian Civil War’ TIME (13 March 2014) <http://time.com/24077/syria-death-toll/> accessed 14 March 2014. 5 Wilfred Owen, Dulce Et Decorum Est, written 8 October 1917 to March 1918. 6 The Hague Declaration (IV,2) Concerning Asphyxiating Gases (29 July 1899).

post-WWII has also been plagued by chemical weapons use. The recovery of German artillery shells during the Cold War sparked the former allies’ research efforts into nerve agents while the Iraq-Iran war saw the gruesome use of mustard gas by Saddam Hussein in the Kurdish town of Halabja which allegedly claimed over 5,000 civilian lives.7 At the turn of the century, the twin sarin gas attacks in Japan by cult organization Aum Shinrikyo ‘re-focused international attention on the potential use of chemical weapons by terrorists, and on the dangers posed by chemical weapons’, culminating in renewed international cooperation evidenced by 165 signatories to the 1993 Chemical Weapons Convention before it came into force in April 1997.8 Accordingly, the Convention prohibits the production, use, stockpiling or transfer of chemical weapons alongside the need to destroy pre-existing inventory and production facilities.9 With 190 consenting State Parties10 and a fully functioning implementing organization11 actively striving to augment its objectives, it is no wonder why the Convention is ‘widely believed to be the most successful disarmament treaty in history’.12 Treaties aside, state practice clearly establishes the prohibition of chemical weapons to be part of customary international law. Numerous UN Security Council resolutions13 and military manuals14 have repeatedly condemned the use of chemical weapons in international armed conflict. More germane to our issue at hand, it was also held in the Tadic case that ‘there undisputedly emerged a general consensus in the international community on the principle that the use of [chemical] weapons is also prohibited in internal armed conflicts’.15 Having established that chemical weapons are legally frowned internationally, we now shift our focus to the reasons as to why, in my opinion, they are morally more objectionable than conventional weapons. A preliminary point to note at this juncture would be that although objections can be made to the different types of moral reasoning discussed below, it is not my intent to provide a substantive evaluation of each form of moral reasoning. The sole purpose here is to highlight that chemical weapons are morally objectionable, regardless of one’s chosen moral theory. 7 Editorial, ‘1988: Thousands die in Halabja Gas Attack’ BBC On This Day: 16 March 1988.<http://news.bbc.co.uk/onthisday/hi/dates/stories/ march/16/newsid_4304000/4304853.stm> accessed 17 March 2014. 8 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, United Nations Treaty Collection <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-3&chapter=26&lang=en> accessed 18 March 2014. 9 Fundamental Provisions, Chemical Weapons Convention, Organisation for the Prohibition of Chemical Weapons <http://www.opcw.org/chemical-weapons-convention/about-the-convention/fundamental-provisions/> accessed 18 March 2014. 10 Ibid. 11 The Organisation for the Prohibition of Chemical Weapons (OCPW). 12 The Polish Institute of International Affairs, ‘In the Shadow of Syria: Review of the Chemical Weapons Convention’ Policy Paper No. 22 (70) (July 2013). 13 See UN Security Council Resolutions 582 (1986), 598 (1987), 612 (1988) and 620 (1988). 14 International Committee of the Red Cross (ICRC), Practice Relating to Rule 74: Chemical Weapons, Customary IHL <http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule74> accessed 18 March 2014. 15 Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, ICTY Appeals Chamber, 2 October 1995 [124].

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Sean Poh

OF COWARDICE & CRUELTY: THE PRINCIPLE AGAINST UNNECESSARY SUFFERING ‘Men sprawled on a tile floor, shirtless and convulsing. Children, too, seemingly unable to control their shaking and flailing. Panic and screams in the background’.16 Such was the scene in hospitals across Damascus following the deadly attack of the nerve gas sarin in Syria. As nerve agents inhibit enzymes responsible for nervous transmission, muscle paralysis and a shutdown of one’s respiratory functions gradually leads to death akin to that of dry drowning. Blood agents such as hydrogen cyanide inhibit functioning of enzymes found in our blood, leading to increased heart rates, convulsions and respiratory failure. Blistering agents such as mustard gas causes severe tissue damage and blindness ultimately leading to death from poison-induced lung injuries. Although what has been described merely represents three of nine types of chemical agents the OPCW17 has identified, it aptly illustrates the grisly truth that chemical weapons generally produce a slow and excruciatingly painful but inevitable death. On this note, academics such as Stephen Walt argue that it does not matter whether conventional or chemical weapons are used because ‘dead is dead no matter how it is done’.18 However, I beg to differ. While conventional weapons such as bullets and bombs are equally capable of causing prolonged suffering and painful deaths, they often bring about instant demise. On the other hand, the use of chemical weapons, even when administered at lethal dosages, hardly results in a ‘clean’, instantaneous death. As Professor Cameron elucidates, chemical agents represent ‘a particularly horrible way of killing people’.19 Of the principles that govern the law of armed conflict, the principle of humanity is relevant here. This principle provides that means and methods of warfare that cause unnecessary suffering or superfluous injury must be avoided. Having long been accepted as a fundamental rule of international humanitarian law, it has found its way into several international agreements regulating the conduct of armed conflict. The 1868 St. Petersburg Declaration, Article 23(e) of the Hague Regulations and Article 35(2) of AP 120 are prime examples. The ICJ21 in its Nuclear Weapons Advisory Opinion has also identified the principle to be one of two22 ‘cardinal principles constituting the fabric of humanitarian law’.23 Against this backdrop, it is my opinion that there is nothing morally inconsistent about banning chemical weapons but not conventional weapons. The issue here is that of unnecessary 16 J. Tapper & M. Castillo, ‘Videos Show Glimpse into Evidence for Syria Intervention’ CNN (8 September 2013) <http://edition.cnn.com/2013/09/07/ politics/us-syria-chemical-attack-videos/> accessed 18 March 2014. 17 Types of Chemical Agents, Organisation for the Prohibition of Chemical Weapons (OPCW) <http://www.opcw.org/protection/types-ofchemical-agent/> accessed 18 March 2014. 18 Stephen M. Walt, ‘Does it Matter if Assad Used Sarin?’ Foreign Policy (26 April 2013) <http://www.foreignpolicy.com/posts/2013/04/26/does_it_ matter_if_assad_used_sarin> accessed 14 March 2013>. 19 Tom Blackwell, ‘The Immoral, Silent killer: Why Chemical Warfare Instils in People a Fear that Conventional Attacks Do Not’ National Post (Canada, 30 August 2013) <http://news.nationalpost.com/2013/08/30/why-chemical-warfare-instills-in-people-a-fear-that-conventional-weapons-do-not/> accessed 14 March 2014. 20 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 21 International Court of Justice. 22 The second principle being the principle of discrimination. 23 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1CJ Reports 1996, p. 226 [78].

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suffering and not suffering per se. In determining what suffering is unnecessary, the principle of military necessity and proportionality will be useful in answering this question. As Turns explains, ‘if proportionality is the fulcrum of that equation and humanity is one side of the balance, then military necessity is the other’.24 Assuming the only permissible objective of war is to weaken the enemy’s military forces,25 it is not far-fetched to say that conventional weapons provide adequate means to such an end. More importantly, it does so without the inhumane torment of chemical weapons described above. Here, taking on a virtue theorist’s point of view would reveal an important aspect of what Walzer calls the ‘moral equality of soldiers’.26 Of the many moral principles a soldier adheres to, the notion of military honour sticks out like a sore thumb. Needless to say, there is nothing honourable in subjecting your adversaries to unnecessary suffering. Neither is gassing your entrenched and unsuspecting enemies a way to display Aristotelian virtues of chivalry and mercy. In the same vein, since a weapon’s military effectiveness largely dictates its necessity in an army’s arsenal, it can be further argued that chemical weapons are not very useful since most armies are CBRND-trained27 and would be adept at defending against chemical attacks. Thus, any utilitarian argument premised on the ability of chemical weapons to bring wars ‘to a speedy conclusion’28 by inflicting mass military casualties does not hold water. OF TERROR & TYRANNY: THE PRINCIPLE OF DISCRIMINATION The second main objection to be made would be that chemical weapons are indiscriminate and an inherent threat to civilians. The rapid effect of chemical reactions coupled alongside the fact that most chemical agents are odourless and colourless often mean that one will have little or no time to react to such attacks. The lethality of chemical agents is further augmented by efficient delivery systems via explosives or aerodynamic dissemination which allow for widespread and quick deployment of such weapons. For these reasons, it is very difficult or almost impossible to control who are at the receiving end of such attacks and exactly ‘why scores of ordinary civilians collapsed, choked and died on a relatively cool August day on the outskirts of the Syrian capital Damascus, without knowing what had hit them’.29 Like the principles of humanity and military necessity, the principle of discrimination is also rooted in treaty and customary law. Article 48 of AP I sets out that parties to a conflict ‘shall at all times distinguish between the civilian 24 David Turns, ‘Military Necessity’(Oxford Bibliographies) <http:// www.oxfordbibliographies.com/view/document/obo-9780199796953/obo9780199796953-0008.xml> accessed 19 March 2014. 25 The preamble to the 1868 St. Petersburg Declaration states: “The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”. 26 Michael Walzer, Just War and Unjust Wars (4th edn, Basic Books 2006) 34. 27 Chemical, Biological, Radiological and Nuclear Defense (CBRND). 28 In protest of the Declaration of St. Petersburg which sought to codify the rules of war, the former Prussian Chief of Staff, General von Moltke suggested that “the greatest kindness in war is to bring it to a speedy conclusion” (1880). 29 Diana Fong, ‘After Syria: Why the Chemical Weapon Sarin is an Invisible and Indiscriminate Killer’ Deutsche Welle (2 October 2013) <http://www. dw.de/after-syria-why-the-chemical-weapon-sarin-is-an-invisible-and-indiscriminate-killer/a-17124208> accessed 23 March 2014.

The Chemical Weapons Conundrum

population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives’. More specifically, Article 51(2) of AP I sets forth that ‘civilian populations…as well as individual civilians shall not be the object of attack’. Furthermore, the International Court has emphasised that it is an ‘intransgressible principle of international customary law’ not to ‘use weapons that are incapable of distinguishing between civilian and military targets’.30 Notions of humanity and virtue ethics once again underscore such legal rules. As Walzer elucidates, killing innocent civilians ‘appears wanton, unchivalrous, dishonourable, brutal or murderous’.31 Needless to say, a deontological treatment of this issue would leave us on the same page as John Kerry: ‘the indiscriminate slaughter of civilians, the killing of women and children and innocent bystanders by chemical weapons is a moral obscenity. By any standard, it is inexcusable’.32 On this note, a consequentialist could suggest that mass civilian casualties may weaken the enemy’s will to fight, thus shortening the war for good. However, it is my opinion that this proposition is weakened insofar as the principle of reciprocity generates hatred and revenge in the opposing camp. In fact, history has shown that killing civilians is not in any way effective in bringing conflicts to an expedited end - massive civilian casualties caused by Coalition air strikes during the First Gulf War failed to deter Saddam; neither has the death of hundreds of thousands in Syria hastened the restoration of peace in the Middle East republic. Citing Pape33 on strategic bombing, Shue concurs that attacks on civilians and civilian targets have ‘never been a decisive factor in any military victory’.34 Even if one were to insist on accepting such poorly premised utilitarian arguments, Kant’s categorical imperative to ‘act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simple as a means, but always at the same time as an end’35 serves as a deontological objection to attacking civilians as a means to hasten the resolution of a conflict. A MORAL IMPERATIVE: DEFENDING THE DOUBLE STANDARD When President Obama declared that the use of chemical weapons crossed a ‘red line’ which may necessitate military intervention,36 critiques, for various reasons, have been quick to decry the West’s moral authority in weighing military options against Assad’s regime. Firstly, it seems morally inconsistent to only object to the use of chemical weapons when atrocities 30 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1CJ Reports 1996, p. 226 [78]-[79]. 31 Michael Walzer, Just War and Unjust Wars (4th edn, Basic Books 2006) 43. 32 ‘Text of Kerry’s Statement on Chemical Weapons in Syria’ The New York Times (26 August 2013) <http://www.nytimes.com/2013/08/27/world/ middleeast/text-of-kerrys-statement-on-chemical-weapons-in-syria.html?_ r=0> accessed 10 March 2014. 33 Robert A. Pape, Bombing to Win: Air Power and Cohesion in War (Cornell University Press 1996). 34 Henry Shue, ‘Bombing to Resue?: NATO’s 1999 Bombing of Serbia’ in Deen K. Chattterjee and Don E. Scheid (eds), Ethics and Foreign Intervention (Cambridge University Press 2003) Chapter 6, 98. 35 Immanuel Kant, Grounding for the Metaphysics of Morals (1785) translated by James W. Ellington (3rd edn, Hackett Publishing 1993) 30. 36 Josh Levs, ‘Syria ‘Red line’ Debate: Are Chemical Weapons in Syria Worse than Conventional Attacks?’ CNN (28 August 2013) <http://edition.cnn. com/2013/08/27/world/meast/syria-chemical-weapons-red-line/> accessed 14 March 2014.

committed using conventional weapons have been ongoing since the Syrian civil War started. On this note, it has been argued that strategic self-interests are at the core of moralistic arguments against chemical weapons. Tierney suggests that ‘powerful countries like the United States cultivate a taboo against using WMD partly because they have a vast advantage in conventional arms’.37 Secondly, it seems morally hypocritical for the West to be denouncing the use of such weapons given its own history of chemical weapons use. Agent Orange was used both by the British and US military as part of its herbicide warfare programme during the Vietnam War. CIA documents have also revealed that US intelligence was responsible for pinpointing Iranian targets when it was clear that Saddam Hussein was planning to carry out one of the worst chemical attacks in history.38 Notwithstanding the merits of such claims, I am of the opinion that these issues, though poignant and bearing great emotional appeal, merely serve to distract us from the plain truth that chemical weapons per se are morally abhorrent. Here, it is imperative to remind ourselves of the crucial distinction between jus ad bellum and jus in bello. Any attempt to reveal Western moral inconsistency as a response to their push for humanitarian intervention merely seeks to question whether they have a legitimate right to war. Even so, questioning a state’s moral credibility and mixed motives fails to render an otherwise justified intervention unjustified. On the other hand, the view that chemical weapons should remain prohibited at all costs stems from the absolute need to advocate the right conduct in war. With Russia as one of Assad’s most fervent international backers and China’s continued reluctance to support any US-led resolution, it is unfortunate that ‘the moral imperative of taking action has fallen to the US’.39 In this regard, a blanket ban on all kinds of weapons clearly represents nothing but a utopian dream. Thus, I am accordingly fully committed to defending the double standard granted to chemical weapons. In addition to the moral objections explored above, the principle of limitation further justifies a categorical ban on chemical weapons to ‘allow countries to pursue just wars while providing some limitation on the suffering and collateral damage induced in those wars’.40 After all, it is meaningful to remind ourselves that ‘war is still, somehow, a rule-governed activity, a world of permissions and prohibitions – a moral world…in the midst of hell’.41

37 Dominic Tierney, ‘Syrian Citizens Better Hope They Die in the Right Way’ The Atlantic (4 December 2013) <http://www.theatlantic.com/international/archive/2012/12/syrian-civilians-better-hope-they-die-in-the-rightway/265848/> accessed 22 March 2014. 38 See Shane Harris and Matthew M. Aid, ‘Exclusive: CIA Files Prove America Helped Saddam as He Gassed Iran’ Foreign Policy (26 August 2013) <http://www.foreignpolicy.com/articles/2013/08/25/secret_cia_files_prove_ america_helped_saddam_as_he_gassed_iran> accessed 16 March 2014. 39 Steve Caplan, ‘Syria Chemical Attacks: When Science takes a Back Seat to Morality’ The Guardian (2 September 2013) <http://www.theguardian. com/science/occams-corner/2013/sep/02/syria-chemical-weapons> accessed 12 March 2014. 40 Owen Schaefer, ‘In Defense of the Double Standard for Chemical Weapons’ (Practical Ethics, (University of Oxford 28 August 2013) <http:// blog.practicalethics.ox.ac.uk/2013/08/in-defense-of-the-double-standard-forchemical-weapons/> accessed 10 March 2014. 41 Michael Walzer, Just War and Unjust Wars (4th edn, Basic Books 2006) 36.

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CLOSING CONSIDERATIONS Almost a century has passed since the 1915 barbaric gassing of French soldiers at the Battle of Ypres. In the last hundred years, mankind has indeed come a long way in recognising the immoral and evil that is chemical weapons. As we find ourselves at the moral crossroads once again, it is crucial for the future of humanity that we make the right decision. What will the world be like if we allowed anti-Western sentiments to hinder all the progress we have made in proscribing chemical weapons? Are we willing to condone something obviously morally objectionable for the sake of moral credibility? After all is said and done, the answers to these questions are intuitively clear to me.

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Photo Credit: Metteo Parrini https://www.flickr.com/photos/remuz78

THE GOOD SAMARITAN: MERCY AND THE LAW The notion of mercy is often met with unease in the context of the law. Indeed, academics such as R.A. Duff have spoken of it as being external to the core of the criminal law. This article argues that, on the contrary, mercy is not only appropriate to exercise legally, but is also internal to the logic of justice, punishment and sentencing.

by Stephanie Chew University College London

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Stephanie Chew

The relevance of mercy in the practice of law, particularly in sentencing procedures in the criminal law, is inevitably a controversial one. For while we may relate being merciful with being virtuous, compassionate, or loving to our fellow human beings, one may equally question the value of such concepts when it comes to punishing offenders. Indeed, perhaps it is in part mercy’s religious undertones – the biblical good Samaritan, or Jesus and the taxpayer, that have in part perpetuated this perspective and our treatment of it with careful suspicion. To what extent is it appropriate or internally relevant to the criminal law to sentence offenders more leniently (that is, less than what they actually deserve for the particular offence) on the grounds of mercy? What are the appropriate grounds of mercy and where does it stand in relation to the criminal law? Nevertheless, while Duff acknowledges that there are occasions whereby it is appropriate to exercise mercy in the law (particularly in meting out punishment in the context of the criminal law), he remains of the opinion that mercy is external to the core of the criminal law, an intrusive voice that appears from without when there are relevant considerations that justify its exercise1. It may seem immediately intuitive to many that Duff ’s conception has its merits; after all, if the (or at least the main) purpose of the criminal law is to punish, and in turn punishment is based on the idea of retribution and just desert – it seems that mercy’s exercise of benevolence interferes not only with legal certainty but offends the strict principle that an offender should simply get what he deserves. If both A and B committed a heinous crime –the rape and murder of a child – but A is suffering from a debilitating illness that has reduced his remaining lifespan to an estimated six months while B is perfectly healthy at the time of sentencing, to what extent can we say that it is fair or just for A to escape full punishment, particularly for a circumstance that may have no bearing whatsoever on his own feelings of guilt or remorse for his crime? Indeed, sickness and ill-health is often cited as a ground for mercy, but may nevertheless appear to be the exercise of leniency grounded on reasons that in no way diminish the severity of the offence or the culpability of the offender. Yet this conception confuses mercy, for indeed, when duly exercised, the reasons mercy generates for leniency precisely do not impact or in any way reduce what the offender actually deserves. I will be seeking to defend the position that, contrary to Duff ’s exposition, mercy’s rightful place is within the criminal law, and indeed is a fundamental part of the inherent logic of criminal punishment. Such issues beg the question of what mercy is and how it relates to punishment and desert. Furthermore, we must ask ourselves what indeed, the ‘aims and values of the criminal law’ are and how these are relevant to the role of mercy and clarifying whether a factor is internal or external to the law. With this understanding in hand, we may also consider how Duff ’s key arguments in favour of this externalist perspective may be overcome. One may query why any of this matters if it does not lead to a substantive difference in practical outcome: Perhaps its importance lies in helping us understand the role of legal institutions and sentencers, and what is relevant, valid and good for them to take into account. If mercy is indeed an external intruder (albeit a rational one), then it is not a fundamental 1 R.A Duff, “The Intrusion of Mercy.” (2007) Ohio State Journal of Criminal Law 4 361-387.

or inherent part of the logic behind sentencing. Yet if mercy is indeed internal, as I will seek to show, then we begin to understand its relevance, interconnectivity and bearing on other countervailing considerations in the realm of punishment. MERCY AND RETRIBUTIVE JUSTICE It is best to begin with a clarification of what exactly we mean by mercy. Mercy, in the context of our discussion, is concerned with the treatment of those who deserve punishment (particularly in the criminal law). It is a source of reasons for punishing an offender more leniently than what he actually deserves, and is based on a concern for his welfare. On this understanding of mercy, not all forms of leniency are necessarily an exercise of mercy. Rather, mercy offers genuine reasons for the appropriate exercise of leniency in punishment. For example, one may be lenient by mere whim or fancy – much like the Duke in Shakespeare’s Measure for Measure with his machoistic perceptions that exercising (arbitrary) leniency would inflate his subjects’ opinion for him. One could also be lenient for reasons that are not grounded upon a concern for the offender’s welfare, but rather the welfare of others – for example, one may choose to be lenient towards a convicted thief if imprisoning him for the full amount he deserves is liable to make his family suffer tremendously as he is the sole breadwinner. In the same vein, one could be lenient in order to evade a terrible outcome that is bound to happen if the offender were punished – for example, a credible and genuine threat that an airport will be bombed and thousands of innocent people killed if a particular terrorist is jailed. Furthermore, mercy is to be distinguished from a lack of culpability – for instance, those who are criminally insane or who successfully raise the partial defence of provocation or diminished responsibility to murder. Such offenders are from the outset to be assessed differently from independent and fully responsible agents – their lack of culpability stems from either a diminishment in mental powers or a diminishment in will that results in their treatment as less than fully autonomous and responsible individuals. Thus a more lenient or different mode of punishment for an insane killer is not an exercise of mercy, but rather a recognition of the fact that he is not to be equated with an agent fully equipped with all his mental faculties when killing. Mercy appears in contrast with punishing wrong-doers to the extent that they deserve as a way of communicating blame for that wrong – the concept of retributive justice.2 Indeed, mercy can be understood to be parasitic on retributive justice, for there cannot be reasons to punish more leniently than what a wrong-doer deserves unless we first know what a wrong-doer’s just deserts are. Nevertheless, even if there are reasons for the exercise of mercy, this does not necessarily correspond to the wrong-doer having a right to it – in this way we can understand mercy as an imperfect duty. There may be a duty on sentencers to exercise mercy if relevant considerations are present, but offenders may not claim to have a right to mercy. While we speak of mercy in the particular context of the law and its punishments, it should not be thought that mercy can 2 John Tasioulas, “Where is the Love – The Topography of Mercy” in Cruft, R and Kramer, MH and Reiff, MR, (eds.) Crime, Punishment, and Responsibility: The jurisprudence of Antony Duff (OUP 2013).

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The Good Samaritan: Mercy and the Law

only be shown in such an instance. Indeed, even within the law, there may be areas where it is not appropriate to take into account considerations of mercy because the fundamental initial question is not to do with retributive justice or just desert. Thus, for example, when a trustee breaches his fiduciary duty by selling trust property away in an unauthorized transaction, the law is not so much concerned with punishing him as it is with making good the beneficiary’s loss. Hence courts speak in the language of falsification and reparation as remedies for restoring the beneficiary’s position to what it would have been without the breach of trust. While the effect of falsifying the account may be to force the trustee to make good any disparities by personally paying into the trust fund, which some may say is a form of punishment, the basic idea behind the remedy is the compensation of the beneficiary rather than meting out a deserved punishment to the trustee in breach. Where the idea of retributive justice is not fundamental, there is no room for the appropriate exercise of mercy; not only must mercy provide genuine reasons for leniency, the concept is in itself dependent on and parasitic upon there being an idea of retributive justice. Furthermore, there are many wrongs for which the law provides no remedy – and in our day-to-day dealings and interpersonal relationships with others it is possible that it may be appropriate for one to exercise mercy. For example, if one’s friend severely betrays you, one might think that an appropriate response would be to scold him and communicate your anger and hurt, perhaps cut off contact with your offending friend for a period of time. Yet, if upon going to his house to communicate this to him, you discover that his close family relative has suddenly passed away or that he has been diagnosed with a terminal illness, one would hope that as a good friend you would be willing to put aside the offence he has caused to you – not because he deserves the punishment any less, but because there are relevant considerations and reasons for you to be more lenient (that is, merciful) towards him in light of his personal sufferings.3 With this understanding of mercy and the contrast between mercy and retributive justice in mind, we now turn to considering the aims and values of criminal law and punishment. AIMS AND VALUES OF CRIMINAL LAW Duff speaks of mercy as being external to the aims and values of criminal law – but what exactly are these aims and values? Certainly the criminal law has a multiplicity of aims and values, many of which are interconnected. For example, the criminal law may have the aim of procedural protection – to let individuals within its jurisdiction know in advance what the penalties for their actions may be. It may be concerned with generally protecting the rights of citizens – ensuring that they are safeguarded from having crimes committed against them. Equally, it may be concerned with matters of universal justice – Here we must make a clear distinction from retributive justice. It is misleading to equate criminal law with the sole attribute or value of retributive justice – Indeed, the simple example of its concerns with procedural protection already go some way in demonstrating that the criminal law has a plurality of issues to deal with. But more specifically, in the context of meting out justice, criminal justice should not be conflated with retributive 3 R.A Duff, “The Intrusion of Mercy.” (2007) Ohio State Journal of Criminal Law 4 361-387.

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justice, but rather it is better understood as universal justice.4 We can understand universal justice, on the Aristotelian perspective, to be the whole of interpersonal morality that is aptly legalized or appropriate for being within the boundaries of law.5 Thus, for example, adultery may have to do with interpersonal morality but (since we are no longer living in the Middle Ages), as a part of intimate relationships, is not suitable for being dealt with by the law. Whether punishment is the best or only way of meting out criminal justice is in itself a highly complicated matter; even if we were to say that punishment is a primary or main way to achieve this, it is not clear that punishment is unique to the criminal law. Nevertheless, rather than expanding on the complications that punishment as a subject in itself raises, we will accept that punishment is one of the chief modes in which the criminal law seeks to achieve criminal justice, and focus on the relevance of mercy to punishment in the pursuit of criminal justice. Thus, when Duff speaks of mercy being external to the criminal law, perhaps this is best understood as external to the fundamental considerations of punishment in the criminal law, in the context of achieving universal, or criminal, justice. It is worth noting here Duff espouses a communicative theory of punishment, which emphasizes that the infliction of punishment (hard treatment in the context of the criminal law) as censure (or blame) for wrongdoing is justified so far as it is required or permitted by retributive justice.6 Thus, “there is a sufficient but defeasible reason to punish to the extent that doing so communicates the level of censure the wrong-doer deserves in virtue of the gravity of the wrong that he has committed.”7 On such an understanding of punishment, retributive justice plays a highly central role. While the reasons for punishing to the extent that the offender deserves may be defeasible, the fact remains that the infliction of punishment required by retributive justice is in itself a sufficient justification. On such a basis, considerations such as the offender’s repentance or difficult personal situation that may warrant the exercise of mercy are necessarily extrinsic. Nevertheless, as I have noted above, it is not necessary or indeed desirable that punishment is chiefly concerned with retributive justice – rather, I have taken the stand that it should be a matter of universal, or criminal justice. We then come to understand retributive justice as a subset of criminal, or universal justice rather than as an equivalent. Thus, when we say one of the substantive aims of the criminal law is to achieve justice, we refer to universal justice rather than merely retributive justice. Under such a framework, it becomes clear that retributive justice may be but one of the factors that is relevant, perhaps even the main or dominant one, but not necessarily the singular determinant principle. Just as the law encompasses within itself both the common law and equity, so it is logically possible, perhaps even probable that just desert need not be the sole aim of the criminal law. We can thus understand the criteria of whether mercy is internal to the criminal law as twofold: Firstly whether it helps to serve 4 Ibid. 5 Ibid. 6 R.A. Duff, Punishment, Communication, and Community. (OUP 2001). 7 John Tasioulas, “Where is the Love – The Topography of Mercy” in Cruft, R and Kramer, MH and Reiff, MR, (eds.) Crime, Punishment, and Responsibility: The jurisprudence of Antony Duff (OUP 2013).

Stephanie Chew

the aim of criminal (or universal) justice, and secondly, whether it is suitable for being something within the boundaries of law (given that such criminal or universal justice is only to do with the part of interpersonal morality that is aptly legalised. With these criteria in mind, we thus can evaluate how mercy is internal to the criminal law rather than external. ASSESSING INTERNALITY Deserved punishment does not equate with justified punishment Duff appears to take retributive justice as the core value of punishment in the context of the criminal law. This does not mean that Duff understands retributive justice as the sole value of punishment, but nevertheless it places a qualifier on the other factors that he thinks can be internal to the logic of punishment. Other considerations must be related to retributive justice, and they must not license punishing offenders either more or less severely than what retributive justice requires.8 On this account, mercy is necessarily external to the logic of punishment: It may well be relevant but it is not inherently part of how punishment is justified. Nevertheless, if we accept that retributive justice is not equivalent to criminal justice, countervailing considerations may be a part of punishment’s inherent logic. The punishment that satisfies retributive justice need not be equivalent to the punishment that satisfies the demands of criminal justice, precisely because the two are not one and the same. Rather than equating retributive justice with criminal justice in the context of punishment, then, we can understand the former as the core value on which punishment is founded. Tasioulas suggests that we can understand retributive justice as supplying a number of propositions: (a) a finding of desert is a sine qua non for the infliction of punishment; (b) desert can be a sufficient reason for punishment and, in the case of sufficiently grave wrong-doing, an obligation-generating reason; and (c) desert sets an upper limit to how severely someone may be punished.9 Thus, the law should and can only punish when an offender deserves punishment, but never beyond the extent of what the offender deserves. However, this is not the end of the matter– the maximum punishment (as would be what retributive justice indicates) is not necessarily the punishment that best satisfies the demands of universal justice. Given that retributive justice is an indicator of the maximum acceptable punishment, any other relevant considerations would go towards either diminishing the quantum of this sentence or, perhaps modifying its mode; not because it is any less deserved, but because of genuine reasons that motivate mercy. Indeed, an assessment of what punishment best satisfies universal justice cannot be complete if we insist in every instance that the maximum acceptable punishment is all that needs to be considered, without taking into account genuine countervailing considerations. Mercy differs from other extraneous considerations that may warrant leniency as it is intrinsically connected with the aims and values of the criminal law – in particular punishment as 8 9

Ibid. Ibid.

a way of achieving criminal justice. Its connection can be seen through the fact that its existence is dependent on retributive justice. While the exercise of mercy does not alter the deserved punishment (for retributive justice is in itself able to take account any appropriate alterations in what is just desert), it provides a source of reasons that are motivated by a concern for the welfare of the offender. Mercy’s intimate, dependent link on retributive justice and its concern for the welfare of the offender thus make it inherent to the logic of punishment – for the internal logic of punishment is meant to capture the justifications for meting out a sentence that falls in line with our ideals of criminal justice. Such justice is only satisfied when one has considered the internal logic for justifying a maximum punishment and relevant considerations dependent on this concept of just desert for leniency. In contrast, external considerations are generally motivated for our own or others safety or questions of utility – thus, the example of letting the terrorist escape punishment because if he is punished, many thousands will suffer. Such concerns are not connected or dependent upon the censure that he rightly deserves. Rather, they are a calculation of utility, what would be most appropriate to do (e.g. by saving the most lives) in the given situation even if it may not serve the demands of criminal justice. Indeed, one could argue that in an ideal situation, such considerations (such as the example of the terrorist) would not come into play at all precisely because they interfere with the notion of criminal justice. A show of leniency in such situations is only done to avoid worse overall repercussions, not because it is desirable to the achievement of universal justice per se. We can thus justify the internal status of mercy to the logic of punishment because it is connected to the achievement of criminal justice, which requires us to take into account not only retributive justice but the connected countervailing factors that arise after it has been decided what the relevant desert is in the case. Is mercy a suitable concept for legalisation? We consider the other criteria earlier mentioned – whether mercy is a suitable concept for legalisation. This should be distinguished from merely practical matters (for example, how horrific must an offender’s personal suffering be before a sentencer is allowed to be merciful? What is the appropriate way to show leniency and to what extent should a sentence’s quantum be reduced to reflect concern for the welfare of an offender), although these too are important. Nonetheless, what we are concerned with in this theoretical debate is whether mercy can be espoused in a manner suitable for legalization. If it is not, then this is surely an argument in Duff ’s favour for its external location – as a consideration which, from time to time, we as human beings should give in to; but not as a part of the inherent logic of criminal punishment. This is not to say that Duff thinks that the external intrusion of mercy is an irrational exercise. Rather, if mercy is not a suitably legalized concept, its rational exercise is of a form fundamentally different from the internal rationalities of criminal punishment. Yet it appears to me that mercy is indeed a suitable concept for legalisation. The exercise of mercy should not be equivocated 110

The Good Samaritan: Mercy and the Law

with the exercise of compassion, impersonal love, or charity, even though mercy can be understood to have these virtuous characteristics. Mercy’s appropriateness for legalization lies in the fact that it is a reason-generator for leniency, rather than an arbitrary expression of goodwill for the offender. Biblical leniency might have been expressed from a God towards human beings in their wicked ways, who were not in any particular way suffering or repentant or otherwise generating a reason for mercy, but this is not mercy as we understand it in our context. Mercy, for the purposes of the law, must be a source of appropriate reasons for leniency. Furthermore, it is not uncharacteristic that the law takes into account the particularized circumstances of a situation. Indeed, even in the computation of what punishment satisfies retributive justice, a court takes heed of the varying levels of severity of crime – a thief who stole a loaf of bread would arguably be punished less than one who stole a truckload of diamonds. But more importantly, this is also evident in a more general and overarching way in the role of equity in the law. Equity allows a legal official to depart from the strict application of a legal rule when this is necessary to secure a just outcome in a particular case.10 Indeed, equity allows for flexibility in the law whenever a legal rule is over-inclusive or underinclusive (for example, the equitable principle is that no wrongdoer should profit from his wrong, as embodied in Elmer’s case)11; in this way it helps to ensure universal justice that is tailored to the specific circumstances of the case.12 Indeed, one would not think of equity as being an external “distinct normative perspective” to the common law; rather, they serve complementary functions that together serve the wider purposes of the law. Analogously, we can understand mercy as one of the possible equitable considerations that help to achieve universal or criminal justice in the context of punishment. Thus, not only is mercy a suitable concept for legalization, because it is not arbitrary but a source of appropriate reasons, it fits well within the boundaries of existing legal concepts and principles. Reconsidering Duff ’s Propositions Finally, in this last section of my argument, I would like to reconsider some of Duff ’s key propositions. a) Duff suggests that mercy is not a virtue of sentencers but rather, a virtue of the human beings who fill the legal role of sentencers. Where, for example, the offender’s present suffering needs a response from the sentencer, he believes that this sort of response does not fall within the kind of communication of censure or blame for wrong-doing that punishment entails. Thus, the offender’s present suffering is not a relevant or proper consideration for the sentencer to take into account in his capacity as a sentencer. Rather, the presence of the suffering makes it inappropriate for him to take that perspective on this offender.13 Nevertheless, it is possible to reconcile his idea of communicative censure with the idea of mercy being internal to the sentencer’s deliberations. It is only problematic for mercy to figure as an internal deliberation if retributive justice is the 10 Ibid. 11 Ronald Dworkin, Law’s Empire (Hart Publishing 1995). 12 John Tasioulas, “Where is the Love – The Topography of Mercy” in Cruft, R and Kramer, MH and Reiff, MR, (eds.) Crime, Punishment, and Responsibility: The jurisprudence of Antony Duff (OUP 2013). 13 Ibid.

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sole concern of the criminal law. Yet as previously discussed, the criminal law is concerned with criminal justice, and within this mercy is an appropriate concern. Furthermore, the exercise of mercy or giving due weight to the considerations that warrant its exercise do not diminish the communication of censure or blame for wrong-doing. While, on a strict view, one may argue that only the full punishment that retributive justice demands communicates the appropriate level and extent of censure, this is surely a formalistic view. Indeed, it is characteristic of mercy that it does not serve to give a reason to diminish what the offender duly deserves –It may well be that Duff thinks that appropriate communication of censure or blame for wrong-doing can only be effectively achieved by inflicting the maximum deserved punishment, but such a perspective is to give undue weight to retributive justice without considering that mercy is internal to the logic of meting out a justified punishment and not merely a deserved one. While Duff points out that the punishment is the hard treatment, the punishment is surely also the label of the offence. Thus, the communicative function of punishment is not diminished because the classification of the offence remains the same – a murderer who has repented and given a more lenient sentence is nonetheless still someone who has committed the offence of murder. Similarly, when the Lockerbie bomber was released early as he had terminal cancer, this did not detract from the gravity of his conviction.14 One may argue that juries (where they are used) do not have to give reasons for their decisions and in that sense, the offender may not realize that mercy has been exercised towards him, thus demonstrating a lapse in the communication whereby the offender thinks he has been sentenced as heavily as duly possible, rather than having had leniency shown towards him. Nonetheless, in highlighting considerations to the jury the court has already shown to the offender that it has considered whether there are genuine reasons for the exercise of mercy. Any punishment more lenient than the maximum deserved is not communicating a lesser degree of culpability or desert on the offender; rather, it is one that helps deliver universal justice in those circumstances. b) Duff suggests that repentance, is not a matter for mercy but rather for equity. He suggests that in the case of the repentant offender, the infliction of hard treatment is no longer necessary as the communicative purpose of punishment has already been served, thus, “penal or retributive justice does not demand it”.15 Nevertheless, this seems to conflate penal justice with retributive justice – the former is criminal, or universal justice, while the latter is concerned with just desert for wrong-doing.16 Furthermore, to say that some considerations are a matter for equity rather than for mercy does not bolster Duff ’s argument; mercy and equity are closely linked in the sense that they are complementary to other aspects of the law and serve to temper it when they provide genuine reasons for doing so. Indeed, mercy 14 Fiona Trott, ‘Lockerbie Bomber Freed from Jail’ (BBC, 20 August 2009) <http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/8197370.stm> Retrieved 10th April 2013. 15 R.A Duff, “The Intrusion of Mercy.” (2007) Ohio State Journal of Criminal Law 4 361-387. 16 John Tasioulas, “Where is the Love – The Topography of Mercy” in Cruft, R and Kramer, MH and Reiff, MR, (eds.) Crime, Punishment, and Responsibility: The jurisprudence of Antony Duff (OUP 2013).

Stephanie Chew

may be a form of equity, for it is the role of equity to produce a just outcome adapted to the specific circumstances of the case.17 c) Duff also raises the example of where an offender has an extremely disadvantageous upbringing. While he is not certain such is a good reason for exercise of mercy, he suggests that in the event that we do think that sentencers can properly show mercy on these grounds, such would be allowing mercy to break through the boundaries by which criminal law defines their role as sentencers. Nevertheless, he believes that such intrusion can be justified, for the exercise of mercy is rational in that it responds to genuine normative reasons that a situation can provide. He thus claims that mercy is not an application of penal justice but rather an intrusion into the sphere of penal justice by moral concerns that it is not fundamentally concerned with.18 Thus, in the exercise of mercy one inevitably faces a conflict between the demands of one’s role as a sentencer and the demands of other, countervailing perspectives – in this sense we can understand mercy to be external. Yet this again appears to be conflating penal justice with retributive justice.

exercise of mercy, but the legal officials and sentencers who mete out punishment surely have a duty to consider it when relevant, as part of their role and as relevant and internal to the criminal law.

CONCLUSION The role, position and status of mercy as regards the criminal law may appear to be a highly abstracted discussion, yet it is one of great importance – For in understanding the due position of mercy we are better able to understand how criminal law expresses justified punishment, the factors that are relevant and worthy of consideration in sentencing, and the capacities and duties of a sentencer or legal official. Indeed, while mercy may never impose a right upon any errant offender, when considerations for its exercise are present, it may impose a duty on sentencers to act mercifully – thus helping to achieve criminal justice. We can understand mercy as being internal to the logic of criminal punishment from two perspectives: Firstly, because retributive justice is not the sole value at play when we consider the aim of punishment in the criminal law. On Duff ’s account, the aim of punishment is to communicate censure to the wrongdoer, and this is based on the principle of retributive justice – The offender must be punished to the extent that he deserves in order to communicate the degree of blame the law is imposing for his offence. However, this fails to take into account that retributive justice is not the same as criminal justice; rather, it is a better conception to think of retributive justice as one of the (main) elements of punishment. While communication of censure is certainly key to punishment, the exercise of mercy does not hamper this function. Furthermore, mercy is apt for legalization and as use as a legal concept. It thus appears that mercy’s relevant position is much more comfortably situated within the inherent and internal logic of criminal punishment itself. Indeed, in the words of Scottish Justice Secretary Kenny MacAskill, “Our justice system demands that judgment be imposed, but compassion be available”.19 Offenders may not ever be able to demand an 17 Ibid. 18 R.A Duff, “The Intrusion of Mercy.” (2007) Ohio State Journal of Criminal Law 4 361-387. 19 Fiona Trott, ‘Lockerbie Bomber Freed from Jail’ (BBC, 20 August 2009) <http://news.bbc.co.uk/1/hi/scotland/south_of_scotland/8197370.stm> Retrieved 10th April 2013.

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Photo Credit: Nicolas Raymond

RELOOKING MYANMAR Ibrahim called for an online â&#x20AC;&#x2DC;code of conductâ&#x20AC;&#x2122;. This article discusses the feasibility of such a proposal, and the appropriate entity to undertake this task.

by Samuel Tay University of Bristol

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Samuel Tay

INTRODUCTION

MYANMAR’S CHALLENGES

With the potential to quadruple its Gross Domestic Product (GDP) to a potential $300 billion in 2030,1 Myanmar represents an interesting prospect to multinationals globally. However, such potential is tempered by the inherent risks such as ‘uncertainties about the rule of law’2 and rising property prices. After establishing why Myanmar is a country to keep an eye on, this essay will delve into the legal developments one can expect in the years to come.

Despite the many advantages Myanmar has, there are various stumbling blocks that could hinder Myanmar’s growth. The most pressing one is Myanmar’s inability to effectively uphold the rule of law.

MYANMAR’S POTENTIAL Myanmar has the potential to transform into a regional powerhouse in the future, presenting significant opportunities across a broad range of sectors.3 According to McKinsey Global Institute’s report, if Myanmar expands the key sectors of its economy, the country can boost its economic growth to 8 per cent per annum (which is up from the 6 per cent achieved in 2012), potentially lifting 18 million people out of poverty in the process.4 Myanmar’s economic potential has thus far been complemented by the reform-minded government of President Thein Sein, which aims to promote political reconciliation, create a more liberalised democracy and establish an internationally linked economy.5 Legislation has been enacted in a bid to achieve these aims. For example, the government substantially revised the Foreign Investment Law in late 2012 and is in the midst of updating the Myanmar Companies Act.6 Apart from attempting to promote ease of investing in Myanmar, the government has tried to improve the certainty of doing business there by improving the dependability of Myanmar’s judiciary.

The rule of law is an umbrella term encompassing assorted virtues of law. At its root, the rule of law encompasses the following principles: generality, non-retroactivity, clarity, consistent application, practical possibility of compliance and constancy through time.9 The procedural nature of these principles are complemented by moral values such as, inter alia, personal freedom, freedom of expression, privacy and nondiscrimination.10 A legal system which adheres to most, if not all, of these values can be said to effectively uphold the rule of law. The rule of law is important as it is the bedrock of most modern prospering democracies. Apart from being a defence against tyranny, the rule of law creates a stable framework in which members of society can plan their affairs with certainty.11 It is this stable framework that will encourage foreign companies and governments to invest in Myanmar. There are palpable concerns about the rule of law in Myanmar. Companies and potential investors frequently cite uncertainties about the rule of law as one of the most important barriers to doing business in Myanmar.12 One index, based on perceptions prior to when reform began in earnest, ranked Myanmar 172nd out of 176 nations based on the dependability of its judiciary.13 Such uncertainty hinders the inflow of foreign investment especially from US and European businesses.14 A dependable judiciary is of paramount importance as it gives multinationals the certainty that their interests are properly secured and should disputes arise, are determined fairly.

Myanmar enjoys certain advantages as well. Firstly, as it is starting its reforms in the digital era, it can avoid the cost of the conventional bricks-and-mortar approach to sectors such as banking, healthcare, retail, education and agriculture.7 For example, doctors can provide basic healthcare and preliminary diagnostics to patients without being physically present due to video technology. Secondly, Myanmar has a large working aged population (aged 15 to 64); estimated at 46 million out of its 60 million population. Once Myanmar’s economic growth starts taking flight, there will be a significant boost to incomes across the nation. By extension, this will create a ‘consuming class’ which numbers around 2.5 million people today but could reach 19 million by 2030.8 This consuming class will be one of the key drivers of economic growth by 2030. Thirdly, its geographical location between India, China, Bangladesh and Thailand, means that it has access to huge potential markets.

In particular, there is a need to weed out corruption amongst legal officials. From accounts of people intimately involved with Myanmar’s judicial system, it appears that the majority of Myanmar’s judges are open to accepting bribes.15 Practising lawyers in Myanmar speak of having to bribe judges in order to ensure smooth procedures in court or to stand any chance of winning their cases.16 Fortunately, measures such as President Thein Sein’s anti-corruption campaign launched in December 2012 and an increase in wages for civil servants have been implemented to ameliorate the situation. If Myanmar is to truly become a regional powerhouse in the years to come, the rule of law has to be staunchly upheld. Anything less will surely delay the meteoric growth that many predict is in store for Myanmar. Myanmar’s problems are not restricted to issues regarding the rule of law. For one, property prices have been skyrocketing

1 McKinsey Global Institute, ‘Myanmar’s moment: Unique opportunities, major challenges’ (McKinsey & Company 2013). 2 Ibid at 49. 3 Ben Thompson and Nathan Dodd, ‘Myanmar: an emerging power market’ (2013) Lexology http://www.lexology.com/library/detail. aspx?g=6512bc8f-6e54-4816-a538-9ea5d1127ebc accessed 5 January 2014. 4 See 1 at 4. 5 Michael Ramirez and Yuwadee Thean-ngarm, ‘Establishing a company in Myanmar’ (2013) Lexology http://www.lexology.com/library/detail. aspx?g=f30b0612-5a30-4115-86aa-55ad67a66d3f accessed 5 January 2014. 6 Ibid. 7 See 1 at 3. 8 Ibid.

9 Lon L. Fuller, The Morality of Law (Yale University Press 1969) 10 John Alder, Constitutional and Administrative Law (8th edn, Palgrave Macmillan 2011) 132. 11 Ibid at 117. 12 See 1 at 49. 13 International Bar Association Human Rights Institute, ‘The rule of law in Myanmar: Challenges and prospects’ (International Bar Association Human Rights Institute 2012). 14 Michael Peel, ‘Western companies ‘too slow’ into Myanmar, warns adviser’ Financial Times (London, 13 November 2013). 15 Nick Cheesman, ‘Myanmar’s Courts and the Sound Money Makes’ in Nick Cheesman and others (eds), Myanmar’s Transition – Openings, Obstacles and Opportunities (ISEAS Publishing 2012) 231. 16 Kyaw Min San, ‘Critical Issues for the Rule of Law in Myanmar’ in Nick Cheesman and others (eds), Myanmar’s Transition – Openings, Obstacles and Opportunities (ISEAS Publishing 2012) 225.

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Relooking Myanmar

over the past few years. Rising property prices deter the foreign investment needed to support Myanmar’s economic growth. Due to land shortages, prices of prime office space in Yangon have risen beyond that of more developed countries in the region such as Singapore.17 Moreover, prices of land are expected to rise even further in the next few years according to presidential adviser U Aung Tun Thet.18 Such steep property prices are unsustainable in the long run and should the property ‘bubble’ burst, disastrous economic consequences will follow. Secondly, Myanmar has an inadequate infrastructure to support future growth and demand. McKinsey Global Institute estimates that if Myanmar’s economy is to achieve growth of 8 percent a year, it has to invest a further US$320 billion in its infrastructure between 2010 and 2030.19 Lastly, Myanmar has low labour productivity. The average productivity of a worker in Myanmar today is about 70 percent below that of benchmark Asian countries.20 This is due to various reasons such as a heavy reliance on agriculture (which is a low-productivity sector in most countries) and a poor education system. For all its advantages, Myanmar has to overcome these hurdles in order to truly harness its economic potential. It is evident that investors are confident that Myanmar can do so as seen by the ever-increasing inflow of foreign investment into the country. Regardless of whether Myanmar reaches its true economic potential, one thing is certain: there will be change.21 This essay will now delve into the legal developments one can expect in Myanmar and the resulting implications. LEGAL DEVELOPMENTS IN THE NEAR FUTURE Two legal developments are foreseeable as Myanmar modernises over the coming years. Firstly, there will be increased corporate work in Myanmar due to the rise in inbound and outbound investment. Secondly, the dependability and transparency of the judiciary will come under closer scrutiny as the country modernises. INCREASED CORPORATE ACTIVITY Governments and multinationals recognize Myanmar’s huge untapped potential. This is evidenced by the influx of foreign investment into Myanmar. For example, as of 31st October 2013, China has invested upwards of US$14 billion in various sectors such as power generation and mining.22 The suspension of international sanctions, the passing of the new Foreign Investment Law and the proposed update of the Companies Act has also boosted significant interest on the Mergers and Acquisitions front. Since the New Foreign Investment Law (2012) was enacted, the rate of foreign investment has increased fivefold, with foreign direct

17 Michael Peel, ‘Myanmar property prices surge as country opens up to investment’ Financial Times (London, 23 October 2013). 18 Htar Htar Khin, ‘Property prices to rise for a few more years’ Myanmar Times (15 July 2013). 19 See 1 at 6. 20 See 1 at 2. 21 Tan Soon Kim, Edwin Neo and Jesse Satria Oeni, ‘Myanmar: Opportunities in Asia’s Last Frontier Economy’ (International Enterprise Singapore 2012) 10. 22 Michael Peel, ‘Western companies ‘too slow’ into Myanmar, warns adviser’ Financial Times (London, 13 November 2013).

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investment expected to exceed US$3 billion in 2013.23 The reason for such a dramatic increase in foreign investment was due to the benefits afforded to foreign investors by the New Foreign Investment Law such as a guarantee against expropriation, a 5-year tax holiday and relief from certain custom duties.24 On the flipside, the legislation subjects foreign investors to regulatory oversight via the need to secure permission from the Myanmar Investment Commission before venturing into certain industries such as oil & gas and hard minerals.25 As Myanmar continues to modernise, increased corporate work can be expected from expanding business opportunities. Foreign investment has mainly focused on the power and oil & gas industries despite the restrictions set out by the New Foreign Investment Law, accounting for 78 percent of total investments as of 30th August 2013.26 The power sector is a top priority for the government of Myanmar as only 26 percent of Myanmar’s population has access to electricity and power cuts happen regularly.27 Myanmar’s government aims to increase capacity by 16000MW by 2030 through its master plan to cater to the growing demand for power.28 One can expect greater corporate work arising from both traditional gas-fired projects and renewable energy in the near future. In terms of the oil and gas industries, greater corporate activity can be expected across both onshore and offshore projects. Foreign investment is already prevalent in this sector as seen by the 16 onshore contracts awarded to various foreign investors on 11th October 2013.29 These figures look set to increase as another 30 offshore oil and gas exploration contracts are to be awarded sometime in 2014 with industry players ranging from established multinationals such as Shell and ExxonMobil to state-owned businesses such as PTT Exploration and Production (PTTEP) of Thailand and ONGC Videsh Limited (OVL) of India vying for them.30 As foreign investment increases in Myanmar, another development that will take place is an increase in the number of partnerships between foreign investors and domestic companies. The impact of the New Foreign Investment Law on this aspect of foreign investment depends on the industry in question. Some industries, such as the production of arms and the prospecting of jade, are prohibited from foreign investment altogether.31 However, most industries are subject to ownership or operational requirements.32 For example, large scale materials production and infrastructural projects can only be carried out in a joint venture between a foreign investor and a Myanmar citizen. Operational requirements range from fulfilling environmental impact prerequisites to a ban on Myanmar citizens gambling in foreign owned casinos.

23 Michael Ramirez and Yuwadee Thean-ngarm, ‘Establishing a company in Myanmar’ (2013) Lexology http://www.lexology.com/library/detail. aspx?g=f30b0612-5a30-4115-86aa-55ad67a66d3f accessed 9 January 2014. 24 James Finch, ‘Myanmar’s New Foreign Investment Law, Rules and Notification’ (DFDL Legal & Tax 2012). 25 Ibid. 26 See 23. 27 See 3. 28 Ibid. 29 Marc Rathbone and Jenna Ryan, ‘Myanmar: oil & gas update’ (2013) Lexology http://www.lexology.com/library/detail.aspx?g=2638ae37-8bb64093-bb7a-03f9047ed033 accessed 8 January 2014. 30 William Boot, ‘2014 Promises to be a Boom Year for Burma’s Gas and Oil Industry’ The Irrawaddy (Chiang Mai, 1 January 2014). 31 See 24. 32 Ibid.

Samuel Tay

Although foreign investors may bring increased competition for domestic companies, they also present greater opportunities for partnerships and development according to Win Aung, president of Myanmar’s main business group Union of Myanmar Federation of Chambers of Commerce and Industry (UMFCCI).33 Such partnerships and joint ventures have been sprouting across many industries. For example, Myanmar has invited foreign communications companies such as Vodafone and Singtel to create a privately run partnership with the state network operator Myanmar Posts and Telecommunications (MPT) in order to set up a country-wide mobile phone network.34 In the food and beverages industry, Coca-Cola recently launched new bottling operations at its joint-venture plant with local partner, Pinya.35 Greater corporate activity in Myanmar brings with it an increased need for legal advice which is tailored to the client’s requirements and market conditions so that clients are able to mitigate the risks involved with conducting business in the country. In particular, there is a need for advice on the ambit and operation of the New Foreign Investment Law as mentioned above. Apart from foreign companies, Myanmar-based companies will also require legal advice when they attempt to re-enter foreign markets once the relevant economic sanctions have been lifted. Law firms in Singapore are poised to take advantage of this surge in corporate activity. Local firms have been developing their strategy in Myanmar in recent years. For example, Allen & Gledhill has opened an associate law firm in Yangon36 and Rajah & Tann LLP has joined forces with Myanmar law firm NK Legal, in order to include Myanmar in its regional network.37 As these firms are familiar with the legal environment of Myanmar, they are wellpositioned to advise Singapore companies who are interested in investing in Myanmar. Also, greater corporate activity increases the chances of disputes arising. The stellar reputation of Singapore’s judiciary and its status as a leading arbitration hub in Asia makes Singapore an attractive destination for parties to settle their disputes.38 The establishment of the Singapore International Commercial Court also provides parties with an additional platform to settle their commercial disputes in accordance with principles of international commercial law.39 This inevitably means that local law firms will experience greater volume of both contentious and non-contentious work arising from Myanmar in the coming years.

fair dispute resolution mechanisms, consistent law enforcement and transparent and clear laws will be improved in stages. Fortunately, some progress has been made by President Thein Sein as mentioned above. Myanmar has also formally acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which required its courts to recognize and enforce foreign arbitral awards. This has provided foreign investors with the freedom to contract for arbitration conducted in a jurisdiction and forum of their choice, under agreed upon organizational rules and applying local or foreign law.40 However, until the latest version of the Arbitration Act (which is currently in the works) is passed, Myanmar has yet to introduce domestic legislation that gives effect to its obligations under the Convention. This means that Myanmar’s courts do not yet recognize and will not enforce arbitral awards, regardless of the contractual intent of parties to a dispute.41 Once this is done, foreign investors will be able to address disputes risk with greater confidence. In the near future, it is also possible that an independent law reform commission will be set up to oversee the development and improvement of Myanmar’s laws.42 Law reform commissions are prevalent in matured democracies and are essential to ensure that a country’s laws remain relevant and effective at upholding the rule of law. Ideally, it would comprise not just legal experts and politicians, but also ‘law-enforcement officers, trade union officers, members of ethnic minorities and community organisers who can give a voice to otherwise disadvantaged and unrepresented people’.43 Once set up, a law reform commission will ideally be able to start weeding out outdated laws dating from military rule and push for laws which ensure due process and uphold fundamental rights.

As Myanmar continues to modernise, there will be a greater need to have a dependable and transparent judiciary as the rule of law is a pre-requisite to economic, potential and social development. Various elements of the rule of law such as having

Although the concept of rule of law garners plenty of attention in Myanmar with both the people and government officials understanding its importance for peace and security,44 implementing effective law reform is easier said than done. Firstly, it is difficult to bring about effective change due to the ‘somewhat intangible’ nature of the goals pursued. Goals such as ‘predictable and efficient rulings’ and ‘equality before the law’ are difficult to monitor.45 A wider problem connected to this is the lack of systematic expertise as to how a country should undergo such reform. Often, expertise on such reforms is sought from international institutions such as the United Nations and the World Bank which ‘do not really know how countries that do not have such (legal) systems attain them’.46 This ‘lack of institutional expertise’47 often results in the prioritisation of short term infrastructure goals over long term strategies. Such myopic tendencies inadvertently result in institutions reverting

33 Gwen Robinson, ‘Myanmar: foreign investment rush raises hopes… and concerns’ Financial Times (London, 17 June 2013). 34 Michael Peel and Daniel Thomas, ‘Myanmar courts foreign telecoms groups to tap mobile market’ Financial Times (London, 27 October 2013). 35 Gwen Robinson, ‘Myanmar: foreign investment rush raises hopes… and concerns’ Financial Times (London, 17 June 2013). 36 Allen & Gledhill LLP, ‘Allen & Gledhill LLP announces admission of new Partners’ (Allen & Gledhill LLP, 2 May 2013) http://www.allenandgledhill. com/Pages/news_det.aspx?news=59 accessed 7 February 2014. 37 Rajah & Tann LLP, ‘Rajah & Tann expands to Cambodia and Myanmar’ (Rajah & Tann LLP, 31 January 2013) http://www.rajahtann.com/mediarelations.aspx?type=1&mid=499 accessed 7 February 2014. 38 Singapore International Commercial Court Committee, ‘Report of the Singapore International Commercial Court Committee’ (Singapore International Commercial Court Committee 2013) 7. 39 Ibid at 11-12.

40 Michael Ramirez, ‘Arbitration of commercial disputes: Myanmar’s evolution’ (2013) Lexology http://www.lexology.com/library/detail.aspx?g=fddc7196-f763-439a-9aa5-2949923f3c9e accessed 5 January 2014. 41 See 30. 42 International Bar Association Human Rights Institute, ‘The rule of law in Myanmar: Challenges and prospects’ (International Bar Association Human Rights Institute 2012) 44. 43 Ibid. 44 Kay Spencer, ‘Burma rule-of-law reform: USIP work in progress’ (United States Institute of Peace, 10 July 2013) accessed 7 February 2014. 45 Kirsti Samuels, ‘Rule of law in post-conflict countries – operational initiatives and lessons learnt’ (The World Bank 2006) 15. 46 Thomas Carothers ‘Promoting the rule of law abroad: the problem of knowledge’ (Carnegie Endowment for International Peace 2003) 9. 47 See 45 at 24.

IMPROVEMENTS TO THE JUDICIARY

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to previous approaches rapidly once projects end.48 Furthmore, the creation of parallel structures or systems to the existing one may in fact cause further chaos.49 Ultimately, such short term projects can only have a limited impact where political and economic incentives are key reasons for the lack of rule of law. 50 This brings us to the second difficulty faced in carrying out effective law reforms in Myanmar: there are parties with vested interests in maintaining the former political and economic order with the ability to severely hinder the country’s progress towards change.51 In many cases, this resistance comes from the historical military context where security and national stability were prioritized over rule of law concerns.52 The military influence in Myanmar means that the potential for true democratic reforms in line with genuine rule of law values is heavily restricted. For example, Myanmar’s constitution reserves 25% of the seats of all legislative bodies, as well as three ministries, for military personnel.53 With such support, the military-backed Union Solidarity and Development Party is able to enact policies which entrench their powers.54 While there have been commendable improvements to the rule of law in Myanmar, there is still much to be done in order to properly uphold the rule of law. As Myanmar continues to modernise, one thing is for sure: the ability of its judiciary to uphold the rule of law will come under closer scrutiny. CONCLUSION Myanmar possesses the potential to break away from decades of economic underperformance if it is able to take advantage of its inherent qualities such as its geographical location and large working population, whilst improving the state of its judiciary and infrastructure. Regardless of how long it takes to reach its potential, one can be certain that more legal work will arise from the country as it modernises.

48 See 45 at 20. 49 USIP Rule of Law Center , ‘USIP Burma/Myanmar Rule of Law Trip Report’ (United States Institute of Peace 2013) 25. 50 See 45 at 19. 51 See 46 at 24. 52 Ibid. 53 Tom Kramer, ‘Ending 50 years of military rule? Prospects for peace, democracy and development in Burma’ (Norwegian Peacebuilding Resource Center 2012) 6. 54 Ibid at 7.

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PREVENTING A FINANCIAL CRISIS: AN EXERCISE IN FUTILITY?

While improving regulatory reforms seem to be the prevailing response following the from occurring.

by Nur Hisyam Bin Azman University College London

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Preventing a Financial Crisis: An Exercise in Futility?

INTRODUCTION The poet John Donne’s oft quoted words that ‘no man is an island’ very aptly describes the situation in which the island country of Singapore found itself during the 2008 global financial crisis. It reminded us that the city-state’s continued success remains greatly influenced by the successes of the external economies that it is tied to. As the title suggests, this article will look at the role and effectiveness of the law in preventing a future global financial crisis that would affect Singapore. In order to do so, a solid understanding of the crisis would need to be established. This article will first attempt a brief explanation of the origins of the crisis before determining the actual events that occurred and its effects on both the global and local economy. It will then look at some of the post-crisis legislative reforms implemented by the leading economies and determine what it means to Singapore. PRELIMINARY MATTERS A very typical explanation of the origins of the 2008 crisis would point to the collapse of the housing bubble in America. This in turn would undoubtedly lead to a discussion of the factors leading up to and causing the collapse of the bubble itself. One could therefore be excused for drawing the simple conclusion that the whole disaster was the result of the relaxation of regulatory policy regarding mortgage securities being taken advantage of by the usual suspects of large financial firms and institutional investors. It may be surprising however, to find that no clear consensus can be derived from the countless books and articles that have been written by academics and commentators on the subject. Indeed, if the hundreds of books1 written about the crisis cannot paint a single unified account of what transpired, to attempt clarifying matters in this short article would only be an exercise in futility. Instead, it must be sufficient for the current discussion to merely identify the more significant events that occurred and the part they played in creating the crisis. Only by understanding the major influences behind such events can one hope to evaluate the efficacy of the post crisis reforms. As a caveat, it should be noted that the developments which this article seeks to examine are drawn from the existing narratives of commentators alluded to above. The competing accounts of what transpired may reflect the political agenda and worldviews of those writers as much as it does the confusion surrounding the issue.2 Accordingly, some may be in disagreement with the inclusion of certain events at the expense of others. Nevertheless, it will become increasingly apparent that the factors which this article will look into will be sufficient to fuel the main thrust of the discussion. THE CRASH BEFORE THE CRISIS

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Market collapsed, precipitating the Great Depression. Although the circumstances behind each economic crisis may be different, a brief history beginning with the previous one might inform the evaluation of the 2008 crisis. The commercial banks of the pre-Depression era were accused of taking on too much risk by participating in speculative securities facilitating an economic cataclysm that would last until the Second World War. Following this, the US Congress passed the Glass-Steagall Act3 (GSA) in 1933 with the aim of making banking safer and preventing a similar future crisis. The article will concentrate on the GSA’s attempt to separate commercial and investment banking. The GSA required banks to decide whether to concentrate their activities in either commercial or investment banking. What this did was prevent banks, especially the larger ones such as JP Morgan, from using customer’s deposits to fund their risky speculative trading activities. This arm of the GSA however, was not as well received or enforced as the FDIC. The years preceding its enactment saw its effects being gradually eroded. Some examples include studies that questioned the effectiveness of the separation, bank-friendly regulatory interventions in light of the increased competition due to the issuance of consumer credit by non-bank entities such as General Motors and mergers between commercial banks and securities firms in the 1980s which effectively side-stepped the separation requirement. These were just a few of the events that led up to the enactment of the Gramm–Leach–Bliley Act,4 which effectively repealed the separation requirement of the GSA. Some commentators have identified this repeal as the catalyst of the 2008 crisis. The significance of this argument will become evident after the main crisis events are explored. THE MAIN EVENTS It should be obvious at this point that the financial crisis did not comprise of a single catastrophic event. Instead it was a series of events that either contributed to the occurrence of the economic turmoil or exacerbated its effects. This paper will seek to isolate and concentrate on the events that it deems to be the most crucial and does not pretend to be an exhaustive guide to the timeline of the crisis. This will help focus the discussion on each problem, its effects and the solutions that have been proposed in light of them. Any discussion of the financial crisis would not be complete without at least a hint at the US subprime mortgage crisis. Yet again, one would find difficulty in identifying a single specific cause of the subprime mortgage crisis. In essence, it was due to an inadequacy in financial regulation in terms of both insufficient regulatory implementations and a deficiency in their enforcement.5

The global financial crisis of 2008 may be the most recent economic nightmare to have occurred, but it certainly was not the first. For example, on Black Thursday in 1929 the US Stock

This hole in the regulatory fence allowed for borrowers with questionable or poor credit histories to easily secure mortgages for new homes. The risks that lenders were exposed to by such borrowers were passed off to risk-hungry investors in

1 A list of which could be found here: http://www.investorhome.com/ crisisbooks.htm. 2 Barbara Kiviat, “Explaining the Financial Crisis: Why Do We Still Not Know What Happened?” (TIME, 16 Sept 2013). <http://business.time. com/2013/09/16/explaining-the-financial-crisis-why-do-we-still-not-knowwhat-happened/> accessed 15 February 2014.

3 12 USC 227: Banking Act of 1933. 4 Pub.L. 106–102, 113 Stat. 1338 Financial Services Modernization Act of 1999. 5 Financial Crisis Inquiry Commission, “The Financial Crisis Inquiry Report” (US Government Printing Office, January 2011) <http://www.gpo.gov/ fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf> accessed 15 February 2014.

Nur Hisyam Bin Azman

the form of mortgage-backed securities. These could then be repackaged into other financial products such as a collateralised debt obligation (CDO) and sold off for a profit. These financial instruments were then repeatedly repackaged and traded during their lifespans. This passed the risks and profits on down the chain of investors from all over the world. Such an activity was made possible because CDOs were designed to be able to receive a triple-A rating from credit agencies, due to how they were structured and the existence of credit default swaps,6 even though they may contain toxic debt. Additionally, conflicts of interests existing in the rating process were also identified as playing a significant role in these activities.7 Unfortunately, while this process made the products more attractive to investors, it also made the subprime mortgage securities difficult to identify in the more complex financial products and embedded them into the global financial system.8 One need not even consider the allegations of fraud and deception that have been thrown about during the crisis in order to understand how entrenched the subprime mortgage problem was. The subprime mortgage situation ran in tandem with the US housing bubble. The bubble itself is a considerably easier event to explain as it was simply a product of the economic cycle. As property values began to climb after 1995,9 people started investing more, which in turn drove the prices up further. The rise in property values had the added benefit of allowing homeowners to refinance their mortgages, thus freeing up their finances for further investments. Furthermore, non-traditional mortgages that had low initial costs and rates, such as interestonly adjustable-rate mortgages, became increasingly available, encouraging such investment activities. Property values in the US peaked in early 2006 before starting to crash later that year.10 Property investment ceased to be profitable and conventional mortgagors found themselves owing financial institutions more money than their properties were worth. Consequently, investment activities ground to a halt and investors began concentrating on decreasing their debts instead. This drove property prices down even further and also resulted in a decrease in economic activity in general. On the other hand, when the subprime mortgagors eventually defaulted on their loan payments, the lenders similarly found themselves with very little security to fall back on, but this time the borrowers had little to no income or assets to mitigate their losses. Banks and investors were left sitting on a pile of debt obligations which cost them trillions of dollars to acquire, could not be realised and could not be sold off. The ensuing bankruptcies of these institutions dragged down all the other businesses and economic activities that relied on them. Banks that did not fail became more invested in disposing of their existing debts than acquiring new business debts, therefore creating a very stagnant financial market. 6 A type of insurance. 7 Viral Acharya and Matthew Richardson, “Causes of the Financial Crisis” [2009] 21:2-3 Critical Review: A Journal of Politics and Society 195, 196. 8 Financial Crisis Inquiry Commission, “The Financial Crisis Inquiry Report” (US Government Printing Office, January 2011) <http://www.gpo.gov/ fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf> accessed 15 February 2014. 9 Property prices increased by 30% by 2002, see; Dean Baker, “The housing bubble and the financial crisis” (2008) 46 Real-World Economics Review 73-81, 76. 10 “S&P/Case-Shiller U.S. National Home Price Index” (S&P Dow Jones Indices, 26 November 2013) <http://us.spindices.com/indices/real-estate/ sp-case-shiller-us-national-home-price-index> accessed 15 February 2014.

Thus concludes a succinct explanation of the main events of the 2008 crisis and the global recession that the world is still recovering from today. ANALYSING THE WRECK As previously stated, some commentators have identified the repeal of the law separating commercial and investment banking as the key factor in causing global crisis. From the simple explanation of the events that occurred above, it could at least be agreed that this played a significant part in expediting the crisis. Commercial banks found themselves able to compete more effectively for customers by offering more profitable products to counter the Regulation Q interest rate cap of the GSA. An increased customer base meant an increase in capital to fund larger investments and inevitably, customer deposits were used to fund risky financial transactions. In spite of banks having a capital reserve requirement to protect against losses made using deposits, the creation of special purpose vehicles operating off balance sheets allowed them to minimise these requirements. This allowed the banks to greatly increase the risk that they were able to undertake. When the market took a turn for the worse and the debt securities paid for with deposits became worthless, the banks found themselves without the required funds to operate. The separation created by the GSA slowed down the business growth of these financial institutions, preventing the unsustainable growth that led to the crisis. As is always the case, there are strong counter arguments that have been put forth against this view. For one, the separation created by the GSA was argued to have stifled the growth of financial institutions to the point of harming them.11 Another, more cautious argument would point to the fact that such a complex event is seldom caused by a single factor.12 This article finds itself in agreement with the latter. As much as the repeal of the separation provision created a highway to the financial crisis, there were other vehicles that brought the banks there. It should be recalled that the separation provision was already being weakened before its eventual repeal. It could be said that even a weakened GSA would go some way in slowing down the pace of the pre-crisis growth, but this fails to recognise the power and ambition of the forces behind the weakening of the regulation. The post-crisis reforms in both the US and Europe have focused on enhancing their financial regulatory systems. The Dodd-Frank Act13 signed by President Obama in July of 2010, touted as the most comprehensive financial regulatory reform measure since the Great Depression, clearly illustrates this point. Amongst its measures are the creation of a council14 to oversee the activities of financial institutions, an overhaul of the regulating agencies to prevent the oversights that occurred before the crisis and an increase in investor protection to bring them back into the investment market. The most interesting part of the Act however, is the Volcker Rule provision. 11 Yaron Brook and Don Watkins, “Why the Glass-Steagall Myth Persists” (Forbes, 11 December 2012) <http://www.forbes.com/sites/objectivist/2012/11/12/why-the-glass-steagall-myth-persists/> accessed 15 February 2014. 12 David Brodwin, “Glass-Steagall Critics Get a Little Bit Right and the Rest All Wrong” (US News & World Report – News Opinion, 23 August 2013) <http://www.usnews.com/opinion/blogs/economic-intelligence/2013/08/23/ glass-steagall-critics-have-got-it-all-wrong> accessed 15 February 2014. 13 The Dodd-Frank Wall Street Reform and Consumer Protection Act Pub L. 111-203, H.R. 4173. 14 Financial Stability Oversight Council.

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The rule places a ban on banks from investing in a number of funds, such as hedge funds and private equity funds, and also from proprietary trading, subject to certain exceptions.15 Essentially, it seeks to prevent banks from becoming ‘too big to fail’ and sucking up countless taxpayers dollars in bailouts. The Volcker Rule has been referred to as the GSA for the 21st century,16 and it is difficult not to recognise the similar direction that the new law has taken. In the UK, a similar direction can already be observed with the Financial Services Act 2012 overhauling the existing tripartite regulatory framework, and more may be expected in the future with the Financial Services (Banking Reform) Bill currently working its way through Parliament. Unfortunately it may be too early to report on the effectiveness of any of these financial reforms, although there are already signs of trouble with the US’ legislation.17 It is merely worth noting that the legislators of these major economies have decided that improving financial regulation is the key to recovering and preventing a future crisis. This now brings us to the question of how this all relates to Singapore. SURVIVING THE FINANCIAL TIDAL WAVES The subprime mortgage crisis itself did not affect Singapore too greatly, at least not directly. Finance Minister T Shanmugaratnam stated in Parliament that the local banks’ exposure in relation to the CDOs that contain US subprime mortgages only amounted to 1% of the banks’ capital base.18 This is not to say that Singapore was left totally unaffected by the global economic downturn. The loss of confidence in the financial market negatively affected the share prices of local banks. This compounded the problem of such entities becoming more risk-adverse and less willing to lend to riskier businesses such as small and medium enterprises. The reduction in economic activity also led to businesses cutting back on their spending, which inevitably affected the labour market. Other effects included a fall in foreign direct investments (FDI), global demand for non-oil manufacturing exports and tourism activity. While Singapore’s social and financial policies allowed it to weather the crisis and begin recovering as early as 2010, it could do nothing to prevent such a global event from affecting the country. The fact that Singapore has managed to prevent any substantial financial crisis from occurring within its shores cannot lead to the conclusion that its legislative policies could have prevented the global one in 2008. Even if it found itself in similar economic circumstances as the US, its tight governmental controls, free from lobbyists and unions, ensure that the implementation of any similar policies could very well lead to differing results.

15 Such as those conducted on behalf of customers. See § 619, The Dodd-Frank Wall Street Reform and Consumer Protection Act Pub L. 111-203, H.R. 4173. 16 Jill Treanor, “Obama takes on America’s banks with new Glass-Steagall act” (The Guardian, 21 January 2010). <http://www.theguardian.com/business/2010/jan/21/obama-bank-reform-glass-steagall> accessed 15 February 2014. 17 Matthew Goldstein, “Banking Group Threatens Lawsuit Over Volcker Rule” (The New York Times, 23 October 2012) <http://dealbook.nytimes. com/2013/12/23/banking-group-threatens-lawsuit-over-volcker-rule/> accessed 15 February 2014. 18 “Unted States Sub-Prime Mortgage (Exposure of local financial institutions)” (Singapore Parliament Reports – Hansard Sitting Date: 17-09-2007 , Vol: 83 , Start Col: 1487 , End Col: 1490).

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In fact, Singapore’s success in overcoming the crisis might not be entirely attributable to the substantive post-crisis measures that were implemented. It had “persistent high current account surpluses, strong FDI inflow, well-regulated banking systems, good fiscal health, and vast accumulated foreign exchange reserves” when the crisis occurred, thus giving the country a solid platform from which to launch its policies. The ability to draw on its reserves for financing and the efficiency of its regulatory and governmental bodies allowed for the more successful implementation of those policies.19 Such a line of reasoning would suggest that part of the answer lies within the structure of the political and legislative systems itself, instead of any actual legal intervention. Despite the validity of this hypothesis, it skirts the question of what role the law plays in preventing a crisis. Furthermore, because the 2008 event originated in America, the determination of whether a future crisis, which would inevitably affect Singapore, could be prevented is inextricably tied to the evaluation of the reforms there. This article suggests that the effectiveness of the new legislative implementations targeted at financial governance and accountability would only be as effective as the major players of the industry want it to be. Some might accuse this author of having an anti-capitalist agenda and harbouring an overly zealous conviction that the whole financial system is fuelled by an insatiable greed for profit. However, it cannot be denied that profit is a major driving force of the financial system. Although long-term profit-generating policies would decry practices that promote unsustainable short-term growth, the collective memory of the system has proven to be rather fleeting and prone to distraction by immediate threats. As stated above, back before the separation policy of the GSA was repealed, it was already being watered down by the increased competition threatening the growth of the banking sector. It may be true that the Office of the Comptroller of the Currency’s regulations in 1963 favouring the banks was deemed by the US Supreme Court to not be in the spirit of the GSA,20 nevertheless various other ways were still discovered in order to circumvent the Act.21 Even after the GSA was repealed, it was not as though there were no other safeguards and checks to keep the financial sector in line. It might be that the safeguards were insufficient, but even with the new regulations people will always find and exploit loopholes within the system. There are also areas that are simply more difficult to monitor leading to incidents such as the LIBOR rate fixing scandal.22 Moreover, what is to stop the current legislative reforms from being slowly eroded away like before? On hindsight, the 2008 crisis bears an unmistakable resemblance to the 1921 collapse, with investors completely convinced that the market will rise indefinitely. Yet it is not a secret that the economy works in a cycle of expansion and contraction. The common American homeowners stirred up by their real estate investments might be excused for being unaware of the unsustainability of such rapid growth, but what 19 Vikas Sharma, “Global Financial Crisis and Singapore” (SlideShare, 15 Jul 2013) <www.slideshare.net/VikasSharma128/singapore-gfc-vikasmar2013draft#> accessed 15 February 2014. 20 Investment Company Institute v Camp (1971) 401 U.S. 617, 91 S. Ct. 1091, 28 L. Ed. 2d 367. 21 The “cash management account” launched by Merril Lynch in 1977 is one such example. 22 “Timeline: Libor-fixing scandal” (BBC News, 6 February 2013) <http://www.bbc.co.uk/news/business-18671255> accessed 15 February 2014.

Nur Hisyam Bin Azman

about the professionals within the financial sector? Either the sector is riddled with incompetence or they were in fact blinded by the irresistible call of immediate wealth. Singapore may be able to prevent the emergence of any crisis within its own shores but in the grand scale of things, it finds itself paddling in a powerful and unpredictable ocean. It remains an efficient sub-system of an inefficient global one and even though the reverse would not be preferable, the current situation remains worrisome. The problem lies not with the interconnectivity of the global economy but rather the balance of influences that exist within it.23 This is not to say that the rise of economies in the east such as China’s and Japan’s would necessarily improve the situation, but a rebalancing of the drivers of global economy might alleviate the stress placed on the system by failures of any single dominant power such as the US.24 Regrettably, to continue with such a train of thought would dispense with any pretence at legal discussion and move squarely within the realm of economics. CONCLUSION In the end, it is suggested that the law can only mitigate a crisis after it has occurred or perhaps prolong the stable period in between turmoil. It is a false hope to think that it could actually prevent such a thing from happening. The new reforms in the West may be aimed at preventing a future crisis from occurring, but so did the GSA. The law has proven to be an ineffective tool in correcting undesirable business practices and might even be seen to have been manipulated by those they seek to regulate. It would seem then that the best role that the law could play in preventing a future crisis might not be in the micromanaging of individual financial sectors, but instead facilitating a rebalancing of the global economy so as to buffer the influence of powerful individual economies. Until that happens, one can only hope that the financial sector will not forget this latest crisis, at least before the next century.

23 This is not to deny the fact that the globalisation of the financial services has made it more difficult for governments to contain a financial crisis. See Anu Arora, “The global financial crisis: A new global regulatory order?” [2010] 8 JBL 670. 24 Stephane Dees and Arthur Saint-Guilhem, “The Rold of the United States in the Global Economy and its Evolution Over Time” (2009) European Central Bank Working Paper Series No 1034 / March 2009.

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CliffordChance Chanceoperates operates across across the globe and has Clifford has offices offices in in the the Asia AsiaPacific Pacificregion regionininBangkok, Bangkok,Beijing, Beijing, Hong Perth, Singapore, Seoul, Shanghai, Sydney over 400alone, lawyers HongKong, Kong, Jakarta*, Perth, Shanghai, SydneySingapore, and Tokyo. With overand 400Tokyo. lawyersWith in Asia Pacific it isin Asia is one of thefirms largest international firms inathe region, enjoying a market-leading reputation onePacific of the alone, largestitinternational in the region, enjoying market-leading reputation across practices. across practices. We employ close to 90 lawyers, representing an international mix of people qualified in English, US, We employ close to 90 and lawyers, mixmulti-jurisdictional of people qualified English, US, Singaporean, Australian Hong representing Kong law. Wean areinternational able to provide legalinadvice to our Singaporean, Australian and Hong Kong law. We are able to provide multi-jurisdictional legal advice to our clients – in a broad range of corporate and commercial matters – all from our Singapore office. clients – in a broad range of corporate and commercial matters – all from our Singapore office. And being part of a network which stretches from Sydney to São Paulo means that we can offer legal And being network which stretches Sydney São Paulo means that we can offer legal advice – aspart wellofasaopportunities for our lawyersfrom – right acrosstothe globe. advice – as well as opportunities for our lawyers – right across the globe. The Singapore office celebrated its 30th year in Singapore in 2011. We hold a Qualifying Foreign Law We hold a(QFLP) Qualifying Foreign Law Singapore Practice (QFLP) practise Singapore law,Law andAlliance in 2012 we Practice licence to practise law, andlicence in 2012towe established a Formal with established a Formal Law Alliance with Cavenagh Law LLP. Through this law alliance, we are excited to Cavenagh Law LLP. Through this law alliance, we are excited to be able to offer an international trainingbe able to offer an training programme to graduate lawyers. programme to international graduate lawyers.

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TO SPLIT OR NOT TO SPLIT: THAT IS NOT THE QUESTION

Should the legal profession be split? This question has long troubled English lawyers. Neither is the answer. The real question is: what advantages do we seek in our legal profession?

by Benjamin Mak University of Cambridge

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To Split or Not to Split: That is Not the Question

The English legal system maintains a formal division between barristers and solicitors. Barristers are generally regarded as experts in court advocacy and specialised areas of law. On the other hand, solicitors have often been regarded as professional agents with general expertise in the law. Hence, ‘an analogy is often drawn between the two legal professions and the medical professions of general practitioner and consultant.’1 There remains a long-standing debate in England over whether the legal profession should be divided or fused. To understand this debate, I first discuss the origins of the divide between barristers and solicitors. Next, I trace key milestones in its historical trajectory. Third, I consider how the debate on the split profession has evolved. Having explored the UK position, I move to focus on comparing it with the legal profession in Singapore and explore the development of Singapore’s legal profession. Finally, I consider how, in light of the UK’s experience, Singapore’s legal profession may be further enhanced. THE ORIGINS OF DIVISION The division between barristers and solicitors was analogous to an earlier divide in the thirteenth century between attorneys, who acted as professional agents on behalf of clients, and serjeants-at-law, who were professional pleaders.2 However, as Professor Sir John Baker argued in his seminal work An Introduction to English Legal History, ‘solicitors were not at first rigidly separated from barristers.’ 3 This was because the name ‘solicitor’ originally described their function of ‘helping clients through the jurisdictional jungle’, and not ‘a specific class of lawyer.’4 The division between barristers and solicitors became increasingly clear from the 16th century onward as the Inns of Court began to exclude solicitors from joining them as members.5 However, it is noteworthy that as late as the 18th century, it was often the case that ‘the exclusion was honoured in the breach.’6 Far from being a carefully planned change, the division between barristers and solicitors in England emerged mainly as ‘a matter of historical accident.’7 KEY MILESTONES The division between barrister and solicitor was consolidated in the 19th century and remains formally intact. Neither the 1979 report of the Benson Royal Commission on Legal Services nor the 2004 Report of the Review of the Regulatory Framework for Legal Services in England and Wales by Sir David Clementi 1 Samarth Patel, Christopher Howarth, John Kwan and Philip Mcdonald, ‘Reform Of The Legal Profession’(The Wilberforce Society, February 2012) <http://thewilberforcesociety.co.uk/wp-content/uploads/2012/05/Reform-of-the-Legal-Profession.pdf> accessed 4 January 2014. 2 Wesley Pue, ‘legal profession, history of ’ in Peter Cane and Joanne Conaghen (eds), The New Oxford Companion to Law (Oxford University Press, 2008) 708. 3 John H Baker, An Introduction to English Legal History (4th edn, Oxford University Press, 2007) 163. 4 Ibid. 5 Ibid. 6 Ibid. 7 Harry Cohen, ‘The Divided Legal Profession In England And Wales-Can Barristers And Solicitors Ever Be Fused?’ (1987) 12 Journal of the Legal Profession 7, 12

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expressly recommended fusion of the English legal profession. As recently as January 2012, then-President of the Law Society of England & Wales John Wotton expressed his belief that ‘the two separate professional titles of barrister and solicitor will survive for the foreseeable future, if only because there is no strong current of opinion in favour of fusion.’8 The desire for efficacy may explain why the system of regulation in the UK largely mirrors the split profession. While barristers are monitored by the independent Bar Standards Board (BSB), solicitors are regulated by the Solicitors Regulation Authority (SRA). The division is also evident in the bodies representing their interests. Whereas solicitors come under the aegis of the Law Society of England & Wales, barristers are represented by the General Council of the Bar. The retention of the division is further seen in differences between the training paths for becoming a barrister or solicitor. While aspiring barristers pursue the Barrister Vocational Course, those seeking to become solicitors must complete the Legal Practice Course. Thereafter, barristers must complete a one-year pupillage, and solicitors a two-year training contract. Yet this is not to say there are no similarities between the training requirements for barristers and solicitors. Structurally, both paths involve 3 stages: ‘the academic stage, the vocational stage and a period of practice-based training.’9 In particular, the requirement for completing the academic phase is the same for both barristers and solicitors: either a Qualifying Law Degree or a degree in another subject followed by the Common Professional Examination or the Graduate Diploma in Law. However, legislative changes in the past 2 decades have greatly watered down the rigidity of the divide between barristers and solicitors. Following the passage of the Courts and Legal Services Act (CLSA) 1990, solicitors were given rights of audience before all superior courts in England and Wales. In accordance with sections 15(1), 19(1) and 45(1) of the Senior Courts Act 1981, solicitors could now appear before the Court of Appeal, High Court and Crown Courts as long as they met the criteria for qualification as Solicitor Advocates. This broke the monopoly barristers previously possessed over rights of audience in the superior courts. While solicitors have continued to refer most trial work to barristers, the change under the CLSA 1990 means that solicitors can no longer be typecast as solely involved in transactional work with clients. The ability for solicitors to secure conditional rights to audience in all superior courts was subsequently confirmed in sections 36-37 of the Access to Justice Act (AJA) 1999. However, barristers benefited from the CLSA 1990 as it allowed them to practise in conveyancing, an area previously restricted only to solicitors. This improved the ability of barristers to interact directly with clients in the provision of advice and the drafting of legal documents. The growing role of barristers outside courtroom advocacy could also weaken the traditional 8 John Wotton ‘Fission or fusion, independence or constraint’(The Law Society of England & Wales, 25 January 2012) <http://www.lawsociety.org. uk/news/speeches/fission-or-fusion-independence-or-constraint/> accessed 4 January 2014. 9 Avrom Sherr, ‘legal profession, social background, entry, and training’ in Peter Cane and Joanne Conaghen (eds), The New Oxford Companion to Law (Oxford University Press, 2008) 717.

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view that barristers are almost entirely self-employed sole practitioners. Yet it remains to be seen whether barristers have truly expanded beyond their traditional preserve as courtroom advocates. As late as 2008, Paterson recorded that only 15% of the barristers and advocates in the UK are working as employees ‘taking instructions direct from public institutions and bodies’.10 The passage of the Legal Services Act (LSA) 2007 marked a further step towards convergence between barristers and solicitors. In contrast to existing regulatory structures which follow the barrister-solicitor division, the LSA 2007 created an independent Legal Standards Board (LSB) that has regulatory powers over both barristers and solicitors. More importantly, the LSA 2007 has authorised the creation of alternative business structures (ABSs) in which lawyers can work in mixed practices that offer legal advice in tandem with other services such as financial planning. The possibility of ABSs marks a landmark shift for barristers who were hitherto banned from creating partnerships. While the BSB has yet to obtain approval from the LSB to become a licensing authority for ABSs, this is likely to change by 2014.11 For solicitors however, this only consolidates changes made earlier under Section 66 of the CLSA 1990 which allowed them to form multi-disciplinary partnerships. BEYOND FUSION AND DIVISION? While the division between barrister and solicitor is no longer as significant in practice as it used to be, its formal persistence has sustained a long-standing debate over whether the English legal profession should be fused. Proponents of fusion have often argued that the split profession results in unnecessarily high legal costs because clients often have to pay 2 lawyers (1 solicitor and 1 barrister) instead of 1 lawyer who can handle both trial advocacy and transactional work. They have further suggested that the split profession creates unnecessary distance between clients and their oral advocates, raising the possibility of things being lost in translation. Indeed, Moyse highlights the concern raised by proponents of fusion that ‘it is cumbersome and unwieldy for a case to have to be conducted by two sets of lawyers where litigation is involved’.12 By contrast, opponents of fusion argue that legal costs are lower with a split profession because barristers have a ‘wellestablished, relatively low-cost model’13 that rests on having lower commercial overheads than solicitors’ firms. Even if the legal costs associated with a split profession are higher, this may be justified on the grounds that one is paying for the specialist expertise barristers can develop since they do not have to handle client affairs. Furthermore, Moyse highlights the concern raised by proponents that the barrister is able to argue 10 Alan Paterson, ‘legal profession – governance, structure and organisation of ’ in Peter Cane and Joanne Conaghen (eds), The New Oxford Companion to Law (Oxford University Press, 2008) 705. 11 Suzanna Ring, ‘Barrister partnerships possible from 2013; BSB set to regulate ABSs’(Legal Week, 25 October 2012) <http://www.legalweek.com/ legal-week/news/2219954/barristers-permitted-to-form-partnerships-from2013-as-bsb-gears-up-to-regulate-abss> accessed 4 January 2014. 12 Geoffrey Moyse, ‘The Barristers and Solicitors of modern-day England the ongoing “fusion” debate’ (1995) 53 The Advocate Vancouver 747. 13 See note 9.

the client’s case ‘more objectively and free from the immediate pressures associated with directly representing the client’.14 In the absence of conclusive empirical studies, the debate on whether a fused profession leads to higher or lower costs for the public remains unresolved. Yet a further issue that has long been contended over in the debate over a fused profession relates to the question of access to justice. Opponents of fusion cite the cab rank rule as a paramount example of how a split profession ensures access to justice. According to Maute, the cab rank rule ‘requires that the barrister take all comers, even reviled criminal defendants and political despots’, suggesting that [t]his benefits both litigants and the legal system by promising availability of counsel suitable for the case.’15 Nonetheless, the cab rank rule has been subject to sharp criticism. According to Patel et al, there are often cases where the ‘initially-instructed barrister becomes unable to act on behalf of the client (generally because of time constraints), and the brief is referred to another barrister.’16 In such situations, clients may end up ‘coming to court to face an indictable charge or to find out whether their house will be repossessed’ and ‘find[ing] a stranger introducing him/herself as his barrister and explaining the situation’.17 Insofar as this is particularly likely to be the case for the most vulnerable members of society, the cab rank rule may not truly deliver access to justice. While the debate on whether there should be a split profession has been carried out largely with the wider public in mind, we must also consider the impact of a split profession on individuals who may be interested in legal practice. Patel et al indicates that ‘it appears odd that an undergraduate law student (in many cases one who has only just finished his penultimate year) must decide which of those roles he will spend his career performing at such an early stage.’18 Even with the expansion of rights of audience to solicitors mentioned above, it remains the case that most courtroom advocacy is done by barristers and most client-based work is taken by solicitors. Consequently, Patel et al suggest that the split profession ‘artificially trammel[s] lawyers with diverse skills into a line of work that prevents them from using all their skills’.19 Though both sides of the debate on fusion have brought forth important arguments, it is clear that neither yet possesses a silver bullet argument in favour of their side. Instead, I suggest that the debate on fusion is most useful if it is seen as an exercise in revealing the advantages we desire the legal profession in general to possess. Before examining how the advantages raised by proponents of a split system can be enjoyed in a fused system like that in Singapore, I offer an outline of the legal profession in Singapore. 14 See note 12. 15 Judith Maute, ‘Alice’s Adventures in Wonderland: Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.)?’ (2003) 71 Fordham Law Review 1357. 16 See note 1. 17 Ibid. 18 Ibid. 19 Ibid.

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To Split or Not to Split: That is Not the Question

COMPARISON WITH SINGAPORE The legal profession in Singapore emerged following the promulgation of the Second Charter of Justice which ‘established the Court of Judicature and introduced English law into the Straits Settlements.’ Since the list of representatives authorised to appear before the Court under the Charter excluded mention of barristers, Singapore’s legal profession was fused ‘[f]rom its earliest days and by 1878, lawyers here frequently styled themselves as ‘advocates and solicitors’.20 Hence, the fused legal profession in Singapore is not an outcome reached by choice as much as the natural outcome of our colonial legacy. As is the case in the UK, the legal profession here is represented by the Law Society and is regulated by legislation, most notably the Legal Profession Act (LPA) 1970. The route of qualification for lawyers here also involves a threefold division between the academic, vocational and practice stages. Let us first discuss the academic stage. Individuals wishing to join the legal profession in Singapore must be citizens or permanent residents here with a law degree (with the relevant grade attainment) from the National University of Singapore or the Singapore Management University, or an accredited foreign university. Apart from the relevant grade attainments, the academic stage is broadly similar to that in the UK. Next, we move to the vocational stage. While local graduates are exempted from Part A of the Singapore Bar Course, foreign graduates can choose not to take it ‘as a prelude to their taking the Part A Bar Examinations.’21 However, both local and foreign law graduates are required to attend Part B of the Singapore Bar Course. Unlike the UK system, the vocational course is the same for all lawyers. Finally, we discuss the practice stage. Since 2009, local graduates have been required to complete a 6-month training contract with a Singapore law practice. Foreign graduates are required to complete a 12-month training requirement, 6 months of which must be in the form of a training contract though the remaining 6 months can comprise prior legal experience.22 Unlike in the UK where solicitors have to meet special conditions before qualifying for rights of audience to the higher courts, all qualified Singapore lawyers possess such rights under Section 29(1) of the revised LPA 1970. However, Singapore has recognised the importance of encouraging individuals to develop specialist expertise in particular areas of the law similar to the appointment of Queen’s Counsel (QC) in the UK. This is seen in the creation of a new class of lawyers known as Senior Counsel following a 1989 amendment to the LPA 1970. While ‘some senior lawyers feel that the increasing use of Senior Counsel for very complex litigation will lead to a quasi-split profession’,23 this has not proven to be the case. This may be attributed to the fact that only 54 Senior Counsel have been

20 Kevin Tan, ‘Singapore: A Statist Legal Laboratory’ in E Ann Black and Gary F Bell (eds), Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations (Cambridge University Press, 2011) 357. 21 Ibid 360. 22 Ibid 360-361. 23 Charles Lim, ‘Legal Systems In Asean – Singapore, Chapter 6 - The Legal Profession’(Asean Law Association, 2006) < http://www.aseanlawassociation.org/papers/sing_chp6.pdf> accessed 4 January 2014.

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appointed in Singapore since 1989,24 out of a total of 4549 lawyers as at 2 December 2013. By contrast, QCs number in the thousands in the UK. Furthermore, Singapore now recognises that individuals with at least 10 years’ experience in the aggregate as a practising lawyer, legal officer or academic’25 can practise as legal consultants. Legal consultants help in mentoring new lawyers whilst remaining at the forefront of expanding a firm’s legal practice. While the fused profession in Singapore has meant no segmentation in bodies regulating the legal profession, there has been division in terms of what the different professional legal institutions are tasked with. Whereas the Law Society of Singapore is fundamentally concerned with representing its members and monitoring their conduct, the Singapore Academy of Law was envisaged as ‘an institution patterned after the English Inns of Court, to develop among the legal profession in Singapore a collegiate spirit which is necessary for pride in the profession and in its standards and practices befitting an honourable profession.’26 WHERE NEXT FOR SINGAPORE? Thus far, the fused profession in Singapore has been able to facilitate the creation of specialist lawyers, with all of the major local firms possessing a dedicated Litigation & Dispute Resolution team alongside departments that deal with particular industries or areas of practice. Indeed, the marrying of academic expertise with legal practice that has long been a hallmark of the barristers’ profession is seen also in the fused profession here, as evidenced for instance by Associate Professor Simon Tay who teaches Public International Law at the National University of Singapore whilst also serving as a Senior Consultant at WongPartnership.27 Legal consultants may also help to provide the lens of objectivity that is often attributed to barristers, because their role in preparing the case typically arises only after the initial facts have been established. The presence of a select class of Senior Counsel also ensures that the fused profession in Singapore continues to recognise experts in particular areas of law and oral advocacy. Indeed, the success of the Senior Counsel has significantly reduced the need for clients to engage foreign QCs to the point that seeking a QC in Singapore courts is regarded as an exception, rather than the rule. Nonetheless, as Chief Justice Sundaresh Menon rightly identified in his opening address for the legal year in 2014, the issue of rising legal costs is ‘a matter of concern’. This not only deters people from the use of legal services here, but also affects our ability to ‘ensure that essential legal services are within the reach of our citizens’.28 In seeking to reduce legal costs in Singapore, 24 Michelle Quah, ‘No new Senior Counsel named this year’(The Business Times, 4 January 2014) <http://www.businesstimes.com.sg/premium/ top-stories/no-new-senior-counsel-named-year-20140104-0> accessed 4 January 2014. 25 Ibid. 26 Ibid. 27 Associate Professor Tay’s faculty profile may be found at: http://law. nus.edu.sg/about_us/faculty/staff/profileview.asp?UserID=lawtaysc. 28 Sundaresh Menon Cj, ‘Response By Chief Justice Sundaresh Menon , Opening Of The Legal Year 2014’(Singapore Academy of Law, 3 January 2014) <http://www.sal.org.sg/Lists/Speeches/Attachments/119/OLY%202014%20 CJ’s%20Speech.pdf> accessed 4 January 2014.

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it may be worthwhile considering recent developments in the UK’s split profession. As mentioned above, in an attempt to cut costs especially in the solicitors’ profession, the UK has begun to encourage the development of firms with alternative business structures that combines advice from lawyers with that from experts in other disciplines for a fixed price agreed at the outset. Hence, it may be worthwhile encouraging the development of ABS firms in Singapore. Indeed, this model has seen significant success with Red Bar Law, a London ABS law firm that sets fixed prices achieved through negotiations between clients and barristers based on a realistic assessment of the final costs.29 In departing from cost models that begin with initial estimates calculated only by the lawyers whom the client first interacts with, the UK’s split profession may have hit on pragmatic solutions that can be applied successfully here. Moreover, as current Singapore Law Society President Lok Vi Ming pointed out in his address at the opening of the legal year in 2014, recent data worryingly show that ‘by the 1st decade of practice, 3 out of every 4 lawyers would have opted to leave practice’.30 This suggests that the fused profession does not necessarily entail that the legal profession here can sustain its attractiveness for younger practitioners fresh out of law school today. The May 2013 report of the 4th committee on the supply of lawyers offers some valuable insights as to how this issue might be addressed.31 In particular, at paragraphs 4.36, 4.38 and 4.39 of its report, the committee suggests 3 steps that may be taken to encourage young lawyers to remain in the profession: 1.

Increasing the amount of part-time work to promote greater flexibility in work-schedules and hence enhance work-life balance for lawyers;

Creating different career advancement tracks for lawyers who may not be deemed to make the cut for partnership; and

Promoting legal practice outside a traditional firm framework, perhaps by means of an online marketplace run by the Law Society where lawyers can pick up assignments on an ad hoc basis.

Each of these proposals, if implemented, would allow Singapore to enjoy many of the advantages that barristers in the UK may be able to enjoy. This is because they encourage interested lawyers to adopt a self-employed work scheme based on issues and problems they are interested in without having to clock a standardised number of hours or rise through a set hierarchical structure in a law firm. If the recommendations of the May 2013 report are adopted, Singapore’s legal profession may yet enjoy the best of both worlds. 29 John Hyde, ‘ABS offers barristers at £75 an hour’(The Law Society Gazette, 23 July 2012) <http://www.lawgazette.co.uk/66685.article> accessed 4 January 2014. 30 Lok Vi Ming, ‘Opening Of The Legal Year 2014, Speech Of The President Of The Law Society’(Singapore Academy Of Law, 3 January 2014) <http://www.sal.org.sg/Lists/Speeches/Attachments/121/OLY%202014%20 President%20Law%20Soc%20Speech.pdf> accessed 4 January 2014. 31 Ministry Of Law (Singapore), ‘Report Of The 4Th Committee On The Supply Of Lawyers’ (Ministry Of Law, May 2013) <Http://www.mlaw.gov. sg/content/dam/minlaw/corp/News/4th%20Committee%20Report.pdf> accessed 10 March 2014.

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Stefanie Yuen Thio is Joint Managing Director at TSMP. She was key in setting up the firm in 1998 and leads its Transactional Practice. A boardroom gladiator and leading lawyer, she is widely acknowledged as one of the best in her field. Beyond the legal sector, she has also dedicated herself to various charitable causes such as providing free cleft surgery for needy children in the region.

WOMEN IN LAW by Primrose Tay University College London

There is no question that law is a stressful and demanding job, yet many students pursue a degree in law because the work is intellectually stimulating and rewarding, both intrinsically and financially. Women and men pursue a legal education and undertake training contracts in equal numbers, but a quick scan of the websites of law firms in Singapore quickly reveals that women are underrepresented in partnership positions. As an industry, law experiences a particularly high attrition rate, and this is particularly the case for women lawyers. This fact has been well documented in other jurisdictions but no study

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has been undertaken in Singapore to determine why this is the case and how it can be rectified. The general perception is that many leave the industry because they burn out due to stress and overwork and decide to pursue alternative careers. In this feature, we speak to Stefanie Yuen Thio, Wendy Tan and Crystal Ma, three women at different stages of their legal career and ask them to reflect how being a woman has impacted their career and choices. Their answers are both insightful and encouraging for a woman contemplating a career in this demanding industry.

Primrose Tay

STEFANIE YUEN THIO Joint Managing Director, TSMP One of the great initiatives your firm has begun is Girl Power, aimed at mentoring and career development for women. What motivated you to start this up and what has the feedback been from women in the industry? The initiative was born out of a desire to help our female colleagues face the challenges of practice. Women lawyers face a number of issues: It’s a recurring refrain that the legal profession has a high attrition rate. The high-octane nature of the work means that people often burn out after a few years. In particular, women find it hard to juggle career and the demands of their family. While Singaporean women have more access to family support and domestic help, this is counter-balanced by the fact that Asian culture expects the woman to be more hands-on in managing the home. This is a difficult environment for women lawyers to operate in. The initiative is intended to provide a support group, and give access to the collective wisdom of more mature women who have weathered these storms and may have useful tips. Layer over that the fact that women often operate differently from men in the work place. For example, women often won’t put themselves forward for a role unless they are confident that they can deliver at least 80% of the requirements. Men will be more likely to put up their hands when they have about half the job’s requirements. This can lead to women falling behind in the career ladder, and feeling discouraged and possibly discriminated against. Understanding how we work, and how that may be different from our male counterparts, can help tremendously in re-calibrating our approach to our careers. We set up Girl Power! to identify and discuss some of these issues and work through how best to manage them. It’s been very well received so far. What has been key is the openness of the forum, where the women won’t feel like they will be judged if they ask sensitive questions. Many of my female colleagues have said that simply knowing that other women face the same problems is helpful. How has being a woman most impacted your legal career, both positively and negatively? Honestly, I think Singapore is the most gender-neutral place in the world to work. I don’t think I have ever faced gender discrimination in the workplace. As a small island nation, chucked out by our neighbours, we had no choice but to roll up our sleeves and work – whatever sex you were. We didn’t have decades of socio-economic stereotypes to combat, so I have never been conscious of a glass ceiling. I’m very privileged to have developed my career in Singapore. I chose corporate practice as my field, so my battles are fought in the arena of the boardroom. It’s a battlefield that has suited me very well. I don’t define victory as the destruction of my opponent, but as the completion of a transaction that advances my client’s interests, so I don’t engage in ego battles in negotiation. Women are generally more collaborative by nature; we don’t feel the need to do the Haka before the bloodsport of

negotiations (the way a lot of men do), so it’s been easy to get a win-win deal across the line. As a woman who manages to successfully juggle a family life, outside interests and a demanding career, what advice would you give to female students who want the same things? I tell this to ALL my associates: don’t expect balance on Day 1 of your career. And don’t be discouraged if the first 12 months are hard going. The initial years of one’s career will require long hours purely because the law is a rigorous profession, and we are paid not to churn the hours, but to get the work right. That needs commitment and investment. But it will get better and you will be able to control your life more once you have a strong professional foundation. So just as you want to have a “holistic” work-life balance, you need to look at your life “holistically” and accept that there are seasons for everything. At TSMP, we want to keep our lawyers for the long haul, and we know that the only way to do that is to help them build sustainable careers. We are thus very supportive of both men and women. We instituted paternity leave before it became mandatory in Singapore, for example. We also recognise that the same part-time arrangements don’t necessarily work for everyone, and structure customised working arrangements for our lawyers who need more time for family. That said, one of the most common reasons we see women leave the workplace is that they don’t learn to delegate. Transitioning to partnership requires commitment to doing things differently – being able to sieve out what’s important, and what’s urgent, rather than micro-managing every last detail. Learning how to inspire your juniors, to correct them authoritatively without having a hissy fit, and to encourage - these are all necessary skills if you want any sort of longevity in legal practice. One of the critiques of the professional industries is that women face a double bind dilemma - that because they are evaluated against a masculine standard of leadership (displaying traits such as assertiveness, confidence, aggression), they are either viewed as competent or likeable but generally speaking, rarely both. Do you believe this is true of the legal sector? It’s hard for me to answer this one, because I suspect that if you asked my colleagues, they would say that assertiveness and confidence aren’t completely alien to my personality. Honestly, if you’re not assertive and confident, you have no business being a lawyer in my area of work. You’d be eaten alive by CEOs and investment bankers. But I disagree that these are masculine qualities. They are just necessary ingredients for any professional who wants to be a leader in her profession. Where women do face such “public relations” problems is probably in the field of litigation. My female colleagues worry that if they don’t fight like men, they will be seen as soft; but if they do, they’re labelled a “bitch”. I stopped worrying about labels after my parents told me, at age 17, that I was too assertive and would never get a man to marry me. That knocked me down for a bit, but then I decided that I couldn’t change who I am and didn’t want a man who only 130

Wendy Tan is Director at Stamford Law Corporation. Her practice covers both contentious and advisory matters, ranging from commercial litigation to ship sale & purchase and employment issues. She is highly fluent in both written and spoken Chinese, and often advises and acts in disputes involving PRC parties.

wanted a docile wife. As it turned out, I managed to find someone perverse enough to love me for myself and who encouraged me to always be the best I could. Since then, instead of trying to conform to some sort of stereotype, I’ve tried to be the most effective lawyer I can. Sometimes that means facing down the opposition; at other times, a conciliatory approach where you leave something on the table for everyone has achieved a better result. If we were less absorbed about how we are coming across, and just focused on being a top professional, I think we will be happier individuals and more effective lawyers. If any, what sort of changes would you like to see the industry make in order to make the legal sector more women-friendly? Support groups and mentors would provide a huge boost to women. TSMP is one of the anchor firms in a Women Professionals Networking Group that meets regularly to discuss issues we face. I’m tremendously pleased that Mr. Piyush Gupta, CEO of DBS Bank, will be coming to our next lunch meeting (5th May) to share his views. Access to this kind of support and advice will be an invaluable pillar for women professionals.

WENDY TAN Director, Stamford Law The legal sector is notorious for long working hours. In your experience, does this get better as a lawyer gets more senior? Is the industry moving towards more flexible working arrangements? In response to the first question – yes and no. It is a steep learning curve transiting from law school to practice. As you gain experience and skills, you should complete your tasks in less time. That said, as you progress to the next level, you usually end up taking on more responsibilities and being assigned to handle more complex cases, which can be no less time consuming. The legal sector is not the only one known for long working hours. Among others, bankers and doctors have to deal with time management issues too. At the end of the day, the working hours for each lawyer varies. It depends on each individual’s priorities and goals. If the goal is to excel and earn a name for yourself, whether you are at a junior or a senior level, you will have to commit the time to achieve that goal. I will not go as far as saying that the industry is moving towards more flexible working arrangements. I see it more as a greater willingness to accommodate such arrangements when needed to retain talent. While the distinction may be questionable, some suggest men may be more suited to litigation given its adversarial nature whereas women are more suited to the comparatively

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Primrose Tay

cooperative nature of advisory work. As you are involved in both, do you believe certain practice areas are more “womenfriendly” than others? Do you find this problematic? In my view, there is no distinction. Suitability for a practice area is not gender based. It depends on your personality and interest. Women are no less capable of doing well in litigation than men. Modern litigation requires a good disputes lawyer to be a solution provider. It is about disputes resolution. The objective is to manage the conflict and craft a solution to assist the clients in resolving the dispute in an expedient manner. To achieve this, not unlike a transactional lawyer putting together a deal, soft skills are no less important. Perhaps many get the impression that the distinction exists because they see less women staying on in litigation. Rather than being attributable to the adversarial nature of disputes work, it is probably due to the relatively more punishing pace of running an active litigation practice as compared to a transactional one. In this regard, the latter maybe said to be more “womenfriendly” for working mothers. When you were a fresh graduate, were you prepared and aware of the sacrifices that you would have to make, if any, in order to achieve success in law? I did not enter law school with the aspiration of being a lawyer in mind. So as a fresh graduate, frankly, I was clueless about what law practice is all about beyond TV dramas and movies. That, of course, I quickly found out is far from reality. But what I do know is that to achieve success in anything, you need hard work, dedication and determination. It is not unique to a career in law. In that sense, you can say that I was aware that there would be trade-offs. I believe the key to success is to have passion for what you do. That is the sustenance to enable you to see beyond the work as merely a job. If any, what sort of changes do you think would be most beneficial to women in law? A change in mindset. What is needed is a mitigation of the unconscious gender bias and stereotyping that not just men, but women too, have against women. Do not assume that women are less committed to their work or less willing to build a career in law. Give them the same opportunity as you would to their male peers to participate in that groundbreaking deal or major litigation case.

CRYSTAL MA

Associate, RHTLaw Taylor Wessing The legal sector is notorious for long working hours; do you believe that this affects men and women evenly? In terms of the long hours: Most junior associates don’t mind working hard, and if that means putting in the hours, we will generally be happy to put in the required hours to get the job done. However, the problem arises when the “long hours” become “excessively long hours”. I had a friend who once left her office at 11pm (the earliest she had left the office for the entire month) and got into the lift with a partner from her department. The partner asked her why she was leaving so early and the next day at 10:00am the partner gave her three new files to handle and informed the other partners and senior associates in that department to assign more work to her including administrative secretarial work as she “obviously had capacity”. She left around 4 or 5am everyday for the next few months and was completely miserable. Of course, this is not representative of the legal industry in Singapore as a whole – but it is important to realise that (a) there should be separate lifts for partners and associates and (b) if the partner whom you are working for holds the belief that trainees or junior associates must “pay their dues” and work until the sun rises the next day, this might not be sustainable beyond a matter of months. I suppose at the end of the day you choose your bosses as much as your bosses choose you, so choose wisely. On the flip side, I know of some legal eagle friends who feel that it’s expected of them as trainees or young junior associates to stay late in the office and work non-stop. When I completed my first all-nighter and emerged from the darkness of the boardroom at 6am, some of my lawyer friends rejoiced for me. In their minds, the all-nighter I pulled was similar to a badge of honour. I had now joined the ranks of “true corporate lawyer”. While it is good to be motivated at the start of your career, it is worth noting that your career is a marathon and not a sprint. Coming back to the point above, and luckily for me, my boss was quite nice about the 6am all-nighter and let me off early on Friday that week. In terms of whether men and women are affected differently: I don’t suppose working long hours affect women or men differently at this point in time. It really boils down to the priorities that the individual has. Ultimately every person only has 24 hours in a day to allocate to achieving different goals in life. If a person is more career-minded, he/she might be happy to focus more on the career and spend more time in the office; but if a person is more family-oriented, he/she might become more sensitive to long working hours. Does the legal sector promote traditionally masculine traits such as aggression, competitiveness and confidence over traits such as empathy, compromise and tolerance which are generally regarded as more feminine? If so, do you think this is problematic or necessary in certain practice areas? I don’t think the legal sector promotes traditionally masculine traits over traditionally feminine traits. Actually, this question reminds me of a recent scandal where a firm sent a memo to their female lawyers with tips on how best to present themselves. 132

Crystal Ma is an associate at RHTLaw Taylor Wessing, in the Corporate and Capital Markets Practice. A graduate of the University of Queensland, she has also been involved in volunteering at the Bhakti Luhur Foundation in Malang, Indonesia, which attempts to rehabilitate and provide shelter and education for disabled and orphaned children in the area.

I wonder how many negotiations were affected and/or stalled in that firm by their inconsiderate female lawyers who giggled and/or spoke in high voices during negotiations. I know of a partner in another firm who purposely brings a rather attractive young female associate for certain board meetings (especially when the board is filled with old men) and lets her present one or two contentious points to the Board. I also know of many male partners who emphasise compromise, empathy and compassion at the start of the transaction to build rapport with the other party’s counsels and in the final stages of the transaction such that finalising the documents becomes more efficient and effective. This is a side point, but the legal sector in Singapore is really small and sooner rather than later, you will be interacting with the same lawyers on different deals. It always helps if you are able to discuss matters with the other party’s counsel on the side and it is hard to establish and maintain a relationship with other lawyers if you are constantly aggressive and competitive. If any, what sort of changes do you think would be most beneficial to women in law? In relation to women doing transactional legal work, I think ultimately what would benefit women is a predictable schedule. Transactional work is unpredictable in nature and women who have families will need to plan ahead. Take yesterday for example. At 6:15pm I realised I would probably be able to finish all my outstanding urgent work (one can never finish all the outstanding work, just the urgent work) around 7:30pm and arranged to meet my friends for dinner 7:45pm. At 7:35pm 133

my boss comes up to me, says that the client wants to have a meeting now and that the client is on his way to the office. This client meeting ended at midnight and I didn’t have a chance to meet my friends. Replace friends with family commitments, dating, yoga classes, bible study, volunteer work, anything. If your schedule is so unpredictable, there is no way to make plans ahead of time. My friend in another firm complained the other day that she has probably spent half her salary paying late pickup penalties because she could never get to the childcare centre to pick her child up on time. Ideally, firms would have flexible working hours or work arrangements and family-friendly policies. The law firm that I work at has a flexible working arrangement scheme tailored towards staff and my team has two individuals on this flexible working arrangement - a male lawyer and a female secretary. While some firms do have flexible working schemes, this is still uncommon in the industry and sometimes not encouraged. There is also a fear (whether justified or unjustified) that staff on flexible working schemes may not be considered for promotions or may not be viewed as dedicated to their jobs as their counterparts. The reality is that at the end of the day, law firms are businesses and with every business, decisions are generally made based on profit. If you have the ability to make rain, firms will be happy to provide you with flexible working arrangements and let you influence firm policies. It’s that simple. However, I am positive that with time and when more women rise through the ranks, flexible arrangements and family-influenced policies will gradually be more commonplace in the industry.

Photo Credit: Flazingo Photos https://www.flickr.com/photos/124247024@N07

THE GREAT JOB HUNT: APPLYING TO LAW FIRMS by Primrose Tay University College London It is often difficult to know the extent to which activities and interests should matter in a training contract application. Some firms ask specifically for such details to be included in their cover letter, while others make no such mention. Furthermore, the details of applying for a job in a Singapore law firm differ slightly from the UK system. While UK firms mostly use an online application system in which candidates enter answers to a variety of questions and are given word counts for each, Singapore firms traditionally require a curriculum vitae and cover letter in most cases. What are employers looking for when they ask candidates about their activities and interests? Should it matter? Stefanie Yuen Thio of TSMP Law Corporation explains that TSMP specifically asks about the non-academic interests of potential recruits because their intention is to hire partners rather than associates. Aside from academic abilities, the ability to work in a team and keenness to take on responsibility are highly valued. Partners need to be independent, creative thinkers with unique personalities. Thus students who spend all their effort solely on excelling academically often do not make the cut. RHTLaw takes a different approach. They do not ask for details on candidates’ activities and interests because while they prioritise understanding the motivations of their staff both professionally and in their leisure time, they believe that this is more authentically reviewed when a relationship has been formed with the candidate. According to Stefanie Yuen Thio, when firms ask about activities and interests, they are looking for a candidate who displays

sound commercial sense, ability to view issues form different perspectives, be creative in solutions and have a high Adversity Quotient. In her experience, these skills tend to be present when a person has experienced more in their life and has put in the effort to widen their horizons. Similarly, RHTLaw believes that having balance in life is important and therefore believes that its lawyers should have outside activities and interests. Nevertheless, to them, the exact interests or activities are less important as they do not believe such correlates to legal ability. Rather, they hope, but do not believe it necessarily will, reveal a candidate’s attitude and aptitude to work, work style preference and ability to work in a team. In addition, they are looking for confidence, integrity and adaptability. Thus, similarly to the approach taken by TSMP, a candidate who has made the effort to actively widen their horizons and show curiosity about the wider world is looked at favourably. Regardless, it is evident that whichever way that an employer approaches the issue of finding out more about a candidate’s personality type, what matters most is which approach you are comfortable with. For example, firms that have a more pronounced emphasis on candidate’s interests may be more likely to ensure that employees have similar goals and beliefs about the direction a firm should take. As such, careers advisors all strongly recommend researching the firm and determining if it is a place that the candidate can see himself/herself developing their career rather than a search for the most prestigious firm that will have him. Ultimately, longevity in a legal career has at least as much to do with a candidate finding the right fit in a firm as it does with legal ability. 134

Josephine Tinsley is an Associate in the Finance and Projects Practice Group of Baker & Mckenzie. Wong & Leow, Singapore. She graduated from the University

Dinesh practises international arbitration and commercial litigation at Allen & Gledhill.

in the City of London for four years prior to completing her GDL and LPC at Nottingham

He has acted as lead counsel in international arbitration for global multinational corporations in the telecommunications, airline, hotel, commodities, construction and projects industries.

Ashurst LLP in London and Madrid and joined Baker & Mckenzie. Wong & Leow as an Photographed by Zachary Tan

ARBITRATION IN SINGAPORE by Samantha Kong University of Southampton

Yee Leongâ&#x20AC;&#x2122;s primary area of practice is international arbitration specialising in the areas of energy, oil and gas, power and infrastructure projects in Singapore, Malaysia and the region. He is also a partner at Allen & Gledhill. 135

Samantha Kong

ARBITRATION IN SINGAPORE Arbitration is a field of law that has been gaining significant momentum and popularity as a means of dispute resolution in Singapore. The process involves submitting a dispute, by agreement of the parties, to one or more arbitrators who make a binding decision on the matter. It functions as a private dispute resolution procedure as opposed to pursuing the issue in court. Two important things to consider when resolving a dispute are determining the method of dispute resolution to apply and identifying the country whose laws should govern the dispute. Over the years, litigation through the courts has become a less popular means of dispute resolutions in cases involving crossborder transactions and “foreign” parties. Commercial parties often feel that litigation in other jurisdictions is unfamiliar, expensive and time consuming. Furthermore, the result may not be as satisfactory as compared to those of arbitration, whereby both parties aim to work towards a compromise. There also persists a perception that litigation favours the party from the same jurisdiction. A combination of the above factors has led to the increasing popularity of alternative methods of dispute resolution, such as arbitration.

A counsel representing a party in an arbitration assists a party in presenting its case before an arbitral tribunal. In that role, the work of an arbitration counsel is not that different from a counsel in a court case except that the procedural rules and style of presentation would be different. The work of an arbitration counsel includes: a) Attending meeting with clients and taking instructions; b) Advising clients on the merits of the case and the legal issues; c) Reviewing documents and interviewing witnesses; d) Drafting advice, submissions, witness statements and other necessary documents; e) Preparing witnesses for hearing; f) Cross-examining witnesses; and g) Making oral submissions to the arbitral tribunal.

Mr Dinesh Dhillon and Mr Chong Yee Leong from Allen & Gledhill tell us more about the day-to-day life of an arbitrator.

A typical day of an arbitration counsel would include working on any of the tasks set out above.”

A brief overview of the typical day of an arbitrator

Dinesh describes his typical day as an arbitrator, noting that “My practice is primarily as an arbitration counsel although I have sat as an arbitrator in several cases. On a day when I am sitting to hear a case as an arbitrator, I typically start early by going through the papers relevant to the day’s hearing. For example, if a specific witness is going to give evidence, I would make it a point to familiarise myself with his/her statement of evidence. During the hearing, the arbitrator’s main role is to listen as well as assess the demeanour of witnesses. As parties involved in the dispute may occasionally be too emotionally involved (not a good thing), it is important to always remain calm and objective so as to ensure control of the proceedings. When the day’s hearing is over, I would spend some time taking stock of what is anticipated for the next day. Once done, it would be time to relax and ensure a good night’s sleep so as to be ready for the challenges of the next day’s hearing.”

Yee Leong gives us an overview about the two parts to arbitration and what each role entails. “The practice of an arbitration practitioner can, in general, be divided into two parts: practice as an arbitrator and practice as a counsel in an arbitration. Whilst some practise solely as arbitrator, most practitioners do both types of work. An arbitrator sits, either alone or as part of an arbitral panel, and adjudicates on cases that are brought before him/her. The work of an arbitrator includes: a) Attending meetings with counsel and parties and providing directions on how the hearing should be conducted; b) Reviewing and hearing any applications by any of the parties on procedural and evidential issues and issuing directions on such issues; c) Reviewing documents such as submissions made by parties, documentary evidence, hearing transcripts and legal authorities; d) Sitting and hearing presentation of oral evidence, cross-examination of witnesses and oral submissions by counsel and parties; e) Deliberating on the submissions and evidence presented by counsel and parties; and f) Drafting awards. A typical day of an arbitrator would include working on any of the tasks set out above.

Next, we learn about what distinguishes arbitration from other forms of legal practice, and what it takes to excel in the field. Arbitration, being an alternative method of dispute resolution, settles matters outside of judicial proceedings. It is a field that requires a diverse and varied skill set, not least the ability to diffuse tension in difficult situations. WHAT IS THE MOST DISTINCT DIFFERENCE BETWEEN ARBITRATION AND OTHER TYPES OF LEGAL PRACTICE? Dinesh tells us more about the main differences between arbitration, litigation and corporate law. “Arbitration is a means of dispute resolution whilst corporate law is a means of facilitating business when no dispute is involved. The key difference between arbitration and litigation is that arbitration is a private means of dispute resolution where the Tribunal’s jurisdiction stems from the contractual agreement of the parties. Litigation is a public means of dispute resolution 136

Arbitration in Singapore

administered through the State Courts and the jurisdiction of the Court stems from state legislation.” Yee Leong explores the different role that the arbitrators play as compared to litigators and corporate lawyers. “The work of an arbitrator is completely unlike practice as counsel or legal representative in other areas of law because an arbitrator does not have a client. An arbitrator is appointed to act as an impartial and independent adjudicator to make a decision on disputes between parties in an arbitration proceeding. As such, an arbitrator has to make a decision and deliver an award based on the law and evidence presented before him. The work of an arbitration counsel is quite similar to being a counsel in court litigation.” WHAT ARE SOME OF THE COMMON DIFFICULTIES ENCOUNTERED IN A CASE? Dinesh tells us more about the challenges encountered when working with clients from various jurisdictions. “As international arbitration involves cross-border deals which may be multi-jurisdictional, a common challenge relates to securing the attendance of unwilling but yet crucial witnesses to give evidence before the Tribunal. If the witness is in a jurisdiction which is not friendly to a foreign seated arbitration, it will be an uphill task to secure the necessary evidence to prove a case.” Yee Leong elaborates on day-to-day difficulties that arbitrators may encounter when working on a general case. “The task of an arbitrator is made most difficult when counsel or a party does not provide any or proper presentation of its case. This happens when a party refuses to participate in the arbitration proceedings or when a party does not have a good counsel to represent it. In such circumstances, the arbitrator has to be careful to ensure that its decision is impartial and based on proper legal principles and evidence presented before him.” Last but not least, both Dinesh and Yee Leong share their thoughts on what attributes and skills a good arbitrator should possess. WHAT MAKES A GOOD ARBITRATOR “Dinesh: The most important attributes of a good arbitrator are impartiality and a good knowledge of the law coupled with the commercial sensibilities to appreciate the issues involved in the dispute. Being an attentive and good listener is also crucial.” “Yee Leong: A good arbitrator should be patient, have an open mind and a good grasp of the law.” Within the past decade, Singapore has been preparing itself to ensure that it has practical support for international arbitrations. In 1994, Singapore adopted the UNCITRAL Model Law to apply to international arbitrations. UNICITRAL was founded by the United Nations in 1966 with the aim of harmonizing international trade law and its practical effect is to minimize judicial interference with arbitrations in Singapore . Also, the Singapore International Arbitration Centre (SIAC) was set up in 137

July 1991 as a support facility to ensure the smooth running of arbitration proceedings conducted in Singapore. Below, we are also reminded of how Singapore has a conferred advantage in arbitration due to the country’s unique characteristics. THE FUTURE OF ARBITRATION IN SINGAPORE “Dinesh: The future for Singapore as an arbitration centre is very bright. It has already established itself as one of the leading arbitration centres of the world. It has first class support for arbitration from the judiciary.” “Yee Leong: Arbitration has a bright future in Singapore. In the past twenty years, Singapore has blossomed as a regional centre for arbitration because of the growth of globalisation and unprecedented cross-border investments in Asia. This is because Singapore has many attributes that make it a suitable arbitration centre. Some of them are: a) Excellent legal, professional and logistic infrastructure to facilitate arbitration; b) Efficient and respected court system to support arbitration proceedings; c) Pro-arbitration legal system; d) Neutral venue; e) Absence of corruption; and f) Wide use of English. Given that three of the biggest growth engines for the world economy are in Asia, i.e. China, India and South-east Asia, the demand for an efficient, neutral and good dispute resolution centre can only increase. As one of the most well-known and in demand arbitration centres in Asia, Singapore will benefit immensely from this projected scenario.” Indeed, Singapore seems to be carving a name for itself in the global arbitration scene. Its open economy, business environment and low levels of corruption attract clients from all around the world. Singapore also offers to conduct its arbitrations at Maxwell Chambers, Asia’s largest integrated dispute resolute complex. With a strong foundation in place, Singapore is well set, both legally and commercially to become a global leader in arbitration and a hub for alternative dispute resolution.

THE INNOCENCE PROJECT:

PRO BONO IN SINGAPORE: by Samantha Kong University of Southampton The view from the defendant’s box in an old Supreme Court courtroom.

Photo credit: Liana https://www.flickr.com/photos/_liana/4973690954

Ben Whishaw once remarked, “The Criminal Justice system, like any system designed by human beings, clearly has its flaws.” Singapore’s Innocence Project was founded by a group of National University of Singapore law students, with the aim of providing recourse for individuals who believe that they have been wrongfully convicted of crimes. The project is a collaboration between the NUS Criminal Justice Club, The Law Society of Singapore and the Association of Criminal Lawyers in Singapore (ACLS).1 At present, the Innocence Project in Singapore is not affiliated with any international Innocence Projects or networks.

The cases that come before the Innocence Project are generally limited to applicants who claim to be factually innocent of the crime for which they have been convicted and have exhausted all avenues of appeal open to them. Student Members of the project, together with faculty advisers Professor Michael Hor and Assistant Professor Cheah Wui Ling, will selectively approve cases based on the merits of the application. Successful applicants will be brought before lawyers from the Law Society of Singapore and ACLS. The lawyers and students will then undergo discussions about the case involved, and lawyers are free to take up the case pro-bono.

1 “Innocence Project a “safety net” in justice system”, TODAY, p19, 18 May 2013.

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The Innocence Project: Pro Bono in Singapore

In this first segment, we feature the faculty advisors Professor Hor, Assistant Professor Cheah and the Project Head of the Innocence Project, Wang Ye.

In your opinion, to what extent is the alternative pathway created by the Innocence Project effective in ensuring that justice is served?

In recent years, there has been increasing emphasis placed on pro bono in the Singapore legal scene. There are now proposed measures to encourage pro-bono work in Singapore, such as the Committee to Study Community Legal Services Initiatives (CLSI Committee)’s recommendation for the mandatory reporting of pro bono hours by practising Singapore lawyers. We explore how the Innocence Project falls in line with this objective.

Professor Michael Hor: The Innocence Project in Singapore is much too new for any reliable assessment of effectiveness. What we can say is that, at the moment, it is the only systematic attempt at providing recourse to those who remain dissatisfied with a criminal conviction for which all regular avenues of appeal have been exhausted. There is, in short, no other alternative in the jurisdiction. Whether or not in the years to come the Innocence Project will manage to assist in the overturning of wrongful convictions remains to be seen. Much will depend on the commitment and staying power of the Innocence Project, and on the cooperation of other institutions like the Law Society and the Attorney-General’s Chambers. I myself am cautiously optimistic that the Innocence Project has come at the right time for Singapore, when it is transitioning into a more confident democracy.

Do you think the Innocence Project will help to promote the pro bono scene in Singapore? If so, in what way? Professor Michael Hor: The Innocence Project, and its larger umbrella the Criminal Justice Club, was in a very significant way a precursor of the increasingly active pro bono scene in Singapore. This is especially so with the involvement of law students in pro bono work. When the Innocence Project was first set up a few years ago, there was little opportunity for law students to engage systematically in pro bono criminal justice work. Remarkably, it was entirely student-conceived and driven. If I am not mistaken, it is probably the first club or project in the Law Faculty set up as a result of student initiative for a very, very long time. Assistant Professor Cheah Wui Ling: Yes, I believe that the Innocence Project (“the Project”) contributes to the pro bono scene in Singapore. First, from its very conceptualisation, the Project has been led and run by law students from NUS. Students are responsible for not only individual applications and cases, but also the Project’s long-term direction, its external relations, and day-to-day administration. In other words, their practice of pro bono not only focuses on the individual case at hand, but also requires an understanding of the Project’s place and its objectives within the larger criminal justice system. Second, the Project gives students the opportunity to be involved in pro bono work at a highly engaged level during their formative years. These students may be more motivated, and find it easier, to continue doing pro bono work when they enter the workforce. Third, the Innocence Project investigates cases of potential wrongful conviction that have exhausted appeal avenues. Such cases raise specific substantive and procedural issues. No other independent body in Singapore currently deals with such cases in a targeted manner. The Project addresses this gap. Wang Ye: Yes, I think so. In my opinion the Innocence Project is one of the most hands-on pro bono projects around. The work our members do probably represents the furthest extent of what law students who are not yet qualified lawyers can do. So while one way of promoting a pro bono culture is through exposure and cultivating habits, what the Innocence Project also does is to build confidence in our members to take on criminal law pro bono cases in the future even after their graduation. Apart from encouraging pro bono work in the legal sector, the Innocence Project performs a very important function, which is to provide a “safety net” that complements the current criminal justice process. At the same time, it potentially increases public confidence in the criminal justice process. Professor Hor, Professor Cheah and Wang Ye elaborate on the effectiveness of the project and the difficulties that they have encountered. 139

Assistant Professor Cheah Wui Ling: The Innocence Project is still relatively young. It was officially launched in 2013. However, it has already received a significant number of applications from individuals. From my observations, the Project’s members have been effective in educating the legal community and wider public about the risk of wrongful convictions and the need for an independent expert body to investigate claims of wrongful conviction. Wang Ye: I think this depends on what you mean by effectiveness. My predecessors and I were certain from the outset that the success of our Project should not be measured quantitatively by the number of cases we send before the courts. What we strive to do, however, is to ensure that we leave no stone unturned in investigating every single case that comes before us. That is the yardstick by which I would gauge our effectiveness, and to that end, I believe we are doing well. What are the common problems one might face when dealing with a case in the course of the Innocence Project? Professor Michael Hor: It is easy to perceive the Innocence Project as being antagonistic to almost every player in the criminal process. What it seeks to do is to identify and correct “mistakes”. A wrongful conviction has the potential of casting a poor light on the courts, the prosecutors and police, and even the defence counsel. If something went wrong, so it can be reasoned, then someone must have bungled somewhere. This can create an instinctive aversion to the whole idea of an Innocence Project. Yet if one were to look at this in a more mature and enlightened manner, it is impossible to fashion a criminal justice system which never ever makes a mistake. While we can and must try to improve the system, some people will eventually slip through the cracks. Once that is recognised, then the right thing to do in such a situation is to set up a system to correct the error. Indeed the existence of such a scheme is testimony to the primacy of our undoubted commitment to justice and fairness. We have had the fortune of many influential people in the Courts, Chambers and the Bar who also regard the Innocence Project in this fashion. Assistant Professor Cheah Wui Ling: As Singapore does not have data access laws or freedom of information laws, the Project’s members may face problems in obtaining information relevant

Samantha Kong

to their investigations from government agencies or private actors. The Project has established a good working relationship with various government agencies and ministries, such as the Attorney General’s Chambers and the Ministry of Law, and it is hoped that this will facilitate any necessary information exchange in the future. Also, there has not been sufficient research on the issue of wrongful convictions, its potential causes, or the applicable court procedure in Singapore’s context. The Project is thus operating in relatively unknown terrain, which can be both exciting and confusing at the same time. Wang Ye: One problem might be the lack of authority when asking third party persons or organisations to help us with our investigation, for instance, to secure CCTV footages, because, after all, we are not lawyers and any assistance rendered is given purely on the good faith of that person or organisation. Another problem is the evidential difficulty that we face given that most of our applicants approach us a long time after they have been convicted. These problems are unavoidable to some extent but what is more important is how we can overcome them. I’ve seen members circumvent these seemingly insurmountable problems by pretty ingenuous methods or simply by their sheer sincerity and resolve. Apart from the Innocence Project’s value-add to the criminal justice system and the numerous benefits it brings to the convicted, it has also proved to be an eye-opener and rewarding experience for its volunteers. Our project representatives tell us more. Why should young lawyers be encouraged to join the Innocence Project? Professor Michael Hor: I have no doubt they should be. First, the best way of understanding the criminal and its process is to see how things can go wrong. It is the best lens through which the law and practice in this area can be studied. More than that, it also provides a way for law students to express and grow their altruistic instincts and values – to do something without thought of self-gain, but purely for the good of someone else. We can never have enough of this kind of spirit. Assistant Professor Cheah Wui Ling: The NUS Innocence Project works closely with the Singapore Law Society and depends on the expertise of lawyers when a case has to be brought before the court because, presently, Singapore law students are unable to take on any legal representation of clients. In addition, the students often seek the advice of pro bono lawyers on the practical and procedural issues encountered in cases. Wang Ye: The Innocence Project is a student-led project at present and therefore we do not have professional lawyers as members. If you’re referring to why students should join the Project, the reason is simple. The Innocence Project is one of the best ways you can apply knowledge learnt in classrooms into practice. Academics aside, the Project also provides a concrete means for students to effect palpable positive change within the criminal justice system. This is an experience that I think is definitely unique to the Innocence Project.

How has the huge international outreach of the Innocence Project benefitted the participants of the project? Professor Michael Hor: I think the Innocence Project in Singapore was historically very home-grown. It is only beginning to realise the international dimensions of what it is doing. Recently, Innocence Projects from other jurisdictions have asked if they could come on a study tour of our Innocence Project, and that caused some concern as it was felt that there is at the moment little to study! But I expect the international linkages to blossom in the next few years with the Innocence Project in Singapore drawing inspiration and resources from elsewhere, and perhaps with increasing experience, the Innocence Project in Singapore exporting its expertise. Wui Ling: In terms of international outreach, as mentioned above, the NUS Innocence Project has decided to take a context-specific approach to addressing the question of wrongful convictions. While it shares the concern over wrongful convictions with Innocence Projects in other countries, the NUS Innocence Project has developed an approach and process that is tailored specifically to Singapore’s criminal justice landscape. Wang Ye: Innocence Projects around the world have been making big waves recently. We regularly draw inspiration for articles on our website, sginnocenceproject.com, from what is happening in the international scene. At present though, our Project is not affiliated with any of the international Innocence Projects or networks. Being a relatively new initiative, the Innocence Project has plenty of room to develop. Indeed, its role in the criminal justice process in Singapore is as yet still finding its footing. Our project representatives share with us what the main goals and aspirations for the Innocence Project are. What will be the direction of the Innocence Project for the next five years? Professor Michael Hor: The Innocence Project in Singapore remains very student-driven and everything depends on the crop of leaders it manages to recruit. But so far, we have cause to be optimistic. I would expect the Innocence Project to concentrate on getting down to the real business of investigating actual cases of suspected wrongful convictions. It would be good if the Innocence Project eventually manages to get a wrongful conviction overturned. I would also like to see the Innocence Project eventually getting involved in the business of recommending law reform in the context of criminal justice, for prevention is always better than cure. Assistant Professor Cheah Wui Ling: As the NUS Innocence Project is largely driven by the students, they will be in the best position to address this question. Our role as advisers of the NUS Innocence Project has been largely reactive rather than proactive. The students keep their academic advisers informed of their cases, plans, and various programmes, with the aim of seeking our advice and input. However, the students remain the main driving force of the NUS Innocence Project. Wang Ye: I personally would like to see the Project develop expertise in the fields of criminal law, evidence, and procedure. This would allow us to delve deeper into the legal analysis of cases that come before us. We also wish to give our members 140

The Innocence Project: Pro Bono in Singapore

a more meaningful experience, one that will teach them practical skills and give them confidence in handling criminal law cases even beyond their term with the Project. To that end, membership training will definitely be a focus for us. We are also trying to keep as comprehensive a record of our applications and investigations as possible so that we can build a strong “knowledge bank” that may come in useful to future batches. There are indeed many things we are trying to do. If there is a particular direction that I must say we are set to follow, it will be for our Project to have a wider outreach and be able to do our job more effectively and efficiently. Armed with a macro view about the outreach and aims of the Innocence Project, we shift our focus to the actual experiences of caseworkers that are in the Innocence Project itself. In this segment, we hope to present different perspective of the Project’s casework, such as elaborating on the practical difficulties (as mentioned by Professor Cheah earlier) that the students face while working on a case. Group leaders Elena Tan and Jeremy Goh share with us their personal experiences in the Innocence Project. Has working with the Innocence Project changed your perspectives on criminal justice? Elena: Yes, definitely. As much as I sincerely believe that the criminal justice system in Singapore is highly efficient (as evident from our extremely low crime rates), the kind of cases that the Innocence Project receives reminds me of how no legal systems are perfect, and there could always be accused persons who fall within the cracks. The Innocence Project is one of the safety nets for accused persons who believe that they have been wrongfully convicted, or maligned by the criminal justice system. It is a very meaningful cause that allows law students to use our limited legal knowledge to help accused persons in a personal way by interviewing them and reviewing any possible leads in their cases. Jeremy: Definitely. My involvement in the Innocence Project has certainly made me more aware that no criminal justice system is foolproof. There will always be people, however minute the numbers that fall through the cracks and crevices, with no fault of any of the parties involved. Even in Singapore, with our highly regarded criminal justice system, there had been an instance of a wrongful conviction (Muhammad bin Kadar v. Public Prosecutor) What are some of the practical difficulties you have encountered while working on a case? (e.g. Difficulties in relation to Singapore’s lack of data access laws/ freedom of information laws etc) Elena: The practical difficulties often faced while working on a case would definitely be evidential difficulties (e.g. CCTV footage no longer available after 3 years at a Singapore shopping centre, unwilling possible eyewitnesses). Specifically in relation to Singapore’s legal system, one difficulty I did face was with regard to oral judgments. For many cases at the State Court in Singapore (e.g. the District Court, the Magistrate Court), when they are relatively simple criminal cases (e.g. theft, voluntarily causing hurt), there is no written judgment available. In the case I was working on, the applicant claimed that the judge misunderstood and disliked him during the trial, and he was suddenly fined an additional SGD 2000 as a result. While we 141

had a strong inclination that the additional SGD 2000 was for contempt of court (under s 8(2) of the Subordinate Courts Act), we had no real ways of finding out if there was no written judgment available. Jeremy: Inexperience. While the Innocence Project has been around for quite some time, the Innocence Project in Singapore only launched officially last year. As with any new organisation, there was quite a bit of uncertainty in the beginning. Most of our volunteers were taking on applications without any formal training and experience. Needless to say, there was a lot of ironing out of kinks, and improving our operating procedures and guidelines. I went into my first Innocence Project case not really knowing what I was getting into, and on hindsight, I think there were certainly a number of things that I could have done better. For instance, how I could have better conducted my interview with the applicant – what sort of questions to ask, how to better react to the response I received and so on. But I think these are skills that only come with experience, and it is an inevitable obstacle that goes along with the journey. Delays. Our partners have fortunately been very cooperative. We work very closely with CLAS, and they have always been accommodative with our requests for more information. At the same time however, because we collaborate with external parties, the correspondences may sometimes lead to delays, and that affects how quickly we can get back to an applicant after we receive an application. Please share with us your most memorable experience as a caseworker. Elena: I have had the opportunity to interview one applicant twice this year while working on different teams, and I was struck by how his account was almost entirely the same during both interviews. It was a voluntarily causing hurt case, where the applicant was alleged to have punched a woman, and the applicant spent most of his time recounting his history of animosity with the victim, and how displeased he was with the criminal justice system. The fact that both accounts were so similar made me realise how he could have perhaps told the same story to so many other people, and how beyond seeking a review of his case, the applicant could simply be looking for some form of understanding and affirmation from others that he was indeed maligned. To me, this was a precious reminder of how the Innocence Project has a great impact on the applicants that we work with, and that we must use this privilege to review their cases with responsibility. Jeremy: I think my most memorable experience was when I first stepped into the prison compounds to conduct my very first interview with an applicant. So what was memorable about it? I am not too sure it be described in words adequately – it was not that I overwhelmed with emotions or anything; and neither the applicant, it was just so spectacularly ordinary that it ironically so memorable.

can was was was

In fact, I think I was more excited than the applicant. I remember thinking to myself, why was the applicant so calm? Is he numb?

Samantha Kong

Has he resigned himself to his fate? Has he given up? Or is he just putting up an act? Is he lying? On hindsight, perhaps the reason why that very first interview will always be so memorable is because it made me realise that there might be people out there, who though wrongfully convicted have given up hope. And so, it made me feel viscerally for the first time, how it was important for there to be something like the Innocence Project, to act as a safety net. But I think the biggest lesson that I took away from that first case I worked on, was how as lawyers to be, or even as a person, we should never be too quick to judge and jump to conclusions. This is even more so in the Innocence Project, where our role is really to investigate and not to pass judgment. I remember as I was walking out of the prison after conducting the interview, how I was already half convinced that the application was an unmeritorious one. Fortunately, we have a President (Wang Ye), who is perhaps one of the most dedicated and clear minded persons I know. With his probing and often critical and difficult questions that he posed to the team, we soon realised that there were indeed several contentious and unresolved points that we could further look into. And I really thank him for showing us that. Based on the shared view that even in the best criminal justice systems errors cannot be ruled out, the Innocence Project is a promising enhancement to the legal system in Singapore. It presents a completely novel way for addressing shortfalls in our current system, and we certainly hope this project helps enhance the underlying objective of our â&#x20AC;&#x201C; indeed, any â&#x20AC;&#x201C; legal system â&#x20AC;&#x201C; that justice may be served. For more information about the Innocence Project, please visit http://sginnocenceproject.com.

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The United Nations Human Rights Council sitting in Geneva, Switzerland.

Photo Credit: United Nations Photo https://www.flickr.com/photos/un_photo/6153864780

DEFENDING HUMAN RIGHTS: SOMEBODY’S GOT TO SPEAK UP by Esther Lim University College London In Singapore’s national report to the Human Rights Council as part of the Universal Periodic Review in 2011, the government stated: “We insist on the rule of law to ensure stability, equality and social justice. Stability and security are the prerequisites of economic growth, which in turn enables Singaporeans to be fed, housed and educated. Singapore has achieved all this while respecting the fundamental human rights enshrined in the Universal Declaration of Human Rights and the Singapore Constitution”. Given this backdrop, unlike many western developed countries, human rights do not play a particularly prominent role in Singapore. As such, many Singaporeans do not know much about the active civil society that has developed despite the lack of government support. In this feature, we speak to three human rights activists about their work and opinions on Singapore’s human rights scene.

THE HISTORY OF HUMAN RIGHTS IN SINGAPORE Our first interviewee, Mr. Peter Low, a former president of the Law Society, is often in the news due to high media interest in his caseload. For instance, he has represented Professor Tey Tsun Hang in the now infamous “sex for grades” trial, the SMRT bus drivers after the strikes in 2012, and Ms. Koh Li Ping and Brother Anthony Tan in highly publicised criminal breach of trust cases. However, few may realise that Mr. Low has acted as counsel in many of Singapore’s constitutional and public interest cases, such as the defamation suits against Chee Soon Juan and the Far Eastern Economic Review, as well as the habeas corpus motion for Internal Security Act (ISA) detainee Chng Suan Tze. 144

Defending Human Rights: Somebody’s Got to Speak Up

Mr. Low, who is also a founding member of MARUAH,1 spoke of the challenges facing human rights activists in Singapore in the past, listing firstly, the “climate of fear” engendered by the ISA. According to section 8(1)(a) of the ISA, an individual can be detained without trial for any period not exceeding 2 years to prevent that person from “acting in any manner prejudicial to the security Mr Peter Low of Singapore”. Section 8(2) allows the 2-year detention period to be extended for further periods not exceeding 2 years at a time. Although detention without trial appears to violate a number of the fundamental liberties guaranteed by the Singapore Constitution, Article 149, entitled “Legislation against subversion”, immunises the ISA from inconsistency with constitutional provisions protecting human rights.2 This includes the right not to be deprived of personal liberty (Article 9), the rights to equality before the law and equal protection of the law (Article 12), the prohibition of retrospective criminal laws and repeated criminal trials (Article 11), the prevention of citizens from being banished and guaranteeing them freedom of movement throughout Singapore (Article 13), and the rights to freedom of speech, assembly and association (Article 14). It is certainly arguable that past use of the ISA has had an adverse and chilling effect on the willingness of the citizenry to speak up on human rights issues – and, on the lack of willingness of lawyers to represent clients in politically sensitive cases. In 1977, when Mr. Low entered the legal profession, several of his law school seniors were arrested and detained indefinitely under the ISA, including Mr. G Raman, Mr. Tan Bock Chuan, Mr. R Joethy and the late Mr. Tan Jing Quee. Another lawyer, the late Mr. Francis Khoo had to flee Singapore to avoid arrest. He took refuge in the United Kingdom. “Over a decade earlier, in 1963, the government mounted Operation Coldstore to detain about 113 people. ISA arrests were also made in 1987 and 1988, and, among the detainees were former Law Society president, Mr. Francis T Seow, my former partner, Mr. Patrick Seong, my law school classmate and colleague, Miss Tang Lay Lee and my lawyer-friends, Miss Tang Fong Har and Miss Teo Soh Lung. Some detainees spent many years incarcerated without trial: for example, Chia Thye Poh (26 years in prison, 6 years confined on an island) and Said Zahari (17 years).” Given the dire consequences faced by those arrested under the ISA, one can certainly understand the resulting fear of taking up politically sensitive cases. Additionally, lawyers who entered politics like the late Mr. JB Jeyaretnam and Mr. Tang Liang Hong also had a difficult time with government leaders, including being faced with defamation 1 Maruah, meaning dignity in Malay, is a Singapore-based human rights non-governmental organization. 2 Jack Tsen-Ta Lee, “The Past, present and future of the Internal Security Act” (Singapore Public Law, 5 June 2012) < http://singaporepubliclaw. com/2012/06/05/internal-security-act/>.

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lawsuits. The threat of legal action as well as restrictions in freedom of speech and expression resulted in a stifling lack of political space, especially pre-1996, before the introduction of the Internet. “Dissenting views could not be disseminated through the Internet,” laments Mr. Low, and “alternative voices found little space for expression.” When asked what inspired him to take on so many high-profile, controversial cases given the many challenges faced by activists at the time, Mr. Low spoke of his strongly held belief that people need access to justice. He quoted Lord Hailsham, Chancellor of Great Britain, who argued that: “No one should be so poor, no one so wicked, above all, no one so unpopular or hated of mankind that he cannot find by his side in his hour of need, a trustworthy lawyer ready with advice and willing to throw into his service at whatever cost at himself, except the sacrifice of the high standard of ethics by which the profession is bound, all the talents he possesses at his command.” At the time, many opposition politicians such as Dr. Chee Soon Juan and Mr. Tang Liang Hong had difficulty engaging senior lawyers to act for them. Mr. Tang had even complained to the media that more than 12 senior lawyers whom he approached had turned down his brief because they were afraid to act for him against senior governmental figures that were suing him for defamation – these governmental officials included (then) Senior Minister Lee Kuan Yew, (then) Prime Minister Goh Chok Tong, (then) Deputy Prime Ministers Lee Hsien Loong and current President Tony Tan, cabinet ministers Rear Admiral Teo Chee Hean and Mr. Lee Yock Suan. He was quoted in the Straits Times, “The whole town – no lawyer was prepared to act”, Mr. Low recalls. Indeed, the problem of finding senior lawyers to act in public interest cases was not confined to situations where opposition politicians were involved, and was one Mr. Low grew accustomed to over the years. Mr. Low, who also defended Dow-Jones owned publication Far Eastern Economic Review (“FEER”) when it was sued for defamation by (then) Minister Mentor Lee Kuan Yew and Prime Minister Lee Hsien Loong, said that he came to do so “by default”. Dow Jones wanted the best litigator to defend FEER – a local Senior Counsel, the crème de le crème of Singapore’s top litigators. Mr. Low wrote to many Senior Counsels without success – “A few said they were unavailable because of other commitments, a few said defamation law was not their area of specialty. At least 2 Senior Counsel said the leadership of their law firms did not want them to accept FEER’s brief. Only one Senior Counsel responded somewhat less than positively; this Senior Counsel agreed to accept FEER’s brief, provided FEER agreed to accept liability for defamation so that the Senior Counsel could represent FEER in relation to assessment of damages payable to (then) Minister Mentor Lee Kuan Yew and Prime Minister Lee Hsien Loong. The condition was not acceptable to FEER.” Subsequently, Mr. Low’s application for the admission of an English Queen’s Counsel (QC) was also rejected. As a result, Mr. Low “was constrained to step up and acted for FEER.” Even today, Mr. Low expresses that there is a dearth of lawyers in Singapore prepared to take on public interest cases, citing a lack

Esther Lim

of fees to be earned as an additional possible reason. It was for this reason, and his own personal stance against Section 377A of the Penal Code, that Mr. Low stepped up to represent a gay couple, Gary and Kenneth, in their challenge in the High Court that the law criminalising sex between men violates the nondiscrimination provision in the Constitution, as he believed they needed access to lawyers and justice. However, Mr. Low “paid a sort of price for taking on the case.” Before accepting the brief, Mr. Low had previously allowed himself to be persuaded and agreed to be the president-designate of the Catholic Lawyers’ Guild, which he had helped to cofound a decade earlier. He was to be confirmed as president at the AGM, which was to vote in the new governing committee. However, just before the AGM – and, when word got out that he was taking up the legal challenge to the constitutionality of 377A - he was informed by a Catholic Senior Counsel that the priest who was the spiritual director of the guild had consulted the then Archbishop, Nicholas Chia, and that the archbishop was “stoically opposed to ur [sic] candidacy if you continue to represent certain persons or issue”. An attempt on Mr. Low’s part to highlight that the Roman Catholic Church had, at the UN General Assembly on 18 December 2008, called upon all States and relevant international human rights mechanisms to commit to promote and protect human rights of all persons, regardless of sexual orientation and gender identity, as well as urge States to take necessary measures to put an end to all criminal penalties against them, proved futile. In the end, Mr. Low elected to stay away from the AGM and did not assume helmship of the guild. That said, despite the concerns he must have had and the consequences he faced when taking on such controversial cases, Mr. Low’s guiding principle has always been to act professionally. As far back as 1997, he was quoted in the Straits Times3 as saying, “Anyone who acts professionally has nothing to fear.” CIVIL SOCIETY TODAY Nonetheless, in recent years, civil society, which we can understand to be the aggregation of various organizations, networks, and movements independent from the state that advance the interest and will of the citizens, has been gaining increased prominence. This development is in no small part thanks to the Internet. Mediums such as blogs, Facebook pages, YouTube videos have been used not only by politicians seeking to reach out to Singaporeans, but ordinary citizens hoping to share their views on hot button issues. Inevitably, social media has been indispensable to advocates hoping to raise awareness of human rights issues not commonly brought up in school syllabi or mainstream media. Of the notable political blogs that now exist in Singapore’s blogosphere, The Online Citizen (TOC) is one of the oldest and most well-known. We spoke to Mr. Choo Zheng Xi, co-founder of TOC, who started the website in late 2006 when he was still a law undergraduate at the National University of Singapore (NUS) because he “perceived a news vacuum when it came to civil society, human rights and issues relating to political plurality.” This was “painfully apparent” in the 2006 General 3 “Should lawyers pick and choose whom they wish to represent?” 5 April 1997, The Straits Times.

Elections “where coverage of the ruling party was uniformly more positive than that given to the opposition parties.” TOC was thus launched with the aim of “encouraging greater discussion of issues” by providing a platform where “like-minded individuals … [could] essentially create the type of news culture [they] believed in.” Unsurprisingly, TOC has evolved in the near-decade since it has been founded. At its genesis, TOC was unlikely to receive more than 100 visitors a day. Further, it was only Zheng Xi himself, his co-founder, Andrew Loh, and a handful of other writers such as now NCMP4 Gerald Giam contributing to the blog. Today, TOC has an average of over 20,000 unique views a day and close to 70,000 fans on their Facebook page. More importantly, despite being some distance away from mainstream news outlets in terms of absolute numbers, TOC has grown “a very loyal and supportive following who appreciate the work we’re doing and see value in having independent community media”.

Mr Choo Zheng Xi

However, the arrival of the Media Development Authority (MDA) regulations has definitely thrown a wrench into the world of political blogging in Singapore. MDA’s new licensing regime, launched in 2013, affects “news websites” that report an average of at least one article per week on Singapore news and current affairs over a period of two months, and are visited by at least 50,000 unique IP addresses from Singapore each month over the same period of two months.5 Licensed sites will need to remove content that is in breach of content standards within 24 hours, and post a performance bond of $50,000 (like all niche TV broadcasters are already required to do). That said, for TOC, the MDA regime has not been a main concern, due to the Government’s choice not to clarify whether or not the regulation applies to TOC,6 “though TOC’s visitor statistics place us within the Licensing Regime’s crosshairs”, Zheng Xi notes. Additionally, Zheng Xi points out that TOC is accustomed “to working under restrictive conditions”. TOC was gazetted as a “political association” in 2011 January, which has not slowed its growth, although it has somewhat hampered its ability to raise funds. TOC is also licensed with MDA under the Broadcast (Class License) Notification regime, which makes the named persons of the site’s core team personally responsible for material on the site and requires TOC to disclose invasive personal details like employer and work addresses, despite this, Zheng Xi feels, being “quite irrelevant to the running of the website”. However, having been a player in the local online media world since 2006, TOC has had a significant head start and has been able to “roll with the punches.” Zheng Xi voices his concern that “smaller online media start-ups that don’t have our head start will find the many licensing regimes confusing and onerous.” For instance, The Breakfast Network, helmed by 4 Non-Constituency Member of Parliament. 5 “Online Licensing Framework”, www.gov.sg 18 June 2013 <http:// www.gov.sg/government/web/content/govsg/classic/factually/20130618-factually-onlinelicensingframework>. 6 Tessa Wong, “Licence scheme: MDA starts with 10 sites” 29 May 2013, The Straits Times.

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veteran journalist Bertha Hanson, chose to shut down when onerous foreign funding and compliance regulations were foisted on her by the MDA under modified MDA Broadcast (Class License) Notification forms. “It’s a pity because seasoned writers like Bertha add value to an otherwise journalistically self-taught blogosphere,” Zheng Xi adds. Another possible way the regulations have negatively affected the climate of political social media is by serving as a deterrent to former journalists or young journalists looking to explore alternative media employment. “Which fresh grad in their right mind would want to be employed full time with an organisation that’s “blackmarked” by the government?” Zheng Xi points out, “Government scholarship holders would also think twice before contributing articles to a “Political Association” like TOC.” But the MDA regulations do highlight a very real concern regarding the quality of online discourse regarding political and human rights issues. On the quality of online discourse on human rights at the moment, Zheng Xi notes that “an increasingly flourishing new media space doesn’t necessarily equate to greater human rights awareness and discourse. Take, for instance, virulent web postings circulating invective against low wage foreign workers. It’s certainly a corollary of less inhibited self-expression, but it’s hardly healthy from a human rights perspective. But this is the reality of the internet-era zeitgeist: discourse is (and will get) more fragmented as barriers to access and propagation of information fall. This can’t be, and shouldn’t be controlled.” YOUTH AND ACTIVISM One may perceive the chilling effect on young graduates Zheng Xi predicted and the history of political prosecutions in Singapore as having a drastic effect on the future of human rights in Singapore. Young Singaporeans are stereotypically thought to be politically apathetic and more drawn towards the commercial world – with yet another perceived disincentive for entering the field of human rights, would it not be even harder to find youths willing to pick up the baton? Fortunately, there are more young people stepping up to found groups and start projects advocating for causes they believe in. Damien Chng cofounded “We Believe in Second Chances” in 2012 - before he entered university to advocate for the abolition of the death penalty in Singapore. Speaking of his motivations, Damien explains, “I’ve always felt a need to give back to society, especially since I’ve benefitted very much from Mr Damien Chng what society has given to me. I thought that advocating for human rights is one way to do so, especially since it is something that is extremely important but severely neglected in our country until recently.” Additionally, Damien pointed out that, “The long-term health of the country, the long-term stability that we seek, in my view, depends very much on our ability to treat every single person equally and with dignity.” Indeed, the abolition of the death penalty is an exceedingly interesting field to be involved in at this point in time. In 2012, Singapore amended the law such that the death penalty was no 147

longer mandatory in some cases, and more judicial discretion was granted. In Singapore, the offence of murder is defined in section 300(a) to (d) of the Penal Code, where section 3(a) requires the prosecution to prove intention to kill while sections 300(b) to (d) do not.7 Now, in cases of murder where killing is not intentional, the Court has the discretion to sentence the accused to death or life imprisonment.8 Additionally, where an accused is convicted of trafficking, importing or exporting drugs above a certain quantity, the Court has the discretion to sentence the accused to death or life imprisonment. Firstly, the accused must be found to be only a drug courier. Secondly, either the Public Prosecutor must certify that the accused has substantively assisted the Central Narcotics Bureau to disrupt drug trafficking activities, or the accused must prove he was suffering from such abnormality of mind that it substantially impaired his mental responsibility for committing the offence.9 “While we appreciate that the recent changes are a step, perhaps even a significant one, in the right direction, the reformed laws throw up a whole new set of problems that will potentially cause the punishment to be applied in an unfair and arbitrary manner,” Damien opines. Of course, it is difficult for to know for sure whether activists were ultimately responsible for this change. However, Damien feels that the various campaigns that put the death penalty into the spotlight would have either made it easier for the government to push ahead with its changes, or made it more difficult for them to justify the preservation of the mandatory death penalty regime. Now a first year law student, Damien is determined not to let his considerable workload get in the way of his advocacy work. While he is unable to write as many articles or reports as he previously could during the holidays, he still continues to monitor the effects which the amendments are having on inmates convicted before and after the changes took effect. This includes attending certain significant Court hearings, as well as keeping a record of the number of people on death row. In fact, Damien plans on specialising in public interest and human rights litigation, as well as continuing to advocate for issues he feels strongly about. “It will not be an easy task, especially since this area of the law is still relatively underdeveloped in Singapore and its rather difficult to earn a stable income from such work, but that is an even stronger reason why it is imperative for us to push the boundaries and find an operating model for such a practice to survive and perhaps even thrive.” CHALLENGES FACING THE FIELD OF HUMAN RIGHTS Unsurprisingly, our interviewees had different perspectives on what were the most pressing human rights issues in Singapore today. Damien spoke out for his cause, arguing that, “To me the most pressing human rights issue would be the continued use of the death penalty and caning. These punishments inflict extreme pain or suffering which are irreversible. It is therefore imperative that as much is done immediately to put a halt to these practices, or at least reduce their use as much as possible in the short-term.”

7 8 9

Section 300 of Penal Code (Cap 224). Penal Code (Amendment) Act 2012, No. 32 of 2012. Section 14, Misuse of Drugs (Amendment) Act 2012.

Esther Lim

On the other hand, Zheng Xi opines that, “freedom of speech and expression are foundational rights that constantly need to be protected, debated and interrogated not just locally but internationally.” These issues arise in many different contexts: in the debate about whether our Government should enact a Freedom of Information Act to whether the recent MDA regulations are legitimate restrictions on a burgeoning socialmedia news scene. One area Zheng Xi takes particular interest in is freedom of speech in the context of a species of contempt of Court known as “scandalising the Court”. According to the case of Hertzberg,10 the crime is committed when a person commits an act or publishes writing that conveys to an average reasonable reader allegations of bias, lack of impartiality, impropriety or any wrongdoing concerning a judge in the exercise of his judicial function. This offence is included under section 7(1) of the Supreme Court of Judicature Act, which gives the High Court and Supreme Court the power “to punish for contempt of court.” Although Section 14(1)(a) of the Singapore Constitution protects the right to free speech and expression, the High Court has found that the offence falls under the Section 14(2)(a) exception. Zheng Xi feels that the offence is “ embarrassingly colonial and parochial,” and thinks that “serious thought needs to be given to abolishing this offence legislatively the way it’s being done in the UK.” Mr. Low concurs that the lack of freedom of speech is a grave concern, arguing that it results in a controlled and restricted political space, and cites Singapore’s Reporters Without Borders ranking as 149 in 2013, below Thailand (135), Indonesia (139), Cambodia (143), Malaysia (145), Philippines (147) and Russia (148). “Allowing for more political space will enhance the citizenry’s ownership of a stake in Singapore, and strengthen a sense of common identity,” Mr. Low stresses. Mr. Low also commented on what he perceives to be the criminal justice system’s insufficient regard for the rights of arrested persons. In Singapore, arrested persons lack immediate access to counsel, and at times, by the time they do get counsel, they have already made confessions to enforcement officers. Additionally, investigation techniques appear to be confession-centric. From media reports, persons interrogated by the CPIB such as in the Ng Boon Gay and Professor Tey Tsun Hang corruption cases complained of long periods of interrogation, sometimes until unearthly hours. As a result, the ownership, voluntariness and accuracy of such confessions are often challenged. Mr Low says “The Law Society had in a report – which I, as the Chairman the Criminal Practice co-authored – dated September 2005 called for video-recording and tape-recording of the interrogation process and/or statement recording by enforcements. A similar call was made to the authorities four years later.” But he adds, “Calls for video-taping of interrogations by enforcement officers have, hitherto, been ignored.” Across the board, however, the activists do not have an optimistic view on whether the government is becoming more supportive of human rights work. While Damien points out that the government is certainty less “hostile” towards and “suspicious of activists”, “it is quite rare for us to find a case where the government has based its policy stance on considerations of human rights, or even a case where human rights have influenced the government’s decision.” He adds that while 10 Attorney-General v Hertzberg and others [2009] 1 Singapore Law Reports 1103.

Singapore has signed and ratified a few international human rights treaties such as the Convention for the Elimination of Discrimination Against Women (CEDAW), Convention for the Rights of Children (CRC) and the Convention for the Rights of People with Disabilities (CRPD), this is the exception rather than the rule. Zheng Xi agrees, stating that “in the government’s view, social stability and economic needs are given primacy over individual rights and liberties.” The same goes for their perception of Singaporean’s view on human rights. “Most Singaporeans we interact with tend to see human rights as a ‘foreign’ concept that is antithetical and perhaps even detrimental to our need for a stable and prosperous society,” Damien comments, though he qualifies that it is difficult to predict the population’s stance of human rights without statistics. In arguing that activists have an important role to play in changing the status quo and increasing the rightsbased discourse in Singapore, he says, “The largest obstacle is the fact that most people in Singapore are not familiar with the language of human rights”. Mr. Low concurs, saying there has not been much evidence of public discourse of human rights – “Venue providers fear repercussions from the authorities when they host events organised by civil society, and, attendance at Law Society talks and public forums conducted by Maruah indicates that interest among lawyers and the public on human rights continues to be less than inspiring.” However, Zheng Xi observes that the activist scene is already showing encouraging improvements – for example, more youth are participating in established civil society groups like Maruah and Function 8.11 “The latter is a group set up by exInternal Security Act detainees, an issue that one would hardly expect the young of today to have any affinity for … What I’m increasingly seeing is young people seeking out different alternative narratives, histories and ways of re-imagining Singapore’s future that is very different from the government’s worldview,” Zheng Xi opines. On the concern that the increase in activist groups and civil society actors may lead to “turf warfare, factionalism and infighting,” Zheng Xi takes a different view. “Diversity breeds longterm resilience and growth, and as part of this process some conflict will be inevitable, but that’s a necessary part of growth of the sector. Civil society should be celebrated for its vibrant messiness, unpredictability and lack of top-down leadership.” In pragmatic Singapore, it is easy to dismiss the notion of human rights as a “Western” concept or one that is alien to our way of life and governance. Yet at its core, for any system of regulation, including the law, to have genuine legitimacy, it must consistently champion and protect the individuals within its grasp. The political dynamics of Singapore have experienced much evolution in the past few years, particularly with the results of the last General Election – clearly a watershed in our relatively short history as an independent nation. Even as lawyers such as Mr. Peter Low have spearheaded and led the cause for human rights in uncertain territory, it is heartening to see a younger generation take active interest in such fundamental issues pertaining to our liberties, and we can only continue to hope that civil society develops an active and participatory voice in a changing Singapore. 11 Thus named because of the F8 key on the computer that resets it for troubleshooting.

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Photo Credit: Chris Smith https://www.flickr.com/photos/cjsmithphotography

FOREIGN LAW PRACTICES:

NOT ALL THAT FOREIGN by Samantha Kong University of Southampton

Understanding the differences between various firms can be challenging for a budding lawyer. In today’s competitive legal market, there are many different sizes and varieties of firms that graduates can choose from. However, with a deeper understanding of the job market coupled with an idea of your own preferences (and more importantly, subject to the firm’s requirements and availability!), finding a suitable firm might not be as daunting a task as it seems. This feature aims to shed light on some of the day-to-day experiences of working in a firm that is both local and international. Before the introduction of the QFLP (Qualifying Foreign Law Practice) license, overseas law firms were only allowed to practice local law through a joint venture with a local firm. Notable examples of joint venture firms are Baker & McKenzie. Wong & Leow, Hogan Lovells Lee & Lee and Duane Morris & Selvam LLP. The distinguishing factor of this category of firms is the fact that they provide both local and foreign legal services, hence carving out a unique niche for themselves. But perhaps one of the more pressing questions relevant to a prospective trainee is: what is working in a foreign firm really like? Mr Chan Leng Sun, head of the Dispute Resolution practice at Baker & McKenzie. Wong & Leow, and Mr Milan Radman, Partner at Baker & McKenzie, tell us more about life in the Singapore office of an international firm. In order to comprehend how this interesting amalgamation of local and international firm works, we ask Mr Chan and Mr Andrew to name three things that are unique in working in the 149

Singapore office of an international firm as opposed to a purely local firm, regional firm or working overseas. Chan Leng Sun: First, we are unique among all firms in Singapore in that we are both local and international. Baker & McKenzie has a network of offices and member firms globally and we pride ourselves on having leading local law capabilities wherever we operate. In Singapore, this means we are strongly rooted in Singapore law and Singapore culture, while at the same time, we have the DNA of a Global firm and bring an international outlook to our work. Secondly, much of the work we do has a cross-border dimension, which brings close cooperation and friendship with colleagues from all over the world. Working alongside someone from another office or member firm has become second nature to us. For many, working in another jurisdiction has also become such a normal part of life that few places are seen as “foreign” anymore. Thirdly, it is not just about travelling in and out of other jurisdictions. Lawyers have a chance to be based outside their home jurisdiction for periods of time, as inter-office secondments are encouraged. This gives lawyers a deeper understanding of other markets and cultures outside of their home jurisdiction. Milan Radman: While we are based in Singapore, because of our international capabilities and our network, the transactions in my practice area tend to mostly be regional. For example, our clients could be Indonesian corporates investing in Myanmar. There is not necessarily a direct Singapore connection.

This also means the work is complex - legally (due to being multi-jurisdictional), practically (due to needing to achieve results in countries with differing levels of development and infrastructure) and culturally (for example, South Korean clients negotiating with Thai counterparts).

notes that while “the firm’s demographics and the jurisdictions involved in practice are diverse, it is always comforting to know

Also, working for an international firm also means our team is diverse and reflects nationalities from around the region and further afield.

They also note that, as with any legal sector, there are upsides and downsides to the work.

Hence, we can gather that one of the perks in working in an international firm with a local office is the amount of overseas exposure that one will get, (mostly) through the comfort of a Singapore office. Also, for the adventurous, working in an international firm boasts a team with lawyers with diverse backgrounds and cultures, adding to the unique work experience.” In an industry as competitive and stressful as the legal one, longevity is intrinsically linked to the sustainability of one’s lifestyle – the partners further share with us on some of the things they look forward to at work everyday. Mr Chan Leng Sun says “There people. There is a sense of energy and enthusiasm. Part of the firm’s ethos is a culture of friendship. We encourage fun and friendship, so there are regular social activities, just as there are regular professional development opportunities.” Mr Milan Radman points to Singapore’s enviable position as “one of the ‘global hub’ cities”, noting that, “If something interesting is happening in Asia, chances are that we will be involved in it. Our work is often trail blazing – we have advised on many projects that are first of their kind to be implemented in a particular jurisdiction. Nothing is straightforward and unique solutions are nearly always required. In short, there is always something genuinely interesting happening in our work which requires good problem solving skills as well as a dose of experience to handle. We also have plenty of opportunity to demonstrate our accumulated skills and experience.” Ranging from the people to the nature of work, it seems that working in an international joint venture firm does provide a global experience that is truly unparalled in Singapore. Singapore’s prime location also makes it an attractive hub for major deals. Mr Milan Radman concurs, describing working in Baker & McKenzie as being “connected”. He says that “We spend a lot of time with our colleagues in other countries, both through work and through firm organised events. The firm actively fosters the growth of strong friendships across our regional offices at all levels. So we know the people we work with in other countries and catch up with them socially and for work quite regularly. A ‘culture of friendship’ is one of our values and something the firm prides itself on.”

that there is a common thread of camaraderie that runs through the firm. Also, there never is a boring day at Baker!”

Chan Leng Sun: I do litigation and arbitration. Every case is different, and you learn so much about so many different things. You also get to meet a lot of people. It is great when you manage to help your client in the matters they are involved in. On the downside, it’s no secret, a lawyer’s schedule is taxing and unpredictable. And one must learn to handle many different things and also not to be too emotionally affected by the difficult cases. Milan Radman: I enjoy travel and enjoy dropping in on different societies - on any morning during the week you could find me jogging around Marina Bay in Singapore, jogging around the national monument in Jakarta, Indonesia or jogging around one of the lakes in Yangon, Myanmar. The sights and sounds are totally different in each and I enjoy the diversity. Plus, I have a lot of friends and colleagues around the region and work provides opportunities to catch up with them regularly. For me, this kind of life is something I naturally like, so there is no downside. Finally, we hear some useful qualities that lawyers in international firms should possess. Chan Leng Sun: Integrity, initiative and industry know how. These are important in any law firm. But if one wants to thrive in an international law firm, one must also enjoy diversity as well as look forward to new challenges and experiences. Milan Radman: A deep curiosity and interest in different cultures, a desire to get to know people in a genuine way and a good understanding of modern history and the social context of the countries we deal with. ________________________ In conclusion, an international firm with a local office provides an interesting amalgamation of Singaporean and international experiences all within the same office. From global exposure to development of niche skill sets, the work promises to be challenging and exciting. In an evolving and growing Singapore legal sector, it seems that international firms are here to stay, and they certainly offer an interesting alternative pathway for new law graduates.

Indeed, when asked to sum up his working experience in Baker with a single word, Mr Chan Leng Sun simply says “Exciting. Because it is exciting.” Furthermore, even though Baker & McKenzie is a sizeable firm with significant international presence, Mr Milan Radman

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